Legal Theory Blog

All the theory that fits!


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

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Friday, October 31, 2003
Leiter on the Reproduction of Hierarchy Check out this post by Brian Leiter on the history of hierarchy in the academic philosophy in the U.S.

Baude on the Brown Nomination Will Baude's post on what Brown has actually said about Lochner is essential reading if you are interested in the current controversies over the judicial selection process.

Amar on the Scalia Recusal in the Pledge Case Vik Amar has some characteristically thoughtful remarks over on Findlaw. Here is a taste:
    The standard for recusal is what we call in the law a "soft" one, and that is a big part of the problem. A federal statute provides that "[a]ny justice, judge or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." This standard, like many in the law, focuses not on the actual presence of wrongdoing -- in this case "bias" -- but rather the appearance of wrongdoing or impropriety. The statute asks not whether the judge in question will in fact be fair, but rather whether "reasonable" people will think he can be fair. (The American Bar Association's Model Code of Judicial Conduct also employs an objective "reasonable person" approach.) Exactly how do we apply this "reasonable person" standard? The Supreme Court has made at least one thing clear - we should assume that reasonable people are somewhat skeptical. Even though judges are rarely biased in fact, "people who have not served on the bench are often all too willing to indulge suspicions and doubts concerning the integrity of judges." For that reason, as one Court of Appeals has noted, "it is essential to hold in mind that these outside observers are less inclined to credit judges' impartiality and mental discipline than the judiciary itself would be."

Heuer on Reasons and Oughts at Penn At the University of Pennsylvania philosophy colloquium, Ulrike Heuer (Penn) presents Reasons and Oughts.

Otsuka on Skepticism About Saving the Greater Number at Bristol At the University of Bristol, Mike Otsuka (UCL) presents Scepticism About Saving the Greater Number. Surf on over to Crooked Timber, for some more on Otsuka from Chris Bertram.

Waldron on the Primacy of Justice at North Carolina At the University of North Carolina philosophy speakers series, Jeremy Waldron (Sheps Distinguished Visitor) presents The Primacy of Justice.

Meidinger on Property & Development at Buffalo At SUNY Buffalo, Errol Meidinger presents Property Law in the Maw of Development Policy and Institutional Theory: Problems of Structure, Choice and Change, with comments by Sharmistha Bagchi-Sen.

Welcome to the Blogosphere . . . belatedly to The Serious Law Student. So that's where the serious law student is!

Thursday, October 30, 2003
A Bloggers Dream? Dennis Patterson (Rutgers, Law and Philosophy) will surely be pleased by this.

Privilege Sticks, or why the defeat of cloture on Pickering is important The democrats have defeated the cloture vote on Charles Pickerings nomination to the U.S. Court of Appeals. Here is taste from the L.A. Times report:
    Senate Democrats today upheld their fourth filibuster against a federal judicial nominee this year, citing civil rights concerns as they easily blocked a final vote on the nomination of federal Judge Charles W. Pickering Sr. of Mississippi to a seat on an appellate court. Pickering's allies fell six votes short of the 60 they needed to break the filibuster and force final action on his nomination. The 54-43 vote followed a short and bitter debate in which the judge's supporters claimed that he was being personally smeared. His critics said they were only protesting his record.
I don't know very much about the merits of the Pickering nomination. I do think that we are coming close to the point where filibusters of judicial nominees will become cemented in the common law or traditions of the Senate. This may not seem important, but I actually think it is crucial to the long-run future of the judicial selection process. Once Senators come to see filibustering of judicial nominees as a stick in the bundle of Senatorial privilege, then any radical effort to pluck the stick out is likely to engage individual non-majority leadership Senators' strong self-interest in the preservation of the status quo. Protect the whole bundle, Senators reason, lest the privilege sticks be plucked out, one by one. In other words, there is a natural (and I think rational) tendency for Senators to defend the status quo bundle of privilege sticks, even against ideological interest, because of the possibility of a slippery slope, at the bottom of which lies an increase in power for the majority leadership and a decrease in power for individual Senators.

Class Conflicts: Ex Post?, Ex Ante? or Behind the Veil?
    Introduction One of the most interesting questions in the theory of procedural fairness is reflected in the question: "When can a party be bound by a proceeding in which she had no right to participate?" It isn't hard to see how one might regard one's self as legitimately bound by a procedure that strikes a fair balance between accuracy and the costs of litigation, if one participated in the proceeding--with an opportunity to tell one's side of the story and the power to choose litigation strategies and tactics. But how can I regard myself as legitimately bound by a proceeding in which I had no voice? Of course, the law does bind us to such proceedings; for example, absent class members are bound by judgments in class actions. The usual understanding is that a class action should only bind those who are adequately represented, where the adequacy of representation if a function of both competence and alignment of interests between the representative parties and the absent class members. And the conventional wisdom is that a conflict of interest between groups within the class ("intraclass conflict") destroys adequacy of representation. The Supreme Court seems to have affirmed the conventional wisdom in several decisions, famously including Hansberry v. Lee.
    Here is the 64 thousand dollar question: How do we determine what counts as an impermissible conflict of interest?
    Miller on Conflicts of Interest in Class Action Litigation As you can tell, this whole topic fascinates me. So you will not be surprised to learn that I was excited to see that Geoffrey Miller (New York University School of Law) has posted Conflicts of Interest in Class Action Litigation: An Inquiry into the Appropriate Standard on SSRN. Miller's very interesting paper addresses these important and difficult questions. Here is the abstract:
      This paper is a inquiry into the proper standard for dealing with conflicts of interest in class actions. It proposes a simple approach to guide analysis: a conflict of interest should be deemed impermissible if a reasonable plaintiff, operating under a veil of ignorance as to his or her role in the class, would refuse consent to the arrangement. The standard proposed here can be termed a "hypothetical consent" principle. It substitutes a thought experiment in which consent is given or withheld under stylized conditions for the actual consent that is required in ordinary litigation. By placing the reasonable plaintiff behind a veil of ignorance as to his or her position in the class, the hypothetical consent idea allows representation to go forward even when some class members will be relatively better off and some worse off as the case develops. This approach can provide useful guidance both for the interpretation of counsel's duties under applicable rules of professional responsibility and also for courts deciding whether to certify class actions or approve class action settlements.
    Miller is not the first scholar to suggest the relevance of the Rawlsian "veil of ignorance" to questions of procedural justice. Bob Bone has a marvelous paper on this topic, Robert Bone, Agreeing to Fair Process: The Problem with Contractarian Theories of Procedural Fairness," 83 B.U. L. Rev. 485 (2003), and Bruce L. Hay and David Rosenberg have a working paper on SSRN entitled The Individual Justice of Averaging--the sets up an ex ante choice situation that is structurally a “veil of ignorance.” There is even a student note with a sophisticated analysis. See Ryan Kathleen Roth, Note, Mass Tort Malignancy: In the Search for a Cure, Courts Should Continue to Certify Mandatory, Settlement Only Class Actions, 79 B.U. L. Rev. 577 (1999). Moreover, there have been other attempts to use the notion of "hypothetical consent" to cut legal ice in the context of conflicts of interests. See, e.g. Charles Silver & Lynn A. Baker, I Cut, You Choose: The Role of Plaintiffs' Counsel in Allocating Settlement Proceeds, 84 Va. L. Rev. 1465 (1998)
    A Few Observations About Class Conflicts & the Veil of Ignorance Miller’s paper deals with the intersection between two topics that are near and dear to my heart, procedural justice and the veil of ignorance as a theoretical tool for normative analysis of law. In order to get at the really interesting stuff, I need to fill you in on some background about class actions & class conflicts, so let’s roll!
      What are conflicts of interests in the context of class action litigation? In a class action, a representative party is authorized by law to bind all of the members of a class to the outcome of a legal proceeding. When a class is certified, the power of the class representative to make decisions on behalf of the class is presumptively established. One of the criteria for class certification is "adequacy of representation," and representation is not adequate if there is a "conflict of interest" between the class representative and members of the class.
      Theory and Practice: The Role of Class Counsel That’s the theory, but the practice is a bit different. In the real world, the major decisions in a class action are likely to be made by the lawyers for the class, with the class representative acting more or less as a “rubber stamp,”; because the lawyers know more and it would be very costly for the representative to learn enough meaningfully to control the lawyer. One of the requirements for class certification is “adequacy of representation.”; Given the important role of class counsel, it is not surprising that both the representative party (the nominal plaintiff) and the counsel for the class must be capable of adequately representing the interests of the absent members of the class.
      Inadequate Representation A judge might find that the class representative or class counsel is an inadequate representative for a variety of reasons. For example, the class representative might be incompetent, unable to understand the implications of her decisions on behalf of the class. Or the class counsel might be insufficiently experience, as when a first-year lawyer attempts to represent a class in a very high stakes case. But one of the most important reasons for finding inadequacy of representation is “conflict of interest.” One kind of conflict is a conflict between the representative party and the class. A second kind of conflict is between class counsel and the class. A third kind of conflict occurs when some members of the class have interests that oppose those of other class members. One of the really terrific things about Miller’s paper is that provided a wonderful typology of conflicts of interests in class actions.
      Intraclass Conflicts The third kind of conflict is a conflict between subgroups (or members) of the class. Give me an example! A famous example is provided by the Supreme Court’s decision in Hansberry v. Lee, a case involving a racially restrictive covenant and a subdivision. Some members of the class had an interest in having the covenant upheld; other members of the class had an interest in having the covenant struck down. But the class included both groups and was controlled by the group the wanted the covenant upheld. This is a classic example of an intraclass conflict.
      What I Am Not Going to Discuss Miller’s paper discusses all kinds of class conflicts, but from this point forward I will limit my discussion to intraclass conflicts. These are probably not the most important conflicts from a practical standpoint; conflicts between counsel and class best fit that description. But intraclass conflicts are still important, they are very interesting to me, and Miller has some very provocative points to make about them.
    Ex Ante & Ex Post
      A Gap in Miller's Discussion In a sense, Miller’s paper is about the question, From what perspective or standpoint should we assess conflicts of interest in class actions? Even though Miller’s article is, in a sense, all about perspective on class conflict, there is a somewhat surprising lacunae in his very interesting treatment of that issue: Miller never mentions the distinction that is at the heart of his argument--the distinction between the ex ante and ex post perspective on class conflicts. That’s a mouthful. What does it mean?
      Ex Ante: Forward Looking In general, ex ante means forward looking. Thus, the ex ante perspective on class conflicts asks the question from the point in time at which the certification decision is made, i.e. at the outset of the litigation. Given the facts as they are known at the outset of the litigation, will there be a conflict between subgroups within the proposed class?
      Ex Post: Backward Looking In general, ex post means backward looking. The ex post perspective on class conflicts asks the question from the point in time when the litigation has been resolved, the class has either prevailed or lost, and if the class has prevailed, relief has been awarded. Given the facts as they are known at the end of the litigation, was there a conflict between subgroups within the certified class?
      Why the Difference in Perspective Is Important In the very same case, the answer to the question, “Is there an intraclass conflict?,” may vary, depending on whether we answer the question from the ex ante or the ex post perspective. Why? Some intraclass conflicts that do not appear or exist ex ante, come into being or become noticeable ex post. For example, when a class action settles, it may happen that at some point in the settlement negotiation it will become clear that the defendant’s offer is for a limited amount (e.g. a dollar sum or set of payouts with a present value equivalent to some sum). And it is possible that the total amount on the table is exceeded by the best estimate of the best estimate of the legally correct value of all the claims. Each class member would prefer that she get the full legal value of her claim, and that the shortfall in the total settlement be borne by other members of the class.
      Generalizing the Importance of Perspective More generally, once the class action is over and done with, there may well be cases where individual class members will say, “I now see that I could have done better through individual litigation." Or, “Now I see that a subclass could have been carved out, and I would have done better if I had been a member of that subclass.” The class action, ex post hurt me (or me and others like me) but helped other members of the class.
      Why Ex Post Intraclass Conflicts Are Not Grounds for Decertification Ex post conflict usually is not a basis for decertification of a class. Why not? In the case of a limited settlement amount, the available funds for payout can be distributed so the shortfall is borne equally (or proportionately) among all class members—class counsel has no incentive to deviate from a fair allocation of the settlement and the court should only approve a settlement that fairly allocates the proceeds among class members. Moreover, from the ex ante perspective, it may well be in the interests of all class members to proceed on a class basis, despite the fact that some members of the class may receive less from the class settlement than they might receive from individual litigation. Individual litigation may result in a greater individual award, but also greater attorney’s fees, and individual litigation may be riskier for plaintiffs, with some recovering more from their individual lawsuits but others recovering less or nothing at all. So depending on the facts, the ex post conflict of interest may well disappear if viewed from the ex ante perspective.
        Caveat: A conflict that is discovered while litigation is in progress may still be considered an ex ante conflict, if the litigation is at a stage where subclasses can still be created and the costs of subclassing to all subclasses are exceeded by the accuracy benefits.
      Class Certification Is An Ex Ante Decision The class certification decision examines conflicts of interest from an ex ante perspective. This is, in a sense, inevitable. Classes are certified at the beginning of the litigation. This does not, I think, mean that conflicts that develop or are revealed during the course of litigation could not lead to the decertification of a class. But at least as a general rule, the law is looking for ex ante and not ex post intraclass conflicts.
    What Is the Veil of Ignorance We need one more concept before we can examine Miller’s interesting idea. What is the veil of ignorance? For a short but full explanation, take a look at this installment of the Legal Theory Lexicon, but here is the gist:
      "Going behind the veil of ignorance" means performing a thought experiment. You ask yourself: "What legal rule would I choose if I didn't know such and such information."
    The phrase “veil of ignorance” was introduced by the political philosopher, John Rawls, as part of the original position--an initial choice situation in which representative parties choose principles of justice to govern the basic structure of society. But we can use the veil of ignorance more generally as the basis for determining what is fair by asking, “What outcome would those affected by a legal determination choose if they were behind the veil of ignorance and did not know their position in the legal proceeding?” So we might attempt to determine whether rules of procedure are fair by asking whether they would be chosen by parties behind a veil of ignorance which prevented them from knowing whether they were plaintiffs or defendants.
    Class Conflicts Behind the Veil
      The Basic Idea So here is Miller’s basic proposal:
        I propose a simple approach to guide analysis: a conflict of interest should be deemed impermissible if a reasonable plaintiff, operating under a veil of ignorance as to his or her role in the class, would refuse consent to the arrangement.
      No Idiosyncratic Interests Miller fleshes this out with some additional description:
        The decision-maker, under this standard, is a “reasonable” plaintiff. This idea is intended to accomplish two objectives. First, it operates to remove idiosyncratic features that might pertain to an individual class member in real life. For example, the reasonable plaintiff is not opposed to or supportive of class action litigation on ideological grounds, has no attitude towards the defendant based on personal history not shared by other class members, and is not unusually risk-averse or risk-preferring relative to the class. Nor is the reasonable plaintiff motivated by a desire to have her “day in court.”
      A Friendly Amendment I want to suggest a technical (and perhaps only terminological) correction to Miller’s description. Let’s use the phrase “reasonable class member” or “reasonable plaintiff” to describe a plaintiff who would give or withhold consent to a potential conflict in the same situations as would a representative class member behind the veil of ignorance--with all of the conditions that Miller attaches. With this minor correction in place Miller’s idea is that a reasonable class member in the actual world would consent if the representative class members behind the veil would consent. Why this very technical correction? Because we want to reserve the phrase “reasonable class member” for the hypothetical class member who would decide as would the representative parties behind the veil. If we call the parties behind the veil “reasonable,” before they deliberate, we haven’t fully incorporated the affect of the veil into our description of the reasonable party. I think that this is actually what Miller intended, and that he would accept this terminological correction as a “friendly amendment.”
      The Interests of the Representative Class Members Miller then goes on to describe the interests of the representative class members. As before, substitute “representative” for “reasonable” in the description that follows:
        The idea of a reasonable plaintiff implies that the decision-maker is motivated by rational self-interest, defined as a wish to maximize the value of her personal stake. She will not, for example, prefer a lower settlement to a higher one, or a later payout to an earlier one of the same amount. The reasonable plaintiff need not, however, be motivated solely by monetary gain: if the members of the class could be expected to have a nonpecuniary interest in the case – such as, for example, a reason to desire injunctive relief against the defendant – the reasonable plaintiff will share that interest. Similarly, especially in non-opt-out class actions, the reasonable plaintiff may have an autonomy based interest, grounded in the policies of the first amendment, in not having an attorney purport to speak in her name in making arguments or seeking results with which she disagrees.
      Classes and Subclasses So far, we have elided an important question. What does it mean to consent to a potential conflict of interest in a class action? It is very important to realize that “consenting to a conflict” is not the same as “choosing between a class action and an individual action.” Why not? Because there is a relevant third alternative, the creation of a subclass. When you decide whether to consent to the conflict, you are necessarily deciding among three possible options:
        Option One: Proceed as a unified class.
        Option Two: Proceed with subclasses having different representation.
        Option Three: Do not proceed with a class action, but instead allow each class member to bring an individual lawsuit.
      Relief and Litigation Costs And one more piece of the puzzle. When the representatives are reasoning behind the veil of ignorance, they will need to consider two different kinds of consequences that can affect their decision:
        Outcome Costs and Benefits--such as value to the plaintiff of the relief discounted by the probability of obtaining that relief giving the choice among the three options.
        Process Costs and Benefits--such as the cost to the plaintiff of participating in individualized litigation and the amount of the damages that will be consumed by attorney’s fees.
      A Quick Restatement So Miller’s basic idea is wonderfully simple and illuminating. When we are faced with the question whether there is a conflict of interest among class members that should preclude a determination that there is adequate representation, we perform the following thought experiment. We imagine representative class members behind a veil of ignorance, which deprives them of any information as to which particular members of the class they represent. These representatives are assumed to be rationally self-interested in maximizing their recovery, to be risk neutral, to have nonpecuniary interests shared by class members, but not to have idiosyncratic interests, such as an interest in having an individualized day in court. If the representative class member behind the veil with the interests specified would choose a unified class over a subclass or individualized litigation, then we say that reasonable class members would consent to the potential conflict of interest and hence that the possible conflict should not preclude class certification.
    The Case Against Going Behind the Veil I apologize for the very long windup. This is where it starts to get really interesting. I am going to try to convince you that Miller is wrong: we should not go behind the veil to decide whether there is an intraclass conflict that should preclude us from certifying a class. Here is my argument:
      Three Choices We can look at class conflicts from three candidate perspectives:
      • Ex Post--from the perspective of a litigant at the end of the action, with information about how she actually fared that can be compared with her ex post estimate of how she would have fared if she had litigated individually and how she would have fared if a subclass had been certified.
      • Ex Ante--from the perspective of a litigant at the start of the action, with information about how she is likely to fare if the action proceeds on a class basis which she can compare to her estimate as to how she would likely fare if she litigated her claim individually and how she would likely have fared if subclasses had been certified.
      • Behind the Veil--from the perspective of a rationally self-interested, risk-neutral class representative, unaware of her position in the class and information about how should would likely fare if the class is certified and how should would likely fare if the class is not certified.
      The Argument Against Miller: There Are No Intraclass Conflicts Behind the Veil Miller wants to ask whether a reasonable member of the class would consent to a potential conflict of interest from behind the veil of ignorance. Recall that we are limiting out attention to intraclass conflicts, e.g. situations where one group of class members has interests that oppose other class members. So here is the problem. Behind a veil of ignorance which deprives the representative class members of knowledge as to their position in the class, there cannot be an intraclass conflict. Why not? Because class conflicts arise between class members qua the positions that they occupy within a class. Once we deprive class members of that information (by putting it behind the veil), then class representatives cannot have any interests that conflict. That is all very airy and abstract, can you be more concrete? Yes, let's look at two examples.
      Example One: Hansberry v. Lee The first example is based on a very famous Supreme Court case. I'm altering the case to make it simpler, but the changes I make will not affect anything important for our purposes. Here is the setup:
        There is a subdivision with a racially restrictive covenant. The covenant, which limits the ability of class members to sell to nonwhite buyers, goes into affect if it is agreed to by 95% of the homeowners. A group of homeowners brings a class action on behalf of the class of all homeowners against a nonsignatory who is about to sell her home to a nonwhite buyer. The lawsuit alleges that the covenant is valid and asks for an injunction against the sale and a declaration that the covenant is valid.
      Hansberry v. Lee was decided before the Supreme Court had held that such covenants were invalid on the basis of the equal protection clause. So, the only real legal or factual issue on the merits is whether 95% of homeowners have signed. But who gets to litigate that question: a unified class, subclasses, or individuals? A unified class should only be certified if representation is adequate. If there is a conflict of interest among class members, certification should be denied. If there is no conflict of interest, certification should be granted.
      How would we analyze Hansberry v. Lee from our three perspectives (ex post, ex ante, and behind the veil?
        Ex Post: From the ex post perspective, there was clearly a conflict in Hansberry. Why? Because ex post, some parties prefer that the covenant be enforced and others prefer that it not be enforced. In cases of injunctive or declaratory relief, if some class members want the injunction or declaration and others do not, the conflict is apparent.
        Ex Ante: Here it gets just a tiny bit tricky, because it is actually not absolutely clear that the conflict in Hansberry did exist ex ante. The Supreme Court, however, seems to assume (reasonably) that at the time of certification, some class members would want to be free to sell to noncaucasian buyers and hence that some class members did and some did not want the declaration that the covenant was valid. Assuming this is the case, then from the ex ante perspective, there was a conflict in Hansberry and certification should have been denied.
        Behind the veil of ignorance: But how would we look at Hansberry from behind the veil of ignorance? Suppose you are behind the veil. You don't know which member of the class you represent. How would you decide whether to consent to the conflict? Behind the veil, you don't know whether you favor or oppose the requested declaration. You could look at the costs and benefits of either decision. But if you do look at costs and benefits, you very well may consent to the conflict. Why? Because from behind the veil (as it is specified by Miller), all you can do is aggregate. If the monetary benefits of enforcing the covenant exceed the costs, you will consent. If there is a tie on direct costs and benefits (outcome costs), you will still consent, because consenting minimizes litigation costs. Suppose, however, that you don't look at costs and benefits. Then, all you could do would be to count noses. If more members of the class would support the declaration than oppose it, then you might reason, after the veil is lifted, it is more likely than not that the party I represent will favor the declaration, so from a risk natural self-interested perspective, I should consent to the conflict, because that maximizes the expected value of the parties that I represent.
      Example Two: Amchem The second example is based on Amchem, another well-know decision of the Supreme Court. I'm going to use a very stylized version of its facts:
        Suppose we have two groups of mass tort plaintiffs, group A has high value claims and group B has low value claims. (Imagine for example, the group A has a clear case for causation, but group B does not.) If the case is litigated as a unitary class action, all class members will recover the same about of damages. If the case is litigated with subclass for group A and group B, then the total amount of damages will be reduced by 10% because of increased litigation costs, but group A will bet significantly more than with a unitary class and group B will get significantly less. If the case is litigated through individual litigation, the outcome is less predictable. Some members of group A will get very large awards, some will get awards similar to those under the class litigation options, and some will get nothing. Similarly, with group B, except few will get large awards and more will get nothing. The total amount actually paid out to plaintiffs under individual litigation will be 50% of the amount paid out under the unitary class option.
      Given these facts, would the parties consent:
        Ex Post: From the ex post perspective, winners will consent and losers will not. That is, if my ex post estimate of my expected payout from either subclasses or individual litigation is higher than what I actually receive from a unitary class action, then I would refuse consent.
        Ex Ante: Reasoning from the ex ante perspective will be similar, but I will have less information. First, I will not know the actual amount awarded pursuant to a class action. Second, I will not have any additional information about the value of my own claim (e.g. any injuries that would become apparent between certification and the time at which the ex post evaluation would occur. Given the setup of the hypo, members of the high-value claim subgroup would not consent to a unitary class, but they would consent to two subclasses.
        Behind the veil: But behind the veil of ignorance, consent is automatic. The parties behind the veil simply maximize the payouts for the group as a whole. Given that payouts will be larger with a class action than with subclasses or individual litigation (because the litigation costs will be lower), the representative parties behind the veil would give their consent to the conflict of interest. Interestingly, Miller, in his discussion of Amchem does not employ the veil of ignorance, and seems to argue instead, that ex ante conflicts would not be consented to by the reasonable plaintiff. (See page 37 of his working paper.)
      What’s Gone Wrong? It is now obvious that something has gone dreadfully wrong with our application of the veil of ignorance to the problem of hypothetical consent to intraclass conflicts. What happened? Here is one way of putting it: Putting the class members behind a veil of ignorance that excludes knowledge of position in the class is an inappropriate way of representing deliberation by a reasonable party deciding whether to consent to a conflict, because “position in the class” is what is at stake. That’s a lot of jargon! What do you mean? Our problem was conflicts of interest. You can’t reason about conflicts of interest by imagining that they don’t exist and then asking, “If there were no conflict, would you consent to it.” In other words, Miller’s idea is incoherent at a deep level.
    Some final words So in the end, I don’t think Miller’s argument works, but that does not mean that it was not edifying. In particular, Miller’s thought experiment provides an edifying context in which we can examine the more general debate exemplified by the arguments made by Robert Bone in Agreeing to Fair Process: The Problem with Contractarian Theories of Procedural Fairness," 83 B.U. L. Rev. 485 (2003), on the one hand, and Bruce L. Hay and David Rosenberg, in The Individual Justice of Averaging, on the other. Applying the ex ante perspective to questions of procedural justice is a sound move, but it is crucially important to ask the question, “When?” That is, from which temporal perspective do we ask the question whether a procedure is fair. As the example of intraclass conflicts illustrates, the answer to this question cannot be, “Before the dispute even arises.” Why not? Because if you simply ask, “What procedures would maximize your wealth (or utility or welfare) ex ante as applied to disputes you may (or may not) be involved in at some unspecified future time?,” there can only be one answer. That answer is, “The procedures that maximize wealth (or utility or welfare).” The question at hand should be, “What procedures are fair?” But putting parties behind a veil of ignorance the deprives them of all information about the effect of procedures on their own interests simply dissolves the question. And that is the crucial point, you cannot answer a question with a thought experiment that makes the question itself go away.

Law School and Medical School For some interesting comments on comparative pedagogy, surf here.

Wall Street Journal on Janice Brown The Wall Street Journal weighs in today on Janice Brown's nomination:
    The truth is that Judge Brown is all too qualified, and what scares the left is her chances for promotion. More U.S. Supreme Court Justices--including Antonin Scalia, Ruth Bader Ginsburg and Clarence Thomas--have come from the D.C. Circuit than from any other federal court. Democrats don't want President Bush to get credit for putting a black woman on the High Court any more than they wanted him to appoint the first Hispanic Justice, which explains their earlier filibuster of Miguel Estrada. The lesson liberals learned from Clarence Thomas's success is to start attacking early when fewer people are paying attention. Senators who had approved Judge Thomas's appointment to the D.C. Circuit found it politically difficult later to oppose his promotion to the Supreme Court. So they're out to defeat Judge Brown at the appellate level when they know she won't make the cover of Time. So she's getting the by-now-ritual Borking.
I don't think this will help end the downward spiral of politicization. Any chance of getting both sides to focus on the merits of Brown's nomination?

Interview with Karl Marx Here, link via Crooked Timber.

This and That My apologies for accidentally posting several of today's events yesterday. The posts have been moved & yesterday's events were posted late. I've added En Banc to the blogroll & regular readers will have already noticed that the sidebar has been reorganized.

Sunder on the New Enlightenment at Yale At Yale's Legal Theory Workshop Madhavi Sunder (University of California at Davis (Law)) presents The New Enlightenment & Piercing the Veil. Here is a taste:
    Current scholarship posits an inherent conf lict between women’s rights and culture.9 But this Article argues that religion qua religion is less the problem than is our traditional legal construction of this category. Premised on a centuries-old, Enlightenment compromise that justified reason in the public sphere by allowing deference to religious despotism in the private, human rights law continues to define religion in the twenty-first century as a sovereign, extralegal jurisdiction in which inequality is not only accepted, but expected. Law views religion as natural, irrational, incontestable, and imposed—in contrast to the public sphere, the only viable space for freedom and reason. Simply put, religion is the “other” of international law.

Kumm on a Constitional Theory of the Relationship between National and International Law at NYU At NYU's Colloquium in Legal, Political and Social Philosophy, Mattias Kumm (NYU School of Law) presents Towards a Constitutional Theory of the Relationship between National and International Law. Here is a taste:
    The argument from the international rule of law is insufficient to justify as strong a role for national courts as an uncompromisngly internationalist position suggests. Yet the idea of an international rule of law is strong enough to throw into serious doubt uncompromisingly dualist positions. This discussion of the international rule of law has yielded two propositions. First, there are morally attractive features about the ideal of the international rule of law that provide prima facie support for the claim that courts have a role to play in the enforcement of international law, even absent specif ic endorsement from the political branches. Second, beyond furthering the international rule of law, there are countervailing considerations that may limit the role of national courts as enforcers of international law. Reciprocity and flexibility concerns suggest that, whatever the moral case for national courts enforcing international law, national courts have independent reasons to design enforcement doctrines that foster coordination and cooperation with the executive branches to address those specific and limited concerns. Furthermore, there are important moral considerations beyond the international rule of law, narrowly understood, that need to be clarified and their implications assessed, before it is possible to determine to what extent competing considerations provide national courts with good reasons to enforce international law. It follows that any general account of the relationship between international law and national law, and any arguments about the role of national courts in a specific context, must be sensitive to all of these concerns in order to be convincing. To the extent dualist accounts along the lines Professor Bradley suggests18 fail to take into account values underlying the international rule of law, they are as one-sided and flawed as an uncompromisingly internationalist approach.

Mack on Realism and Civil Rights at Alabama Kenneth Mack, of Harvard Law School, will be presenting the University of Alabama Law School's annual Hugo Black Leture today. His title is The Relationship Between the Legal Realist and Civil Rights Movements.

Gordon on Copyright at Boston University At Boston University, Wendy Gordon presents Rendering Copyright Unto Caesar: Free Speech, Locke, and the Sphere of Gift.

Miller on Immigation at University College, London At University College, London's School of Public Policy, David Miller (Oxford) presents Immigration: the Case for Limits.

Galston gives the Terrelll Lecture at Texas on Structures of Diversity At the University of Texas, William Galston (University of Maryland) presents the Alexander Terrell Centennial Endowed Lecture: Structures of Diversity: Political Pluralism and the Limits of Public Power.

Klausner on Foundations at Michigan At the University of Michigan's law and economics series, Michael Klausner (Stanford) presents Discounting Future Charity: An Analysis of Foundation Payout Rates and their Regulation & When Time is Not Money: Foundation Payouts and the Time Value of Money.

Priester on Sentencting & Separation of Powers at Florida State At Florida State University, B.J. Priester (FSU College of Law) presents The Separation of Powers and the Constitutional Law of Sentencing.

Montini on International Environmental Necessity at Oxford At Oxford's Public International Law Discussion Group, Massimiliano Montini presents Environmental Necessity in International Law.

Hill on Rating Agencies at George Mason. At George Mason, Claire Hill (Chicago-Kent School of Law) presents Rating the Rating Agencies.

Marx and Wittgenstein? Courtesy of Online Papers in Philosophy, David G. Stern has a Review of Gavin Kitching and Nigel Pleasants' (eds.)Marx and Wittgenstein: Knowledge, Morality and Politics up on Notre Dame Philosophical Reviews:
    What, the reader of this review may well wonder, is the point of a collection of essays connecting Marx and Wittgenstein? After all, “it is possible to take almost any two thinkers of genuine insight and sophistication and to find some parallels and commonalities in their thought. Indeed, doing so is one of the favourite intellectual pastimes of all academics.” Indeed, one could legitimately ask whether “any two thinkers have less in common than Karl Marx and Ludwig Wittgenstein.” Consider, for a moment, the case for the prosecution. On the one hand we have Marx, political activist and economic theorist, the founder of the ’science’ of ’historical materialism,’ whose Theses on Feuerbach proclaim that “philosophers have only interpreted the world in various ways, the thing however is to change it.” On the other, Wittgenstein, a philosopher who “showed virtually no interest in conventional political activity,” famous for writing that “philosophy . . . leaves everything as it is” and who asked himself “who knows the laws by which society evolves?” only to answer “I am sure they are a closed book to the cleverest of men.”

Class Action Reform at the AEI today
    Class Action Reform: The Why and the Who Thursday, October 30, 2003, 9:00-noon Wohlstetter Conference Center, Twelfth Floor, AEI 1150 Seventeenth Street, N.W., Washington, D.C. 20036 The debate over class action reform has long suffered from a lack of theoretical and institutional context. Much attention is lavished on the technical details of competing reform proposals, with little recognition that those proposals often reflect widely divergent-though rarely articulated-assumptions about the general purposes of liability law (for example, deterrence of bad conduct and compensation of harmed individuals). At the same time, little sustained thought has been given to the institutional context of class action reform-that is, the specific risks and opportunities of pursuing reform through the federal courts, the Judicial Conference, the Congress, or federal agencies. Please join the AEI Liability Project for an exchange of views on the purposes and pathways of federal class action reform. 8:45 a.m. Registration 9:00 Welcome: MICHAEL S. GREVE, AEI Liability Project Panel I: Principles and Purposes of Class Action Reform Panelists: RICHARD EPSTEIN, University of Chicago and the Hoover Institution DAVID ROSENBERG, Harvard Law School Moderator: FRANCIS A. BUCKLEY, George Mason Law School 10:30 Coffee Break 10:45 Panel II: Class Action Reform-By Whom? Panelists: JOHN BEISNER, O'Melveny & Myers MARK A. PERRY, Gibson, Dunn & Crutcher The Hon. LEE ROSENTHAL, U.S. District Court TODD ZYWICKI, Federal Trade Commission Moderator: MICHAEL S. GREVE, AEI Liability Project Noon Adjournment Please see the attached invitation for registration information. Online registration is available at For more information, please contact Kate Rick at 202-862-5848. For media inquiries, please contact Veronique Rodman at 202-862-4871 or

Bond on Many Madisons James E. Bond (Seattle University School of Law) has a review of James Madison and the Future of Limited Government on The Independent Review. Here is a taste:
    It is perhaps not surprising that a collection of essays should present many different views of Madison, perhaps the most gifted political thinker of his age. Yet the reader is left wondering: Is there a “real” Madison? Was he pragmatic or principled? Was he a high Federalist or a Jeffersonian Republican? The answer to all three questions is yes—which is to say that Madison, perhaps more than any other Founding Brother, embodied, articulated, and negotiated the tension between the conflicting values and aspirations of his generation. Americans have always been both pragmatic and principled; and it is as true today as it was in 1800 that, as Jefferson declared in his first Inaugural Address, “We are all Republicans; we are all Federalists.” That “reality” is why the most concise and prescient assessment of Madison’s relevance to contemporary America appears not in any of the essays, but on the book’s dust jacket, where Larry Sabato comments: “To know America, you must know Madison.” There is no better place to make his acquaintance than in this book.

Conference Announcement: The New Federalism
    Our New Federalism? National Authority and Local Autonomy in the War on Terror The David G.Trager Public Policy Symposium Brooklyn Law School Friday November 21, 2003 In a series of cases decided before 2001, the Supreme Court set out rules prohibiting the federal government from "commandeering" local law enforcement officials but allowing the federal government to preempt certain laws that thwart national interests. How do these constitutional limitations apply to federal agents engaged in the war against terrorism and to local officials who are resisting what they believe to be federal government overreaching? This symposium assembles a group of distinguished scholars and practitioners with diverse perspectives to discuss and debate issues arising out of the clash between principles of federalism and the war on terror. For example, may the federal government preempt local laws 1) requiring disclosure of the identity of federal detainees in a local jail, 2) prohibiting local agencies from ascertaining or disclosing the immigration status of people who seek their services, or 3) prohibiting law enforcement infiltration of religious or political organizations? May the federal government compel a local Chief of Police to conduct interrogations of local Arab and Muslim men on behalf of the FBI, or to enforce federal immigration law? And when state or local officials voluntarily cooperate with federal authorities, do federalism concerns still exist? The forum is named for Brooklyn Law School's former Dean, now U.S. District Judge David G. Trager. For a schedule of speakers and topics, please click on the "for information" link below to download a PDF of the symposium brochure. Participants will include Ann Althouse (Wisconsin), Vikram Amar (Hastings), Erwin Chemerinsky (USC), and Paul Finkelman (Tulsa), who will present back ground papers in the morning, and Vicki Jackson (Georgetown), Jason Mazzone (Brooklyn), Burt Neuborne (NYU), Ernie Young (Texas), commenting on the presentations. The afternoon roundtable, moderated by Susan Herman (Brooklyn), will include the participants previously listed, joined by Lucas Guttentag (ACLU Immigrants Rights Project), Arnold Howitt (Kennedy School of Government, Taubman Center), Elizabeth Rindskopf Parker (Dean, McGeorge, former counsel to the CIA), Judith Resnik (Yale), and Judge David G. Trager. Papers presented at the symposium will be published in a forthcoming issue of the Brooklyn Law Review . CLE credit available. Register online for the symposium at For the symposium brochure, visit For more information contact the Special Events Office: (718) 780-7966

Wednesday, October 29, 2003
Two Talks Today My apologies to the readers of Legal Theory Blog. I neglected to post the following entries from the Legal Theory Calendar earlier today:
    At University College, London's School of Public Policy, David Miller (Oxford) presents Immigration: the Case for Limits.
    At Australian National University, Hilary Charlesworth presents Is International Law Relevant to the War in Iraq and its Aftermath?.
And some talks for tomorrow were posted instead. Everything is now more or less in order & the calendar entries for tomorrow will now appear where and when they belong.

Felten on DMCA Exemptions Rulemaking Ed Felten reports on the very narrow exemptions granted for the next three years. The official scoop is here. And Ernest Miller has a great collection of links. And some more from Derek Slater here.

Rorty Reviews Posner, or what is the sound of two pragmatists clapping? Richard Rorty (pragmatist philosopher) reviews Law, Pragmatism, and Democracy by Richard Posner (pragmatist) judge. Here is a taste:
    Posner concludes that "deliberative democracy, at least as conceived by Dewey, is as purely aspirational and unrealistic as rule by Platonic guardians." What we have, and what we should be satisfied with, is an understanding of democracy that "accepts people as they are, does not think it feasible or desirable to try to change them . . . and regards representative democracy as a pragmatic method of controlling, and providing for an orderly succession of, the officials who (not the people) are the real rulers of the nation." To see the American political system in this way is to substitute what Posner calls "Concept 2" democracy for Deweyan "Concept 1" democracy. For Concept 2 democrats, democracy is "not self-rule" but is "rule by officials who are, however, chosen by the people and who if they don't perform to expectations are fired by the people." Concept 2 democrats "don't think that jawing in the agora is the most productive way for people to spend their time. They don't believe that politics has intrinsic value or that political activity is ennobling." Concept 2 democracy is a matter of balancing competing interests, not of debating the worth of ideas, and so is no more ennobling than commerce.
Update: And here is more from John Rosenberg at Discriminations.

More on John Hart Ely Check out Michael Rappaport's thoughts on The Right Coast.

Welcome to the Blogosphere . . . to Lee Blog, a venture of Professor Edward Lee of Ohio State's law school and the author of the very fine Rules and Standards for Cyberspace, 77 Notre Dame L. Rev 1275 (2002). Here is a taste of what promises to be a very interesting effort:
    In hindsight, the recording industy may have goofed in its strategy in trying to shut down Napster in 1999. What Napster had going for it back then was that (i) it was the first mover in the online space in its respective field, (ii) a fast growing user base in the upwards of 75 million people at one time, and (iii) the corresponding name recognition that comes from being one of the best sites to do something that others are doing less well. Popular sites like ebay, Amazon, and Yahoo, all show that having (i), (ii), and (iii) is a recipe for business success. With music one would expect even greater potential business.
Surf on over!

More on Iterative Prisoner's Dilemmas: The Grim Trigger Solution Dennis O'Dea (Department of Economics, University of Illinois) writes to suggest that tit for tat is not solution for the iterative prisoner's dilemma game (as described in this past Sunday's Legal Theory Lexicon). Here are his remarks:
    While the tit-for-tat strategy is the easiest to understand example of a repeated game strategy that seems to get around the problem, it is actually not a good solution. This requires us to expand our definition of solution a bit though; at the start of the game, if you know that your opponent is playing tit-for-tat, then a best response is indeed to play tit-for-tat. In that sense it is an equilibrium. In another sense, however, it is not. Suppose we start from middle of play, where previously we made opposite moves. Tit for tat dictates that we flop around forever. This is a worse outcome for you than if you unilaterally deviated away from tit for tat towards cooperation. That is to say, playing tit after a history of play such as that is NOT optimal. So tit for tat is in some sense not stable. A strategy in the infinitely repeated prisoner's dilemma that IS stable, and has a much better name, is the Grim Trigger. This is a strategy in which you cooperate after any history of play in which your opponent has not yet defected. So if my opponent ever defects, I will defect forever no matter how much he may cooperate in the future. This strategy is optimal after any history of play; we say it is subgame perfect. What is going on here is that the grim trigger makes the cost of defecting much higher than tit-for-tat. It is high enough that no matter what has previously happened, it doesn't pay to deviate from the grim trigger. That's really the best way to think of how repeated game strategies work; following the strategy gives you a certain payoff, and deviated gives you another. WE require that the payoff from deviating always be lower than following, so long as every ELSE follows the play dictated by the strategy; that is, we only require that unilateral deviations never pay. If we allow correlated deviations, the problem becomes much tougher. So if we want to support some outcome in a generic repeated game, we have to figure out what the worst possible outcome we can enforce upon someone is, and design a strategy that will force any deviant down to this level. So the level of cooperation we can support depends upon how bad an outcome we can inflict on other players.
Thanks! Well, that got me curious. Here is an excerpt from a paper by Elinor Ostrom, entitled A Behavioral Approach to the Rational-Choice Theory of Collective Action:
    Once a verbal agreement in an N-person setting is reached, that becomes the focal point for further action within the context of a particular ongoing group. If everyone keeps to the agreement, no further reaction is needed by someone who is a reciprocator. If, however, the agreement is not kept, an individual following a reciprocity norm--without any prior agreement regarding selective sanctions for nonconformance--needs to punish those who did not keep their commitment. A frequently posited punishment is the grim trigger, whereby a participant plays the Nash equilibrium strategy forever upon detecting any cheating. Subjects in repeated experiments frequently discuss the use of a grim trigger to punish mild defections, but reject the idea because it would punish everyone--not just the cheater(s) (E. Ostrom, Gardner, and Walker 1994). A much less drastic punishment strategy is the measured reaction. "In a measured reaction, a player reacts mildly (if at all) to a small deviation from an agreement. Defections trigger mild reactions instead of harsh punishments. If defections continue over time, the measured response slowly moves from the point of agreement toward the Nash equilibrium" (ibid., 199-200).
For more on the "grim trigger," check out:
  • Grim Trigger Strategy at GameTheory.Net.
  • Cooperating Democrats, Defecting Autocrats, by Fiona E.S. McGillivray and Alastair Smith. (This paper discuss the "leader specific grim trigger strategy," Abstract:
      Using the infinitely repeated prisoners' dilemma as a modeling platform, we examine how the domestic political institutions of nations affect their ability to cooperate internationally. We propose a strategy, the Leader Specific Grim Trigger, in which leaders direct punishments for past defections at the leader responsible rather than at the nation she represents. Leaders refuse to cooperate with those leaders that have cheated them in the past. However, by being prepare to cooperate with new leaders, cooperation can be restored. The focus of punishment on specific leaders rather than the nation means that domestic electorates want to remove leaders that defect. Hence, leaders that are held domestically accountable pay audience costs for failing to cooperate. In addition to showing that democratic dyads can cooperate to a greater extent than other pairs of nations, the model produces hypotheses about both the domestic consequences of international cooperation and the relationship between leadership change and the restoration of cooperative agreements.

Subramanian on Bargaining in the Shadow of . . . Guhan Subramanian (Harvard Law School) has posted Bargaining in the Shadow of Takeover Defenses (forthcoming Yale Law Journal, Vol. 113, No. 3, December 2003) on SSRN. Here is the abstract:
    Among the arguments that have been put forward to support the view that takeover defenses increase shareholder returns when a company becomes a takeover target, the "bargaining power hypothesis" is the most commonly cited argument today. Under this theory, takeover defenses allow the target to extract more in a negotiated acquisition because the bidder's no-deal alternative, to make a hostile bid, is worsened. Despite its centrality to the current debate on takeover defenses, the bargaining power hypothesis has never been subjected to a careful theoretical analysis or to a comprehensive empirical test. In this Article I present a model of bargaining in the "shadow" of takeover defenses that introduces alternatives away from the table, hostile bid costs, asymmetric information, and agency costs into the standard bargaining model. I confirm the features of this model using interviews with the heads of mergers and acquisitions at ten major New York City investment banks, which collectively account for 96% of U.S. M&A deal volume. I also present econometric evidence that is consistent with this model. The theoretical model, practitioner interviews, and econometric evidence presented here indicate that the bargaining power hypothesis is unlikely to be valid in many if not most negotiated acquisitions. This conclusion has implications for whether defenses increase or decrease shareholder wealth, and whether the recent pro-takeover movements in the Delaware courts will lead to negative consequences for target shareholders in negotiated acquisitions.

Tuesday, October 28, 2003
Must Reading for Cybertheorists I was just over at Ernest Miller's The Importance Of. I just cannot say enough in praise of this wonderful blog. Miller has recent posts on the future of TIVO, the broadcast flag, next generation DVD, and a slew of other topics. Miller's blog is a reminder of the transformative possibilities of the Internet. Oh, I'd better stop now.

New Papers on the Net Here is today's roundup:
    Spam - Oy, It's Such a Nuisance! Adam Mossoff Michigan State University-DCL College of Law Abstract:
      This article proposes a new legal solution to the mounting costs and problems associated with unsolicited commercial email (commonly known as "spam"). The need for a solution is pressing: spam is swamping the Internet, and ISPs and other businesses are suffering millions of dollars in losses attributable to spam. Yet the attempts at staunching the spam deluge with legislation and trespass lawsuits have been unsuccessful. In June 2003, the California Supreme Court dealt a blow to industry efforts at eliminating spam by reversing a trespass verdict against an alleged spammer. An intense lobbying campaign to push Congress to enact anti-spam legislation also failed this year, despite nine anti-spam bills proposed in the first half of 2003. The fundamental cause of these litigation and legislative failures has been the inability to conceptualize properly the legal harm caused by spam, which has frustrated attempts at creating the appropriate legal response. This article contends that ISPs and others businesses should sue spammers for private nuisance. The advantages to using nuisance have gone largely unexplored in the academic literature, and no plaintiff has litigated a nuisance claim against a spammer to a final judgment in a published court opinion. This article fills this lacuna, explaining how the harms caused to ISPs and business networks are classic examples of nuisance-type injuries. It also explains the numerous policy advantages to suing spammers for nuisance, which range from efficiencies achieved through the use of the proper litigation tools to a reduction in wasted resources spent lobbying for ineffectual legislation or temporary technological fixes. Although there is no single magic bullet for eliminating spam, nuisance doctrine can (and should) play an important role in the overall strategy to eliminate this omnipresent menace to the Internet - before, in the words of the FTC, spam "kills the killer app."
    Accommodation Subverted: The Future of Work/Family Initiatives in a 'Me, Inc.' World Texas Journal of Women and the Law, Vol. 12, 2003 Rachel Arnow-Richman Temple University - James E Beasley School of Law Abstract:
      This Article considers the viability of mandated employer accommodation of family caregiving in a work culture that prizes employee mobility and independence. Extant accommodation mandates, such as the ADA and the FMLA, have been only moderately successful in deconstructing discriminatory work structures that operate to exclude underrepresented workers. Court decisions interpreting those laws frequently invoke equality principles to limit their reach and preserve employer discretion, while decisions favorable to disadvantaged plaintiffs have often occasioned popular backlash. These circumstances call into question the efficacy of accommodation as a vehicle for achieving results-based equality for caregivers. Such difficulties, the Article suggests, must be analyzed against the development of a "Me, Inc." work culture, an environment typified by worker assumption of responsibility for training and education, increased employer demand for "extra-role" behavior, significant worker mobility and a corresponding decline in long-term employment relationships. The emerging view of workers as autonomous companies is in direct tension with society's historical designation of the employer as the party primarily responsible for accommodating the "life-cycle" needs of its workforce. On a practical level, changes in the nature and duration of work relationships mean that employers will have limited ability to absorb costs associated with accommodation, and, more significantly, that any judicial interpretation or popular conception of the employer's duty to accommodate will be constrained by the expectation of employee self-reliance. The Article therefore cautions that expansive efforts to mandate employer accommodation of caregiving risk internalizing the norms they reject and are unlikely to succeed on their own in establishing a work ethic more inclusive of family caregiving. It proposes instead three preliminary steps to redressing caregiver disadvantage that draw on established channels of federal employment regulation: the vigorous pursuit of class-based discrimination claims, reinvigoration of collective bargaining, and the creation of a government-administered system of wage replacement that incentivizes employer-initiated programs to assist caregivers.
    A WTO Agreement on Investment: A Solution in Search of a Problem? University of Pennsylvania Journal of International Economic Law, Vol. 24, p. 77, 2003 Kevin C. Kennedy Michigan State University-DCL College of Law Abstract:
      As global competition for foreign direct investment (FDI) intensifies, the question pending before the World Trade Organization (WTO) is whether to negotiate an agreement on investment that would address, inter alia, national laws that restrict market access of foreign capital. Whether the WTO can succeed in concluding a multilateral agreement on investment is subject to doubt. Several WTO members (e.g., the EU) have supported such a framework agreement, while others (e.g., the United States) have expressed misgivings and shown reluctance to move forward on meaningful negotiations. Considering the diverse and broad WTO membership that includes developed, developing, and emerging economies, a strong argument can be made that the WTO is the proper forum for concluding a multilateral investment agreement, not only because of its broad-based membership, but because of the close link between trade and liberalized investment rules. On the other hand, a WTO agreement on investment may be a solution in search of problem for the following reasons. First, FDI flows are steadily increasing, even in the absence of a multilateral investment agreement. Second, the threat to national sovereignty that a WTO agreement on investment represents to developing countries is a genuine concern. Third, the development concerns of developing countries and their capacity (or incapacity) to absorb yet another WTO agreement cannot be ignored. Fourth, it is safe to predict that many exceptions and reservations will be made to any WTO agreement on investment, effectively hollowing it out. Fifth, an incremental, sectoral approach is a tested and proven approach at the WTO for successfully negotiating market liberalization for foreign investment. Sixth, the most pressing issue facing the WTO membership in the context of FDI isn't a lack of market access for foreign capital. The immediate problem are TRIMs, both positive and negative, that potentially distort investment patterns. Seventh and finally, it is far from clear that the current network of bilateral and regional investment agreements provides an unstable and unpredictable legal environment for FDI. Bilateral investment agreements offer the flexibility that is not possible under a multilateral framework.
    Institutional Shareholders, Private Equity, and Antitakeover Protection at the IPO Stage University of Pennsylvania Law Review, Vol. 152 Michael Klausner Stanford Law School Abstract:
      Institutional investors have been slow to respond to the widespread presence of takeover defenses in the charters of firms whose shares they hold through private equity funds, and their response to date has been tepid compared to their efforts in the proxy context. Institutions' hesitancy may reflect a rational unwillingness among private equity funds, as well as the institutions' own investment staff, to require portfolio companies to go public with takeover-friendly charters. This article has developed a hypothesis to explain the common presence of defenses in the charters of firms that go public with private equity investment and the half-hearted response of institutional investors to this situation. Under this hypothesis - based on private equity funds' need to maintain a reputation for dealing well with successful managers of portfolio companies - it is privately rational but socially inefficient for private equity funds to have their portfolio companies adopt takeover defenses. The implication of the hypothesis is that institutional investors may face at least as difficult a challenge in ridding IPO charters of takeover defenses as they face in urging managers of already-public firms to eliminate defenses from their charters.
    Civil Obedience Columbia Law Review, Forthcoming W. Bradley Wendel Washington and Lee Law School Note: I blogged this paper in working paper form. Highly recommended. 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 live 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.
    Uncovering the Rationale for Requiring Infertility in Surrogacy Arrangements American Journal of Law & Medicine, Vol. 29, No. 2 & 3, 2003 Robin Wilson University of Maryland School of Law (Visiting Professor) Abstract:
      With little explanation, state legislatures have limited surrogate parenting arrangements to couples in which the intended mother is infertile or unable to bear a child without unreasonable risk. This requirement stands in stark contrast to the diminishing importance of infertility to adoption agencies, which have relaxed or abandoned it as a prerequisite to adoption. Commentators assert that an infertility requirement bars women who want to avoid the nuisance of being pregnant and giving birth from using a surrogate. Despite this patently moralistic explanation, studies now emerging indicate that an emphasis on infertility may further the best interests of the resulting child. Some of these studies suggest that children born of surrogate parenting arrangements may face significant risks of major birth defects, risks of conception that arguably should be avoided if the intended parents can otherwise conceive. Other studies suggest that the child born to intended parents who later conceive may, like Cinderella, face reduced parental investment after a genetic child enters the household. In this Article, Professor Wilson examines whether a maternal infertility requirement can be rationally grounded in valid, significant concerns about risks to the resulting child. The Article identifies areas where additional information is required before studies like these can be relied on to support such a requirement. Ultimately, this Article concludes that an infertility requirement – while not intended by state legislatures as a protective measure - may be inadvertently rational and justifies continued attention to the relationship between infertility and the interests of the resulting children.
    The Case for Antitrust Enforcement Jonathan Baker American University, Washington College of Law Abstract:
      This paper provides evidence of the necessity and success of antitrust enforcement. It begins with examples of socially beneficial antitrust challenges by the federal antitrust agencies to price-fixing and other forms of collusion; to mergers that appear likely to harm competition; and to monopolists and others that use anticompetitive exclusionary practices to obtain or maintain their market power. It then reviews systematic empirical evidence on the value of antitrust derived from informal experiments involving the behavior of U.S. firms during periods without effective antitrust enforcement, and the behavior of firms across different national antitrust regimes. Overall, it concludes, the benefits of antitrust enforcement to consumers and social welfare - particularly in deterring the harms from anticompetitive conduct across the economy - appear to be far larger than what the government spends on antitrust enforcement and firms spend directly or indirectly on antitrust compliance.
    Voter Preferences and State Regulation of Smoking Economic Inquiry, Forthcoming Joni Hersch, Alison DelRossi and W. Viscusi Harvard University - Harvard Law School , St. Lawrence University - Department of Economics and Harvard Law School Abstract:
      Voters' preferences for smoking restrictions in restaurants, bars, malls, indoor sporting events, and hospitals are consistent with state-level restrictions on smoking in each of these public areas. This analysis is based on constructed measures of political pressure that take into account both individual preferences and voting behavior. Although smokers are less likely to vote than nonsmokers, their lower voting rate does not substantially influence the probability that a state has a restriction. Other factors, such as tobacco's role in the state economy and state income, are rarely influential.

Downward Spiral of Politicization Department In the New York Times, Neil Lewis has a story titled Where the Gloves Are Nearly Always Off. Here is a taste:
    Such is the level of partisan rancor at Senate Judiciary Committee meetings that some staff aides recently suggested that the Department of Homeland Security screen senators for weapons and sharp objects before they enter the hearing room.
But seriously,
    If trading insults is the rule on Capitol Hill these days, and it appears to be, the Judiciary Committee offers an especially vivid example, rivaling the House Ways and Means Committee, another increasingly nasty forum. The ritual courtesies, niceties like "I want to say to my good friend from the State of X," uttered as the prelude to a verbal assault, can no longer conceal the genuine anger and sometimes even loathing with which some Democrats and Republicans regard each other. Nor is there any sign that either side wishes to yield even a small bit, the first step to compromise and the breaking of a deadlock. In the Judiciary Committee, the bitterness springs partly from an understanding that the federal appeals courts are a principal battlefront in the culture wars. As judges increasingly decide some of the most heated social issues in the nation, the issue of who gets to be a federal judge has increased in importance.
As frequent readers of this blog know, I have been arguing for some time that the judicial selection process is in the midst of a downward spiral of politicization. And on Janice Brown,
    The latest candidate to provoke this debate was Janice Rogers Brown, a justice of the California Supreme Court who has been nominated to a seat on the influential appeals court in Washington. Justice Brown, an African-American, has given some fiery conservative speeches and written sharply worded judicial opinions. She insisted at her hearing last week that she was not, as her critics have asserted, "out of the mainstream" of legal philosophy. Ever since the 1987 confirmation hearing of Robert H. Bork to the Supreme Court, the issue of whether a nominee is in the legal mainstream has been a prime debating point. But Justice Brown has questioned the validity of the so-called incorporation doctrine, under which the essential elements of the Bill of Rights apply to the states. The incorporation doctrine is nowadays as well settled as any judicial principle and is a cornerstone of modern judicial decision making.
Of course, incorporation is settled, and undoubtedly, Brown understands that. Is the "soundness" of incorporation settled? Surely not--although I am inclined to think that history is on the side of incorporation. Interesting reading!

Harlow on Distributed Justice at Oxford At Oxford's Faculty of Law Professor Carol Harlow QC, FBA, delivers The Clarendon Law Lectures: Towards Distributed Justice. O.K., the title got me. What is "distributed" justice?

Leiter on Law & Evolutionary Biology at George Mason This should be good! At George Mason, Brian Leiter (University of Texas, Law and Philosophy) presents Why Evolutionary Biology is (so far) Irrelevant to Law.

Rabban on Historical Jurisprudence at Texas At the University of Texas, David Rabban presents The American School of Historical Jurisprudence. Here is a taste:
    I want to discuss the origins of my interest in what I call the American School of Historical Jurisprudence and to describe its central features. I will suggest that the existence of this school challenges prevailing views about the intellectual formalism and political conservatism of late nineteenth-century American legal thought, places Holmes and Pound, the most widely studied and admired legal scholars of the late nineteenth and early twentieth centuries, into a broader and extremely revealing context, and demonstrates that legal scholarship in the United States formed part of an intellectual world that spanned disciplines and countries.
Update: I just finished Rabban's short, but extremely interesting paper. Highly recommended!

Viens on Relativism and Applied Ethics at the Ockham Society At Oxford's Ockham Soceity, Adrian Viens (Oxford) presents Relativism and Applied Ethics.

Ghosh on Copyright as Privatization at Oxford's IP Seminar At Oxord's IP Seminar, Shubha Ghosh (SUNY Buffalo) presents Copyright as Privatisation.

Eleftheriadis on the Identity of Legal and Political Philosophy at Oxford At Oxford's Jurisprudence Discussion Group, Pavlos Eleftheriadis presents The Identity of Legal and Political Philosophy.

Broome on Rationality at Brown At Brown University's philosophy department, John Broome (Oxford) does the first in a series of three lectures:
    Tuesday, October 28 Rationality Wednesday, October 29 Theoretical Reasoning Thursday, October 30 Practical Reasoning

Yu on the Copyright Divide Peter Yu (Michigan State University-DCL College of Law) has posted The Copyright Divide (forthcoming Cardozo Law Review, Vol. 25, 2003) on SSRN. Here is the abstract:
    Most recently, the recording industry filed 261 lawsuits against individuals who illegally downloaded and distributed a large amount of music via peer-to-peer file-sharing networks, such as KaZaA, Grokster, iMesh, and Gnutella. Although the industry's recent approach was controversial and resulted in major criticisms from legislators, academics, civil libertarians, consumer advocates, and university officials, the copyright holders' aggressive tactics are not new. In fact, copyright holders have been known for using, or encouraging their government to use, coercive power to protect their creative works. Only a decade ago, the U.S. copyright industries have lobbied their government to use strong-armed tactics to coerce China into protecting intellectual property rights. Succumbing to U.S. trade pressure, the Chinese authorities eventually raided pirate factories and handed out harsh penalties, including the death penalty and life imprisonment in severe cases, on their citizens. The similarities between the RIAA and China stories were more than a coincidence and could be further linked to a third story. That story took place two centuries ago when the United States was still a less developed country. At that time, book piracy was rampant, and the United States was considered one of the most notorious pirating nations in the world. This Article brings together, for the first time, eighteenth- and nineteenth-century America, twentieth-century China, and twenty-first-century cyberspace and analyzes them using a cross-cultural, cross-systemic, cross-temporal, and cross-sectoral approach. This Article not only highlights the striking similarities among the three stories, but also argues that these similarities provide insight into the war on piracy, intellectual property law reforms, and international harmonization efforts.
Very interesting! What is most intriguing about the current enforcement effort is that it is directed at noncommercial and arguably private conduct, implicating a conflict between copynorms and copyrights that seems quite different than Yu's other two examples.

Tiefenbrun on the Life of a Geisha Susan Tiefenbrun (Thomas Jefferson School of Law) has posted Copyright Infringement, Sex Trafficking, and the Fictional Life of a Geisha (forthcoming Michigan Journal of Gender & Law, Vol. 10) on SSRN. Here is the abstract:
    This article explores the legal issues hidden within Arthur Golden's Memoirs of a Geisha. The geisha tradition has been alternately glorified by Japanese society, and outlawed by Japanese law as a form of prostitution. The leitmotif of Golden's famous novel is this evolving duality of the geisha as both artisan and courtesan. At its worst, the geisha tradition involves force, fraud, and deception, and the horrifying practice of selling one's own children into slavery for purposes of sexual exploitation. In striving for historical accuracy, Golden obtained an intimate interview with a real geisha named Mineko Iwasaki, who consented to reveal to him valuable secrets about the closed geisha society. Using her narrative as source material, Golden wrote a fictional biography of a little girl named Chiyo-chan who is sold by her own father at the age of nine into debt bondage. Like many Japanese girls sold by their parents into forced prostitution and slavery, Chiyo-chan endures a harsh indoctrination and eventually becomes a famous geisha known as Nitta Sayuri. The essence of the novel is the transformation of Chiyo-chan into Nitta Sayuri. The poetic, fairy-tale quality of Golden's prose, and his unusual narrative style, made the novel a literary and financial success upon its publication in 1997. In 2001, however, Mineko Iwasaki shocked the literary world by filing a lawsuit against Golden and his publishers, in New York court under Japanese and New York law, claiming breach of contract, quantum meruit, copyright infringement, unjust enrichment, defamation of character, and violation of her rights to privacy and publicity. It seems that Iwasaki became outraged by the discrepancies between her own life and that of Golden's purportedly fictional geisha. This article asks, and seeks to answer, two questions: First, is the geisha tradition as described by Golden a variant of sex trafficking and sexual slavery which, despite possible cultural justifications, should be abolished by law? Second, does Iwasaki's lawsuit have any merit?

Taipale on Data Mining K. A. Taipale (Center for Advanced Studies in Science and Technology Policy) has posted Data Mining and Domestic Security: Connecting the Dots to Make Sense of Data" (forthcoming 5 Columbia Science & Tech. Law Review (December 2003)). Here is the abstract:
    This article argues that security with privacy can be achieved by employing value sensitive technology development strategies that take privacy concerns into account during development, in particular, by building in rule-based processing, selective revelation, and strong credential and audit features. It does not argue that these technical features alone can eliminate privacy concerns but, rather, that these features can enable familiar, existing privacy protecting oversight and control mechanisms, procedures and doctrines (or their analogues) to be applied in order to control the use of these new technologies. Importantly, I believe that any future legislative or judicial oversight or control of the use of these technologies will require that these technical features be included in the initial development of the technologies. Thus, in my view, the defunding of DARPA's OIA will be turn out to be a pyrrhic 'victory' for civil liberties as the TIA and its related projects were the perfect programs around which to debate the rules and procedures for future use and to oversee the development of the appropriate technical features to support privacy policies.

Conference Announcement: Annual Meeting of the American Society for Legal History November 13 through November 16, the Annual Meeting of the American Society for Legal History, takes place in Washington, DC. Here is a the website & here is the program.

Monday, October 27, 2003
New Papers on the Net Here is today's roundup:
    You Can't Ask (or Say) That: The First Amendment Implications of Civil Rights Restrictions on Decisionmaker Speech William & Mary Bill of Rights Journal, Vol. 11, p. 727, 2003 Helen Norton University of Maryland - School of Law Abstract:
      Many antidiscrimination statutes limit speech by employers, landlords, lenders, and other decisionmakers in one or both of two ways: (1) by prohibiting queries soliciting information about an applicant's disability, sexual orientation, marital status, or other protected characteristic; and (2) by proscribing discriminatory advertisements or other expressions of discriminatory preference for applicants based on race, sex, age, sexual orientation, or other protected characteristics. This Article explores how we might think about these laws for First Amendment purposes. Part I outlines the range of civil rights restrictions on decisionmaker speech, while Part II identifies the antidiscrimination and privacy concerns that drive their enactment. Part III explores in some detail whether - and, if so, how - these civil rights laws fit within the Supreme Court's current commercial speech jurisprudence. I conclude that the restricted speech is most appropriately characterized as unprotected commercial expression because it skews, rather than educates, listeners' choices by facilitating illegal discrimination and deterring applicants from pursuing important opportunities. By sorting these communications according to their ability to contribute to listeners' paramount interest in informed decisionmaking, the Court's modern commercial speech doctrine most directly explains why these laws (like consumer protection statutes prohibiting deceptive and misleading representations) do not run afoul of free speech values. Because commercial speech doctrine is currently the subject of controversy and thus may be subject to change, Part IV goes on to assess other potential First Amendment approaches to this problem. I pose a series of queries at various points along the continuum of First Amendment protections: Is decisionmaker speech unprotected because it is more like discriminatory conduct than expression? If it is speech, is its value nevertheless sufficiently low to warrant something less than full protection? If it is fully protected expression, does the government's regulation of it nonetheless survive strict scrutiny? These approaches offer different ways to describe the same phenomenon: a specific context where speech is so closely tied to discriminatory action as to justify its regulation.
    Ubi Jus, Ibi Remedium: The Fundamental Right to a Remedy Tracy Thomas University of Akron - School of Law Abstract:
      This essay is part of the 2003 Remedies Forum symposium comprised of international remedies scholars addressing the topic of equitable relief in the fifty years since Brown v. Board of Education. It may be true that since the time of Brown, institutional defendants have won at the expense of plaintiffs. Defendants have learned that delay and defiance work. The U.S. Supreme Court has adopted a standard for ordering equitable relief that significantly defers to defendant wrongdoers at the plaintiffs' expense. Epithets of "activist courts" and "judicial legislation" have colored the existing scholarship and portrayed remedial action as illegitimate and excessive judicial power. And the recent barrage of school funding cases demonstrate the same resistance to court-ordered conduct as seen in Brown. This essay attempts to swing the pendulum in the other direction by suggesting that remedial action like that of Brown and its progeny is not only acceptable, but indeed, required judicial action. It argues that a remedy is more than a legal maxim. Rather, this essay argues that the right to a meaningful remedy is a fundamental right protected by the Due Process Clause of the Fourteenth Amendment. Stated simply: Ubi jus, ibi remedium. Where there's a right, there must be a remedy. The article traces the history of the remedy as a fundamental concept of our ordered liberty from Blackstone to the Federalists to Marbury v. Madison. It argues not only that the right to a remedy has been recognized historically as a fundamental right, but that it should appropriately be considered a fundamental interest under the law. Remedies perform two critical functions in the law: they define abstract rights and enforce otherwise intangible rights. Rights standing alone are simply expressions of social values. It is the remedy that defines the right by making the value real and tangible by providing specificity and concreteness to otherwise abstract guarantees. Relying upon U.S. Supreme Court precedent in cases involving punitive damages and tax remedies, the essay argues that the Court has implicitly recognized the minimum right to a meaningful remedy.
    Spontaneous Tax Coordination: On Adopting a Comparative Approach to Reforming the U.S. International Tax Regime Vanderbilt Journal of Transnational Law, Forthcoming Anthony Infanti University of Pittsburgh - School of Law Abstract:
      Despite being widely-acknowledged as an important tax policy goal, simplification of the U.S. international tax regime has received little substantive attention from commentators. When simplicity concerns have been addressed, commentators have generally considered only the internal complexity produced by individual U.S. rules or by the interaction of one U.S. rule with another U.S. rule. In practice, however, the U.S. international tax regime does not operate in isolation, but rather continuously interacts with other countries' international tax regimes. These interactions often engender conflicts that produce additional, external complexity. As a result, true simplification of the U.S. international tax regime can be achieved only when the problem of complexity is viewed from a holistic perspective that takes into account both the regime's internal and external complexity. With the need for a holistic approach in mind, this article explores the viability of adopting tax coordination - pursued through the use of comparative law as an aid to legislation - as a framework within which the U.S. international tax regime might be reformed. Initially, the concepts of tax coordination and tax harmonization are refined to provide a working vocabulary for use in the remainder of the article. Next, the manner in which the proposed framework is expected to operate in theory is detailed and the costs and benefits of adopting the proposed framework are considered. Finally, the manner in which the proposed framework is expected to operate in practice is examined using reform of the provisions governing the treatment of cross-border charitable contributions as an example.
    Eyes Wide Shut: Surveying Erosion in the Professionalism of the Tax Bar Virginia Tax Review, 2003 Anthony Infanti University of Pittsburgh - School of Law Abstract:
      There is a generalized feeling among lawyers today that the legal "profession" is eroding into the legal "business." However, the lack of hard evidence of change has made it easy to dismiss this feeling as no more than nostalgia for a non-existent "golden age" of professionalism. Nevertheless, erosion of any sort is a slow-moving, gradual process, and its visible effects only become noticeable as they accumulate with the passage of time. The effects of what appears to be a true erosion in the professionalism of the tax bar have recently begun to accumulate, providing evidence that the generalized impression of a decline may actually be grounded in reality. The evidence of this decline in professionalism takes the form of a growing number of articles in lay publications (e.g., The New York Times and Forbes magazine) that provide the general public with technical discussions of legal, but ethically questionable, tax avoidance techniques. The essay focuses on two groups of such articles that have appeared in The New York Times during 2002. The essay first provides a description of the tax avoidance techniques discussed in the articles and of how public attention effectively shut those techniques down. Next, as a prelude to discussing the impact of these events on the law as a profession, the meaning of the term "profession" is explored. It is contended that, when used to refer to the practice of law, the term "profession" is used in its sociological sense and describes an occupation whose members (i) have mastered an esoteric body of knowledge, (ii) are altruistic, and (iii) are self-regulating. Then, with this definition in mind, the events surrounding the apparent demise of each of these tax avoidance techniques are analyzed. Based on this analysis, it is concluded that these events undermine the rationale for granting the legal profession the right of self-regulation. By contributing to the erosion of the legal profession's claim to one of the defining characteristics of a "profession" these events necessarily contribute to the erosion of the legal profession's more fundamental claim to the benefits and privileges of professional status. The purpose of the essay is to document and draw attention to this evidence, as its implications for the profession seem to have been overlooked by commentators. It is hoped that, by drawing attention to this evidence, the essay will spur members of the tax bar to reflect seriously on (i) their own actions and how they may have contributed to the erosion in professionalism and (ii) more broadly, whether the standard of conduct to which they actively hold themselves and their peers is sufficiently rigorous.
    Lawyers in a Perfect Storm Washburn Law Journal, Forthcoming Mark Sargent Villanova Law School Abstract:
      The multiple corporate collapses and scandals of recent years, for which "Enron" is a convenient shorthand, resulted from a perfect storm in which regulatory oversight, the law of fiduciary duty, gatekeepers, market discipline, and contractual incentives all failed to prevent gross self-dealing, conflicts of interest, and deception, or themselves produced perverse consequences. The story of this simultaneous failure of the structures in place since the New Deal and before, has received considerable attention in both the popular and scholarly literature, but is summarized here to provide a context for consideration of the contributions that lawyers made to the perfect storm. The contribution of lawyers has received less attention than that of gatekeepers such as auditors and research analysts, perhaps because their complex role as both advocates and gatekeepers does not lend itself to a relatively simple morality tale, as did the failures of the auditors and analysts. This article attempts to identify the various types of failures by lawyers in these cases, and argues that there is no single way to describe or explain them; lawyers contributed to the perfect storm in at least several different ways. This complexity suggests that the SEC's new professional standards for lawyers, while perhaps helpful, do not provide a comprehensive solution to the problems that produced a significant contribution by lawyers to the perfect storm.
    Reform or Retrenchment? Single Sex Education and the Construction of Race and Gender Wisconsin Law Review, 2004 Verna Williams University of Cincinnati - College of Law Abstract:
      As parents, policymakers, and educators search for solutions to the crisis in the nation's public schools, single sex education emerges time and again as a promising strategy, particularly for African American students. As the abstract indicates, the Bush Administration has indicated its support for sex segregation and announced its intention to loosen the applicable legal standards to enable school districts to experiment with single sex schools and classes. This paper argues that, in order to comprehend fully the implications of single sex schooling in inner city schools, examining the history of sex-based and race-based segregation in education is essential. History demonstrates that sex and racial segregation in education has supported gender and hierarchies and the attendant subordination of African Americans and white women. For example, when public education became available for Blacks, its primary purpose was to prepare males and females alike to work. To the extent that gender-based educational opportunities were available, they were to train Black women for the social roles relegated to them - as domestics, for example - and to compensate for their perceived moral shortcomings. For white students, sex segregated education was key to perpetuating the cult of true womanhood, which, in turn defined and privileged white masculinity and white femininity. Thus, state-established schools for "white girls" prepared their charges to take their rightful places as keeper of home and hearth. The lasting nature of the sex- and race-based stereotypes underlying these forms of education were particularly apparent during the effort to racially desegregate schools in the wake of the Supreme Court's decision in Brown v. Board of Education. In this context, recalcitrant southern school districts resorted to sex segregation as a way to "dull the edge" of integration. With this history, the paper examines current efforts to segregate students based on sex, which reveals the intransigence of the racial and gender stereotypes, and the limitations they impose on students' educational opportunities. The paper thus argues that critical examination of single sex schooling, considering the intersection of race and gender, at a minimum, is necessary to ensure that current efforts do not perpetuate subordination of already under-served students.
    A Spectrum Revolution: Deploying Ultrawideband Technology on Native American Lands CommLaw Conspectus, October 2003 Christopher Guzelian Stanford University - School of Law Abstract:
      While most Americans depend on cell phones and the Internet, many Native American tribes still lack access to adequate telecommunications services. The recent development of ultrawideband ("UWB") technology, which operates by using radio spectrum occupied by existing radio services, could provide tribes with access to high-speed, low cost wireless telecommunications services, and, more generally, could serve as a model for reducing proprietorship of Internet service provision. However, a fierce political struggle and technological debate has culminated in a recent decision by the Federal Communications Commission ("FCC" or "Commission") to limit use of UWB for outdoor communications systems. Because UWB might be a solution to the difficulties that tribes have had in modernizing their telecommunications infrastructures, tribal lawyers should explore legal tools to enable deployment of UWB-based communication systems on tribal lands. This article provides a thorough analysis of the legal options available to tribes in attempting to obtain the legal right to use UWB-based communication systems. We demonstrate that litigation, though perhaps appealing at first glance, would be time-consuming, costly and unlikely to succeed. Thus, we conclude tribes should invest their resources in lobbying the FCC to waive their UWB regulations.
    Pro Bono In Principle and in Practice Deborah Rhode Stanford Law School Abstract:
      This article provides the first systematic survey of the factors that influence American lawyers' pro bono work. The study includes both a comprehensive review of the literature on altruism in general and bar contributions in particular, as well as responses from a sample of some 3000 attorneys. Three groups of practitioners participated in the survey: lawyers who graduated from six schools that had different approaches to pro bono work; recent individual and law firm winners of the American Bar Association's annual Pro Bono Publico Award; and large law firms for which annual pro bono data are publicly available. The study's findings include information on the backgrounds and pro bono contributions of the responding lawyers, their workplace and law school experiences, and their perceptions concerning influences on public service involvement. These responses, together with other research on charitable participation, suggest changes in workplace and law school culture that can more effectively translate public service principles into professional practices.
    The September 11 Victim Compensation Fund: A Circumscribed Response or an Auspicious Model? DePaul Law Review, Vol. 53, 2003 Robert Rabin Stanford Law School Abstract:
      What are the implications, if any, of the September 11 Victim Compensation Fund of 2001 for the future? Although the tort option was not foreclosed for the victims of Sept. 11, Congress made a serious effort to provide incentives that would channel claims into the no-fault compensation scheme established by the Air Transportation Safety and System Stabilization Act. At this distance from the event, it seems appropriate to reflect on whether the Fund, established in the turmoil following the most riveting single-event, mass disaster in the nation's history, should be regarded as a singular response, or as a window for thinking about redress of future victims of terrorist activity - or even, perhaps, victims of criminal violence more generally. I begin by offering a set of building blocks: three scenarios of terrorist activity considered from the vantage point of recovery in tort. Next, I shift ground to no-fault as an option for addressing these various types of claims, grounding my discussion in a brief recapitulation of the Sept. 11 scheme, as well as the model that emerges from the regulatory gloss provided by the Special Master designated to implement the scheme. In addition, I offer some context by discussing briefly a limited number of alternative no-fault strategies that have been employed in offering redress to the victims of terrorist acts, and more broadly, to victims of criminal violence. Finally, I address a more fundamental question: Can a satisfying principle be articulated for treating those suffering injuries from terrorist acts as a distinct category of beneficiaries? In the end, I conclude that fairness considerations suggest not so much the normative superiority of tort for addressing every manner of personal injury, as the problematic nature of affording special status to victims of terrorism as no-fault

Karlan on Georgia v. Ashcroft The super smart and always interesting Pam Karlan has posted Georgia v. Ashcroft and the Retrogression of Retrogression. Here is the abstract:
    Section 5 of the Voting Rights Act of 1965 forbids covered jurisdictions from making any changes in their election laws unless and until the laws first receive federal approval and places the burden of proving that the new law will not lead to a retrogression with respect to minority voters' right to vote. The Supreme Court's 2003 decision in Georgia v. Ashcroft, 123 S. Ct. 2498 (2003), fundamentally altered the retrogression standard. Before Georgia v. Ashcroft, section 5 review of redisticting had focused consistently on how the proposed changes would affect the ability of minority voters to elect the candidates of their choice. In Georgia v. Ashcroft, however, the Court turned away from this consistent interpretation, and held that a plan could be precleared even if it reduced minority voters' ability to elect their preferred representatives, as long as it preserved a nebulously defined "opportunity to participate in the political process," an opportunity that was "not limited to winning elections." The Court held that the preclearance process should take into account such governance-related concerns as the overall partisan composition of a legislative body and the leadership positions within a legislative body held by minority elected officials and that maintaining or enhancing these factors might counterbalance decreasing minority voters' chances to elect the candidates of their choice. The Court's analysis was highly abstract, strikingly optimistic, and profoundly ahistorical. It improperly conflated three types of districts: safe districts; coalitional districts; and influence districts. Its understanding of coalitional and influence districts was further undercut by its failure to take into account the role of racial bloc voting. It provided no real guidance on how to analyze the tradeoff it seemed to permit. And it incorrectly equated the interests of minority voters with the interests of incumbent minority politicians, completely ignoring the presence of any conflict of interest between them. Ultimately, the Court's decision continued a trend towards a perverse asymmetry in voting-rights law. In Georgia v. Ashcroft, this asymmetry involves how questions of governance should inform the preclearance inquiry. In Presley v. Etowah County Commission, 502 U.S. 491 (1992), the Court had held that changes which affect only the distribution of power among officials are not subject to section 5 because such changes have no direct relation to, or impact on, voting. But if decreasing or diminishing legislative positions of power for minority voters' representatives of choice cannot show retrogression, it seems perverse to treat maintaining or increasing such power as evidence of nonretrogression.

Madison on the Narrative of Cyberspace Michael Madison (University of Pittsburgh School of Law) has posted The Narratives of Cyberspace Law (or, Learning from Casablanca) (forthcoming Columbia Journal of Law and the Arts, 2004) on SSRN. Here is the abstract:
    Cyberspace scholars have wrestled extensively with the question of the "right" metaphorical approach to the Internet, in order to guide legal and policy decisions. Literary theorists have wrestled with the perception that cyberspace undermines conventional ideas about narrative. This Essay suggests that each group could learn from the other. Cyberspace tells a better story than literary scholars believe, and the lawyers should pay more attention to the narrative attributes of cyberspace. To illustrate the argument, the Essay proposes a specific story framework for cyberspace: the film Casablanca.

Weekend Update This past weekend, the latest Download of the Week was a paper by Nicos Stavropoulos's entitled Interpretivist Theories of Law. The Legal Theory Bookworm recommended a pair of books by Bruce Ackerman. As always, the Legal Theory Calendar previews this weeks workshops, colloquia, and conference. Finally, the latest installment in the Legal Theory Lexicon is on the game theory and the Prisoner's Dilemma.

Hasen on the Constitutionality of Interim Redistricting Rick Hasen has a very good post on the question whether a state legislature may constitutionally redistrict in-between the decennial reapportionments mandated by the Constitution.

John Harty Ely, 1938-2003 John Hart Ely has died. The New York Times obituary can be found here:
    Professor Ely, who had taught law at Harvard and Yale and had been dean of the Stanford Law School, was best known for "Democracy and Distrust: A Theory of Judicial Review" (Harvard, 1980). "It is the most important work of constitutional scholarship in the two generations from the time it was published to now," said Mark Tushnet, a law professor at Georgetown University, echoing a widely held view.
I had the opportunity to spend an afternoon with Ely some years ago when he came to give a talk at Loyola Marymount's Loyola Law School, and I devoured Democracy and Distrust as a law student. Ely was a man of extraordinary intelligence, but at some level, I think his greatest virtue was as a communicator. Democracy and Distrust is an extraordinary achievement for two reasons. First, it provides the clearest and most forceful statement of the idea that the core of the Warren Court's jurisprudence can be defended as democratic, reflecting Ely's underlying theory that the purpose of the power of judicial review is to defend and reiforce a majoritarian democratic process. Second, Democracy and Distrust is a rhetorical tour de force, a magnificent exercise in the art of intellectual persuasion. Lest you be misled, please understand that this second point is not intended as a subtle criticism. It is not. Intellectual life flourishes when ideas recieve their most powerful, eloquent, and persuasive articulation. John Hart Ely's Democracy and Distrust is now much criticized, and some might even argue that Elyian positions are no longer contenders in contemporary debates about constitutional theory. Maybe so, maybe not. But I feel sure of one thing. Without John Hart Ely's work, constitutional theory would not have had the astounding renaissance of past twenty years. I did not know Ely well, but the man who was willing to spend several hours talking to a brash and very junior colleague was both humane and intellectually alive. If John Hart Ely had done nothing more than write Democracy and Distrust, he would deserve a place amoung the greats of constitutional theory. Of course, he did much, much more, and the legal academy is the poorer for his absence.
Michael Froomkin (Ely's colleague at Miami) has some very thoughtful remarks here. And Jacob Levy has some remarks here on the Conspiracy.

David Bernstein on the Janice Brown Nominaion Over at the Conspiracy, David Brown has a point by point disucssion of the New York Times editorial opposing Janice Brown's nomination to the United States Court of Appeals. Although I might use more tempered language, I agree with almost all of the substance of Bernstein's remarks.
I worked extensively with Janice Brown several years ago when she was a member of the Commission on the Future of the California Judiciary. This was before her appointment to California Supreme Court--at the time she was serving as legal counsel to California's governor Pete Wilson. Brown was a quiet and intelligent presence on the Committee. I was serving as the author of a White Paper on alternative court structures, and towards the end of the interactive process of drafting, Brown provided several handwritten pages of sophisticated and thoughtful comments on the draft. Whatever you think about Janice Brown, you should not be hasty to reach the conclusion that she is a simple-minded blowhard for an extremist ideology. Quite the opposite, this is a quiet, sophisticated, and intellectual woman.
It is clear, however, that Janice Brown has views on a variety of matters that place her outside the center. For example, Brown questions the orthodox view that Lochner was wrongly decided. But if her views on Lochner are unorthodox, they surely are not unreasonable. If you think they are, consider the following points. First, the notion that the fourteenth amendment has, as one of its essential purposes, the promotion of a "free labor" ideology is surely at least "reasonable." The reconstruction amendments, if they had any purpose at all, were both intended and understood as establishing the principle that workers should have control over the conditions under which they enter the labor market--including the wages, hours, and terms and conditions of employment. Second, wage and hour laws impinge on worker autonomy. If you questions this premise, ask yourself how you would react if a statute limiting hours of work were imposed on you. I could not produce this blog--which I certainly view as party of my academic work--if I were limited to 8 or 10 hours of work per day. I suspect that most journalists, lawyers, and academics would view a mandatory limitation on the hours they can work as an outrageous intrusion on their liberty. (OK, some (many, almost all) associates at big frims, would welcome such a limit, although perhaps not the consequences for thier paycheck.)
Even if Brown's support for Lochner were unreasonable, it would not provide a reason for her exclusion from the federal appellate bench, unless it somehow might influence her decision making. It is simply inconcievable that a federal appellate court would revive Lochner. Why? Because the United States Courts of Appeal are bound by the doctrine of vertical stare decisis--they are required to follow Supreme Court precedent no matter how stronly they disagree with it. I am not familiar, in detail, with Brown's record on the California Supreme Court. So far as I know, there is no indication that she views herself as free to disregard Supreme Court precedent. (Update: In fact, she does regard USCA judges as bound by Supreme Court decisions.) If there is evidence that she holds such a view, it would certainly disqualify her from serving on the Court of Appeal--as it would any nominee, irrespective of their political views.
And this brings me to the big issue. Should Janice Brown's ideology be the focus of her confirmation hearings? It seems clear that whether it should be, or not, it will be the major issue upon which her nomination hangs. Charles Schumer has convinced the democratic caucus that political ideology should be the main focus of the confirmation process. Whether Brown's nomination is filibustered will depend on her ideology. But should this be the case? As frequent readers of this blog know, I believe that the politicization of the judicial selection process is not only a mistake, it is potentially a tragedy. The downward spiral of politicization that we are now experiencing can ultimately threaten the rule of law and the very great goods that it produces.
But if we do not select judges on the basis of political ideology, then what? There is a very old fashioned answer to that question. We could select judges on the basis of their possession of the judicial virtues. We could select judges who were learned in the law, who had practical wisdom, who possessed civic courage and a judicial temperment. Above all, we could select judges who have the virtue of justice--the disposition to decide the cases before them according to the rules laid down. We could select judges who were aiming at decision on the basis of the law and not on the basis of their own political ideology or views about what the law should be.
This is not an endorsement of Janice Brown. It would be irresponsible for me to endorse her nomination without a careful study of her opinions. My point is very modest. The New York Times has opposed her nomination on grounds that are unsound and harmful to the judicial selection process.
Update: More on Brown at Discriminations, here. And more here in Reason.

Vatter on Machiavelli and the Rule of the Law at Chicago At the University of Chicago's political theory series, Miguel Vatter (Northwestern University) presents Machiavelli and Republican Rule of Law, discussion by Anita Chari. Here is a taste:
    Recent reconstructions of modern republicanism, such as the one found in Pettit, pursue a strong identification between the ideal of freedom as non-domination and the rule of law. In my opinion modern republicanism is indeed characterized by an ideal of non-domination, but it places much more emphasis on the freedom and power of the people, as opposed to the law and order of the state, as conditions of non-domination. The shift away from the power of the people and towards the rule of law derives much more from the tradition of modern liberalism than from modern republicanism. As it happens, in Machiavelli one finds both a proto-liberal and a republican understanding of the relation between freedom and the rule of law. In this paper I shall sketch these understandings, and rehearse some of the conditions that need to obtain if the balance between freedom and order, power of the people and power of the state, revolution and authority, is to be achieved.

Applebaum at George Mason on the Gulag At George Mason's Workshop in Philosophy, Politics, and Economics, Anne Applebaum (Journalist/Historian, Washington Post) presents The Gulag: What We Know and Why It Matters.

Yoon at Columbia on Turnover on the Federal Bench At Columbia's law and economics series, Albert H. Yoon (Northwestern University School of Law, Visiting Princeton) presents The End of the Rainbow: Understanding Turnover Among Federal Judges.

Harlow on State Liability at Oxford At Oxford, Professor Carol Harlow (QC, FBA) delivers The Clarendon Law Lectures: Perspectives on State Liability.

Stock at UCLA At UCLA, Greg Stock (UCLA School of Public Health; Director, Program on Medicine, Technology, and Society) speaks to the law faculty.

Feinman at Chicago At the University of Chicago's Law and Philosophy Workshop, Martha Fineman (Emory) is presenting. Does anyone have the title?

FOIA and Cyberrights at Stanford
    The Stanford Law and Technology Association (SLATA) And the Center for Internet and Society (CIS) present: Using the Freedom of Information Act (FOIA) in the Cyber-Rights Debate David Sobel, general counsel of the Electronic Privacy Information Center, will discuss the organization's use of the Freedom of Information Act (FOIA) to compel the disclosure of government documents on privacy policy, including electronic surveillance and encryption controls. His recent cases seek the release of information concerning the USA PATRIOT Act, the Total Information Awareness program and the privacy impact of aviation security measures and other homeland security initiatives. Monday, October 27, 2003 12:30 - 1:30 p.m. Room 80 (Moot Courtroom) Stanford Law School Lunch will be provided About the Speaker David L. Sobel is general counsel of the Electronic Privacy Information Center (EPIC). He has an extensive background in Freedom of Information Act cases serving clients such as ABC News, the U.S. Student Association, and the Fund for Constitutional Government. At EPIC, he has litigated numerous cases under the FOIA seeking the disclosure of government information on cryptography, Internet and privacy policy. Sobel has recently worked on cases involving the Digital Signature Standard, the Clipper Chip, the FBI's Digital Telephony proposal, the so-called 2600/Pentagon City Raid and (most recently) the FBI's Carnivore system. He was co-counsel in Reno v. ACLU, the successful constitutional challenge to the Communications Decency Act decided by the U.S. Supreme Court in June 1997. He has also written several articles on cryptography policy, including an early piece on encryption policy titled "Governmental Restrictions on the Development and Dissemination of Cryptographic Technologies" (1993). More at:

Sunday, October 26, 2003
Legal Theory Lexicon: The Prisoner's Dilemma
    Introduction One of the most useful tools in analyzing legal rules and the policy problems to which they apply is game theory. The basic idea of game theory is simple. Many human interactions can be modeled as games. To use game theory, we build simple models of real world situations as a game. Thus, we might model civil litigation as a game played by plaintiffs against defendants. Or we might model the confirmation of federal judges by the Senate as a game played by Democrats and Republicans. This week's installment of the Legal Theory Lexicon discusses one important example of game theory, the prisoner's dilemma. This introduction is very basic--aimed at a first year law student with an interest in legal theory.
    An Example Ben and Alice have been arrested for robbing Fort Knox and placed in seperate cells. The police make the following offer to each of them. "You may choose to confess or remain silent. If you confess and your accomplice remains silent I will drop all charges against you and use your testimony to ensure that your accomplice gets a heavy sentence. Likewise, if your accomplice confesses while you remain silent, he or she will go free while you get the heavy sentence. If you both confess I get two convictions, but I'll see to it that you both get light sentences. If you both remain silent, I'll have to settle for token sentences on firearms possession charges. If you wish to confess, you must leave a note with the jailer before my return tomorrow morning." This is illustrated by Table One. Ben's moves are read horizontally; Alice's moves read vertically. Each numbered pair (e.g. 5, 0) represents the payoffs for the two players. Ben's payoff is the first number in the pair, and Alice's payoff is the second number.
    Table One: Example of the Prisoner's Dilemma.
    __________________________Confess______________Do Not Confess___ _______________________________________________________________ ____________________|____________________|____________________| ____________________|____________________|____________________| ____________________|____________________|____________________| ____________________|____________________|____________________| __________Confess___|_____1, 1___________|_____0, 5___________| ____________________|____________________|____________________| ____________________|____________________|____________________| ____________________|____________________|____________________| _____Alice_____________________________________________________ ____________________|____________________|____________________| ____________________|____________________|____________________| ____________________|____________________|____________________| ____________________|____________________|____________________| ___________Do not___|_____5, 0___________|_____3, 3___________| ___________Confess__|____________________|____________________| ____________________|____________________|____________________| ____________________|____________________|____________________| _______________________________________________________________

    Suppose that you are Ben. You might reason as follows. If Alice confesses, then I have two choices. If I confess, I get a light sentence (to which we assign a numerical value of 1). If Alice confesses and I do not confess, then I get the heavy sentence and a payoff of 0. So if Alice confesses, I should confess (1 is better than 0). If Alice does not confess, I again have two choices. If I confess, then I get off completely and a payoff of 5. If I do not confess, we both get light sentences and a payoff of 3. So if Alice does not confess, I should confess (because 5 is better than 3). So, no matter what Alice does, I should confess. Alice will reason the same way, and so both Ben and Alice will confess. In other words, one move in the game (confess) dominates the other move (do not confess) for both players.
    But both Ben and Alice would be better off if neither confessed. That is, the dominant move (confess) will yield a lower payoff to Ben and Alice (1, 1) than would the alternative move (do not confess), which yields (3, 3). By acting rationally and confessing, both Ben and Alice are worse off than they would be if they both had acted irrationally.
    The Real World The prisoner's dilemma is not just a theoretical model. Here is an example from Judge Frank Easterbrook's opinion in United States v. Herrera, 70 F.3d 444 (7th Cir. 1995):
      Cynthia LaBoy Herrera survived a nightmare. She and her husband Geraldo Herrera were arrested after a drug transaction. The couple, separated by the agents, then played and lost a game of Prisoner's Dilemma. See Page v. United States, 884 F.2d 300 (7th Cir.1989); Douglas G. Baird, Robert H. Gertner & Randal C. Picker, Game Theory and the Law 312-13 (1994). Cynthia told agents who their suppliers were. Learning of this, Geraldo talked too. When both were out on bond, Geraldo decided that Cynthia should pay for initiating the revelations. Geraldo clobbered Cynthia on the back of her head with a hammer; while she tried to defend herself, Geraldo declared that she talked too much to the DEA. As Cynthia grappled with the hand holding the hammer, Geraldo used his free hand to punch her in the face. Geraldo got the other hand free and hit Cynthia repeatedly with the hammer; she lapsed into unconsciousness.
    Communication and Bargains How can we overcome a prisoner's dilemma? You have probably noticed that the prisoner's dilemma assumed that the two prisoner's were isolated from each other. This was not an accident. If the two prisoner's can communicate with each other, then they might reach an agreement. Alice might say to Ben, "I won't confess if you won't," and Ben might say, "I agree." Of course, this might not solve the prisoner's dilemma. Why not? Suppose they do agree not to confess, but each is then taken to a separate room and given a confession to sign. Ben might reason as follows, "If I keep the bargain, and Alice does not, then she will get off while I get a heavy sentence." So Ben may be tempted to defect from their agreement. And Alice may reason in exactly the same way. On the other hand, it may be that Ben and Alice have a reason to trust one another. For example, they may have had prior dealings in which each proved trustworthy to the other. Of course, trust can be established in another way. If each party can make a credible threat of retaliation against the other, then those threats may change the payoff structure in such a way as to make the cooperative strategy dominant. One situation in which the threat of retaliation is built into the model is the iterative (repeated) prisoner's dilemma.
    Iterated Game As described above, the prisoner's dilemma is a one-shot game. But in the real world, may prisoner's dilemmas involve repeated plays. You can imagine a series of moves, for example:
      Round One--Alice Confesses, Ben Does Not Confess Round Two--Alice Confesses, Ben Confesses Round Three--Alice Does Not Confess, Ben Does Not Confess
    We can imagine various strategies of play for Ben and Alice. One of the most important strategies is called tit for tat. Alice might say to herself, "If Ben Confesses, then I will retaliate and confess, but if Ben does not confess, then neither will I." Add one more element to this strategy. Suppose both Ben and Alice say to themselves, on the first round of play, I will cooperate and not confess. Then we would get the following pattern:
      Round One--Alice Does Not Confess, Ben Does Not Confess Round Two--Does Not Confess, Ben Does Not Confess Round Three--Alice Does Not Confess, Ben Does Not Confess
    Thus, if both Ben and Alice play tit for tat, the result might be a stable pattern of cooperation, which benefits both Ben and Alice.
    If you want to get a really good feel for the iterative prisoner's dilemma, go to this website, where you can actually try out various strategies.
    One more twist. Suppose that this game is finite, i.e. it has a fixed number of moves, e.g. ten. How will Ben and Alex play in the "end game." Ben might reason as follows. If I defect and confess on the tenth move, Alice cannot retaliate on the eleventh move (because there is no eleventh round of play). And Alice might reason the same way, leading both Ben and Alice to confess in the final round of play. But now Ben might think, since it is rational for both of us to defect in the tenth round, I need to rethink my strategy in the ninth round. Since I know that Alice will confess anyway in the tenth round, I might as well confess in the ninth round. But once again, Alice might reason in exactly this same way. Before we know it, both Alice and Ben have decided to defect in the very first round.
    Conclusion This has been a very basic introduction to the prisoner's dilemma, but I hope that it has been sufficient to get the basic concept across. As a first year law student, you are likely to run into the prisoner's dilemma sooner or later. If you have an interest in this kind of approach to legal theory, I've provided some references to much more sophisticated accounts. Happy modeling!
    References Here are some links to game theory and prisoner's dilemma resoures on the web:

Legal Theory Calendar
    Sunday, October 26
      Today and tomorrow at Vanderbilt, a conference on "Varieties of Pluralism." Scroll down for the details.
    Monday, October 27
      The Stanford Law and Technology Association (SLATA) and the Center for Internet and Society (CIS) present David Sobel on Using the Freedom of Information Act (FOIA) in the Cyber-Rights Debate.
      At the University of Chicago's political theory series, Miguel Vatter (Northwestern University) presents Machiavelli and Republican Rule of Law, discussion by Anita Chari.
      At George Mason's Workshop in Philosophy, Politics, and Economics, Anne Applebaum (Journalist/Historian, Washington Post) presents The Gulag: What We Know and Why It Matters.
      At Columbia's law and economics series, Albert H. Yoon (Northwestern University School of Law, Visiting Princeton) presents The End of the Rainbow: Understanding Turnover Among Federal Judges.
      At Oxford, Professor Carol Harlow (QC, FBA) delivers The Clarendon Law Lectures: Perspectives on State Liability.
      At UCLA, Greg Stock (UCLA School of Public Health; Director, Program on Medicine, Technology, and Society) speaks to the law faculty.
      At the University of Chicago's Law and Philosophy Workshop, Martha Fineman (Emory) is presenting. Does anyone have the title?
    Tuesday, October 28
      Update: At George Mason, Brian Leiter (University of Texas, Law and Philosophy) presents Why Evolutionary Biology is (so far) Irrelevant to Law.
      At the University of Texas, David Rabban presents The American School of Historical Jurisprudence.
      At Oxford's Ockham Soceity, Adrian Viens (Oxford) presents Relativism and Applied Ethics.
      At Oxord's IP Seminar, Shubha Ghosh (SUNY Buffalo) presents Copyright as Privatisation.
      At Oxford's Jurisprudence Discussion Group, Pavlos Eleftheriadis presents The Identity of Legal and Political Philosophy.
      And finally, also at Oxford's Faculty of Law Professor Carol Harlow QC, FBA, delivers The Clarendon Law Lectures: Towards Distributed Justice.
      At Brown University's philosophy department, John Broome (Oxford) does the first in a series of three lectures:
        Tuesday, October 28 Rationality Wednesday, October 29 Theoretical Reasoning Thursday, October 30 Practical Reasoning
    Wednesday, October 29
      At University College, London's School of Public Policy, David Miller (Oxford) presents Immigration: the Case for Limits.
      At Australian National University, Hilary Charlesworth presents Is International Law Relevant to the War in Iraq and its Aftermath?.
    Thursday, October 30 Friday, October 31
      At SUNY Buffalo, Errol Meidinger presents Property Law in the Maw of Development Policy and Institutional Theory: Problems of Structure, Choice and Change, with comments by Sharmistha Bagchi-Sen.
      At the University of North Carolina philosophy speakers series, Jeremy Waldron (Sheps Distinguished Visitor) presents The Primacy of Justice.
      At the University of Bristol, Mike Otsuka (UCL) presents Scepticism About Saving the Greater Number.
      University of Pennsylvania philosophy colloquium, Ulrike Heuer (Penn) presents Reasons and Oughts.

Conference on Pluralism at Vanderbilt
    Varieties of Pluralism A Philosophical Conference October 26 and 27, 2003 Vanderbilt University Nashville, TN Sunday, October 26 9:00 Greeting from Provost Nicholas Zeppos Welcome from Michael Hodges, Philosophy Department Chair 9:30 Nicholas Rescher, University of Pittsburgh "Pluralism and Problems of Consensus" 11:00 Coffee Break 11:15 Lenn Goodman, Vanderbilt University "Religious Pluralism" 12:30 Lunch Break 3:00 Susan Haack, University of Miami "One Truth, or Many Truths? Yes--and Yes" 4:30 Break 5:30 Banquet for Conference Participants and Invited Guests 7:30 William Galston, University of Maryland "The Idea of Political Pluralism" Monday, October 27 9:00 Nancy Rosenblum, Harvard University "Democracy, Pluralism, and Anti-Partyism" 10:30 Coffee Break 10:45 Joseph Margolis, Temple University "Deep Differences Between Pluralism and Relativism" 12:15 Lunch Break 2:00 John Lachs, Vanderbilt University "Pluralism and Philosophy" 3:30 Closing Remarks: Lenn Goodman, Robert Talisse Conference Sessions are Free and Open to the Public. All sessions will be held in the Flynn Auditorium of the Vanderbilt Law School. For further information, contact Donna Browning, (615) 322-2637 Sponsored by the Vanderbilt University Department of Philosophy, with generous support from the Machette Foundation and Vanderbilt University

Saturday, October 25, 2003
Legal Theory Bookworm This week, the Legal Theory Bookworm recommends two books by Bruce Ackerman: In this pair of books (with more to come), Ackerman develops an original story about the meaning of American constitutionalism that combines two very powerful ideas. First, Ackerman emphasizes the idea of "popular sovereignty"--the appealing idea that "We the People" really did author (or authorize) the constitution in a meaningful and normatively significant sense. Second, Ackerman argues persuasively that fundamental constitutional changes are the product of what he calls "constitutional politics," fuzzily bounded periods of extraordinary popular participation in the political process, in which "We the People," employ extralegal mechanisms to reshape the constitutional order.
The theory that Ackerman develops has the paradoxical quality of leading to two, seemingly contradictory ideas. First, by emphasizing popular sovereignty, Ackerman's view of constitutional history is a sibling of constitutional originalism--the idea that the meaning of the constitution is grounded in the meaning it had to the generation that adopted it. Second, by emphasizing the extralegal and political processes by which popular sovereignty operates, Ackerman identifies three great periods of constitutional change, the founding, the reconstruction, and the New Deal. It is this last period that puts Ackerman's views in tension with those of most other originalists. While right originalism is hostile to the New Deal Court--decrying the erasure of limits on federal power as the interpretative equivalent of constitutional redaction, Ackerman sees the New Deal Court as the product of the transformative appointments by F.D.R., a President who received an extraordinary mandate from the people. In my words, not Ackerman's, the view is that Roosevelt was the Tribune of the People, granted powers of Constitutional revision which he exercised by appointing Justices delegated the power to revise through construction.
Ackerman's theory is hugely controversial, but Ackerman himself has had a transformative effect on the legal academy. Before Ackerman originalism was seen by many as a sectarian doctrine--limited in influence to the intellectual right. After Ackerman, originalist ideas began a process of diffusion. When I was in law school, the prevailing view was that Paul Brest had nailed originalism to the cross in his famous article, The Misconceived Quest for the Original Understanding. Today, originalism is resurrected and might fairly be characterized as ascendant or even as the dominant view in the legal academy.
If you are interested in Constitutional theory, you must read Ackerman!

Download of the Week The download of the week is Nicos Stavropoulos's paper, Interpretivist Theories of Law. Interpretivism, the theory of law associated with Ronald Dworkin, is one of the most important, original, and controversial views in contemporary legal theory. Stavorpolous has done a marvelous job of pulling the arguments together in this essay, intended as an entry in the Stanford Internet Encyclopedia of Philosophy. Here is how it begins:
    Interpretivism about the nature of law is the view that legal rights and duties are determined by the scheme of principles that provides the best justification of certain political practices of a community: a schme identifiable through an interpretation of the practices that is sensitive to both the facts of the practices and to the values or principles that the practices serve.
And here is another taste:
    Interpretivism has been developed by Ronald Dworkin . . . over the last 30 years or so. . . . Interpretivism as developed by Dworkin includes the claim that interpretation is sensitive to values . . . and that it is fundamental to the nature of law. Many theories accept that, given the law, interpretation that is sensitive to values is necessarily employed in its application. . . . [I] shall be concerned exclusively with interpretivism as a theory about the nature of law.
Stavropopoulos provides a very sophisticated treatment of Dworkin and his critics. Download it while its hot!

Friday, October 24, 2003
Green on Kelsen Michael Green (George Mason University - School of Law) has posted Hans Kelsen and the Logic of Legal Systems (forthcoming Alabama Law Review, Vol. 54, pp. 365-413, 2003) on SSRN. Here is the abstract:
    Hans Kelsen's formalism and Kantianism have been barriers to an appreciation of his work in the United States. This article offers a sympathetic reading of Kelsen's approach in legal theory by drawing analogies between it and the writings of Gottlob Frege. For Frege, the subject matter of logic is the necessary relations between linguistic meanings. These relations can be seen as necessary only on the assumption that linguistic meanings are abstract objects that cannot be reduced to anything empirical. For this reason Frege rejected psychologism in logic. Like many other late-nineteenth century anti-psychologists, Frege offered a Neo-Kantian account of how non-empirical knowledge of meanings is possible. Analogously, Kelsen argued that legal meanings are abstract objects. Kelsen proposed an analysis of the necessary relations between legal meanings - a logic of legal systems - that is similar to the Fregean logician's account of language. And like the logical anti-psychologists, Kelsen offered a Neo-Kantian account of how knowledge of legal meanings is possible. Although I do not undertake to defend the details of Kelsen's approach, I hope to make his third way between empiricist and natural law theories approaches in jurisprudence more understandable and attractive to American audiences.

Baird and Rasmussen Put Bankruptcy to Bed Douglas Baird and Robert Rasmussen (University of Chicago Law School and Vanderbilt University School of Law) have posted Chapter 11 at Twilight (forthcoming Stanford Law Review, 2003) on SSRN. Here is the abstract:
    In The End of Bankruptcy we detailed the forces that have rendered obsolete traditional conceptions of corporate reorganization. In a response to our article, Lynn LoPucki asserts that our paper lacked empirical foundation. In this response, we draw on LoPucki's data set of the reorganization of large, publicly held entities to show the robustness of our claims, both empirical and theoretical. Looking in detail at the firms whose Chapter 11 cases ended in 2002, most of which concluded after we completed our original piece, we find that in over 80% of the cases the assets of the firm were either sold or the bankruptcy proceeding put in place a restructuring plan agreed to before bankruptcy was filed. The remaining firms evince little in the way of going-concern value. Moreover, equityholders are nearly always wiped out, and the board of directors is usually replaced. Today's bankruptcy practice reveals creditors, particularly the senior lenders, in control. They use their powers to remove managers in whom they have lost confidence, replace the board of directors, put the corporation on the auction block and terminate the interest of equityholders. This paper provides further evidence that issues of control rather than priority dominate modern reorganization practice.

Mark Greenberg to UCLA Brian Leiter reports that Mark Greenberg, currently at Princeton in Philosophy, has accepted an offer from UCLA in law and philosophy.

Scalia on Lawrence v. Texas The Washington Post story is here. And here is an excerpt:
    On Thursday, Scalia said judges, including his colleagues on the Supreme Court, throw over the original meaning of the Constitution when it suits them. "Most of today's experts on the Constitution think the document written in Philadelphia in 1787 was simply an early attempt at the construction of what is called a liberal political order," Scalia told a gathering of the Intercollegiate Studies Institute. "All that the person interpreting or applying that document has to do is to read up on the latest academic understanding of liberal political theory and interpolate these constitutional understandings into the constitutional text."

Leiter on the Socratic Method Check out Leiter's post here, with more here and here.

Lessig on the Broadcast Flag Here. And more from Ed Felten here.

Conference on Law & Philosophical, Psychological, Linguistic, and Biological Perspectives Today At IIT-Chicago-Kent, a conference entitled Law &: Philosophical, Psychological, Linguistic, and Biological Perspectives on Legal Scholarship.

Brown on Mobilizing Straights for Gays at UCLA At UCLA, Jennifer Brown (Quinnipiac Law School) presents Straightforward: Mobilizing Heterosexual Support for Gay Rights.

Pincione on Political Deliberation at Tulane At Tulane's Center for Ethics and Public Affairs Guido Pincione (Universidad Torcuato Di Tella) presents Principles and Consequences in Political Deliberation.

Caron on the Compensation Commission at Floriday State At Florida State, David Caron (University of California, Berkeley) presents Lessons from the United Nations Compensation Commission for Claims Arising Out of the 1990 Gulf War.

Bolton on Concepts at Pittsburgh At the University of Pittsburg's Program of Classics, Philosophy & Ancient Science, Rob Bolton (Rutgers University) presents Concepts and Conceptual Knowledge in Aristotle.

DeRose on Deliberation at Arizona At the University of Arizona philosophy colloquium, Keith DeRose (Philosophy, Yale University) presents The Conditionals of Deliberation.

Rawls and the Law at Fordham in Two Weeks Rawls and the Law, November 7 & 8, Fordham University School of Law. The lineup for this exciting event includes Ronald Dworkin, James E. Fleming, Frank I. Michelman, Lawrence G. Sager, T.M. Scanlon, Charles A. Kelbley, Linda C. McClain, Marion Smiley, Susan Moller Okin, Tracy E. Higgins, Anita L. Allen, Tommie Shelby, Seana Shiffrin, Sheila R. Foster, Seyla Benhabib, Stephen Macedo, Thomas W. Pogge, Martin S. Flaherty, George P. Fletcher, Gregory C. Keating, Stephen R. Perry, Arthur Ripstein, Benjamin C. Zipursky, Anne L. Alstott, Robert D. Cooter, Thomas Nagel, Linda F. Sugin, Samuel Freeman, Abner S. Greene, David A. J. Richards, Dennis Thompson, and Michael Baur.
And speaking of Rawls, check out this interview from a few years back. Pointer courtesy of Political Theory Daily Review.

Thursday, October 23, 2003
Nozick and No Fault Toby Handfield has posted a paper entitled Nozick, prohibition, and no-fault motor insurance (forthcoming in Journal of Applied Philosophy). Here is a tiny morsel:
    Is a Nozickian theory of rights compatible with a no-fault motor insurance scheme? I say, Yes. The argument turns on an explication of the basis on which a Nozickian justifies the prohibition of merely risky activities.

Elhauge on Statutory Interpretation at the University of San Diego At the University of San Diego/University of California at San Diego, Law, Economics and Politics Workshop, Einer Elhauge (Harvard) is presenting Preference-Estimating Statutory Default Rules.

Wolf on the Meaning of Life at NYU At NYU's Colloquium in Legal, Political and Social Philosophy, Susan Wolf (University of North Carolina, Philosophy) presents "The Meanings of Lives" & "The True, the Good and the Lovable: Frankfurt's Avoidance of Objectivity".

Jones on Behavioral Biology at Michigan At the University of Michigan's Law and Economics series, Owen Jones (Arizona State) is presenting Law and Behavioral Biology.

Heller on Land Assembly at Boston University At Boston University, Michael Heller (Lawrence A. Wien Professor of Real Estate Law, Columbia Law School) presents The Art of Land Assembly (with Rick Hills).

Huigens on a Coherence Model of Justified Punishment at Penn At the University of Pennsylvania's law and philosophy series Kyron Huigens (Cardozo Law School) presents A Specification to Coherence Model of Punishment's Justification. I find Huigens's work to be very interesting!

Scheffler at Yale on Equality At Yale's philosophy department, Samuel Scheffler presents Choice, Circumstance, and the Value of Equality.

Ridge on Moral Knowledge & Default Principles at Bristol At the University of Bristol, Michael Ridge (Edinburgh) presents Betting on Hedges: From Moral Knowledge to Default Principles.

Bratman on Practical Reasoning at Harvard At Harvard's philosophy colloquium, Michael Bratman (Stanford) presents Shared Valuing and Frameworks for Practical Reasoning.

Sarnikar on Cybersecurity at George Mason At George Mason Law, Supriya Sarnikar (GMU School of Law Levy Fellow) presents Cybersecurity in the National Market System.

Friedman on Common Law Marriage at UCLA At UCLA's legal history series, Lawrence Friedman (Stanford) presents The Rise and Fall of Common Law Marriage.

Kukathas on Justice at ANU At the Australian National University, Research School of Social Science, Philosophy Seminars, Chandran Kukathas (University of Utah) presents Justice, Toleration, Peace and Reason.

Alexandra on Hobbes at Melbourne At the University of Melbourne, Andrew Alexandra presents Hobbes and The Foole.

Grenberg on Kantian Virtue at Herfordshire At the University of Hertfordshire Centre for Normativity and Narrative, Jeanine Grenberg (St Olaf College, Minnesota & Hertfordshire) presents A Kantian Account of Virtue.

Liu on Trademark Defenses at Georgetown At Georgetown's Colloquium on Intellectual Property & Technology Law, Joseph P. Liu (Boston College of Law) presents Rationalizing Trademark Defenses.

Arkes on Power and the Legal Professoriate In the Seattle Post-Intelligencer, Hadley Arkes has an op/ed entitled Moral truths are necessary in evolution of law. Here is a taste:
    If there are no moral truths, no ground of right and wrong, law itself turns simply into a system of power, without the least pretense of finding a moral justification for itself. The professors in the law schools know that the law is about power, and they insist that there are no "foundations" for moral judgment. Their aspiration then is to become possessed of political power, or the powers of the law. And once possessed of that power, the object is to use it for their own ends, without moral inhibitions, or without at least those fairy tales that were offered in the past to the gullible as "the moral law."
Huh? I have absolutely no idea what Arkes is talking about.

Wednesday, October 22, 2003
Welcome to the Blogosphere . . . to En banc, a new group blog with Unlearned Hand (Unlearned Hand), PG (Half the Sins of Mankind) Jeremy Blachman (Jeremy's Weblog), Greg Goelzhauser (Law and Economics), Ambimb (Ambivalent Imbroglio), Chris Geidner (Law Dork), Johnny Bardine (Truth is a Blog) and Max Rosenthal (Dead Ends). Well, this is quite a group!

Abolish Life Tenure? Norm Ornstein suggests the abolition of life tenure in a Roll Call oped (subscription required). (Thanks to Rick Hasen of Election Law Blog for the pointer.) Here is the gist of his argument:
    It is time to reconsider Article III, Section I of the Constitution, which gives federal judges lifetime appointments. I know, I know, this is sacred territory. And the Framers both carefully considered judicial tenure and eloquently defended the term of good behavior for judges in Federalist 78 and a refusal to impose age limits for judges in Federalist 79. Permanent tenure was a bulwark against legislative and executive encroachment and improper influence and was an incentive to get the most fit and skilled individuals to leave lucrative practices to join the judiciary. But lifetime tenure also skews the impact of each appointment, giving a president the temptation to pick young ideologues who will leverage the presidency for many decades thereafter. And lifetime tenure increases the stakes of each appointment, making tough battles tougher, encouraging the use of more hardball tactics and giving opposition parties more reasons to block as many appointments of a president as they can, to leave these lifetime plums open for a president of their own. The arguments for lifetime tenure are not as powerful as they were back then. Nowadays, given that federal judicial pay is about the same as that of a second-year associate at a major law firm, lifetime tenure as a judge is not quite the same lure as it was in the 1780s. And while lifetime tenure does insulate judges from pressure from Congress, the president, attorney general or other officials, a long-term fixed appointment could easily provide comparable insulation. My first cut at this would be to leave the Supreme Court as it is, with lifetime appointments; there are few enough appointments, and the system can easily handle the infrequent, knock-down, drag-out battles. But I would recommend a 12- or 15-year appointment for lower court federal judges. These appointments would be nonrenewable, to take away the pressure on the judges in the last year or two of their terms to shift their opinions to conform to the desires of the president or his party. For relatively young people, it would be possible to serve and then build a capital base for children and grandchildren. For older people, it could be a capstone for a career. For presidents, appointments could be made without the temptation to go young to solidify your legacy for even longer.
This is a variation on a theme that has become pervasive in public discourse: Politicization of the judiciary is a fait accompli, and therefore, we simply need to learn to live with it, adjusting our institutions and practices as required.
Interestingly, however, the existing constitutional structure permits the abolition of life tenure without a constitutional amendment. How? Through the use of the recess appointments clause. The clause reads: "“The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” U.S. Const. art. II, § 2, cl. 3." By making appointments at the recess before the start of one term, the President can effectively give these temporary judges tenure that lasts for two full terms of the Senate. Of course, these terms are short of the 12-15 years that Ornstein recommends, but what justifies longer terms if the judiciary is merely a third political branch? For more on this, see my post entitled Going Nuclear: The Constitutionality of Recess Appointments to Article III Courts.
The real message of Ornstein's op/ed is not that we should abolish life tenure--rather, it is that the current downward spiral of politicization that characterizes both the practice of judging and judicial selection is incredibly dangerous. Before we give into politicization, we ought to give serious consideration to the alternative. Judging can be politicized, but it does not have to be. Legal realism is not an eternal truth about the nature of judging. Rather, judges have a choice. They can choose to make decisions instrumentally, bending the law to their politics and preferences. Or they can choose the path of judicial integrity--making adherence to the law and care for its coherence an overriding value in the practice of judging. Politicization is not inevitable. It is the product of our choices. For more, see A Neoformalist Manifesto.

Arlen on Malpractice at Northwestern At Northwestern Law, Jennifer Arlen (New York University School of Law) presents Malpractice Liability for Physicians and Managed Care Organizations.

Riordan on Religion in Public Discourse At Heythrop College, London, Patrick Riordan (Heythrop) presents Religion in Public Discourse.

Conference on Reasonable Partiality Today through October 24, The Netherlands School for Research in Practical Philosophy is presenting a conference on Reasonable Partiality at Vrije Universiteit, Amsterdam, The Netherlands.

Kelly on Liberal Political Theory At the University College, London, Paul Kelly (LSE) presents How Political is Liberal Political Theory?

Rob Allen on Crime and Punishment at All Souls At Oxford's Centre for Crimonological Research Seminar Series, Rob Allen (Director, Esmée Fairbairn Foundation) presents Rethinking Crime and Punishment. The venue is All Souls.

Game Theory and the Maximization Assumption I've just read a very interesting paper by Aviad Heifetz (School of Economics, Tel Aviv University), Chris Shannon (Department of Economics, University of California, Berkeley) and Yossi Spiegel (Faculty of Management, Tel Aviv University). The title is What to Maximize if You Must. Here is the abstract:
    The assumption that decision makers choose actions to maximize their preferences is a central tenet in economics. This assumption is often justified either formally or informally by appealing to evolutionary arguments. In contrast, this paper shows that in almost every game, payoff maximization cannot be justified by appealing to such arguments. We show that in almost every game, for almost every distortion of a player’s actual payoffs, some extent of this distortion is beneficial to the player because of the resulting effect on opponents’ play. Consequently, such distortions will not be driven out by any evolutionary process involving payoff-monotonic selection dynamics, in which agents with higher actual payoffs proliferate at the expense of less successful agents. In particular, under any such selection dynamics, the population will not converge to payoff-maximizing behavior. We also show that payoff-maximizing behavior need not prevail even when preferences are imperfectly observed.
And one more bit from the middle of the paper:
    The generic value of dispositions in strategic settings suggests that when contemplating the design of particular institutions, such as markets, auctions, or committees, it may be important to consider not only the equilibrium behavior of payoff-maximizing agents, but the equilibrium behavior of individuals whose behavior is biased by various dispositions as well. Moreover, the institutions themselves may influence the long-run preferences of participating agents; that is, preferences may be in part an endogenous feature of the particular institutional framework.
Warning: Heavy going!

Cooter and Ginsburg on Leximetrics Robert Cooter and Thomas Ginsburg (University of California at Berkeley School of Law and University of Illinois College of Law) have posted Leximetrics: Why the Same Laws are Longer in Some Countries than Others on SSRN. Here is the abstract:
    When do drafters of legal instruments specify details and when do they not? To explore this question, we develop a method called leximetrics that involves comparative quantitative analysis of legal instruments. Using data from the directive process in the European Union, we show: (i) that statute length varies systematically across countries, partially controlling for substance; (ii) that other legal instruments, such as judicial opinions and contracts, are longer in countries with long statutes; and (iii) that both of the above are correlated with a large lawyer population. This paper uses a simple agency model to explain these facts, and offers an agenda for leximetric research.

Jackson on Accounting for Social Security Reform Howell Jackson (Harvard Law School) has posted Accounting for Social Security and Its Reform (forthcoming in the Harvard Journal on Legislation, Winter 2004) on SSRN. Here is the abstract:
    How well did the Social Security system do last year? According to the most recent annual report prepared by system's Board of Trustees, the Social Security trust funds showed a $165.4 billion net increase in assets in 2002 and reported accumulated reserves of nearly $1.4 trillion by year end. Unfortunately, these glowing reports are a cash-flow illusion, revealing only the difference between the system's annual cash receipts and its yearly payments for benefits and administrative expenses. Were the finances of the Social Security system restated under principles of accrual accounting, which recognizes commitments to make future payments when those obligations are actually incurred, the Social Security trust funds would have had to report a loss of several hundred billion dollars in 2002. Moreover, as of December 31, 2002, an accrual-based balance sheet of the Social Security system would have revealed more than $14.0 trillion of accrued liabilities to Social Security participants and beneficiaries. Even allowing for the system's $1.4 trillion of accumulated reserves as well as the value of excess future taxes to be paid by current participants over the rest of their working lives, the Social Security trust funds had unfunded obligations on the order of $10.5 trillion as of year-end 2002. This implicit debt of the Social Security system is several times greater than the explicit debt burden of the federal government and is growing by hundreds of billions of dollars each year. In addition to misrepresenting the magnitude of the Social Security system's looming financial crisis, the current accounting system for Social Security distorts public debate over Social Security reform proposals and confuses the relationship between Social Security and the rest of the federal budget. Accrual accounting, in contrast, would provide a clearer picture of the true state of the Social Security's current financial shortfall and the extent to which the system's burden on future generations is increasing each year. Accrual accounting would also create political incentives for our leaders to address Social Security's difficulties in a timely manner, and enhance the quality of public debate over the relative merits of competing reform proposals.

Frey and Stutzer on Direct Democracy Bruno Frey and Alois Stutzer (University of Zurich - Institute of Empirical Research in Economics (IEW) and University of Zurich - Institute of Empirical Research in Economics (IEW)) have posted Direct Democracy: Designing a Living Constitution on SSRN. Here is the abstract:
    A crucial aspect of constitutional design is the provision of rules on how a constitution is to be amended. If procedures for constitutional amendment are very restrictive, changes will take place outside the constitution. These changes are likely to be against the citizens' interests and their ability to influence the political process. We argue that the development of the constitution must be based on the rule of law. We propose direct democratic rights that allow citizens to participate in the amendment process. The direct democratic process of institutional change is theoretically and empirically analyzed. A number of counter arguments and issues for a gradual introduction are discussed.

Tuesday, October 21, 2003
Stavropoulos at Oxford At Oxford's Jurisprudence Discussion Group, Nicos Stavropoulos presents Interpretivist Theories of Law. Here is a taste:
    Interpretivism about the nature of law is the view that legal rights and duties are determined by the scheme of principles that provides the best justification of certain political practices of a community: a schme identifiable through an interpretation of the practices that is sensitive to both the facts of the practices and to the values or principles that the practices serve.
And . . .
    Interpretivism has been developed by Ronald Dworkin . . . over the last 30 years or so. . . . Interpretivism as developed by Dworkin includes the claim that interpretation is sensitive to values . . . and that it is fundamental to the nature of law. Many theories accept that, given the law, interpretation that is sensitive to values is necessarily employed in its application. . . . [I] shall be concerned exclusively with interpretivism as a theory about the nature of law.
Stavropopoulos provides a very sophisticated treatment of Dworkin and his critics. Highly recommended!

Arlen at Chicago At the University of Chicago's Olin Series, Jennifer Arlen (New York University Law School) presents Unregulable Defenses and the Perils of Shareholder Choice coauthored with Eric Talley. Here is the abstract:
    A significant debate rages within corporate law scholarship as to whether shareholders or managers should be granted authority over the tender offer process, once a bid is imminent. Both sides generally agree that the issue depends on whether shareholders are capable of performing an informed evaluation of bids that emerge. Supporters of managerial veto power contend that the arguments favoring professional management of publicly held firms carry over into the tender offer context. Proponents of shareholder choice, on the other hand, argue that shareholders can act on their on behalf in the special circumstances surrounding contests for control. This Article challenges the very premise that the case of shareholder choice turns principally on whether shareholders are capable of making informed choices. It argues that adopting a strong shareholder choice regime may be value-reducing even if shareholders can effectively manage the firm post-bid. Shareholder choice proposals give managers an incentive to search for alternative defenses not practicably regulable through a shareholder choice regime – defenses that may impose greater costs on the firm than existing defenses. We demonstrate (a) that a number of such unregulable value-reducing defenses exist, (b) that managerial threats to use them are credible under plausible conditions, and (c) that their use would be difficult or impossible for courts to regulate. Furthermore, we find e empirical support for these hypotheses. Consequently, we conclude, an immutable, one-size-fits-all shareholder choice rule is unlikely to improve shareholders’ welfare.
This should be good!

Seto on a General Theory of Normativity Theodore Seto (Loyola Marymount University-Loyola Law School) has uploaded A General Theory of Normativity to SSRN. Here is the abstract:
    In general, we lack objective foundations for our normative assertions. Some legal scholars – Kaplow and Shavell, for example – argue that aggregate preference satisfaction utilitarianism provides such foundations. Outside the law and economics movement, however, the utilitarian model has largely failed to persuade. The present paper offers a new approach to anchoring normative analysis in objective foundations. It begins with a relatively noncontroversial observation – that our normative world consists of our internalized learned behaviors and their associated memes. Using evolutionary theory, it then explores why our normative world exists at all. The function of internalization, it concludes, is to permit the evolution of learned behaviors whose adaptivity may not be obvious. Sharing, for example, is not self-evidently "rational." Over time, however, individuals motivated to share have tended to survive and reproduce more successfully than those not so motivated. As a result, the population has come to be dominated by individuals motivated to share. Similar stories can be told about goodness, commitment to the rule of law, respect for equality, regard for the liberties of others, and, to some extent, democracy. Whether and why behaviors are adaptive are objective questions to which there exist – at least in theory – objective answers. Thus, if I am right, when someone asserts that we "ought" to do this or that, we should be able to explore her assertion productively by asking whether the proposed behavior is adaptive, and if so why. Stated another way, an understanding of why we value, for example, equality, should permit us to define better what equality means. Of more immediate concern to legal scholars, if I am right then much of the U.S. Constitution can also be justified in terms of adaptivity: a society that protects adaptive rules from short-term popular challenge is more likely, in the long run, to survive and reproduce. Although this portion of my paper is still a work-in-progress, my theory appears to offer a relatively straightforward justification of judicial review in the protection of constitutional values and, in the process, allows a more objective delineation of those values themselves.
Seto's work is provacative and interesting!

Jo Wollf at University College At University College, London, Jonathan Wolff (UCL) presents Fear and Loathing at St Pancras: The Ethics and Economics of Railway Safety.

Brooks at the Ockham Society At Oxford's Ockham Society, Thom Brooks (Sheffield) presents A Defence of Jury Nullification.

International Humanitarian Law at ANU At Australian National University's Faculty of Law, a one day conference entitled The Relevance of Rights: Refugees, international humanitarian law and human rights in today's world.

Polsky on Treasury's Power to Overrule the Supreme Court Gregg Polsky (University of Minnesota School of Law) has posted Can Treasury Overrule the Supreme Court? (forthcoming in the Boston University Law Review, Vol. 84, 2004) on SSRN. Here is the abstract:
    This article considers whether the Treasury's check-the-box regulations, which have been widely praised by tax practitioners, are valid. These regulations generally allow any unincorporated entity to elect whether it will be treated as a corporation or a partnership for tax purposes. When these regulations were first proposed, there was some debate as to whether such an elective regime was foreclosed by the statutory scheme, which requires that "associations" be taxed as corporations. This article argues that the focus of this debate was misplaced because, even assuming that the statutory scheme itself was sufficiently ambiguous as to permit an elective regime, the meaning of the term "association" was settled by the Supreme Court in the 1935 case of Morrissey v. Commissioner. In that case, the Court interpreted the term to mean any unincorporated entity that sufficiently resembles a corporation. Because this interpretation is inconsistent with a purely elective regime, this article argues that the check-the-box regulations are invalid. The basis for this argument is a trilogy of Supreme Court opinions that hold that when the Court interprets a statutory term, that interpretation is binding on the Executive Branch and may be altered only by an act of Congress or a subsequent opinion of the Court. Therefore, these cases stand for the proposition that, at least as far as the Executive Branch is concerned, a judicial interpretation of a statute is effectively incorporated into the underlying statute. This article also argues that the promulgation of the check-the-box regulations are but one example of the Treasury's and the IRS' recent tendency to promulgate taxpayer-friendly rules that are invalid. The article discusses the etiology of this phenomenon.

Adler on Transitions Matthew Adler (University of Pennsylvania Law School) has posted Legal Transitions: Some Welfarist Remarks (forthcoming in the Journal of Contemporary Legal Issues, Vol. 13, 2003) on SSRN. Here is the abstract:
    This essay offers a sympathetic, utilitarian critique of Louis Kaplow's famous argument for legal retroactivity in his 1986 article, "An Economic Analysis of Legal Transitions." The argument, very roughly, is that the prospect of retroactivity is desirable if citizens are rational because it gives them a desirable incentive to anticipate legal change. My central claim is that this argument trades upon a dubious, objective view of probability that assumes rational citizens assign the same probabilities to states as rational governmental officials. But it is subjective, not objective probabilities that bear on rational choice, and the subjective probabilities of rational citizens can diverge from rational officials'. I imagine a simple case in which a single Social Planner structures both transition policy and substantive law in some domain. The legal change that the Planner anticipates she would enact in response to a given set of events, and the legal change that the Planner believes one or another citizen believes she (the Planner) will enact in response to those events, can differ. And this means, in turn, that there can be incentive costs to a retroactivity regime as well as a prospectivity regime, even if all actors are fully rational. The utilitarian case for retroactivity is more contingent than Kaplow thinks.

New Papers on the Net Here is today's roundup:
    Determinants of Civil Rights Filings in Federal District Court by Jail and Prison Inmates Anne Morrison Piehl and Margo Schlanger Harvard University - John F. Kennedy School of Government and Harvard Law School Abstract:
      This paper uses panel data estimation techniques to examine the relation between the number of federal court civil filings by inmates and jail and state prison populations (and, hence, the relation between jail and prison inmate filing rates) both before and after the effective date, in 1996, of the Prison Litigation Reform Act (PLRA). The research issue matters for several reasons. First, the amount of litigation by inmates is a crucial component of the regulatory regime governing jails and prisons and what factors drive filings, and by how much, deserves close attention and assessment. Second, the PLRA was a major congressional attempt to control and ration litigation; understanding its effects in finer gauge seems itself worthwhile. Third, we hope to show, methodologically, how research about litigation rates can be carried out sensitively, even if the litigation results from case filings by two separate populations. We make three major findings: (1) As expected, inmate filings vary positively with prison population. However, the relationship with jail population is less secure. (2) As the prison proportion of inmates in a particular state increases, so too does the number of filings. (3) The PLRA's passage has significantly lessened but not eliminated this prison proportion effect.
    Not Just 'Visitors' to Prisons: The Experiences of Imams who Work Inside the Penal System Howard Journal of Criminal Justice, Vol. 40, pp. 03-13, February 2001 Basia Spalek and David Wilson University of Birmingham and University of Central England - School of Law Abstract:
      This article presents the results of a study exploring the consequences of working within a Christian-dominated penal system upon a group of Imams who regularly visit prisons. The Islamic religion is currently the fastest growing non-Christian religion in British prisons and so it was considered to be important to document the experiences of the spiritual guides of this faith. Interview data revealed that the Imams face many disadvantages as a result of belonging to a non-Christian religion, amounting to a form of 'institutional racism'. However, many of them revealed that they were not the passive victims of institutional racism (and sometimes direct racism also), but rather struggled against their material conditions in order to force the prisons in which they work to respond to their own needs and those of the prisoners whom they serve. Nonetheless, it appears that any opportunities for change are limited by the structural imbalance between Christian and non-Christian faiths within the penal system.
    Suffering, Faith and Penitence Amongst British Prisoners 1835 to 1860: The Application of a Theology Howard Journal of Criminal Justice, Vol. 40, pp. 14-25, February 2001 Bill Forsythe University of Exeter Abstract:
      This article discusses suffering amongst some British prisoners prior to and post their imprisonment between 1835 and 1860. Those who revealed their suffering to officials tended to disclose this in the context of the evangelical Christian prison mission which was a dominant motif of prison discipline at this time. Clear themes of suffering emerged from their self disclosures, which prisoners themselves set in the context of a spiritual struggle which they experienced as highly problematic.
    The Trend Towards Specialisation: West Yorkshire Innovations in Drugs and Domestic Violence Courts Howard Journal of Criminal Justice, Vol. 40, pp. 26-38, February 2001 Charlotte Walsh University of Leicester - Faculty of Law Abstract:
      This article discusses the recent birth of what the author perceives to be a move towards increased specialisation in our magistrates' courts. The developments which suggest the beginnings of such a trend have all taken place in West Yorkshire where two specialist drug courts and a specialist domestic violence court are now in operation. These courts are effectively piloting an innovative approach which, should it prove successful, would seem likely to be developed on a nationwide scale. The specialist courts which have been established in this country to date are looked at in some detail, alongside a consideration of the substance, foundation and desirability of specialisation. However, due to the fact that specialist courts in this country are at such a formative stage, it is rather early to comment meaningfully on their effectiveness; therefore, these courts are evaluated predominantly through discussion of their forerunners in the United States. The aims and motivations behind specialisation are considered along with a discussion of the advantages to be gained from such an approach. These advantages are considered both in practical terms and in abstract. In conclusion, an analysis of the areas where specialisation is likely to take place in this country in the future is offered, along with a consideration of the wider context of this new development.
    Victim Participation in Sentencing: The Problems of Incoherence Howard Journal of Criminal Justice, Vol. 40, pp. 39-54, February 2001 Ian Edwards University of East Anglia - Norwich Law School Abstract:
      Despite the trend in many countries towards permitting or desiring the participation of victims at sentencing, states are still having to grapple with the conceptual and practical issues raised by moves to include victims at sentencing. What has been lacking is an appreciation of the different rationales for inclusion and the problems that result from each. Four types of justification for including the victim are delineated, and the practical implications of each are considered for defining who is a victim, determining the content and form of participation, and assessing effectiveness. Three recent developments (in the USA, England and Wales, and South Australia) are used as a focus.
    The Short Life and Painful Death of Prisoners' Rights Howard Journal of Criminal Justice, Vol. 40, pp. 70-82, February 2001 Jason Schone University of Wales - Centre for Comparative Criminology and Criminal Justice Abstract:
      Twelve years ago in this journal Viviane Treacy (1989) predicted a conflict between the common law and the European Convention on Human Rights over the issue of prisoners' rights. At first glance this view was a pessimistic one, as we now have legislation that requires English judges to pay heed to the Convention in their deliberations (Human Rights Act 1998). Two Court of Appeal decisions immediately prior to the enacting of the legislation ( v. [1997] (unreported) CA Transcript 383; v.[1998] 2 All ER 491) however suggest that the impact of the Act in prisoners`cases will be limited. Furthermore these two cases are an indication of a retreat from a position where our courts acknowledged prisoners as having positive legal rights. This article attempts an explanation of this by tracing the development of prison law and prisoners' rights in the last 20 years.
    Modularity, Vertical Integration, and Open Access Policies: Towards A Convergence of Antitrust and Regulation in the Internet Age Harvard Journal of Law and Technology, Vol. 17 Joseph Farrell and Phil Weiser University of California, Berkeley - Department of Economics and University of Colorado at Boulder - School of Law and Interdisciplinary Telecommunications Program Abstract:
      Antitrust law and telecommunications regulation have long adopted different stances on whether to mandate open access to information platforms. This article aims to help regulators and commentators incorporate both Chicago School and post-Chicago School arguments in evaluating this basic policy choice, suggesting how they can be integrated in an effective manner. In particular, the authors outline three alternative models that the FCC could adopt to guide its regulation of information platforms and facilitate a true convergence between antitrust and regulatory policy.
    Shifting Sands: The Limits of Science in Setting Risk Standards Cary Coglianese and Gary Marchant Harvard University - John F. Kennedy School of Government and Arizona State University College of Law Abstract:
      Regulators need to rely on science to understand problems and predict the consequences of regulatory actions, but overreliance on science can actually contribute to, or at least deflect attention from, incoherent policymaking. In this article, we explore the problems with using science to justify policy decisions by analyzing the Environmental Protection Agency's recently revised air quality standards for ground-level ozone and particulate matter, some of the most significant regulations ever issued. In revising these standards, EPA mistakenly invoked science as the exclusive basis for its decisions and deflected attention from a remarkable series of inconsistencies. For example, even though EPA claimed to base its standards on a singular concern for public health, it set its standards at levels that will still lead to hundreds, if not thousands, of deaths each year. In other ways, EPA's positions were like shifting sands, changing at points that apparently were expedient for the agency. Such an outcome should not be unexpected when an agency misuses science as a policy rationale, but it also need not be inevitable if agencies accept the limits of science in justifying risk standards. We conclude by offering a set of principles to give direction to standard setting by EPA and other agencies. In the case of EPA's air quality program, Congress will likely need to amend the Clean Air Act to enable EPA to break free of the conceptual incoherence in which it now finds itself mired. Decisionmakers in any setting, though, can avoid the problem of shifting sands by carefully understanding what science can and cannot do.

Monday, October 20, 2003
Weekend Wrap Up From Saturday, you will find the Download of the Week and the Legal Theory Bookworm. If you click through or scroll down, on Sunday you will find the Legal Theory Calendar and this week's Legal Theory Lexicon.

Kramer at Northwestern At Northwestern Law, Larry Kramer (New York University School of Law) presents The People Themselves: Popular Constitutionalism and Judicial Review. Here is a taste:
    Modern commentators, especially legal commentators, read the Founders’ letters and speeches anachronistically, giving too much weight, or the wrong kind of weight, to complaints about “the excess of democracy.” We depict the men who framed and ratified the Constitution as striving to create a self-correcting system of checks and balances whose fundamental operations could all take place from within the government itself, with minimal involvement or interference from the people. Our political grammar is saturated with this reading of the Founding, which sees the movement to write a new Constitution almost exclusively in antidemocratic terms. Our Constitution on this view—a view that pervades both legal and historical scholarship on the subject—was adopted first and foremost to put a check on the people, to minimize their role in governing, to shove them as far offstage as possible without technically abandoning republicanism.
If you are interested in constitutional theory, this is a must download!

McCormick at Chicago At the University of Chicago's Political Theory Workshop, John McCormick, University of Chicago, Tempering the Grandi’s Appetite to Opress: The Dedication and Intention of Machiavelli’s Discourses, with discussion by Ian Needham.

Greaney at Loyola At Loyola Marymount, Loyola Law School, Thomas L.Greaney (Professor of Law and Co-Director, Center for Health Laws Studies, St. Louis University School of Law) presents Chicago’s Procrustean Bed: Applying Antitrust Law in Health Care.

Bilder at Alabama Mary Sarah Bilder of Boston College Law School will present her paper Constitutional Lawyering Before the Constitution at the University of Alabama law faculty colloquium today.

Brown at UCLA At UCLA, Edmund G. Brown, Jr., (Mayor of Oakland) speaks to the law school faculty.

Walzer at Penn Michael Walzer is speaking today at the University of Pennsylvania--his title, Justifying War.

Caplan at George Mason At George Mason's Workshop in Philosophy, Politics, and Economics, Bryan Caplan (Economics, George Mason University) presents Mises, Bastiat, Public Opinion and Public Choice: What’s Wrong with Democracy?.

Skinner at Princeton At Princeton's Political Philosophy Colloquium, Quentin Skinner (Cambridge University) presents Thomas Hobbes as a Theorist of Representative Government.

Bilder at Alabama Mary Sarah Bilder of Boston College Law School will present her paper Constitutional Lawyering Before the Constitution at the University of Alabama law faculty colloquium.

Review of Epstein Ronald J. Terchek has a review of Skepticism and Freedom: A Modern Case for Classical Liberalism by Richard Epstein. Here is a taste of the review:
    SKEPTICISM AND FREEDOM is Epstein's third book in a series exploring the intersection of political theory and law. Although he parts company from pure libertarians in finding an important and legitimate role for government, he means to show that limited, constitutional government, one not tethered to majority opinion or welfare state commitments, is the way to proceed as constitutional government protects choice and private property and promotes elementary security. To accomplish these ends, Epstein offers a “modern defense” of classical liberalism by mining a variety of literatures from sociobiology, evolutionary theory, game theory, Pareto preferences, and behavioral economics to name a few. In doing so, he responds to a variety of critics of classical liberalism, ranging from Amartya Sen, Jon Elster, Cass Sunstein, Oliver Wendell Holmes, and Joseph Raz.
And here is a bit more:
    Epstein's writings about property, contract, and limited government invite the reader not only to consider what he has explicitly written, but also to wonder about what has been omitted. Epstein's Hound of the Baskervilles – the dog who does not bark – is power, and its many manifestations are missing, with the exception of state power. However, there is a rich political-theoretical position, from Aristotle through Machiavelli through the present, that sees power at the heart of politics, that power takes many forms, that power is lodged in the state, society, and the economy, and that different expressions of power can be enabling or disabling. Such an approach recognizes there are dangers in a theory which only sees the state as the holder of power or considers only the state as dangerous. Such an approach invites us to assume everything we find in civil society to be benign. This is something that should be crucially important to someone who professes to want to protect liberty and autonomy, matters that the author signals as his driving concerns early in his book. Richard Epstein has written a provocative book that promotes classical liberalism and that will delight and fortify its adherents, while troubling and disappointing its detractors

Helfer on the Intersection Between Intellectual Property and Human Rights Laurence Helfer (Loyola Marymount University-Loyola Law School) has posted Human Rights and Intellectual Property: Conflict or Coexistence? (forthcoming Minnesota Intellectual Property Review, Fall 2003) on SSRN. Here is the abstract:
    Human rights and intellectual property, two bodies of law that were once strangers, are becoming increasingly intimate bedfellows. Over the past three years, human rights bodies within the United Nations have devoted unprecedented attention to intellectual property issues, including patented medicines, digital copyrights, technology transfers, economic, social and cultural rights, plant variety protection, and economic development. Unlike the approaches adopted in established intellectual property lawmaking organizations such as the WTO and WIPO, the new human rights approach to intellectual property is often critical of existing standards of protection and it seeks to address legal and policy issues that intellectual property treaty makers and legislators often ignore. In this essay, I analyze two competing frameworks that governments, NGOs, and intergovernmental organizations are using to conceptualize the intersection of human rights and intellectual property. The first approach views the two areas of law as in fundamental conflict, with strong intellectual property protection standards - in particular those of the TRIPs Agreement – undermining a broad spectrum of human rights. The second approach sees both areas of law as concerned with the same basic question: defining the appropriate scope of private monopoly power to give authors and inventors a sufficient incentive to create and innovate, while ensuring that the consuming public adequate access to the fruits of their efforts. The essay traces the evolution of these two competing approaches and explores their consequences for future international lawmaking.

Bainbridge on the Race to the Bottom Stephen Bainbridge has some marvelously lucid and interesting comments on Bebchuk and Cohen's Firms’ Decisions Where to Incorporate.

Calabresi on the Balanance Between State and Federal Courts Judge Guido Calabresi's essay, Federal and State Courts: Restoring the Balancing, 78 N.Y.U. L. Rev. 1293 (2003) is just up on Westlaw. Here is a taste:
    What, then, is the new and workable balance that I propose? I could talk a lot more about it, and give many details, but for purposes of this lecture a short summary is enough:
      1. Federal claims: Jurisdiction in cases asserting federal rights against federal actors need not be changed. Such suits are properly in federal court and remain there currently, as do civil claims under federal statutes.
      2. Criminal law: These cases usually belong in state courts, even if they involve federal crimes, so long as the crime is parallel to one that exists in the state. Reverse certification to federal courts is encouraged if a separate and undecided federal question arises.
      3. Private law: Federal courts are the "appellate division" for diversity cases and other cases involving state laws. Certification to the states is, therefore, called for . . . after the federal court has indicated how it would decide the case if certification is refused. The state courts are then free to accept certification or not as they choose.
      4. Federal rights against state actors: De novo or original consideration in federal courts is appropriate, with certification to states for state law interpretation and with frequent use of European-style passive virtues applied to such "collateral" constitutional reviews. (I am here incorporating by reference, because I don't have time to describe them tonight, the many devices by which the European constitutional courts avoid deciding constitutional questions too soon.)
    The effect of these changes would be that each set of courts would do what it knows and does best; that local dominance in traditionally local areas would be reestablished, and that federal dominance, when issues of federal rights are involved, would also be reestablished; and that each set of courts would learn that it is not a matter of "who is better than whom," but rather that each should be humble about acknowledging the existence of areas as to which it knows less than other courts. (It is not insulting to be humble about the things that one doesn't know as much as others do.)

Conference Announcement: Class Action Reform
    Class Action Reform: The Why and the Who Thursday, October 30, 2003, 9:00-noon Wohlstetter Conference Center, Twelfth Floor, AEI 1150 Seventeenth Street, N.W., Washington, D.C. 20036 The debate over class action reform has long suffered from a lack of theoretical and institutional context. Much attention is lavished on the technical details of competing reform proposals, with little recognition that those proposals often reflect widely divergent-though rarely articulated-assumptions about the general purposes of liability law (for example, deterrence of bad conduct and compensation of harmed individuals). At the same time, little sustained thought has been given to the institutional context of class action reform-that is, the specific risks and opportunities of pursuing reform through the federal courts, the Judicial Conference, the Congress, or federal agencies. Please join the AEI Liability Project for an exchange of views on the purposes and pathways of federal class action reform. 8:45 a.m. Registration 9:00 Welcome: MICHAEL S. GREVE, AEI Liability Project Panel I: Principles and Purposes of Class Action Reform Panelists: RICHARD EPSTEIN, University of Chicago and the Hoover Institution DAVID ROSENBERG, Harvard Law School Moderator: FRANCIS A. BUCKLEY, George Mason Law School 10:30 Coffee Break 10:45 Panel II: Class Action Reform-By Whom? Panelists: JOHN BEISNER, O'Melveny & Myers MARK A. PERRY, Gibson, Dunn & Crutcher The Hon. LEE ROSENTHAL, U.S. District Court TODD ZYWICKI, Federal Trade Commission Moderator: MICHAEL S. GREVE, AEI Liability Project Noon Adjournment Please see the attached invitation for registration information. Online registration is available at For more information, please contact Kate Rick at 202-862-5848. For media inquiries, please contact Veronique Rodman at 202-862-4871 or

Defining Terrorism Check out this op/ed by George Fletcher (Columbia, Law). Here is a taste:
    Official definitions of terrorism are unpersuasive. The US Congress, for example, defines terrorism as including a motive to coerce or intimidate a population or influence a government. But this formula does not clearly cover even the terrorist attacks of September 2001. If the motive of the airline hijackers was simply to kill infidels, their attack would fall outside the Congressional definition. It is a mistake to try to define terrorism in the same way that we define theft or murder. There are too many contested issues. A better approach is to identify the issues that arise in thinking about terrorism and clarify why people experience terror from certain acts of violence. Then we can define terrorism with reference to all these variables, but without making any one of them decisive.
And this bit:
    The most controversial issue in defining terrorism is captured by the slogan: ‘One person’s terrorist is another’s freedom fighter’. The problem is whether a good cause justifies using horrendous means. Some states think that it does, which puts them at odds with Western opinion. Those who opt for terror always believe their cause is just. Sometimes it is, sometimes not. No American would be happy about branding the Boston Tea Party an act of terrorist aggression against British property. Nor would any Frenchman accept a description of the maquisards of the French Resistance as terrorists. Yet both committed acts of violence against property and people, and so do meet the conventional tests of terrorism.

Sunday, October 19, 2003
Legal Theory Lexicon: The Veil of Ignorance
    And what would you choose if you were behind the veil of ignorance, Mr. Wong?
    Introduction This installment in the Legal Theory Lexicon is intended to introduce law students (especially first years) to "the veil of ignorance"--an idea from political philosophy that has had an important influence on legal theory.
    From the Ex Ante Perspective to the Veil of Ignorance The very first installment in the Legal Theory Lexicon was on the ex post/ex ante distinction. Law students quickly learn that law school focuses more about the normative ("Is it a good rule?") than the descriptive ("What is the rule?"). ("Just give me the black letter law!" is a cry in the wilderness!) Once you've learned that lesson, another one quickly follows. (Either it creeps up on you, or perhaps it just hits in one of those glorious a ha moments!) The legal academy (and hopefully your section) is full of different (radically different) perspectives on normative questions about the law. The ex ante/ex post distinction is all about normative perspective. We can look at legal rules ex post (backwards from the present), and ask, "Does this rule provide a fair resolution of this particular controversy?" Of we can look at legal rules ex ante (forward from the present) and ask, "Will the adoption of this rule produce good consequences if applied to similar situations in the future?" The move to the ex ante perspective is the crucial move made by consequentialist legal theories--and in particular, by normative law and economics.
    But there is another important perspective on legal rules that is not captured by the ex post/ex ante perspective. This alternative perspective is frequently associated with the twentieth century's most important political philosopher, the late John Rawls. Rawls is famous for his book, A Theory of Justice, which argued for two principles of justice (the liberty principle and the difference principle) using a striking thought experiment called "the original position." The basic idea is that principles of justice for the basic structure of society are to be chosen by representative parties behind a veil of ignorance. That is, the representatives are deprived of information about the talents, abilities, and socio-economic status of the parties they represent. Rawls saw the original position as an improved and generalized form of the "state of nature" that Hobbes, Rousseau, and Locke used as the choice situation for the adoption of a social contract. Rawls's basic intuition was that the state of nature allowed morally irrelevant factors--e.g. the strategic advantages of the strong and cunning--to determine the content of the social contract. The point of the veil of ignorance is to filter out these factors, yielding a fair choice situation. Whereas classical social contract theory asks, "What would be chosen in a state of nature?," Rawls asks, "What would be chose in the original position from behind the veil of ignorance?"
    Going Behind the Veil, Part One So how do you use the veil of ignorance when doing legal theory? I want to start with a very simple answer to that question (in Part One), then we will introduce some objections and clarifications, and give a more complicated answer (n Part Two). So here goes.
    "Going behind the veil of ignorance" means performing a thought experiment. You ask yourself: "What legal rule would I choose if I didn't know such and such information." Right away, you see that we must fill in the blank! What information is placed behind the veil of ignorance. Let me give some examples:
    • Position as plaintiff or defendant. In evaluating procedural rules, we might want to ask, "What rules would be chosen by the parties if they didn't know whether they were the plaintiff or the defendant?"
    • Wealth and income. And we might make the veil a bit thicker. My choice of procedural rules might be affected by my knowledge of my wealth and income. (For example, if I am wealthy, I might prefer rules that allow wealth and income to influence the outcome of litigation by making the quality of privately financed representation (e.g. buying a good lawyer) a major determinant of the chance of success.
    So, if we placed these two kinds of knowledge behind the veil of ignorance, the question becomes, "What system of procedural rules would I want if knew that I was a litigant in a civil action, but I didn't know whether I was a plaintiff or a defendant and I didn't know whether I was rich or poor?" Let's get really, really simple. Suppose I have a choice between four legal regimes with respect to the provision of counsel:
      (1) Each side pays for its own lawyer. This is the so-called American rule.
      (2) The government pays for all lawyers. Some socialist systems provide for this rule.
      (3) If the plaintiff wins, the defendant pays for both the plaintiff's and the defendant's lawyer, but if the defendant wins, each side pays for its own lawyer. This is the rule that currently prevails under several statutes, e.g. 28 U.S.C. Section 1983.
      (4) The loser pays for its own lawyer and for the winners lawyer. This is the so-called English rule.
    Which of these rules would you select if you were behind a veil of ignorance and you didn't know whether you were a plaintiff or defendant, rich or poor? Obviously, we would need to know a lot about consequences to answer this question, but already, gentle reader, you are running ahead of me, and drawing certain conclusions. For example, you might be thinking that from behind the veil of ignorance, you might reject the rule that makes the defendant pay if the plaintiff wins but does not make the plaintiff pay if the defendant wins. Why would I accept that rule?, you might say to yourself, if I can could end up as a defendant? Of course, it isn't as simple as that, but you get the idea.
    Objections The veil of ignorance is a controversial tool. So its worth our while to briefly scan some of the objections to its employment:
    • Impoverished conception of the person. Michael Sandel (Government, Harvard) made this objection famous. In Rawls's original position, the veil of ignorance is very thick indeed. The representative parties in the original position are placed behind a very thick veil that excludes knowledge of the actual interests (life plans and conceptions of the good) of the represented citizens. So when the representatives compare various options they do so based on the shares that citizens will receive of the primary goods (basic rights, wealth, income, etc.). In the real world, people have complex plans of life and they often care as much or more about what other people get as they do about their own share of the primary goods. Frankly, this objection misses the boat as applied to Rawls's theory, but it is also completely irrelevant to most uses of the veil of ignorance by legal theorists. That's because when we use the veil to compare legal rules, we almost always employ a much thinner veil of ignorance--taking people more or less as they are, concealing only information about their relative positions with respect to the legal dispute (or general class of legal disputes) at hand.
    • The veil of ignorance produces utilitarian reasoning. This objection is associated with the economist, John Harsanyi and in legal theory, with Louis Kaplow and Steve Shavell. Here is the idea. Behind the veil of ignorance, you don't know who you are, and therefore, you will take the interests of all persons into account. If we assume that behind the veil of ignorance, you will try to maximize expected utility, then persons behind the veil of ignorance will always choose the legal rule that maximizes utility. (The original version of this objection was aimed at Rawls, so substitute "theory of justice" for "legal rule" to get Harsanyi's argument.) Once again, as applied to Rawls this objection has been more or less trounced, but it has even less relevance to the use of the veil in the context of legal theory. Legal theorists rarely need to impose a veil so thick that the parties behind the veil will judge legal policies solely on the basis of "expected utilities." Rather, parties behind the veil can take into account the full range of their interests and concerns, including their interests in being treated fairly.
    • One cannot go behind the veil. One final objection: sometimes it is argued that it is just plain impossible to go behind the veil. How can one shed one's knowledge of one's identity? I have to admit that the sheer silliness of this objection leaves me gasping for breath! Of course, going behind the veil of ignorance doesn't literally mean forgetting who you are! In fact, veil of ignorance thought experiments are usually performed by third parties, e.g. by a legal theorist imagining that they were a member of a certain legally-relevant group. And the kind of thought experiment demanded by the veil is very familiar to ordinary people as a means of moral deliberation. Suppose your eldest daughter is hitting her younger sister, and you say to her, "How would you feel if your sister did that to you?" I'm sure, gentle reader, that are galloping ahead of me. This kind of thought experiment is simply a less formal version of the veil of ignorance. There is nothing fancy or mysterious about going behind the veil of ignorance--it is simply good, old-fashioned counterfactual reasoning applied to moral problems.
    Going Behind the Veil, Part Two Something important can be learned by considering the objections to the veil of ignorance. You can learn a lot more from going behind the veil, if you are very clear about the set up of your thought experiment. Here are some particular questions you might want to answer when you devise a veil of ignorance thought experiment:
    • Who is going behind the veil? The parties to a particular dispute? Or representatives of the general class of persons involved in the generic set of similar disputes? Or all citizens?
    • What information is allowed behind the veil and what information is excluded? Usually, you will want to deprive those behind the veil of knowledge of their position in the particular dispute. (E.g. behind the veil, they will not know whether they are the plaintiff or the defendant, or the victim of the accident versus the person who caused the accident, etc.) But you may want to exclude other information as well. For example, you may want to deprive the parties of information about their wealth, their gender or ethnicity, their skills and abilities, and so forth.
    • When are the parties located in time? At the beginning of the lawsuit? Before the events that triggered the legal dispute had even occurred? At a sort of timeless moment, when we are choosing legal rules to govern our society?
    • How do parties behind the veil of ignorance deliberate? For the most part, legal theorists will want to leave the deliberative processes relatively untouched. Huh? By that I mean that unlike Rawls, legal theorists do not need to specify that the parties pursue some particular goal (maximimizing their share of the primary goods) but can leave the parties with the interests they have before the veil descends. Rawls specified a particular decision rule for the parties--the maximin rule--which required the parties to maximize the share of the primary goods that would be held by the worst-off group. Again, legal theorists may not need this very strong assumption about how the parties deliberate.
    Another Objection And this brings us to yet another objections to Rawls's original position. The objection is simple: what comes out of the original position depends entirely on what goes into its set up. Of course! But by itself, this is no objection. Think of the analogous case of "How would you feel if your sister did that to you?" Of course, asking the question in this way is designed to elicit a certain outcome. But the question is nonetheless morally salient, because the norm of reciprocity that it brings to the fore is itself morally salient. The veil of ignorance is not some magical divining rod that allows us to discover ex nihilo moral intuitions that otherwise would be undiscoverable. The point of the veil is to enable us to think in a clear and rigorous way about what is fair and what isn't. So here is the important point, when you answer the who, what, when, and how questions about the set up of your veil of ignorance thought experiment, you are making explicit to yourself the factors that you think are morally relevant to judgments of fairness. In a sense, it is doing that work that is the whole point of the veil of ignorance. The fact that behind the veil thought experiments also elicit powerful moral intuitions is, in a sense, just a wonderful side benefit.
    Back to the Classroom So if you are a theoretically inclined first-year law student, how can you use the veil of ignorance. Here is my suggestion. At least some of the time, when you are reading and thinking about a morally interesting case--one where you say, this case involves questions about fairness--ask yourself the following three questions: (1) ex post, which rule provides the fair resolution of this controversy; (2) ex ante, which rule would produce the best consequences if applied to similar cases in the future, and (3) from behind the veil of ignorance, which rule would I choose if I didn't know whether I was the plaintiff or the defendant? Sometimes, as you begin to answer that third question, you will find yourself interested by the questions as to who is behind the veil of ignorance, what they know, when they decide, and how they deliberate. Spend a few minutes thinking about those questions, and you may find that you have a deeper understanding of the concerns of principle or fairness that are relevant to the case.
    A cautionary note: The veil of ignorance is controversial. In some classrooms, an attempt to introduce the veil into a classroom discussion will be welcomed; in others, you will draw a withering stare or a dismissive comment. Go with the flow!
Past and future installments in the Legal Theory Lexicon are collected here.

Legal Theory Calendar
    Monday, October 20
      At Northwestern Law, Larry Kramer (New York University School of Law) presents The People Themselves: Popular Constitutionalism and Judicial Review.
      At George Mason's Workshop in Philosophy, Politics, and Economics, Bryan Caplan (Economics, George Mason University) presents Mises, Bastiat, Public Opinion and Public Choice: What’s Wrong with Democracy?.
      At Loyola Marymount, Loyola Law School, Thomas L.Greaney (Professor of Law and Co-Director, Center for Health Laws Studies, St. Louis University School of Law) presents Chicago’s Procrustean Bed: Applying Antitrust Law in Health Care.
      At Princeton's Political Philosophy Colloquium, Quentin Skinner (Cambridge University) presents Thomas Hobbes as a Theorist of Representative Government.
      At the University of Chicago's Political Theory Workshop, John McCormick, University of Chicago, Tempering the Grandi’s Appetite to Opress: The Dedication and Intention of Machiavelli’s Discourses, with discussion by Ian Needham.
      Mary Sarah Bilder of Boston College Law School will present her paper Constitutional Lawyering Before the Constitution at the University of Alabama law faculty colloquium.
      At UCLA, Edmund G. Brown, Jr., (Mayor of Oakland) speaks to the law school faculty.
      Update: Michael Walzer is speaking at the University of Pennsylvania--his title, Justifying War.
    Tuesday, October 21 Wednesday, October 22
      At Northwestern Law, Jennifer Arlen (New York University School of Law) presents Malpractice Liability for Physicians and Managed Care Organizations.
      At Heythrop College, London, Patrick Riordan (Heythrop) presents Religion in Public Discourse.
      At the University College, London, Paul Kelly (LSE) presents How Political is Liberal Political Theory?
      Today through October 24, The Netherlands School for Research in Practical Philosophy is presenting a conference on Reasonable Partiality at Vrije Universiteit, Amsterdam, The Netherlands.
      At Oxford's Centre for Crimonological Research Seminar Series, Rob Allen (Director, Esmée Fairbairn Foundation) presents Rethinking Crime and Punishment. The venue is All Souls.
    Thursday, October 23
      At NYU's Colloquium in Legal, Political and Social Philosophy, Susan Wolf (University of North Carolina, Philosophy) presents "The Meanings of Lives" & "The True, the Good and the Lovable: Frankfurt's Avoidance of Objectivity".
      At Boston University, Michael Heller (Lawrence A. Wien Professor of Real Estate Law, Columbia Law School) presents The Art of Land Assembly (with Rick Hills).
      At Georgetown's Colloquium on Intellectual Property & Technology Law, Joseph P. Liu (Boston College of Law) presents Rationalizing Trademark Defenses.
      At the University of San Diego/University of California at San Diego, Law, Economics and Politics Workshop, Einer Elhauge (Harvard) is presenting.
      Update: At the University of Pennsylvania's law and philosophy series Kyron Huigens (Cardozo Law School) presents A Specification to Coherence Model of Punishment's Justification.
      At UCLA's legal history series, Lawrence Friedman (Stanford) presents The Rise and Fall of Common Law Marriage.
      At the University of Michigan's Law and Economics series, Owen Jones (Arizona State) is presenting Law and Behavioral Biology.
      At George Mason Law, Supriya Sarnikar (GMU School of Law Levy Fellow) presents Cybersecurity in the National Market System.
      At the Australian National University, Research School of Social Science, Philosophy Seminars, Chandran Kukathas (University of Utah) presents Justice, Toleration, Peace and Reason.
      At Harvard's philosophy colloquium, Michael Bratman (Stanford) presents Shared Valuing and Frameworks for Practical Reasoning.
      At Yale's philosophy department, Samuel Scheffler presents Choice, Circumstance, and the Value of Equality.
      At the University of Bristol, Michael Ridge (Edinburgh) presents Betting on Hedges: From Moral Knowledge to Default Principles.
      At the University of Hertfordshire Centre for Normativity and Narrative, Jeanine Grenberg (St Olaf College, Minnesota & Hertfordshire) presents A Kantian Account of Virtue.
      Update: At the University of Melbourne, Andrew Alexandra presents Hobbes and The Foole.
    Friday, October 24
      At Florida State, David Caron (University of California, Berkeley) presents Lessons from the United Nations Compensation Commission for Claims Arising Out of the 1990 Gulf War.
      At IIT-Chicago-Kent, a conference entitled Law &: Philosophical, Psychological, Linguistic, and Biological Perspectives on Legal Scholarship.
      At UCLA, Jennifer Brown (Quinnipiac Law School) presents Straightforward: Mobilizing Heterosexual Support for Gay Rights.
      At Tulane's Center for Ethics and Public Affairs Guido Pincione (Universidad Torcuato Di Tella) presents Principles and Consequences in Political Deliberation.
      At the University of Pittsburg's Program of Classics, Philosophy & Ancient Science, Rob Bolton (Rutgers University) presents Concepts and Conceptual Knowledge in Aristotle. At the University of Arizona, Keith DeRose (Philosophy, Yale University) presents The Conditionals of Deliberation.
    Saturday, October 25
      At Georgetown University Law Center, there is a Conference on Settlement Outcomes as Incentives for Primary Behavior.

Saturday, October 18, 2003
Legal Theory Bookworm If any single area of doctrinal specialization has grown dramatically in importance in the young new millennium, it is election law. The recent California recall controversy and the anticipated decision by the Supreme Court in the BCRA litigation are the most recent examples, but the case that brought the importance of election law home was, of course, Bush v. Gore--perhaps the most controversial Supreme Court decision since Roe v. Wade. So I was especially excited to receive my review copy of Richard L. Hasen's new book, The Supreme Court and Election Law: Judging Equality from Baker v. Carr to Bush v. Gore (Barnes & Noble has it at a discount, and the NYU Press page is here). (Hasen is, of course, the author of the Election Law Blog.) Here is a short description of the book:
    In the wake of the 2000 Florida election controversy, many Americans have questioned whether and how the Supreme Court should decide election law disputes. In the first comprehensive study of the issue since the Supreme Court decided Bush v. Gore, Richard L. Hasen rethinks the Supreme Court's role in regulating elections. Hasen, drawing on the case files of Supreme Court Justices in the Warren, Burger, and Rehnquist courts, roots the Supreme Court's intervention in political process cases to the 1962 case Baker v. Carr, in which the Court first agreed to consider claims that a state legislature had violated the Constitution by failing to draw legislative districts with equal populations. The case opened the courts to a variety of election law disputes, to the point that the courts now control and direct major aspects of the American electoral process. The Supreme Court does have a crucial role to play in protecting a socially constructed "core" of political equality principles, concludes Hasen, but it should leave contested questions of political equality to the political process itself. Under this standard, many of the Court's most important election law cases from Baker to Bush have been wrongly decided.
Why does Hasen conclude that the Supreme Court should only protect the core of political equality? After all, many constitutional theories would place the protection of political equality at the heart of the Supreme Court's agenda as our mighty platonic guardians. Hasen begins with this observation:
    Court intervention in the political process is dangerous (because it leaves important decisions about the structuring of democracy in the hands of unaccountable judges) yet sometimes necessary (because the courts are the only bodies able to police fundamental unfairness in the allocation of political power).
Hasen then argues that the basis for judicial intervention in the political process ought to be a substantive theory of political equality as opposed to a process theory of the sort associated with John Hart Ely. But precisely because courts intervene on the basis of substantive values, there is a need for restraint:
    Limiting intervention to the core makes sense. When the Courts to constitutionalize contested political equality rights , it runs a greater danger of unintended political consequences. Harper may be read narrowly as a case about the use of wealth in voting because it is at the core of the antiplutocracy principle. We can imagine a stopping point in Harper, one that bans property or wealth tests for voting but does no more. But Lubin--recognizing a contested equality right--may be read much more broadly; if it violates the antiplutocracy principle to require candidates for office to pay relatively low fees, many other political activities requiring money become equally subject to attack, including this country's entire system for private financing of elections.
And what is the criterion for the core: "Much of what constitutes the core of political equality rights depends upon a social consensus or near consensus about the ground rules for contemporary democratic government to function." Hasen then defines three principles, which he argues, are at the core of the contemporary consensus:
  • The Essential Political Rights Principle. Each person has basic formal political rights, including the right to speak on political issues, to organize for political action, and to petition the government. The government may not deny the right to vote on the basis of gender, literacy, national origin, race, religion, sexual orientation, or any other basis absent compelling justification. Voters have the right to have their votes counted and weighted roughly equally to the votes of other voters.
  • The Antiplutocracy Principle. The government may not condition the ability to participate fundamentally in the electoral process on wealth or the payment of money.
  • The Collective Action Principle. The government must not impose, and must remove if imposed, unreasonable impediments on individuals who wish to organize into groups to engage in collective action for political purposes.
Of course, readers of Legal Theory Blog will know that I am skeptical about Hasen's style of constitutional theory--preferring as I do, a neoformalist theory of constitutional interpretation. But this is a rich and important book--one that deserves the attention of every serious constitutional theorist. Election law is now at the center of debates about constitutional theory, and Rick Hasen has moved the ball forward. Highly recommended!

Download of the Week This week, the download of the week is Jacob Levy's paper Ancient and Modern Constitutionalism Revisited. Here is a taste:
    In this paper I argue that there is greater continuity than has usually, and recently, been recognized between “ancient constitutionalism”—that is, the constitutional practice of medieval institutions that could check early-modern monarchs, of particular liberties and a patchwork of jurisdictions, the constitutional theory of Coke, Hotman, Mornay, Montesquieu, Burke, the parlementaires and the thèse nobiliaire, sometimes referred to as "Gothic constitutionalism"—and the ostensibly rationalistic, uniform, and contractarian modern constitutionalism of written constitutional texts and judicial review; and I argue for a particular character of that continuity. I develop that argument in dialogue and comparison with certain influential statements about the relationship between the medieval/ early modern “ancient constitution” and the era of constitutions that begins in the 1770s and 80s in America and France.
And here is another good bit:
    First and most importantly, ancient constitutionalism had, by the eighteenth century, developed a very clear sense that a state’s constitution provided binding normative constraints on state action—that is, constraints on what ought to be considered legal. This has been obscured, for instance in McIlwain, by allowing the anomalous British case, with its doctrine of absolute Parliamentary sovereignty, to occupy too much attention. The tug of war between the parlements and the crown in France was certainly not modern judicial review; but it shows a very clear sense on the parlementaire side that France’s ancient constitution constrained what could be understood as legal. And ancient-constitutionalist theory had contained the idea of limitations on the state enforceable through the state’s own legal system for many generations before the development of modern judicial review in early America. The theory of customary-legal and ancient-constitutional limitations on state power enforceable by the judiciary, evident in Coke, Mornay, the parlementaire resistance, and so on, was brought forward into the eighteenth century by Montesquieu, married to a doctrine of the status of the judicial function, and transmitted to North America.
Most readers of this blog probably know Jacob from the Conspiracy, and many also know him for his intelligent and insightful work in political theory. I always learn from Jacob's work. Download it while its hot!

Today at the University of London: Faith Community and the Common Good
    One-Day Conference: FAITH, COMMUNITY AND THE COMMON GOOD Organised by the Humanist Philosophers' Group in association with the Philosophy Programme Guest experts
      Sir Bernard Crick on Citizenship is Secular Barry Gardiner, MP for Brent North on the Widening Gyre Maleiha Malik on Identifying with the Nation: Can Minoriti es also be Citizens? Members of the Humanist Philosophers' Group Julian Baggini (Philosophers’ Magazine) Piers Benn (Imperial College) Peter Cave (Open University) Alan Haworth (University of North London) Richard Norman (University of Kent)
    Registration: £20 advance ticket, £16.50 students To register or enquire please contact Marilyn Manson at or 020 7079 3584 Chancellors Hall, Senate House, Malet Street, WC1

Friday, October 17, 2003
Must Read! Martha C. Nussbaum has a piece in the Boston Review entitled Tragedy and Justice: Bernard Williams remembered. If you have any interest in contemporary moral and political philosophy, this is a must read. It is full of concise and lucid prose that compactly describes Williams's arguments and situates them in the philosophical landscape.

Bertram on Otsuka's Libertarianism Without Inequality Over at Crooked Timber, Chris Bertram reports on Mike Otsuka's new book, Libertarianism Without Inequality. I spent a sabbatical several years ago as a visiting scholar in the Philosophy Department at UCLA, where I sat in on one of Mike's first seminars--really first rate. I look forward to the book! Here is a taste from Chris's post:
    Otsuka’s claim is that contra-Robert Nozick self-ownership, understood as a right of control over your own body, carries no implications in itself for further ownership rights over external objects. Nevertheless, he want to permit individual appropriation, but to subject it to a proviso. Nozick’s own proviso, in Anarchy, State and Utopia , is notoriously weak and permits individuals to grab parts of the world just so long as they leave other individuals no worse off than they would have been had no process of appropriation ever taken place (in other words, leave others no worse off than, say neolithic hunter-gatherers). Otsuka rightly seeks a more robust limitation, but the egalitarian proviso that he endorses, namely, that acts of appropriation should only be permitted if they leave others with an equal opportunity for welfare just looks far too strong to me. Certainly, it is going to be too strong for most people approaching the issue from a libertarian direction (even a left-libertarian one).

Recount News Here.

Rawls and the Law at Fordham in Three Weeks Rawls and the Law, November 7 & 8, Fordham University School of Law. The lineup for this exciting event includes Ronald Dworkin, James E. Fleming, Frank I. Michelman, Lawrence G. Sager, T.M. Scanlon, Charles A. Kelbley, Linda C. McClain, Marion Smiley, Susan Moller Okin, Tracy E. Higgins, Anita L. Allen, Tommie Shelby, Seana Shiffrin, Sheila R. Foster, Seyla Benhabib, Stephen Macedo, Thomas W. Pogge, Martin S. Flaherty, George P. Fletcher, Gregory C. Keating, Stephen R. Perry, Arthur Ripstein, Benjamin C. Zipursky, Anne L. Alstott, Robert D. Cooter, Thomas Nagel, Linda F. Sugin, Samuel Freeman, Abner S. Greene, David A. J. Richards, Dennis Thompson, and Michael Baur.

Araiza on the Power of Congress Pursuant to Section 5 of the 14th William Araiza (Loyola Marymount University-Loyola Law School) has uploaded Court, Congress and Equal Protection: What Brown Teaches Us about the Section 5 Power (forthcoming Howard Law Journal) on SSRN. Here is the abstract:
    As a broad statement of federal constitutional rights striking down a longstanding practice of a basic state governmental function, Brown v. Board of Education ushered in a decades-long (and still ongoing) struggle between states and the federal courts. Much of that struggle centered on the difficulty that courts, as institutions, experienced when attempting to oversee the dramatic changes Brown required in school operations. This paper considers how Congress did assist and could have further assisted the courts in this endeavor, and what this analysis suggests about the appropriate scope of Congress' power under Section 5 of the Fourteenth Amendment. It examines how Congress' particular institutional capabilities make it better able than courts to take some of the steps necessary to a full implementation of Brown's desegregation mandate. It illustrates these comparative competencies by examining the Supreme Court's decision in Milliken v. Bradley, where the Court struck down a lower court's ambitious desegregation plan, largely because of concerns of judicial overreaching, and by suggesting how congressional action would have been less vulnerable to criticism. This examination necessarily brings us to the Court's recent practice of closely scrutinizing congressional action justified under the Section 5 power. Accordingly, the paper concludes by evaluating the Court's recent Section 5 jurisprudence in light of the foregoing examination of when congressional action would have been helpful in "enforcing" Brown's mandate.
I always enjoy Bill's articles!

Liu on the DMCA and Scientific Research Joseph Liu (Boston College has posted The DMCA and the Regulation of Scientific Research (Berkeley Technology Law Journal, Vol. 18, Spring 2003) on SSRN. Here is the abstract:
    This Article analyzes the impact of the Digital Millennium Copyright Act (DMCA) on academic encryption research. In this Article, I argue that for both legal and practical reasons academic encryption researchers should be able to conduct and publish certain types of research without significant fear of liability under the DMCA. However, the DMCA will have a non-trivial impact on the conditions under which such research takes place, and this impact can be expected to have several undesirable effects. More broadly, this impact highlights the problematic way in which the DMCA regulates scientific research in furtherance of intellectual property rights. The Article concludes with a number of suggestions for mitigating some of these negative effects.

Young at UCLA
At UCLA, Ernest Young (University of Texas School of Law) presents The Ordinary Diet of the Law': Federal Preemption and State Autonomy.

International Labor Law Conference In London, Ontario, Canada, the International Labour Law Conference starts today.

Courtesy of Online Papers in Philosophy, Carla Bagnoli has a new paper entitled Phenomenology of the Aftermath: Ethical Theory and the Intelligibility of Moral Experience. Here is a taste:
    It is a matter of contention whether we need ethical theory at all. Critics argue that ethical theory does not serve any genuine purpose, and urge us to resist the temptation of theorizing when reflecting about morality. According to Bernard Williams, ethical theory is not simply irrelevant, but a misguided enterprise, whose primary purpose is not to understand our experience, but to criticize it, correct it, and explain it away. On what grounds, he asks, does ethical theory have the authority to do so? This question has become the main focus of current debates about the aims and ambitions of ethical theory. Some argue that the appeal to moral experience represents independent and autonomous evidence that suffices to counter ethical theory. Others rebut that moral experience should be interpreted on the basis of theoretical considerations, and thus cannot be used as autonomous evidence to assess the viability of ethical theory. In this paper, I will show that it is misleading to focus on the issue whether ethical theory or phenomenology is supremely authoritative. First, this approach misrepresents from the start the relation between theory and moral experience, suggesting that there is a gap between the theory and the practice of morality. Second, it misconstrues the anti-theory critique and encourages replies that are partial or question begging. The point of this critique is to suggest that there is an alternative between theory and mere prejudice, namely, a reflective stance. The issue is whether theorizing is conducive to our understanding of moral experience; and defenders of ethical theory still bear the onus of proof.

Corporate Law Conference at Vanderbilt At Vanderbilt, a conference entitled Who Makes Corporate Law? There will be papers presented by Professors Mark Roe, Marcel Kahan, Lucian Bebchuk, Guhan Subramanian, Vice-Chancellor Leo Strine, Jonathan Macey, and Robert Thompson and comments from Professors Edward Rock, Donald Langevoort, Craig Pirrong, Ehud Kamar, Edward Kitch, Steve Bainbridge, Lynn Stout, and Bill Bratton.

Conference on Sovereignty and the Right to Death at Cleveland Marshall At Cleveland-Marshall College of Law, a conference entitled Sovereignty and the Right to Death with Lauren Berlant, Robert Bernasconi, Drucilla Cornell, Simon Critchley, Costas Douzinas, Peter Fitzpatrick, Peter Goodrich, Anselm Haverkamp, Tayyab Mahmud, Achille Mbembe, J. Hillis Miller, Andrew Norris, Austin Sarat, Denise Ferreira da Silva, and Johan van der Walt, among others.

Ivanhoe at Boston University At Boston University's philosophy series P.J. Ivanhoe (University of Michigan) presents The Values of Spontaneity.

Call for Papers: Society for Applied Philosophy
    SOCIETY FOR APPLIED PHILOSOPHY ANNUAL CONFERENCE 14th - 16th May 2004 Chancellors Conference Centre, University of Manchester THEME: PUBLIC TRUST AND PRIVATE INTEREST The 2004 Conference will be held in memory of Professor Sir Bernard Williams who was an Honorary Vice President of the Society for Applied Philosophy Keynote speaker: Professor Jonathan Wolff (University College London). Others to be confirmed. CALL FOR PAPERS This conference will address philosophical issues involved in balancing the need for the public scrutiny and accountability of individuals and institutions with the rights of individuals to pursue their own private interests. We invite papers discussing topics in this area, which includes: corruption in public life, political virtues, the theory of democracy, truth and trust in public life, the funding of political parties, truth and accountability in the media, and the right to privacy of 'public figures'. Suitable papers in related areas will be considered. Papers should include an abstract of 100-150 words and should take about 20-25 mins. to deliver. Two copies of manuscripts should be sent to Dr. Piers Benn, Centre for Primary Care & Social Medicine, Imperial College London, Charing Cross campus, Reynolds Building, St. Dunstan's Road, London W6 8RP UK. The deadline for receipt of manuscripts is Friday 19th December 2003.

Call for Papers: Environmental Justice and Global Citizenship
    3rd Global Conference Environmental Justice and Global Citizenship Thursday 12th - Saturday 14th February 2004 Copenhagen, Denmark Call for Papers: Environments, Sustainability and Technologies This inter-disciplinary and multi-disciplinary conference aims to explore the role of ecology and environmental ideas in the context of contemporary society and international politics, and assess the implications for our understandings of fairness, justice and global citizenship. In particular, the 3rd Global Conference on Ecological Justice and Global Citizenship will explicitly explore the relationships between environments, sustainability and technology, the role of technology in creating possibilities for sustainable resources for the future, and the inherent problems and dangers which accompany that role. Papers, presentations, reports and workshops are invited on any of the following indicative themes; 1. GM GM as a symbol of public perceptions of the possibilities and challenges offered by technology and public understanding of risks of technological developments in relation to the environment + Expert vs. lay knowledge; Who decides? Scientists, politicians or 'the people'? + Participatory decision-making; e.g., the 'GM Nation' debate that took place in the UK in summer 2003 + Environmental ethics; relations between humans and 'nature' + 'New and emerging thinkers and trends of thought; e.g., recent books -Bill McKibben's Enough, Margaret Atwood's Oryx and Crake; other examples welcome + The role and place of Environmental protest; forms of resistance to GM, their significance and impact + The political economy of GM; trade, aid, justice, international dimensions + Technology and 'progress'; what counts as technological development? Which is more modern - GM food or organic food? + Developing countries and GM; the place of developing countries in the GM debate; the responsibility of the developers towards developing countries; whether patterns of development are predicated on wrong perceptions about the role of technology; the coverage of and access to alternative technologies 2. Cooperative and Sustainable Development + Human rights, state sovereignty and the global commons + The significance of the welfare state; the principle of distribution + Sustainable employment and cooperation between capital and labour + Property rights and private insurance vs. pooling of human and ecological resources + Transport and the environment; designing and delivering national and international transport systems; creating sustainable transport networks + Responsible consumption and corporate transparency and accountability + Communities taking responsibility for the local environment + Civil society and the role of NGOs 3. Environmental Education and Intellectual Health + Environmental issues and the curriculum; integrating environmental awareness and education in the primary, secondary and higher education sectors + The components of scholarship: discovery-research, teaching, integration and application + The emerging synthesis of perceptual psychology and ecological awareness + The humanistic model vs the ecological model + The role of the planning and design sciences + Teaching citizenship, identity and ethics + Designing the ecological curriculum + The integration of distinct disciplines; trans-disciplinary innovations 4. Citizenship, Technological Innovation & Sustainability + The deployment and mobilisation of technologies + How we engage with the various ways in which citizens (in lay or professional roles) can, are, or could be involved in the processes of achieving increased sustainability in the way they design, make and implement technologies + The social nature of technologies; + Developing understandings of user and community 'participation' in design and decision making processes + The need for greater multi- and trans-disciplinary collaboration and its essential accompanying characteristic of inter-disciplinary or joined-up thinking + Technology, buildings, cities and planning policies: the role of technology in designing and constructing buildings and cities to more sustainable effect; the impact of information technologies; knowledge management and the environment Perspectives are sought from + people engaged in actor network theory, agriculture and agricultural economics, the built environment disciplines, conflict resolution and mediation, critical geography, environmental studies, human development and ecology, industrial relations and design, philosophy and ethics, political science and international affairs, public policy and advising, social sciences, sociology of science, theology, urban studies, western European studies + people in the public and private sectors who are involved in planning and project development, policy-making and implementation, and negotiation and mediation at national and international levels + people in Governmental, inter-governmental and non-governmental organisations, voluntary sector bodies, environmental charities and groups, business and professional associations Papers will be considered on any related theme. 300 word abstracts should be submitted by Friday 14th November 2003. Full draft papers should be submitted by Friday 16th January 2004. All papers selected for and presented at the conference will be published in an ISBN eBook; selected papers accepted for and presented at the conference will be published in themed volumes. Two themed volumes from the previous conferences in this series are in press. Papers should be submitted to Dr Rob Fisher - -as an email attachment in RTF, Word or WordPerfect formats; abstracts can also be submitted in the body of the email text rather than as an attachment. Further information about the project can be found at

Conference Announcement: Socio-Legal Studies Association The annual conference of the Socio-Legal Studies Association will be held April 6-8, 2004 at the School of Law at the University of Glasgow. For information visit

Welcome to the Blogosphere . . . to Ernest Miller (of Law Meme) who now is flying solo at The Importance Of.

New Papers on the Net Here is today's roundup:
    Academic Freedom and The Obligation to Earn It Journal of Law & Education, Forthcoming Donald Weidner Florida State University College of Law Abstract:
      The article begins with a brief overview of the history of the concept of academic freedom in the United States. It then considers two principal cases suggesting that professors have no special constitutional right to academic freedom. Indeed, the cases suggest that academic freedom exists primarily in academic institutions as entities rather than in individual faculty members. Academic freedom exists, as a matter of contract and campus culture, because university faculty are perceived as seekers and tellers of truth. To continue to earn academic freedom, universities and their faculty should be accountable as seekers and tellers of truth. Within a particular institution’s mission, the truth searching should engage important social issues and be sharpened by interactions between conflicting approaches and philosophies.
    Normative Capital Formation and Capital Equipment Expensing in a Realization-Based Income Tax Charles Terry University of Illinois at Urbana-Champaign - College of Law Abstract:
      Recently, I published an article that characterized the U.S. income tax as a specialized sub-category of a true income tax and dubbed it a "realization-based income tax" (RBIT). It analyzed cost recovery theory and policy with respect to equipment. The article argued that normative cost recovery policy for a tax on capital income in such a tax base should exhibit two financial features: first, it should provide for the complete economic and financial recovery of all capital invested in equipment; and second, it should accurately measure any realized income produced by the investment in the equipment. The article evaluated various cost recovery methods and concluded that only immediate expensing produced financial characteristics consistent with those features of a normative realization-based income tax when applied to equipment purchases financed exclusively with after-tax capital. As that analysis showed, only "capital expensing" provides complete recovery of capital investment financially, and only expensing taxes realized income financially in exact proportion to the tax rate across a wide variety of financial variables. The previous article concluded that a normative realization-based income tax can and should allow a given taxpayer's investment in short-lived depreciable assets, such as equipment, to be expensed to the extent such investment is made with and offsets after-tax capital. However, that article argued that only immediate expensing produces financially normative cost recovery for such investment. This article picks up where the other one left off, and asks whether full expensing for all earnings-financed equipment purchases can ever be economically consistent with two additional norms of a realization-based income tax. Those seemingly contradictory norms are: 1) the full taxation of all invested earnings, and 2) the simultaneous formation of after-tax capital in an amount equal to whatever amount of current earnings are invested and expensed.
    Does Corporate Governance Affect Firms' Market Values? Evidence from Korea Bernard Black, Hasung Jang and Woochan Kim Stanford Law School , Korea University - Department of Finance and KDI School of Public Policy and Management Abstract:
      We report evidence that overall corporate governance is an important factor in explaining the market value of Korean public companies. We construct a corporate governance index (CGI, 0~100) for 525 companies based on responses to a Spring 2001 survey of all listed companies by the Korea Stock Exchange. We also construct five subindices for shareholder rights, board structure, board procedure, disclosure to investors, and ownership parity. In OLS, a worst-to-best change in CGI predicts an 0.48 increase in Tobin's q (about a 160% increase in share price). This effect is statistically strong (t = 6.11) Tobin's q), robust to choice of market value variable (Tobin's q, market/book, and market/sales), robust to specification of the corporate governance index, and robust to inclusion of extensive control variables. Each subindex is individually significant and contributes to the predictive value of the overall index; board structure. We also find that a firm with 50% outside directors has 0.13 higher Tobin's q (roughly 40% higher share price), after controlling for the rest of CGI. Investors appear to value the same cash flows more highly for better-governed firms, implying a lower cost of capital. In this and other governance studies, one cannot infer causation from OLS results because of the potential for reverse causation, for governance and market value to be jointly and endogenously determined by economic factors, and for governance to be a signal of (unobservable) management quality. However, several important Korean governance rules apply only to firms with assets over 2 trillion Korean won. Thus, unlike other related studies, we can construct a good instrument for corporate governance (asset size dummy variable for firms with assets over 2 trillion won), and use an instrumental variable approach to address endogeneity and signaling explanations: Two-stage and three-stage least squares coefficients are larger than OLS coefficients, are highly significant, and we find no significant evidence of reverse causation or other endogeneity. Thus, this paper offers strong evidence, not previously available, that better corporate governance in general, and 50% outside directors in particular, likely causally predict higher share prices in emerging markets.
    The Hague Convention on Jurisdiction and Judgments: The Way Forward Modern Law Review, Vol. 66, pp. 491-509, July 2003 William O'Brian University of Warwick - School of Law Abstract:
      This article analyses the proposed Hague Convention on Jurisdiction and Judgments, which has been the subject of lengthy and ongoing negotiations. The issues that continue to divide the parties centre on differences between approaches to jurisdiction broadly similar to those used in Europe, and the approach used in the United States. The most comprehensive draft of the Hague Convention starts from a European approach, but makes a number of concessions to the US approach. The United States has rejected this draft, and the parties appear to have accepted this rejection and are now discussing whether a narrower convention can be drafted upon which the parties can reach consensus. The article argues that the broad draft convention was a sound one, that it made all of the concessions to the US approach that were warranted, and that the goal of harmonising world approaches to jurisdiction in civil cases would be better promoted by adopting the broader convention, if necessary without the participation of the United States.
    The Shareholder as Ulysses: Some Empirical Evidence on Why Investors in Public Corporations Tolerate Board GovernanceUniversity of Pennsylvania Law Review, Vol. 152, 2003 Lynn Stout University of California, Los Angeles - School of Law Abstract:
      Why do investors in public corporations cede control over corporate assets and outputs to a board of directors, rather than retaining control for themselves? This Article reviews two possible explanations for why shareholders tolerate board control: the monitoring hypothesis, which posits that shareholders rely on boards primarily to control the "agency costs" associated with turning day-to-day control over the firm to self-interested corporate executives; and the mediating hypothesis, which posits that shareholders also seek to "tie their own hands" by ceding control to directors as a means of attracting the extracontractual, firm-specific investments of stakeholder groups such as creditors, executives, and employees. Part I of the Article reviews each hypothesis and concludes that each is theoretically plausible and internally consistent. As a result, the validity of each only can be established, or rejected, on the basis of empirical evidence. Part II of the Article reviews the available empirical evidence. Many aspects of contemporary corporate law and governance seem, on first inspection, consistent with either the monitoring or the mediating model. In the context of corporate control transactions, however, it is possible to distinguish between legal rules and governance structures consistent with a purely monitoring board, and rules and structures consistent with a mediating board. Part II concludes that, as a positive matter, corporate takeover law is consistent with the view that directors are not just monitors, but also perform a mediating function. Recognizing this, commentators who subscribe only to the monitoring model often argue that the legal rules that govern changes of control are flawed and should be reformed. Part II demonstrates, however, that this normative claim is undermined by other empirical evidence, especially new evidence on the charter provisions of firms involved in initial public offerings. Part III of the Article discusses some future directions for empirical research and identifies some pitfalls to be avoided. It concludes that, while the issue has not been resolved with certainty, at this point the empirical evidence favors the claim that directors do more than simply restraint executive opportunism; they also restrain shareholder opportunism, and so mediate between the firm's shareholders and other important constituencies that make extracontractual specific investments in the firm. What's more, shareholders favor this arrangement. Accordingly, the burden of proof should shift to those who would defend a purely monitoring model of the board.
    Harnessing Information Technology to Improve the Environmental Impact Review Process New York University Environmental Law Journal, Vol. 12, No. 1 Michael Gerrard and Michael Herz Arnold & Porter and Cardozo Law School Abstract:
      Since the National Environmental Policy Act was signed into law in 1970, the world has been transformed by the personal computer, the digital revolution, and the World Wide Web, yet NEPA's implementation remains stuck in the world of 1970. Environmental Impact Statements are still based on the model of the Sears catalog - a hard copy of a massive paper document that is expensive to produce and distribute, cumbersome to use, hard to store, and quickly tossed out or forgotten. For reasons we detail, this makes the process and the product of environmental review far less useful than it could be. The paper sets out the benefits of posting EISs and other environmental documents to the web, describes some of the so far haphazard federal and state efforts to do so, and argues that under NEPA itself, FOIA, the Paperwork Reduction Act, and the new E-Government Act, federal agencies are legally required to make these materials available on the Internet.
    The Color of Community Notification Daniel Filler University of Alabama - School of Law Abstract:
      The quick rise of criminal offender community notification provisions – popularly known as Megan's Laws – is among the most significant developments in late twentieth century criminal law. Over a ten year period, every state adopted regulations providing for registration and notification of a variety of criminal offenders. Despite the high profile of these provisions, commentators have thus far ignored one significant aspect of them: they have a significantly disparate racial impact on African-Americans. This article establishes the statistical and functional disparate racial effects of these provisions. It shows that, on a per capita basis, African-Americans are over-represented on Megan's Law rolls in every jurisdiction studied. It also shows that many of these provisions perpetuate historic racism within the criminal justice system. The article then explores why, despite the centrality of racial critiques in commentary about other aspects of criminal law, these concerns never surfaced in the community notification debates. Factors that may explain the silence around this issue include the narrow scope of equal protection doctrine, failures of legislatures to demand transparency about race, social phenomena such as moral panics and availability cascades, and the way in which these laws were framed as "white" regulations. Finally, it offers specific suggestions of doctrinal, legislative, and scholarly moves that make it more likely that these racial disparities will become more transparent, and thus more likely subject to full democratic discussion and debate.
    The Human Rights Dimensions of International Peace and Security and Humanitarian Intervention after 9/11 Stefan Kirchner Justus Liebig University Abstract:
      While international peace and security require the stability provided by the Westphalian system of International Law, they can at the same time be endangered by massive violations of human rights. On the other hand can Human Rights only be enjoyed in times of peace while the Westphalian system can limit the effective and universal enforcement of Human Rights in cases in which the UN Security Council has failed to take action under Chapter VII. This paper is an attempt at reconciling these needs which are at times direct against each other, at times interlinked ones with a special focus on massive violations of human rights which are not being addressed effectively by the UN Security Council. To this end, we will look at the Human Rights dimensions of international peace and security outlined above before we come to the core issue of the paper, the legality of the use of force for the protection of Human Rights in cases in which the UN Security Council fails to act, or, in other words, the question of in how far the need for universal respect for human rights can overrun the need for peace, given the links between both factors indicated above. At the end of the paper will be a suggestion for a step-by-step approach regarding the effective enforcement of Human Rights aimed at preserving international peace and security as much as possible while at the same time taking into account national and regional systems for the protection of Human Rights. Special attention will be given to the role of Humanitarian Intervention in a world dominated by the war against terrorism in the wake of the September 11, 2001, Al Qaida terrorist attacks against the World Trade Center, the Pentagon as well as in Pennsylvania.
    Constricting Products Liability: Reforms in Theory and Procedure Villanova Law Review , Vol. 48, p. 843, 2003 Frank Vandall Emory University - School of Law Abstract:
      "Constricting Products Liability" argues that expansive reforms, in theory and procedure, make it impractical for an attorney to take a small products liability case. Several defenses are examined as are the impact of the discovery process and Daubert. The role of the Restatement (Third) Products Liability and the present state of design defect, warnings, and preemption are also considered. Possible solutions are evaluated.
    Classification and Fair Treatment: An Essay on the Moral and Legal Permissibility of Profiling Deborah Hellman University of Maryland - School of Law Abstract:
      Prior to the events of September 11, 2001, there appeared to be a consensus that profiling was both legally prohibited and morally wrong. Since 9/11, that consensus has eroded. In order to determine whether the fear and uncertainty occasioned by current events have simply clouded our judgment or whether, instead, the earlier rejection of profiling was too facile, we need to better understand precisely what we mean by "profiling." More importantly, we must develop a theory that explains when profiling, so defined, violates constitutional norms. This paper takes up that task. The paper uses the term "profiling" to mean any practice or policy in which a trait or traits is used in order to identify a group of people with a different but correlated trait. Understood in this way, profiling is ubiquitous and often morally innocuous. A theory of profiling therefore must explain why the use of some group-based generalizations is problematic while reliance on others is not. This article argues that the theory embedded in current doctrine, drawn from both the requirements of the 4th amendment and the Equal Protection Clause, is mistaken in two important respects. First, current doctrine draws a distinction between individualized inquiry and group-based generalization that is illusory. Second, the doctrine puts great emphasis on the accuracy of the profile. But fit, as it is called, is far less important, both morally and logically, than the doctrine implies. Instead the article proposes that courts ought to weigh the burden imposed on the proxy class (the group defined by the profile) against the benefit to be gained by society as a whole.
    Sex Discrimination in the Nineties, Seventies Style; Case Studies in the Preservation of Male Norms Michael Selmi The George Washington University Law School Abstract:
      Contemporary sex discrimination is generally thought to have changed significantly in the last two decades, becoming more subtle and often having to do with achieving a balance between the demands of work and home life. This paper presents case studies of class action lawsuits alleging sex discrimination that have been filed in the last decade. Those lawsuits have targeted specific industries, grocery stores and brokerage firms, and practices, sexual harassment, and these cases challenge the common perception that discrimination has become more subtle and less pervasive. These cases typically involve overt discriminatory practices based on sexual stereotypes, and can also be explained as efforts by male employees and management to preserve male norms. The paper describes the cases and also seeks to explain the cases as a form of harassment designed to preserve male advantages in the workplace.

Thursday, October 16, 2003
Pratt on the Deductability of Fertility Treatment Katherine Pratt (Loyola Marymount University-Loyola Law School) has a very interesting article, Inconceivable? Deducting the Costs of Fertility Treatment, just up on SSRN. Here is the abstract:
    This article considers whether infertile taxpayers can deduct their fertility treatment costs as medical expenses, under current law, and whether they should be able to deduct them. The thesis of this article is that the cost of fertility treatment is and should be deductible as a medical expense, in part because of the vital importance of reproduction to most people. I.R.C. section 213 provides that medical expenses include costs incurred for "the diagnosis, cure, mitigation, treatment, or prevention of disease, or for the purpose of affecting any structure or function of the body." The characterization of fertility treatment costs as medical expenses is controversial. The IRS has recently taken the position that some types of fertility treatment expenses are deductible. On the other hand, the IRS has taken the position in litigation that surrogacy expenses are not deductible as medical expenses, arguing that surrogacy does not satisfy the second, "structure or function" prong of the medical expense definition because the surrogate, not the taxpayer, bears the child. Surrogacy costs are medical expenses, however, under the first, "disease or condition" prong of the definition, because the surrogate is acting as a substitute for the taxpayer's dysfunctional reproductive system. Under section 213, the term "medical expense" is defined by reference to a baseline of normal biological functioning, which includes reproductive and sexual functioning. Most people conceive and bear children without having to incur expenses for fertility treatment. Expenses incurred to try to return to or approximate the baseline of normal reproductive health are deductible, even if the taxpayer winds up "better off," with a child, after the fertility treatment. Infertility is a loss, just as a broken leg is a loss. Some have argued that the costs of fertility treatment should not be deductible because people can lead a "normal" life without having children. On the other hand, people who desperately want to bear a child, but cannot because of a physiological condition, are not leading a "normal" life. Given the existence of the medical expense deduction, taxpayers should be able to deduct the cost of fertility treatments, including IVF, egg donor, and surrogate procedures. Similarly, they should be able to deduct the costs of medical care for sexual dysfunction, such as Viagra (which, from a normative perspective, is similar to fertility treatment), and other types of medical care that facilitate reproductive choice. Reproduction is extremely important to most people and the elasticity of demand of fertility treatment is likely low. In addition, allowing taxpayers to deduct the costs of various types of fertility treatment will: (1) encourage infertile taxpayers to elect the most effective treatment option, which in some cases is an IVF procedure, but in other cases is an egg donor or surrogate procedure; and (2) ironically, reduce the rate of risky multi-fetal pregnancies.
Surely Pratt is right!

More on the Recusal Fence
    Following Up My post earlier today, Sitting on the Recusal Fence, generated quite a bit of email and blogospheric reaction. This post collects some bits and pieces that may be of interest.
    Bogart Disagrees Attorney/philosopher John Bogart writes:
      I think you and Volokh have this wrong. A judge who believes that his decisions create an appearance of unfairness has a duty to recuse. That duty does not depend on the outcome of the case or voting. The appearance does not follow from the votes of other judges (or justices) but from that judge or justice. To the extent a judge considers the voting and outcome and decides the recusal on that basis, the judge is in fact engaging in exactly the sort of conduct which the duty seeks to avoid.
      What you seem to suggest is that Scalia first calculate the outcome of the case and then decide if his participation creates an appearance of unfairness. Do you draw the line at active efforts to determine the outcome of the case? If it is mere guessing on general attitudes, it is pretty much pointless. If it is more, either he is attempting to influence the outcome, or other judges need to recuse themselves. As I am in the middle of getting expert reports out, I have not given this enough thought, but that's the risk of blogging.
    As is usually the case, John has excellent points, but I do have one very minor quibble. I don't think there is a duty of political morality to recuse merely because of an appearance of unfairness. Recusal because of the appearance (as opposed to the realisty) of unfairness ought to be conceived as a matter of prudence rather than duty.
    Anderson on the Ethics of Getting Off the Fence From Thus Blogged Anderson, Andy Lowry has this interesting comment:
      Not to play devil's advocate, but I'm not entirely convinced that a justice has any ethical obligation or duty to figure out the consequences of her or his recusal before deciding on it ... rather the opposite. The entire point of recusal is to play no part in the decision of the case. If you're recusing with an eye to the outcome, then you're recusing only formally, not ethically. Fiat justitia, ruat caelum. Not a very pragmatical sentiment & hence unfashionable, but there it is. Of course, as long as recusal is up to the discretion of the justice in question, there's no way to police these things. But clarity about what's the right thing to do can assist those justices who aren't Richelieus. (Wanted to give Machiavelli a rest, but what's the adjective of Richelieu?)
    Just a quick comment on this. No one is suggesting that a judge should use recusal to get the outcome the judge would desire for an improper reason. Thus, a judge would clearly be unethical to reason:
      "I have prejudged this case & want outcome X. Recusal will increase the likelihood of X, and therefore I will recuse myself."
    But except for wild hypotheticals, there is no real-world worry about this kind of scenario. Recusal takes your vote out of the mix, and hence is likely to disfavor the outcome in favor of which the recusing judge has an improper motive or reason. It just can't be the case that the "entire point of recusal is to play no part in the decision of the case," because recusal is part of the decision of the case.
    More on Ties For those with an interest in ties in the Supreme Court, here are two law review articles that are quite helpful:
    • Edward A. Hartnett, Ties in the Supreme Court of the United States, 44 Wm. & Mary L. Rev. 643 (2002).
    • William L. Reynolds & Gordon G. Young, Equal Divisions in the Supreme Court: History, Problems, and Proposals, 62 N.C. L. REV. 29 (1983).

Klerman at Stanford At Stanford's Olin series, Dan Klerman (University of Southern California Law School) presents The Value of Judicial Independence: Evidence from Eighteenth-Century England.

Van Alstyne at San Diego At the University of San Diego, William Van Alstyne presents Federalism Decisions and the Rehnquist Court.

Baker at NYU At NYU's Colloquium in Legal, Political and Social Philosophy, Edward Baker (University of Pennsylvania) presents an excerpt from Constitutional and Philosophical Foundations of Libertarian Socialism.

Hylton at Boston University At Boston University, Keith Hylton presents Products Liability and Preemption: A Positive Theory.

Lichtman at Michigan At the University of Michigan's Law and Economics series, Doug Lichtman (Chicago) presents Rethinking Prosecution History Estoppel.

Moore at George Mason At George Mason, Kimberly Moore (GMU School of Law) presents David & Goliath in the U.S. Patent System.

Tarlock at Florida State Today and tomorrow at Florida State, Daniel Tarlock (Chicago-Kent College of Law) presents Hyper-rationality in the Age of Chaos: The Case of the U.S. Army Corps of Engineers.

Broughton at Yale At Yale Philosophy, Janet Broughton presents Hume's Naturalism.

MacCoun at Northwestern Update: At Northwestern, Robert MacCoun (University of California, Berkeley, School of Law) presents The Varieties of Marijuana Prohibition: Do Laws Influence Drug Use?.

The Pacific Northwester Political Science Association Starts Today in Vancouver In Vancouver, British Columbia, thePacific Northwest Political Science Association Annual Meeting today through the 18th.

Association for Feminist Ethics and Social Theory in Clearwater Beach Today through the 19th, the Association for Feminist Ethics and Social Theory meets in Clearwater Beach, Florida.

Call for Papers: International Justice
    International Justice - Benefit Sharing with Developing Countries Workshop to be held at ISSEI 2004 2 - 7 August 2004 University of Navarra, Pamplona, Spain During our workshop, we would like to explore three themes: 1) Theoretical ideas and models of distributive justice that could be applied to benefit sharing with developing countries. 2) Critical and constructive comments on the Bonn Guidelines of the Convention on Biological Diversity and the Human Genome Project Ethics Committee's Statement on Benefit Sharing. 3) Explorations of the concepts of "community", "benefits", "participation" and "representation", which are essential to the practical side of benefit sharing agreements. Selected papers of this workshop will be published in a special journal issue (international, peer-reviewed). We are also seeking funding from the European Commission to provide places for speakers from developing countries. Please send an abstract of no more than 300 words to Doris Schroeder ( Deadline: 15 December 2003. More information on ISSEI can be found at More information on our workshop at,%20Doris.htm This workshop will be organised jointly by Dr. Miltos Liakopoulos (European Academy for Technology Assessment, Germany) and Dr. Doris Schroeder (Centre for Professional Ethics, Preston, UK). Please feel free to email us with any inquiries or to discuss topics.

Conference Announcement: Virtue Epistemology at Stirling
    At the University of Stirling, a conference on Virtue Epistemology, is scheduled for the weekend of November 20th-21st, 2004, to coincide with Professor Greco's visit in the Autumn. Confirmed speakers for this conference so far include: Edward Craig (Cambridge), Jonathan Dancy (Reading), John Greco (Fordham), Susan Haack (Miami), Chris Hookway (Sheffield), Alan Millar (Stirling), David Owens (Sheffield), Ernest Sosa (Rutgers) and Rene van Woudenberg (Free University, Amsterdam). This conference is funded by The Philosophical Quarterly. The proceedings from the conference will be published in a special issue of Philosophical Studies.

Wednesday, October 15, 2003
Sitting on the Recusal Fence
    Introduction Justice Scalia has recused himself in Newdow, the pledge-of-allegiance case. Scalia's decision was based on public comments he made in reaction to the Ninth Circuit decision. Although Scalia's criticisms of the Ninth Circuit probably did not require recusal, they certainly provided a reasonable basis for Scalia's decision not to participate. Whenever an odd number of Justices recuse themselves when the Court is at full strength, the recusal creates the possibility of a tie. And the well-settled rule is that ties result in the affirmance of the lower court (United States Court of Appeal or state court--usually but not always, state supreme court). This affirmance does not have precedential effect, but the lower court decision retains whatever precedential effect it had before Supreme Court review. Thus, in the pledge case, affirmance by an equally divided court would result in the Ninth Circuit decision having binding vertical stare decisis effect in the Ninth Circuit. (Federal trial courts would be bound by the decision, but state courts would not be bound.) Eugene Volokh posted this morning on the relationship between possible ties in the Supreme Court and the recusal decision. Should a judge take the likelihood of a tie into account in making the decision whether to recuse him or her self? Volokh makes the point that the general possibility of a tie surely is a proper basis for recusal. The really interesting question is whether the judge should take into account the likelihood of a tie in the particular case. As Volokh wrote:
      My post was quoting a suggestion that Scalia might be considering the risk of a 4-4 split in the particular case in deciding whether to recuse. But I think that while there's a potential difference here, it's not that great. It seems to me that the purely hypothetical reasoning that was speculatively assigned to Scalia is just as legitimate as that which Rehnquist publicly gave in his opinions; and it seems that this reasoning is not implausible, though I have no idea whether it's accurate.
    I think Eugene is right about this, as a matter of judicial morality. And who knows what Scalia was actually thinking! But there are some interesting issues raised by Volokh's post that are worth some further exploration.
    Further Thoughts About Recusal and Ties So how should knowledge about the likely configuration of votes affect the recusal decision. Here are few additional thoughts:
    • Judges inevitably will consider the possibility of a tie in the particular case. How could they not? Even if Justice Scalia tried to exclude consideration of the possibility of a tie in the particular case, he can hardly forget what he knows about his colleagues and their general dispositions. That knowledge will inevitably affect his deliberative processes--and if, based on his knowledge of the case, a tie seems like a real possibility, it will inevitably increase the salience of a possible tie as a negative factor, counseling against recusal.
    • There is, however, a countervailing factor. When a tie is likely, it also provides a reason that counsels in favor of recusal. In a case where the decision of the Supreme Court is likely to be lopsided (7-2, 8-1, 9-0) and the reasons for recusal are not compelling, participation in the case is unlikely to do harm. If the Justice who is sitting on the recusal fence, does not get off on the side of nonparticipation in a lopsided case, the Justice's participation in the case is unlikely to create a perception of unfairness. If Scalia had not recused himself and the pledge-of-allegiance decision came out 7-2 to reverse the Ninth Circuit with Scalia in the majority but not writing an opinion, it would be difficult to claim that the outcome was produced by an unfair process. But if Scalia participates and the decision is 5-4, with Scalia as the swing vote, the perception of unfairness would surely be enhanced. Even worse would be a Bakke scenario, with a four-one-four configuration of Justices, and Scalia providing the middle/swing vote, and hence the narrow ratio decidendi that effectively becomes the holding of the case for the purposes of vertical stare decisis. Again, the perception of prejudgment being the cause of the outcome would be enhanced--whether true or false.
    • And there are further complexities. For example, ties on some issues aren't terribly damaging, because regional circuit variations on some sorts of issues are relatively inexpensive. Different circuits have their own rules of courts, and on minor procedural matters, there is no reason for national uniformity. Some of the issues that come to the Supreme Court do not require a uniform national rule. And the very fact that there is a 4-4 tie in the Supreme Court is some evidence for the proposition that the position that would be affirmed by an equally divided court is a reasonable one. On the other hand, there are other issues, where there are compelling reasons for national uniformity. It is particularly undesirable for a federal regulatory scheme or criminal statute to have fundamentally different applications in different circuits. So the decision whether to recuse one's self might depend in part on the harm that might be inflicted by failure to resolve a circuit split (or split between or among the circuits and the state supreme courts).
    • And recusal sometimes has the opposite effect on the likelihood of a tie. When the Supreme Court is not at full strength and has an even number of judges, then recusal may actually decrease the likelihood of a tie vote. If the Court is divided 4-4, and one judge recuses him or herself, then we have a 4-3. Should the recusing judge take this into account? Logically, it would seem that if recusal increasing the likelihood of a tie is a factor in the decision whether to get off the recusal fence, then decreasing the likelihood of a tie should also be a factor. But somehow the two situations do not seem the same, or at least my intuitions seem to become cloudier in this second sort of case.
    Getting Off The Fence So back to Eugene's point, it seems to me that a judge making a recusal decision both must and should take the circumstances of the individual case into account. When a judge is on the recusal fence (with a reasonable case to be made, both for and against recusal), practical judgment inevitably comes into play. When assessing the complexities of the particular situation, the judge cannot purge her consciousness of her knowledge of the case and her colleagues, and she really shouldn't try. Judges have a duty to recuse themselves when they cannot decide fairly, but they sometimes should recuse themselves to avoid the appearance of unfairness, and the possibility of a tie may factor in that judgment.
    Of course, members of a court are unlikely to be perfect predictors of the votes of their colleagues. And some judges are likely to be better at this than others. And the likelihood that a particular judge might be the swing/tie-breaking vote is just one of many factors that should figure into the decision whether to get off the recusal fence.
    Read Volokh's fine post.

Brian Barry at the University of London Today at the University of London, Brian Barry (Columbia) presents Does Responsibility Undermine Equality?.

Schizer at Northwestern Today at Northwestern University School of Law, David Schizer (Columbia University Law School) presents Scaling Up and the Taxation of Risky Investments: Derivatives and the Search for Practical Applications.

Yen on Aggressive Copyright Claims Alfred Chueh-Chin Yen (Boston College - Law School) has posted Eldred, the First Amendment, and Aggressive Copyright Claims (forthcoming Houston Law Review) on SSRN. Here is the abstract:
    This Essay studies the effect of Eldred v. Ashcroft on the treatment of aggressive copyright claims. Aggressive copyright claims test the boundaries of copyright by urging courts to adopt unconventional or novel readings of doctrine that would extend copyright well beyond its core of preventing individuals from reproducing the copyrighted works of others. Accordingly, aggressive copyright claims are often made against defendants who have done more than simply "parrot" a copyrighted work. These defendants have generally added meaningful work of their own, whether in the form of comment and criticism, significant reworking of the plaintiff's material, or new material unrelated to the copyrighted work. At their most extreme, aggressive copyright claims assert that almost any borrowing from a copyrighted work constitutes actionable infringement. Aggressive copyright claims are interesting because they illustrate the tension between copyright and the First Amendment. A defendant who combines original speech with material borrowed from a copyrighted source may commit infringement, but this does not mean that no free speech problems exist. Copyright judgments generally include injunctions that effectively prevent the defendant from publishing or disseminating any original speech contained in the infringing work. Aggressive copyright claims often raise significant First Amendment problems because they tend to be brought against defendants whose alleged infringements contain a significant amount of new speech. Unfortunately, courts have been overly receptive to aggressive copyright claims, at least in part because conventional wisdom states that courts can safely ignore First Amendment concerns in copyright because copyright doctrine somehow "naturally" takes account of First Amendment values. The Essay criticizes this conventional wisdom because it supports the success of aggressive copyright claims that do little to advance copyright's fundamental purposes. It goes on to argue that conventional wisdom must be changed, and that the Supreme Court has begun this process by recognizing the First Amendment's importance to copyright in the Eldred opinion. The Essay concludes by showing how proper recognition of the First Amendment in copyright affects the treatment of aggressive copyright claims.
Yen's work is always interesting!

Two Classics On Notre Dame Philosophical Reviews, Mark Timmons has a Review of H.A. Prichard's Moral Writings and W.D. Ross' The Right and the Good There are both classic works of twentieth century moral philosophy. Here is a taste from the Timmons review:
    The philosophical story of H. A. Prichard (1871-1947) and W. D. Ross (1877-1971) is the story of intuitionism’s progress from the rather bare bones statement of this metaethical position that we find in Prichard to the fairly well fleshed out version that we find in Ross. Prichard and Ross were members of the same circle of Oxford intuitionists (led by Prichard) that included H. W. B. Joseph, E. F. Carritt, and John Laird, a circle that perhaps represents the glory days of British intuitionism. Prichard published remarkably little: only two lectures and two papers in moral philosophy, the most famous being his widely anthologized paper, ’Does Moral Philosophy Rest on a Mistake?’, published in 1912. However Prichard is reported to have written much that he never published--writings that were nevertheless circulated among his colleagues over whom he apparently had substantial philosophical influence. In his short preface to The Right and the Good, for instance, Ross claims that his ’main obligation’ is to Prichard who, he says, wrote ’exhaustive comments and criticisms’ on the book in manuscript form. Intuitionism’s progress was interrupted in the mid-1930s with the publication of A. J. Ayer’s Language, Truth, and Logic in which Ayer, in opposition to intuitionism, defended a version of emotivism, signaling noncognitivism’s initial volley that was followed by wide-spread rejection of intuitionism. (However, intuitionism continued to find some able supporters such as A. C. Ewing in the 1940s.) But at the start of the twenty-first century we now see a revival of intuitionism in the work of Robert Audi,1 Russ Shafer-Landau,2 and in a new collection of essays, Ethical Intuitionism: Re-evaluations (Oxford, 2002), edited by Philip Stratton-Lake. So the story of intuitionism’s progress continues and this is what makes these new editions of Prichard’s moral writings and Ross’s book particularly welcome.

Two by Claire Hill Claire Hill (Georgetown University Law Center) has two new papers up on SSRN:
    Beyond Mistakes: The Next Wave of Behavioral Law and Economics Queen's Law Journal, Vol. 29, Issue 2, 2004 Abstract:
      In this essay, which was presented as the Galway Lecture at Queen's University, Kingston, Ontario, I argue that law and economics has largely neglected a critical facet of human cognition: the process by which people make sense of the world. People make sense of the world by categorizing - by labeling, sorting and organizing their experiences to form their worldviews. Categorization has been extensively studied in the cognitive psychology literature. Law and economics gives short shrift to the process of categorization because it typically assumes that there is often a correct "sense" to be made: a "fact of the matter" agreed to be such by "society." A car is a lemon or it is not; the car dealer is lying or she is not; a corporate officer "conceals" "bad news" about her company while she sells many of her shares or offers new shares to the public; the renter of a car "treats the car badly" because she's returning it the next day. Behavioral law and economics thus far hasn't helped matters; it also assumes that there is a "fact of the matter." The jury asked to assess liability for an accident determines that because the accident happened, it is more likely "than it actually was." Similarly, a person making a car purchase decision concludes Volvos are less safe than "they really are" because he heard about 3 crashes last week in which Volvos were involved. I discuss examples, from others' work and from mine, in which there isn't a clear societal consensus as to the "fact of the matter," and understanding the process by which people categorize to form their beliefs can therefore be a helpful component of our analysis. The examples come from such disparate fields as racial discrimination, disclosure policy, and corporate governance, as well as norms and expressive law. Among the features of categorization that are particularly relevant are the following. Categories are constructed around prototypes (the car is the prototypical vehicle, perhaps): the prototype is the "typical" case, but there are many penumbral cases (a motorcycle sidecar?). We categorize as much or more to help us organize our lives as to "get it right." (We have categories such as "things I look for in a job," "things I need to take on a trip" or "things politician X (or business associate Y or friend Z) is capable of." Apocryphally, the Inuits have far more categories for "snow" than people living in warmer climates have.) Categorizations can be finer or coarser grained, depending on our needs. All else equal, the more members of a particular race we know and encounter regularly, the more fine-grained our categorizations concerning members of that race are apt to be. Who has only one prototype of their own race? By contrast, a person might very well have only one prototype of a race whose members she very rarely encounters. How might this affect employers and employees? What belongs in a category, and what categories we have, is also not given. How does a corporate director decide what (types of) possible misbehavior of corporate officers to look for? How might we appraise what will be most effective at changing norms as to what is status-conferring: will people respond to something's being made more costly, or will the added costliness only add to the thing's status-conferring ability? What disclosures might make investment options easier to compare? (More basically, how do people assemble the choice sets from which they choose their investments?) The approach I've described differs profoundly from the bulk of the behavioral literature to date. Most of the behavioral literature discusses people who are reaching sub-optimal outcomes. The approach I'm discussing contemplates that we may or may not know whether the result is a mistake, and often, our best guess is that it is not a mistake. And the focus of the explanation is on the behavior at issue as a neutral fact about the world, not on its status "as a mistake;" consistent with the more traditional law and economics paradigm, people are doing the best they can to advance their own interests, albeit confronting rather different obstacles to doing so than they do in traditional law and economics analyses.
    Regulating the Rating Agencies Washington University Law Quarterly, Vol. 81, Issue 4, January 2004 Claire Hill Georgetown University Law Center Abstract:
      Until four days before Enron declared bankruptcy, its debt was still rated "investment grade" by the major credit rating agencies, suitable as a safe investment for a conservative investor. Clearly, four days before Enron declared bankruptcy, its debt was highly speculative - "junk." The furor over Enron, WorldCom and other recent debacles has led to calls for regulatory change in a number of industries; the rating agency regulatory regime is being revisited as part of this effort. The regulatory regime requires or encourages many investors, especially institutional investors, to buy debt securities highly-rated by a rating agency which has been designated by the SEC as a "Nationally Recognized Statistical Rating Organization" (NRSRO); at present, only 4 such agencies exist. There is significant market concentration in the rating agency industry - even more than the existence of only 4 NRSROs suggests. Two of the agencies, Moody's and Standard & Poor's, dominate the market; it is the norm for most issuers to get ratings from both agencies. The regime does not impose substantive oversight over rating agencies. Some critics blame the market concentration and the rating agencies' poor performance in Enron (and, they say, more generally) on the regulatory regime. These critics argue that what rating agencies are doing is not selling the information their ratings ostensibly provide; rather, they are selling favorable regulatory treatment. Such critics favor largely scrapping the regulatory regime. I argue that, to the contrary, ratings do provide information, although they might provide better information if the rating agency industry were more competitive and rating agencies couldn't rest on their laurels. Indeed, there is considerable evidence that rating agencies arrive at correct ratings in the normal course, although the agencies clearly have difficulty with "exceptional" situations such as Enron and the Asian Flu. I argue, too, that while the present regulatory regime probably ought to be scrapped eventually, doing so immediately might have an opposite effect to the one intended, further entrenching Moody's and Standard & Poor's. No matter what regulatory changes are made, it won't be easy for a new rating agency to be established or gain a significant presence in the market. Market and institutional forces might have dictated market concentration even in the absence of the regulatory regime; that all debt should be rated along a single metric is apparently something markets value, and an agency with the resources to rate all debt is likely to be large. A long-standing reputation is of considerable value as well, especially since the rating agency can't feasibly offer monetary "guarantees" of the caliber of its work. Moreover, agents who make the investment decisions, as well as the firms purchasing ratings, have every incentive to stick with the tried, true, and court- and market-vetted rating agencies. Recognizing that the market may still remain quite concentrated, regulatory reform should encourage rating agencies to be more responsive to the needs of market participants. One promising suggestion contemplates creation of a public forum in which market participants would comment on rating agencies' performance. Less promising are suggestions to begin substantive oversight of rating agency business operations, and to increase the ability of investors and others to sue rating agencies. Finally, conflicts of interest may become a significant problem, especially if the market becomes much less concentrated; interestingly, market concentration in the rating agency industry and, in particular, the two-rating norm, may have prevented ratings from becoming as inflated as accounting reports were false and misleading. Among the solutions that should be considered is an annual certification by rating agencies that they are operating in accordance with procedures to guard against conflicts.

Hammond on Expectations and Consent Celester Hammond's article The (Pre) (As) Sumed "Consent" of Commercial Binding Arbitration Contracts: An Empirical Study of Attitudes and Expectations of Transactional Lawyers has just become available on Westlaw. Here is a taste:
    Traditional legal education focuses on dispute resolution through the litigation system, rather than on transactions and planning, which leads lawyers to expect that the rule of law is the basis for our system of justice. The ascendancy of the "rule of law" versus "rule of men" is based as much on the need for predictability and its function to mold behavior as the belief that justice is better served. To the extent that "folklore arbitration" does not require application of substantive rules of law, has no judicial review, and is secretive, it does not support this tradition. Heinrich Kronstein, perhaps cynically, examines the power of an association like the AAA or the International Chamber of Commerce, both of which he would term "institutional arbitration," to appoint the arbitrators, to appoint the place of the hearing and to determine other aspects of the arbitration. He criticizes this development, "[i]n the name of freedom of contract courts have given arbitrators the power to determine the legality of a contract, and in addition have conferred on them the power to develop and systematize new 'rules,' outside of and uncontrolled by courts, yet applicable in entire fields of business." He complains that "they consider as 'law's' principle task the bestowal of a legal blessing upon the fullest utilization of a freedom-of-contract concept as formal and as empty of substance as such freedom can be."

Practical Reason Courtesty of Online Papers in Philosophy, Jay Wallace has a new entry in the Stanford Encyclopedia of Philosophy entitled Practical Reason. Here is a taste:
    Practical reason is the general human capacity for resolving, through reflection, the question of what one is to do. Deliberation of this kind is practical in at least two senses. First, it is practical in its subject matter, insofar as it is concerned with action. But it is also practical in its consequences or its issue, insofar as reflection about action itself directly moves people to act. Our capacity for deliberative self-determination raises two sets of philosophical problems. First, there are questions about how deliberation can succeed in being practical in its issue. What do we need to assume — both about agents and about the processes of reasoning they engage in — to make sense of the fact that deliberative reflection can directly give rise to action? Can we do justice to this dimension of practical reason while preserving the idea that practical deliberation is genuinely a form of reasoning? Second, there are large issues concerning the content of the standards that are brought to bear in practical reasoning. Which norms for the assessment of action are binding on us as agents? Do these norms provide resources for critical reflection about our ends, or are they exclusively instrumental? Under what conditions do moral norms yield valid standards for reasoning about action? The first set of issues is addressed in sections 1-3 of the present article, while sections 4-5 cover the second set of issues.

Call for Papers: British Society for Ethical Theory
    The BRITISH SOCIETY for ETHICAL THEORY 2004 CONFERENCE UNIVERSITY OF KENT, CANTERBURY 12-14 JULY, 2004 Invited Speakers: Brad Hooker and Alan Gibbard Papers are invited for the annual conference of the British Society for Ethical Theory, to be held at University of Kent, Canterbury. The subject area is open within metaethics and normative ethics. Papers on topics in applied ethics or the history of ethics may also be considered provided they are also of wider theoretical interest. Papers, which should be unpublished at the time of submission, should be in English, no longer than 6500 words, readable in at most 45 minutes and in a form suitable for blind review. Please send two copies of the paper, and supply your full name, address (electronic as well as postal) and academic affiliation on a separate page. Please tell us if you are a postgraduate student. Submissions from postgraduates are encouraged as our aim is that some such should be represented at the conference. Those who submitted papers for our previous conferences - successfully or otherwise - are welcome to submit again (though not of course the same papers!). Selected conference papers will be published in the journal "Ethical Theory and Moral Practice". Please make clear in any covering letter whether you want your paper considered for publication here as well as for the conference programme. The deadline for submissions is 8th December 2003. Papers should be received by this date (i.e. it is NOT a postmark deadline). We prefer papers and particulars to be sent electronically. Please send papers by attachment to: Alternatively, please send two paper copies, plus disk with paper in Word format, to: Dr Simon Kirchin Philosophy Section, SECL, Cornwallis Building, Universityof Kent Canterbury, CT2 7NF UK

New Papers on the Net Here is today's roundup:
    The Boston Legal Aid Society: 1900-1925 Massachusetts Legal History, Vol. 9, 2003 Mark Spiegel Boston College - Law School Abstract:
      This article examines the history of the Boston Legal Aid Society from its founding in 1900 through 1925. In so doing I explore why was Boston Legal Aid started. Depending upon what sources you consult the Boston Legal Aid Society was either the third or fourth legal aid organization started in the United States. The first was New York in 1876 and the second was in Chicago, in the 1880's. My question is why Boston in 1900? What were the forces that led to the founding of this organization at that point in time? Was it part of the effort of elite lawyers to legitimize their representation of corporate interests? Was it related to other social service efforts in Boston? Or was it an outgrowth of the Progressive movement? The second question I explore, which is related to this first question, is what goals did the Boston Legal Aid Society see itself pursuing. Was it simply another charitable organization? Was its goal access to justice or did it see itself as accomplishing substantive social reform? In answering this question, I explore the work of the Boston Legal Society during these first twenty-five years. I look at the kinds of cases it accepted and its methods of handling its cases. In examining the work of the Boston Legal Aid Society I discover a significant shift in the type of work and its attitude toward the work. In its early years Boston Legal Aid Society fit the image of a traditional legal aid society. It viewed providing legal services as charity and did not see substantive social reform as a legitimate part of its agenda. However, post 1913, a shift occurred. Reginald Heber Smith, author of Justice and the Poor, became its General Counsel. Although the Society continued to do individual casework, it also began engaging in what Smith call preventive law. The Boston Legal Aid Society was willing to be aggressive in bringing legislative proposals and engage in law reform efforts, as well as having a commitment to community education. Post World-War I, however, the work of the Boston Legal Aid Society returned to a more traditional type of legal aid that focused primarily on domestic relations cases. This history of the first twenty five years of the Boston Legal Aid Society reveals there are contradictory impulses that have been part of legal aid from the beginning and that perhaps will always be with us. It also illustrates that legal aid has a more progressive past than has been commonly thought and perhaps we still have lessons to learn from that past.
    'Mind with Mind and Spirit with Spirit': Lord Denning and African Legal Education Journal of Law and Society, Vol. 30, pp. 376-399, September 2003 John Harrington and Ambreena Manji University of Warwick - School of Law and University of Warwick - School of Law Abstract:
      Lord Denning played an important role in the establishment and development of legal education and lawyers' training in Africa from the late 1950s onwards. By exploring this involvement it is possible to add to existing work on Denning's vision of the role of law and legal professionalism. In post-colonial Africa, order and stability were best assured by a cadre of lawyers imbued with the virtues characteristic of English practitioners over the centuries. These ineffable qualities could only be apprehended through direct contact with English lawyers and, to a lesser extent, law teachers. These views are born of the tension between universalism and nationalism in Denning's legal thought.
    Nodal Governance, Democracy, and the New 'Denizens' Journal of Law and Society, Vol. 30, pp. 400-419, September 2003 Clifford Shearing and Jennifer Wood University of Toronto and Australian National University - Faculty of Law Abstract:
      We begin this paper by reviewing some recent transformations in governance. We then propose three new concepts that we believe assist us in coming to terms with these transformations and the political statuses that have emerged as part of them. These concepts are 'nodal governance', 'denizens', and 'communal space'. Following this we will explore the normative implications of nodal governance as it has taken shape to date, with an emphasis on the 'governance disparity' that is paralleling the 'wealth disparity' across the globe. In response to this disparity, we will end with an outline of a normative vision and practical programme aimed at deepening democracy in poor areas of South Africa, Argentina, and elsewhere. We will argue that the main virtue of nodal governance, namely, the emphasis on local capacity and knowledge can be retrieved, reaffirmed, and reinstitutionalized in ways that enhance the self-direction of poor communities while strengthening their 'collective capital'.
    Rationing Criminal Defense Entitlements: An Argument from Institutional Design Columbia Law Review, Vol. 104, April 2004 Darryl Brown Washington and Lee University - School of Law Abstract:
      This essay takes as its premise that the widespread and long-term underfunding of indigent criminal defense is, for practical purposes, a permanent fixture of the political and constitutional landscape. From this assumption, it makes two points, one theoretical, the other practical. The theoretical point is that consistent underfunding of constitutional entitlements can be a legitimate legislative response to judicial specification of constitutional rights. Courts define constitutional rights, but many of those entitlements are unfunded mandates to legislatures. Entitlements such as the right to defense counsel, require money to become reality. Legislatures have responded by underfunding those rights, yet have not specified how limited funds should be allocated - that is, how rights should be rationed. The Supreme Court, in fact, has to a large degree barred legislatures from doing so through constitutional criminal procedure rules. This legislative-judicial dynamic implicitly delegates, largely to defense attorneys but also to trial judges, the task of rationing rights that cannot be implemented as fully as formal judicial pronouncement implies. This ongoing interaction between courts, legislatures and the defense bar (aided by trial judges) looks like a species of Dorf and Sabel's "democratic experimentalism," a model that describes a broad array of government actions that define constitutional and sub-constitutional law. Here the twist is that private actors - defense attorneys - have a large hand in constructing the real, working content of constitutional entitlements. Given this weighty task, the essay sketches a set of practical guidelines by which defense counsel and other trial-level actors can most sensibly implement the job of rationing rights that has been delegated to them. This essay proposes a set of default rules grounded on two core principles: priority to factual innocence over other instrumental goals of criminal procedure, and a harm-reduction principle that gives preference to suspects facing greater potential punishments. A set of default rules, drawn largely from the study of wrongful convictions, provides practical guidance for implementing these principles. This practice substantively revises the real meaning of constitutional entitlements and leaves some defendants indisputably with less than judicial pronouncements of constitutional law imply. But when rights are underfunded, that outcome is inevitable, as longstanding practice demonstrates. Explicitly confronting funding limits and allocating rights in light of them yields a more coherent, defensible allocation of entitlements.
    Directors' Duties to Creditors: Contractarian Concerns Relating to Efficiency and Over-Protection of Creditors Modern Law Review, Vol. 66, pp. 665-699, September 2003 Andrew Keay University of Leeds - Department of Law Abstract:
      There is case law to the effect that when companies are in financial difficulty directors owe a duty to take into account the interests of their companies' creditors. This article examines the primary reasons why contractarian theory, as applied by the law and economics school, is opposed to the existence of such a responsibility, namely it undermines efficiency and creditors can take measures in order to protect themselves adequately. The article asserts that efficiency cannot alone determine whether a duty should or should not be imposed on directors. Another critical value, fairness, must also be considered, and this value justifies the duty on the basis, inter alia, that many creditors are not able to protect themselves adequately, or at all by contracting, and are deserving of the limited protection that the duty would bring. In any event, it is submitted that a duty to creditors would enhance efficiency in some respects and warrants consideration on that basis.
    The Alchemists' Search for the Philosophers' Stone: The Status of Registered Social Landlords under the Human Rights Act Modern Law Review, Vol. 66, pp. 700-725, September 2003 Jill Morgan University of East Anglia - Norwich Law School Abstract:
      Social housing in Great Britain is undergoing a radical transformation with the transfer of local authority housing to housing associations, more particularly registered social landlords (RSLs). While the former are clearly 'public authorities' for the purposes of the Human Rights Act (HRA), the status of the latter is less clear. The first part of this article addresses the increasingly important role played by housing associations in the provision of social housing, and the significant implications of the stock transfer process. It goes on to explore the meaning of 'public authority' for the purposes of claims under the HRA, taking into account available approaches to interpretation as well as the tests traditionally used to determine amenability to judicial review. It concludes that there is a strong case for acknowledging that RSLs are hybrid authorities for the purposes of the HRA, given in particular their 'publicness' and the fact that they are often carrying out the same functions as local authorities.
    Transforming Breach of Confidence? Towards a Common Law Right of Privacy under the Human Rights Act Modern Law Review, Vol. 66, pp. 726-758, September 2003 Gavin Phillipson University of Durham - School of Law Abstract:
      This article examines the development of a remedy for unauthorised publication of personal information that has resulted from the fusion of breach of confidence with the limited 'horizontal' application of Article 8 of the ECHR via the Human Rights Act. Its analysis of Strasbourg and domestic post-HRA case law reveals the extent to which confidence has in some areas been radically transformed into a privacy right in all but name; however it also seeks to expose the analytical and normative tensions that arise in the judgments between the values of confidentiality and privacy as overlapping but not coterminous concepts, due in part to the failure to resolve decisively the horizontal effect conundrum. This judicial ambivalence towards the reception of privacy as a legal right into English law may, it will argue, also be seen in the prevailing judicial approach to the resolution of the conflict between privacy and expression interests which, it will suggest, is both normatively and structurally inadequate.
    A Model for the 'War Against Terrorism'? Military Intervention in Northern Ireland and the 1970 Falls Curfew Journal of Law and Society, Vol. 30, pp. 341-375, September 2003 Colm Campbell and Ita Connolly University of Ulster - Transitional Justice Institute and University of Ulster - Transitional Justice Institute Abstract:
      This paper questions the claim that British militarized security strategy in Northern Ireland offers a model for the global 'war against terrorism' by exploring the critically important (though neglected) 'Falls Curfew' episode. Part one explores the relationship between law, legitimacy, and the role of the military in democracies experiencing violent conflict. Part two examines the operationalization of the law on military intervention during the curfew, drawing on archival material and employing empirical studies. Part three draws overall conclusions, relating the contribution that the curfew made to the escalation of the conflict to its operational aspects and legal underpinnings. Failings are identified, and some general lessons drawn out about the dangers of a 'war' model in complex and violent political disorders.
    The Rule of Law: Mexico's Approach to Expropriation Disputes in the Face of Investment Globalization UCLA Law Review, Vol. 51, 2003 Patrick Del Duca Manatt, Phelps & Phillips, LLP Abstract:
      A new constitutional design is emerging in Mexico to address investment and expropriation disputes. Assurance of the rule of law, understood as independent legal process to resolve disputes, is a key element. Although the rule of law assumed growing importance as Mexico's historical expropriations progressed, questions persisted as to its effective application. Mexico's opening in the 1990's to global competition for investment demanded a greater basis for trust in such application. Mexico accordingly provided by treaty to defer investment and expropriation disputes with treaty country investors to binding international arbitration. To address rule of law concerns more broadly, Mexico in 1994 reformed its Constitution to incease its federal judiciary's independence. More recently, federal judicial review benefits from the Constitution's increased rigidity consequent to the fading of single party rule. Recent cases, including the resolution of the Metalclad international arbitration, the Supreme Court's declaration of the constitutional position of treaties relative to legislation, and the Supreme Court's resolution of a constitutional dispute between Congress and the President with implications for private investment in the electric sector, delineate the emerging design and associated, innovative judicial doctrine.
    The Law & Economics of Optimal Sports League Design Stephen Ross and Stefan Szymanski University of Illinois at Urbana-Champaign - College of Law and University of London - Management School Abstract:
      Rejecting the conventional wisdom that sports leagues must be run by the clubs that participate in the competition, we adopt the approach of Australian courts and view sports leagues as products created by the vertical integration of upstream "competition organizing services" and downstream "clubs participating in the competition." We detail the concern that, assuming that a league does not face reasonable substitutes (i.e., a rival league), a club-run structure leads to inefficiencies in the determination of the number and location of franchises, the sale of broadcast, marketing, and sponsorship rights, the effective oversight of club management, and the efficient allocation of players among teams. Specifically, we identify transactions costs as a significant impediment to efficient agreement in club-run leagues. We next identify the core function of a league as the organization of competition, and explain why key decisions relating to the identity, number, and location of participating clubs should be made by an economic entity independent of the participating clubs. We argue that a vertical separation between leagues and clubs, with responsibilities assigned in franchise agreements between the league and each club, provides the best way to facilitate the efficient organization and marketing of the competition. We illustrate this thesis with some predictions as to how a league organizing a sporting competition independent from its clubs might allocate responsibilities more efficiently, and identify some of the legal benefits to the league that would follow from such a restructuring. We predict that these efficiencies should result in an increase in the combined value of an independent competition-organizing entity (perhaps "NFL, Incorporated") and club-franchisees compared to the combined current value of the franchises in a club-run league. Although investment bankers and outside investors should find it profitable to seek to purchase the assets and rights necessary to become the competition organizer, the same transactions costs that preclude efficiencies among club-run leagues also operate to inhibit a voluntary restructuring resulting in a more efficient league. Thus, we address antitrust and eminent domain theories that might bring about the involuntary restructuring of sports leagues along the lines discussed in this Article.
    Legal Protection for Conversational and Communication Privacy in Family, Marriage and Domestic Disputes: An Examination Federal and State Wiretap and Stored Communications Acts and the Common Law Privacy Intrusion Tort Richard Turkington Villanova University School of Law Abstract:
      In the article I examine the legality of the not uncommon practice of surreptitiously recording telephone conversations, videotaping activities and accessing e-mail or voicemail communications by parties in domestic disputes. First, I examine the important values that are implicated by such activities. These values include conversation, communication and physical privacy. Conversation (and communication) privacy are valued on both intrinsic and instrumentalist grounds. These values run into countervailing values in domestic conflict cases. These include parental autonomy in child rearing and the best interests of the child. I argue that the pervasiveness of electronic surveillance and the emerging tradition in our legal system to grant "mature minors" self-determination in respect to decisions traditionally left to parents need to count more in accommodating values in parental electronic surveillance cases. Section II examines the legality of electronic surveillance in domestic disputes under federal and state wiretap and stored communications acts and the common law privacy intrusion tort. Wiretap and stored communications acts are notorious for their lack of clarity. I endeavor in part of this section to lay foundations about the basic concepts and structure of these laws and identify areas where there is some clarity. Wiretap acts generally prohibit surreptitious electronic surveillance of conversations. However, electronic surveillance in domestic disputes may be legal if the surveillance is sanctioned under three exceptions. These are: (1) the marital conflict exception; (2) the telephone extension exception; and (3) the vicarious consent exception. I join other commentators in their criticism of the first two exceptions. The vicarious consent exception is of recent vintage and I argue that the exception ought to be junked for several reasons. These include inherent problems with the parental motive tests, the incomprehensibility of vicarious consent with the modern law of joint custody, and the non-identity of interests in parental electronic surveillance cases. I also suggest that the problems with the self-minimization role granted to parents under the vicarious consent exception is another reason to junk the defense. Access to e-mail and voicemail are regulated under federal and state stored communications acts. Unlike wiretap acts these statutes do not contain exclusionary rules and the fruits of violations of stored communications acts are still admissible in civil and criminal proceedings. Courts have construed stored communication acts to not apply to surreptitious access of e-mail and voicemail from computers in the home. In addition, silent video surveillance is not regulated under wiretap or stored communications acts. This development has elevated the role of the common law privacy intrusion tort in legal evaluation of access to e-mail in home computers and surreptitious video surveillance in the home. It is clear that surreptitious audio and video surveillance in domestic conflicts may constitute tortuous conduct even if the conduct does not violate wiretap or stored communications acts. I examine the extent to which parties may have reasonable expectations of privacy in conversations and communications within the meaning of the privacy intrusion tort. I conclude that it would be tortuous conduct for a spouse to access e-mail stored in a home computer if the e-mail is stored in a segregated account and the parties have maintained separate passwords. Much evidence that is obtained by illegal electronic surveillance maybe admissible in marriage and custody proceedings because violations of stored communications acts and the privacy intrusion tort do not provide a basis for excluding evidence in civil court proceedings. I suggest that protective orders based upon discovery rules and constitutional privacy rights may provide a way to protect privacy by excluding some communications or images from admissibility in judicial records.
Additional papers of interest:

Tuesday, October 14, 2003
Tradeable Music Certificates
    Christian Bender (University of Muenster - International Business) has posted a paper entitled Tradable Music Certificates - The Protection of Music as a Global Commons on SSRN. Here is the abstract:
      The music industry has suffered losses that are attributed to the existence of copyright piracy. The two principal forms of copyright infringement, CD piracy and Internet piracy, have distinct effects and peculiarities. Using a Public Good topology I categorize the different forms of piracy and derive optimal music distribution forms based on internalization mechanisms for external effects. CD piracy shows similarities to the problems that exist with the provision of Global Commons (in Germanic law: Allmende) goods while Internet piracy resembles a Club good situation. I show that a subscription model for online music distribution is a optimal provision model for Club goods. A digital rights management system based on the idea of emission certificates has advantages in situations where CD piracy is prevailing.
    A very interesting paper, which I recommend. However, it seems to me that either Bender has made a significant mistake OR he uses terminology in a way that seems nonstandard. Intellectual property protected by copyright, e.g. the information that constitutes a CD or MP3 file, is a toll good, because consumption is nonrivalrous but excludable--with the excludability coming from the legal prohibitions on copying in violation of copyright.
    Bender initially states that music is a public good and then makes the following claim:
      The first type of piracy can be described as follows. CD piracy eliminates the characteristic of excludability. The reason is that by selling a CD to one customer the IPR holder is unable to detain the customer from copying the CD. Without high quality copying technology that is available today the excludability would persist. Older copying technology in form of audio tape copies of CDs and records had significantly lower quality and durability and hence cannot be compared to digital clones on CD.
      Music in form of a mp3-file resembles a club good. Digital file-sharing technologies relying on the mp3-Algorithm (e.g. P2P networks) are emerging on a large scale. The data file is compressed using MP3 technology, i.e. reduced to a small fraction of its original size in order to make music dissemination, i.e. exchange via file-swapping networks easier. This reduces rivalry in consumption via decreasing reproduction and distribution cost. Both, the marginal costs of reproduction and distribution jointly led to the rivalry that is taken away by making illegal clones of the CD.
    That is, Bender argues that copying technology transforms the information from an excludable to a nonexcludable good, and from a rivalrous, to a partially nonrivalrous good. The conclusion that Bender draws is that these technological changes make music a club good.
    Bender's analysis is incorrect. Club goods should be differentiated from toll goods. With a club good, the utility derived from the good varies with the number of players in the club. (James M. Buchanan, An Economic Theory of Clubs, 32 Economica 1 (1965)) Thus, a motion picture theater is a club good, with the particular property that consumption of the good is nonrivalrous up to a threshold value (essentially when the theater is "full," after which point the utilities for the group begin to decline). Club goods are excludable but only partially rivalrous. Music is not a club good. First, because music is not partially rivalrous in the sense required by the definition of a club good. The utility that I derive from my copy of an MP3 file does not depend on whether or not others are also listening to the same MP3 file. (This may be qualified, because of social externalities derived from common listening, but this wrinkle is not the basis of Bender's argument.) Rather, music is a toll good. The law can prohibit copying, creating excludability, but consumption is nonrivalrous. To the extent that new technologies make legal prohibitions of copying ineffective or too costly, then music is a pure public good, i.e. nonrivalrous and nonexcludable.
    But the heart of Bender's paper is not really affected by these quibbles. The most interesting idea in the paper is that of a tradeable music certificate, which Bender models on tradeable pollution rights. Here is his description of the concerpt:
      Given that the possession of a music file or a CD enables the owner to make illegitimate copies he is producing an externality. The externality is negative for the current owner of the IPRs because he is not compensated for the use of his intangible assets. A feasible solution could be the introduction of music certificates. Individuals that acquire a physical CD are obliged to additionally acquire a music certificate. The total amount that has to be paid for the CD should be equal to the discounted value of all future copies of the CD. Assuming that each CD buyers makes an average of n (e.g. three) illegitimate copies the discounted value can be calculated. Each receiver of an illegitimate copy makes another n (e.g. three) illegitimate copies. This process continues ad infinitum. Hence, the amount of copies per legal copy is n^m with n = size of peer group and m = depth of copying process, i.e. how often the copy is given to n persons.
      An implementation strategy for the music certificate is to combine the price of a physical piece that contains the IPRs with the certificate. For example, the price of a CD contains the certificate price. This music certificate can be sold on the copying exchange. Users should receive the fair value for the music certificate on this exchange. Without owning the certificate they loose the right to make copies of their CD. Other individuals that own a CD but do not own a certificate can acquire one at the copying exchange and start to copy their music. In equilibrium, only people with low copy-costs will own certificate and the value of the certificate will reflect the marginal cost to copy.

Volokh on the Pledge For Eugene Volokh's quick and dirty analysis of the pledge of allegiance case, go here.

Casuality in the Federal Courts Not to mentions potions and lotions. Go here. Courtesy of the super-amazing Howard Bashman of Howe Appeeling.

A Dialogue on Contract Theory Here.

Eastman on Tushnet I highly recommend Mark Tushnet's Constitutional Hardball, which is the subject of a recent post by Wayne Eastman.

Another RIAA Mistake Pointer courtesy of Donna Wentworth at Copyfight. The EFF has identified another mistaken defendant in a RIAA filesharing lawsuit. Here is the gist:
    The federal lawsuit filed against Plank in Los Angeles accuses him of making hundreds of Latin songs available using KaZaA filesharing software earlier this summer. Plank does not speak Spanish and does not listen to Latin music. More importantly, his computer did not even have KaZaA installed during the period when the investigation occurred.
Surf here for the EFF press release and here for the L.A. Times story.

Our Best Wishes . . . go out to law professor Jeff Cooper who is taking what looks to be a long hiatus from blogging. My very best wishes to Jeff and my thanks to him for his most excellent blog.

Statutory Construction Zone One of the very nice things about Gary O'Connor's fine blog is the quote posted every time the blog is updated. Here is the latest:
    “Who shall be the Law’s interpreter? A question this that opens into a large field of inquiry . . . A Law, be what it will, to be observed, must have a meaning put upon it.”
    JEREMY BENTHAM, A COMMENT ON THE COMMENTARIES 100-01 (written between 1774 and 1776, published in 1928, and reprinted in 1976)

Welcome to the Blogosphere . . . to Philosophical Thoughts!

Call for Papers: Justice
    Justice In Search of a Balance VIIth Congress of the Austrian Association of Philosophy University of Salzburg, February 1-4, 2004 Call for Papers The Austrian Association of Philosophy is pleased to announce its VIIth congress and asks for papers. The conference and its main lectures are focused on the topic "Justice: In Search of a Balance". Besides philosophical discussion the conference aims particularly at interdisciplinary dialogue. Justice is of general concern to different branches of science and of particular concern to different philosophical orientations. Therefore, justice is suited to serve as a link between these different approaches. Main speakers:
      Wolfgang Kersting (Kiel) Peter Koller (Graz) Avishai Margalit (Tel Aviv) Onora O'Neill (Cambridge)
    For this conference we emphatically encourage papers dealing with the main topic "justice". In addition to the main section "justice", there will be ten other sections that are open to papers from all fields of philosophy. Conference languages are German and English. Sections: 0) main section: justice 1) epistemology, philosophy of language and philosophy of science 2) logic, philosophy of mathematics and philosophy of natural sciences 3) metaphysics 4) philosophy of mind and philosophy of psychology 5) philosophy of religion 6) philosophical anthropology and philosophy of gender 7) history of philosophy 8) phenomenology, hermeneutics and philosophy of existence 9) ethics, political, social and legal philosophy 10) aesthetics, philosophy of culture and philosophical praxis Further details and the registration form can either be found at the conference website by following the link from or received from Papers/deadlines To present a paper please send us either a disk (per mail) or an email containing: 1) a 1500-word version and 2) on a separate page a short (max. 350 words) abstract of your paper. Please submit both texts in Word- or a Word-compatible format. For every presentation 40 minutes are scheduled. At least 10 minutes have to be reserved for discussion. submission deadline for papers is: 15.10.2003 notification of acceptance: 15.12.2003 registration without papers is possible till: 01.01.2004 Registration fee AAP-members EUR 50 * non-member EUR 80 * students/participants from Eastern Europe EUR 20 * includes the conference publication Registration is valid as soon as the registration fee has been submitted. Conference publication All presented papers are planned to be published in the two-volume conference publication in a suitable manner. Conference organisation Otto Neumaier - Clemens Sedmak - Michael Zichy Universität Salzburg Franziskanergasse 1 A-5020 Salzburg Contact:

Peeved About Coase Actually, Will Baude is peeved about simplified uses of Coase's theorem--for a brief explanation of the theorem itself, check out this installment in the Legal Theory Lexicon.

Jacob Levy at George Mason Today Fans of Jacob Levy's thoughtful blogging will be especially interested to learn that he is workshopping today. At George Mason's Workshop in Philosophy, Politics and Economics, Jacob presents Ancient and Modern Constitutionalism Revisited. Here is a taste:
    In this paper I argue that there is greater continuity than has usually, and recently, been recognized between “ancient constitutionalism”—that is, the constitutional practice of medieval institutions that could check early-modern monarchs, of particular liberties and a patchwork of jurisdictions, the constitutional theory of Coke, Hotman, Mornay, Montesquieu, Burke, the parlementaires and the thèse nobiliaire, sometimes referred to as "Gothic constitutionalism"—and the ostensibly rationalistic, uniform, and contractarian modern constitutionalism of written constitutional texts and judicial review; and I argue for a particular character of that continuity. I develop that argument in dialogue and comparison with certain influential statements about the relationship between the medieval/ early modern “ancient constitution” and the era of constitutions that begins in the 1770s and 80s in America and France.

Schaffner at Pittsburgh At the University of Pittsburgh (Philosophy), Kenneth Schaffner (George Washington University) does Genes, Behaviors, and the Brain.

Fennell at Texas At the University of Texas, Chris Fennell does an internal workshop titled Structures and Scales of Reciprocity: Implications from Anthropological Studies and Game Theory Experiments.

Certiorari Granted in the Flag Salute Case Howard Bashman has the scoop here. And a bit more from Eugene Volokh here.

Clark on the Supremacy Clause Bradford Clark (George Washington Law School) has posted The Supremacy Clause as a Constraint on Federal Power on SSRN (also forthcoming George Washington University Law Review, Vol. 71). Here's the abstract:
    Today, it is widely accepted that the Constitution authorizes courts to review and invalidate state laws that conflict with federal statutes. At the same time, prominent commentators and even some judges maintain that courts should not seriously review the constitutionality of federal statutes alleged to exceed the scope of Congress' enumerated powers. In their view, the constitutional structure protects the states (and thereby reduces the need for judicial review of federal power), but establishes no comparable safeguards to deter states from interfering with federal prerogatives. Contrary to this position, there is an express textual basis for judicial review of federal statutes alleged to exceed Congress' enumerated powers. The Supremacy Clause establishes a rule of decision for courts adjudicating the rights and duties of parties under both state and federal law. Under our federal system, the States possess sovereignty concurrent with that of the Federal Government, subject only to limitations imposed by the Supremacy Clause. The Clause, in turn, designates as "the supreme Law of the Land" only those "Laws of the United States . . . made in Pursuance" of the Constitution. If a federal statute satisfies this condition, courts must apply the statute notwithstanding contrary state law. If the federal statute fails this condition, however, it does not qualify as "the supreme Law of the Land" and courts remain free to apply state law. Thus, in order to apply the Supremacy Clause, courts must necessarily consider and resolve challenges to the constitutionality of federal statutes. The text, history, and structure of the Constitution confirm that the Supremacy Clause authorizes judicial review of federal statutes alleged to exceed the scope of federal power. The Founders considered three alternative mechanisms for resolving conflicts between state and federal law: coercive military force, congressional power to negative state laws, and adjudication under the Supremacy Clause. The decision to enlist courts - rather than Congress or the President - indicates that the Founders preferred to treat conflicts between state and federal law as judicial, rather than political questions. In addition, by expressly conditioning the supremacy of federal statutes on their constitutionality, the Supremacy Clause reassured the states that courts (both federal and state) would keep the federal government within the bounds of its assigned powers. Thus, in effect, the Clause reserves all remaining powers to the states, or to the people. These conclusions find support in the Supreme Court's early invocation of the Supremacy Clause to explain judicial review of federal statutes in cases like McCulloch v. Maryland and Gibbons v. Ogden.
I've been thinking about this point recently. It was also raised by Randy Barnett in his recent article on the original meaning of the judicial power. As Clark notes, the Supremacy Clause differentiates between treaties and statutes in this regard. The laws are surpreme if "made in Pursuance" of the Constitution," while treaties are supreme if they are treaties of the United States. Doesn't Clark's argument lead to the conclusion that there is no power of judicial review with respect to treaties? Why? Because if the Supremacy Clause was intended to authorize judicial review of statutes and if it does not authorize review of treaties, then there is a reasonable inference that the Supremacy Clause itself forbids judicial review of treaties. We might call this the negative pregnant of the Supremacy Clause.
I'm not suggesting that this conclusion is correct. Quite the contrary. One might then argue that the purpose of the differentiation between laws and treaties was simply to differentiate between the treaties made before the new constitution and the laws made afterwards. (Look at pages 30-31 for Clark's discussion of this argument, made famous by Currie.) I haven't given Clark's article the close study it deserves, but it does seem to purchase textual support for judicial review of statutes by admitting the negative pregnant--surely a troublesome result. Download it while its hot!

Listokin on Discounted Present Value Sentencing Yair Listokin (Yale Law School) has an intriguing proposal in Crime and (with a Lag) Punishment: Equitable Sentencing and the Implications of Discounting. Here is the abstract:
    Because criminals discount the future, the deterrence and retributive value of a given criminal sanction steadily decreases as the lag between crime and punishment lengthens. Discounting thus implies that the same nominal sentence will have disparate discounted values when imposed after different lags. Since lags between crime and punishment are both ubiquitous and widely-varying, pre-conviction delays constitute an important (and hitherto overlooked) source of sentencing disparities. Because the mitigation of sentencing disparities is an important aim of criminal law, this essay proposes maintaining constant discounted sentencing terms by adjusting individual sanctions to account for the lag between crime and punishment. These adjustments may be large since the lag between crime and punishment is often lengthy and criminals may discount the future rapidly. Applying similar reasoning, the essay also proposes that convicted pretrial detainees should receive "interest" in addition to credit for time served since their sentences begin earlier and have greater discounted values.
From where I sit, this is one of those ideas that is outside the feasible choice set. Why? Perhaps, because of the need to legitimate punishment. It may be silly, but my strong instinct is that discounting punishment will not be saleable. Nonetheless, a very interesting paper.

Conference Announcement: Fourteenth Amendment at Temple
    At Temple University, the Temple Political & Civil Rights Law Review is hosting a conference entitled Vision and Revision: Exploring the History, Evolution and Future of the Fourteenth Amendment. Ted Shaw, Akhil Amar, Erwin Chemerinsky, Sylvia Law and many others will be presenting. Here are the relevant details: Friday, November 14, 12:45 pm ­ 6:00pm cocktail hour and 7:00pm Dinner and Keynote Saturday, November 15, 8:45 am ­ 5:30pm 10CLE Credits $175 for CLE Credit $125 for CLE Credit if Temple Law Alumni Association member $115 without CLE Credit $70 without CLE Credit if Temple Law Alumni Association member Register with GWEN DEAL as soon as possible at 215-204-8985 or For more information:

New Papers on the Net Here is today's roundup:
    Cosmetic Compliance and The Failure of Negotiated Governance Washington University Law Quarterly, Forthcoming Kimberly Krawiec University of North Carolina School of Law Abstract:
      Across a range of legal regimes - including environmental, tort, employment discrimination, corporate, securities, and health care law - United States law reduces or eliminates enterprise liability for those organizations that can demonstrate the existence of "effective" internal compliance structures. Presumably, this legal standard rests on an assumption that internal compliance structures reduce the incidence of prohibited conduct within organizations. This Article demonstrates, however, that little evidence exists to support that assumption. In fact, a growing body of evidence indicates that internal compliance structures do not deter prohibited conduct within firms and may largely serve a window-dressing function that provides both market legitimacy and reduced legal liability. This leads to two potential problems: (1) an under-deterrence of corporate misconduct, and (2) a proliferation of costly - but arguably ineffective - internal compliance structures. The United States legal regime's enthusiastic embrace of internal compliance structures as a liability determinant is consistent with the increasing influence of what are referred to in this Article as "negotiated governance" models that seek to improve government regulation and/or the litigation process through more cooperative governance methods that provide a governance role to the regulated group and other interested parties. Drawing on the incomplete contracts literature, this Article argues that, although the negotiated governance model provides valuable descriptive insights into the mechanisms by which legal rules develop, the model's proponents minimize the dangers of opportunistic behavior during the renegotiation phases of governance (that is, the implementation and enforcement phases) by those with the greatest stake in the meaning of incomplete law - in this case, business organizations and legal compliance professionals, including lawyers.
    From Violent Crime to Terrorism: The Changing Basis of the Federal, State and Local Law Enforcement Dynamic Daniel Richman Fordham University School of Law Abstract:
      Two lines of questions dominate discussions about how the nation ought to respond at home to the new (or rather newly perceived) terrorist threat: How do we ensure that information about potential terrorist activities is effectively gathered, shared, and used? And how do we ensure that the Government neither abuses the investigative authority we give it, nor demands more authority than it needs? Each line can profitably be pursued in its own terms. Yet to keep the conversations separate is to miss seeing how the very process of creating an effective domestic intelligence network may introduce a salutary level of accountability and balance in the system. The key lies in the relationships among the local, state, and federal units out of which the network must be created, and their organic characteristics. And the seeds of this promising institutional dynamic can be found in the recent history of the interaction among federal, state, and local governments in the policing area. This essay explores that history and its salience to current issues.
    Protecting Future Claimants in Mass Tort Bankruptcies Yair Listokin and Kenneth Ayotte Yale Law School and Columbia Business School Abstract:
      Mass tort bankruptcy trust funds generally have failed to attain fair treatment for future claimants – those individuals who have been exposed to a harmful product but have yet to manifest any injuries. This article examines the causes of unfair distributions to future claimants from mass tort trust funds in bankruptcy and other contexts. The article also offers several recommendations for achieving equitable treatment of future claimants in upcoming trust funds, such as the asbestos trust fund proposed by the Fairness in Asbestos Injury Resolution ("FAIR") Act now debated in Congress. First, we argue that future claimants are inadequately represented in mass tort bankruptcy proceedings. We recommend that representatives for future claimants be compensated based on a percentage of the total funds placed in trust for these claimants. This approach motivates representatives to self-interestedly pursue a favorable allocation for future claimants, in contrast to the current system which compensates future claimants' representatives using other methods. We then discuss a hitherto overlooked aspect of inequitable allocations for future claimants—their overexposure to risk relative to present claimants. To guarantee that future claimants are treated fairly, we suggest that future claimants receive a greater average award than present claimants to compensate the future claimants for bearing additional risk. Finally, we examine the allocation of risk between tort claimants and other creditors. Previous mass tort bankruptcy trust funds (as well as the FAIR Act fund) allocated considerable risk to future claimants, who are poor risk bearers. To remedy this deficiency, we recommend that tort claimants be allocated as little risk as possible. In return, tort claimants should receive a lower average payment.
    Shareholder Value, Financial Conservatism, and Auditor Independence Duke Law Journal, Vol. 53, No. 2 William Bratton Georgetown University Law Center Abstract:
      The principal-agent characterization resonates especially well in both corporate law and economics because it cabins the problem of auditor responsibility within these fields' paradigms for describing and regulating duties within the firm. This article questions the practice of framing the problem of auditors' professional responsibility inside the principal-agent paradigm, even as it accepts the story of the dirty deal. The questions about the agency framework follow from an inquiry into the operative notion of the shareholder beneficiary. The article unpacks the notion of the shareholder and tells a particularized story about the shareholder interest. The exercise complicates the agency description, which tends to assume a unitary model of the shareholder. Under this article's analysis, multiple and unstable shareholder demands displace the unitary shareholder interest. This fragmented and volatile model of the shareholder does not provide a basis for articulating a coherent set of instructions respecting aggressive accounting and earnings management. This article endorses traditional notions of auditor independence even as it rejects the fiduciary-beneficiary framework. One cannot "stand separate and apart" from the client's business and at the same time be an agent beholden to the shareholder interest. If we want auditors to be independent, we cannot enmesh them in an agency relationship with the shareholders, where by definition they become subject to the principal's control and cannot act independently. Nor, for the same reason, should auditors' duties be articulated in the framework of corporate law fiduciary duty. More generally, auditor responsibility should not be conceived relationally at all. This article concludes that legal positivism provides a more appropriate conceptual framework. Auditor duties should be conceived in formal rather than relational terms, with fidelity going to the rules, to the texts, to the system that auditors apply.
Additonal papers of interest:

Monday, October 13, 2003
Barnett on Lott, Bellesiles, and the Perennial Issue of Peer Review versus Law Review Randy Barnett has a good post on the questions raised about John Lott's More Guns, Less Crime hypothesis, go here. Both Lott and Bellesiles published their questionable work in peer reviewed journals, and Barnett comments on that aspect of the controversy. Read the whole thing, but here is a taste:
    In my experience, both types of journals have their advantages and disadvantages. The peer review process tends to eliminate articles not within the mainstream of the profession or articles that lack sufficient originality. This bias tends to suppress rather than encourage diversity of views. And while this screening serves to eliminate some articles containing errors, I doubt most reviewers "run the numbers" or check citations for themselves, unless they happen to run against their own preconceptions. Nor do the editors of peer reviewed journals. In contrast, for all their well-known limitations, my experience with law reviews is that they really do catch errors in quotations and citations. They also catch errors in reasoning, or require substantiation or clarification of claims. I have found myself adding whole sections of an article to respond to a well-founded question raised by student editors.

Koppelman at Chicago Today at the University of Chicago's Law and Philosophy series, Andrew Koppelman (Northwestern University Law School) presents Pornography for the Whole Family.

Eric Muller Reports on the Law, Loyalty and Treason Conference at North Carolina Start here and scroll up!

Bolton at Columbia Today at Columbia's Center for Law and Economic Studies, Patrick Bolton (Princeton University, Bendheim Center for Finance) presents Executive Compensation and Short-termist Behavior in Speculative Markets. Here is the abstract:
    We present a multiperiod agency model of stock based executive compensation in a speculative stock market, where investors are overconfident and stock prices may deviate from underlying fundamentals and include a speculative option component. This component arises from the option to sell the stock in the future to potentially over optimistic investors. We show that optimal compensation contracts may emphasize short-term stock performance, at the expense of long run fundamental value, as an incentive to induce managers to pursue actions which increase the speculative component in the stock price. Our model provides a different perspective for the recent corporate crisis than the increasingly popular `rent extraction view' of executive compensation.

Velleman at Oxford Today at Oxford University's Moral Philosophy Seminar, David Velleman presents A Sense of Self.

Hasen on the Lessons of the Recall Rick Hasen has a Findlaw column entitled Learning from the California Recall Experience; What the Unprecedented Election Tells Us About our Laws Governing Politics. Here is a taste:
    Preliminary statistics from the recall show a big gap between punch card counties and non-punch card counties in the number of voters who failed to cast a recorded vote on Part 1 of the ballot. One study found the non-vote rate at 7.7% in punch card counties compared to 2.3% in non-punch card jurisdictions. These figures include both abstentions and votes that the vote counting machines (or voting machines) did not properly record.
Also, Rick has more on the preliminary analysis of the punch card vote here.

Cao at USD At the University of San Diego's Colloquium Series, Lan Cao (William and Mary) presents The Diaspora of Ethnic Economies: Beyond the Pale?.

Fishkin at Stanford Today at Stanford's Center for Internet and Society, James Fishkin presents Creating Deliberative Democracy Online: Deliberative Polling and its Implications.

Ribstein on the Theory of the Corporate Form Larry Ribstein (University of Illinois) has posted Why Corporations? on SSRN. Here is the abstract:
    This article suggests that reform of the governance of publicly held firms might appropriately include a move from the corporate to the partnership form. The corporate form is susceptible to regulation, rigidly centralized and not readily adaptable to firms' varying circumstances. These features are unsuitable for new economy firms that rely on markets and networks rather than integration. Partnership's greater flexibility and freedom from government interference arguably make it a better choice than corporation for many publicly held firms. Thus, the persistence of incorporation may owe more to politics and regulation than to efficiency. The rigidity of the corporate form makes it easier to regulate and therefore provides more rent-seeking opportunities for politicians and interest groups than if parties could freely choose their business form. Taxation of corporate distributions reduces owners' incentives to take control of corporate earnings through partnership-type firms. Also, by protecting managers' power, preserving the corporate form co-opts the interest group that is best able to lobby for change. However, new corporate tax rules, increased federal regulation of corporate governance and the changing nature of U.S. business may give firms new incentives to use the partnership form. Lawyers may be the agents of change, as they have been in promoting partnership-based business forms for closely held firms.

Snowdon Delivers the Presidential Address to the Aristotelian Society in London In London, Paul Snowdon (University College, London) presents the Presidential Address for the Aritotelian Society. His title: Knowing How and Knowing That: A Distinction Reconsidered.

How much money do law professors make? Surf on over to the Leiter Reports for some answers.

Review of The Cambridge Companion to Rawls On Notre Dame Philosophical Reviews, Wilfried Hinsch reviews The Cambridge Companion to Rawls, edited by Samuel Freeman. Here is a taste:
    The Cambridge Companion to Rawls, edited by Samuel Freeman, will prove a supportive and reliable companion to all those who turn to moral or political philosophy and feel the need to study the work of John Rawls more carefully. Freeman has brought together articles from more than a dozen distinguished contemporary philosophers dealing with different aspects of Rawls’ work. The late Burton Dreben contributes a lecture on the significance of Rawls’ idea of a distinctively ’political’ liberalism, and Thomas Nagel gives a well-balanced account of Rawls’ somewhat exceptional place in the tradition of liberalism. Joshua Cohen and Amy Gutman discuss Rawls’ contribution to democratic theory. Their articles are complemented by Frank Michelman’s essay on Rawls’ understanding of the ’constitutional essentials’ and the role of judicial review in liberal democracies. Philippe van Parijs and Norman Daniels explain the details of social and economic justice and Rawls’ idea of democratic equality. Thomas Scanlon writes instructively on the original position and public justification from a reflective equilibrium perspective, and there is another article on public reason by Charles Larmore. Onora O’Neill explains the differences between Kantian and Rawlsian constructivism in moral and political theory, and Samuel Sheffler highlights some structural affinities between Rawls’ theory of justice and utilitarian theories. Stephen Mulhall and Adam Swift defend Rawls against the most prominent communitarian charges but not against all. They “hope to put an end to those misunderstandings and misattributions that continue to divert intellectual attention from the real and important issues raised by the communitarian critique” (Companion 461). And last but certainly not least, Martha Nussbaum gives an unexpectedly sympathetic account of how much of the prevailing feminist criticism can be accommodated within the framework of justice as fairness. Freeman himself contributes not only a long and helpful introduction, summarizing the main lines of argument in . Theory of Justice, Political Liberalism and The Law of Peoples, but also an instructive article on the congruence of the right and the good. For good measure, the volume also contains a highly informative index of the kind we already learned to appreciate in the books of John Rawls. What is missing, though, are one or two articles on The Law of Peoples. Freeman has a brief account of the book in his “Introduction,” but given the philosophical and political relevance of Rawls’ understanding of international justice, this is hardly enough. Rather sooner than later, this shortcoming should be mended in one of the future editions of the Companion, which should also give Mard Rawls due credit for the wonderful painting of her husband shown on the cover.
Courtesy of Online Papers in Philosophy.

Sunday, October 12, 2003
Legal Theory Lexicon: Holdings
    And what is the holding, Ms. Sanchez?
    Introduction It used to be the case that an endless investigation of the difference between holding and dictum was a central preoccupation of the first year of law school. Nowadays, depending on which law school you attend and which set of instructors you are assigned, it is perfectly conceivable that you might make it all the way to your second year, with only a vague sense of what the difference between "holding" and "dictum" really is. This is not an accident. The old-fashioned, but still powerful, distinction between the holding of a case, which has precedential effect, and mere obiter dicta, which have only persuasive effect, does not easily fit in the post-realist landscape of contemporary American legal thought. This installment of the Legal Theory Lexicon provides a brief tour of the concept of a holding, with a special emphasis on the ideas that are relevant to a first-year law student with a bent for legal theory. So here we go!
    Holding, Dicta, and Stare Decisis It may be obvious, but let's say it anyway. The notion of a "holding" is only relevant because of the doctrine of stare decisis or binding precedent. In common law systems, decisions have precedential effect. It is easy for lawyers--in the United States and other legal cultures descended from the English common-law system--to forget that this need not be the case: in civil law systems, court decisions do not create binding precedents! Given that court decisions set precedents, the question naturally arises: what is the precedential effect of a decision? The traditional answer to that question is that subsequent courts are bound to follow the holding of a decision, but they are not bound by mere dicta--statements that are "unnecessary to the decision." This is as good a place as any to mention that "dictum" is the singular (one unecessary statement) whereas the word "dicta" is the plural of dictum, meaning two or more such statements.
    Just a bit more about stare decisis So to understand the idea of a holding, you also must have a basic knowledge of the doctrine of stare decisis, which is just the fancy Latin phrase for "precedent." Here are some very basic points:
    • Vertical stare decisis refers to the power of higher courts to bind lower courts. All courts in the United States are bound by vertical precedent to follow the holdings of decisions by the United States Supreme Court.
    • Horizontal stare decisis refers to the power of a court to bind itself. The United States Supreme Court does not consider itself bound by its own prior decisions, although it says that it gives them "substantial weight" in its deliberations. The intermediate appellate courts in the federal system are called the United States Courts of Appeal (USCA). When a USCA sits in an ordinary three judge panel, the panel is bound by the prior decisions of the Court. (The USCA is divided into circuits, e.g. the First Circuit, Second Circuit, etc.) However, each Circuit is free to overrule its own prior decisions if it is constituted as an en banc court--that is, the full complement of judges on the Circuit sit on a panel. (The Ninth Circuit is different for reasons I won't explain here.)
    A Loss of Faith in the Existence of the Holding Law students are generally introduced to holdings very early in their law school careers. The professor may play some socratic games with early cases, manipulating students into giving broader and narrower formulations of the holdings of the cases. It is quite likely, however, that these games will stop long before the class has a very clear idea of what a holding even is. One of the reasons for this is that the very idea of a holding best makes sense in the context of legal formalsim but most law professors (consciously or unconsciously) have adopted some form of neorealism--they no longer believe in holdings. And when you don't believe that holdings really exist, it hardly makes sense spending a lot of class time trying to master what they are.
    Two Theories of Holdings In fact, there are two theories of what constitutes the holding of a case. One theory is associated with legal formalism, and the other with legal realism. Every law student should become familiar with these two theories! Once you master them, and have an ability to spot them in action, a huge amount of confusion will simply drop away. What was cloudy will become clear. So here they are:
    • The Formalist Theory of the Holding. The formalist view is that the holding of a case is its ratio decidendi. What in the world does that mean? The ration decendi is the reasoning necessary to reach the result. Early in law school, you might get a professor who tries to whittle the holding of a case down to its ration decendi by asking questions which force the student to see that the rule that she has formulated as the "holding" is broader than the facts of the case. It is very important to understand that identifying the ratio decidendi of a case involves judgments of legal salience. Thus, if the case involves an automobile accident, we know that some facts (the car was red, the accident happended on a Tuesday) are not legally salient and hence are irrelevant to the holding. Other facts (the driver was speeding or the driver was intoxicated) may be legally salient and hence are candidates for inclusion int he holding. Even on the formalist theory of holdings, identification of a holding requires the exercise of practical judgment. If someone tells you that formalists believed that holdings could be identified mechanically, then that person is trying to characterture legal formalism--likely for the purpose of dismssing it.
    • The Realist Theory of Holdings. Legal realists have a very different theory of what constitutes a holding. Here is one way of getting at it. Legal realists view holdings as predictions of what future courts will do. The holding of a case is simply the best prediction that we can extract from the opinion as to what rule the court would apply in future cases. And what is the best evidence of how a court will behave in the future? Arguably, the best evidence is the court's own statement as to what rule it will apply in the future. This means that legal realists become very interested when a court introduces a statement of the rule with the statement: "We hold that . . . " No matter how broad this statement might be, the fact that the court pronounced it, legislatively, as a holding is strong evidence that the court regards what follows "We hold that . . ." as its own prediction as to what it will do in the future.
    What is the debate between realists and formalists really about? So there are different theories about holdings, realist and formalist. What is the debate between these two theories about? There are two answers to that question. First, there is a descriptive debate. Formalists may be claiming that when judges use the term "holding" they are, in fact, referring to the ratio decidendi of a case. Realits may be claiming that when judges use the word "holding" they are, in fact, making a prediction about what the court will do in the future. But in addition to the descriptive debate, there is a prescriptive controversy. Legal formalists may acknowledge the existence of legislative style holdings, but argue it wrong to give courts the power to legislate in this way. Likewise, legal realists may be willing to concede that some courts still use holding in its "old-fashioned," ratio decidendi sense, but argue that judges should employ legislative style holdings, in order to produce good consequences. It is always important to sort out the descriptive and prescriptive strands in this sort of debate.
    Conclusion The question, "What is the holding of such and such a case?," is inherently ambiguous. The idea of a holding is very much contested in contemporary legal theory. As a first-year law student, you will undoubtedly be searching for holdings. Here is my advice. Always look for at least two holdings when you read a case. First, look for the true ratio decidendi, the narrowest reasoning necessary to sustain the result. Be careful when you do this! Include only the legally salient aspects of the case! Second, look for the rule of law that you think the court is trying to announce. When you do this, be very sensitive to language that announces the intention of the court. "We hold that . . ." or the "The rule is . . ." are frequently giveaways as to the intentions of the court. And then you might compare the two holdings that emerge from these two inquries. Which is broader? Which is narrower? If you read subsequent cases that discuss this case, then you can ask a further question, "Which holding was recognized by subsequent courts as the the holding of the case?"
    If you are frequently reader of Legal Theory Blog, you will know that I am a proponent of the formalist view of stare decisis. If you would like to read more about why I think, this surf to my three part series: The Case for Strong Stare Decisis, or Why Should Neoformalists Care About Precedent? Part I: The Three Step Argument, Part II: Stare Decisis and the Ratchet, and Part III: Precedent and Principle.
    For past and future installments in the Legal Theory Lexicon series, you can surf here.

Legal Theory Calendar

Saturday, October 11, 2003
Download of the Week There were many, very fine, papers this week, including a terrific paper by Tushnet, Dworkin's comments on the terrorism, and rights, a very good paper by Rick Hasen, and two (here and here) fine essays by Alexander and Prakash. But my pick for Download of the Week is Contracts Without Consent: Exploring a New Basis For Constractual Liability by Omri Ben-Shahar (University of Michigan Law)--a marvelously original and compact essay in contract theory. Here is a taste:
    This essay suggests that the consensus principle embodied in the mutual assent doctrines might not be a desirable instrument to advance the goals of potential transactors. It argues that limiting contractual liability to cases in which a consensus was manifested fails to reflect the different “tones” of the “understandings” and commitments that the parties wish to express throughout the negotiations. It also argues that, in some situations, the basis for contractual liability that this principle creates is too narrow to induce optimal reliance by the parties. The essay explores an alternative to the consensus-or-nothing structure that is embodied in the mutual assent doctrine. The basic insight is the following: a party who manifests a willingness to enter into a contract at given terms, should not be able to freely retract from her manifestation. The opposing party, even prior to expressing assent, and unless he rejected the terms, acquires an option to bind his counterpart to her representation or charge her with some liability in case she retracts. In contrast to the mutual assent approach, the no-retraction principle developed here suggests that when two parties attach different but equally plausible meanings to their agreed-upon contractual obligation, the absence of consensus would not negate any liability. Instead, under the no-retraction principle each party should have an option to enforce a contractual obligation according to the meaning intended by the other. Further, even when the parties have not reached a full-blown agreement or an understanding over terms, as in the case where both parties make non-conforming precontractual representations of the proposed terms, the legal consequence should not be mutual rejection and the freedom to walk away. Rather, the representations of the parties give rise to bilateral options: each party can bind (with the magnitude of liability to be specified below) the other to the terms that party proposed. If the proposal is incomplete and gaps need to be filled, they will be filled with terms most favorable (within reason) to the proposing party. Thus, each party is unable to retract, but only from a deal that includes terms she proposed, supplemented by terms most favorable to her. Retraction from this deal can only be opportunistic.
I'm not sure I agree with any of Ben-Shahar's conclusions, but this essay is sophisticated, interesting, and fun! Download it while its hot!

Legal Theory Bookworm This week, the Legal Theory Bookworm recommends A Theory of Justice by John Rawls. Many readers of Legal Theory Blog, know all about TJ, which is the insiders acronym for A Theor of Justice, and in the 1970s, at many law schools, the traditional jurisprudence class (which up to then had covered the What is law debate?) was chucked and a course that covered TJ and Robert Nozick's Anarchy, State, and Utopia was substituted. A Theory of Justice is the most significant work in political philosophy of the twentieth century, and it has had a profound influence that extends far beyond academic philosophy, into law, politics, economics, and outside of the Anglophone world.
At the core of TJ is an argument for two principles of justice. The liberty principle (which requires that each citizen be given the basic liberties, e.g. freedom of conscience and speech, due process of law, the right to vote, etc.) and the difference principle, which requires the differences in wealth, income, and social position be distributed so as to benefit the least-advantaged group in society.
Rawls's argument for the two principles defies easy summary, but it is possible to state a few of the important ideas:
  • The Original Position. In social contract theory, persons agree in a state of nature to a social contract--an agreement on the basic structure that will govern civil society. A Theory of Justice is in the social contract tradition, but Rawls generalized from the state of nature to a more abstract philosophical device, which he called "the original position." In the original position, representative parties select principles of justice to govern the basic structure of society.
  • The Veil of Ignorance. The idea of the original position is for the principles of justice to be selected under conditions that are fair. It would not be fair, Rawls argued, for the representatives to know the positions of the parties that they are representing--that would allow arbitrary advantages to determine which principles are selected. So Rawls proposed that the parties deliberate behind a "veil of ignorance" that masks the social and economic position of those they represent from them.
  • Refelective Equilibrium. Finally Rawls proposed that our the principles that emerge from the Original Position should be tested against our considered judgments about both abstract principles and particular cases. If there is a conflict, we undertake a process of modification, adjusting either the principles or our judgments until we reach the stage of reflective equilibrium--where the principles and our judgments are in harmony.
Influence on Legal Thought TJ has had enormous influence on legal thought, both direct and indirect. A Theory of Justice has actually been cited in dozens of legal opinions--reflecting its popularity among law clerks, if not members of the bench. Rawls work has been used by legal scholars in dozens of doctrinal fields from torts to constitutional law. And Rawls had a profound influence on most of the current generation of legal theorists--although many reject the Rawlsian paradigm, their reaction to Rawls influences their work in many obvious and subtle ways. The upcoming conference at Fordham, Rawls and the Law (which should be terrific!) is just one of many examples of the continuing influence of Rawls on the law.
If you have not read A Theory of Justice, you are in for a treat. You may disagree with Rawls at every turn or you may be convinced, but this is the book that revived normative political and moral philosophy. It has been hugely influential, in small part because of good timing and in large part because it is so damn good.
    Works by Rawls
    • John Rawls, Political Liberalism (Paperback edition, New York: Columbia University Press, 1996).
        The hardback edition published in 1993 is not identical to the paperback, which adds a valuable new introduction and an essay titled "Reply to Habermas. Do not purchase the hardback edition!
    • John Rawls, A Theory of Justice (Revised edition, Cambridge, Massachusetts: Belknap Press, 1999).
        The revised edition incorporates changes that Rawls made for translated editions of A Theory of Justice. The original edition was published in 1971. Some Rawls scholars use the abbreviation TJ to refer to this work.
    • John Rawls, The Law of Peoples: with "The Idea of Public Reason Revisited" (Cambridge, Massachusetts: Harvard University Press, 1999).
        This slim book includes two works originally published elsewhere, an essay entitled "The Law of Peoples" and another entitled "Public Reason Revisited.
    • John Rawls, Collected Papers (Cambridge, Massachusetts: Harvard University Press, 1999).
        This collection of shorter papers was edited by Samuel Freeman. Two of the papers in this collection, "The Law of Peoples" and "Public Reason Revisited," are available separately in the ''Law of Peoples'' monograph published the same year. One other essay, ''Reply to Habermas,'' was added to the paperback edition of ''Political Liberalism''. Otherwise, this collection is comprehensive. However, one important unpublished work, Rawls's dissertation, is not included.
    • John Rawls, Lectures on the History of Moral Philosophy (Cambridge, Massachusetts, Harvard University Press, 2000).
        This collection of lectures was edited by Barbara Herman. It has an introduction on modern moral philosophy from 1600-1800 and then lectures on Hume, Leibniz, Kant, and Hegel.
    • John Rawls, Justice as Fairness: A Restatement (Cambridge, Massachusetts: Belknap Press, 2001).
        This shorter summary of the main arguments of Rawls's political philosophy was edited by Erin Kelly. Many versions of this were circulated in typescript and much of the material was delivered by Rawls in lectures when he taught courses covering his own work at Harvard University.
    Works About Rawls
    • Reading Rawls: Critical Studies of A Theory of Justice edited by Normal Daniels (New York: Basic Books, 1974).
        This collection, which appeared three years after TJ, collected the most important of the early reactions to TJ. It includes the famous and influential review by H.L.A. Hart.
    • Chandran Kukathas & Philip Petit, Rawls: A Theory of Justice and its Critics (Stanford: Stanford University Press, 1990)
        In my opinion, the best one volume introduction to Rawls and his critics.
    • Cambridge Companion to Rawls edited by Samuel Freeman (Cambridge: Cambridge University Press, 2003).
        This anthology includes essays by prominent philosphers, including Thomas Nagel, T.M. Scanlon, Onora O'Neil, and Martha Nussbaum.

Friday, October 10, 2003
Conference Announcement: American Society for Political and Legal Philosophy American Society for Political and Legal Philosophy 50th Annual Meeting Toleration and Its Limits Atlanta, January 2-3, 2004 Hilton Atlanta/ Atlanta Marriot Marquis Friday, January 2
      Panel I. Toleration and Liberalism 4:30-6:30 pm
          Steven Smith, University of San Diego Law School "Toleration and Liberal Commitments"
          Glyn Morgan, Harvard University Rainer Forst, University of Frankfurt
          Melissa Williams, University of Toronto
      Reception 6:30-8:30 pm
    Saturday, January 3
      Breakfast Reception 8:00-8:30 am Panel II. Toleration as a Virtue 8:30-10:15 am
          David Heyd, Hebrew University of Jerusalem "Is Toleration a Political Virtue?"
          Kathryn Abrams, Boalt Hall School of Law, Unversity of California at Berkeley Andy Sabl, University of California at Los Angeles Chair: Jeremy Waldron, Columbia University
      Panel III. Toleration and Recognition
        10:30 am-12:00 noon Paper:
          Ingrid Creppell, George Washington University "Toleration, Politics and the Common World"
          Glen Newey, University of Strathclyde, Glasgow Noah Feldman, New York University
          Jacob Levy, University of Chicago
    The ASPLP meeting is usually one of the most important events of the year in legal theory. See you there!

Fisch on the Legal Compliance Committee At the University of San Diego's colloquium series, Jill Fisch (Fordham) presents The Qualified Legal Compliance Committee: Using the Attorney Conduct Rules to Restructure the Board of Directors.

Gaus at Tulane Jerry Gaus presents The Place of Autonomy Within Liberalism at Tulane's Center for Ethics and Public Affairs.

Sunder on the New Enlightenment At UCLA's Williams Project series, Madhavi Sunder (UC Davis School of Law, visiting Cornell) presents The New Enlightenment: Women, Gays, and the Quest for WILLIAMS PROJECT SERIES Freedom Within Religion and Culture, Not Just Without Them.

Schlegel at Buffalo Jack Schlegel workshops The Place of the Disciplines in the Contemporary University.

Chapel Hill Colloquium At the University of North Carolina Department of Philosophy, the Chapel Hill Colloquium, Fall 2003, has lead papers by Keith DeRose, Barbara Herman, George Bealer, Ted Cohen, and Michael Friedman.

Environmental Law Conference at Syracuse At Syracuse Univesity College of Law is hosting The Economic Dynamics of Environmental Law & Static Efficiency Conference on October 10 & 11.

Conference on Brown v. Board
    Brown v. the Board of Education: 50 Years Later on Friday, October 10, 2003, from 8:30 a.m. to 4:30 p.m. at Saint Louis University School of Law. The Richard J. Childress Memorial keynote lecture will be given by William E. Nelson, the Edward Weinfeld Professor of Law at New York University School of Law. Jack Greenberg, Professor of Law at Columbia University Law School, will provide luncheon remarks. Commentators on Professor Nelson's lecture will be Robert Cottrol, Harold Paul Green Research Professor of Law, George Washington University; Mary Dudziak, Judge Edward J. and Ruey L. Guirado Professor of Law and History, University of Southern California Law School; and the Honorable Louis H. Pollak, U.S. District Court of the Eastern District of Pennsylvania. A panel on affirmative action, focusing on the Grutter and Gratz decisions will include Evan Caminker, Dean Designate and Professor of Law, University of Michigan Law School; William LaPiana, Professor of Law, New York Law School; and Joel K. Goldstein, Associate Dean of Faculty and Professor, Saint Louis University School of Law. The final panel will explore the aftermath of Brown in the school systems and other public facilities in the United States. Panelists include Kevin M. Kruse, Assistant Professor of History, Princeton University; Tomiko Brown-Nagin, Assistant Professor of Law and History, Washington University, and Anders Walker, Assistant Professor of Law, Police Science and Criminal Justice Administration, John Jay College.

Lichtman on Prosecution History Estoppel Douglas Lichtman (University of Chicago Law School) has posted Rethinking Prosecution History Estoppel on SSRN. Here is the abstract:
    Under the rule of prosecution history estoppel, patent applicants who amend their claims during the course of patent prosecution assume a significant risk: namely, the risk that a court will later construe the changes as concessions that should be read to limit patent scope. This risk is exacerbated by strong evidentiary presumptions under which courts are to assume, unless the patentee presents sufficient evidence otherwise, that every change triggers estoppel, and that the resulting estoppel forfeits everything except that which the revised language literally describes. The justification for these presumptions is that, implemented in this fashion, prosecution history estoppel makes patent scope more predictable. In this Article, I argue that the benefit comes at too high a price. Drawing on a large empirical study of patent prosecution, I show that, because of these evidentiary presumptions, estoppel is dangerously sensitive to differences between patent examiners and differences across technology categories. That is, estoppel treats similar applications in dissimilar ways, not because of differences on the merits, but instead because of the personal characteristics of the examiners involved and because of differences inherent to the types of technology at issue. A better rule, I argue, would minimize the significance of examiner and technology disparities by reversing the current evidentiary presumptions and thus recognizing estoppel only where there is clear evidence that the applicant and the examiner intended to forfeit a given scope of coverage.

Vairo on Mass Tort Bankruptcies Georgene Vairo has posted Mass Torts Bankruptcies: The Who, The Why, And The How on SSRN. Here is the abstract:
    For the last several decades, federal and state courts, with varying degrees of cooperation from the parties and lawyers involved, have developed ways of managing the complex mass tort cases confronting them. A key development was the emergence of the idea of using consolidation techniques to achieve global peace in the resolution of these often seemingly intractable cases. In the wake of the Supreme Court's decisions in Amchem and Ortiz, however, the use of class actions to achieve global peace became problematic. Meanwhile, Chapter 11 proceedings under the bankruptcy laws emerged as a vehicle for achieving global peace. Especially after Amchem, it appears that the use of Chapter 11, despite the problems raised for a defendant corporation, may be the best tool for achieving global peace. This working paper provides a brief history of the three leading mass tort bankruptcy cases: the Johns Manville Chapter 11 case involving asbestos personal injury claims, the A.H. Robins Chapter 11 case involving Dalkon Shield claims, and the Dow Corning Chapter 11 case involving breast implant claims. The purpose of the review of these cases is to highlight the important practical and doctrinal issues raised by the use of Chapter 11 as a vehicle for resolving mass tort litigation.

Hsu on Fairness versus Efficiency in Environmental Law Shi-Ling Hsu (The George Washington University Law School) posts Fairness Versus Efficiency in Environmental Law on SSRN. Here is the abstract:
    Like many other areas of law, the development of environmental law has been strongly influenced by notions of fairness. This should not be surprising, since environmental law has been developed by lawyers, who are self-selected to be fairness-oriented and trained to think in terms of fairness. While large environmental gains have been achieved in the thirty-year history of environmental law, progress seems to have reached a plateau. Partisanship has poisoned the debate on how best to proceed in making further environmental progress. I attribute the failings and the current stalemate in environmental law to our obsession with fairness. Fairness-thinking has created a culture where stakeholders are conditioned to make self-serving arguments, not considered judgments about the public interest. While this is true in many areas of law, this has become especially troubling in environmental law. I propose that environmental law and policymakers pay more attention to efficiency arguments and efficiency-thinking. While I do not propose a tyranny of economists to supplant fairness-thinking, I argue that efficiency-thinking can provide an important complement to the fairness-thinking that has dominated environmental law and policy. This article explores the theoretical arguments for fairness-based and efficiency-based programs, and examines the empirical support for some of these arguments. The theoretical arguments for an increased role for efficiency-thinking are quite clear. The evidence for more efficiency-based environmental regulation is somewhat thin, but with some important caveats, vindicates the economic theory in support of efficiency-based regulation.

Yu on Piracy Peter Yu (Michigan State University-DCL College of Law) has posted Four Common Misconceptions About Copyright Piracy (forthcoming Loyola Los Angeles International and Comparative Law Review, Vol. 26, 2003) on SSRN. Here is the abstract:
    Copyright piracy is one of the most difficult, yet important, transnational problems in the twenty-first century. Although legal literature has discussed copyright piracy extensively, commentators rarely offer a "grand unified theory" on this global problem. Rather, they give nuanced analyses, discussing the many aspects of the problem-political, social, economic, cultural, and historical. This nuanced discussion, however, is missing in the current public debate. To capture the readers' emotion and to generate support for proposed legislative and executive actions, the debate often oversimplifies the complicated picture by overexagerrating a particular aspect of the piracy problem or by offering an abbreviated, easy-to-understand, yet somewhat misleading version of the story. Such oversimplification is dangerous, for it creates misconceptions that not only confuse the public as to the cause and extent of the problem, but also mislead policymakers into finding solutions that fail to attack the crux of the piracy problem. In light of this shortcoming, this Article discusses four common misconceptions about copyright piracy: (1) Copyright piracy is merely a cultural problem; (2) copyright piracy is primarily a development issue; (3) copyright piracy is a past phenomenon for technologically-advanced countries; and (4) copyright piracy is a necessary byproduct of authoritarian rule. It then attempts to reconfigure the misguided public debate on copyright piracy by underscoring the need to focus on the copyright divide - the gap between those who have stakes in the copyright regime and those who do not. This Article concludes by warning that the United States might not be able to eradicate the piracy problem unless its legislators and policymakers are willing to change the lawmaking process by taking into account the interests of both the stakeholders and nonstakeholders.

Copyright Reform Department: Derek Slater on Terms for the Right to Prepared Derivative Works The bundle of rights that make up the "copyright" in U.S. law includes the right to prepare derivative works. Derek Slater proposes that such derivative rights have shorter terms than the right to copy the work itself. Interesting idea.

Two by Witte John Witte (Emory University - School of Law) has posted two new papers on SSRN:
    That Serpentine Wall of Separation (forthcoming Michigan Law Review, 2003):
      The wall of separation between church and state has been an abiding metaphor in the history of Western thought, and especially in the history of American law. This essay reviews two important new volumes that trace the evolution, and escalation, of separationist thought in America from the mid-eighteenth to the mid-twentieth centuries. While heartily commending these two books, this essay calls for a fuller appreciation of the historical antecedents of American separationist thought, a more nuanced account of the multiple understandings of separationism at the American founding, and a greater appreciation for the multiple principles of religious liberty that buttressed and buffered the principle of separation of church and state in the history of American law.
    Between Sanctity and Depravity: Law and Human Nature in Martin Luther's Two Kingdoms (forthcoming Villanova Law Review, Vol. 48, pp. 727-762, 2003):
      The wall of separation between church and state has been an abiding metaphor in the history of Western thought, and especially in the history of American law. This essay reviews two important new volumes that trace the evolution, and escalation, of separationist thought in America from the mid-eighteenth to the mid-twentieth centuries. While heartily commending these two books, this essay calls for a fuller appreciation of the historical antecedents of American separationist thought, a more nuanced account of the multiple understandings of separationism at the American founding, and a greater appreciation for the multiple principles of religious liberty that buttressed and buffered the principle of separation of church and state in the history of American law.

Fon and Parisi on Norm Formation Vincy Fon and Francesco Parisi (George Washington University - Department of Economics and George Mason University School of Law) have posted Role-Reversibility, Stochastic Ignorance, and the Formation of Norms on SSRN. Here is the abstract:
    While much is known about what types of norms are sustainable as rules of behavior, a lot remains to be done to understand the conditions that foster the emergence of efficient norms. This paper provides a contribution to this field, revisiting the conventional wisdom concerning the effect of role reversibility and stochastic ignorance on the emergence of norms. We develop a model of norms formation to study the differences and limits of role reversibility and stochastic ignorance. Role reversibility and stochastic ignorance are environmental conditions that minimize the strategic bias of individual choice. Under role reversibility, individual agents engage in actions knowing that in future time periods there may be a reversal of roles with other players. Each agent maximizes his or her expected payoff, knowing the status quo at the time of the action as well as the ex ante probabilities about his or her future roles. With role reversibility, a party's choice is influenced by the immediate cost of compliance with a norm. In contrast, under stochastic ignorance, players make their choices under a Harsanyi-type veil of uncertainty. Norms that are chosen under conditions of stochastic ignorance can be separated from those chosen under a role-specific context that clouds and biases the formation of norms. Consequently, norms that emerge under stochastic ignorance are more likely to be closer to first-best and to satisfy parties' participation constraints at any given time than are norms chosen under conditions of role reversibility.

New Papers on the Net Here is today's roundup:
    The Innovative North American Commission for Environmental Cooperation David L. Markell and John H. Knox, GREENING NAFTA: THE NORTH AMERICAN COMMISSION FOR ENVIROMENTAL COOPERATION, Stanford University Press, 2003, Copyright David Markell and John Knox Florida State University - College of Law and Pennsylvania State University - The Dickinson School of Law Abstract:
      The North American Commission for Environmental Cooperation (the NACEC or CEC) is an innovative international environmental institution in three important ways. It is the first international organization created to address the environmental aspects of economic integration. It is a regional environmental institution with powerful tools and almost unlimited jurisdiction. And it provides unprecedented opportunities for participation by civil society at the international level. In each of these respects, the Commission addresses critical international concerns. The effort to reconcile environmental protection and economic integration has become one of the flashpoints of international discourse; although rarely raised before 1990, since then environmental objections to trade and investment agreements have nearly prevented ratification of the North American Free Trade Agreement, contributed to the abandonment of talks aimed at a Multilateral Agreement on Investment, and helped lead to the 1999 Seattle riots that accompanied the failed effort to begin a new round of World Trade Organization negotiations. At the same time, the international community has become more aware of the interdependence of ecological systems and the need for international institutions to protect the environment. Despite the proliferation of environment policies effectively and the handful of regional environmental organizations are relatively powerless. With respect to economic integration and environmental protection, as well as many other areas of international cooperation, nations are struggling to respond to the demands of their citizens to participate in the development and implementation of international policies that affect them. The Commission is important because it provides creative answers to each of these issues. Its answers may or may not prove satisfactory but, either way, the lessons to be drawn from its experience should be of great value to all those trying to reconcile environmental protection and economic integration, to promote stronger regional and global environmental organizations, and to find ways for civil society to participate in international policy. The agreement creating the CEC has already been used as a model for bilateral agreements between Canada and Chile and between the United States and Jordan. Surprisingly, however, the Commission has received relatively little scholarly attention. Although political scientists and lawyers have described its relationship to NAFTA and have analyzed its submissions procedure, there are few comprehensive analyses of how it is fulfilling, or failing to fulfill, its mandates. This book is intended to fill that gap.
    Fraud by Hindsight Gaurang Gulati, Jeffrey Rachlinski and Donald Langevoort Georgetown University - Law Center , Cornell Law School and Georgetown University Law Center Abstract:
      In securities-fraud cases, courts routinely admonish plaintiffs that they are not permitted to rely on allegations of "fraud by hindsight." In effect, courts disfavor plaintiffs' use of evidence of bad outcomes to support claims of securities fraud. Disfavoring hindsight evidence appears to tap into a well known, well-understood, and intuitively accessible problem of human judgment of "20/20 hindsight." Events come to seem predictable after unfolding, and hence, bad outcomes must have been predicted by people in a position to make forecasts. Psychologists call this phenomenon the hindsight bias. The popularity of this doctrine among judges deciding securities cases suggests that judges actively seek techniques that enable them to correct for psychological biases that might otherwise affect their decision making. This paper assesses the hypothesis that judges have adopted the "fraud-by-hindsight" doctrine so as to avoid erroneous judgment infected with the hindsight bias. We find that although judges have identified a real problem in human judgment, they are not developing a doctrine to remedy the influence of hindsight on judgment. Rather, they are using this problem of human judgment as the justification for expanding their authority to manage the complex, high-stakes securities cases that come before them. The result provides judges with the greater case-management authority they seek, but leaves the securities litigation without a meaningful doctrine to ameliorate the influence of hindsight on judgment.
And here is another paper of interest:

Review of Goldberg Berel Dov Lerner reviews Fads and Fallacies in the Social Sciences by Steven Goldberg. Here is a taste:
    In his latest book, controversial City College sociologist Steven Goldberg continues to challenge the "politically correct" biases that he believes are ruining the quality of work being done in the contemporary social sciences. He insists that science must pursue the truth, letting the chips fall where they may. In the book's most valuable chapters, Goldberg offers convenient summaries of his already published attacks on feminist sociology, skewering the myth of the existence of matriarchal or pristinely egalitarian human societies. He also formulates a careful analysis of the different considerations that must be taken into account when discussing the social consequences of openness to homosexuality. His treatment of possibly innate differences in average intelligence between groups of people, his comments on the allegedly discriminatory practice of capital punishment in the USA, and his take on the O.J. Simpson trial, are all very useful exercises in the proper appreciation of statistical data. These essays are essentially conceptual. They map-out the various ways that different claims about society must hang together or oppose each other, often without indicating which logical possibility the author believes to be actualized in reality. They are clearly written and unburdened by jargon, and could serve very well as readings for freshman college courses in sociology, statistics, or critical thinking.

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

Thursday, October 09, 2003
Playing Hardball The incredibly smart and learned Mark Tushnet (Georgetown) has the intriguingly titled Constitutional Hardball up on SSRN (and forthcoming in the John Marshall Law Review. Here is the abstract:
    This Essay develops the idea that there is a practice called constitutional hardball. The practice has three characteristics: it involves arguments and behavior by political actors (including judges, although their role is less interesting than that of other political actors) that are defensible - though sometimes only barely so - by standard constitutional doctrine; it is inconsistent with settled pre-constitutional understandings; and it involves extremely high stakes (control over the national government as a whole). I argue that constitutional hardball occurs when political actors see the chance for a permanent transformation of the constitutional order. I offer a number of illustrations from constitutional history and contemporary controversies. Although the Essay is largely descriptive, I conclude with some modest normative observations about whether constitutional hardball is healthy for a constitutional community and, for those who think it is not, how we can avoid the practice.
And here is a bit more:
    Examples of constitutional hardball may give readers a better sense of the practices I have in mind.4 Perhaps the best example is the filibuster mounted by the Senate’s Democrats against several judicial nominations made by President George W. Bush in 2002-03.5 The Democrats’ actions were clearly within the bounds set by the Senate’s rules, and the Constitution expressly authorizes the Senate to adopt rules to govern its operation.6 Republicans responded to the filibuster by developing an argument that it was unconstitutional because it interfered with the ability of the Senate to decide, by majority vote, whether to consent to a nomination. I believe that argument to be strained,7 because it requires one to distinguish between filibusters of judicial nominations and filibusters of ordinary legislation recommended by the President to Congress pursuant to his duty to do so.8 Still, there are not-implausible distinctions available,9 and some versions of arguments against the constitutionality of a Senate rule authorizing filibusters generally are not at all insubstantial.10 The Republicans’ arguments, then, were within constitutional bounds as well.
    At the same time, some aspects of the Democrats’ and the Republicans’ behavior were unusual. The Democratic filibusters were, if not unique,11 quite unusual. We might compare the nomination filibuster to recess appointments to the federal courts. The Constitution clearly authorizes such appointments,12 and presidential use of the power was not unusual.13 But, presidents have come to refrain from using their undoubtedly constitutional power to make recess appointments, in part out of concern about possible intrusions on judicial independence that arise from the possibility that a recess nominee will not receive a permanent position unless he or she curries favor with the president.14 This restraint on the use of acknowledged power might even amount to a weak pre-constitutional convention against recess appointments to the courts. Similarly, one might say, that the Senate had adopted a preconstitutional convention against using the filibuster on judicial nominations since the Fortas nomination. The Democrats’ filibuster is then a repudiation of a settled pre-constitutional understanding.
    The Republican response is similar, though on a lower level. Some Republicans suggested that were the filibusters to persist they would support litigation aimed at establishing the unconstitutionality of the practice.15 What was unusual about this threat is that Senators typically have been quite jealous about refraining from submitting intrahouse disputes to judicial supervision. The Senate leadership has often filed papers asserting that individual Senators lack standing to challenge Senate procedures, for example. The preferred course – perhaps, again, amounting to a pre-constitutional convention – is for the Senate to resolve these internal disputes internally.16
I wish I had more time to react to this paper--which I believe is a true tour de force. For now, all I can do is to give this my highest recommendation, and say, Download it while its hot!

Rorty on Davidson Via Crooked Timber, The Boston Globe has an entertaining piece by Richard Rorty that discusses Donald Davidson. Here is a taste:
    In a famous article of 1974 titled "On the Very Idea of a Conceptual Scheme," Davidson explained why we did not have to worry about another familiar science-fiction suggestion: that an advanced civilization, flourishing in a faraway galaxy, might wield concepts that are forever beyond our grasp, concepts entirely incommensurable with our own. The reason is that every language, even the most advanced, has to get its start as a set of behavioral responses to stimuli, responses that can be correlated with our own responses. So there is no such thing as an unlearnable language. This means that if the sounds the Galactics are making are a language at all, we can learn that language in the same way that we learned our own, and in the same way that an anthropologist learns the language of an unfamiliar tribe. We start with words like "blue" and "beaver" -- words whose utterance can be provoked by the clear sky or a small brown creature building a dam in the river -- and gradually work our way up to expressions like "blasphemous," "undemocratic," "positron," and "transfinite cardinal number."

Contracts Scholars Urgently Needed Surf here to help!

Sunstein on Lawrence v. Texas Cass Sunstein (University of Chicago Law School) has posted What Did Lawrence Hold? Of Autonomy, Desuetude, Sexuality, and Marriage on SSRN. Here is the abstract:
    The Supreme Court's decision in Lawrence v. Texas is best seen as a cousin to Griswold v. Connecticut, invalidating a ban on the use of contraception within marriage, and Reed v. Reed, invalidating a preference for men over women in the administration of estates. In both cases, the Court struck down an anachronistic law palpably out of step with existing public convictions. Lawrence should be understood in the same terms, as rooted in a distinctly American-style doctrine of desuetude. The central principle is that at least if certain interests are involved, criminal statutes may not be invoked against citizens when the underlying moral judgments have become anachronistic, as demonstrated by a pattern of nonenforcement. A key problem here is procedural; it involves an absence of fair notice and arbitrary exercise of discretion. This understanding of the decision has implications for the many imaginable constitutional challenges to other laws involving sex and sexual orientation. After Lawrence, states are certainly prohibited from banning fornication; they are almost certainly forbidden to ban use of sexual devices. Bans on prostitution, incest, and adultery stand on firmer grounds, though even here responsible challenges can be imagined. After Lawrence, the Constitution almost certainly forbids public discrimination against those who have engaged in homosexual conduct, at least outside of certain specialized contexts (most notably the military). The hardest cases involve the failure to recognize same-sex marriages. The ban on same-sex marriages cannot be said to be an anachronism, even though it is not easy, in principle, to reject the law struck down in Lawrence while permitting states to deny gays and lesbians the right to marry. One general lesson, underlined by Lawrence, is that political and social change is usually a precondition for changed interpretation of the Constitution.
(I've added emphasis.) Sunstein's reworking of the rationale of Lawrence certainly has much to commend it, but I wonder whether it is tenable as a reading of Justice Kennedy's opinion--which has a very strong libertarian flavor--to say the least.

Picker on Ad Free TV Randal Picker (University of Chicago Law School) has posted The Digital Video Recorder: Unbundling Advertising and Content. Here is the abstract:
    Next time you turn on your television, actually watch the commercials and you will quickly see how poorly the economic model of TV is working. They put on a commercial for dog food, but you don't have a dog. Many of the commercials are for product categories that you do not purchase, and others are for products, such as cars or computers, that you use constantly but purchase only sporadically. The digital video recorder (DVR) may change this dramatically. The DVR will allow us to unbundle content and advertising. Content that comes from broadcasters bundled in one form - the TV show itself, the station identifications, the ads selling Budweiser and the promos for a very special Dawson's Creek - can be reshaped and separated before the viewer sees it. The ability to delete commercials puts at risk the basic financing model for free broadcast TV. At least as important, unbundling of ads and content allows personalization of commercials and that in turn may change content itself. Personalization will change the core role that content plays in intermediating between advertisers and audiences. Traditionally, content plays a dual role: it attracts a particular type of reader, and that in turn determines the type of advertising that can be sold. Creators shape content to best fit the intersection of advertisers and audience. A DVR with ad personalization has the capacity to alter completely this critical matching process played by content creators. How the DVR technology is organized will almost certainly help to determine whether viewers can commit to not deleting the ads. Decentralized, free-standing DVRs - the current model - will make commitment difficult. Centralizing the DVR technology in the pipes bringing the content into your home - putting the DVR technology in the cable box - may make the ad commitments more credible. The range of possible, supportable economic models turns directly on how the DVR technology is organized and those models matter directly for the kind of content that will be made available. How the technology is organized also turns out to be quite important for law. Standard legal instruments such as copyright or contract work only so well with widespread, decentralized use of a technology. Centralized technology is easier to control, either through contract; through common law doctrines such as contributory copyright infringement, the tack tried in Sony; or through direct regulation, as we have done with cable. The regulatory path for the DVR probably turns on whether it emerges as a decentralized technology ala the VCR or as part of the cable/DBS system. And, if the DVR technology is centralized, we may see a substantial asymmetry between broadcast and cable. The dispute over "must carry" will morph into a fight over "must store" or "must be smart" as over-the-air broadcasters will seek access to the storage and intelligence that will come to reside in the set-top box.
Here is one vote for the decentralized model! Must store? Horrors!

New Papers on the Net Here is today’s roundup:
    Review Essay: Law and Economics in the Personal Sphere Law & Social Inquiry, Forthcoming Claire Hill Georgetown University Law Center Abstract:
      My review essay makes the case for law and economics in the personal sphere by reviewing and appraising the following four books: Richard Posner, Sex and Reason; Eric Posner, Law and Social Norms; Robert Frank, Luxury Fever, and Margaret Brinig, From Contract to Covenant. My focus is on answering objections from those who may be skeptical of law and economics methodology generally, but are particularly skeptical of its applicability in the personal sphere. Law and economics does not (certainly now, and perhaps even before the advent of behavioral law and economics) require viewing people as conducting their lives wholly with conscious calculation, constantly cutting the best deal they can for themselves. Such people are as much caricatures as are people conducting their lives completely without calculation, conscious or otherwise, always giving freely of themselves with no thought of getting something in return. My essay considers why some people might want to reject the applicability of law and economics to the personal sphere. Law and economics seems determined (indeed, even eager) to make people see themselves "warts and all." A person might want to think of himself as caring deeply about the environment, persons with disabilities, world poverty, and other social ills. Law and economics often tells people they don't care as much about such things as they like to think, insofar as they want good results without being willing to pay for them. Similarly, a person might want to think of himself as a romantic, being "carried away" by sentiment in his choice of romantic mate. Law and economics would point out the extent to which mate-choice is influenced by market-like considerations. Some people therefore may look to dismiss the message; they haven't had to look far, because certain of law and economics' pathologies, principally the claim to more of a "scientific" mantle than is sometimes warranted, have invited cheap shots - ways to dismiss the messenger without listening to his whole message. And this is a shame. Law and economics could be a bit more agnostic about its claims in the personal sphere. It could spend more time explaining why "market" shouldn't be an expletive, stressing the pervasiveness of metaphor, and metaphor's instrumental character. Using a concept in a new context - carrying the "suitcase" - doesn't commit us to wearing all the clothes in the suitcase. As the books I'm reviewing show, we can get the benefits of the explanatory power law and economics has to offer while limiting or even eliminating the use of the clothes we would like to have left behind.
    Biological and Cultural Camouflage: The Challenges of Seeing The Harmful Invasive Species Problem and Doing Something About It HARMFUL INVASIVE SPECIES: LEGAL RESPONSES, Marc Miller and Robert Fabian, eds., Environmental Law Institute, 2003 Marc Miller and Lance Gunderson Emory University School of Law and Emory University - Department of Environmental Studies Abstract:
      This essay introduces a forthcoming volume addressing legal and policy responses to harmful non-indigenous species. Invasive species may be a more difficult problem to perceive than many other types of environmental problems, such as air or water pollution, extinction of species, or changes in land use. Some of the reasons for the difficulties in perception reflect the limits of everyday human observation of the natural environment. In addition, many non-indigenous plant and animal species serve as the cornerstones of modern agriculture and commerce. Drawing a line between welcome (strongly beneficial) and unwelcome (harmful or invasive) non-indigenous species is often difficult, a difficulty magnified when the harms and benefits from a species inure to different groups of people.
      Establishing sound law and policy with regard to invasive species would be hard enough if the puzzles were merely biological, psychological, economic and political. However, the ultimate questions about the law and policy with regard to non-indigenous species, and invasive species, reflect deep value preferences, values that reflect more general philosophical tenets that may border on religious beliefs. This morass of human and social dimensions swirling around the issue of invasive species makes the lack of coherent and comprehensive laws easier to understand, even in the face of longstanding recognition that some non-indigenous species could be very harmful indeed.
      After reviewing the disjunction between key international instruments and the laws of nation-states, with a focus on the possible meanings of a recommended "precautionary principle" in some of these instuments, the essay suggests three steps should come first: an assessment of the status of alien species in the country, a focus on prevention of new introductions, and the integration of a holistic approach, aware of the social, psychological and commercial aspects of the invasive species problem.
    The Fiduciary Relationship between Attorney and Client: Through the Contractualist Looking Glass Paula A. Monopoli University of Maryland - School of Law Abstract:
      In this era of Enron, Sarbanes-Oxley and the movement toward external regulation of lawyers that would alter their traditional duties to clients, we should revisit the discussion about what makes lawyering a "profession" instead of a mere business. Lawyers have traditionally been viewed as having a fiduciary relationship with their clients that carries with it certain duties not present in a typical business transaction. However, the relationship between attorney and client is in fact a business relationship. The client contracts with the attorney to perform certain acts on behalf of the client. The contract is entered into in exchange for consideration, the attorney's fee, and the attorney acts as the client's agent. Thus, the attorney-client relationship is a multi-faceted relationship, characterized by aspects of fiduciary, agency and arms-length contractual relationships. Law has traditionally been viewed as a profession and the attorney-client relationship as a fiduciary relationship. Thus, there are ethical rules that constrain the attorney's ability to act at arms length, in her own financial best interests and courts have imposed certain duties, like the duty of loyalty, that make the terms of the relationship distinct from that in which a client would simply contract with a business person for services. Attorneys, like other fiduciaries, must put their clients interests before their own and exercise independent judgment about what action will further those client interests. Financial conflicts of interest in particular impair an attorney's ability to make independent judgments on the client's behalf. In resolving conflicts of interest in the law generally, we may adopt one of several paradigms. We can choose to allow the relationship to proceed completely unregulated, we can allow it to proceed after the lawyer makes some level of disclosure to the client and the client waives the conflict or we can prohibit certain attorney behavior altogether. However, if one views the attorney-client relationship more as a fiduciary relationship and less as a purely contractual one, it is arguable that it is conceptually inconsistent to allow certain conflicts to be waived at all. There may be times when the fiduciary duty an attorney owes a client is arguably heightened because of the disproportionate power relationship between, for example, an often elderly client and the more knowledgeable attorney who represents her. This paper explores the specific model of the attorney-client relationship that exists in the context of estate planning and the broader view of that relationship. It examines the recent revisions to the ethical rules regarding client waiver and conflicts of interest. The paper then analyzes what we can borrow from the current debate as to whether the relationship among trustees, settlors and beneficiaries should be characterized as contractual or fiduciary relationships. It explores the fact that purely contractual relationships include certain implied duties that may not be explicitly delineated in the contract. The paper evaluates the existence of such duties, how they may inform our choice of models for the attorney client relationship and whether disclosure can be a conceptually consistent approach to conflicts of interest. Finally, the paper concludes that our choice of paradigm will have a significant impact on the likelihood of external regulation and the public perception of the legal profession for many years to come.
    The Frictions of Federalism: The Rise and Fall of the Federal Common Law of Interstate Nuisance Robert V. Percival University of Maryland - School of Law Abstract:
      Prior to the erection in the 1970s of a comprehensive federal regulatory infrastructure to protect the environment, transboundary pollution disputes frequently were adjudicated by the U.S. Supreme Court, exercising its original jurisdiction over disputes between states. In a series of cases commencing at the dawn of the Twentieth Century, the Court served as a national arbiter of interstate pollution disputes. This paper reviews the history of the Supreme Court's use of these cases to develop a federal common law of interstate nuisance.
      The paper argues that while federal common law initially performed a zoning function by encouraging polluters to relocate to less populated areas, injunctions issued by the Court ultimately spawned the development of new pollution control technology. Through a series of injunctions designed to vindicate the right of sovereign states to prevent significant harm from transboundary pollution, the Court restricted emissions from Tennessee copper smelters, required Chicago to build its first sewage treatment facilities, and mandated that New York City construct an incinerator to dispose of garbage formerly dumped into waters washing onto New Jersey shores. By holding source states liable for damage caused by transboundary pollution, the Court contributed to the development of new technology for reducing pollution.
      Despite its unique role in resolving disputes between states, the Supreme Court long doubted its competence to make complex judgments concerning appropriate levels of pollution control. Thus, it sought to encourage states to resolve transboundary pollution disputes through negotiation and cooperation. While these efforts largely failed, the Court ultimately removed itself from the role of arbiter of transboundary pollution disputes by holding that the Clean Water Act's comprehensive federal regulatory program to control water pollution preempted the federal common law of interstate nuisance.
    Slaugher-House Five: Views of the Case Hastings Law Journal, January David Bogen University of Maryland - School of Law Abstract:
      This article discusses five views of the Slaughter-House Cases: 1) that Justice Miller was deliberately ambiguous about whether the Bill of Rights is incorporated against the States by the Privileges and Immunities Clause of the Fourteenth Amendment; 2) that Justice Miller rejected incorporation through the Privileges and Immunities Clause; 3) that he adopted incorporation of the Bill of Rights in the Slaughter-House Cases; 4) that the Slaughter-House Cases should be reexamined and overturned by the modern court; and 5) that the Slaughter-House Cases should remain the way in which the privileges or immunities clause of the Fourteenth Amendment.
      The article's main points are:
      1. Recent revisionist scholars who argue that Justice Miller intended his opinion on privileges and immunities in the Slaughter-House Cases to support incorporation of the bill of rights are wrong. The smoking gun on this point is a letter written by Chief Justice Waite that thanks Miller for suggesting the Slaughter-House Cases as a citation in the Cruikshank opinion and for praising his opinion in that case.
      2. Although the privileges or immunities clause of section one of the Fourteenth Amendment refers to preexisting rights and creates no new ones, it is not empty. As a point of reference for congressional power under section five, the clause makes a previously implicit congressional power express.
      3. The congressional power to enforce section five does not rise above the scope of the privileges in section one. If the Court continues to find Congress has no power under Article I to create private rights of action against the states, the recognition that Article I statutes are privileges of citizenship will not bootstrap the power into overriding state sovereignty.
      4. None of the alternative substantive readings urged for the privileges or immunities clause is satisfactory as a historical matter, in part because the framers had a variety of internally inconsistent views. They did intend the clause to have substance, but other clauses are better vehicles for providing that substance.
      5. A shift from substantive due process to the privileges or immunities clause would be a mistake. The linguistic and precedential problems of existing doctrine are inherent in unenumerated rights and are not improved by switching clauses. Instead, switching clauses creates unwise risks of shrinking rights recognized by the present court or expanding them to areas with less support in history and policy.
      6. A fundamental rights interpretation of the clause would shift power in traditionally local areas of contract, property and criminal law from the states to Congress. That would obliterate federalism, contrary to the intent of the drafters of the clause. Whether federalism should be obliterated is the crucial policy question. The article contends other clauses are adequate sources of power for Congress to deal with national problems, and federalism should remain an important value.
    A Post-Colonial Theory "Agenda" for the UN Committee on Economic, Social and Cultural Rights Journal of Gender, Social Policy & the Law, Vol. 10, No. 3 Mary Beth Lyon Villanova University - School of Law Abstract:
      This article uses post-colonial theory to examine the cluster of international human rights known as economic, social and cultural rights. The article surveys the jurisprudence of the UN Committee on Economic, Social and Cultural Rights, making it relevant for scholars of international human rights as well as post-colonial theory. Traditionally, international human rights divide into two branches: 1) civil and political rights, and 2) economic, social and cultural rights (ESCRs). ESCRs were virtually ignored during the cold war era, but they now receive expanded attention at the international and regional levels. The creation of the UN Committee on Economic, Social and Cultural Rights in the mid-1980s began this process. The Committee has been highly influential in ESCR norm development. Post-colonialism is a branch of critical theory aimed at exposing the exploitative and paternalistic legacy of the international community's relationship to former colonies in the developing world. There is a small body of post-colonial theory literature examining international human rights, but it focuses on civil and political rights. The author, a specialist in ESCRs, seeks to engage theorists with another branch of human rights. ESCRs should be of interest to post-colonial theorists because these rights implicate economic national sovereignty, most importantly social spending. Developing country social spending has been uniquely politicized in post-colonial north-south relations through controversies over structural adjustment and trade liberalization. Post-colonial theorists should acknowledge that emerging ESCR jurisprudence and Committee procedures are responsive to north-south concerns on many levels. For example, the Committee's Concluding Observations concentrate on recommendations rather than on "violations." This modality permits sensitivity to differential southern budgetary realities while facilitating critique of wealthy egalitarian countries. A second example is that the Committee is progressive, within its limited means, about facilitating participation by "subaltern" southern groups. An important challenge post-colonial theory presents to the emerging ESCR regime is the Committee's record on encouraging southern governments to protect social welfare spending from external pressure. What does it mean for a country to cut social spending by IMF mandate, incur external debt for large-scale development projects through World Bank, and lower trade barriers pursuant to the WTO, only to be condemned by a UN human rights body for any resulting intensification of hunger, ill health and population displacement? The Committee could adjust its processes to better address this conundrum by routinely pursuing and analyzing information about the status of international negotiations.
    The Regime Complex for Plant Genetic Resources International Organization, Spring 2004 Kal Raustiala and David Victor Princeton University - Program in Law & Public Affairs and Stanford University - Program on Energy and Sustainable Development Abstract:
      This article examines the implications of rising density on the evolution of international institutions. Despite the increase in international institutions scholarship on regimes has continued to embrace the assumption that individual regimes are decomposable from others. We contend that an increasingly common phenomenon is the "regime complex": a collective of partially-overlapping and non-hierarchical regimes. Regime complexes develop in special, often path-dependent ways. They are laden with legal inconsistencies because the rules in one regime are rarely negotiated in the same institution or at the same time as rules in related regimes. The architects of these regimes attempt to avoid the most serious inconsistencies by adopting broad rules that allow for multiple interpretations; in turn, solutions refined through efforts at implementing these rules focus later rounds of negotiation and legalization. We illustrate the concept and the evolution of a regime complex using the rarely-studied issue of plant genetic resources (PGR). Over the last century governments have created property rights in these resources in a Demsetzian process: as new technologies and ideas have made PGR far more valuable, firms and governments have mobilized and clashed over the creation of property rights that allow the appropriation of that value.
    Attorneys Fees in Class Action Settlements: An Empirical Study Theodore Eisenberg and Geoffrey Miller Cornell Law School and New York University School of Law Abstract:
      Study of two comprehensive class action case data sets covering 1993-2002 shows that the amount of client recovery is overwhelmingly the most important determinant of the attorneys' fee award. Even in cases in which the courts engage in the lodestar calculation (the product of reasonable hours and a reasonable hourly rate), the client's recovery generally explains the pattern of awards better than the lodestar. Thus, the time and expense of a lodestar calculation may be wasteful. We also find no robust evidence that either recoveries for plaintiffs or fees of their attorneys increased over time. The mean fee award in common fund cases is well below the widely-quoted one-third figure, constituting 21.9 percent of the recovery across all cases for a comprehensive data set of published cases. A scaling effect exists: fees constitute a lower percent of the client's recovery as the client's recovery increases. Fees are also correlated with risk: the presence of high risk is associated with a higher fee, while low risk cases generate below-average fees. Fees as a percent of class recovery were found to be higher in federal than state court. The presence of "soft" relief (such as injunctive relief or coupons) has no material effect on the fee, whether or not the soft relief was calculated in the quantified benefit for the class used as the basis for computing the attorney's fee. The study also addressed costs and expenses. Like fees, these displayed significant scale effects. The paper proposes a simple methodology by which courts can evaluate the reasonableness of fee requests.
    The Effects of Taxation on Income-Producing Crimes with Variable Leisure Time Avraham Tabbach University of Chicago - Law School Abstract:
      The existing literature on the effects of taxation on income-producing crimes lays claim to several important implications: first, that a pure income tax regime maintains the (efficient) level of crime with respect to risk neutral offenders; second, that the current U.S. income tax laws under which legal and criminal income are taxable but fines are nondeductible reduce crime unambiguously; third, that a shift from a pure income tax to the current U.S. income tax laws also reduce crime. The papers obtaining these results assume implicitly or explicitly that leisure time is fixed. The purpose of this note is to examine the robustness of these results when leisure time can vary. It is shown that unless some strong restrictions are imposed on the utility function no clear results can be obtained. But if offenders are risk neutral and the utility function is separable, then a pure income tax regime will reduce both legal and criminal activities, while the current U.S. income tax laws will reduce crime, but they will have an ambiguous effect on work. In addition, a shift from a pure income tax regime to the current U.S. income tax laws will have its expected effect of reducing crime.
    Who Is Andrea Yates? A Short Story About Insanity Duke Journal of Gender Law and Policy, Vol. 10, pp. 1-139, 2003 Deborah Denno Fordham University School of Law Abstract:
      This article examines in detail the different stories behind the Andrea Yates death penalty case - the defense's, the prosecution's, and the explanation that Yates herself provided. The jury did not accept the defense's story that Yates was insane and thought she was under Satan's influence at the time she drowned her five children in the bathtub. Rather, the jury convicted Yates and sentenced her to life in prison based on the prosecution's story that Yates was sane and acting intentionally when she killed her children, even though she was mentally ill. Yates herself fueled the prosecution's account and, of course, to her detriment. She felt that she had sinned and that she deserved to die. The most persuasive storyteller of them all, however, was Park Dietz, the prosecution's star expert witness and the focus of this article. Despite his reputation for emphasizing "facts" and his ability to offer a much simpler landscape of Yates' mental state, this article contends that Dietz's level of speculation was troubling. There was little, if any, empirical basis for his conclusions, and his sweeping conjecture spotlighted his lack of expertise in postpartum depression and postpartum psychosis. Although Dietz's version of "Who is Andrea Yates?" was convincing to the jury, a thorough analysis of his trial testimony suggests that it is difficult to discern how much reality was behind it. This article's evaluation of the Andrea Yates case makes no claim to have the "right" story, whatever that is. Based on the limited amount of information yet available on the case, it had other goals. Most particularly, the discussion accentuates the powerful influence of expert testimony regardless of the questionable nature of its content.
    Law, Share Price Accuracy And Economic Performance: The New Evidence Merritt Fox, Artyom Durnev, Randall Morck and Bernard Yeung University of Michigan Law School , University of Miami - Department of Finance , University of Alberta - Department of Finance and Management Science and New York University - General Abstract:
      The value of mandatory securities disclosure is intensely debated. Two big questions occupy much of the attention: Do more accurate share prices contribute to the efficient provision of goods and services in the economy? Even if they do, will mandatory disclosure effectively contribute to share price accuracy? To date, the debate has been largely theoretical. This Article sheds much needed empirical light on the matter. After introducing a new technique from financial economics - R2 - to measure share price accuracy, the Article starts by discussing recent R2 studies by ourselves and others addressing the first question. Using both cross country and cross industry comparisons, the results show that more accurate share prices improve capital allocation and thus do in fact contribute to the efficient provision of goods and services in the economy. The Article then presents a new R2 study that we have conducted addressing the second question. The study examines the effect of a December 1980 change in the SEC's disclosure rule requiring every issuer's filings to contain a section with management's discussion and analysis of the issuer's financial results (the "MD&A" rule). The change required managers to disclose any material information suggesting that the issuer's most recent results are not necessarily indicative of future results. Our study shows that share prices became more accurate a result of the changed rule, suggesting that mandatory disclosure can in fact be effective.

Madison on Fair Use Michael Madison (University of Pittsburgh School of Law) has posted A Pattern-Oriented Approach to Fair Use (forthcoming in the William & Mary Law Review) on SSRN. Here is the abstract:
    More than 150 years into development of the doctrine of "fair use" in American copyright law, there is no end to legislative, judicial, and academic efforts to rationalize the doctrine. Its codification in the 1976 Copyright Act appears to have contributed to its fragmentation, rather than to its coherence. This Article suggests that fair use is neither badly conceived nor badly applied, but that it is too often badly understood. As did much of copyright law, fair use originated as a judicially-unacknowledged effort via the law to validate certain favored social practices and patterns. In the main, it has continued to be applied as such, though too often courts mask their implicit validation of these patterns in the now-conventional "case-by-case" application of the statutory fair use "factors" to the defendant's use of the copyrighted work in question. A more explicit acknowledgement of the role of these patterns in fair use analysis is consistent with fair use and copyright policy and tradition. Importantly, it helps to bridge the often-difficult conceptual gap between fair use claims asserted by individual defendants and the social implications of accepting or rejecting those claims. Finally, a pattern-oriented approach is normatively appropriate, when viewed in light of recent research by cognitive psychologists and other social scientists on patterns and creativity. In immediate terms, the approach should lead to a more consistent and predictable fair use jurisprudence. In the longer term, it should enhance the ability of copyright law to promote creative expression.

An Absolute Must A Non-Socratic Dialogue on Social Welfare Functions. Don't miss this! Brad DeLong strikes again.

Keefer at USD/UCSD At the University of San Diego/University of California at San Diego Law, Economics and Politics Workshop series, Philip Keefer is presenting on the UCSD campus. Here is the abstract:
    There is no consensus – but many competing theories – about the conditions under which political competition supports economic development in some countries but not in others. Theories range from the lack of political “institutionalization” to the lack of elite interest in the economic development of non-elites to voter information and polarization, and variations in electoral institutions. Keefer (2002) argues instead that political incentives to promote development depend on the ability of political competitors to make credible pre-electoral promises to voters. When promises are only credible to voters with whom competitors have personal relationships, patron-client relationships in society are replicated in politics, with notable consequences for policy making. In this paper, significant and previously unnoticed variation in the policy performance of young and old democracies is documented. It is robust to controls for other political explanations. Young democracies are more corrupt and exhibit less rule of law, which is known, but they also exhibit more public investment and lower school enrollment. Consistent with the theory, majoritarian electoral rules and ethnic polarization matter most in countries with fewer continuous years of competitive elections, consistent with the argument that personalized promises to voters matter most in such countries.

Ronald Dworkin on Rights and Terror at NYU At NYU's Colloquium in Legal, Political and Social Philosophy, Ronald Dworkin presents "Rights and Terror" & "What Are Human Rights?"Here is a taste:
    What moral principle should we follow in deciding what rights to allow others we suspected of wishing to harm us? We might begin by asking what principle our government now seems to be following. When we review the variety of new measures to increase security that I described, we may well conclude that the government has been following what we might call the strict principle of American safety absolutely first. This principle assigns near absolute priority to protecting Americans in general against further terrorist attacks. It favors any measure that improves their security, ex ante, even if the improvement is only marginal or speculative, no matter how great the costs may be to the life or liberty or dignity of non-Americans or even of American citizens who the administration believes may have some sympathy with terrorist objectives.

Novak at UCLA At UCLA's Legal History Workshop, Bill Novak (University of Chicago) presents The Legal Transformation of Citizenship in Nineteenth-Century America.

Ben-Shahar at Yale At Yale's Legal Theory series, Omri Ben-Shahar (University of Michigan Law) presents Contracts Without Consent: Exploring a New Basis For Constractual Liability. Here is an abstract:
    This Essay explores an alternative to one of the pillars of contract law, that obligations arise only when there is “mutual assent”—when the parties reach consensus over the terms of the transaction. It explores a new principle of “no-retraction”, under which each party is obligated to terms it manifested, and can retract only with some liability. In contrast to the all-or-nothing nature of the mutual assent regime, where preliminary forms of consent are either full-blown contracts or create no obligation, under the no-retraction regime obligations emerge gradually, as the positions of the negotiating parties draw closer. Further, the noretraction liability regime can be coupled with different damage measures to advance various social goals, including optimal reliance. The theory is applied to areas of contract formation that have produced inconsistent jurisprudence, such as precontractual liability and misunderstandings, and resolves them in a simple and unified fashion. Finally, the analysis provides a fresh understanding of the obligation to negotiate in good faith, and explores a new criterion for gap filling in incomplete contracts.

Barr at Michigan At the University of Michigan's Law and Economics series Michael Barr (Univeristy of Michigan) presents Banking the Poor.

Darwall at Yale Philosophy Stephen Darwall presents The Dignity of Persons and the Second-Person Standpoint at Yale's philosophy department.

Hutto on Pragmatism Dan Hutto (Hertfordshire) presents James and the Truth of Pragmatism: Resisting the Weltanschauung at the University of Hertfordshire Centre for Normativity and Narrative in London.

Chorvat at George Mason At George Mason, Terry Chorvat does an internal workshop entitled Taxes as Insurance.

Taylor on Community and Democracy From the Responsive Community, Charles Taylor has an essay entitled No Community, No Democracy (Part I). Here is a taste:
    [I]t is only insofar as people accept some such answer that the legitimacy principle of popular sovereignty can work to secure their consent. The principle only is effective via this appeal to a strong collective agency. If the identification with this is rejected, the rule of this government seems illegitimate in the eyes of the rejecters, as we see in countless cases with disaffected national minorities. Rule by the people, all right; but we can’t accept rule by this lot, because we aren’t part of their people. This is the inner link between democracy and strong common agency. It follows the logic of the legitimacy principle which underlies democratic regimes. They fail to generate this identity at their peril.
Courtesty of Political Theory Daily Review.

Mattozzi on Uncertainty and Support for Redistribution Andrea Mattozzi (University of Pennsylvania) has uploaded Policy Uncertainty, Electoral Securities and Redistribution. Here is the abstract:
    The paper investigates how ex-ante uncertainty about a government policy with redistributive consequences will influence the proportion of agents in favor of it, if agents can trade policy contingent securities. If a subset of agents can insure against policy uncertainty, support for redistributive policies is always smaller than in a case where no insurance is available. Both the relation between initial inequality and redistribution and the inequality of the expected income distribution after policy uncertainty is resolved depend on the size of the insurance market. Suggestive evidence for the existence and the effects of a “political insurance market” for the US economy are provided.

Transitions The Journal of Contemporary Legal Issues has a new issue (13:1, 2003) with a symposium entitled Legal Transitions: Is There an Ideal Way to Deal with the Non-Ideal World of Legal Change?. Contributors include Larry Alexander, Matthew D. Adler, Abraham Bell, Richard A. Epstein, Jill E. Fisch, Barbara H. Fried, Louis Kaplow, Kyle D. Logue, Frederick Schauer, Daniel Shaviro, and Christopher T. Wonnell. Very interesting stuff.

Wednesday, October 08, 2003
Addition to the Blog Roll I've added The Right Coast, a group blog by my University of San Diego law school colleagues Gail Heriot, Saikrishna Prakash, Michael Rappaport, Maimon Schwarzschild, Thomas Smith, and Christopher Wonnell, to the sidebar.

Catching Up Department: Hermeneutics, free speech & democracy I somehow missed two marvelous posts by Gary Sauer-Thompson at They are titled Hermeneutics, free speech & democracy#1 and (you guessed it) Hemeneutics, free speech and democracy #2. Here is a tiny taste:
    The tacit implication of this hermeneutical response is a rejection of the separation of law and morals, the view that the law is an autonomous discipline and that judicial method cannot legitimately be influenced by political, social or economic factors. The hermeneutic account presupposes that the liberal and democratic ideals of liberal society are also embodied, upheld and defended in Western systems of law. Hence public law is best understood as an interpretation of the political practices of a society. In deciding a legal case, judges decide in accord with the interpretation of the society's institutions and legal texts that best fits and justifies the society's history and practices.

Brocas & Carrillo on Influence Isabelle Brocas & Juan D. Carrillo (University of Southern California and CEPR) have uploaded a paper entitled A Theory of Influence. Here is a taste:
    The paper has argued that an agent with privileged access to information can influence the decision of his peers in two fundamentally different ways. First, with his decision to hide or transmit his private information. Second, with his choice to acquire or forego extra evidence. While the first mechanisms builds on the classical asymmetric information paradigm and has been extensively studied in the literature, the second one has not received any attention. The goal of our paper was to provide a first careful analysis of the rents that can be extracted via that mechanism in a particular game.

Supreme Court Preview Here on Slate from Tom Goldstein, of Scotus Blog.

The Corporate Canon Stephen Bainbridge has a very neat post entitled The Corporate Canon. And check out his review of Ronald Coase's The Firm, The Market, and The Law.

Politicization of the Judiciary Department Over at The Hill, Alexander Bolton has story titled K Street enters fray over bench: At urging of GOP, business sets aside reluctance to fight. Here is a taste:
    After months during which the Senate Republican leadership has urged more active support from corporate America on the issue, business has overcome its concern about being involved in the controversial issue of confirming President Bush’s nominees. The groups remain cautiousbut are anonymously giving tens of thousands of dollars to groups fighting to approve Bush’s choices and wielding their financial muscle in state judicial battles, away from the Beltway’s media spotlight.

Alexander and Prakash on the Nondelegation Doctrine Lawrence Alexander and Saikrishna Prakash (University of San Diego School of Law and University of San Diego School of Law) have posted Reports of the Nondelegation Doctrine's Death Are Greatly Exaggerated on SSRN. This will be coming out in the University of Chicago Law Review. Excellent! Here is an abstract:
    The nondelegation doctrine has roots that extend as far back as three centuries, or so most of us suppose. In The Second Treatise of Government, John Locke listed four constraints on the legislative power, the last that the power, being derived from the People by a positive voluntary Grant and Institution, can be no other, than what that positive Grant conveyed, which being only to make Laws, and not to make Legislators, the Legislative can have no power to transfer their Authority of making Laws, and place it in other hands. Most contemporary readers have assumed two things about Locke's statement: First, that the legislative power was the power to make rules for society. Second, that this delegated power to make laws could not be transferred to third parties because the people had never authorized their agents to further delegate. These two principles underlay the conventional nondelegation doctrine, which maintains that if a statutory delegation of discretion to third parties sweeps too broadly, it will constitute an impermissible delegation of legislative power. In their recent article, Interring the Nondelegation Doctrine, Professors Eric Posner and Adrian Vermeule reconsider the meaning of Locke's epigram and reassess the foundations of the nondelegation doctrine. In their view, the "legislative power" generally references the right to vote on bills in a legislature along with the other de jure powers of legislators. Moreover, Locke's maxim means no more than that the legislature cannot make third parties "legislators" by giving them the power to vote in the legislature. So when Article I of the Constitution speaks of "legislative Powers," it refers to those powers individually held by federal legislators, including most prominently the right to vote on bills. Furthermore, under their "naïve" nondelegation doctrine, these are the legislative powers that cannot be delegated to third parties. Under their view, neither Locke's epigram nor the federal Constitution go further and prohibit broad delegations of discretion to third parties because such delegations do not create legislators and hence cannot delegate legislative power. Accordingly, should Congress delegate to some third party its entire power to "regulate Commerce," Congress has not delegated legislative power at all in either a Lockean or a constitutional sense. Professors Posner and Vermeule deserve praise for reexamining fundamental assumptions about the nature and meaning of legislative power and of the nondelegation doctrine. When scholars don't periodically reconsider conventional wisdom, scholarship stagnates and shibboleths are unreflectively accepted as constitutional gospel. Having said this, we doubt that they truly have laid to rest either the traditional understanding of legislative power or the conventional nondelegation doctrine. Our disagreements are both normative and descriptive. We cannot discern (and they do not advance) a plausible rationale for simultaneously permitting Congress to delegate large amounts of lawmaking or rulemaking discretion to third parties while strictly forbidding delegations of the right to vote in Congress. Moreover, as an original matter, we believe that Locke and the Constitution used the phrase "the legislative power" to refer to the power to make rules for society and not the ability to exercise the de jure powers of legislators. Hence, if one concludes that Congress cannot delegate legislative powers (either because such grants are not authorized or, alternatively, are implicitly forbidden), one must be worried that at some point, the delegation of large amounts of discretion might constitute a delegation of legislative power. Furthermore, whatever meaning one should ascribe to the phrase "legislative Powers" found in the Article I Vesting Clause, we think that Posner and Vermeule too quickly reject the conventional reading of Locke's nondelegation principle. Their revisionist reading simply cannot make sense of Locke's repeated claims that only those whom the people have appointed as legislators can make rules for the people. Locke denied that the legislative power entailed the power to make third parties into legislators by delegating to them the right to make laws. He was not merely claiming that those with the legislative power could not cede votes in the legislature. Finally, we conclude that if Posner and Vermeule applied the relentless criticism that they visit upon the conventional nondelegation doctrine to the naïve prohibition on the delegation of legislative voting rights, the naïve prohibition would seem equally dead. The "heavy burden" that they insist applies to the conventional nondelegation doctrine makes all implicit constraints extremely dubious. Perhaps we should prepare for two interments rather than one. Although we have sympathy for the conventional nondelegation doctrine, space considerations prevent us from mounting an adequate defense of it here. Hence, all we claim is that if one concludes that the delegation of legislative power is impermissible (for whatever reason), one must have in mind a prohibition akin to the conventional nondelegation doctrine. If, as Posner and Vermeule claim and as many others believe, the Constitution prohibits the delegation of legislative power, the nondelegation doctrine is alive and kicking.

de Botton in London on the Consolations of Philosophy Alain de Botton presents Can, and Should, Philosophy Console Us? at Heythrop College, London.

Mann on Regulating Paypal Ronald Mann (University of Texas at Austin - School of Law) has posted Regulating Internet Payment Intermediaries (forthcoming Texas Law Review, 2004) to SSRN. Here is the abstract:
    This paper examines legal and policy issues raised by changes in payment methods related to the rise of the Internet. The two major changes – the rise of P2P systems like PayPal, and the rise of Internet billing systems (EBPP) to replace the use of paper bills and checks – both involve new intermediaries that facilitate payments made by conventional payment systems. The paper first discusses how those systems work. It then discusses problems in the framework currently used to regulate those systems in the United States, which has not been updated to protect consumers from the special problems those systems raise. Finally, the paper considers problems with the potential shift of payments services from the heavily regulated banking industry to new and unregulated Internet-related startups. The paper considers a variety of strategies for producing a level field of competition between banks and the new entities and at the same time providing adequate protection for the consumers that use the systems in question.

Two from Shaviro Two new papers from David Shaviro (NYU) on SSRN:
    Rethinking Tax Expenditures and Fiscal Language:
      Tax expenditure analysis is like a hardy plant with shallow roots that spreads widely, resisting the occasional effort to extirpate it, and yet has little if any effect on the soils in which it sprouts. At least sixteen countries release tax expenditure data pertaining to various taxes. However, public acceptance of tax expenditure analysis has been compromised by concern that it requires undue consensus as to the proper "reference tax base," or else that it implies regarding all money as the government's. A more valid concern is that its treatment of certain tax rules as "really" spending mistakenly presupposes that the distinction between "taxes" and "spending" is economically meaningful to begin with. The prevalence of objections, including mistaken ones, to tax expenditure analysis is in part attributable to Stanley Surrey's over-reaching when he initially proposed it with respect to the United States income tax. A measure that he presented as merely a neutral budgetary tool was widely and accurately recognized as also a tool for promoting his particular policy aims with regard to tax reform and progressivity. Fiscal language inevitably has a dual character, as a weapon of political combat in addition to a tool of purportedly objective description, and proponents on both sides of fiscal language debates rarely sort out the two functions very scrupulously. While also exploring fiscal language issues more generally, the article attempts to put tax expenditure analysis on a more fundamental basis, by relating it to Richard Musgrave's famous distinction between the allocation and distribution branches of government. Tax expenditures are most usefully defined as provisions in the tax rules that seem to reflect the operations of the allocation branch rather than the distribution branch. It is important to distinguish, however (as tax expenditure analysis heretofore has not) between (1) tax rules that seem clearly allocative rather than distributional, such as weapons appropriations that are accomplished through tax credits, (2) tax rules whose distributional merits are reasonably debatable, such as medical deductions, and (3) tax rules that seem to reflect the administrative needs of the distribution branch rather than the direct aims of distribution policy. In addition, it is reasonable, as the Treasury Department proposed in 2003, to estimate negative as well as positive tax expenditures (i.e., penalties as well as subsidies), and to prepare estimates from a consumption tax as well as an income tax perspective.
    Reckless Disregard: The Bush Administration's Policy of Cutting Taxes in the Face of an Enormous Fiscal Gap:
      The Bush Administration's policy of sharply cutting taxes while increasing government spending is both misguided and harmful. Presumably rationalized in private as a way of shrinking government over the long term without paying a current political price, it in fact increases the government's distributional intervention by handing money to current voters at the expense of younger and future generations. The Bush policies have increased the future tax increases that are likely to be necessary. In addition, they are likely to require additional Social Security and Medicare cuts that can be seen in large part as negative taxes, refunding some of the positive lifetime net taxes that future retirees will by then have paid. Reducing future negative taxes is a lot like increasing future positive ones. The fiscal gap is largely growth-proof because so much government spending, no less than taxes, is effectively pegged to the size of the economy. This means that we cannot outgrow it in the manner of past wartime national debts. High economic growth would concededly make default on the government's implicit obligations considerably less painful. However, the fiscal gap has the potential significantly to reduce economic growth, for two main reasons. First, it may result in large tax increases on workers to keep benefits flowing to seniors, reducing saving because the workers would have saved more of the transferred funds. Second, it may lead to an Argentina-style meltdown in the U.S. government's position as a borrower in world capital markets, potentially yielding chronic inflation, unemployment, and bank and currency crises that affect our economic productivity for an indefinite period. The Bush Administration's policy of increasing the fiscal gap ought to be reversed as soon as possible, on both the tax and spending sides of the ledger. How this ought to be done is beyond this article's scope, although I have discussed aspects of it elsewhere. Current seniors ought to share in the burden, however, both through tax increases and Social Security and Medicare reform that should take account of differences in people's ability to pay. Unfortunately, policy changes in the near future are more likely to make things worse than better.

Bernstein on the Pros and Cons of Marriage Anita Bernstein (Emory University School of Law) has posted For and Against Marriage: A Revision (forthcoming Michigan Law Review, Vol. 102, No. 2, November 2003) on SSRN. Here is the abstract:
    Recent developments emphasize that marriage is a legal artifact. No matter what end they pursue - extending marriage to same-sex couples, a "defense of marriage" that seeks the opposite goal, reform of divorce rules, or marriage promotion as social policy-marriage activists are fighting over rights, entitlements, and appropriations. As their wins and losses reveal, the legal effects of two persons' joining together into a dyad are not static. Legislatures and governments bestow the law of marriage, and can also take it away. More change is possible: Marriage could cease to exist as a legal category. Under this proposal, the government would ignore pairings-off, intervening in couples' lives only as it now uses the law of contracts, tort, crimes, and property to moderate relations between any other pair of adults. This paper considers what such a change would do to American law and society. It explores the current legal consequences of getting married and of ending a marriage, and then moves from individuals to the collective, assessing detriments and benefits that Americans as a group experience as a result of recognizing this legal category. In the end, although it finds the prevailing rationales for marriage unconvincing, the paper favors retention over abolition.

Parisi & Mattiacci on Communal Liability in Ancient Law Francesco Parisi and Giuseppe Mattiacci (George Mason University School of Law and Utrecht School of Economics) have posted The Rise and Fall of Communal Liability in Ancient Law on SSRN. Here is the abstract:
    In ancient societies, rules of communal responsibility permitted the imposition of retaliatory sanctions on a wrongdoer's clan. These rules followed the collective ownership structure of early communities. Over time, notions of personal responsibility emerged, terminating the transfer of responsibility from one member to the whole clan. This paper intends to provide an economic explanation for this transition.

Catholic Social Thought and the Corporation Surf here for Stephen Bainbridge's thoughts. Here is a taste:
    Catholic social teaching scarcely can be described as rabidly pro-capitalism. John Paul, for example, describes corporate profits as a mere “indicator that a business is functioning well.” (Centesimus Annus, 43) As the Catechism explains, moreover: “Those responsible for business enterprises are responsible to society for the economic and ecological effects of their operations. They have an obligation to consider the good of persons and not only the increase of profits.” (Catechism, 2432) Contrast that conception of the corporation’s profit-making function with the Michigan supreme court’s famous command in Dodge v. Ford Motor Co., 170 N.W. 668 (Mich. 1919), that: “A business corporation is organized and carried on primarily for the profit of the stockholders. The powers of the directors are to be employed for that end.” (684) Or, as Milton Friedman (1970) even more famously put it, “the social responsibility of business is to increase its profits.”
And Bainbridge has another good post entitled Solidarity's Debt to Burke.

Tuesday, October 07, 2003
The Annals of Oral Argument: The Medical Cannabis Cases, Part II
    Tuesday Morning in San Francisco It is Tuesday morning and I am blogging from Courtroom Three of the headquarters of United States Court of Appeals for the Ninth Circuit (Circus?) in San Francisco. I’m back in Baghdad by the Bay (old nickname, new connotations) for the oral argument in Raich v. Ashcroft--a case that raises issues that are similar to those in United States v. Oakland Cannabis Buyer’s Cooperative (For my report of the oral arguments in the OCBC case, go here.) The three-judge panel consists of Judge Pregerson, Judge Paez, and Judge Beam (Beam is a senior Judge from Lincoln, Nebraska, in the Eighth Circuit, sitting by designation.). Two of these judges (Paez and Pregerson) are among the most liberal on the federal bench, and this is certainly a case with a political dimension.
    The Ninth Circuit’s San Francisco headquarters are stodgy and unassuming from the outside, but the interior spaces, especially the courtrooms and judicial chambers, are spectacular—one of the most ornate public buildings in the United States. Courtroom Three is filled with elaborate marble panels, frescoes, stained glass skylights, and elaborate carvings. The room leaves no doubt—we are in a place where power claims the trappings of majesty.
    The medical cannabis cases arise because of a conflict between state and federal law. The voters of the state of California adopted an initiative that legalizes the medical use of marijuana, but under federal law, Marijuana is a controlled substance, not authorized for medical use. The Controlled Substances Act essentially prohibits growing, selling, distributing, possessing, and using marijuana, without regard to whether the marijuana crossed state lines, was commercial or noncommercial, or was employed for medical or nonmedical purposes.
    Raich v. Ashcroft involves “home grown” marijuana for personal medical use. One of the two cases involves a plaintiff who grew her own; the other involves a plaintiff who is too ill to grow her own and receives the cannabis from a friend who grows it for her without payment or compensation. Thus, one of the issues in Raich is whether Congress has the power to prohibit the wholly intrastate, noncommercial (and noneconomic) production and consumption of cannabis for medical purposes. The plaintiffs also argue that the federal statute runs afoul of state sovereignty (the 10th Amendment), implied fundamental rights (the Due Process clause & the Ninth Amendment), and the general constitutional liberty recently relied upon by the Supreme Court in Lawrence v. Texas--the gay sex case from last term.
    The Argument Begins There are two cases on the docket before Raich v. Ashcroft—the first of which involves an evidentiary issue that had a tangential connection with medical marijuana. The second case involved a doctor whose right to prescribe controlled substances was suspended by the Drug Enforcement Administration—again, on appeal medical marijuana was only tangentially connected with a waiver of hearing issue. Finally, Harry Pregerson, the most senior Ninth Circuit member of the panel, calls Raich. Randy Barnett (known to blogosphere as a member of the Volokh Conspiracy, and a prominent constitutional law scholar) is now at the podium. Barnett begins, a statement of the question, and then says:
      How can it be that Congress cannot prohibit the possession of guns out of schools and cannot stop violence against women, but has the power to prohibit the use of wholly intrastate, noncommercial cannabis.
    The first interruption comes from Judge Paez who asks about the relationship of Raich and last month’s OCBC case. Barnett explains that Raich, unlike OCBC, involves wholly noneconomic activity—and hence is outside of Wickard v. Filburn.
    And this question take us to the heart of an extraordinary constitutional issue: what is the limit of the power of the national government in our federal system? One of the marvels of the Raich case is that it exposes an extraordinary fact: more than two hundred years after the Constitution was adopted, the federal courts are still puzzling over the fundamental nature of the limits of federal power. The back story of Raich goes back to the Constitutional Convention in Philadelphia and includes Justice John Marshall’s decision in McCulloch v. Maryland, but we can fast forward . . .
    Interlude: The Constitutional Context
      The Commerce Clause The United States Constitution does not grant a general legislative power to Congress. Instead, Article I, Section 8 grants a set of limited a enumerated powers (and other powers that are “necessary and proper” to the exercise of the enumerated powers). Historically, the most important of these powers has been the power to regulate “Commerce among the several States,” the interstate commerce power. In Raich, the government does not argue that Congress is directly regulating interstate commerce—how could it, since the activity in Raich is wholly intrastate and noncommercial—rather, the government argues that it may reach activities that are entirely inside a state and that are not economic when that is “necessary and proper” to its exercise of the commerce clause power.
      From the New Deal to the Rehnquist Court The Commerce Clause has a long and complex history, but a crucial turning point came in 1937, when the Supreme Court began to take an expansive view of Congress’s commerce power. Fast forward just a few years to Wickard v. Filburn, which held that Congress could regulate “home grown” wheat that a farmer used to feed livestock which then entered the “stream of commerce.” The theory of Wickard was that the cumulative effect on interstate commerce of all farmers who used “home grown” wheat to feed livestock was significant—hence the phrase “cumulative effects test.” By the 1960s, many academics believed that the Supreme Court had adopted the view that the Commerce Clause granted Congress plenary legislative power--essentially nullifying the original constitutional scheme of a federal government that had only limited and enumerated legislative powers. When I took Constitutional Law from Laurence Tribe at Harvard in the 1980s, this was the conventional wisdom. (Indeed, law students complained about having to study all of the ancient history (including lots of cases), when the black letter law was that Congress’s commerce power was essentially unlimited. But the Supreme Court itself never actually adopted the plenary power interpretation of the commerce clause, and until the 1980s, Congress itself was careful to legislate within the broad (but not unlimited) sphere of authority that the Supreme Court had approved in cases like Wickard.
      But in the mid-1990s, the Rehnquist Court started a constitutional “revolution” (or “restoration”) in two cases, Lopez and Morrison. In the first case, Lopez, the Court struck down the Gun Free School Zones Act, which prohibited the possession of a firearm within a certain distance from a school. Lopez was initially regarded as a mere blip—partly because Congress had gotten careless and had not made any findings that the guns near schools somehow had a significant cumulative effect on interstate commerce. But that interpretation of Lopez was laid to rest in Morrison, which involved a challenge to the Violence Against Women Act (VAWA). When Congress passed VAWA, it knew about Lopez, so it made explicit findings that intrastate violence against women had a significant effect on Interstate commerce. But the Supreme Court nonetheless struck VAWA down. The crucial bit of reasoning in Morrison was that the Wickard v. Filburn cumulative effects test simply does not apply when the activity that Congress regulates is noneconomic in nature. Fattening livestock for sale is economic activity, but possessing a gun near a school or assaulting a woman are not economic activities.
      The Issue in Raich So it is easy to see the government’s difficulty in Raich. Using homegrown marijuana that is not sold or bartered or transported across state lines is noneconomic, intrastate activity. Indeed, if Congress had passed a statute that specifically targeted the activities of the Raich plaintiffs, it is seems almost certain that it would be struck down. But the Controlled Substance Act is not limited to intrastate, noncommercial marijuana; it extends to all controlled substances, commercial and noncommercial, interstate and intrastate. So the government’s argument is that by legislating broadly, Congress can reach the whole enchilada, whereas the plaintiffs argue that Congress cannot ignore the distinction between intrastate and interstate, commercial and noncommercial activity—because those distinctions are built into the Constitution itself.
    Back to the Argument Enough history! Barnett is now answering a question from Judge Beam, who asks whether first about whether the state’s legalization of the activity is relevant. Barnett concedes that it is not relevant. Judge Beam then turns to Wickard and suggests that the wheat in Wickard is like the marijuana in Raich Barnett gives the perfect answer: Mr. Filburn had a farm and was engaged in commerce. Judge Beam then noted that Mr. Filburn sold to a local government, and again Barnett comes back with the right answer—which is that the crucial question is whether the activity in question is economic activity, because Morrison and Lopez make this the trigger for the application of the Wickard.
    The Government’s Turn The United States is represented by Mark Qinlivan, who begins by emphasizing the Ninth Circuit precedents, before and after Lopez. Judge Pregerson asks whether any of those cases were on all fours with Raich. Qinlivan concedes that there is not, but argues that there are analogous cases, for example, a case involving marijuana plants that are “rooted in the soil.” But, asks Pregerson, did those cases involve medical use of marijuana. Qinlivan then moves to an argument he made in the OCBC, that the lack of a medical necessity defense somehow settles the constitutional question as to what the class is in cases like Raich. Judge Paez then asks about the McCoy case—in which the Ninth Circuit used an “as applied” test in a case involving “home grown” pornography. Qinlivan then argues that McCoy should be interpreted narrowly. Judge Pregerson goes back to the fundamental question: isn’t this a case that does not involve “economic activity.” Qinlivan then makes a huge mistake—arguing that in the OCBC there was economic activity, emphasizing the very distinction that Pregerson has pressed upon him. Qinlivan recovers and argues that the class involved in Raich is trivial. This is the heart of the government’s position—that noncommercial, intrastate medical marijuana cannot be viewed as a distinct class of activity. Why? Because if the government were to concede that this is the relevant class of activity, then the invalidity of the statute would almost surely follow!
    Pregerson goes back to the “rooted in the ground” case and points out that that case involved marijuana grown for sale. Qinlivan concedes this point, but once again goes back to his strong point—the prior cases that upheld the Controlled Substance Act against commerce clause challenges. Qinlivan then discussed the state sovereignty theory and the individual rights theories. Judge Paez asks whether the Ninth Circuit had addressed the fundamental rights issues in its prior case--OCBC, which Barnett and Qinlivan argued last month. There is some back and forth on this issue. Qinlivan is much more effective today than he was in OCBC—sticking to his strongest argument that the prior decisions (mostly pre-Morrison and pre-Lopez) which held that the Controlled Substances Act was constitutional. Judge Pregerson asks about a new drug derived from marijuana that has been developed in Germany, and Qinlivan jumps on this to argue that such new drugs could be approved by the FDA.
    Rebuttal Barnett now takes the podium again. He quickly points to the California Medical Association’s brief that discuss the medical issues in the case. He then turns to the heart of the Qinlivan’s argument—precedent. Barnett points out that the government’s cases either involve economic activity or were decided before Morrison. Paez asks about the Ninth Circuit’s decision in McCoy, “Isn’t this a McCoy case?” Barnett is happy to answer, “Yes.” This is a significant point in the argument. If the panel does view Raich as closely analogous to McCoy, then the plaintiffs should prevail. Barnett returns to his opening theme and suggests that the virtue of McCoy is that it took the Morrison and Lopez decisions seriously. He handles a few miscellaneous points, and then the argument is . . .
    Finis! The next case is called, and the argument in Raich is over. The conventional wisdom is that oral argument rarely affects the outcome of an appellate case. Appeals are won or lost on the merits (the law, the facts, and procedural history) and the briefs. By the time the case is argued, the judge has read the briefs and probably a “bench memorandum” from a law clerk—and already has a clear understanding of the issues. But oral argument sometimes makes a difference—especially when the advocate is sensitive to the issues that are bothering the appellate Court. In this case, the predispositions of the panel are somewhat murky. On one hand, we might expect that Judges Pregerson and Paez would be sympathetic to the plaintiffs cause. On the other hand, liberal judges might be disposed to limit the Supreme Court’s Morrison and Lopez decisions. Based on my reading of the oral argument—a perilous business at best—the panel seemed generally sympathetic to plaintiffs and skeptical of the government’s position. Both Barnett and Qinlivan argued strongly. It will certainly be an interesting opinion, no mater how the panel comes down.

Kenneth Anderson at Texas At the University of Texas Faculty Colloquium series, Kenneth Anderson (American University) presents International NGOs and Legitimacy. I wish I could be there!

Gill on the Economcis of Duress At the University of Chicago's Olin series, Oren Bar Gill (The Society of Fellows, Harvard University) presents Credible Coercion: Economic Analysis of the Duress Doctrine in Contract Law.

Mossoff Rescues Locke from Obscurity Adam Mossoff (Michigan State University-DCL College of Law) has posted Locke's Labor Lost (forthcoming University of Chicago Law School Roundtable, Vol. 9, p. 155, 2002) on SSRN. Here is an abstract:
    Although John Locke's political philosophy has had an enormous impact on American politics and law, his theory of property is derided by many contemporary scholars as "absurd," "incoherent," "meaningless," and "a joke." It is alleged that "mixing labor" cannot explain why Robert Nozick has not foolishly wasted his (radioactive) tomato juice that he dumps into the ocean, and why Jeremy Waldron cannot claim ownership in a block of cement in which he has dropped his sandwich. Locke's labor argument for property is omnipresent in American policy debates, but today it is often relegated to the status of mere rhetoric or it serves only as a foil for a more "sophisticated" understanding of the nature of property rights. This article proposes an interpretation of Locke's property theory that rescues it from the intellectual trash bin in which it has been discarded. A proper understanding of the arguments in Chapter Five of the Second Treatise requires that one first place them within their intellectual context - specifically, the context set by Locke's moral philosophy. From this perspective, it is apparent that "mixing labor" is a metaphor that Locke employs to capture the full panoply of productive activities that are morally sanctioned by an individual's primary moral duty: the preservation of one's life. When one interprets Locke's property theory within this framework, the other elements of his property theory, such as his explanation for the development of money and the labor theory of value, fit easily into place, creating an internally consistent and fully integrated conception of the genesis and nature of property. This is significant because early Americans used Locke's theory to justify our political and legal property rules - and the continuing evolution of these rules today may benefit from their original Lockean justification.
[T]herefore welcome the sour cup of prosperity!

Law, Ethics, and Affirmative Action at the University of Cincinnati Today at the University of Cincinnati College of Law, Law, Ethics, and Affirmative Action in America Here is the 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

Galston on Civic Renewal Miriam Galston (The George Washington University Law School) has posted Civic Renewal and the Regulation of Non-profits on SSRN. Here is the abstract:
    Civic Renewal and the Regulation of Non-profits analyzes four understandings of civic renewal, elaborated in the wake of Robert Putnam's book Bowling Alone, in light of the federal regulatory scheme imposed upon voluntary associations that qualify as "exempt organizations" under the Internal Revenue Code. These perspectives emphasize the primacy of one or more of the following as indispensable elements of civic health: (1) cooperation and effective collective action, (2) self-governance (3) equality and representative institutions, and (4) the moral character of the community or the public spiritedness of citizens. The study analyzes how the different assumptions and purposes of these distinct perspectives on civic health suggest different, sometimes incompatible, recommendations for civic life and, by implication, for how voluntary associations should be regulated. Because voluntary associations are central to most prescriptions for revitalizing civic health, the analysis reviews the empirical data bearing on the dynamics of associations and the impact participation has on association members. I then evaluate the expectations expressed by advocates of civic renewal in light of these empirical findings. I conclude that increased participation in voluntary organizations has the potential to further the civic goals of the first (cooperation) and third (equality and representative institutions) perspectives. In contrast, based upon the empirical evidence reviewed, I question whether it is reasonable or useful for civic renewal advocates to portray associational life as an important potential source of increased public spiritedness (the fourth perspective) or the attributes necessary for reflective self-governance (the second perspective). The alternative is for those who emphasize the latter two aspects of civic health to recognize that certain substantive civic values must be nurtured in areas outside of the formal institutions of civic life rather than expected as the automatic or likely byproduct of a robust civil society. The heart of the study takes these findings and uses them to evaluate the existing regulation of voluntary associations by the Internal Revenue Code (the predominant source of the federal regulation of non-profits). In particular, I seek to clarify the ways in which existing tax rules further or undermine one or more of the civic goals elaborated in the first part. This part of the analysis also makes specific recommendations for regulatory reform to enhance the usefulness of non-profits for furthering the goals of each of the four civic renewal understandings.

Staudt on Standing Nancy Staudt (Washington University Law School) has posted Modeling Standing (forthcoming New York University Law Review, 2004) to SSRN. Here is the abstract:
    This article investigates judicial standing decisions in the context of highly controversial lawsuits: taxpayers challenging the constitutionality of government expenditures (for example, congressional expenditures on war efforts, welfare programs, affirmative action policies, and abortion). Upon reviewing roughly 700 cases, from every level of the judicial hierarchy, this study challenges the existing scholarly view on standing - that judges make decisions in a purely political manner and without any regard for existing legal precedent. Relying on statistical models, this article uncovers a pattern of decision making that is highly correlated with two factors often ignored in the existing literature: the judge's position in the judicial chain of command and the coherence of the legal doctrine at play. Lower level courts, those subject to extensive oversight and monitoring by higher level courts, tend to be rule-bound and consistent but as the controversy moves up the judicial decision making ladder, courts pay less and less attention to precedent-deciding cases in a manner than conforms more to the judges' own personal and political preferences. These findings are robust and thus have implications for the proposed standing reforms set forth by various scholars over the course of the last twenty-five years. Accordingly, the final part of the article assesses two well-known standing proposals against the empirical results of this study and finds that they may not achieve the authors' goal of taming a judge's inclination to purse politics in standing controversies. This quantitative piece is a companion to a qualitative article entitled, "Taxpayers in Court: A Systematic Study of a (Misunderstood) Standing Doctrine," 52 Emory Law Journal 771 (2003).

Redlawsk on Hot and Cold Cognitive Mechanisms David Redlawsk (University of Iowa - Department of Political Science) has posted Hot Cognition or Cool Consideration? Testing the Effects of Motivated Reasoning on Political Decision Making (forthcoming Journal of Politics, Vol. 64, pp. 1021-1044, 2002) on SSRN. Here is the abstract:
    Researchers attempting to understand how citizens process political information have advanced motivated reasoning to explain the joint role of affect and cognition. The prominence of affect suggests that all social information processing is affectively charged and prone to biases. This article makes use of a unique data set collected using a dynamic information board experiment to test important effects of motivated reasoning. In particular, affective biases should cause citizens to take longer processing information incongruent with their existing affect and such biases should also direct search for new information about candidates. Somewhat perversely, motivated reasoners may actually increase their support of a positively evaluated candidate upon learning new negatively evaluated information. Findings are reported that support all of these expectations. Additional analysis shows that these affective biases may easily lead to lower quality decision making, leading to a direct challenge to the notion of voters as rational Bayesian updaters.

New Papers on the Net Here is today's roundup:
    Come The Revolution: Are We Finally Ready For Universal Health Insurance? California Western Law Review, Vol. 39, p. 303, 2003 Susan Channick California Western School of Law Abstract:
      Cyclically, social, economic, and political forces catapult the issue of health insurance to the top of the national consciousness. Rising health care costs, a relatively long recession, rising unemployment, and growing number of uninsured Americans makes today just such a time. One factor that distinguishes today's health care access crisis from others is the impact on a vocal, visible and voting constituency - the employed middle-class. A spate of federal and state legislation proposing some type of universal health insurance is evidence of public dissatisfaction with the health care access status quo. I argue that while there may be tacit agreement that it is a national disgrace that between 40 and 60 million Americans are uninsured at some time during the calendar year, universal health insurance is an improbable solution. In a time when market models are the accepted answer to many traditionally public sector problems, it is hard to imagine that a social insurance model for health care could be politically successful. Mounting federal and state budget deficits make untenable the additional allocations of GDP necessary to fund universal health insurance. In addition, social insurance is explicitly dependent on the cross-subsidization of health care from the insured to the uninsured and from the healthy to the sick. I conclude that our culture of individual rights makes such a philosophical shift very unlikely.
    Negotiations of Law and Gender: Living Shari'a in Iran Louise Halper Washington and Lee University - School of Law Abstract:
      Recent World Bank and United Nations data on health, literacy, reproductive life, labor force participation and political participation reveal favorable trends in the status of Iranian women. I suggest that it is the action of women, the agency of women, acting together with men, but specifically and consciously as women, that may be a crucial factor accounting for these trends. Though post-revolutionary Iran presents a context in which religious law historically unfavorable to women prevails, they have successfully made claims upon the state, based on their activity in the revolutionary period.. The Islamic Republic of Iran (IRI), committed though it was to a legal regime that had for centuries embedded discrimination against women, nonetheless had to rely upon the active support of women for its creation and continued legitimacy. Thus, despite adopting a variety of retrograde gender policies, it also encouraged women to be politically active and in return was required to respond to the demands that activism threw up. To examine how shari'a, or divine law, currently the foundation of the IRI's legal regime, has been negotiated, modified, procedurally adapted, and legislatively changed by and in respect to women, I use the law of marriage and divorce as an example and discuss its post-revolutionary course, examining the formal changes in marriage law after the revolution when shari'a became the law of the state and its surprising subversion, leading first to the informal retention of the pre-revolutionary law of marriage and divorce and then to its formal re-codification.. Subsequently, I discuss why this occurred and what it reveals about the current status of women in Iran. First, I examine the situation of women before and during the revolution, afterwards looking at the impact on the legal regime of the politics of the revolutionary and post-revolutionary period to explain how women gained sufficient power to reorient the IRI's understanding of shari'a in respect to marriage and family, as well as other matters like education and employment. Then, I examine the phenomenon of "Islamic feminism" and the attempts to reconceive a religious jurisprudence that eliminates misogynistic tendencies. In the end, I conclude that in Iran, shari'a, like other law, is open not only to interpretation but to modification and change, through a process of political and social negotiation.
    The Constitutional Structure and the Jurisprudence of Justice Scalia St. Louis University Law Journal, Vol. 47, No. 3, 2003 Bradford Clark George Washington Law School Abstract:
      Commentators generally regard federalism and separation of powers as distinct features of the constitutional structure. In reality, these doctrines were designed to work together to further the same goals: to avoid tyranny and to preserve individual liberty. Professor Thomas Merrill overlooks this connection in a recent attempt to explain the Supreme Court's decision making process under Chief Justice William Rehnquist. Professor Merrill maintains that there have been two Rehnquist Courts: one from 1986 to 1994, and another from 1994 to the present. In Professor Merrill's view, the first Rehnquist Court focused on social issues - such as abortion, affirmative action, and school prayer - with "relatively few important doctrinal innovations in these areas." The second Rehnquist Court, by contrast, focused on "constitutional federalism, including the scope of federal power under the Commerce Clause and Section 5 of the Fourteenth Amendment, Tenth Amendment limitations on federal power, and state sovereign immunity from private lawsuits reflected in the Eleventh Amendment." Unlike the first Rehnquist Court, the second "has generated a number of important innovations." Professor Merrill also suggests that Justice Antonin Scalia made a strategic choice to shift his priorities from social issues to constitutional federalism circa 1994. This hypothesis is unpersuasive. As Professor Merrill acknowledges, Justice "Scalia had little occasion to consider questions of constitutional federalism before he was appointed to the Supreme Court." Thus, it is not surprising that Justice Scalia did not arrive on the Court with a full-fledged federalism agenda or that he preferred to wait for briefing and argument before reaffirming an important precedent like Hans v. Louisiana. From the beginning, however, Justice Scalia has been a strong proponent of constitutional federalism. In fact, with only one arguable exception, Justice Scalia has voted to uphold the constitutional prerogatives of the states in every major federalism case decided since he joined the Court. Justice Scalia does appear to have an "agenda" of sorts in federalism cases, although not the one that Professor Merrill suggests. Justice Scalia's goal in these cases is to uphold the original constitutional structure in order to respect the Founders' constitutional design and to protect individual liberty. Professor Merrill acknowledges Justice Scalia's interest in the constitutional separation of powers, but fails to recognize the connection between separation of powers and federalism. Neither feature of the constitutional structure was meant to be an end in itself. Rather, both separation of powers and federalism were designed to check government power and to secure individual liberty. Thus, even though Justice "Scalia had little occasion to consider questions of constitutional federalism before he was appointed to the Supreme Court," it is not surprising that he quickly came to regard federalism - like separation of powers - as an essential element of the Founders' constitutional design.
    The Nondelegation Doctrine Revisited: Universal Service and the Power to Tax Ronald Krotoszynski Washington and Lee University - School of Law Abstract:
      The Telecommunications Act of 1996 charges the Federal Communications Commission with creating and implementing a new federal subsidy program that provides "universal service" to select beneficiaries. Unfortunately, Congress did not attend to many of the salient details regarding this program. Section 254 of Title 47 charges the Commission with creating a mammoth new entitlement program and with raising the funds necessary to pay for the program through assessments on providers of interstate telecommunications services. This dual delegation of unlimited revenue authority and an unchecked power to spend the monies raised presents very troubling separation of powers questions. "The Nondelegation Doctrine Revisited" examines and critiques the Federal Communications Commission's efforts to implement the federal universal service program. It argues that Congress has failed to take political responsibility for a major tax program and that this conflicts with the intentions of the Framers, well established separation of powers principles, and sound public policy. The Article suggests that, consistent with the long-standing but seldom-used doctrine of ratification, Congress should be required to endorse, through appropriate legislation, the Commission's taxing and spending efforts to promote universal service.
    Justice for the Women of Afghanistan: Role(s) and Rule(s) of Law Mark Drumbl Washington and Lee University School of Law Abstract:
      This Article explores the role of legal process in redressing the dire reality of life in Afghanistan, in particular for Afghan women. In so doing, it conceptualizes individualized justice as an agent for broader political transformation. Mainstream (and dominant) international human rights discourse approaches the situation binarily, obliging women to choose between distant secular human rights, on the one hand, and proximate cultural/religious norms, on the other, in order to adjudicate gender crimes. This can lead either to externalized justice or, in the case of the implementation of Afghan local law, to renewed victimization of women in the name of redressing abuses suffered by other women. Local law in Afghanistan consists of a blend of Islamic law and war customs reflected in codes such as the Pashtunwali whose implementation has pernicious effects on the status of women. However, through the use of Afghanistan as a case-study, this Article challenges this binary reductionism. Drawing from recent literature on law and culture, this Article advances a sedimentary conception of identity in which international criminal law advances claims by members of local communities to a right to involve themselves in the formulation of cultural practices. In this sense, religion and culture in Afghanistan are presented as politically contingent (and at the moment defined by patriarchal elites) instead of immutably oppressive to women. In the end, this Article links transitional criminal justice to the innovative conception of freedom within culture, instead of freedom from culture.
    Lessons From Thomas More's Dilemma of Conscience: Reconciling the Clash Between a Lawyer's Beliefs and Professional Expectations Blake Morant Washington and Lee University - School of Law Abstract:
      The invitation to deliver the St. Thomas More Memorial lecture at St. Dunstan's Church, Canterbury, England, served as the stimulus for this scholarly piece. Thomas More's fateful conflict between his moralistic beliefs and duty to Henry VIII - a conflict to which I refer as his "dilemma of conscience" - has emblematic relevance for most contemporary lawyers. This article commences with a jurisprudential analysis of More's conflict to demonstrate the virtual inevitability of the conflicts between personally-held beliefs and professional expectations. The author then employs cognitive dissonance theory to explain the discomfort caused by holding contradictory beliefs, and the cognition that naturally follows as the holder attempts to reduce dissonance and resolve the conflict. The article ultimately concludes that legal professionals must think more probatively about the impact that conflicting beliefs have on the decision-making as they attempt to resolve dilemmas of conscience.
    Organizations as Internal Capital Markets: The Legal Boundaries of Firms, Collateral and Trusts in Commercial and Charitable Enterprises George Triantis University of Virginia School of Law Abstract:
      This paper explains a function of the legal boundaries of various organizations (such as corporations, security interests and trusts): they define internal capital markets within which capital may be redeployed over time by fiat and over which it may be moved only at greater cost and with greater difficulty. The option to switch capital allocations among available projects is valuable and its value can be enhanced when management of the option is delegated to an informed and loyal agent. However, if the switching option has low value, agents have little private information or agency costs are severe, the principal should constrain the ability of her agent to reallocate capital. She may accomplish this by shrinking the legal boundaries of the relevant internal capital markets: that is, by segregating projects into separate legal organizations. For example, a number of corporate, securities, tax and debtor-creditor law rules make switching between affiliate corporations significantly more costly than within a firm. Security interests and trusts also constrain capital budgeting flexibility. Indeed, the law provides a menu of instruments that, to varying degrees, remove from agents the discretion to adjust capital allocations among projects over time. The paper also examines the charitable sector: the prevailing information conditions and tax rules differ in important respects from those in the commercial sector and they raise interesting internal capital market issues. Capital budgeting flexibility in charities is constrained by charitable trust law principles. In both commercial and charitable sectors, intermediaries offer an attractive alternative solution to the agency tradeoff.
    Rules, Principles and Ombudsmen: Norwich and Peterborough Building Society v the Financial Ombudsman Service Modern Law Review, Vol. 66, pp. 781-791, September 2003 Richard Nobles University of London - Department of Law Abstract:
      The judgment in Norwich and Peterborough Building Society v the Financial Ombudsman Service provides good evidence of the drawbacks of rule based adjudication, and the need for ombudsmen to be able to rely on principles of fairness. Further, it demonstrates, to those who associate ombudsmen and general standards of fairness with arbitrary and subjective decisions, how such determinations are constructed through, and constrained by, the legal context of codes, rights, etc in which the assessment is made. The decision also demonstrates an attempt to create a division of labour when courts and ombudsmen operate alongside each other, with the courts having a monopoly on the interpretation of legal rules, and ombudsmen being left to determine, with only minimal restrictions, a principled basis for the assessment of fairness.
    Punitive Damages: Should Juries Decide? Texas Law Review, Vol. 82, December 2003 Catherine Sharkey Columbia University - Columbia Law School Abstract:
      How Juries Decide is a pathbreaking work of empirical scholarship based on experiments conducted with more than 8,000 jury-eligible citizens and more than 600 mock juries. Its basic premise - that cognitive flaws in human decisionmaking, especially those affecting the "translation" process by which moral judgments are transformed into dollar awards, lead to erratic and unprincipled punitive damages awards - has already had an important impact not only on scholarly literature but also on judicial decisionmaking in high profile suits. This Review offers a methodological, doctrinal, and institutional critique of this widely influential study, with particular emphasis on the discrepancies between the empirical data presented and the policy reforms advanced - which include, at the extreme, a call to banish the jury from punitive damages decisionmaking. The Review examines critically the authors' conclusions that jurors are "intuitive retributionists" and unable (or unwilling) to follow instructions based on the non-retributive optimal deterrence theory of punitive damages. More fundamentally, the Review challenges the authors' rigid separation between "retributive-based" punitive damages, which are linked to jurors' moral evaluations, from "remedial-based" compensatory damages (including pain and suffering), which are not. Although the authors fashion a seemingly narrowly tailored attack on jurors' assessments of punitive damages, in fact they raise fundamental questions about the civil jury system as a whole, questions that are in no relevant way confined to punitive damages. Conversely, to the extent that there is any non-retributive component to punitive damages, their attack upon the jury's ability to assess punitive damages might not be warranted across the board. What emerges is the distinct possibility that a system of non-retributive punitive damages might survive the authors' empirical challenges. Finally, How Juries Decide pays too little attention to institutional context and wholly overlooks potentially effective reforms within the existing jury system, such as those that take into account anchoring effects and regional differences among jurors - reforms that are clearly supported by their empirical findings.
    The Virtues of Knowing Less: Justifying Privacy Protections Against Disclosure Duke Law Journal, Vol. 53, February 2004 Daniel Solove Seton Hall School of Law Abstract:
      In this Article, Professor Solove develops justifications for protections against the disclosure of private information. An extensive body of scholarship has attacked such protections as anathema to the Information Age, where the free flow of information is championed as a fundamental value. Solove responds to two general critiques of disclosure protections: (1) that they inhibit freedom of speech; and (2) that they restrict information useful for judging others. Regarding the free speech critique, Solove argues that all speech is not of equal value, with speech of private concern being less valuable than speech of public concern. The difficulty, however, is distinguishing between public and private concerns. Traditional approaches include deferring to the media, distinguishing between public and private figures, and looking to the nature of the information disclosed. Solove argues that these approaches are flawed, and he argues that the law of evidence has much to teach the law of privacy. Specifically, we should focus on the relationships in which information is transferred and the uses to which information is put. In the law of evidence, certain evidence is admissible for some purposes but not others. Disclosures should likewise be assessed differently depending upon the purpose of each disclosure, not merely on the type of information disclosed. Solove then examines the values of free speech and demonstrates how privacy often furthers the same ends, thus demonstrating that free speech should not always win out in the balance. Next, Solove tackles the judgment and trust critique, which views personal information as essential for making judgments about whether to trust people with whom we associate. He contends that although personal information can help us judge other people, these judgments are often made quickly and out of context. More information does not necessarily lead to more accurate judgments. Solove also contends that privacy protects against certain rational judgments that society may want to prohibit (such as employment decisions based on genetic information). He then responds to commentators who argue that gossip is valuable because it helps educate us about human nature. Finally, Solove argues why the value of concealing one's past can, in many circumstances, outweigh the benefits of disclosure.
    Symbolic Counter-Speech Howard Wasserman Florida International University College of Law Abstract:
      In this article, Professor Wasserman introduces, defines, and explores a new form of expression, labeled symbolic counter-speech. Symbolic counter-speech is an outgrowth of two free expression concepts the right and opportunity to communicate through symbols and the Brandeisian imperative of counter-speech as the acceptable answer to objectionable speech. Symbolic counter-speech responds to a symbol on its own terms, countering the message presented by a particular symbol while using that symbol as the vehicle or medium for the contrary message. Symbolic counter-speech includes a range of expressive actions, from silent non-participation with a symbol or symbolic ceremony to confrontation of the symbol with a different, contrary symbol to attacks on the original symbol by destroying it or altering it to create a new message. Professor Wasserman considers symbolic counter-speech in the post-September 11 environment, when the United States has fallen back into to what Vincent Blasi labeled a pathological period, a period in which commitment to free speech wanes and in which government is especially likely to engage in systemic suppression. Although there have not been widespread governmental restrictions on expression, the primary feature of previous pathologies, there has been a dramatic increase in government and private patriotic symbolism and expression and of intolerance for objections to that patriotism. This has been particularly true with regard to the American flag and its complementary symbols, such as the Pledge of Allegiance, the national anthem and God Bless America. The focus of this paper is the increase in patriotic symbolism, along with incidents of counter-speech to that symbolism, at professional and collegiate sporting events, the primary forum in American society in which crowds of adults regularly engage in patriotic expression. Finally, the concept of symbolic counter-speech and these examples of flag-related symbolic counter-speech illustrate the inconsistency between principles and traditions of freedom of speech and the movement for flag preservation, which logically would eliminate all symbolic counter-speech directed against the flag and its complements.
    Malpractice Liability for Physicians and Managed Care Organizations NYU Law Review, 2003 Jennifer Arlen and William MacLeod New York University School of Law and University of Southern California Abstract:
      This Article provides an economic analysis of optimal negligence liability for physicians and Managed Care Organizations explicitly modeling the role of physician expertise (and error) and MCO authority. We find that, even when patients anticipate the risks imposed on them, physicians and MCOs do not take optimal care absent sanctions because markets and contracts cannot regulate their non-contractable postcontractual actions that are essential to optimal care. Negligence liability can induce optimal care if damage rules are optimal. Optimality generally will require that MCOs be held liable for negligence by affiliated physicians, however. Moreover, we find that MCOs should be liable even when they do not exert direct control over physicians. Finally, we show that it may be optimal to preclude physicians or MCOs from obtaining liability waivers from patients, even when patients are fully-informed and waive only when it is in their interests to do so at that moment.
    Reasonable Accommodation as Part and Parcel of the Antidiscrimination Project Mary Crossley Florida State University - College of Law Abstract:
      Numerous commentators have characterized the ADA's reasonable accommodation mandate - which sometimes requires employers to take affirmative steps that treat an individual with a disability differently from other workers - as a departure from the fundamental precepts of antidiscrimination law. These characterizations, however, fail to appreciate either the insights offered by disability theorists regarding the sources of inequality experienced by people with disabilities or the intrinsic conceptual kinship between the ADA's accommodation requirement and disparate impact liability and hostile environment liability under Title VII. Disability theory scholarship affirms that society's historic disregard for and devaluation of people with disabilities has resulted in workplaces where conventional structures, policies, and practices commonly act as barriers to disabled persons’ equal employment opportunity. Examination of the conceptual foundations of disparate impact liability and hostile environment liability demonstrates that a central purpose of established antidiscrimination law is the removal of barriers to equal employment opportunity. This Article contends that the ADA's reasonable accommodation requirement should be properly understood as a mechanism for ending discrimination against people with disabilities by requiring the removal of those workplace obstacles whose presence reflects society's disregard for and devaluation of people with disabilities. This understanding may guide courts called on to determine whether a particular requested accommodation should be deemed a "reasonable" accommodation in light of the ADA's antidiscrimination purpose. Ultimately, it may also prompt a broader recognition that the reasonable accommodation requirement is an integral part of our society's antidiscrimination project.
    Piercing the Corporate Veil, Financial Responsibility, and the Limits of Limited Liability David Millon Washington and Lee University - School of Law Abstract:
      This article takes a fresh look at veil-piercing jurisprudence, a notoriously incoherent area of the law. I argue that a sensible approach to veil-piercing requires careful attention to the appropriate policy basis for limited liability. Despite heroic efforts of some commentators, shareholder limited liability for contract as well as tort claims and for public as well as closely-held corporations cannot be defended on efficiency grounds alone. Instead, limited liability should be understood as an effort to subsidize business activity by redistributing wealth from corporate creditors to shareholders. The subsidy idea is more obvious as to tort claimants, but it may also be at work in the contract area too. Contract creditors have the opportunity to bargain for compensation for the increased of risk of nonpayment presented by limited liability. Nevertheless, recent research in behavioral economics suggests that the limited liability default rule may have distributional consequences in this setting as well. If limited liability amounts to a subsidy paid by contract and tort creditors to business investors, the policy question then is, how large should this subsidy be? I argue that overly broad limited liability imposes too great a cost on corporate creditors. This is because limited liability can facilitate opportunistic efforts by shareholders to extract value from third parties without consent or compensation. They can do this by increasing the risk of corporate default beyond the level accepted by contracting parties or by engaging in risky activities that have the potential to cause harm that the corporate tortfeasor cannot redress. One consequence of the threat of opportunism is to raise the cost of credit for all corporate borrowers ("good" as well as bad" types). If the purpose of limited liability is to encourage investment by shielding shareholders from the risk of corporate insolvency, the social costs of this benefit may therefore be too high. The scope of limited liability should instead be restricted to cases of corporate insolvency that occur in spite of shareholders' good faith efforts to manage their firm in a manner that respects creditor interests. This limitation would still provide investors with protection from what should be their real concern, the possibility of corporate insolvency arising from events or circumstances that cannot be foreseen or avoided. I propose that courts limit limited liability to shareholders who have managed their corporation in a financially responsible manner. As to contract creditors, this means realistic evaluation of the corporation's ability to repay a debt at the time it is incurred and avoidance of actions that unreasonably increase the risk of default thereafter. As to potential tort victims, shareholders act responsibly if they purchase liability insurance against foreseeable risks. Financial responsibility thus has nothing necessarily to do with the amount of capital contributed to the business at its outset, a factor often emphasized in veil-piercing litigation. Once the appropriate limits of limited liability are understood, courts can pierce the corporate veil in order to hold shareholders personally liable for losses that result from their irresponsible behavior.
    The Salmon Case: Evolution of Balancing Mechanisms for Non-Trade Values in WTO TRADE AND HUMAN HEALTH, George A. Bermann and Petros Mavroides, eds., Cambridge University Press, 2003 Frank Garcia Boston College - Law School Abstract:
      The Salmon case represents an important step in the evolution of the doctrinal tools available for managing WTO disputes involving non-trade values. Although the Salmon case concerns the specialized WTO Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement), it has implications for the broader development of WTO jurisprudence with respect to the place of non-trade values in the WTO regime. The SPS Agreement strikes a particular negotiated balance between trade liberalization and the protection of human, animal or plant life or health: trade-restrictive SPS measures will be permitted if they are scientifically justified, non-discriminatory and not more trade-restrictive than necessary in view of the member's chosen level of protection. Disputes concerning SPS measures can be seen as attempts by complaining parties to enforce that balance. One particular provision in the SPS Agreement, Article 5.6, introduces into SPS jurisprudence the "necessity test," long a part of GATT jurisprudence in, among other provisions, Article XX(b). Overall, the SPS agreement can be understood as an elaboration of Article XX(b) with respect to the specialized subject of SPS measures. However, in contrast to Article XX(b) as interpreted by prior panels, the SPS necessity test as written requires consideration of the effective achievement of a member's non-trade regulatory goals, prior to invalidating the member's chosen measure on trade-restrictive grounds. For this reason, the SPS-version necessity test has the potential to operate in a manner that is friendlier to non-trade values than the standard necessity test. The Salmon Panel is the first WTO dispute settlement body to rule on an Article 5.6 claim, and its decision and the Appellate Body report afford the first opportunity to examine the extent to which the promise contained in the language of Article 5.6 is indeed borne out in its judicial application. I conclude that the Appellate Body's finding on the limits of a Panel's review of a member's discretion to choose its appropriate level of protection, stakes out a strong position of respect for non-trade values in WTO, albeit in a somewhat problematic manner. Since the necessity test is employed widely throughout GATT jurisprudence, the Salmon case has the potential to influence necessity test interpretation beyond the strict SPS context. I also conclude that the Appellate Body's interpretation of the SPS necessity test in Salmon has increased the likelihood that non-trade values will be respectfully considered outside the SPS Agreement in Article XX cases. When one examines the Appellate Body's interpretation of the traditional necessity test in the Asbestos and Korean Beef cases, one catches a "whiff" of Salmon, confirming that the Salmon case is indeed contributing to the larger task of successfully incorporating respect for non-trade values into the WTO.
    Regulating Youth Access to Violent Video Games: Three Responses to First Amendment Concerns Michigan State-DCL Law Review, p. 51, 2003 Kevin Saunders Michigan State University - DCL College of Law Abstract:
      Recent efforts to limit the access of children to violent video games have faced legal challenge under the First Amendment. This article presents three theories that may provide defenses to constitutional challenges. The evidence of harmful effects is examined to argue that limitations may meet strict scrutiny. The theory that violence may fit within harmful to minors statutes ordinarily directed at pornography is also presented. Lastly, the argument that video game play is not expression protected by the amendment is explored.
    The Real Estate Covenant as Commons: Incomplete Contract Remedies Over Time Jay Weiser City University of New York (CUNY) - Baruch College Abstract:
      Real estate covenant regimes are a form of common pool resource in which property owners retain ultimate ownership but contractually surrender some rights to the use of their land into a commons. The pooled rights generate surplus for the owners. This article explores the efficiency of legal rules protecting covenants, applying three perspectives: the property/contract interface, incomplete contracts and common pool resource literatures. Efficiency is considered at two points: when the initial investment decision is made (ex ante); and at a later point (ex post) when a new use would be higher-valued and the covenant should be modified or terminated. Covenants are interests along the property/contract interface: promises with respect to the use of land. The choice between property or contract status is determined by which will maximize investment while minimizing the sum of holdout and transaction costs on renegotiation. When investment incentives predominate, this favors property status protected by property rules. When the later risks of high transaction costs and holdouts predominate, this favors contract status, which allows easy breakage protected by liability rules. Because real estate is an investment-intensive asset class, covenants are generally given property status and governed by property rules protected by injunctions. The investment induced by property status generates an expectation of surplus for each unit owner; when these rights are defeated, the result may be demoralization leading to underinvestment. The primary conclusions are first, that for most covenant violations, courts should give greater respect to the private ordering of remedies, such as fines, self-help and expulsion. These remedies provide lower-cost enforcement than the current regime of injunctive relief and limit the inefficient erosion of covenant regimes. Second, over decades, covenant regimes are likely to be inefficiently rigid, a problem made worse because the rise of the community association has radically lowered enforcement costs. This results in an anticommons where fragmented control prevents transfers of property to more efficient uses. Third, to combat this, courts should use mixed property-liability rules in the form of supercompensatory damages for major use violations occurring more than 40 years after creation of the covenant regime. Supercompensatory damages would limit demoralization from defeated investment expectations (if contract status protected by a liability rule applied) or excessive performance of an uneconomic promise (if property status protected by injunctive relief applied).
    Count Every Vote?: Some Thoughts on Al Gore in Florida and Optimal Recount Strategy THE FLORIDA PRESIDENTIAL RECOUNT CONTROVERSY AND ELECTION REFORM IN THE UNITED STATES, Bernard Grofman and Henry Brady, eds., Cambridge University Press, 2004 Brian Kalt Michigan State University-DCL College of Law Abstract:
      Unfortunately for Al Gore's presidential hopes, his political slogan "Count Every Vote" did not serve as the guide for his recount strategy. Instead, Gore challenged results in only a few counties and consistently litigated against a complete recount. Although Gore did not have the benefit of hindsight during the recount, there is ample reason, for Gore or any other recount challenger, to conclude ex ante that a broad count is the best bet. Part I of this essay derives some basic principles of optimal recount strategy. Most significant is that a recount underdog choosing which leads to pursue should seek to maximize not just the expected value of a recount but also its variance. This means challenging even those groups of votes whose expected value to the challenger is negative, so long as they raise the variance of the recount sufficiently. Part II summarizes data that Gore knew or should have known. Part III applies the optimal strategy from Part I to the data in Part II, and concludes that Gore's strategy was suboptimal. Specifically, there were numerous additional groups of votes that Gore could have challenged that would have increased the variance of the recount, even if they did not increase its expected value to him.
    From Enron to WorldCom and Beyond: Life and Crime After Sarbanes-Oxley Washington University Law Quarterly, Vol. 81, 2003 Kathleen Brickey Washington University School of Law Abstract:
      In roughly two years since the corporate meltdown began, federal and state regulators have initiated criminal fraud investigations involving dozens of corporations, including Enron, WorldCom, Adelphia, HealthSouth, McKesson, and Qwest. To date, some ninety corporate owners, executives, and employees have been criminally charged, and the investigations are ongoing. It was against this backdrop that zeal for corporate governance reform gained unexpected momentum in Congress and resulted in the surprisingly quick enactment of the Sarbanes-Oxley Act. Although its principal purpose is to address systemic weaknesses in corporate governance structures, Sarbanes-Oxley also augments prosecutorial tools available in major fraud cases. Critics complain that Sarbanes-Oxley's criminal provisions are needlessly redundant, rely too heavily on enhanced criminal penalties to achieve their goals, and attach far too much importance to filling minor gaps in the coverage of existing laws. This article presents the alternative view that the Act's criminal provisions make significant strides toward piercing the veil of corporate silence. Using as its central focus the essential roles that whistleblowers and cooperating witnesses have played in recent corporate fraud investigations, the article evaluates key criminal provisions in Sarbanes-Oxley that extend new legal protections to whistleblowers and that are likely to provide powerful incentives for potential targets of fraud investigations to become cooperating witnesses. An appendix to the article tracks criminal charges brought against nearly ninety corporate officers and employees in some fifty major fraud prosecutions the Justice Department filed between March, 2002 – when it first charged Arthur Andersen with obstruction of justice – and August, 2003.
    The Declining Utility of the Right to Counsel in Federal Criminal Courts: An Empirical Study on the Role of Defense Attorney Advocacy Under the Sentencing Guidelines California Law Review, Forthcoming Margareth Etienne University of Illinois at Urbana-Champaign - College of Law Abstract:
      Much has been written about how the Federal Sentencing Guidelines have changed the role of judges, prosecutors and probation officers in federal criminal courts. This paper, based on empirical research, adds a relatively new chapter to that literature by examining some of the ways in which defense attorney advocacy has been altered under the Guidelines regime. The study involves forty subjects, all federal criminal defense attorneys, who discuss their practices and experiences as advocates in a system that deters and penalizes zealous representation by equating it with the defendant's failure to accept responsibility or impediment of justice. The attorneys also describe their decreasing bargaining power in a system that over-empowers their prosecutorial adversaries, and the effect that this has on their work as advocates. The empirical evidence suggests that lawyers may have redefined what it means to be a good advocate in the face of the perceived rigidity and severity of the Guidelines. They devote their energies to counseling their clients, guiding them through the criminal adjudication process, and combing the complex sentencing rules for exceptions that might apply to their clients. Their accounts reveal that the role of the defense lawyer, as well as the impact of the right to counsel, has changed fundamentally from the time of Gideon v. Wainwright and other cases that championed the right to counsel as a vital safeguard for the protection of individual rights and the integrity of the criminal justice system.
    Jurisdiction Under the Foreign Sovereign Immunities Act for Nazi War Crimes of Plunder and Expropriation New York University Journal of Legislation and Public Policy, Spring 2004 Michael Murray University of Illinois at Urbana-Champaign - College of Law Abstract:
      The United States follows the restrictive view of sovereign immunity which does not automatically immunize a foreign sovereign from suit arising from actions of the sovereign nation or its instrumentalities that are equated with the actions of "private" parties as opposed to "public" actions of a sovereign. Within that definition of "private" conduct are actions involving the taking of property in violation of international law or that amount to commercial dealings, such as buying, selling and lending, that are equivalent to the commercial activity of private parties. The restrictive theory of sovereign immunity has been practiced by a number of sovereign nations since the early part of the twentieth century, but the question exists as to when the United States first officially announced its adherence to the restrictive doctrine. Many courts and scholars have traced the official adoption to what has come to be called the Tate Letter in 1952. In fact, there is a fundamental misconception in the present jurisprudence of certain United States courts that the Tate Letter effected a complete turnabout from system of absolute sovereign immunity to one of restrictive sovereign immunity. This reading simply is unsupported by the cases. It is my position that the principles of the restrictive theory were adopted and applied by United States courts early in the Nineteenth Century, starting with three landmark decisions of the Marshall court, and only for a brief period from 1926 to 1938 did the United States Supreme Court send a mixed message concerning the absolute theory of sovereign immunity that contrasted with the more restrictive message being espoused by the State Department and executive branch during the same period. Courts currently are addressing the question of the propriety of the exercise of jurisdiction under the Foreign Sovereign Immunities Act ("FSIA") for claims arising from war crimes that arose prior to the effective date of the statute, January 1, 1977, and prior to the Tate Letter in 1952. Part of what is at stake is jurisdiction over wartime plunder and expropriation claims arising from the conduct of the German belligerent forces and their agents and instrumentalities during the Holocaust and in World War II that violated international law. Claims have been brought in United States courts for recovery of stolen art work, as well as confiscated real and personal property. There is a circuit split among the United States Courts of Appeals regarding the exercise of jurisdiction under the FSIA for claims arising prior to 1952, several of which involve World War II era war crimes. The lines are drawn around four issues regarding the application of the FSIA: first, whether the FSIA is a jurisdictional statute, allocating or affirming the power of courts to hear certain cases without regard to whether the conduct, causes of action, and substantive defenses to the action arose prior to its effective date or prior to 1952; second, whether the FSIA is a procedural statute that applies to actions arising from operative facts that occurred before the effective date of the statute and before 1952 because it does not affect antecedent rights of the parties and thus is not retroactive; third, if the application of the FSIA to pre-enactment conduct or to conduct predating the 1952 announcement of the United State's adherence to the restrictive theory of sovereign immunity does in fact affect substantive rights of state parties, namely rights to sovereign immunity under U.S. law, whether the retroactive application of the statute was clearly indicated and intended by Congress based on the language and design of the FSIA; and fourth, whether the conduct of the Nazi regime and its agencies and instrumentalities in World War II should have defeated the expectations of these state parties that they would receive immunity from prosecution in foreign courts, thus refuting the claim that retroactive application of the FSIA actually violates substantive rights under customary international law. This article will address each of these issues regarding the application of jurisdiction under the FSIA to World War II and other pre-1952 war crimes including claims involving expropriation and plunder of personal property, and will conclude that none of these issues prevents the exercise of jurisdiction under the FSIA for resolution of these claims in United States courts.
    A Lost Decade for Japanese Corporate Governance Reform?: What's Changed, What Hasn't, and Why Curtis Milhaupt Columbia Law School Abstract:
      Analysis of Japanese corporate law reveals a striking amount of formal institutional change in the past ten years, occurring at an ever-accelerating pace. This feature of law reform can be traced to a heightened awareness of the organizational straightjacket imposed on Japanese firms by the Commercial Code, and to a more competitive and market-responsive environment for the production of corporate law. It has been a "sea change decade" for Japanese corporate law. Yet it has been an ambiguous decade for Japanese corporate practices. Signs of change in response to the new institutional environment can be found in the areas of shareholder activism, corporate mergers and acquisitions and other organizational changes, board structure, and corporate finance. At the same time, however, domestic institutional investors remain passive, management remains largely insulated from the market for corporate control, and "lifetime" employment practices, while covering a shrinking subset of the Japanese workforce, remain firmly in place. This paper accounts for the observed pattern of change and non-change by analyzing the political economy of corporate law reform, the complementarities at work between corporate law and other institutions, and the relationship between corporate law and corporate governance. Japanese corporate law has become more adaptable and responsive to "demand-side" impulses, but it also increasingly reflects the interests of Japanese management, an organized group potentially threatened by corporate law reform. Without external pressures, Japanese managers are able to use the newfound flexibility of the corporate law to entrench themselves as well as to improve returns to shareholders. Moreover, while the corporate law has improved, several complementary institutions needed to complete the institutional package are still incomplete. Ultimately, corporate law bears only a limited relationship to corporate governance. Changes in corporate practices are brought about by dynamics external to the formal corporate governance institutions. Thus, the sea change in Japanese corporate governance must await further changes in the distribution of shareholders, in the capital markets, and in the incentive structures for management, and the further erosion of corporate norms that promote employee and managerial interests over shareholder interests.
    Ruralism Iowa Law Review, Vol. 88, p. 273, January 2003 Debra Bassett Michigan State University-DCL College of Law Abstract:
      Our society has a "love-hate" relationship with its rural communities. While revering rural areas as embodying the ultimate in "quality of life," rural citizens are simultaneously denigrated as uneducated, backward, and unsophisticated. In this Article, Professor Bassett notes that our society's focus, its programs, its culture, and its standards are based on an urban assumption. This urban focus both overshadows and marginalizes rural dwellers. Professor Bassett argues that "ruralism" is a pervasive form of discrimination - largely unrecognized, unacknowledged, and unexamined - and one often impacting most harshly those individuals who already are subject to other forms of discrimination based on gender, class, and race.
    Is Incest Next? Cardozo Women's Law Journal, Vol. 10, No. 2, February 2004 Brett McDonnell University of Minnesota Law School Abstract:
      This paper examines how the Supreme Court's decision in Lawrence v. Texas (the gay sodomy case) affects laws regulating other forms of sexual behavior, focusing in particular on consensual adult incest. It engages in and compares two kinds of inquiries: formalist and realist. The formalist inquiry attempts to make sense of Lawrence using traditional legal materials. One must identify the implicated individual liberty interest and examine the extent to which the interest is constitutionally protected. The paper identifies three basic approaches to identifying liberty interests, all with some support in the Court's history. The "conservative Burkean" approach recognizes a right only if it can be clearly shown that the our society has specifically and widely acknowledged the right for a long time. The "Millian" approach forbids the state from regulating behavior which directly affects only those who engage in it and does not harm anyone else. The "liberal Burkean" approach looks to our history and is unwilling to impose a simple general harm principle, but is willing to allow that over time we may come to recognize new sorts of interests that should be protected. The paper argues that the Court has taken a Goldilocks position: conservative Burkeanism is too restrictive, Millianism is too expansive, and liberal Burkeanism is just right. After identifying the liberty interest, one must identify the state's interests in regulating that behavior. Lawrence is ambiguous as to what level of scrutiny applies to the government's asserted interests. The formalist analysis ends by comparing the individual liberty interest with the asserted state interests. Several interests might justify laws against consensual adult incest, including the risk of genetic defects, protecting relations within the family from becoming overly-sexualized, and reinforcing moral norms. All of these justifications have problems, though. The formalist analysis is indeterminate, but suggests that core forms of incest are probably constitutional, although laws against incest between cousins and perhaps against incest between step-relatives may be more vulnerable to judicial review. The realist inquiry views the Court as a political institution and asks how it is likely to respond to future cases given both the preferences of its members and the political constraints which they face. This inquiry suggests that the Court is less likely to strike down incest laws than sodomy laws, both because there is no major political group attempting to repeal incest laws and because general social norms against incest have weakened less than those against sodomy, although that may be less true for non-core forms of incest such as incest between cousins. The realist inquiry thus also suggests that the Court would not strike down the core incest laws, and this conclusion seems firmer than the formalist analysis. If the Court ever does protect incest, it will happen only when most Americans are unwilling to throw people in jail for that behavior.
    The Role of Access in Charitable Tax Exemption John Colombo University of Illinois College of Law Abstract:
      Both the courts and the Internal Revenue Service historically have had difficulties with assessing exempt status for nonprofit entities that provide "commercially similar" services. A paradigm example of these commercial similarity cases are nonprofit hospitals. Since 1969, the official IRS position has been that nonprofit hospitals are exempt under a "community benefit" analysis, even if they do not provide substantial free care for the poor. Yet many empirical studies find that the behavior of nonprofit hospitals is similar to for-profits competitors. Similarly, IRS precedents support tax exemption for nonprofit art galleries and community theaters that provide services facially similar to for-profit counterparts; to community development organizations that operate in a manner similar to private real-estate developers or investment bankers, and to "public interest" law firms that litigate class action suits in much the same manner as major law firms. The central thesis of this article is that the criterion that can and should be used to judge exempt status in these cases of "commercial similarity" is whether the organization provides access to services for previously-underserved populations or provides specific services to the majority population that otherwise are not provided by the private sector. Using "enhancing access" as the main criterion in judging an organization's entitlement to exemption makes considerable sense; after all, a major rationale for granting charitable tax exemption is to recognize the pluralism-enhancing nature of such enterprises. Organizations that provide expanded access to services for those unable to obtain them as a result of economic, geographic or other constraints enhance the pluralism objective; exemption becomes the reward for doing so. The access criterion also fits nicely with the major economic explanations for exemption, which posit that exemption helps overcome an undersupply of services at the intersection of private market failure and government failure. Moreover, making access a central theme of exemption would force organizations to explain their mission in access terms, a process that in and of itself could help focus such organizations on why they differ from for-profit counterparts and what they should do to highlight that difference. The article argues that enhancing access is already a de facto test of exemption (particularly in the nonprofit healthcare field), and ends by discussing how an "enhancing access" test would change current exemption precedents.
    The Duty to Monitor: Emerging Obligations of Outside Lawyers and Auditors to Detect and Report Corporate Wrongdoing Beyond the Securities Laws St. John's Law Review, Vol. 77, No. 4, 2003 Larry Backer Pennsylvania State University - The Dickinson School of Law Abstract:
      Recent legislation – Section 10A of the Securities Exchange Act of 1934 for auditors and Section 307 of the Sarbanes-Oxley Act for lawyers – has imposed on corporate outsiders certain duties to monitor unlawful activity within a corporation, and to report that activity to designated corporate actors. It is generally understood that the monitoring obligations of lawyers and auditors extend to corporate activity which might constitute a violation of federal securities law and state fiduciary duty standards. But do the monitoring and reporting obligations extend to unlawful activities beyond the securities laws - for example to violations of the laws prohibiting racial, religious, ethnic, age and sex discrimination? This article suggests that a strong set of arguments exist to support the answer – yes. The article first demonstrates that the monitoring rules create a broad obligation to detect and report that extends to any violation of law that could have a direct or indirect material effect on the financial condition of the corporation. The article then suggests that the nature of the detection and reporting obligation is active - requiring auditors and lawyers to implement procedures for detecting violations. The failure to comply with the detect and report obligations can contribute, under certain circumstances, to auditor or lawyer liability as a principal under the securities laws, to liability as a principal under the discrimination laws, and to greater exposure to discovery from private plaintiffs. The article ends with an extended hypothetical, involving outside counsel, auditors and a client corporation engaging in potentially discriminatory conduct, in which the insights developed in the article are applied.

Monday, October 06, 2003
Kermit Hall on the Supreme Court's Future Kermit Hall (History, Utah State) has a nice op/ed in the Salt Lake Tribune entitled Supreme Court ideology hard to predict. Here is a taste:
    [T]he court is not that old. The median age for retirees is 78. The chief justice marks his 79th birthday in October, and Justice O'Connor turned 73 on May 26. Only Justice Stevens exceeds that median; he is 83. The average justice can be expected to outlive the average white American male by more than 10 years.
    Absent death or disability, we may not see a change on the court until June 2005. By then, President Bush, if he loses, will end up like Jimmy Carter -- the only full-term president never to appoint a justice. Supreme Court justices are loath to retire during an election season, considering it irresponsible to entangle the confirmation process in a presidential campaign. The last time a president sought to push through an election-year candidate was 1968, but Lyndon Johnson, who was not running for re-election, withdrew under pressure the nomination of his longtime aide Abe Fortas.

Leiter on the Immortals of Legal Theory My post on The Immortals has generated a characteristically thoughtful and trenchant response from Brian Leiter. My list of candidates for immortality included O.W. Holmes, Karl Llewellyn, Hans Kelsen, H.L.A. Hart, N. Luhmann, Ronald Coase, Richard Posner, Joseph Raz, Ronald Dworkin. Leiter writes:
    I agree on Holmes, Kelsen, Hart, and Llewellyn; am uncertain about Posner and Raz; and am skeptical about Coase, Luhmann, and Dworkin.
Brian and I may be asking slightly different questions, as my category, "legal theory," is a bit different than his, "jurisprudence" (or philsophy of law), but I think that everyone who reads Legal Theory Blog will want to check out Leiter's post.

Loren on the Web of Music Copyrights Lydia Pallas Loren (Northwestern School of Law of Lewis and Clark College) has posted Untangling the Web of Music Copyrights (forthcoming Case Western Reserve Law Review, Vol. 53, Spring 2003) on SSRN. Here is the abstract:
    The crisis in the music industry has been brought about only in part by the digital revolution. The layering of copyright ownership interests and the complexity of copyright law, particularly as it applies to music, has also played a major role in the inability of the industry to respond to the rapidly evolving ways in which digital works can be distributed and otherwise exploited. After detailing the tangle of legal rights in the music industry and identifying the vested industry players and their respective roles, this article describes the difficulties faced by users of new technology in attempting to comply with the law. These problems may explain, at least in part, the widespread phenomenon of what many in the industry see as infringement on a massive, and global, scale. Without low-transaction-cost solutions and reasonable absolute price for obtaining authorization for the digital activities of millions of users, we see a classic example of market failure. Users respond to this failure by effectively exiting the failed market, completely ignoring the overly cumbersome requirements of the law. This article proposes concrete changes that should be implemented in the Copyright Act. First, the Copyright Act should embrace derivative work independence, eliminating the problems that result from the dual layers of copyright ownership in a final product utilized by downstream listeners. For such a consolidation to be effective in the music industry, however, two additional changes are necessary. First, the compulsory mechanical license for musical works, codified in section115 of the Copyright Act, must be repealed. Second, sound recording copyright owners must be granted rights equal to those of musical work copyright owners. This package of three changes constitutes a significant modification in the structure of rights in the music industry that would result in a more efficient market for downstream use. The article also recommends that copyright owners be granted a unified right to "commercially exploit" the copyrighted work, rather than the divisible rights that the Copyright Act currently grants in section 106. In the music industry, copyright owners routinely assign or exclusively license their separate rights to different industry players, dividing these legal entitlements and causing a fractionation of rights in a single copyrighted work. In the digital realm, each of the owners claims that a variety of uses implicates her rights and thus requires her permission. A unified right would take time to influence contracting behavior, but should create vested industry players divided by logical markets rather than clustered around the different statutory rights granted to the copyright owner. Finally, the article explores the problems associated with industry consolidation and the existing and potential mechanisms to reduce the negative effects of the present consolidation. Congress has included provisions in the Copyright Act aimed at curbing potential abuses of monopoly power, such as the compulsory mechanical license. Over time, however, that compulsory license has significantly contributed to the complicated nature of the industry.

Kontorovich Paper Now Available On September 29, I blogged re Eugene Kontorovich's (George Mason University - School of Law) workshop at the University of Chicago. The paper, Liability Rules for Constitutional Rights: The Case of Mass Detentions, is now available from SSRN.

Weekend Wrap Up Posted on Saturday you will find the Download of the Week and a recommendation from the Legal Theory Bookworm. On Sunday, the Legal Theory Calendar previews events for tis week and the Legal Theory Lexicon discusses the reasonable person--with a followup by Tim Sandefur here.

Daily Whirl Legal Theory Blog has been added to the Daily Whirl (a fine aggregation service for blawgs and other legal information sites).

Hasen on Congressional Power & Section 5 of the Voting Rights Act Rick Hasen (Loyola Marymount, Loyola Law School) has posted Congressional Power to Reenact Section 5 of the Voting Rights Act: The Evidentiary Quandary on SSRN. Here is the abstract:
    Much of the current debate over the preclearance provisions contained in section 5 of the Voting Rights Act concerns the important policy question whether Congress should renew it. This paper turns to a question in the debate that logically precedes but in practical terms would follow (though court challenge) a congressional decision to reenact section 5: does Congress have the power to do so? Beginning with South Carolina v. Katzenbach (1966), the United States Supreme Court has repeatedly upheld section 5 and other provisions of the Act as permissible exercises of congressional enforcement power. These cases, however, predate the Supreme Court's "New Federalism" revolution. As part of that revolution, the Court, in a series of recent cases has greatly restricted the ability of Congress to pass laws regulating conduct of the states under its enforcement powers granted in Section Five of the Fourteenth Amendment, which the Court has read as coextensive with its enforcement powers under the Fifteenth Amendment. Moreover, in Board of Trustees v. Garrett (2001) the Court made clear that it will search for an adequate evidentiary record to support a congressional determination that states are engaging in unconstitutional conduct so as to justify congressional regulation of the states. Some of that clarity on the evidentiary question disappeared in the Court's 2003 decision, Nevada v. Hibbs. Part I of this chapter surveys the background legal landscape facing those who wish to defend anticipated preclearance reenactment as an appropriate exercise of congressional power under the Fourteenth or Fifteenth Amendments. Part II then turns to application of the new federalism cases to the question of congressional power to reenact the preclearance provisions. The evidentiary requirement imposed in these new federalism cases creates significant hurdles for a court to uphold a reenacted section 5, even though, under the recent Hibbs case, the evidentiary burden on Congress will be slightly alleviated because a renewed section 5 would combat racial discrimination. In 1965 and even in 1982 Congress could point to significant acts of intentional racial discrimination by covered states to support preclearance provisions. Today, Congress would be hard-pressed to find widespread evidence of such discrimination. Some commentators have looked to Department of Justice preclearance statistics to find sufficient evidence of a potential for constitutional violations to support section 5 reenactment by Congress. A closer look at the DOJ preclearance statistics, however, offers little support for those who wish to build an evidentiary record to support reenactment of section 5. Other commentators have looked to private acts of discrimination as supporting congressional power to reenact preclearance provisions. The argument, though creative, probably cannot bear the weight that commentators have put on it. Part III concludes in a more speculative vein with a look at an alternative basis for congressional power to reenact preclearance: the Guarantee Clause. Article IV of the Constitution provides that the United States shall guarantee to each state a Republican form of government. It is an open question whether Congress could reenact the preclearance provisions under the Guarantee Clause and, more provocatively, by doing so insulate the provisions from challenge in the courts under the theory that Guarantee Clause cases raise non-justiciable political questions.
This should be good!

Bohnet & Cooter on the Expressive Theory of Law Iris Bohnet and Robert Cooter (Harvard University - John F. Kennedy School of Government and University of California at Berkeley School of Law) have posted Expressive Law: Framing or Equilibrium Selection on SSRN. Here is the abstract:
    Besides deterring people, laws may affect behavior by changing preferences or beliefs. A law may elicit intrinsic motivation by framing an act as wrong. Alternatively, it may coordinate the behavior of different people by changing their beliefs about what others will do. We investigate framing and coordination effects experimentally in prisoner's dilemma, "crowding" and coordination games. We simulate a law by imposing a probabilistic penalty on one of the choices. In the prisoner's dilemma and the crowding game, announcing the penalty had no effect. In the coordination game, announcing the penalty caused behavior to jump to the Pareto-superior equilibrium.
This sounds very interesting. I'll try to post a reaction later in the week.

Zacharias on Academic Values in Practice & Practical Values in Academia Fred Zacharias (University of San Diego) has posted Why the Bar Needs Academics – And Vice Versa (forthcoming in the San Diego Law Review, Vol. 40, p. 701, 2003). Here is the abstract:
    Members of the judiciary and practicing bar commonly bemoan the theoretical approach of academics. They suggest that law professors have no sense of reality and that academics write and teach in a way that bears little relationship to the actual practice and regulation of lawyers. They warn that unless academics reform, academics will render themselves irrelevant. This brief essay relates the author's suspicion that, in many cases, the bar has it precisely backwards. The essay reviews events that transpired at a recent symposium that brought together representatives of the bar and academia to discuss "The Future Structure and Regulation of the Practice of Law." In the author's view, these events illustrate that practitioners often rely upon wistful idealizations about the legal profession that can cause them to ignore the reality of practice. Academics, in contrast, may have more time to think about how well prevailing practice implements the theories underlying a particular field's legal doctrines. The essay ultimately comes to the counter-intuitive conclusion that the bar often needs law professors to bring its approaches back to earth.
Here, here! I think Zacharias is exactly right about this last point--which has implications that reach far beyond legal ethics and the regulation of the legal professions. Download it while its hot.

Norman Geras on Amnesty Normblog has a post entitled The rights and wrongs of amnesty, Part 1 of a series. Here is a taste:
    There has been, or is about to be, a change of regime or government or, simply, political situation, where agents and/or officers of the previous dispensation are known to have committed grave crimes against persons and on a wide scale. Important is the gravity of these crimes: people have been kidnapped, tortured, murdered, 'disappeared' and so forth. In consequence, some or many are dead, others carry the pain of what was done to them, probably for the rest of their lives, loved ones grieve for those they have lost, wonder about their fate, grieve or wonder probably for the rest of their lives. Are there circumstances which justify amnesty for (some of) the perpetrators of these crimes? If so, what are they? Under what assumptions and under what constraints, if any, should amnesty be available to anyone?

Alexander and Prakash on Intention and Text in Interpretation Lawrence Alexander and Saikrishna Prakash (University of San Diego School of Law and University of San Diego School of Law) have uploaded Is That English You're Speaking? Some Arguments for the Primacy of Intent in Interpretation (forthcoming San Diego Law Review, 2004) to SSRN. I've read this in draft and recommend it highly. Here is the abstract:
    "Textualism" is a very general and abstract term that represents a variety of views about the interpretation of legal texts. One strand of textualism is conceptual and descriptive; this strand makes claims about what texts actually mean. Another strand of textualism is normative; this strand makes claims about how judges ought to proceed with they interpret particular kinds of legal texts, such as constitutions and statutes. In the first part of this paper, we are particularly concerned with an especially strong form of conceptual textualism - the position that texts can be interpreted without any reference, express or implied, to the meaning intended by the author of the text. The defining feature of this form of textualism is the insistence that intentions play no role in the production of meaning, and so we call this view "intention free textualism," or "I-F-textualism." We do not know if anyone actually is an I-F-textualist so defined, although sometimes loose remarks by some self-identifying as textualists suggest that they hold this position. In any event, whether or not there is anyone who actually is a textualist of this stripe, it will be useful to drive a stake through the heart of such a position. Doing so will make it clear that what is at stake in the so-called dispute between textualists and intentionalists is not the conceptual point about what interpretation is and what determines texts' meanings. Rather, it is the normative point about what evidence of authorial intent authoritative interpreters of legal texts should or should not consider, or whether interpreters should look to the intentions of actual authors or hypothetical ones. Part One, therefore, will establish that textualism of the I-F type is a conceptual impossibility. Regardless of what position people claim to hold, no one can be such a textualist. Part One will establish that texts mean what their authors mean by them. Indeed, texts can only be identified as texts by reference to authorial intent. All of this is consistent, of course, with the possibility that one author might appropriate the marks made by another author and intend a meaning by them that is different from the meaning intended by their creator. It is also consistent with a reader's imagining what a text would mean had it been authored by someone other than its actual author. Leaving these possibilities aside, however, the point Part One establishes is that texts mean what their authors intend them to mean. In Part Two we deal with how the actual meaning of a legal text - what its author(s) intended it to mean - might differ from the authoritative meaning that an authoritative interpreter gives it. Essentially, such a divergence can be produced whenever the authoritative interpreter is debarred from considering certain types of evidence of authorial intent. The divergence occurs when the excluded evidence, had it been considered, would show the authorial intent to be different from what it appears to be given the restricted set of evidence.

Zinnecker on Negotiable Instruments at Florida State At Florida State, Timothy Zinnecker (University of South Texas, visiting at FSU) presents Extending Enforcement Rights to Assignees of Lost, Destroyed, or Stolen Negotiable Instruments Under UCC Article 3: A Proposal For Reform.

Sunday, October 05, 2003
Legal Theory Lexicon: The Reasonable Person
    Who is the reasonable person and why hasn't she been attending class?
    Introduction Good morning from Newton, Massachusetts. Today's Legal theory Lexicon is about the "reasonable person," who used to be the "reasonable man" and is now occasionally the "reasonable woman." This topic was suggested to me by my host and friend, the eminently reasonable (and rational) Ken Simons of the Boston University law faculty yesterday, and Ken and I kicked around the ideas that follow.
    The notion of a "reasonable person" usually makes its first appearance in the Torts course. The context, of course, is the tort of negligence, where the "reasonable person" is used to define the standard of care that triggers liability for unintentional harms. But what makes a "reasonable person" reasonable? The concept of the reasonable person is not limited to torts, however. The reasonable person makes appearances in criminal law, contract law, and elsewhere. As usual, the legal theory lexicon introduces the "reasonable person" for the law student with an interest in legal theory.
    A cautionary note. The word "reasonable" is used in a wide variety of legal contexts, some of which have very little to do with the reasonable person. In Antitrust law, for example, the notion of "an unreasonable restraint of trade" is crucially important, but this topic does not, at least on the surface, have anything to do with the reasonable person of torts and criminal law.
    The Reasonable and the Rational This is, after all, Legal Theory Blog, so I hope you will forgive me for starting at a fairly high level of abstraction. "Reasonable" and "rational" are used in many different contexts and have a variety of meanings, but when I think about the "reasonable," the first thing that comes to mind is the distinction between the reasonable and the rational that was articulated by W.M. Sibley in a 1953 article but was made famous by John Rawls.
    When the rational is defined in contradistinction to the reasonable, rational usually refers to instrumental rationality--that is, the rationality of ends and means. Given that an agent has end X, it is rational for the agent to engage in action Y, only if Y will lead to X. Instrumental rationality is relative to the ends of a particular agent, and may (but need not) consider the interests of others. Thus, it may be instrumentally rational for me to steal from you, if you have something that I want and I have good reason to believe that I won't get caught. But it may also be rational for me to help a stranger, if I happen to have the welfare of others as my end.
    When we contrast the reasonable with the rational, the notion of the reasonable goes beyond instrumental rationality. It may be rational for me to steal from you, but unreasonable for me to do so. Why not? Well, that is quite a question. One answer is based on the idea that the reasonable is, in some way, connected to what could be justified to others. Another idea is that the reasonable is in some way specified by that to which others would consent.
    So as we are thinking about the "reasonable person," it is important to distinguish her from her cousin, the "rational person." The rational person may or may not take the interests of others into account. To be a reasonable person, however, is to consider the interests or viewpoints of others--to give them their proper due.
    Of course, all of this is terribly vague! What does it mean "to give the interests of others their proper due"? How much is enough? How much is too much? So far, we have only the general concept of the reasonable person. In order to make use of the "reasonable person" in the law, we need a particular conception of the "reasonable person"--a set of standards or criteria that will enable us to sort the reasonable actions from the unreasonable ones.
    Subjective and Objective Reasonableness One more preliminary distinction--much is made of the difference between subjective and objective reasonableness. For example, we might, for example, distinguish between the "reasonable person" and the "reasonable intoxicated person" or the "reasonable person with a developmental disability" or the "reasonable person with a hot temper." Usually, we call the reasonable-person standard an objective standard, signifying that the we are not taking the particular characteristics of defendants in tort or criminal actions into account when we ask whether they met the relevant standard of care. Some critics of the reasonable person standard argue that its "objectivity" is a mask for a bias that favors some groups over others. On this, see Mayo Moran's forthcoming book Rethinking the Reasonable Person: An Egalitarian Reconstruction of the Objective Standard.
    Learned Hand and the Reasonable Person as Cost-Benefit Analyst The conception of reasonableness that is most familiar to contemporary law students was introduced by Judge Learned Hand in the famous Carroll Towing case.
      [T]he owner's duty, as in other similar situations, to provide against resulting injuries is a function of three variables: (1) The probability that she will break away; (2) the gravity of the resulting injury, if she does; (3) the burden of adequate precautions. Possibly it serves to bring this notion into relief to state it in algebraic terms: if the probability be called P; the injury, L; and the burden, B; liability depends upon whether B is less than L multiplied by P: i.e., whether B less than PL.
    United States v. Carroll Towing Co., 159 F.2d 169, 173, reh'g denied, 160 F.2d 482 (2d Cir.1947); see also The T.J. Hooper, 60 F.2d 737, 740 (2d Cir.).
    The meaning of the Learned-Hand B < P * L formula is very much disputed, but one powerful reading of Carroll Towing is that it adopts cost-benefit analysis as the test for negligence. The reasonable person, so the story goes, analyzes the costs and benefits of her actions and does not act in such a way so as to impose costs that are not justified by their benefits. Economists might associate the Hand formula with what the economic concept of efficiency, and specifically Kaldor-Hicks efficiency. (Follow this link for an explanation.)
    Even if the Learned Hand formula is best interpreted as employing cost-benefit analysis or the economic idea of efficiency, it does not directly follow that the purpose of the law of negligence is itself to promote the most cost-beneficial consequences. It might be, for example, that a strict liability regime (rather than a negligence regime) will produce the best consequences. There are two different questions regarding the relationship between cost-benefit analysis and the reasonable person. (1) Does the reasonable person standard employ cost-benefit analysis as the criterion for negligence?, and (2) Does cost-benefit analysis support the choice of negligence (as opposed to strict liability or no liability) as the rule governing nonintentional torts? Once the questions are separated, it is clear that they are different. It might be that the law employs a cost-benefit (Learned Hand) test as the standard of care in negligence cases, but that this approach itself is not the best when judged by cost-benefit analysis.
    Immanuel Kant and the Reasonable Person as Respecter of the Interests of Others Although many scholars interpret the Learned Hand formula as an endorsement of an economic approach to the reasonable person, others reject this move. The Hand formula can also be interpreted as reflecting an argument of principle (or fairness). At a very high level of generality, we might say that the reasonable person treats others with respect. This approach to the reasonable person is roughly correlated with the deontological approach to moral philosophy, most famously associated with Immanuel Kant and his notion of a categorical imperative. The reasonable person, we might say, acts so that the maxim of her action (the principle upon which she acts) could be willed as a universal law--or to be put it differently, the reasonable person treats others as ends-in-themselves and not only as means. In this vein, Ronald Dworkin has argued that the Learned Hand formula can be understood as reflecting the moral equality of persons.
    Virtue Jurisprudence and the Aretaic Conception of the Reasonable Person Yet another approach to the "reasonable person" might be derived from Aristotelian moral theory (or virtue ethics)--in particular from the idea that the focal standard for morality is the "virtuous agent," i.e. the person who posseses the moral and intellectual virtues. What are these virtues? The moral virtuous include characteristics such as courage, good-temper, and temperance. The intellectual virtues are sophia (theoretical wisdom) and phronesis (practical wisdom). A difficulty with an aretaic approach to the reasonable person standard is that this standard seems too demanding. The Aristotelian person of virtue is a phronimos, not a person of average ability but rather possessed of an extraordinary capacity to evaluate and choose.
    And the winner is . . . As you might guess, this is the point at which the Legal Theory Lexicon runs out of gas. Appropriately so. For this is a perennial question in legal theory--one for which simple and off-hand answers are hardly appropriate. But here is one more thing to consider. The contest between various interpretations of the "reasonable person" takes place at two different levels. First there is the level of fit. Which conception of the "reasonable person" is most consonant with the way that idea is used in the law? Second, there is the level of justification. Which conception of the "reasonable person" is supported by what we know about moral philosophy and political theory? And of course, it may turn out that the answers to these two distinct questions diverge. The best conception of the reasonable person may not be the conception that is implicit in the law of torts. And here is another complication. The reasonable person may wear a different suit of clothes to a tort case than she does to a criminal law case. What then?
    Conclusion If you are a first-year law student reading this post, it is likely that you have recently or will soon make the acquaintance of the reasonable person. Understanding the reasonable person will not only be important to your study of torts and criminal law; the ideas with which you grapple in cases like Carroll Towing ramify throughout the law. Being able to articulate and argue about the proper interpretation of the reasonable-person standard equips you to understand debates about efficiency versus fairness (or deontology and consequentialism) that are fundamental to contemporary legal theory.
    • Heidi Li Feldman, Prudence, Benevolence, and Negligence: Virtue Ethics and Tort Law, 74 Chi.-Kent L. Rev. 1431 (2000).
    • Stephen Gilles, On Determining Negligence: Hand Formula Balancing, the Reasonable Person Standard, and the Jury, 54 Vand. L. Rev. 813 (2001).
    • Kyron Huigens, Virtue and Criminal Negligence, 1 Buff. Crim. L. Rev. 431, 447-58 (1998).
    • Heidi M. Hurd, The Deontology of Negligence, 76 B.U. L. Rev. 249 (1996).
    • Gregory C. Keating, Pressing Precaution Beyond the Point of Cost-Justification, 56 Vand. L. Rev. 653 (2003).
    • Gregory C. Keating, Reasonableness and Rationality in Negligence Theory, 48 Stan. L. Rev. 311 (1996).
    • Stephen Perry, Cost Benefit Analysis and the Negligence Standard, 54 Vanderbilt L. Rev. 893 (2001).
    • Richard Posner, Economic Analysis of Law (6th ed. 2002).
    • John Rawls, Political Liberalism (Paperback ed. 1995).
    • Steven Shavell, Economic Analysis of Accident Law, (December 2002). Harvard Law and Economics Discussion Paper No. 396.
    • W.M. Sibley, The Rational and the Reasonable, 62 Phil. Rev. 554 (1953).
    • Kenneth W. Simons, Dimensions of Negligence in Criminal and Tort Law, 3 Theoretical Inquiries in Law 283 (2002).
    • Kenneth W. Simons, The Hand Formula in the Draft Restatement (Third) of Torts: Encompassing Fairness as Well as Efficiency Values, 54 Vanderbilt L. Rev. 901 (2001).
    • Kenneth W. Simons, Negligence, 16 Social Philosophy and Policy 52 (1999).
    • Kenneth W. Simons, Deontology, Negligence, Tort, and Crime, 76 Boston U. L. Rev. 273 (1996).
    • Richard W. Wright, The Standards of Care in Negligence Law, in Philosophical Foundations of Tort Law 249 (David G. Owen ed., 1995).

Legal Theory Calendar

Saturday, October 04, 2003
Download of the Week This week the download of the week is W. Bradley Wendel (Washington and Lee Law School)'s article entitled Civil Obedience (forthcoming Columbia Law Review) on SSRN. Wendel's paper draws on a sophisticated view of legitimacy and authority to argue that lawyers have a second-order moral reason to respect the law, even when it conflicts with their own first order moral judgments. Here is a taste from near the end of the essay:
    The authority conception assumes that normative disagreement among citizens is a central, rather than a marginal case for legal ethics. Citizens disagree through lawyers, seeking authoritative settlement of their disputes through the medium of law. Lawyers therefore have an obligation not to interfere with the process of accomplishing peaceful resolution of moral combat and coordinated social activity. For this reason, lawyers may not reason through practical dilemmas on the basis of first-order moral principles, as similarly situated non-lawyer agents would be required to do. In the case of a catastrophic moral horror, a lawyer may refuse to give effect to a legal rule, but this exception must be limited in scope to only the worst disasters. Otherwise, lawyers would seek the status of conscientious objectors in cases where the law is most needed, such as disputes pertaining to abortion, capital punishment, and the like. By precluding reasoning from first-order moral principles, the law does not make lawyers into automatons or force them to act in bad faith, because all citizens share the need for coordinated action and the desire to resolve disagreements in a manner that is fair to all affected individuals. Lawyers further share the commitment to making the legal system function as a framework for social activity. Thus, lawyers are not acting amorally, but for the moral reasons which give the law legitimate authority.

Legal Theory Bookworm This week's selection is another classic work of legal theory--Lon Fuller's, The Morality of Law. Almost every law student learns about Lon Fuller's most famous article, The Reliance Interest in Contract Damages, 46 Yale LJ 52 (1936)--which introduced some of the standard ideas in the first-year course on contracts. Fuller, who taught at Harvard Law School, was also famous for the Hart-Fuller debate on the relationship between law and morality. This famous exchange was kicked off by H.L.A. Hart's Holmes Lecture, delivered at Harvard Law School in April of 1957 (Hart's Holmes lecture was published as Positivism and the Separation of Law and Morals, 71 Harvard Law Review 593 (1958) Fuller replied in his Positivism and Fidelity to Law - A reply to Prof. Hart, 71 Harvard Law Review 630 (1958). The debate continued with H.L.A. Hart's magisterial book, The Concept of Law, which was recommended in the first installment of the Legal Theory Bookworm. And that brings us to Lon Fuller's book, The Morality of Law. Hart replied to this in Book Review of The Morality of Law, 78 Harvard Law Review 1281 (1965) and Fuller responded in the the Second (Revised) Edition of The Morality of Law, published in 1969.
Fuller's reputation in the legal theory community has waxed and waned. He is clearly recognized as an important figure in twentieth-century legal thought, but at the same time, his ability to construct a philosophically rigorous argument is frequently derided. My own view is that Fuller's work is quite valuable as a source of interesting and important ideas, and that many of Fuller's positions can be reconstructed and then defended in a variety of interesting ways. Rigorous arguments for uninteresting propositions are, in the end, less valuable than sparkling ideas that supported by flawed argumentation.
Here is a passage from the Morality of Law that will give you a flavor of Fuller's style and substance:
    What I have tried to do is to discern and articulate the natural laws of a particular kind of human undertaking, which I have described as "the enterprise of subjectinghuman conduct to the governance of rules." These natural laws have nothing to do with any "brooding omnipresence in the skies." Nor have they the slightest afffinity with any such proposition as that the pracitce of contraception is a violation of God's law. They remain entirely terrestrial in origin and application. They are not "higher" laws; if any metaphor of elevation is appropriate they should be called "lower" laws. They are like the natural laws of carpentry, or at least those laws respected by a carpenter who wants the house be builds to remain standing and serve the purpose of those who live in it.
Fuller is a marvelous prose stylist. If you haven't already dipped into The Morality of Law, a treat is waiting for you.

Friday, October 03, 2003
Pruss on Doulbe Effect Courtesy of Online Papers in Philosophy, Alexander Pruss has uploaded Love and Double Effect. Here is a taste:
    Case 1 (transplant). You are a surgeon doing an appendectomy on Fred, who is otherwise healthy. You know from his file that, just by chance, his heart, lungs, bone marrow, liver and two kidneys are a perfect match for fifteen patients in your hospital who need various organs or bone marrow, of both of which there is a severe shortage of these organs; Fred, however, has refused to donate anything. If the fifteen patients do not receive the transplants today, they will die. You skillfully use your scalpel to kill Fred in such a way that no one can tell it was no accident, and you use his organs to save fifteen patients. One dead, fifteen innocent people saved. Case 2 (bomb). A terrorist has locked fifteen hostages in a building and escaped. He has a bomb that will go off in the next half minute—there is no time to rescue the hostages. However, you know that the terrorist’s bomb’s timer requires AC power and is plugged into an outlet. The one and only way you can stop the bomb is by turning off the power to the city block. Unfortunately, you know that Fred is living on the street and is on life support which also requires AC power—his battery backup, you find out, has just failed. As a police chief, you turn off the power, and save the fifteen hostages, but Fred of course dies. One dead, fifteen innocent people saved.
OK, I'll bite. Both the surgeon and the police chief actedly wrongly, although the second case is closer. Warning: These intuitions are reported in their raw and unreflected upon form.

Bainbridge on Law School Hiring Stephen Bainbridge has a nice post on the role of ideology in law school hiring. For those readers of Legal Theory Blog who are contemplating an academic career, Bainbridge's post is especially interesting for its accurate and insightful description of the law-school hiring process.

Call for Papers: Wickedness
    5th Global Conference Perspectives on Evil and Human Wickedness Friday 19th - Wednesday 24th March 2004 Anglo-American College Prague, Czech Republic Keynote Speaker Professor Samuel Pillsbury 'Speaking the Language of Evil' Key Workshop Graeme Goldsworthy 'Evil & Global Demining' Call for Papers This inter-disciplinary and multi-disciplinary conference seeks to examine and explore issues surrounding evil and human wickedness. Perspectives are sought from those engaged in the fields of anthropology, criminology, cultural studies, legal studies, literature, philosophy, psychology, sociology, and theology. Perspectives are sought from those working in the caring professions, the media, prison services, politics, psychiatry and other work-related and vocational areas. Papers, reports, work-in-progress and workshops are invited on issues related to any of the following themes;
      + the concept and language of ‘evil’ and ‘wickedness’ + the nature and sources of evil and human wickedness + moral intuitions about dreadful crimes + psychopathic behaviour - mad or bad? + choice, responsibility, and diminished responsibility + social and cultural reactions to evil and human wickedness + the portrayal of evil and human wickedness in the media and popular culture + suffering in literature and film + individual acts of evil, group violence, holocaust and genocide; obligations of bystanders + terrorism, war, ethnic cleansing; the evils of terrorism, fear of terrorism, international relations especially with regard to the modern nation state, superpower interventionist strategies, post-war reorganisation following the evils of war + the search for meaning and sense in evil and human wickedness + the nature and tasks of theodicy + religious understandings of evil and human wickedness + postmodern approaches to evil and human wickedness + ecocriticism, evil and suffering + evil and the use/abuse of technology; evil in cyberspace.
    Papers will be considered on any related theme. 300 word abstracts should be submitted by Friday 12th December 2003. If an abstract is accepted for the conference, a full draft paper should be submitted by Friday 13th February 2004. The conference is part of a larger series of ongoing conferences, run under the general banner ‘At the Interface’. It aims to bring together people from different areas and interests to share ideas and explore various discussions which are innovative and exciting. Six themed volumes have and are in the process of being published. All papers selected for and presented at this conference will be published in an ISBN eBook; selected papers accepted for and presented at this conference will also be published in a themed volume. Proposals should be submitted via e-mail to Dr Rob Fisher - - they may be in Word, WordPerfect or RTF format. For information about the project generally please go to Further details about the conference can be found at http://www.wickednessnet/evil/evil5/pehw5.htm

Smith on Thomas More Steven Smith (University of San Diego - School of Law) has posted Interrogating Thomas More: The Conundrums of Conscience on SSRN. Here is the abstract:
    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."

Farber and McDonnell Daniel Farber and Brett McDonnell (University of Minnesota Law School and University of Minnesota Law School) have posted Why (and How) Fairness Matters at the IP/Antitrust Interface (forthcoming Minnesota Law Review, Vol. 87, June 2003) on SSRN. Here is the abstract:
    This Article questions the widespread scholarly view that maximizing economic efficiency should be the sole goal of the intellectual property and antitrust laws. We propose that the law should also encourage a fair division of the economic surplus, at least by considering it as a tiebreaker when the dictates of economic efficiency are ambiguous or controversial. We begin by surveying some challenges that have been made to the theoretical underpinnings of exclusive reliance on economic efficiency, but go on to argue that, even on the terms of welfarism, some regard for distributive fairness is appropriate. First, since fairness is a widely shared social value, rules that promote a fair distribution of the economic surplus are likely to mimic what rational people would voluntarily have agreed to ex ante. Therefore, rules that favor fairness take into account the fact that a fair distribution is a social good for which people are willing to bargain. Second, rules based on fairness often lead to the economically efficient result even on welfarist terms. For example, where there are increasing returns to scale, potential producers and customers would agree ex ante to a fair division of surplus. Such an ex ante agreement makes it easier for producers to gain a critical toehold in the market, fosters expansion, and allows consumers to receive more benefits from economies of scale. Therefore, a rule that favors fairness when the economically efficient rule is ambiguous may itself be the efficient rule. The Article concludes with an exploration of how a tiebreaker rule in favor of fairness would affect the analysis of intellectual property issues. The first conclusion is that there should be a legal presumption in favor of open standards except where efficiency concerns clearly dictate otherwise. The second conclusion is that the law should disfavor price discrimination and similar conduct by rights holders, again with the qualification that efficiency concerns may override this presumption.

Ree and Edgar at the Society for Applied Philosophy in London 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.)

Edelman at Buffalo 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).

Aolain at Texas At the University of Texas Faculty Colloquium, Fionnuala Ni Aolain (University of Ulster) presents The Paradox of Transition in Conflicted Democracies. Here is a taste:
    Transitional justice’ presents an ever-expanding field of academic and policy interest. Its discourses and analyses have been applied across a geographically diverse and ideologically diverse range of jurisdictions emerging from authoritarian, and frequently violent pasts. These have included Latin American states shifting from military to civilian rule; the change from apartheid to majority rule in South Africa; and eastern and central European states in post-communist flux. As its etymology makes clear, trans-ition implies a journey. Underpinning analysis across the spectrum has been a particular conception of this journey: that of the non-democratic state in the process of change to stable democracy. Transition theory is therefore intimately tied in with particular conceptions of democracy. Thus the starting point in terms of measuring the transition of state structures, has been the authoritarian state, located on a sliding scale of repressiveness. Location on this scale will vary from state to state, but the scheme nevertheless provides a conceptual baseline of sorts. This common baseline not only serves to identify the enormous institutional change needed for successful transition, it also provides some kind of consistency in cross-jurisdictional comparisons of the transitional moment. Resultantly, the comparisons and analyses that collectively make up transitional justice discourses, have been informed by a particular conception of transition, which we have labelled the ‘paradigmatic transition’ (the concept is explored further below). Analyses of such paradigmatic transitions display a heavy emphasis on dealing with the past. Indeed, it was the problem of engaging with the legacy of the massive rights violations of previous regimes that led to the development of ‘transitional justice’ as an identifiable set of discourses in the first instance. Thus, the assumption underpinning much of the writing on law and legal institutions in the transitional context is that the regime is, to a greater or lesser degree, illegitimate. From this springs the problems of the legal status of the acts of the old regime, and the distinguishable but related problem of the use of law in the new dispensation’s attempts to ‘police the past’.

Thursday, October 02, 2003
Solum at Boston University on the Layers Principle Today at Boston University, I will present The Layers Principle: Internet Architecture and the Law.

Street at NYU At the NYU Colloquium in Legal, Political and Social Philosophy (Dworkin and Nage), Sharon Street (NYU Philosophy) presents Excerpts from: Evolution and the Nature of Reasons. Here is a taste:
    I have argued at length that evolutionary considerations rule out realism about reasons. I will now turn to developing an alternative, constructivist account of reasons. I will not, however, argue that evolutionary considerations point uniquely to constructivism. Indeed, references to evolutionary biology will now for the most part drop out of my discussion. For although I believe that evolutionary considerations narrow the field of plausible views on the nature of reasons significantly, implying the correctness of some form of anti-realism or other, I do not think they force us to adopt any one particular version of anti-realism. My claim about the relationship between evolutionary considerations and constructivism about reasons is much more modest. Constructivism, I believe, simply achieves an especially complete and attractive harmony with evolutionary biology, and indeed with all scientific explanations of the causes that have shaped ourselves and our values. Even so, other versions of antirealism (and here I am including versions of “quasi-realism”)—for instance, Blackburn’s or Gibbard’s expressivism—might claim to achieve a similar harmony, and at the very least, I think it is clear that such views are not in conflict with evolutionary considerations.
And here is a bit more:
    the central, distinguishing feature of all constructivist views in ethics—whether restricted or thoroughgoing—is this:
      Constructivist views in ethics understand the correctness or incorrectness of some (specified) set of normative judgments as a question of whether those judgments withstand some (specified) procedure of scrutiny from the standpoint of some (specified) set of further normative judgments.
    According to constructivism, in other words, for a normative judgment in the first set to be correct is for it to stand up to the specified sort of reflective scrutiny; the normative judgment’s correctness is constituted by the fact that it withstands this scrutiny.
Promises to be a very interesting workshop!

Kutz at UCLA At UCLA's Legal Theory Workshop, Christopher Kutz (U.C. Berkeley) presents Justice in Reparation: The Problem of Land and the Value of Cheap Talk.

Horowitz at Texas At the University of Texas, Constitutional Theory Seminar, Donald Horowitz (Duke) presents Secession as a Problem of Political and Constitutional Theory.

Grady at Michigan At the University of Michigan Law and Economics series, Mark Grady (George Mason) presents Liability Failure.

Wilson at George Mason At George Mason, Bart Wilson (ICES, George Mason University) presents Experimental Gasoline Markets.

Rudd at Hertfordshire At the University of Hertfordshire Centre for Normativity and Narrative (London), Anthony Rudd (St Olaf College, Minnesota & Hertfordshire) presents Narrative, Substance and Personal Identity. (From the London Fixtures List)

Hynes at Florida State At Florida State, Richard Hynes (William & Mary) presents Bankruptcy's Role in Debt Relief.

Wednesday, October 01, 2003
Copynorms and Nesson's Koan
    Copynorms are the informal social attitudes about the rightness or wrongness of duplicating material that is copyrighted.
    Introduction Although the RIAA's litigation offensive is in full swing, there are grave doubts about its effectiveness. On the one hand, the RIAA simply cannot bring enough lawsuits to create a real deterrent effect. First, the number of suits is so small that the actual risk of becoming a defendant times the cost of settlement equals a miniscule amount. Second, the perception among users of P2P programs is that one can avoid any risk of suit by keeping the number of files shared on any one service below a threshold (usually thought to be 1000 files). On the other hand, there is no evidence that the RIAA is changing copynorms. My gut tells me that the law sometimes is an effective norm generator, and the RIAA's prosecutions do communicate the message that filesharing is unlawful. But there are countervailing considerations:
      (1) There is a widespread perception that the RIAA is a bad actor, seeking rents for large music companies at the expense of both artists and fans--the accuracy of this perception is not really relevant, because the perception itself shapes norms.
      (2) The indudstry's PR campaign attempts to equate filesharing with theft, but folks instinctively understand that file sharing of a nonrivalrous good (the intellectual property) is not the moral equivalent of the physical taking of a rivalrous good (e.g. shoplifting a CD).
      (3) Before Napster and other P2P programs, there was a well-established social norm that permitted copying from albums or CD's to make compilation tapes. This norm was reflected in the provisions of the Audio Home Recording Act which immunized the noncommercial copying of analog audio recordings.
      (4) The litigation offensive may even create a backlash, as the RIAA goes after single moms and misidentifies sympathetic defendants. This backlash is reinforced by and in turn reinforces the perception that the RIAA is a bad actor.
      (5) And of course, there is the obvious point that self-interest favors the copynorm that permits filesharing and disfavors the copynorm that would create social sanctions for use of P2P.
    So the question arises: Is there any way out for the RIAA?
    Ernest Miller’s Astute Observation I blogged last week about a post by Ernest Miller on Law Meme, titled Compulsory Licensing - Where Are the Defenders of HTTP?. At the time, I thought it was significant, but as it has had a chance to settle in, I’ve become convinced that Miller's observation reveals something truly important about copynorms. Here is what Miller wrote:
      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.
    Let me repeat one sentence for emphasis:
      [T]he difference is that filesharing by http is seen clearly as a public act, while P2P seems more like a private act.
    Why is this important? Miller has put his finger on an ambiguity in copynorms--a crack in the joints of our attitudes about the propriety of copying. But before we explicate this point, let's back up.
    Nesson's Koan Copynorms are not brooding omnipresences in the sky. They emerge from social interaction, not from abstract moral theory. (Not to say the two are unrelated.) And in the case of copying, the reality on the ground is shaped by technology. Of course, it is a commonplace to observe that the connections between Copyright policy and technology. As Charlie Nesson observed with Zen-like clarity:
      There was a time that to make a copy, you needed
      a monk, and a desk, and months,
      and then Sean Fanning hit the scene.
    Or to elaborate on Nesson’s koan, consider this roughly chronological and selective list of developments in copying technology:
    • Copying by hand.
    • The Printing Press.
    • The Phonograph Record.
    • The Mimeograph Machine.
    • The Audio Tape Recorder.
    • The Photocopy Machine.
    • The Cassette Tape Recorder.
    • FTP.
    • Ripping Software & the MP3 File.
    • P2P
    Consider the ways in which copying technologies interact with the publicness or privacy of the act of copying. Copying by hand is private—printing presses are public. Pressing a record is public—making a compilation tape is private. Putting a MP3 file up on a website is public—sharing the same file with P2P is private. What matters is perception. That P2P networks are just the World Wide Web writ small is of no consequence to copynorms—if there is a perceived difference. And there is! Copynorms permitted Alice to make a compilation tape for Ben—think High Fidelity, but they did not permit Alice to make a compilation record and press a thousand copies. Another distinction cuts across the public/private distinction. Some technologies are by their nature “commercial” and some are not. Printing presses are commercial—mimeo machines are not. Record-pressing plants are commercial. Cassette tape records are not.
    The Ambiguity of Copynorms And this brings me to another, crucially important point. Copynorms are informal social norms, and therefore, they are ambiguous and underdeterminate in a way that copyright law is not. (Caveat: Copyright law, like all law, is underdeterminate and abmiguous to some degree.) Social norms or customs are rarely sharp edged. They are amorphous. Our copynorms are not well-defined, precisely because they emerge from the interaction of individual attitudes that are ambiguous and variant and because they are not "laid out as rules" but are, instead, complex dispositions to the expression of attitudes.
    Nonetheless, we can try to grasp the shape of the ambiguity. Consider the following two by two matrix:
    --------------------Characteristics------ -----------------------of copying ----------------------------------------- -----------|----Public----|----Private---| -----------_______________________________ -----------|--------------|--------------| -----------|--------------|--------------| -----------|--------------|--------------| Commercial-|---Taboo------|------?-------| -----------|--------------|--------------| -----------|--------------|--------------| -----------_______________________________ -----------|--------------|--------------| -----------|--------------|--------------| Non--------|--------------|--------------| Commercial-|------?-------|--Permitted---| -----------|--------------|--------------| -----------|--------------|--------------| -----------_______________________________

    Entertain this tentative hypothesis--at least for durations of this post! Copynorms disfavor public, commercial copying—even when the copying is legal. This fact helps explain the Copyright Term Extension Act, which could be sold to Congress on the theory that it is just wrong for an author’s writings or composer’s music to be copied in mass, for profit, without permission. Copynorms favor private, noncommercial copying, even when it is unlawful. This explains why the Supreme Court’s decision in Sony is understood to permit any private, noncommercial use of the VCR—even though the language of the decision suggests that archival private, noncommercial copying is infringement. Who seriously thinks it is wrong to keep a videotape of your favorite Seinfeld episode or to make a compilation tape for a friend? But when we think about public, noncommercial copying or private, commercial copying, our intuitions about social norms begin to run out. Is it wrong for a friend to compensate you for taping a miniseries that she would otherwise miss? Does it violate a social norm to put an MP3 file up on a highly visible website or to distribute hundreds of compilation tapes for free? I suspect that opinions differ on these questions.
    And here is the RIAA’s problem. P2P is currently perceived as noncommercial, private activity. And the individuals who share files on P2P truly are engaged in noncommercial activity—but as to the private part—that is not so clear.
    A Modest Proposal So here is a modest proposal for the RIAA. Go with the flow! Use the norms, don’t fight them. What does that mean in practical terms? When the RIAA sends the message, “copying is theft,” they are fighting the norms. No one believes that copying is the moral equivalent of theft, because everyone thinks that private, noncommercial copying is just fine. Even the RIAA seems to have thought that when they agreed to the provisions of the Audio Home Recording Act that permit noncommercial analog copying. And the fact that copynorms diverge from norms about theft is rooted in the underlying economic reality--consumption of intellectual property is nonrivalrous, whereas consumption of tangible property is rivalrous.
    So here is an alternative message that the RIAA could try:
      Share with your friends, not with strangers!
    In other words, the RIAA could try to get the public to see that P2P programs are the moral equivalent of giving away hundreds of videotapes or compilation tapes. Those activities are not socially acceptable. They may not be socially unacceptable either. Mass giveaways are rarely a social problem, because the cost is high enough to deter the behavior without either legal or social sanction. That is what the P2P technology changed. P2P enables the low cost mass gift.
    At the concrete level, the RIAA would be saying, “Make a compilation CD. Use AOL instant messenger to share MP3 files with your friends. We’re cool with that. But giving away MP3 files by the hundreds and thousands—that’s not flat.”
    If Ernest Miller is right about files sharing via HTTP (and I think he is), then this strategy would actually have a chance of success. The RIAA would be trying to limit the copynorm that allows copyright violations to the category of private, noncommercial copying. Of course, this would still cost record sales, but it would not doom the industry. The industry lived with MP3 files before Napster. The industry actually accepted the decriminalization of analog taping. The industry can live with private, noncommercial file sharing.
    But “can” does not equal “will”! Suppose that my speculative hypothesis is right and that the RIAA's best hope is to go with the flow. Do I think there is any chance that the RIAA would embrace my modest proposal? Nope! Not a snowball’s chance in hell. And where will the music industry go if it continues its willful blindness to copynorms. I’m not sure where they are going, but it is becoming increasingly clear that they are going there in a handbasket.
    Update: And Ernest Miller has more on Law Meme here.

Zacharias and Green on Federal Regulation of Lawyers Fred Zacharias and Bruce Green (University of San Diego School of Law and Fordham University School of Law) have posted Federal Court Authority to Regulate Lawyers: A Practice in Search of a Theory (forthcoming Vanderbilt Law Review). Here is the abstract:
    This article considers the extent to which federal courts have independent power, in the absence of an explicit grant of authority, to regulate private lawyers and federal prosecutors. Lower federal courts have long exercised power to sanction professional misconduct, but the Supreme Court has never made the source of this authority clear. Most federal districts have adopted local professional rules. Unless these standards can be justified as exercises of procedural or evidentiary rulemaking power delegated by Congress, their validity depends on the existence of independent federal court authority. Moreover, federal courts have imposed professional obligations on lawyers through judicial opinions. The resulting standards again can be justified, if at all, only by reference to independent judicial authority to regulate lawyers. The issues are especially significant with respect to regulation of federal prosecutors. Arguably, the standards of conduct for federal prosecutors should differ from standards governing private attorneys and state prosecutors. Who should impose those standards also is a complex issue. Federal courts prefer to consider these questions in evaluating specific allegations of prosecutorial misconduct in litigation, which leads to their setting standards in judicial opinions rather than rules. Whether they may follow this approach depends on the nature of their independent authority over lawyer regulation. The Article illustrates the potential sources of federal court authority, their uncertain reach, and questions that remain to be resolved for judicial regulation of federal lawyers. The analysis calls into question a host of recent judicial and academic assumptions about federal judicial regulatory power.

Alexander on Conceptions of Political Morality Lawrence Alexander (University of San Diego School of Law) has posted The Jurisdiction of Justice: Two Conceptions of Political Morality (forthcoming San Diego Law Review, 2004) on SSRN. Here is the abstract:
    My topic in this essay is a major fault line within normative theory. More precisely, it is a major fault line within that part of a normative theory that deals with the content of our moral obligations to others. When I refer to moral obligations here, I am referring to those acts that morality demands of us such that it permits force or its threat to be employed to secure those acts. Moral obligations as I use the term are thus candidates for legal enforcement. I argue that much of what is debated within liberal political/moral theory can be usefully illumined by dividing liberal conceptions of justice into two major camps. In one camp are those conceptions that are thoroughgoingly impartialist. That is, their impartialism applies to any good over which people might make competing claims. I shall refer to this group of conceptions as Unrestricted Impartialism, or UI. Opposed to this camp of liberal conceptions of justice is that group of conceptions that limits impartialism to some goods but puts other goods beyond the writ of justice (enforceable morality). I shall call this group of conceptions Restricted Impartialism, or RI. In this essay, my aim is to paint these two conceptions and their strengths and weaknesses using a very broad brush. In philosophy, the devil is more frequently than not in the details, and broad brush strokes generally obfuscate more than illuminate. Moreover, my métier tends to be fine analytical points and not big picture tableaux. Nonetheless, not only do space limitations preclude in-depth analyses of the conceptions I discuss, but my message is a wholesale rather than retail one, namely, that there is a single and major gulf dividing liberal conceptions of justice into these two distinct camps. Analytical fine points about these conceptions are beside the point.
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