Legal Theory Blog

All the theory that fits!


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

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Sunday, November 30, 2003
Legal Theory Lexicon: Virtue Ethics
    Introduction The Legal Theory Lexicon already includes posts on Deontology and Utilitarianism--representing two important families of ethical theory. This week, the Lexicon provides an introduction to virtue ethics. As always, the Lexicon provides a quick and dirty summary with an eye to law students (especially first-year law students) with an interest in legal theory. Together, these three posts provide a rough and ready introduction to the three most prominent approaches to normative ethics.
    What is virtue ethics? Obviously, virtue ethics has something to do with virtue, which in this context is closely related in meaning to the English word "excellence," the Latin "virtu," and the Greek, "arete." Sometimes "virtue ethics" is also called "aretaic moral theory," using the adjective form of the Greek word for virtue.
    In moral philosophy, the virtues are the human excellences. Here is the definition offered by the distinguished moral philosopher, Rosalind Hursthouse:
      Virtue ethics is currently one of three major approaches in normative ethics. It may, initially, be identified as the one that emphasizes the virtues, or moral character, in contrast to the approach which emphasizes duties or rules (deontology) or that which emphasizes the consequences of actions (consequentialism). Suppose it is obvious that someone in need should be helped. A utilitarian will point to the fact that the consequences of doing so will maximize well-being, a deontologist to the fact that, in doing so the agent will be acting in accordance with a moral rule such as "Do unto others as you would be done by" and a virtue ethicist to the fact that helping the person would be charitable or benevolent.
    It might be illuminating to compare virtue ethics to deontology and utilitarianism via the following simplified formulas:
    • Utilitarianism: An action is right if and only if the action will produce the best consequences as compared to the alternative actions that could be undertaken by the agent.
    • Deontology: An action is right if and only if the action is either (a) required by a moral duty, or (b) allowed by a moral permission, and not (c) forbidden by a moral prohibition.
    • Virtue Ethics: An action is right if and only if the action is one which a virtuous moral agent would characteristically perform under the circumstances.
    Formulas are tricky, and I haven't tried to get these formulations exactly right. Instead, my aim was to paint broadly to give a sense of the basic structure of these three approaches to moral theory. Whereas, utilitarianism makes consequences (or states of affairs) the central idea of moral theory and deontology focuses on moral rules, virtue ethics focuses on character and human excellence.
    Modern Moral Philosophy Historically, virtue ethics finds its roots in ancient Greek philosophy, particularly in the work of Plato and Aristotle, but the contemporary revival of virtue ethics can, in a sense, be traced to G.E.M. Anscombe's article, Modern Moral Philosophy published in the journal Philosophy in 1958. Anscombe's famous article noted the well-known deficiencies and problems associated with utilitarianism and deontology and suggested that a return to Aristotle's moral philosophy might provide a fruitful alternative. This marks the beginning of what might be called the aretaic turn in moral philosophy--initiating both a return to Aristotle's theory of the virtues and the development new varieties of virtue theory.
    The Virtues What are the virtues? One good way to answer this question is to examine Aristotle's account of human excellence. For Aristotle, the virtues are acquired dispositional qualities; they are potentialities or powers which are states of character or of mind. Aristotle characterizes the virtues as intellectual or moral, and his views can be sketched by examining these two categories.
    The moral virtues are states of character concerned with choice; examples include courage, temperance and justice. Aristotle thought that virtues such as courage related to human emotion in a particular way. In the case of courage, there is a morally neutral human emotion--fear. The disposition to excessive fear (fear that is disproportionate to the situation) is the vice of timidity. The disposition to insufficient fear is the vice of recklessness. Courage is the disposition to feel fear that is proportionate to the actual threat or danger. Hence the virtue of mean is a mean between two opposed vices, timidity and recklessness. Moral virtues, says Aristotle, are acquired as a result of habit; one must act courageously in order to become courageous.
    The intellectual virtues are practical and theoretical wisdom. Practical wisdom or phronesis is excellence in deliberation: the person of practical reason is able to choose good ends and the means to achieve those ends. Practical wisdom operates in realm of praxis: action in particular situations. Theoretical wisdom or sophia, on the other hand, operates in the realm of theoria; abstract thinking, science and theory. The intellectual virtues are initially developed by teaching and mature through experience.
    A fully virtuous agent, then, would be someone who possesses the full complement of the moral and intellectual virtues. This may be rare, as most humans lack some of the virtues and possess others in an imperfect form.
    Virtue Ethics and Human Good What are the implications of virtue ethics for human ends and actions? Here is a very simple (and simplified) answer. Virtue ethics counsels us to cultivate virtue--to acquire the human excellences insofar as that is possible. Virtuous agents will then aim at the right goals in life, because their intellectual and emotional makeup naturally points them towards a just and flourishing life. Thus, a fully virtuous human will characteristically act in the right way for the right reasons. And what about those who lack full virtue? Many humans, however, lack fully virtuous characters. What counsel does virtue ethics offer those who lack the full complement of human excellence? The answer to this question can be developed in at least two ways. First, we might ask ourselves, "How would a virtuous human act in these circumstances?" This is, of course, part of ordinary human deliberation. When faced with a difficult choice situation, sometimes we think of someone whose character we admire, and ask, "How would she (or he) deal with this?" Second, we might ask ourselves, "What do the virtues counsel in this situation?" That is, we can take our understanding of the human excellences, and ask questions like, "What action would be courageous?" or "What action would accord with the virtue of justice?"
    Particularism and Phronesis Contemporary virtue ethics is distinctive in part, because it denies something that both deontology and utilitarianism seem to affirm--that there is a decision procedure for ethics. Utilitarianism claims that there is a very simple rule (which if correctly applied) yields the morally correct action for each situation: act so as to produce the best consequences. Deontology has a similar claim: to do the right thing, simply consult the moral rules, and perform that action which is required or if no action is required, choose from among those that are permissible. Virtue ethics characteristically denies that there is any mechanical rule that generates the morally correct action. Why not? One answer to that question lies in Aristotle's idea of the phronimos, the person who possesses the virtue of practical wisdom. The phronimos has the ability to respond to the complexities of particular situations, to see what is morally salient, and to choose an action that will work given the circumstances.
    Behind the virtue of phronesis or practical wisdom is an assumption about the complexity of life. Virtue ethics characteristically argues that life is more complicated than our theories and rules. It would be impossible, the virtue ethicist might argue, to write a code of rules for moral conduct. No matter how complicated the rules, situations would inevitably arise that were not covered or in which the rules produced a perverse and unintended result. Acting morally requires more than a knowledge of moral principles; it requires a sensitivity to particular situations. One way of putting this is use the metaphor of moral vision, the ability to size up a real-world choice situation, perceiving the morally relevant circumstances.
    Virtue Politics and Virtue Jurisprudence What are the implications of virtue ethics for the questions that legal theorists ask? One starting point for an answer might be the development of "virtue politics," i.e. a political theory that builds on the foundations of virtue ethics. A virtue politics might begin with the idea that the goal of the state should be the establishment of the conditions for the development of human excellence. Thus, the aim of the legislator might be described as the establishment of a political and legal framework within which individual citizens can realize their full potential for human excellence. A virtue politics might also consider the implications of virtue theory for the design of political institutions. For example, institutions might both seek to counteract the fact that both citizens and office holders will frequently be less than fully virtuous and also to establish conditions under which legislators, executives, and judges are selected at least in part for their possession of the virtues.
    What about the implications of virtue ethics for legal theory? We might call an aretaic approach to legal theory "virtue jurisprudence." Among the topics that aretaic legal theory might explore is a virtue-centered theory of judging, which describes the particular excellences required by judges. A virtue-centered theory of judging offers an account of the characteristics or excellences that make for a good judge. These include: (1) judicial temperance, (2) judicial courage, (3) judicial temperament, (4) judicial intelligence, (5) judicial wisdom, and (6) justice. We might say that a virtuous judge is a judge who fully possesses the judicial virtues. Although every theory of judging can incorporate some account of judicial virtue, a virtue-centered theory of judging makes the distinctive claim that the judicial virtues are central, i.e. that they have basic explanatory and normative significance.
    In particular, a virtue-centered theory of judging would contend that a correct legal decision is a decision that would characteristically be made by a virtuous judge in the circumstances relevant to the decision. Thus, the central normative thesis of a virtue-centered theory of judging is that judges ought to be virtuous and to make virtuous decisions. Judges who lack the virtues should aim to make lawful or legally correct decisions, although they may not be able to do this reliably given that they lack the virtues. Judges who lack the judicial virtues ought to develop them. Judges ought to be selected on the basis of their possession of (or potential for the acquisition of) the judicial virtues.
    One of the judicial virtues is "judicial wisdom," the judicial form of the phronesis. If the world is too complex for a complete code of moral rules, then what about the law. Aristotle suggested that justice according to law would inevitably fall short in at least some particular cases, because the legislature must speak in relatively general and abstract language which sometimes will produce unintended consequences that are contrary to the purposes of the law. Here is Aristotle's discussion from Chapter 10 of Book V of the Nicomochean Ethics:
      What causes the difficulty is the fact that equity is just, but not what is legally just: it is a rectification of legal justice. The explanation of this is that all law is universal, and there are some things about which it is not possible to pronounce rightly in general terms; therefore in cases where it is necessary to make a general pronouncement, but impossible to do so rightly, the law takes account of the majority of cases, though not unaware that in this way errors are made. And the law is nonetheless right; because the error lies not in the law nor in the legislator but in the nature of the case; for the raw material of human behavior is essentially of this kind.
    Thus, the particularism that characterizes virtue ethics may translate into a concern with equity in virtue jurisprudence.
    Conclusion While utilitarianism and deontology are well-known to legal theory, virtue ethics is only beginning to have an influence on contemporary jurisprudence. Most contemporary American legal theorists were trained before virtue ethics reached its full flower in the 1980s and 1990s, and many law professors who have broad theoretical interests are only vaguely aware of the substantial impact that virtue ethics has had on contemporary moral philosophy. Nonetheless, a theoretically inclined law student can bring virtue ethics to bear on a variety of legal problems. One good example concerns the use of the "reasonable person" standard in tort law. It is interesting that tort law frames the standard of care in negligence cases with reference to the concept of an agent (the reasonable person)--and does not use the "reasonable action" or "reasonable consequences" as the fundamental idea.
    If thinking about the reasonable person in tort law is a good place to begin, virtue ethics can be applied to a variety of legal problems. Here is one suggestion. Sometimes, you will find that a strict application of the rules leads to a result that is manifestly unfair and unintended. Ask yourself: "Is this a case where a virtuous judge might choose to depart from the rule on equitable grounds?" And here is another suggestion: Whenever you find yourself dissatisfied with consequentialist or deontological approaches to the moral problems that law addresses, ask yourself, "What would virtue ethics say here?" What character traits or virtues are relevant to this problem? When you start to list the relevant virtues, you will be on your way to a virtue-theoretic analysis of the legal problem!
      Anscombe, G.E.M., 1958, "Modern Moral Philosophy", Philosophy 33:1-19.
      Crisp, Roger (ed.), 1996, How Should One Live? Oxford: Clarendon Press.
      Crisp, Roger and Michael Slote (eds.), 1997, Virtue Ethics, Oxford: Oxford University Press.
      Foot, Philippa, 1978, Virtues and Vices, Oxford: Blackwell.
      Hursthouse, Rosalind, 1999, On Virtue Ethics, Oxford: Oxford University Press.
      Statman, D. (ed.), 1997, Virtue Ethics, Edinburgh: Edinburgh University Press.
    Links For a collection of prior Legal Theory Lexicon posts, follow this link.

Legal Theory Calendar
    Monday, December 1
      At the University of Chicago's Political Theory Workshop, Jacob Schiff (University of Chicago) presents Different Strokes: Mapping the Terrain of Alterity with discussant: Anne Holthoefer.
      At the University of Chicago's Law and Philosophy Workshop, Professor Ulrich Preuss, Freie Universität, Berlin and Visiting Professor, University of Chicago Law School, will present work on comparative constitutionalism.
      At George Mason's Philosophy, Politics and Economics series, Peter Grajzl & Peter Murrell (Economics/IRIS, University of Maryland Professions) present Politicans and Institutional Reforms.
      At Northwestern's Colloquium on the Legal and Constitutional History of the United States, Tomiko Nagin-Brown (Washington University, St. Louis, School of Law/History) presents Middle class African-Americans' views of desegregation in the era of Brown v. Board of Education.
    Tuesday, December 2
      At Northwestern's Empirical Legal Studies Colloquium, Lisa Bernstein (University of Chicago Law School) presents Custom in the Courts: The Flawed Evidentiary Basis of Article 2's Incorporation Strategy.
      At the University Chicago's Law and Economics Series, Alan Schwartz (Yale Law School) is presenting.
      At the University of Texas Hans Baade presents The Post-Civil War Texas Supreme Court.
      At Oxford's IP Seminar, Tina Piper presents The Unpatentability of Medical Diagnostic Methods: A Promise and its Perils.
      At Oxford's Private and Commercial Law Discussion Group, Donal Nolan presents The Distinctiveness of Rylands v Fletcher.
      At Oxford's Ockham Society, Vladislav Vexler (Oxford) presents Why Isiah Berlin Failed to Ground Liberalism.
    Wednesday, December 3
      At Oxford's Jurisprudence Discussion Group, Dennis Patterson (Rutgers, Camden-Law & New Brunswick-Philosophy) presents Interpretation in Law.
      At Notre Dame Law School, today through December 5, 2003, a symposium entitled The Changing Laws of War: Do We Need a New Legal Regime After 9/11?
      At Northwestern's Law and Economics series, Paul Mahoney (University of Virginia School of Law) presents The Value of Judicial Independence: Evidence from 18th Century England.
      At Oxford's CENTRE FOR CRIMINOLOGICAL RESEARCH Seminar Series, Betsy Stanko presents Between the Home Office, PSAs and a real place: a critical reflection on government targets and doing criminal justice.
      At Tulane's Center for Ethics and Public Affairs, Thomas Pogge will be speaking.
    Thursday, December 4
      At the University of San Diego's Law, Economics, and Politics Workshop, Adrian Vermeule (University of Chicago) is presenting.
      At NYU's Colloquium in Legal, Political and Social Philosophy, J.H.H. Weiler (NYU School of Law) presents A Constitution for Europe? Some Hard Choices.
      At Yale's Legal Theory Workshop, Christine Jolls (Harvard Law) presents Debiasing Through Law.
      At the Princeton Political Philosophy Colloquium, Iris Marion Young will present Responsibility and Structural Injustice.
      At Florida State University, Adrienne Davis (University of North Carolina) presents Re-thinking Slavery.
      At the University of Michigan's Law and Economics series, Richard McAdams is presenting.
      At Boston University, Tamar Frankel is presenting today.
      At the University of Hertfordshire Centre for Normativity and Narrative, Richard Norman (Kent) presents two lectures, Aesthetic Form and the Meaning of Life & The Ethics of War: War and Human Rights.
      At MIT's philosophy series, Jason Stanley (University of Michigan) presents Context, Interest-Relativity, and Knowledge.
    Friday, December 5
      At UC Berkeley's Kadish Center, the General Aspects of Law series, Barbara Fried (Professor of Law and Deane F. Johnson Faculty Scholar, Stanford Law School) presents Begging the Question with Style: Anarchy, State and Utopia at Thirty Years.
      At Oxford's Centre for Socio-Legal Studies, a conference on Islamic Law and Human Rights: An Ethnographic Approach with Fariba Adelkhah, John Bowen, Fikret Karcic, John Kelsay, Werner Menski, Ziba Mir Husseini, Christian Moe, Martha Mundy, Lawrence Rosen, and Mohammad Talib.
      At the University of Buffalo, Ernesto Laclau presents Empty Signifiers and the Logic of Representation with comments by Guyora Binder & Betty Mensch.
      At the University of Texas, Mark Weiner (Rutgers-Newark) presents The Multiple Integrations of the Civil Rights Movement.
      At the Society for Applied Philosophy in London, R. A. Duff (Stirling) & Penny Darbyshire (Kingston University) discuss The Future of the Right to Trial by Jury, with Thom Brooks (Sheffield) as Chair.
      At the University of North Carolina's philosophy series, Samuel Scheffler (Winston Distinguished Visitor) presents Doing and Allowing.
      At the University of Bristol's philophy series, Jo Wolff (UCL) presents What is Disadvantage and What Should be Done About it?
      At the University of London's Philosophy Programme, there is a one-day conference, Aristotle on Potentiality and Actuality.

Saturday, November 29, 2003
Michael Smith on Consequentialism Michael Rappaport and I had a recent exchange on the demandingness objection to utilitarianism (Solum-Rappaport-Solum). So I was in the mood for Consequentialism and the Nearest and Dearest Objection--a paper recently uploaded by Michael Smith of the Australian National University's prestigious Research School of Social Sciences. Here is the hypo that starts the paper:
    Imagine that Bloggs is faced with a choice between giving a benefit to his child, or a slightly greater benefit to a complete stranger. The benefit is whatever the child or the stranger can buy for $100 — Bloggs has $100 to give away — and it just so happens that the stranger would buy something from which he would gain a slightly greater benefit than would Bloggs's child. Let's stipulate that Bloggs believes this to be, and let's stipulate, as well, that he believes that the consequences of his actions are otherwise identical. He chooses to give the benefit to his child. What do we learn about Bloggs from his choice? We learn that Bloggs cares more about his child than he does about complete strangers. Nor is anyone likely to be surprised by this, for it just goes to show that he is much like the rest of us. He gives preferential treatment to his nearest and dearest when he acts, those with whom he has a special relationship, much as we do. Now imagine that we ask Bloggs to justify his choice. Suppose he says that he did what was best, and that it was the best thing for him to do because the benefit went to his child . What do we learn about Bloggs from his attempt to provide a justification for giving the benefit to his child? Assuming that this is supposed to be the most basic value relevant to his choice we learn that, in addition to caring more about his child than he does about complete strangers, he thinks that, in so doing, he cares about what is of fundamental value. As he sees things, there is a distinctive form of value — 'relative' value, as it has come to be called (Parfit 1984, p.27) — realised in his giving the smaller benefit to his child. That is what is signaled by his citing the fact that the benefit accrues to his child: this is the special relationship just mentioned. Moreover Bloggs thinks, correctly, that this kind of value wouldn't be realised if he instead gave the greater benefit to the stranger.
The hypo introduces an argument against what Smith calls Big "C" Consequentialism, which Smith defines as follows:
    Big 'C' consequentialism makes two crucial claims. First, it makes a substantive claim about the nature of value. It says that all values are neutral (Parfit 1984). Second, it makes a conceptual claim about the nature of obligation. It says that facts about what we ought to do can be analysed in terms of facts about which of the various things that we can do will maximize value (we will return to the details of this analysis in a moment).
And here is a bit more from later in the paper:
    Big 'C' consequentialism's hypothesis that all values are neutral is very simple. But what the nearest and dearest objection brings out is that the simplicity of the hypothesis doesn't inspire sufficient confidence in us to reject our firmly held conviction that some values are relative. We hear a story like Bloggs's and we are supposed to find ourselves dismissing his attempt to give a justification of his conduct, but we can't dismiss it. We share Bloggs's conviction that there are relative values at stake and that they can be realised by his giving the $100 to his child. Our confidence in the claim that there are relative values is thus greater than our confidence in big 'C' consequentialism's hypothesis that all values are neutral, notwithstanding the fact that that hypothesis purchases an abundance of the heoretical virtue of simplicity. In this way what the nearest and dearest objection brings out is that big 'C' consequentialism is simply incredible.
And finally:
    The epistemological version of the nearest and dearest objection is therefore still very much on the table. This is not, of course, a serious objection to any of Jackson's principle concerns in 'Decision Theoretic Consequentialism and the Nearest and Dearest Objection'. But it does mean that, at the end of the day, we are yet to be told why reflection on the nearest and dearest objection doesn't show that big 'C' consequentialism is simply incredible.
I strongly recommend Smith's paper to those who are interested in consequentialism.
    Jackson, Frank 1991: 'Decision Theoretic Consequentialism Objection', in Ethics , 101, pp.461-482.
    Parfit, Derek 1984: Reasons and Persons (Oxford: Oxford University Press).

Bainbridge on Regulation By Litigation Read this post.

Legal Theory Bookworm This week, the Legal Theory Bookworm recommends Moral Combat by Heidi Hurd:
    This book explores the thesis that legal roles force people to engage in moral combat, an idea that is implicit in the assumption that citizens may be morally required to disobey unjust laws, while judges may be morally required to punish citizens for civil disobedience. Heidi Hurd advances the surprising argument that the law cannot require us to do what morality forbids.
And here is a passage from deep within Hurd's argument:
    Legal theorists have long thought that the authority of the state--of legislative institutions, regulatory agencies, and the courts--is of the practical sort. Certainly it is practical authority that the law claims on its own behalf. When one sits at a traffic light in the middle of the night despite the blatant fact that it would be safe to cross the intersection, one is appropriately thought to take its color as both a (content-independent) reason to sit there and an (exclusionary) reason not to act on the overwhelming reasons to run the light.
And . . .
    Despite the plausibility given by common practice to the traditional notion that governmental institutions possess practical authority, it is not at all clear that obeying traffic signals, paying compensation, an debarring particular sorts of testimony are rational if done because a citizen or official has been so instructed. In short, it is not at all clear that the contemporary concept of legal obligation is not irresolvably paradoxical. If it is a canon of practical rationality that we act on the balance of reasons available to us, and if a government has only practical authority if it can command us to act in ways that may not comport with the balance of reasons as we see it, then obedience to law of the sort required by the exercise of practical authority violates a central principle of rationality. How could it ever be rational to act contrary to the balance of reasons as one sees it solely because one has been told to do so. Such is the paradox of practical authority.
Heidi Hurd is an extraordinarily thoughtful and careful thinker! Highly recommended.

Download of the Week This week the Download of the Week is Matthew Adler's paper Fear Assessment: Cost-Benefit Analysis and the Pricing of Fear and Anxiety. Adler describes the paper in the abstract:
    "Risk assessment" is now a common feature of regulatory practice, but "fear assessment" is not. In particular, environmental, health and safety agencies such as EPA, FDA, OSHA, NHTSA, and CPSC, commonly count death, illness and injury as "costs" for purposes of cost-benefit analysis, but almost never incorporate fear, anxiety or other welfare-reducing mental states into the analysis. This is puzzling, since fear and anxiety are welfare setbacks, and since the very hazards regulated by these agencies - air or water pollutants, toxic waste dumps, food additives and contaminants, workplace toxins and safety threats, automobiles, dangerous consumer products, radiation, and so on - are often the focus of popular fears. Even more puzzling is the virtual absence of economics scholarship on the pricing of fear and anxiety, by contrast with the vast literature in environmental economics on pricing other "intangible" benefits such as the existence of species, wilderness preservation, the enjoyment of hunters and fishermen, and good visibility, and the large literature in health economics on pricing health states. This Article makes the case for "fear assessment," and explains in detail how fear and anxiety should be quantified and monetized as part of a formal, regulatory cost-benefit analysis. The author proposes, concretely, that the methodology currently used to quantify and monetize "light" physical morbidities, such as headaches, coughs, sneezes, nausea, or shortness of breath, should be extended to fear. The change in total fear-days resulting from regulatory intervention to remove or mitigate some hazard - like the change in total headache-days, cough-days, etc. - should be predicted and then monetized at a standard dollar cost per fear-day determined using contingent-valuation interviews.
Download it while its hot!

Friday, November 28, 2003
Cohen on Who Can Blame the Terrorists at Cambridge At the Cambridge Forum for Legal & Political Philosophy, G.A. Cohen (All Souls College, Oxford) presents Casting the First Stone: Who Can and Who Can't Blame the Terrorists.

Saul on Torturing Terrorists at Oxford At Oxford's Human Rights Discussion Group, Ben Saul presents Torturing Terrorists after September 11: Dershowitz` Torture Warrant.

Papineau on Genes and Culture at Bristol At the University of Bristol's philosophy series, David Papineau (King's College, London) presents Genes and Culture.

Bernitz on European Competition Law Convergence at Oxford At Oxford's Institute of European and Comparative Law Seminar Series, Ulf Bernitz presents Convergence of European and National Competition Law: How Far Will it Go?.

Preece on Common Law & National Sovereignty Alun A. Preece (University of Queensland) has posted The Common Law and National Sovereignty on SSRN. Here is the abstract:
    Both the common law and the concept of national sovereignty have faced increased challenges from the growing impact of international and supranational law in the latter part of the 20th century. This paper will argued that it is not surprising that both face somewhat similar challenges, given that the common law evolved in the Middle Ages essentially as a unique national system in contrast to the spread of Roman Law based systems in most of the rest of Europe. Consequently, the common law system was intrinsically more favourable to concepts of national sovereignty and the latter was generally asserted earlier and more successfully in common law jur,isdictions. Certain common factors, notably geographic isolation contributed strongly to this. Even after the general European acceptance of the concept of national sovereignty at the Peace of Westphalia in 1648, a common law system generally carried with it a more pronounced assertion of national sovereignty. An example is a generally dualist as opposed to monist approach to international law. Another is a generally more reticent approach to constitutional entrenchment of bills of rights, or surrender or national sovereignty to international institutions or organisations.

Baker on Price Discrimination Jonathan B. Baker (American University, Washington College of Law) has posted Competitive Price Discrimination: The Exercise of Market Power Without Anticompetitive Effects (Comment on Klein and Wiley) (Antitrust Law Journal, Vol. 70, No. 3, pp. 643-54, 2003, American Bar Association) on SSRN. Here is the abstract:
    A firm that discriminates in prices faces a downward sloping demand curve, and thus could potentially raise price by reducing output. For this reason, evidence of price discrimination is relevant to assessing the possibility of market power, as antitrust law has long recognized. But price discrimination can be beneficial as well as harmful, and can reasonably be termed competitive if entry is easy. Hence a demonstration that entry is easy rebuts the inference of anticompetitive effect when price discrimination is the basis for proof of market power, breaking the link between market power and anticompetitive effect. Klein and Wiley's proposal that courts should never infer market power from price discrimination is unnecessary to insulate competitive price discrimination from antitrust scrutiny, introduces a confusing distinction between market-power-in-economics and market-power-in-antitrust, and risks insulating from liability firms engaged in price discrimination when discrimination or the practices that facilitate it would harm competition.

Conference Announcement: The Laws of War at Notre Dame
    Fall 2003 Symposium - December 3 - 5, 2003 The Changing Laws of War: Do We Need a New Legal Regime After 9/11? McKenna Hall - Center for Continuing Education Schedule: Wednesday, December 3rd Small Group dinners with Panelists and Faculty Thursday, December 4th 8:30 am Reception, McKenna Hall 9:00 am - 12:00 pm Panel 1, McKenna Hall 12:00 am - 2:00 pm Lunch at Morris Inn 2:00 pm - 4:30 pm Panel 2, McKenna Hall 6:30 pm Key Note Dinner, McKenna Hall Banquet Room Friday, December 5th 8:30 am Reception, McKenna Hall 9:00 am - 11:30 am Panel 1, McKenna Hall Panels: Thursday - morning US Law: Patriot Act/Due Process/Jurisdiction Moderator: Patricia Bellia, Notre Dame Law School Neal Katyal, Georgetown University Law Center Patrick Baude, Indiana University School of Law Michael Stokes Paulsen, University of Minnesota Law School Saikrishna Prakash, University of San Diego School of Law Thursday - afternoon Enemy combatant/stateless enemy/terrorist Moderator: Mark Kende, Notre Dame Law School John Choon Yoo, University of California, Berkeley - Boalt Hall School of Law & Greg Jacobs, Department of Justice Derek Jinks, University of Chicago Law School Jimmy Gurulé, Notre Dame Law School Friday - morning International Law/Geneva Conventions/Laws of War Moderator: Juan Mendez, Notre Dame Law School Michael Ramsey, University of San Diego School of Law Derek Jinks, University of Chicago Law School Jordan Paust, University of Houston Law Center William Bradford, Indiana University School of Law Admission Fee : $20 faculty&public; Free students

Ayotte & Skeel on Venue Choice in Bankruptcy Kenneth Ayotte and David A. Skeel, Jr. Jr. (Columbia Business School and University of Pennsylvania Law School) have posted Why Do Distressed Companies Choose Delaware? An Empirical Analysis of Venue Choice in Bankruptcy to SSRN. Here is the abstract:
    We analyze a sample of large Chapter 11 cases to determine which factors motivate the choice of filing in one court over another when a choice is available. We focus in particular on the Delaware court, which became the most popular venue for large corporations in the 1990s. We find no evidence of agency problems governing the venue choice or affecting the outcome of the bankruptcy process. Instead, firm characteristics and court characteristics, particularly a court's level of experience, are the most important factors. We find that court experience manifests itself in both a greater ability to reorganize marginal firms and in reorganizing such firms faster. Delaware is similar to other high-experience courts in terms of the likelihood of reorganization controlling for firm characteristics, but is a standout in terms of speed. We estimate that a Delaware bankruptcy requires approximately 40% less time to complete than an equivalent case in another court.

Alward on Authorial Speech Acts Peter Alward has uploaded Attitudes Towards Fiction - Chapter 1: Authorial Speech Acts. Here is an excerpt:
    The upshot of this discussion is that insofar as authors are thought to be performing speech acts, they can only be thought of as performing utterance or inscriptional acts – acts of producing meaningful sentences tokens, but tokens lacking propositional content. Of course, this is not by itself sufficient for fiction-making, but the distinguishing mark of fiction is not to be found in authors’ communicative purposes. Fiction-making is the process of creating an artifact of a certain kind – a novel, or a novella, or a short story. The speech act approach to authorial activity erroneously models it on the activity of speakers engaged in communication rather than that of artists producing art objects. The mistake is a natural one given that art objects in question consist of sentences, which are primarily used for communication. Nonetheless, the relation of author to text should not be thought of as the relation of speaker to utterance, but rather as word-sculptor to word sculpture.
This paper is suggestive, in an interesting way, of the frequently used metaphor of crafting legislation. Hmm.

Bagley versus Nard Margo Bagley (Emory University - School of Law) has posted Still Patently Unconstitutional: A Reply to Professor Nard (Minnesota Law Review, Vol. 88, p. 238, 2003). Here is the abstract:
    In Defense of Geographic Disparity (also forthcoming, 88 Minn. L. Rev., Fall 2003), is Professor Craig Nard's response to Professor Bagley's article Patently Unconstitutional: The Geographical Limitation on Prior Art in a Small World, 87 MINN. L. REV. 679, 680-682 (2003). In this essay, Professor Bagley addresses Professor Nard's contention that the geographic limitation on prior art can be justified by the incentives it provides for U.S. pharmaceutical development which may enhance public welfare. By refocusing on the provision's constitutional deficiencies, expanding on the myriad costs associated with the provision, and discussing the dangers of maintaining this double standard that is out of step with the realities of both modern and traditional societies, Professor Bagley reaffirms her conclusion that elimination of the geographical limitation is a necessity in this small, small world.

Thursday, November 27, 2003
Giving Thanks
    Thanks to Howard Bashman--How Appealing is an amazing resource.
    Thanks to the Volokh Conspirators and the Crooked Timberites for many hours of interesting and provacative reading.
    Thanks to Rick Hasen, whose Election Law Blog is a wonder.
    Thanks to Jack Balkin. Nothing has been more rewarding than responding to the intelligent and careful work that Jack does on Balkinization.
    Thanks to Brett Marston, from whose Marstonalia, I have learned much.
    Thanks to my USD colleagues, Gail Heriot, Sai Prakash, Mike Rappaport, Maimon Schwarzschild, Tom Smith and Chris Wonnell for their fabulous new blog, The Right Coast.
    Thanks to Chris Bertram, Greg Goelzhauser, and Nate Oman--your support in the early days of Legal Theory Blog meant more than you can know.
    Thanks to Jane Galt and Glenn Reynolds for introducing many new readers to LTB.
    And most of all, thanks to you, for reading!
    Wishing all in the blogosphere, a joyous Thanksgiving,

Lipton on Database Property Jacqueline D. Lipton (Case Western Reserve University - School of Law) uploads Balancing Private Rights and Public Policies: Reconceptualizing Property in Databases (Berkeley Technology Law Journal, Vol. 18, pp. 773-852, Summer 2003) to SSRN. Here is the abstract:
    This Article presents a new paradigm for thinking about intangible property rights in response to recent criticism that information products such as databases should not be over-propertized. Analyzing the inherent problems with existing approaches, the Article concludes that creating private property rights in these intangible assets will not inevitably lead to commercial and social problems. On the contrary, legislatures can create private property rights that when accompanied by appropriate oversight and monitoring will preserve commercial markets and the public domain of information. Indeed, a new database law can use the concept of property as an organizing tool to properly balance private rights and public policies. In developing this new approach to database protection, this Article examines the international debate on the creation of private property rights in databases. Furthermore, unlike previous models for sui generis database protection law based on copyright or trade secret law, the model in this Article draws on the principles underlying trademark and patent law in reaching a new solution.

Is there really a workshop at Northwestern today? Northwestern's website says that Ronen Avraham is presenting Liability Rules and Modular Liability Rules: Another Ex-Ante View of the Cathedral. But surely not!

Fehige on Desires at ANU At ANU's RSSS, Christoph Fehige (University of Konstanz) presents Desires as Affects.

The UN and National Building at ANU At ANU's faculty of law, there is a conference entitled The United Nations and State Building.

Wednesday, November 26, 2003
Litman on Sharing and Stealing Jessica Litman (Wayne State University Law School) has posted Sharing and Stealing on SSRN. (For an updated version of the working paper, follow this link.) Here is the abstract:
    The purpose of copyright is to encourage the creation and mass dissemination of a wide variety of works. Until recently, most means of mass dissemination required a significant capital investment. The lion's share of the economic proceeds of copyrights were therefore channeled to publishers and distributors, and the law was designed to facilitate that. Digital distribution invites us to reconsider all of the assumptions underlying that model. We are still in the early history of the networked digital environment, but already we've seen experiments with both direct and consumer-to-consumer distribution of works of authorship. One remarkable example of the difference consumer-to-consumer dissemination can make is seen in the astonishing information space that has grown up on the world wide web. The Internet has transformed information and the way we interact with it by creating an easily accessible, dynamic, shared information space. Its success derives from the fact that information sharing on the Web is almost frictionless; individuals are free to post information they learned from others without having to secure their permissions. This paper proposes that we look for some of the answers to the vexing problem of unauthorized exchange of music files on the Internet in the wisdom intellectual property law has accumulated about the protection and distribution of factual information. In particular, it analyzes the digital information resource that has developed on the Internet, and suggests that what we should be trying to achieve is an online musical smorgasbord of comparable breadth and variety. It proposes that we adopt a legal architecture that encourages but does not compel copyright owners to make their works available for widespread sharing over digital networks, and that we incorporate into that architecture a payment mechanism, based on a blanket or collective license, designed to compensate creators and to bypass unnecessary intermediaries.
And here is a bit more, re the license scheme that Litman envisions:
    We should adopt a legal architecture that encourages but does not compel copyright owners to make their works available for widespread sharing over digital networks. We should incorporate into that architecture a payment mechanism designed to compensate creators and to bypass unnecessary intermediaries. That mechanism should have sufficient flexibility to allow current and new upstart intermediaries to devise useful value-added flavors of intermediation and collect dollars accordingly. Fisher, Ku and Netanel have done a pretty good job of identifying the goods and services that will need to be subject to a copyright “tax,” “fee,” “levy,” or “royalty. ” The pot of money generated by the fees should be disbursed by whatever agency Congress decides should replace the current unworkable Copyright Arbitration Royalty Panels. In the first instance, money should be disbursed to the musicians and composers who author music and recordings.
One of the most interesting aspects of Litman's analysis is her contention that the schemes she supports (compulsory license plus a tax) are outside the politically feasible choice set. Litman raises the obvious question: "If I’m persuaded that politics would prevent the adoption of a Netanel/Fisher/Ku/Lunney solution, why am I bothering to articulate my own variation?" Part of her answer is: "The fact that more than sixty million consumers are currently exchanging music over peer-to-peer networks in the U.S. gives them a stake in the building consensus and both a moral and a political claim to a seat at the copyright bargaining table." Litman, who understands the politics of copyright legislation as well as anyone, is certainly aware of the collective action problem that faces consumers--our individual stakes are insufficient to given individuals an incentive to incur the expense of direct participation, and free rider problems will plague the effort to create a collective lobbying effort with the resource base that would make it a serious competitor to the content owner lobbies. Highly recommended!
And here are some references:
  • Neil W. Netanel, Impose a Noncommercial Use Levy to Allow Free P2P File Swapping and ReMixing, U. of Texas Law, Public Law Research Paper No. 14 (Nov. 15, 2002)
  • William Fisher III, An Alternative Compensation System in PROMISES TO KEEP: TECHNOLOGY, LAW AND THE FUTURE OF ENTERTAINMENT (forthcoming 2004).

More from Weatherson on Cloning Brian Weatherson has put up a series of posts on cloning over at Crooked Timber, with many fine comments added by readers. His latest two posts can be found here and here.

Gardner & Macklem on Provocation John Gardner & Timothy Macklem have uploaded No Provocation without Responsibility: a Reply to MacKay and Mitchell. For submission to the Criminal Law Review. Here is a taste:
    In a recent issue of the Review, R.J. MacKay and B.J. Mitchell make a thought-provoking contribution to the long-running debate about the relationship between provocation and diminished responsibility as defences to murder. In part, their article is a reaction to an earlier contribution that we made to the same debate, also in the pages of the Review. MacKay and Mitchell share with us a dissatisfaction with the state of the law after the House of Lords’ decision in R v Smith (Morgan). They agree with us that the House of Lords left the law in an unstable condition. But that is where the agreement ends. We argued that the House of Lords had erred in trying to knit the two defences together. MacKay and Mitchell, by contrast, see the decision as testament to the folly of trying to keep the two defences apart. They argue that the law should take R v Smith to its logical conclusion, and unify the two defences forthwith.
    At the centre of our argument was what we regarded as an elemental contrast between excuses and denials of responsibility. To offer an excuse, we said, is to attempt to provide a decent rational explanation for what one did. To deny responsibility, by contrast, is to assert that (because at the time one was not a sufficiently rational being) no rational explanation for what one did is called for. Defences in these two classes, we argued, are not only different but incompatible. To make an excuse is not only not to deny one’s responsibility; it is positively to assert one’s responsibility. To deny one’s responsibility is not only not to make an excuse; it is to undermine any excuse one might have made. That is because one cannot claim to live up to rationality’s standards while also claiming that one should not be judged by rationality’s standards.
If you are interested in the theory of criminal law, you will want to read Gardner & Macklem!

Barry on Utilitarianism and Human Rights at UCL At University College, London, today, Brian Barry (Columbia) presents Utilitarianism and Human Rights?

Keohane on Rational Choice & International Law Robert Keohane (Duke University - Department of Political Science) has posted Rational Choice and International Law (Journal of Legal Studies, Vol. 31, No. 1, January 2002) on SSRN. Here is the abstract:
    Rational choice theory provides important insights for the study of international law and institutions, but it also encounters significant limitations. Rationality is an ideal type and strategic action is a matter of degree. Neither should be regarded as limited to activities involving the pursuit of material self-interest. Rational choice theory is valuable, for the analysis of international law and institutions, in five ways: 1) as a basis for skeptical interpretations of talk and action; 2) as a menu of causal mechanisms; 3) as an explanatory device for helping to resolve specific puzzles; 4) as part - but only part - of an explanation of legal and political phenomena; and 5) as the basis for generating further puzzles for research. Different methods are associated with these different tasks. Rational choice theory seeks to encompass an extraordinary range of human behavior within a single encompassing framework. This ambition drives an important intellectual agenda; but the practitioners of rational choice theory should beware of the sin of hubris, or pride.

Infanti on the IRC as a Sodomy Statute Anthony C. Infanti (University of Pittsburgh - School of Law) has uploaded The Internal Revenue Code as Sodomy Statute (Santa Clara Law Review, Vol. 44) to SSRN. Here is the abstract:
    This article represents an attempt to bridge the gap between gay and straight understanding of the Internal Revenue Code's impact on same-sex couples. Through a combination of personal narrative and legal analysis, I try to explain how, from a gay perspective, the Code can be viewed as just another manifestation of the fluid mixture of hostility, bewilderment, and discomfort that generally characterize society's reaction to homosexuality. By explaining the experiences behind my perceptions of the Code, I hope to help my heterosexual colleagues to understand just how demeaning and oppressive the Code can seem to gays and lesbians - regardless of any net financial benefit that same-sex couples may receive, or any net financial detriment that they may suffer, under the Code.

Atik on Nafta & Legitimacy Jeffery Atik (Loyola Marymount University) has uploaded Repenser NAFTA Chapter 11: A Catalogue of Legitimacy Critiques (Asper Review of International Business and Trade Law, Vol. 3, 2004). Here is the abstract:
    No feature of NAFTA is more often criticized than Chapter 11. It has proved to be a lightning rod for anti-NAFTA and anti-globalization critics. Environmentalists, labor organizers and human rights advocates all decry its secrecy, its potential disruptiveness to ordinary lawmaking and its placing of investors' interests before those of the broader public. Chapter 11 is portrayed as a great give-away - an elaborate ruse to evade checks on corporate activity in the three NAFTA countries. Nor do any of the three NAFTA Parties - the governments of the United States, Canada, and Mexico - seem particularly pleased with Chapter 11's operation. There is more than a little buyer's remorse evident. All three nations share a general discomfort with the extensive reach Chapter 11 has displayed. Through an unanticipated flow of decisions, Chapter 11 tribunals have entertained - if not endorsed - far more extravagant investment claims than were likely imagined by the three nations while negotiating Chapter 11's substantive terms. Such widespread unhappiness with Chapter 11 is somewhat unanticipated, as Chapter 11 attracted little attention during its negotiations. Indeed, it is now viewed as having been something of a Trojan Horse: seemingly benign upon first delivery, but later understood to have brought destruction to national democratic institutions. Many of the attacks on Chapter 11 are expressed in terms of a lack of legitimacy. The exercise of authority by Chapter 11 tribunals over public decisions seems wildly inconsistent with the understandings and expectations in all three countries of how legitimate political and judicial determinations should be made. There is a repeated and emphatic protest of unfair surprise advanced by critics of Chapter 11 - many, if not most, state/provincial and local public officials in the three NAFTA Parties claim to have been unaware of the establishment of an external mechanism that can impose monetary liability for legislative and judicial decision-making. The implication made here is that had Chapter 11 been better known and understood, it would never have been implemented. It is a sucker-punch, a hidden rider, the unnoticed fine print. Now in place, the potential of Chapter 11 to restrict lawmaking prerogatives chafes legislators throughout North America. Chapter 11, as part of NAFTA, is layered on top of the domestic legal regimes of the three NAFTA Parties. As such, questions of its legitimacy are perhaps best viewed from the specific legal traditions - and legal expectations - native to each Party. Thus, to answer whether Chapter 11 is legitimate, one can usefully draw on the structures, constitutional understandings and functional notions of legitimacy found within each NAFTA Party. To the extent Chapter 11 goes beyond the expected (even if this is exactly the intended point of its construction), legitimacy is tested. This essay presents a catalogue of defects, surprises, shortcomings and deliberate design associated with Chapter 11 - all of which have prompted attacks on its legitimacy.

Tuesday, November 25, 2003
Posner on Databases & Copyright Richard Posner has written a typically lucid opinion in ASSESSMENT TECHNOLOGIES OF WI, LLC. v. WIREDATA, INC. The case concerns a real-estate database constructed from public domain records subject to an open records statute. Posner observes that the plaintiff could claim a copyright in the arrangement of the data (the data elements & the arrangement of the elements into tables), but not underlying raw data. Link courtesy of the always amazing Howard Bashman.

Bertram on Rousseau Chris Bertram (Crooked Timber) has a marvelous book on Rousseau that is now available from Rousseau and the Social Contract. I just bought my copy! Perhaps the reader's of Legal Theory Blog can boost Chris's sales rank! Buy it while its hot!

Fanto on Whistleblowing & Public Directors James A. Fanto (Brooklyn Law School) uploads Whistleblowing and the Public Director: Countering Corporate Inner Circles to SSRN. Here is the abstract:
    I argue that, in the corporate scandals, the contrast between the behavior of many executives, board members and corporate advisors who were reluctant to challenge corporate misbehavior and that of the small number of corporate whistleblowers who did points to a disturbing social psychological reality that has been overlooked in the discussion of, and reforms addressing, the scandals: a group dynamic that binds group members together so that it blinds them to their failings and abuses. I contend that this social psychological reality, long known to and studied by social psychologists, is a basic cause of the scandals. I first review recent corporate scandals and highlight the evidence of the social psychological phenomenon of the inner group or circle in them. I next explain how social psychological theories, such as "groupthink" and the group production of evil, account for why corporate inner circles behaved improperly. I then look at reform proposals of advisory groups on corporate governance and self-regulatory organizations and argue that the reforms these groups either propose or implement will prove ineffective because they fail to recognize the role of the inner circles in the scandals. I offer a response, inspired by social psychological theory, that would help prevent future scandals by keeping a board from falling under the domination of an inner circle. I propose that public companies have a significant minority of "public" directors who would be selected for shareholder election to boards from a group of individuals identified by a new government oversight board and whose goal would be to oppose and monitor the firm's inner circle. Since I assume that many existing board members, who now compose an elite coming from a few specific backgrounds, are particularly prone to joining inner circles, I argue that public board members should primarily be drawn from outside this elite. This ambitious reform is needed because investments in public companies have replaced bank investing for most ordinary Americans and because private ordering is not solving the inner circle problem. I then explain how provisions in Sarbanes-Oxley, and the implementing SEC regulations, that change board practices can be understood as an implicit, but imperfect, effort to create an oppositional attitude among board members and their advisors that would counter the rise of inner circles and their groupthink. I discuss the reforms' limitations due to their inadequate grounding in social psychology.

Trosow on Copyright for Subsidized Speech Samuel E Trosow (University of Western Ontario - Faculty of Law / Faculty of Information & Media Studies) has posted Copyright Protection for Federally Funded Research: Necessary Incentive or Double Subsidy? on SSRN. Here is the abstract:
    Should works resulting from research that has been substantially subsidized by the United States Federal Government be protected by copyright, or immediately enter the public domain? The Public Access to Science Act (PASA) would place these works in the public domain in the same manner as works prepared by government employees. This paper evaluates the merits of the legislation by placing the question of the appropriate copyright treatment of federally subsidized works within an historical perspective, taking into account the underlying purposes of copyright policy as well as the changes that have taken place in field of scholarly publishing since Congress last considered the issue in 1976. The regulatory environment and practices of the major federal funding agencies are reviewed, showing that agencies have failed to utilize their broad discretion over the treatment of funded works, resulting in an over-protection of works as the default rule. The paper considers how the balancing of interests that has historically informed copyright policy should be applied to works that have been federally supported; it will review and assess the initial reactions to PASA from the point of view of various stakeholders including the commercial publishers, non-commercial publishers, universities, authors and researchers, and library associations; and it will consider whether the PASA's purposes might be accomplished through other mechanisms. The conclusion is reached that works resulting from extramural research that has been substantially subsidized by the Federal Government should enter the public domain in the same manner as works resulting from intramural government research undertaken by federal employees, and that PASA provides a straightforward mechanism for reaching this result.

Posner Speaks Another Rice Grad guest blogs Richard Posner's talk at George Mason on Bush v. Gore over at Southern Appeal.

Ides on Congress's Power to Regulate Abortion Under the Commerce Clause Allan Ides (Loyola Marymount University) has uploaded The Partial-Birth Abortion Ban Act of 2003 and the Commerce Clause to SSRN. Here is the abstract:
    The constitutional controversy surrounding the recently enacted Partial-Birth Abortion Ban Act of 2003 has focused on whether the Act imposes an undue burden on a woman's right to choose an abortion. More specifically, the question is whether the Act runs afoul of the principles enunciated in Stenberg v. Carhart, 530 U.S. 914 (2000). The focus of this essay is on a separate constitutional question, namely, whether the Act represents a valid exercise of the commerce power under the principles enunciated in United States v. Lopez, 514 U.S. 549 (1995) and United States v. Morrison, 529 U.S. 598 (2000). The author concludes that under current Commerce Clause doctrinal standards the constitutionality of the Act as written is in serious doubt. Since this is a working draft, the author invites comments and criticisms.
Highly recommended.

Bainbridge on Eisenberg I would imagine that most readers of Legal Theory Blog will want to read Stephen M. Bainbridge's (University of California, Los Angeles - School of Law) Social Propositions and Common Law Adjudication, which is just up on SSRN. Here is the abstract:
    This essay reviews The Nature of the Common Law by Melvin A. Eisenberg (Harvard University Press, 1988). Professor Eisenberg's stated goal therein "is to develop the institutional principles that govern the way in which the common law is established in our society." In the course of doing so, Eisenberg addresses the functions of courts in American society, modes of legal reasoning and the process of overturning prior precedents. Yet Eisenberg never loses sight of his central thesis, namely that "all common law cases are decided under a unified methodology, and under this methodology social propositions always figure in determining the rules the courts establish and the way in which those rules are extended, restricted, and applied." According to the reviewer (UCLA law professor Stephen M. Bainbridge), The Nature of the Common Law is one of the most thought-provoking books ever written on common law adjudication. Eisenberg's belief in social morality as a workable guide to decisionmaking surely invites further debate. So too does his concomitant belief that law is more than merely the personal moral and policy preferences of the judge. Indeed, one might almost say that The Nature of the Common Law deserves to be controversial, for Eisenberg has given us a report that is both normatively appealing and descriptively accurate. The Nature of the Common Law succeeds because it is both an attractive vision of how courts should function and a perspicuous account of the real world in which courts actually function.

Driver Reviews Arply Julia Driver has a Review of Nomy Arpaly's Unprincipled Virtue on Notre Dame Philosophical Reviews. Here is an excerpt:
    I felt sure I would like Nomy Arpaly’s book when I opened it to the first page and saw John LeCarré’s name in the first sentence. I was not disappointed. Arpaly uses an engaging mix of literary examples and rigorous analysis to present and argue for a variety of interesting claims relating to virtue. Arpaly has something novel and interesting to say about autonomy, agency, moral worth, and virtue. This is an excellent book, and one of the best I’ve read recently.

Gregory on Stalinism at George Mason At George Mason's Philosophy, Politics, and Economics series, Paul Gregory (Economics, University of Houston) presents The Political Economy of Stalinism.

Williams on the Natural/Positivist Nexus at OJDG At Oxford's Jurisprudence Discussion Group, Melanie Williams, presents Then and Now: The Natural/Positivist Nexus at War - Auden’s “September 1, 1939”.

Duffield on Patent Harmonization at Oxford At Oxford's IP Seminar, Graham Dutfield presents Harmonising Patent Law? A Lesson from the 19th Century Dyestuff Industry.

Shavell on Contracts Steven Shavell (Harvard Law School) has posted On the Writing and the Interpretation of Contracts on SSRN. ($5.00 fee.) Here is the abstract:
    The major theme of this article is that the interpretation of contracts - their possible amplification, correction, and modification by adjudicators - is in the interests of contracting parties. The general reasons are (a) that interpretation may improve on otherwise imperfect contracts; and (b) that the prospect of interpretation allows parties to write simpler contracts and thus to conserve on contracting effort. A method of interpretation is defined as a function whose argument is the written contract and whose value is another contract, the interpreted contract, which is what actually governs the parties' joint enterprise. It is shown that interpretation is superior to enforcement of contracts as written, and the optimal method of interpretation is analyzed.
Unfortunately, I cannot download the paper. I'm very interested in the argument that the interpretation of a contract is another contract--because of the potential regress problem. Anyone have a copy?

Boos on H.L.A. Hart & David Hume, Is/Ought Eric J. Boos (Sokoine University - Law) posts The Misapplication of the 'Is-Ought' Distinction and the Role of Justice in Hart's Legal Theory on SSRN. Here is the abstract:
    In this article I intend to show that H.L.A. Hart's position in The Concept of Law, that the validity of law is not grounded in the fact that the content of law is essentially moral, is incongruent with his insistence that the ultimate rule of recognition is grounded in normative (social) behavior. Hart's insistence that there be an attitude of shared acceptance toward the ultimate rule of recognition compromises his insistence that there is no logically necessary relationship between law and morality. The problem in Hart's legal theory seems to be rooted in his strident efforts to make application of the general tenets of positivism. His attempt to keep separate the fields of law and morality while at the same time attempting to satisfy the parameters of his own project as a "descriptive sociology," are in conflict. In short, Hart seems to have too stringently applied Hume's Is-Ought distinction to the realm of legal theory.

Adler on Fear Assessment or "The Only Cost We Have to Weigh is Fear Itself" Matthew D. Adler (University of Pennsylvania Law School) has uploaded Fear Assessment: Cost-Benefit Analysis and the Pricing of Fear and Anxiety to SSRN. Here is the abstract:
    "Risk assessment" is now a common feature of regulatory practice, but "fear assessment" is not. In particular, environmental, health and safety agencies such as EPA, FDA, OSHA, NHTSA, and CPSC, commonly count death, illness and injury as "costs" for purposes of cost-benefit analysis, but almost never incorporate fear, anxiety or other welfare-reducing mental states into the analysis. This is puzzling, since fear and anxiety are welfare setbacks, and since the very hazards regulated by these agencies - air or water pollutants, toxic waste dumps, food additives and contaminants, workplace toxins and safety threats, automobiles, dangerous consumer products, radiation, and so on - are often the focus of popular fears. Even more puzzling is the virtual absence of economics scholarship on the pricing of fear and anxiety, by contrast with the vast literature in environmental economics on pricing other "intangible" benefits such as the existence of species, wilderness preservation, the enjoyment of hunters and fishermen, and good visibility, and the large literature in health economics on pricing health states. This Article makes the case for "fear assessment," and explains in detail how fear and anxiety should be quantified and monetized as part of a formal, regulatory cost-benefit analysis. The author proposes, concretely, that the methodology currently used to quantify and monetize "light" physical morbidities, such as headaches, coughs, sneezes, nausea, or shortness of breath, should be extended to fear. The change in total fear-days resulting from regulatory intervention to remove or mitigate some hazard - like the change in total headache-days, cough-days, etc. - should be predicted and then monetized at a standard dollar cost per fear-day determined using contingent-valuation interviews.
Every paper by Matt Adler I read, I like!

Mattiacci on Kaplow & Shavell Giuseppe Dari Mattiacci (Utrecht School of Economics) has posted Goedel, Kaplow, Shavell: Consistency and Completeness in Social Decisionmaking on SSRN. Here is the abstract:
    The recent debate on what criteria ought to guide social decisionmaking has focused on consistency: it has been argued that criteria contradicting one another - namely, welfare and fairness - should not be simultaneously employed in order for policy assessment to be consistent. In this article, I raise the related problem of completeness - that is, the question of whether or not a set of consistent criteria is capable of providing answers to all social decision problems. If not, as I suggest might be the case, then the only way to decide otherwise undecidable issues is to simultaneously employ both welfare and fairness, which implies a certain degree of inconsistency within the system.

Monday, November 24, 2003
More on the Demandingness Objection to Utilitarianism Here, from Michael Rappaport of The Right Coast. The gist of the demandingness objection is captured by the question: doesn't utilitarianism demand that we all work for Oxfam? One potential way to answer the objection relies on R.M. Hare's distinction between utilitarianism as an ideal theory of morality, and the rules of thumb that would produce the best consequences if internalized as social norms. Rappaport has some interesting things to say about a Harean strategy. After you read Rappaport's very thoughtful post, consider this argument from Stanford University graduate student Daniel Lafave:
    The main problem with two-level views is their psychology. If I really accept utilitarianism, how can I abide by a common-sense morality I know to be a fiction? And ifI really do take that common sense morality seriously, how can I just forget it when I am supposed to think as a utilitarian? The two-level response here must be that this is indeed a messy compromise, but one made to deal with a messy reality.
    Act-utilitarianism is an extremely demanding theory, since it requires you to be entirely impartial between your own interests, the interests of those you love, and theinterests of all. The usual example offered is famine relief. By giving up all your time,money and energy to famine relief, you will save many lives and prevent much suf-fering. Utilitarians often claim at this point that there are limits to human capabilities,and utilitarianism requires us only to do what we can. But the sense of ‘can’ hereis quite obscure, since in any ordinary sense I can give up my job and spend my life campaigning for Oxfam.
    The demandingness objection seems particularly serious when taken in the context of widespread noncompliance with the demands of act-utilitarian morality. Most people do little or nothing for the developing world, and this is why the moral demands on me are so great. An argument such as this has been used to advocate rule-utilitarianism, according to which the right action is that which is in accord with thatset of rules which, if generally or universally accepted, would maximize utility.
My prior post was here and Matthew Yglesias had a post here.
Update :And more from Ciceronian Review, here.
Additional update: And for more from Charles Stewart, surf here.

Weekend Update On Saturday, the Dowload of the Week was Gerald Postema's magisterial two-part paper on the common law, and the Legal Theory Bookworm recommended Robert Alexy's latest. Sunday, the topic for the Legal Theory Lexicon was the theory of the second best (and the distinction between ideal and nonideal theory). And also on Sunday, you will find the Legal Theory Calendar, with workshops, conferences, and other events of note for this week. Finally, the last post from the weekend was a longish response to Brian Anderson's Opinion Journal op/ed on Senator Schumer and judicial selection.

Froomkin on National ID Cards at FSU At Florida State, Michael Froomkin (University of Miami) presents The Uneasy Case for National ID Cards as a Means to Enhance Privacy. I always learn from Froomkin's work. This should be excellent! P.S. FSU appears to have password protected the paper, so I have substituted a link to a version from Froomkin's website--this may not be the same draft as circulated to the FSU faculty.

Jiang on Defined Contribution Plans at Columbia At Columbia's law and economics series, Professor Wei Jiang (Columbia University Graduate School of Business) presents Defined Contribution Pension Plans: Determinants of Participation and Contributions Rates (authored with Business School colleagues Professors Gur Huberman and Sheena S. Iyengar).

Schmidtz on Equality at Arizona At Tulane's Center for Ethics and Public Affairs, David Schmidtz (University of Arizona) presents Equality. Largish topic?

Griffin at Oxford At Oxford's Moral Philosophy Seminar, James Griffin (ANU) speaks today. Topic anyone?

O'Connor on Corporate Governance and Human Capital Marleen O'Connor (Stetson University College of Law) has uploaded American Corporate Governance and Resilient Families: Investing in Children's Human Capital in Turbulent Times to SSRN. Here is the abstract:
    This article considers the relationship between corporate governance and the well-being of children. The United States has a serious skills deficit among its younger workers. Experts from many fields agree that human capital development in the early years of life profoundly shape the adult worker. Parents have the greatest influence on human capital development during this time. Parents are trying to do their best, yet socio-economic changes make it increasingly difficult for parents to raise their children. This article considers how the economic transition to the new economy and the social revolution concerning changing gender roles intersect and interact to negatively impact the family. This article asserts that corporations need to take responsibility to promote resilient families in these turbulent times by implementing better work/family policies. This article considers how a new political coalition of parents is forming and suggests that this group seek to harness the pension power of American working families to push corporations to implement better work/family programs. Keywords: corporate governance, sustainable economic development, child well-being, gender, flexible labor markets, family, children, human capital, work/family, pension funds, diversity, institutional shareholders

Viscusi on Tort Reform and Insurance Markets W. Kip Viscusi (Harvard Law School) has posted Tort Reform and Insurance Markets on SSRN. Here is the abstract:
    Proposed tort reforms have focused on punitive damages and noneconomic damages, each of which pose problems for jury decision making. The U.S. Supreme Court decision in State Farm v. Campbell will greatly limit very large punitive damages awards, and will affect smaller punitive awards to a lesser degree. Noneconomic damages caps enacted by state legislatures have greatly enhanced insurance market performance. Insurers operate within the context of a highly imperfect, regulated market in which there is substantial price rigidity induced by regulation. Reform efforts should strive to establish greater predictability and stability in these awards components rather than simply being concerned with imposing specific numerical caps.

Wuerth on Madison's Forgotten War Ingrid B. Wuerth (University of Cincinnati - College of Law) posts The President's Power to Detain 'Enemy Combatants': Modern Lessons From Mr. Madison's Forgotten War (Northwestern University Law Review, Vol. 98, 2004) on SSRN. Here is the abstract:
    This article uses three sets of cases from the War of 1812 to illustrate three problems with how modern courts have approached the detention of "enemy combatants" in the United States. The War of 1812 cases show that modern courts have relied too heavily on deference-based reasoning, and have failed to adequately consider both international law and congressional authorization when upholding the detentions as constitutional. The War of 1812, termed "Mr. Madison's War" by contemporary opponents, was fought largely on our own territory against a powerful foreign enemy, making it an especially rich source for comparison to the modern war on terrorism. It is the only declared war of the new republic that offers founding-era views on military authority under the Constitution. And the cases themselves have not been overruled or rendered obsolete in the intervening years; instead they illustrate the enduring importance of congressional authorization and international law in setting the scope of the President's war powers. Considered as a whole, the War of 1812 cases thus provide strong reasons to reconsider the courts' recent enemy combatant jurisprudence.

Margulies on Judging and Terrorism Peter Margulies (Roger Williams University School of Law) has posted Judging Terror in the 'Zone of Twilight': Exigency, Accountability, and Procedure After September 11 on SSRN. Here is the abstract:
    Efforts by the political branches to deal with the threat of mass violence by transnational networks have created what Justice Jackson in the Steel Seizure case called a "zone of twilight" for courts. Executive assertions of power to fashion exigent procedures for the confinement and adjudication of alleged terrorists have posed a particularly nettlesome dilemma. Courts can either defer to the executive, trusting that the special circumstances of the case will seal off any lasting harm to the principles that guide the rest of the legal system, or can seek refugee in a stalwart absolutism that accepts even catastrophic harm to innocents as the price of democracy. Navigating through the zone of twilight requires a pragmatic focus on the implications of exigent procedures for both public safety and the relationships between the three branches. The history of both habeas corpus and remedies jurisprudence reveals just such a pragmatic turn, which I call institutional equity. While no road map is available, institutional equity offers a framework for analysis of issues such as the detention of alleged "unlawful combatants" that avoids the dangers of both deference and absolutism.

Hay on Stings Bruce L. Hay (Harvard Law School) has posted Sting Operations, Undercover Agents and Entrapment on SSRN. Here is the abstract:
    This paper undertakes an economic analysis of "sting" operations, in which the authorities induce, or tempt, an individual to commit a crime or comparable rule violation. The paper considers the rationales for this law enforcement technique, including its potential advantages over alternative techniques such as ex post apprehension of offenders. Two functions of sting operations are emphasized and analyzed: (1) the informational function of identifying likely offenders; and (2) the behavioral function of deterring offenses. The paper examines the tensions between these functions, and offers a model of desirable sting operation policy.

Sunday, November 23, 2003
Senator Schumer and the Criteria for Judicial Selection
    Anderson on Schumer Over at Opinion Journal, Brian Anderson has an op/ed on Senator Charles Schumer's approach to judicial selection. Here is a taste:
      Schumerism has wrought incalculable damage to our political fabric. For two years, Sen. Schumer has waged a campaign to subvert the criteria by which the Senate ratifies presidential judicial picks. For much of American history, the Senate, in its confirmation of judges, has relied on principles laid down by Alexander Hamilton in The Federalist: integrity, intelligence and temperament, and faithfulness to the rule of law--terms on which President Bush's picks, Justice Brown included, pass with high marks. But instead of Hamiltonian standards, Mr. Schumer insists that senators must make a judge's "ideology" their principal concern. By this he means the judge's private political opinions, as well as the political results his decisions have led to in past cases and could lead to in the future. Judges whose views on affirmative action and abortion are outside the "mainstream" should be disqualified from sitting on the federal bench, regardless of competence. As for the definition of "mainstream," Schumerism simply holds that conservatives are ipso facto "extremist."
    And a bit more:
      For decades, liberals have happily watched an activist judiciary twist the Constitution to make it produce "progressive" policy outcomes--from affirmative action to partial-birth abortion--that the left never could have won from voters. Liberals have defended the judiciary's expansive policymaking by saying that it simply grew out of a "living Constitution"--a document whose principles, interpreted by wise judges (i.e., those with a "progressive" world view), could adapt to the needs of every era. Conservatives have lamented this trend toward legislating from the bench; they want the courts restored to some semblance of what the Framers intended courts to be--neutral referees, applying the law not creating it. The conservative jurisprudence of "originalism," favored by Bush judicial appointees, directs judges to stick to the Constitution as the Framers understood it, and to read statutes to mean what they say. Originalists believe that legal texts have a limited range of meaning, which can be rightly or wrongly glossed. The prospect of an originalist bench depoliticizing the law gives the left nightmares, since it could sweep away some court-mandated liberal policy gains as unconstitutional. So Schumerists have trained their fire on originalism. They argue that all approaches to law are at bottom a matter of power politics. The originalists may claim to be faithful to legal texts, but that's a delusion: Judicial interpretation is unavoidably "ideological." What the Bush judges, like all judges, are really up to, Schumerism avers, is construing the law so that it produces their favored policies. And since what's at stake is momentous--abortion, affirmative action, vouchers--and since judging is just a form of politics, Schumerism licenses the use of any means necessary to retain a liberal judiciary. This includes calling Bush nominees "extremist right-wing ideologues" out to "attack working families," denouncing originalists as "right-wing judicial activists," smearing nominees as closet bigots, trying to create by filibuster a new supermajority requirement for judicial confirmations, and proposing, as Sen. Schumer has done, to take away the president's constitutional power to select judges and turn it over to state committees, equally divided between Democrats and Republicans, making impossible the appointment of a judge unacceptable to Democrats.
    Anderson's Analysis Raises an Important Question On the one hand, Anderson's op/ed oversimplifies a complex story. During the Clinton Administration, Republicans clearly employed ideological criteria when opposing some nominees; moreoever, the Republicans employed a variety of obstructionist tactics--although when they were in the majority they did not need to employ the filibuster. On the other hand, Anderson's piece raises an important question--just what is the basis for Democratic opposition to Janice Brown and the rest of the filibustered nominees. Consider five possibilities:
      1. Democratic use of the filibuster is based on the nominee's lack of fidelity to law. That is, the Democrats oppose Brown, et al, because they rely on their own political preferences when rendering judicial decisions that cannot be supported on legal grounds.
      2. Democratic filibusters are based on the nominee's political ideology per se, even if the nominee's actual judicial decisions are in fact based entirely on the formal legal considerations.
      3. Democratic filibusters are based on the nominee's political ideology, because in cases in which the law underdetermines the results, Democrats believe that political ideology will fill the gap and determine the outcome of the case.
      4. Democratic filibusters are based on the nominee's judicial philosophy. Democrats oppose any candidate who favors originalism or plain meaning as an approach to constitutional interpretation, because these approaches are inconsistent with important decisions of the Warren/Burger Courts (e.g. Roe v. Wade).
      5. Democratic filibusters are not really based on the nominee's likely performance on the Court of Appeals, but are instead tactical moves, designed to thwart possible nominations to the United States Supreme Court and thereby to hold open Supreme Court vacancies for the next Democratic President.
    In all likelihood, many democratic Senators haven't clearly distinguished between these five rationales and the actual motivations for the caucus are likely to vary from Senator to Senator.
    A Simple Model of Judicial Selection And, in fact, there are even more complicated possibilities, because it is possible that Democrats are considering both political ideology and judicial philosophy in deciding which candidates should be subject to a filibuster veto. It's worthwhile thinking a bit more abstractly about this. So let's consider a very simply model where judges are rated by judicial selectors (Presidents and Senators) on two dimensions. Here they are:
      --Political Ideology. Let's assume that selectors rate candidates on the basis of their political ideology on a contiunous real line that runs from left to right. Let us assume that a perfectly left canidate scores zero and a perfectly right candidate scores one, with a middle-of-the road candidate scoring 0.5.
      --Judicial Philosophy. Let's assume that selectors rate candidates on the basis of their judicial philsophy on a continuous real line that runs from formalist to realist. Let us assume that a perfectly formalist candidates would decide cases entirely on the basis of the legal materials, the text, structure, history, and precedent, without any conscious reliance on poltical ideology. Give such a candidate a score of zero. Let us assume that a perfectly realist candidate would decide cases enitrely on the basis of political ideology, giving no weight to legal materials at all. Give such a candidate a score of one.
    We now can represent each judicial candidate as a point in the resulting two dimensional space. _____________________Two Dimensions of Judging __________Realist__| ___________________| ___________________| ___________________| ___________________| ___________________| ___________________| ___________________| ___________________| ________Formalist__|__________________________ ___________________Left___________________Right
    So each judicial candidate will have a position in this two dimensional space. In the upper left, will be left-realist judges, who decide cases almost solely on the basis of their left ideology. In the upper right are the right-realist judges, who override the law and decide based on right-wing ideology. At the bottom of the chart are the formalist judges, who decide on the basis of texts, structure, history, and precedent. Let us assume that even a judge who is perfectly formalist in intention will be unable to fully compensate for unconcious biases introduced by ideology. Thus, although right formalists and left formalists may agree most of the time, there will be some issues on which they will decide differently because they are unable to completely compensate for their ideological biases, preconceptions, and assumptions.
    How Would Selectors Rate Candidates? Given our simple two dimensional model, how would judicial selectors (Presidents and Senators) rate candidates? This is a complex question, because selectors themselves may vary in both political ideology and judicial philosophy. For the purposes of model building, let's assume a simplified picture. Let's assume that to make an appointment, you need to get the agreement of two players: a right-wing President and a unitary left-wing Senate. (This obviously oversimplifies, because in current circumstances the Senate has a right-wing majority and a left-wing minority with veto power--unless the filibuster rule is changed.) How would they evaluate candidates? Consider each in turn:
      --The President. Let's assume that if you are the right-wing President, you will only be willing to accept realist judges if they are on the extreme right of the political ideology line. As judges become more formalist, you become less concerned with their ideology. That is, the line that defines the set of candidates that are acceptable to the President slopes downward and to the left.
      --The Senate. Now assume you are the Senate (or to be more realistic, the Senate minority with a filibuster-enabled veto). You will be willing to accept realist judges only if they are on the extreme left of the ideology line. As judges become more formalist, you are willing to accept progressively less left-wing ideologies. That is, the line the defines the set of candidates that are acceptable to the Senate slopes downward and to right.
    We can represent these two acceptability curves as follows:
      * = acceptability curve for left judicial selector. # = acceptability curve for right judicial selector
      ___________________Acceptability Frontiers for President & Senate
      __Realist1| ________13|_____*______________________________________________________________________# ________14| ________15| ________16|_______*__________________________________________________________________# ________17| ________18| ________19|__________*____________________________________________________________# ________20| ________21| ________22|_____________*______________________________________________________# ________23| ________24| ________25|_________________*______________________________________________# ________26| ________27| ________28|_____________________*______________________________________# ________29| ________30| ________31|__________________________*______________________________# ________32| ________33| ________34|_______________________________*____________________# ________35| ________36| ________37|_______________________________________*____# ________38| ________39| ________40|__________________________________#____________* ________41| ________42| ________43|_______________________#_________________________________* Formalist_________________________________________________________________________________ __________Left_______________________________________________________________________Right __________12345678901234567890123456789012345678901234567890123456789012345678901234567890.
    Imagine a red line connecting the red * and a blue line connecting the blue #. The area beneath the red line represents the candidates who are acceptable to the Senate (or the Senate Minority with a filibuster veto over nominations). The area beneath blue line represents the candidates who are acceptable to the President. These two areas intersect in an area resembling a pyramid in the lower-middle region. These canidates are acceptable to both parties and we would expect their confirmation. Call this region the confirmation zone. Thus, the simple mode yields two conclusions (predictions if you like), which we can state as follows:
      --Conclusion One: Ceteris paribus, canidates inside the confirmation zone who are nominated by the President will be confirmed by the Senate.
      --Conclusion Two: Ceteris paribus, canidates outside the confirmation zone who are nominated by the President will notbe confirmed by the Senate.
    Of course, these are only ceteris paribus conclusions. All else may not be equal. The Senate might confirm nominees outside the confirmation zone in exchange for some other political favor; the President might nominate from the area to the left of the red Presidential acceptability line for similar reasons. Likewise, the Senate might reject a nominee inside the confirmation zone as a strategic ploy or as retaliation for some other political action.
    Who Will Be Selected From Within the Confirmation Zone? Given our model, we would expect the President to nominate from inside the confirmation zone. Let me translate. Given our model, we would expect a right wing President to nominate candidates whose political ideology is relatively moderate and who are relatively formalist. Of course, there is a possibility that the Senate (or Senate minority with a filibuster veto) would reject candidates inside the confirmation zone. Why, because both the President and Senate will preferences inside the zone. To simplify, let's assume that on any given horizontal line (i.e. for any given level of formalism), the President prefers those to the right and the Senate prefers those to the left. Consider the following example. We have two candidates C1 and C2, who are identical with respect to their judicial philosophy score, but different with respect to their political ideology score--C1 is to the left of C2. This situation can be represented in the following diagram, which cuts off the acceptability curves above the confirmation zone:
________37|_______________________________________*____# ________38| ________39| ________40|__________________________________#____________* ________41| ________42|________________________________C1_______________C2 ________43|_______________________#_________________________________* Formalist_________________________________________________________________________________ __________Left_______________________________________________________________________Right __________12345678901234567890123456789012345678901234567890123456789012345678901234567890.
    The President prefers C2 to C1, whereas the Senate (or Senate minority) has the inverse preference structure. This looks like a possible prisoner's dilemma. If it were a one shot game, the President might nominate C2, but the Senate (or Senate minority) might refuse to confirm. In the real world, the judicial confirmation process is more like an iterative game where the parties take turns assuming the various roles (President, Senate Majority, Senate Minority). Moreover, the confirmation game interacts with other political events. Given this iterative and interactive structure, there might be any number of stable medium-to-long term equilibria in the confirmation game. One possibility is that as the first mover, the President would have the advantage and the Senate would confirm candidates so long as the President nominates from within the confirmation zone. Another possibility is that the mean ideology score of confirmed judges would equal some value, with candidates from the left of the zone being traded off for candidates from the right of the zone. There are many other possible equilibria--but the two I have identified can serve as illustrative examples.
    Back to the Real World So how does all this relate to Brian Anderson's comments about Senator Schumer? Anderson's suggestion is that there is an asymmetry between the way Republicans and Democrats view judicial philosphy. Essentially, Anderson suggests that Democrats want left-realist judges and Republicans want right-formalist judges. But this is a partisan reading of recent events. Although Republicans favor formalism on some issues, e.g. the unenumerate liberty or privacy rights that undergird Roe v. Wade and Lawrence v. Texas, Republicans may prefer less formalist approaches to other issues, e.g. the constitutional sovereign immunity jurisprudence that seems to go far beyond the text of the 11th Amendment. Nonetheless, there is something to Anderson's point, reflected in the fact that in the legal academy and on the bench, originalists have tended to be conservative and nonoriginalists liberal.
    As frequent readers of this blog know, I have been arguing for some time that the best way out of the current downward spiral of politicization that affects both the bench and the judicial selection process is for both sides to take a long-run view of the benefits of the rule of law and the costs of politicization. But Anderson's characterization of the problem is correct, then that solution is unavailable. Why? Because Anderson's argument seems to be that restoration of the rule of law is not in the interests of the left. I disagree, in part because I believe that a doctrine strong stare decisis is part of the best formalist theory of judging, but this post has already gone on too long, and that is a topic for another day.
    And for more on Anderson, check out this post by Brett Marston.
    Update: And this post from C.E. Petit on Scrivener's Error.

Legal Theory Lexicon: Second Best
    Introduction The post provides a very basic introduction to the idea of "second best" for law students (especially first-year law students) with an interest in legal theory. The term "second best" originated in a famous 1956 article by Lipsey and Lancaster (see bibliography), and it was originally used as a technical economic concept. Despite its technical origins, the idea behind the second best is very general: sometimes the ideal solution to a problem (or optimal policy) is infeasible. The best should not be the enemy of the good; so, when the first-best policy option is unavailable, then legal theorists should consider second-best solutions. In this post, we will take a hard look at the idea of the second best, beginning with a statement of the intuitive idea and then looking at the more formal idea of the second best in its original economic context.
    The Intuitive Idea The intuition behind the idea of the second best is simple. We would like to have the best possible legal system. But sometimes the best legal policies are not in the cards; that is, the best policy may be impractical. Why? In legal theory, one common reason that we cannot adopt the best policy is politics. Given the political forces that operate, the best campaign finance system may be pie in the sky. So we ask the question, of those systems that might be politically feasible, which is the "second best"? Although I've introduced the intuitive idea by talking about "political feasibility," the idea of the second best is more general than that. First-best solutions may be unavailable because of a variety of constraints, of which politics is only one. The intuitive idea of the second best is a bit broader and less technical than the way economists define "second best," so let's turn to that now.
    The Second Best in Economics Let's move from the intuitive idea of the second best to the origins of that idea in economic theory. The very general idea of the economic theory of the second best can be expressed as follows:
      Assume a system with multiple variables. Take the most desirable state the whole system could assume and the associated values that all of the variables must assume to produce this state: call this condition, the first-best state of the system and call the associated values of the variables, the first-best values. Now assume that one variable will not (or cannot) assume the value necessary for the first-best state of the whole system: call this the constrained variable. Holding the constrained variable constant, consider the most desirable state the whole system could then assume and the associated values that all the nonconstrained variables must assume to produce this state: call this the second-best state of the system. There are systems in which achieving the second-best state will require that at least one variable other than the constrained variable must assume a value other than the first-best value: call these value(s) the second-best value(s).
    And here is the way that Lipsey and Lancaster formulated the idea:
      [I]f there is introduced into a general equilibrium system a constraint which prevents the attainment of one of the Paretian conditions, the other Paretian conditions, though still attainable, are in general, not desirable.
    (If "Paretian" is unfamiliar to you, either ignore that term or click here.) Lipsey and Lancaster are making a normative argument. They assert that if one variable is constrained and cannot assume its first-best value, then "in general" other variables should not assume their first-best values. The "in general" qualification is important. Lipsey and Steiner didn't and couldn't show that it is always (or necessarily) the case that constraint of one variable affects the most desirable value for other variables. Rather, their proof shows that this is possible. In the real world, whether nonconstrained variable should depart from their first-best variables depends entirely on the facts. In fact, if a policymaker lacks certain information about the second-best variables, it may turn out that the real world policy that will produce the best result is to try to move the constrained variable as close as possible to its optimal state, leaving the second-best variables in their first-best states. The possibility was called the "third best" by Ng (see bibliography below).
    One or two additional points are necessary to complete the technical story. First, the definition that I just gave assumes that only one variable is constrained. But there is no reason to limit the theory of the second best in this way, more than one variable may be constrained. In fact, in theory every variable could be constrained: in this limiting case, the second-best state would be the only possible state of the system. Second, the second best is usually understood as relative to a constrained variable. We could use the phrase "second best" to refer to the second-best state the system could assume if all the variables were unconstrained, but this is not the way that Lipsey and Lancaster used that phrase.
    Finally, there is an important difference between the way economists understand "second best" and the way the same phrase is understood by noneconomists. What was interesting and powerful about Lipsey and Lancaster's proof is that it produced the counterintuitive result that sometimes when one variable is constrained, the best policy choice will involve moving other variables away from their first-best values. Although technically, the definition of second best need not be limited to that special situation, that is the interesting result, and the use of the theory of the second best in economics may be limited to the special case. Outside of economics, however, the phrase "second best" tends to be used in a much looser sense. The important thing is not the terminology, but the ideas. To be clear, however, it is useful to explain what you mean by second best!
    The Second Best and Nonideal Theory The idea of the second best that is used by economists is analogous to a distinction made famous by the political philosopher, John Rawls. Rawls distinguished between two ways of approaching political philosophy, ideal and nonideal theory. In ideal theory, we assume compliance with the normative requirements of our theory. Rawls used the phrase "well-ordered society" to refer to the situation that obtains in ideal theory. In a society that is well ordered by Rawls's principles of justice, citizens actually would be guaranteed a fully adequate scheme of basic liberties and the basic structure would actually work to the advantage of the least well off group in society. In nonideal theory, we relax the assumption that the society is well ordered by the principles of justice. Can you make that very abstract description more concrete? Yes, here is a really good example. In a society that is well-ordered by Rawls's principles of justice, we might assume that if there are local governmental units, they will comply with the restraints imposed by the freedom of speech. But in the real world, local governments might be more susceptible to political pressure to suppress unpopular speech than would be the central government (i.e. the national government in Washington, D.C., in the case of the United States). So, in the real world of nonideal theory, we might be very considered with constraining the jurisdiction and powers of local governments; whereas, this issue may not even arise in the case of ideal theory.
    Pinpointing the Constrained Variable The notion of the second best and the related idea of nonideal theory get tossed around quite a lot in legal theory, but sometimes these terms are used carelessly or without precision. Whenever you hear or read the term "second best," ask yourself the question, "Which variable is constrained, and why is it constrained?" Because the "second best" is second best relative to a constrained variable, use of the concept of the second best doesn't mean anything unless and until the constrained variable is specified. Moreover, it is sometimes very important to know why the constrained variable is constrained. This is because it is easy to construct an argument for a second-best policy option that uses a double standard with respect to whether variables should be considered to be constrained. Here is a simple example:
      Suppose our problem is racial justice with respect to the distribution of income and resources. Someone might make the case for reparations (a one time payment of a compensatory amount to descendents of the former slaves) on the ground that reparations are the second-best solution. The first-best solution would be a just economic order in which market mechanisms operate in a nondiscriminatory fashion to allocate income and wealth according to just criteria. (For this purpose, we don't need to specify what the just criteria are.) But the first-best solution is unavailable, because a just economic order is politically infeasible. Therefore, we ought to support reparations, which is the second-best policy.
    So far, so good. But notice that there is a hidden assumption in this argument. The argument assumes that reparations are politically feasible. If this assumption is incorrect (which it may well be as an empirical matter), then it follows that the argument for reparations as the preferred second-best solution is fallacious. Of course, one can deploy double standards with respect to which variables are constrained (or which options are infeasible) so long as the double standard is made clear. But when the double standard is concealed and the argument is made in the context of policy evaluation, then we have either an innocent mistake or an attempt at manipulation.
    The Feasible Choice Set Another way of approaching the general problem revealed by the theory of the second best is via the notion of the feasible choice set. Take all of the possible legal policy options with respect to a particular legal problem. Then lay out a set of well-defined criteria for feasibility. Apply the criteria to the set, sorting the options into the feasible choice set and the infeasible choice set. Practical policy discussion will usually be limited to the options within the feasible choice set, but legal theory is not limited to the practical. Frequently we can learn something important by considering options that are outside the feasible choice set. For example, a rule of strict liability might turn out to be the optimal rule of tort law. It could also turn out that strict liability regimes are politically infeasible--perhaps because the fault-based social norms are very strongly held. But that fact should not preclude legal theorists from examining the merits of strict liability regimes. Not only may such an examination be of intrinsic interest, but the insights gleaned from such an examination may well assist in the evaluation of the options that are within the feasible choice set.
    The Bottom Line The notion of the second best, the distinction between ideal and nonideal theory, and the idea of the feasible choice set, are all essential tools for a legal theorist. As a first year student, you are likely to encounter these ideas in classroom discussion or in law review articles assigned as ancillary reading. The trick to mastering these concepts and using them effectively is to identify the constrained variable (or the nonideal conditions). Once you've done that, you can move to the next step, which is the question, "What criteria are used to identify the constrained variables?" And if you can answer that question, you are now in a position to respond in an intelligent and sophisticated way to applications of the theory of the second best!
    Bibliography & Links And for a complete collection of all the Legal Theory Lexicon posts, click here.

Legal Theory Calendar
    Monday, November 24 Tuesday, November 25
      At George Mason's Philosophy, Politics, and Economics series, Paul Gregory (Economics, University of Houston) presents The Political Economy of Stalinism.
      At Oxford's Jurisprudence Discussion Group, Melanie Williams, presents Then and Now: The Natural/Positivist Nexus at War - Auden’s “September 1, 1939”
      At Oxford's IP Seminar, Graham Dutfield presents Harmonising Patent Law? A Lesson from the 19th Century Dyestuff Industry.
      At Oxford's Ockham Society, Rory Madden (Oxford) presents Agent Identity and the Structure of Intention.
    Wednesday, November 26
      At University College, London, Brian Barry (Columbia) presents Utilitarianism and Human Rights?
    Thursday, November 27 Friday, November 28
      At the Cambridge Forum for Legal & Political Philosophy, G.A. Cohen (All Souls College, Oxford) presents Casting the First Stone: Who Can and Who Can't Blame the Terrorists.
      At Oxford's Human Rights Discussion Group, Ben Saul presents Torturing Terrorists after September 11: Dershowitz` Torture Warrant
      At Oxford's Institute of European and Comparative Law Seminar Series, Ulf Bernitz presents Convergence of European and National Competition Law: How Far Will it Go?.
      At the University of Bristol, David Papineau (King's College, London) presents Genes and Culture.

Saturday, November 22, 2003
Will certiorari be granted in Silveira v. Lockyer? Read this report on Here is a taste:
    [S]ome advocates of gun rights are hoping the Supreme Court will finally bite the bullet and grant review in Silveira v. Lockyer, No. 03-51, a challenge to California's strict 1999 assault weapon ban. The case is one of dozens the justices are set to discuss at their private conference Wednesday. A decision by the Court whether to grant review could be announced as soon as Dec. 1. The Court also meets in conference Dec. 5. The Silveira case, brought by a group of "California gentlemen," according to their brief, asks the Court to reverse a December 2002 ruling by the 9th U.S. Circuit Court of Appeals that upheld the state law, first enacted in 1989 and broadened in 1999. In an extensive section of the ruling on the Second Amendment, Judge Stephen Reinhardt found the amendment "does not establish an individual right to own or possess firearms for personal or other use." Reinhardt's liberal rulings are often scrutinized and reversed by the Court. When the 9th Circuit was asked to review the ruling en banc, the majority said no -- and four judges wrote dissents to that decision

And speaking of Bashman . . . . . . here is his choice for funniest law student blog.

Three Million for Howard Bashman Congratulations to Howard Bashman on three million hits on How Appealing--one of my favorite blogs and a valuable and much used resource. Thank you Howard!

Froomkin on the End of the Semester Law students and teachers will want to read Michael Froomkin's musings on semester's end.

Download of the Week This week, I am especially enthusiastic in my recommendation of the Download of the Week. That's because this week's recommendation is something truly special--a magnificent two part article by Gerald J. Postema (University of North Carolina - Philosophy and Law): Classical Common Law Jurisprudence (Part 1) & Classical Common Law Jurisprudence (Part 2) on SSRN. Both parts are forthcoming in the Oxford University Commonwealth Law Journal, Vol. 2, No. 2, pp. 155-180, Spring 2003 & Vol. 3, No. 1, pp. 1-28, Summer 2003. Here are the abstracts:
    The classical conception of law, articulated by seventeenth century common law jurists like Sir Edward Coke and Sir Matthew Hale, drew inspiration from earlier natural law sources, but also reflected dominant features of native common law practice and the special political pressures to which it was subjected in that turbulent period of English history. Common law jurisprudence, even in its heyday, had not matured into a full-fledged philosophical theory of law, but a number of important notions to which common law jurist gave complex and conflicting expression influenced orthodox understanding of English (and later American) legal practice for centuries thereafter. This essay offers a partial philosophical reconstruction of the classical common law conception. It is meant not as a contribution to legal history, but rather as a systematic articulation of the conception worthy of careful attention of latter-day legal theorists. The essay is in two parts. Part I opens with a sketch of the historical roots of the common law, and then isolates in broad strokes the main themes or issues debated by common law. Common law jurists agreed that law was to be understood as "reasonable usage." For many common lawyers this involved both common custom and common reason, but these notions were as contested as they were central to the common law mind. They were also thought to be interdependent: custom was always subject to the test of reason, but reason was embodied in the common practices of law. The relations and conflicts between these two notions are explored as well as the connection between the common law notion of common "artificial" reason or and traditional notions of natural law and natural reason.
and Part II:
    This, the second Part of a two-part essay, offers a partial philosophical reconstruction of the seventeenth century common law conception of law. Part I identified two notions on which the conception was based: common custom and common reason. The interdependence of these two notions is most evident in the pivotal idea of the "artificial reason" of the trained common lawyer. Part II of this essay undertakes to articulate and explore the seventeenth century understanding of the nature of "artificial reason." It is argued that it had less to do with the expertise of an elite than with a view of a special discipline of practical reasoning in which the public, discoursive, and forensic context of its exercise is essential for its claim to authority. It is argued that the reason of the common law was "artificial" not in the sense of being professional or elite, but in the sense of being experienced and social. "Artificial Reason" was the product of reflective, public-spirited practical experience, as opposed to untutored individual intuition or a natural capacity for deductive reasoning exercised in abstraction from the concrete details of ordinary life. Against the background of this understanding of the reason of the common law, the notion of binding precedent and its relationship to Parliamentary legislation is discussed. The essay closes with a consideration of the normative foundations of common law and speculates on how natural law views about God as the source of law's authority was reconciled with a basically non-voluntarist concept of law. The essay maintains that, despite its many variations, the constant theme in classical common law jurisprudence is the idea of law rooted in a disciplined practice of public practical reasoning, maintaining a substantial congruence (but not identity) with the thick texture of the ordinary life and affairs of people in the political community.
Postema has done more than anyone I know to provide a rich account of the internal perspective of common law judges about their enterprise. Download it while its hot!

Legal Theory Bookworm This week, the Legal Theory Bookworm recommends Robert Alexy's The Argument from Injustice: A Reply to Legal Positivism (another link to the Oxford University Press page is here). Alexy is one of the most interesting and important legal theorists working today, and is perhaps the best-kinown representative of the an approach to jurisprudence that draws on the work of the German philosopher and social theorist, Jurge Habermas. If you want to get a lively sense of state-of-the-art continental legal philosophy, Alexy's most recent book, which addresses the "What is law?" question is a very good place to start. Here is the publisher's abstract:
    At the heart of this book is the age-old question of how law and morality are related. The legal positivist, insisting on the separation of the two, explicates the concept of law independently of morality. The author challenges this view, arguing that there are, first, conceptually necessary connections between law and morality and, second, normative reasons for including moral elements in the concept of law. While the conceptual argument alone is too limited to establish a sufficiently strong connection between law and morality, and the normative argument alone fails to address the nature of law, the two arguments together support a nonpositivistic concept of law, toppling legal positivism qua comprehensive theory of law.
And here is a short excerpt (which I inputted by hand & therefore may contain a typo or two):
    The question is this: which concept of law is correct or adequate? An answer to the question turns on the relation of three elements to one another--authoritative issuance, social efficacy, and correctness of content. Altogether different concepts of law emerge according to how the relative significance of these elements is assessed. Attaching no significance whatsoever to authoritative issuance and social efficacy, focusing exclusively on correctness of content, one arrives at a concept of law purely reflective of natural law or the law of reason. One arrives at a purely positivistic concept of law by ruling out correctness of content altogether and staking everything on authoritative issuance and/or social efficacy. Between these extremes, many intermediate forms are possible.
    The tripartite division indicates that positivism has two defining elements. A positivism must exclude the elment of correctness of content, but then can define in many different ways the relation between the elements of authoritative issuance and social efficacy, giving rise to numerous variations of legal postivism.
Alexy rejects a basic assumption that is shared by many legal theorists who work in the tradition of Anglo-American analytic jurisprudence: Alexy assumes that the criteria for the best conception of law are not exclusively conceptual--that is, Alexy believes that both normative and empirical considerations bear on the debate between natural law and legal positivism and on the debates within positivism and natural law as to which particular theories within these broad families is best. Although Alexy's prose (even in this excellent translation) may be unfamiliar in style to many Anglophone readers, his arguments are both clear and well-organized. Highly recommended!

Cybersecurity, Research and Disclosure at Stanford
    The Cybersecurity, Research and Disclosure Conference is a day-long, highly interactive exploration of the relationship between computer security, privacy, and disclosure of information about security vulnerabilities. Experts from government, industry and academia will gather to debate the ways in which vendors, customers, government, researchers and consumers can better promote vulnerability research, computer security and consumer privacy. Confirmed speakers include:
      Matt Blaze, AT&T Mary Ann Davidson, Oracle David L. Dill, Professor of Computer Science, Stanford University James Duncan, Cisco Gerhard Eschelbeck, Qualys Stephanie Fohn, Consultant Tiina Havana, Oulu University Secure Programming Group (OUSPG), Finland Shawn Hernan, CERT Steven B. Lipner, Microsoft David Litchfield, NGSSoftware Simple Nomad, NMRC, Bindview Len Sassaman, Anonymizer Bruce Schneier, Counterpane Peter P. Swire, Professor of Law at Ohio State University Hal Varian, Professor, University of California, Berkeley Vincent Weafer, Symantec Stephen Wu, InfoSec Law Group Chris Wysopal, @stake
    Conference website:

Friday, November 21, 2003
Northup on Lessig Peter Northup reports on Larry Lessig's talk yesterday at NYU. Thank you! And Larry Lessig adds his thanks for the blogging here!

Applbaum on Legitimacy at Kadish At Berkeley's marvelous Kadish series, Arthur Applbaum (Professor of Ethics and Public Policy, Kennedy School of Government, Harvard University) presents Legitimacy in a Bastard Kingdom. I blogged an earlier version of this paper that Applbaum delivered at Yale in the Spring. Marvelous paper!

Rorty on "Guess What?" at North Carolina At the University of North Carolina, Philosophy series, Richard Rorty presents Putnam, Pragmatism, and Parmenides.

Philosophy for Food Seriously, for three pounds, you can see A C Grayling speak on Enlightenment and Counter-Enlightenment, Then and Now, at Conway Hall, Red Lion Square, London.

Papineau on Cultural Evolution at RIP David Papineau presents Cultural and Biological Evolution at the Royal Institute of Philosophy in London.

Duster on the Miner's Canary at Texas At the University of Texas, Troy Duster (NYU), David Chambers (Michigan) and Eric Tang (CAAAV) present The Miner's Canary.

Mutual on Leviathan at Buffalo At SUNY Buffalo, Makau Mutua (UB) presents Taming Leviathan.

IP & the Life Sciences at ANU At the Australian National University, a conference entitled Intellectual Property & the Life Sciences: Agriculture, Health & Trade happens today.

Conference Today at Brooklyn: 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

Bryant on the 13th Amendment Christopher Bryant (University of Cincinnati - College of Law) posts Stopping Time: The Pro-Slavery and "Irrevocable" Thirteenth Amendment (Harvard Journal of Law & Public Policy, Vol. 26, No. 2, p. 501, Spring 2003) on SSRN. Here is the absttract:
    In the post-secession winter of 1861, both Houses of Congress approved a proposed thirteenth amendment to the U.S. Constitution. Three northern States even ratified the proposal before the Civil War intervened. That version of the thirteenth amendment, introduced in the House by Representative Thomas Corwin of Ohio, purported to prohibit any future amendment granting Congress power to interfere with slavery in the States. The Congressional Globe volumes for the winter 1861 legislative session include rich debates about whether the amending power could be used to limit future exercise of that same authority. Those forgotten debates offer significant insights for modern controversies about the exclusivity of, and limitations on, the extraordinary power granted in Article V of the U.S. Constitution. Recent years have witnessed an outpouring of academic writing on the amending power. Salient examples of this scholarship are the works of Yale Law School Professors Bruce Ackerman and Akhil Amar, who have raised distinct challenges to the claim that Article V constitutes the sole legitimate means for constitutional revision. Their imaginative and controversial work has in turn prompted vigorous debate among constitutional scholars, political scientists, and historians about the role Article V can and should play in our constitutional order. As voluminous as the recent Article V scholarship has been, at least one fundamental question has gone virtually unnoticed: what, if anything, prevents or limits the use of Article V to make procedural or substantive changes to the amending power itself? This question, which presents problems of the greatest theoretical difficulty, was posed starkly by Mr. Corwin's 1861 proposal. This article uses that Civil War-era proposal as a lens through which to study the tension between the claim that Article V articulates the exclusive procedure by which the Constitution may be amended and our nation's historical commitment to the ideal that the people are sovereign. Revisiting the long-forgotten Corwin Amendment illuminates current debates about the legal and political theory by which the U.S. Constitution can set forth the sole means for its revision. By understanding why the Corwin Amendment would have failed in its stated purpose (because a subsequent Article V amendment would have been sufficient to repeal it and grant Congress power over slavery), we discover certain fundamental constitutional principles. Those principles, important in their own right, also raise novel questions concerning the contemporary claims of Professors Ackerman and Amar that Article V cannot be the exclusive procedure for legitimate constitutional change.

Tsai on Cognitive Constitutionalism Robert L. Tsai (University of Oregon - School of Law) has posted Cognitive Constitutionalism: Speech and Strife (Law & Contemporary Problems, Vol. 67, 2004) on SSRN. Here is the abstract:
    The essay strives for a better understanding of the myths, symbols, categories of power, and images deployed by the Supreme Court to signal how we ought to think about its authority. Taking examples from free speech jurisprudence, the essay proceeds in three steps. First, I argue that the First Amendment constitutes a deep source of cultural authority for the Court. As a result, linguistic and doctrinal innovation in the free speech area have been at least as bold and imaginative as that in areas like the Commerce Clause. Second, in turning to cognitive theory, I distinguish between formal legal argumentation and informal deployment of images, metaphors, scripts and frames of understanding. Third, I examine the frame of institutional conflict, an especially powerful rhetorical strategy that appears not only in federalism cases, but also in speech cases. Finally, I examine the psychological dimension of this language device, the underlying script that is played out when the frame is invoked in our minds, and the relationship between the metaphor of conflict and enduring cognitive ideals.

Feibelman on Sovereign Immunity and Bankruptcy Adam Feibelman (University of Cincinnati - College of Law) presents Federal Bankruptcy Law and State Sovereign Immunity (Texas Law Review, Vol. 81, No. 6, May 2003) on SSRN. Here is the abstract:
    Under current legal doctrine, states have successfully asserted sovereign immunity from a variety of important bankruptcy provisions. Numerous commentators have argued that states undermine fundamental objectives of bankruptcy law by asserting immunity from bankruptcy actions. This article argues that, for the most part, sovereign immunity is consistent with basic bankruptcy policies. Bankruptcy law already reflects the fact that governmental units are not like private creditors by granting governmental units various priorities and regulatory exceptions. Because current bankruptcy law generally enforces non-bankruptcy property rights and entitlements, states can also largely determine their own priorities and privileges in bankruptcy by defining their entitlements under state law. Finally, to the extent that bankruptcy law should advance redistributive policies or protect non-ownership interests, it should defer to governmental entities, which are uniquely positioned to redistribute wealth and to protect the public good. It is true that state governments may undermine the goals of bankruptcy law if they impose unnecessary administrative costs on debtors' estates or if they refuse to follow important procedural bankruptcy rules. However, state governments will suffer political and/or economic costs of engaging in such behavior. Congress, in contrast, does not suffer the full cost of exposing state governmental units to bankruptcy actions. If states can assert or waive immunity from bankruptcy actions, they should strike a better balance between bankruptcy law and states' regulatory responsibilities than the current balance of these interests under the Bankruptcy Code.

Hamdani on Gatekeeper Liability Assaf Hamdani (Harvard Law School) has posted Gatekeeper Liability (Southern California Law Review, Vol. 77, 2004) on SSRN. Here is the abstract:
    The recent crisis in the wake of the Enron debacle has demonstrated the importance of enlisting gatekeepers - such as accountants, underwriters, and lawyers - to prevent corporate fraud. But while a consensus may exist over the basic need to expand liability to gatekeepers, little is known about the appropriate scope of such liability. Going beyond the capital market context, this Article develops a framework to determine the scope of gatekeeper liability for client misconduct. Specifically, the Article analyzes the fundamental tradeoff between the potentially adverse impact of gatekeeper liability on relevant markets and the incentives such liability provides for gatekeepers to foil wrongdoing. Expanding the scope of their liability will make gatekeepers increase the price of their services to reflect their liability exposure. Although initially appealing as a means to screen out wrongdoers, this price increase may turn out to have adverse consequences when clients vary with respect to their wrongful intentions: Rather than screen out wrongdoers, gatekeeper liability may drive out only law-abiding clients. Enhanced liability, however, will also induce gatekeepers to monitor clients and prevent them from committing misconduct. The Article explores the policy implications of this analysis for determining which third parties should face gatekeeper liability, identifying the adequate scope of gatekeeper liability, and recognizing the shortcomings of gatekeeper liability as an instrument of social policy. The Article concludes by putting forward a tentative outline of the proper regime of gatekeeper liability for securities fraud.

Leiter & the Curmudgeonly One on Legal Realism Brian Leiter responds to a post by the Curmudgeon Clerk that includes the following argument: "The interaction between a judge's ideology and these preexisting legal doctrines is doubtless complex; however, if it is true that the former sometimes overbears the latter, it is equally true that the latter often constrains the former." Leiter replies:
    This misconceives the relationship, however, between doctrine and political ideology, at least as it figures in the legal realist thesis. For any plausible realist thesis about the indeterminacy of legal reasoning is the thesis that legal reasons underdetermine the legal decision in many appellate cases, i.e., the legal reasons circumscribe the range of legally defensible outcomes, but without requiring any one of them over all the others. Which is to say, in the Clerk's terms, that the doctrine, according to realism, always "constrains" the decision.
Leiter has the underdeterminacy point exactly right. (For lot's more on the distinction between indeterminacy and underdeterminacy of law, you might take a look at this.) Leiter goes on to elaborate:
    But constraint is not enough. The structure of the realist argument is that we face an explanatory gap in looking at a court's decision when,
      (a) the legal reasons underdetermine the decision, but
      (b) the court reaches (necessarily) one and only one decision from among those that the legal reasons would support.
    The gap is filled by appeal to (complications aside) "political ideology."
Well, the gap is filled by something, but it is not necessarily the case that what fills the gap is "political ideology." Leiter, of course, would be the first to admit that the gap may be filled by norms would be more fairly characterized as moral or institutional than as "political." But the question raised by Leiter's argument is deeper and more interesting than that. One aspect of this question concerns the extent to which the law itself can narrow the gap between rules and decisions. So, for example, a theory of statutory interpretation that allows judges to go straight to policy whenever a statute admits of ambiguity creates a rather largish gap to be filled and explicitly invites ideological considerations as gap filling reasons. But there are alternatives. Consider, for example, a theory of statutory interpretation that requires judges to follow precedent, look to the text when the precedents leave a gap, look to the purposes of the statute insofar as they can be gleaned from the historical context when both precedent and text leave a gap, and then to appeal to a set of legally defined default rules when a gap remains. This sort of theory may substantially narrow the gap faced by judges, and hence constrain the extent to which judges may bring ideology to bear. Another aspect of the question raised by Leiter's point is conceptual: what kinds of gap fillers may properly be called "legal reasons" and which must be categorized as "extra-legal reasons." And that question in turn depends on positions taken in the what-is-law debate. Read Leiter and the Curmudgeonly One.

Moral Epistemology at Edinburgh
    Moral Epistemology Conference, held at the University of Edinburgh on November 21 and 22. Details below. All welcome. FRIDAY 21 NOVEMBER Location The conference will be held in the Conference Room, David Hume Tower, George Square, University of Edinburgh. 3:00-4:30 Walter Sinnott-Armstrong, "Intuitionism Meets Empirical Psychology" 4:30-5:00 Break 5:00-6:30 Ralph Wedgwood, "Normative Knowledge" 6:30-8:30 Dinner SATURDAY 22 NOVEMBER 9:30-11:00 Michael Ridge, "From Moral Knowledge to Moral Principles" (co-authored with Sean McKeever) 11:00-11:30 Break 11:30-1:00 Nancy Sherman, "The Look and Feel of Virtue" 1:00-2:30 Lunch 2:30-4:00 Jonathan Dancy, "Knowing Reasons" 4:00-4:30 Break 4:30-6:00 John Skorupski, "Propositions about Reasons" 6:00-8:00 Dinner Dr. Michael Ridge Department of Philosophy University of Edinburgh David Hume Tower, George Square Edinburgh, EH8 9JX United Kingdom ph: +44 (0)131 650 3657 email: website:

Thursday, November 20, 2003
Mazzone on Too Much Copyrighting Check out Jason Mazzone's op/ed in the Legal Times, available at this link. Here is a taste:
    Recent surveys suggest that Americans have lost respect for copyright laws and believe they are free to use the original work of others without proper credit or payment. But teenagers who illegally download music or who cut and paste term-paper material from Web sites are not the worst copyright cheats. Corporations routinely flout copyright laws when they claim ownership of works that are free for everyone to use. These false claims undermine free speech, weaken copyright protections, and fuel cavalier attitudes toward intellectual property. False claims to copyright are everywhere. Copyright belongs to the author of a work and expires 70 years after the author’s death. Yet copyright notices appear on modern reprints of Shakespeare’s plays, Beethoven piano scores, and greeting card versions of Monet’s water lilies. Corporations that sell to libraries microfilmed versions of early newspapers and other documents too old to be copyrighted routinely attach a copyright notice to their products.

Green on Locke and Auxiliary Rights Michael Steven Green (George Mason University - School of Law) has posted The Paradox of Auxiliary Rights: The Privilege Against Self-Incrimination and the Right to Keep and Bear Arms on SSRN. Here is the abstract:
    According to Locke's theory of the social contract, which was widely accepted by the Founders, political authority is limited by those natural moral rights that individuals reserve against the government. In this Article, I argue that Locke's theory generates paradoxical conclusions concerning the government's authority over civil disobedients, that is, people who resist the government because they believe it is violating reserved moral rights. If the government lacks the authority to compel the civil disobedient to abide by its laws, the result is anarchism: The limits on governmental authority are whatever each individual says they are. If the government has this authority, the result is authoritarianism: The limits on governmental authority are whatever the government says they are. Both conclusions are unacceptable. Because of the Lockean paradox, auxiliary constitutional rights, whose purpose is to protect civil disobedience, are likewise paradoxical. I argue that the Fifth Amendment privilege against self-incrimination and the Second Amendment right to keep and bear arms are examples of auxiliary rights, and I use the Lockean paradox to explain the intractable nature of the debates over whether these two rights provide anything of moral value. To their critics, these rights are anarchistic. All they do is give individuals the power to frustrate the government's legitimate attempts to protect citizens against mutually-imposed risks of violence. To their supporters, these rights are a bulwark against authoritarianism. To deny citizens the power to resist the government is to accept that the only views about the limits of political authority that matter are the government's. These disagreements cannot be resolved, because both sides are right. Supporters of these rights are anarchistic and their critics are authoritarian. As long as we continue to accept the Founders' Lockean view that governmental authority is limited by reserved moral rights, we will never be able to reject or accept these two constitutional rights. The Lockean paradox also explains the difficulties that courts and academics have experienced delineating the scope of these rights in a conceptually satisfying manner. Here too I argue that these problems cannot be overcome. The limits that are placed on these rights will always be arbitrary and ad hoc.

More on the Duty to Give Advice and Consent Bronson Yake adds to the debate over the Senate's duty to give timely advice and consent in this post on Right to the Point. Michael Rapport's posts to which Yake responds can be found here and here.

Smith on the Big Picture Read this post by my colleague Tom Smith on Stanley Fish, Brian Leiter, life, the universe, and everything.

Leiter on the Hart-Dworkin Debate If you are interested in the ins and outs of contemporary debates in the philosophy of law, you will definitely want to read this post by Leiter and download this paper. For what its worth, my take is that the Hart-Dworkin debate was a titantic tempest in a teapot, with much Dworkin's ship passing Hart in the night. (I know, terrible mixed metaphors!) The real significance of Dworkin's work lies elsewhere, in his normative theory of judging.

Lessig on Big Media at NYU At NYU's Colloquim in Law, Philosophy and Political Theory, Lawrence Lessig (Stanford University Law) presents an excerpt from FREE CULTURE: How Big Media Uses Technology And The Law To Lock Down Culture And Control Creativity. Here is a taste:
    At the beginning of our history, and for just about the whole of our tradition, noncommercial culture was essentially unregulated. Of course, if your stories were lewd, or if your song disturbed the peace, then the law might intervene. But the law was never directly concerned with the creation or spread of this form of culture. The law left this culture “free.” In the ordinary ways in which ordinary individuals shared and transformed their culture — telling stories, reenacting scenes from plays or TV, fan clubs, sharing music, remixing tapes — the law left that culture alone.
And a bit further on:
    This rough divide between the free and the controlled has now been erased.ix The Internet has set the stage for this erasure, and pushed by big media, the law has now effected it. For the first time in our tradition, the ordinary ways in which individuals create and share content fall within the reach of the regulation of the law. The law has now expanded to draw within its control a vast amount of culture and creativity that it never reached before. The technology that preserved balance of our history — between uses of our culture that were free, and uses of our culture that were only upon permission — has been undone. The consequence is that we are less and less a free culture, more and more a permission culture.
Lessig's work reaches far beyond the legal academy. This should be excellent.
Update: Peter Northup reports on Larry Lessig's talk.

Netanel Copyright & the First Amendment at Georgetown At Georgetown's Colloquium on Intellectual Property & Technology Law, Neil Weinstock Netanel (University of Texas at Austin School of Law) presents Copyright and First Amendment: Eldred v. Ashcroft and Beyond.

Coates on CEO Incentives & Mergers at Stanford At Stanford's Olin Series, John Coates (Harvard Law School) presents CEO Incentives and Merger Activity in the 1990s: Stock Options and Real Options.

Hills is Against Preemption at Michigan At the University of Michigan's Olin Series, Rick Hills (Michigan) presents Against Preemption: How Federalism Can Improve the National Legislative Process.

King on Judge-Jury Communication at FSU At Florida State, Nancy King (Vanderbilt) presents The Ethics of Judge-Jury Communications.
At George Mason University, D. Bruce Johnsen (GMU School of Law) presents The Limits of Mandatory Disclosure: Regulatory Taking under the Investment Company Act.

Wall on Political Equality at Arizona At the University of Arizona's philosophy colloquium, Steven Wall (Philosophy, Columbia University) presents Against Political Equality.

Greer on Critical Theory and Social Facts at Chicago At the University of Chicago's Political Theory Workshop, Kirk Greer (University of Chicago) presents Incorporating Racism: Critical Theory and Social Facts, with discussant Andrew Dilts.

Witt on Revolutionary Lawyers at UCLA At UCLA's Legal History Workshop, John Witt (Columbia) presents The Lawyer as Revolutionary: Crystal Eastman and the Internationalist Beginnings of American Civil Liberties.

Licht on Corporate Governance, Values, and Cognitive Style Amir N. Licht (Interdisciplinary Center Herzliyah - Radzyner School of Law) has posted The Maximands of Corporate Governance: A Theory of Values and Cognitive Style on SSRN. Here is the abstract:
    This paper considers the raison d'etre of corporations as it is reflected in the maximands of corporate governance. The debate over stockholders' versus stakeholders' interests as such maximands has been raging for decades. Advances in economic theory have not only failed to resolve this debate but have established that the problem is graver than what many may have estimated. This paper turns this debate on its head: Instead of asking What or Whose interests should corporations maximize, the real question is Why is this debate taking place at all? Aiming to extend current economic analyses of the maximands issue, this paper puts forward a new theory about the factors that determine these maximands. Recent advances in psychological research point to value emphases at the individual and societal levels and to the need for cognitive closure as such factors. The theory proposes the notion of value complexity as an organizing element that may associate certain value emphases with cognitive style. Overall, this theory provides explanations for various sticky points in the stockholder-stakeholder debate in the United States and in international settings, identifies gaps in other theoretical accounts, and generates testable hypotheses for empirical research. Extant evidence supports this theory.

Boos on Hart and Aquinas Eric J. Boos (Sokoine University - Law) posts An Unconventional Alliance That Should Have Been: Revisiting Hart's Mistake in Rejecting Aquinas' Natural Law Theory on SSRN. Here is the abstract:
    H.L.A. Hart uncritically follows the Utilitarians' rejection of traditional natural law theory, (accepting St. Thomas Aquinas as the preeminent representative of that theory), in an attempt to avoid "the danger that law and its authority may be dissolved in man's conceptions of what law ought to be" (CL, 54). This rejection is part-and-parcel of Hart's attempt to keep separate the realms of law and morality. However, Hart's specific criticisms of traditional natural law theory cannot accurately be applied to St. Thomas' legal theory. In his boldfaced rejection of St. Thomas' legal theory, Hart has unwittingly rejected a potential ally for his own legal theory.

Wednesday, November 19, 2003
The Morality of Cloning Brian Weatherson has a typically intelligent and well-argued post on cloning, in which he canvasses the arguments against human cloing and concludes that most of the me are awful. (I agree.) The consensus of opinion in the medical community, however, is that given current techniques, which yield a very high incidence of substantial defects, even experimentation with human cloning would be unethical. Weatherson offers the following thoughts about this argument:
    The other issue is the potential harm to the child. Given the medical problems that plagued Dolly, these might be non-trivial. This is more serious, since the child obviously is not in a position to provide informed consent. But the child is hardly in a position to complain, since without the cloning she would not exist. That last step is a little dubious, and actually the arguments here may have some bite. In particular there may, in the short term, be an argument for restricting reproductive cloning to those who could not reproduce any other way. (There are, or at least have been, similar restrictions on IVF.) Roughly the point is that sometimes you don’t want to compare what happens to the (currently non-existent) child to what that child would have been like without cloning, but to what a child in its place may have been like without cloning. But if we restrict cloning to the otherwise incapable of childbearing, there is no such child to put in its place. (This is the argument that may not be absolutely awful, since there is a bit of philosophical work to be done in blocking it. Perhaps for that reason, it doesn’t seem to be that widely stressed in the literature, especially compared to the arguments that really are awful.)
Somehow, I don't think that Weatherson has quite captured the real philosophical substance here. Let me add just a few thoughts:
  • One might approach this topic via the dispute between classical and average utilitarianism. Summing of utilies might favor bringing the additional child into the world even with substantial genetic defects; averaging of utilities might not.
  • One might try some sort of Kantian or Scanlonian approach, applying either the categorical imperative or contractualism to the issue whether is is wrong to bring a child with a genetic defect into the world.
What strikes me is how ill-equipped these mechanical decision procedures are for the task at hand. Should a parent and physician use cloning while there is a very substantial risk of genetic defect? Real moral deliberation about this question would certainly consider the sort of life the child might lead as well as the costs imposed on parents and society. Deep moral engagement with the question would also likely involve reflection on the alternatives, including the possibility of donor eggs and/or donor sperm, adoption, and so forth. I take it that many potential parents and doctors would conclude that it would be inappropriate to clone rather than to use other techniques or to adopt if cloning involves a very substantial risk of genetic defect.
What about the interests of the child who will not exist if not cloned? Perhaps this is whether Weatherson and I part company. I would not think that this interest is of great moral salience. The problem is that too many children fail to come into existence because of our choices, and trivial decisons that affect the timing of conception doom thousands or perhaps millions of children to nonexistence every day.
Moreover, my understandng of the science is that cloning (as currently practiced) does involve a very high risk of defect. It is my further understanding that while cloning may be the only technique available to parents to have a child who does not have genetic material from someone other than the parents, it is not the case that cloning will be the only technique that can produce a child that shares genetic material with at least one parent. For example, men can father children involving donor eggs and surrogate mothers, and women can give birth to children involving sperm donors and/or egg donors. There may, however, be some rare cases where neither parent can contribute genetic material without cloning.
Given this constellation of facts and interests, I would take it that there is currently a compelling reason for both physicians and for patients not to engage in human cloning. The desire to have a child who has only the genetic material of one parent as opposed to the alternatives is not sufficiently weighty given the risk of suffering and burden on society. Thus, I would take issue with Weatherson's conclusion that the argument against cloning from the risk of genetic defect is weak; my evaluation (and that of almost everyone in medical ethics) is that this argument is strong. Perhaps, I misunderstand Weatherson, with whom I agreed about everything else in his post. It is certainly a very interesting topic.

Thomas reexamines the Constitutionality of Remittitur Suja Thomas (University of Cincinnati - College of Law) has posted Re-Examining the Constitutionality of Remittitur Under the Seventh Amendment (Ohio State Law Journal, Vol. 64, p. 731, 2003) on SSRN. Here is the abstract:
    The modern scholarly discussion of remittitur has been largely limited to the appropriate standards for applying the doctrine and to the appellate review of the motion. Moreover, the Supreme Court's discussion of the constitutionality of remittitur under the Seventh Amendment was dicta and focused only on whether remittitur violated the defendant's constitutional rights. This article takes a new look at the constitutionality of remittitur. The Seventh Amendment uniquely requires that the re-examination of facts determined by a jury should be only according to the "rules of the common law." A review of the text of the Seventh Amendment's re-examination clause, as well as the Supreme Court jurisprudence on the Seventh Amendment, suggest that the English common law in 1791 should influence the analysis of the constitutionality of remittitur. This article examines for the first time the English common law on remittitur and the new trial for excessive damages. The study shows that English courts did not employ remittitur to reduce verdicts. Accordingly, it can be argued that remittitur is unconstitutional. A view of the common law as fixed or static, based only on the English common law, may not be accepted, however. Using an interpretation of the common law in the re-examination clause as, not fixed or static based only on the common law, but as evolving, this article argues that the result is the same; remittitur is unconstitutional. Under an interpretation of the common law as evolving, for remittitur to be constitutional, the plaintiff must have the option of taking a new trial as an alternative to accepting the remittitur. Effectively, under the practice of remittitur, plaintiff does not have this option. An original study of remittitur decisions in the federal courts over ten years was conducted and is used to support the conclusion that remittitur effectively eliminates plaintiff's right to a jury trial.

Slobogin on a Jurisprudence of Dangerousness Christopher Slobogin (University of Florida, Levin College of Law) has posted A Jurisprudence of Dangerousness (Northwestern University Law Review, Vol. 98, No. 1) on SSRN. Here is the abstract:
    This article addresses the state's police power authority to deprive people of liberty based on predictions of antisocial behavior. Most conspicuously exercised against so-called "sexual predators," this authority purportedly justifies a wide array of other state interventions as well, ranging from police stops to executions. Yet there still is no general theory of preventive detention. This article is a preliminary effort in that regard. The article first surveys the various objections to preventive detention: the unreliability objection; the punishment-in-disguise objection; the legality objection; and the dehumanization objection. None of these objections justifies a complete prohibition on the state's power to detain people based on dangerousness. But they do suggest significant limitations on that power regarding acceptable methods of prediction, the nature and duration of preventive detention, the threshold conduct that can trigger such detention, and the extent to which it can replace punishment as the official response to antisocial behavior. On the latter issue, the central conclusion is that preventive detention which functions as a substitute for punishment, as in the case of sexual predator statutes, is only permissible if certain psychological and predictive criteria are met. The rest of the paper develops these criteria. It argues that the psychological criterion should be undeterrability, defined as the characteristic ignorance that one's criminal activity is criminal or a characteristic willingness to commit crime despite certain and significant punishment, a definition that differs from both the usual academic stance and the Supreme Court's inability-to-control formulation. The paper next argues that selection of a prediction criterion should be informed by two principles, the proportionality principle (which varies the legally requisite level of dangerousness with the nature and duration of the state's intervention) and the consistency principle (which takes as a reference point the implicit dangerousness assessments in the law of crimes). Finally, the paper explores some of the implications of the latter principle for the criminal law, including the possibility that some crimes - in particular various possession offenses, reckless endangerment and vagrancy - violate the fundamental norms of the police power authority.

Werbach on the Supercommons Kevin D. Werbach has posted Supercommons: Toward a Unified Theory of Wireless Communication (Texas Law Review, Vol. 82, March 2004) on SSRN. Here is the abstract:
    The federal government has long controlled the allocation and assignment of electromagnetic spectrum, considered the lifeblood of wireless communication. Critics of government spectrum licensing advance two alternatives: exclusive property rights and unlicensed sharing through "spectrum commons." Yet both sides fail to come to grips with an essential point: there is no such thing as spectrum. It is an intellectual construct whose utility is rapidly decreasing as technology develops. Because spectrum is not a concrete thing, oft-used analogies to land or to natural resources break down. There is a vast new communications space emerging, whose full extent is unknown. Proposals based on spectrum as a physical asset denominated by frequencies artificially constrain mechanisms that exploit this "supercommons," producing inefficient outcomes. A better approach is to draw analogies to legal domains that do not presuppose ownership, such as tort. A universal communication privilege, allowing anyone to transmit anywhere, any time, in any way, should be the baseline rule for wireless communication. Liability backstops and safe harbor mechanisms can effectively prevent ruinous interference, while efficiently resolving boundary disputes. The supercommons approach properly refocuses wireless regulation away from spectrum and toward the devices used for communication. It can operate alongside the property and commons regimes, which are just different configurations of usage rights associated with wireless equipment. Bandwidth need not be infinite to justify a fundamental reconceptualization of the spectrum debate. Even with real-world scarcity and transaction-cost constraints, a default rule allowing unfettered wireless communication would most effectively balance interests to maximize capacity. Wireless could be an even more significant platform for innovation, user empowerment, and value creation in the twenty-first century than it was in the twentieth.

Johnson Yahya on Competitive Federalism D. Bruce Johnsen and Moin A. Yahya (George Mason University School of Law and University of Alberta - Faculty of Law) have posted The Evolution of Sherman Act Case Law: A Roadmap for Competitive Federalism on SSRN. Here is the abstract:
    For the first time in over six decades, recent Supreme Court decisions confirm that federal regulatory authority under the Commerce Clause truly is limited. These decisions coincide with an increasing appreciation among scholars and jurists for the concept of competitive federalism. This paper derives the implications of competitive federalism for federal antitrust jurisdiction under the Sherman Act. It provides a clear and substantively reasoned jurisdictional test based on the concept of geographic market power familiar to antitrust scholars, practitioners, and regulators in evaluating horizontal mergers. According to this test, to be subject to federal antitrust jurisdiction Sherman Act defendants must have a sufficiently large share of the geographic antitrust market that they can plausibly exercise market power that has a substantial effect on prices "in more states than one." This test reflects a natural progression in the evolution of Sherman Act and Commerce Clause jurisdiction. It resolves a number of troubling inconsistencies in the case law and also provides a useful roadmap for the direction the Court's general Commerce Clause jurisprudence might take in other areas of federal regulation.

Lazarus on Comparative Human Rights for Prisoners at Oxford At Oxford's Centre for Criminological Research, Liora Lazarus presents Prisoners and Human Rights in Comparative Perspective.

Kismet on Qui Tam Kary Klismet (University of Iowa College of Law) has posted Quo Vadis, 'Qui Tam'? The Future of Private False Claims Act Suits Against States After Vermont Agency of Natural Resources v. United States ex rel. Stevens (Iowa Law Review, Vol. 87, No. 1, October 2001) on SSRN. Here is the abstract:
    Since Congress amended the Federal False Claims Act in 1986, the Act's qui tam provisions, which allow individuals to sue on behalf of the federal government and keep a portion of the recovery, have become a force to be reckoned with in the fight to recover fraudulently obtained federal tax dollars. In fact, qui tam plaintiffs (referred to as relators) help return hundreds of millions of dollars to the federal treasury each year. But the Supreme Court's recent decision in Vermont Agency of Natural Resources v. United States ex rel. Stevens determined that states are not liable under the False Claims Act because the Act's definition of "person," found in 31 U.S.C. Section 3729, does not include state governments. The legislative history of the 1986 Amendments to the False Claims Act makes it clear that the Supreme Court failed to recognize Congress' intent to include state governments within the definition of "person." Consequently, state governments are not subject to liability for violations of the False Claims Act. Congress should make its intent explicit by either amending the False Claims Act to include states within the definition of "person," or by pursuing conditional funding measures that would require states to waive their False Claims Act defenses in order to receive federal grant money. Finally, in the absence of Congressional action, qui tam relators, should pursue claims against state employees, in their individual capacities, and then invoke states' indemnification statutes as a means of holding states and their officials accountable for violations of the False Claims Act. This approach will create an alternative procedural method to hold states accountable for defrauding the federal government, just as Congress intended.

Tuesday, November 18, 2003
Massachusetts Supreme Judicial Court Decision on Gay Marriage Find the opinion here. Eugene Volokh has comments here, here and here.

Araiza on Section Five Power at the University of San Diego At the University of San Diego, William Araiza (Loyola Marymount) presents The Section 5 Power and the Three-Tiered Structure of Equal Protection.

Huigens on a Specification to Coherence Theory of Punishment At Oxford's Jurisprudence Discussion Group, Kyron Huigens presents A Specification to Coherence Theory of Punishment`s Justification. Here is a taste:
    The leading accounts of punishment’s justification give implausible accounts of the relationship among punishment’s multiple ends. The consequentialist theory of punishment posits that punishment is morally justified if it is a rational means to the promotion of social welfare. This means that a backward-looking justifications such as retribution must be subsumed into a forward-looking end such as the avoidance of self-help and anarchy by means of organized social catharsis. The deontological theory of punishment posits a duty to take retribution on wrongdoers, and retribution is said to be constitutive of just punishment. But this constitutive relationship is an exclusive one. The deterrent effects of punishment have no part to play in the justification of punishment. Such practical effects of punishment are merely “prudential supplements” – bonus effects that may be welcome, but that do not justify.
    The aretaic theory of punishment takes a fundamentally different approach to the reconciliation of punishment’s multiple ends, and to punishment’s justification in light of those ends. Whereas the other major traditions in philosophical ethics recognize some of the ends of punishment in ways that denigrate or distort them, the aretaic theory can integrate the several ends of punishment by means of a coherentist account of practical justification that is aimed specifically at reconciling punishment’s multiple ends. The aim of this paper is to give such a coherentist account, which will not only demonstrate an advantage over the other two main theories of punishment, but that will also avoid some difficulties within the aretaic theory of punishment.
Huigens work on aretaic theory and criminal law is interesting an important! Download it while its hot!

Gardiner on the Function of Tort Law at Oxford At Oxford's Faculty of Law, John Gardner presents What is Tort Law For? to the Private and Commercial Law Discussion Group.

Gerald Dworkin on Unfair Competition at Oxford At the Oxford Intellectual Property Research Centre, Gerald Dworkin presents Unfair competition: Is the Common Law in need of a Loose Cannon?

Lyon on Rehabilitating Child Witnesses at Loyola Marymount At Loyola Marymount's Loyola Law School, Thomas D. Lyon (Professor of Law, University of Southern California Law School) presents Rehabilitating the Child Witness.

Chesney on the Democratic-Republican Societies and Political Dissent Robert Chesney (Wake Forest University - School of Law) posts Democratic-Republican Societies, Subversion, and the Limits of Legitimate Political Dissent in the Early Republic (North Carolina Law Review, Forthcoming) on SSRN. Here is the abstract:
    Political liberties and the needs of security have clashed often in American history. When asked to identify the seminal incident in this cycle, many if not most of us are inclined to look to the passage of the Alien and Sedition Acts and the series of federal seditious libel prosecutions which took place beginning in 1798. But this overlooks the events of 1794, when Federalists first made a concerted effort to assert the illegitimacy of political criticism of the government. The effort did not take the form of prosecution or legislation, but nonetheless presented a significant challenge to constitutional values. The moment came in the tense, patriotic aftermath of the Whiskey Rebellion, and was directed at the Democratic-Republican societies - a loosely-affiliated network of voluntary associations engaged in sharp criticism of Federalist policy. From the Federalist perspective, the societies were inherently illegitimate because the tendency of their speech - indeed, of their very existence - was to foment insurrection and to undermine representative government. Federalists also feared the societies were influenced by, if not subject to the direction and control of, a subversive foreign power - Revolutionary France. Building on these perceptions, President Washington used his annual address to Congress to denounce the existence of the societies. The censure produced an immediate echo in the Senate, and a fierce debate in both the House and the partisan press. Republicans insisted upon the right of private citizens to organize and to criticize the actions of elected officials, while Federalists branded political criticism from private groups as inherently disloyal and seditious. It was America's first sustained debate concerning freedoms of expression, assembly, and the press, but ultimately the decentralized nature of the debate prevented it from reaching a clear resolution. James Madison wrote at the time of his concern that the public failed to appreciate that the principle advanced by the Federalists could as well be applied in support of more direct intrusions on political liberties. This, of course, is precisely what happened just a few years later during the Sedition Act controversy.

Koch on Policymaking by ALJs Charles Koch (College of William and Mary School of Law) has posted Policymaking by the Administrative Judiciary on SSRN. Here is the abstract:
    Administrative agency authority to evolve policy in the course of adjudication is well established. While the scope of that authority and the judicial role with respect to such questions commands considerable scholarly attention, the process for exercising that authority inside administrative judiciaries is largely neglected. The policymaking role of the administrative judges in particular has been insufficiently conceptualized and hence their role in that regard poorly understood, even by themselves. Administrative judges must apply policy in individual context. As the record builders and initial decisionmakers, the administrative judges launch the policy related issues. Even clear policy leaves them some discretion and agency policy, being ambiguous or rendered ambiguous by the individual case, may afford judges considerable range. Necessarily then policymaking by administrative judges creates a tension within the agency hierarchy. The agencies endeavor to maintain dominance over policy and constantly struggle to keep the administrative judges within the strict confines of its policy pronouncements. For this reason, it is the policy aspects of the hearing level decisions, more so than individual dispute resolution, that defines the relationship between the agency and the judges. This article seeks to understand the policymaking aspect of administrative adjudications. It exposes the myth that adjudicative judges are not part of the policymaking process. It examines how they do contribute to that effort. And it suggests ways to incorporate them most effectively in the adjudicative policymaking process and thereby the overall administrative policymaking process. Some first level answers can be derived from the various studies and commentary on judicial law making. Yet, the hierarchical allocation of policymaking in administrative adjudications is fundamentally distinct. Thus, the article looks closely at the adjudicative policy development in terms of precedent (or consistency), the internal force of varies categories of rule, the nature of policy oriented factual development and finding, the adjudicative staff's role, and agency supervision of policy judgments. From this analysis of the classic adjudicative hierarchy, the article considers the special circumstances of adjudicative policymaking in "coordinate" systems: centralized panels and split function. It concludes that conscious attention to the judge's role and full utilization of them for policymaking will significantly improve many administrative systems.
Very interesting paper. This is not my field, but I am quite interested in systems of judicial decision making and I learned from this paper. Recommended.

Monday, November 17, 2003
The Demandingness Objection to Utilitarianism Matthew Yglesias replies to my statement of the demandingness objection to utilitarianism from the Legal Theory Lexicon a while back. Here is my statement of the objection:
    It is frequently argued that utilitarianism (especially act utilitarianism) is too demanding. Why? Imagine that it is your day off. You have two choices. You can either read a novel or your can work for Oxfam. If you read a novel, you will produce some positive utility—your enjoyment of the novel. But if you worked for Oxfam, you would save 1.7 starving children in the third world from death. Well, of course, you should work for Oxfam. But the problem is that it will always be the case that I could produce more utility for others if I dedicated my time to helping the least fortunate. Utilitarianism seems to require me to work for Oxfam after work and to stay up as late as I possibly can. In fact, I may be able to maximize utility by neglecting my health and family. If this is true, many would find utilitarianism too demanding and hence implausible.
And here is the crucial passage from Yglesias's reply:
    A utilitarian, however, can accept this criticism and keep his moral theory intact. It would be unreasonable to condemn someone in this way, so good utilitarians don't condemn people simply because they don't spend all their time working for oxfam. The utilitarian moral theory is like a compass -- it tells us in which direction good behavior lies. How much good behavior it is up to us to expect from any particular person is up to us. There's no reason to think that maximally-good behavior is the same thing is minimally-acceptable behavior.
Before I say anything more, I should like to make it clear that my Legal Theory Lexicon posts rarely represent my own views on the topics covered. In this case, I was trying to give a general sense of the objection, but not the most sophisticated statement, much less a canvassing of the variations of the objection and the state of play on the answers and replies.
Having said that, I don't think that Yglesias's answer is adequate. It is true that a utilitarian can make R.M. Hare two-level theory move, and argue that utilitarianism itself would support a less demanding morality as a rule of thumb. Moreover, it may be the case that a practice of moral criticism in conformity with utilitarianism would not criticize the failure to devote one's self to Oxfam for utilitarian reasons. But Yglesias has not made the utilitarian case for either of those two possibilities. Yglesias stats, "It would be unreasonable to condemn someone in this way, so good utilitarians don't condemn people simply because they don't spend all their time working for oxfam." Well, yes, that is the point of the objection, but "reasonableness" is not itself a utilitarian concept. Yglesias needs an argument that condemning someone who doesn't work for Oxfam will produce less utility than the alternative courses of action. Moreover, even if Yglesias does make this case, a potent version of the demandingness objection would still remain in play. From the cool point of reflection that Hare identifies as the perspective of utilitarian theory, it would still be the case that in the end, it is wrong not to work for Oxfam to the utility-maximizing extent. Many would argue that even from the perspective of cool reflection, utilitarianism will still be too demading to claim our assent.
The rest of Yglesias's post relies on a distinction between "maximally-good behavior" and "minimally-acceptable behavior," which may indeed be a reasonable distinction. I fail to see, however, how Yglesias has managed to locate such a distinction within utilitarian moral theory.

The President's Power to Call Congress Into Executive Session as a Remedy for the Senate's Breach of its Constitutional Duty to Render Advice and Consent
    Introduction In a post on Friday, I argued that President Bush may possess the long-dormant power to call the Senate into executive session and ask each Senator for advice and consent on judicial nominations. Michael Rappaport replied here, and I offered further thoughts here. Now Michael has an extremely well-written and thoughtful reply. I have interspersed some updating comments in my Saturday post. I would like to emphasize that my thoughts on this topic are still in the gestation stage, although my thinking has been substantially clarified by Rappaport's very cogent points
    Reading the History: Washington's Letter and Historical Practice One important question concerns the question whether the Senate has recognized the President's power to convene the Senate as an "executive council." Senate Rule XXIX has long provided that the President may call the Senate into executive session. Rappaport notes that this rule does not, by itself, give the President the power to modify the Senate's other rules of procedures, and he is surely correct. My argument that the President has the additional power to ask individual Senators for advice and consent relied on President Washington's letter. To that Rappaport replies:
      My point was that there are two possible (but conflicting) interpretations of the SenateÂ’s role as to appointments: the Senate could be an executive council that is subject to the governance of the President (as Washington suggests) or it could be an legislative body that is independent of any presidential control. While WashingtonÂ’s view was plausible as an original matter, so was the opposite view and that view has been followed for more than 200 years. Given the 200 years of legislative precedent, one cannot lightly go back to the alternative, contradictory interpretation. I invoke no doctrine of desuetude here.
    This is a powerful point! If I may ask you indulgence again, here are some thoughts by way of reaction:
      First, Rappaport and I seem to agree that the constitutional text in light of the relevant history was ambiguous at the time of the framing. In this regard, I would emphasize this sentence from Washington's letter: "It seems incident to this relation between them, that not only the time but the place and manner of consultation should be with the President." This passage offers strong support for the proposition that what we might call the executive council interpretation was, at the time of the framing and ratification, at least a reasonable interpretation.
      Second, Rappaport believes that the subsequent history points unambiguously to the view that the President lacks the power to convene the Senate as a legislative council. My tentative reading of the history is more nuanced. In response to Washington, the Senate indicated its preference to meet in its own chamber, and Washington acquiesced in the Senate's expression of its preference. This acquiescence can be read in two ways:
        The first reading is that Washington and the Senate clashed over the issue of power, and the Senate's interpretation of its own power prevailed.
        The second reading is that Washington and the Senate did not reach the point of clash over the issue of power, because the Senate requested that Washington allow the Senate to give advice and consent in a manner of its own choosing.
      The second reading of the history is consistent with the notion that the President has a dormant power to call the Senate into session as an executive counsel. The question then becomes whether the Senate's refusal to render advice and consent provides a reason of constitutional prudence for the President to revive the dormant power.
    Insofar as Rappaport is arguing that the history does not unambiguously support the notion that the President retains a dormant power to call the Senate into session and ask for advice and consent, I am compelled to agree. But if Rappaport goes further, arguing that the history is unambiguous and the issue has been settled beyond dispute, then I beg to differ.
    Thought Experiment One Here is another way to think about the history. Consider the following thought experiment:
      Imagine that at some point in our history (neither too close to the framing nor too proximate to our own era), the President and the Senate had clashed over the Senate's refusal to render advice and consent on the President's nominations for judicial office. Imagine further that the President had taken the radical step osummoningng the Senate into session in the White House, and that the Senate, pursuant to Rule XXIX, had duly assembled at the appointed time and place. Now imagine that the President speaks first at this assembly, and that he demands that the Senate render advice and consent. And here is the critical assumption: Imagine further that the Senate responds, voting up or down on the pending nominations.
    Had such an event occurred some decades ago, would it alter our view of the question whether the President has a latent power to call the Senate into session and demand timely advice and consent? I am not sure, but I do have a suspicion. My suspicion is that this event would be viewed as relevant to the constitutional question. My suspicion is that this event would count as strong (but perhaps not decisive) evidence that the President does have the dormant power I have postulated. And here is the kicker. If you share my suspicion about the meaning of this counterfactual historical hypothetical, then I think you ought to share my intuition that in the actual world, the advice and consent chapter of the book of constitutional history is still being written.
    The Argument for a Constitutional Duty to Render Advice and Consent from Transparency In my last post, I argued for the proposition that the Senate has a formal duty to render advice and consent that is not fulfilled by mere inaction or silence on the ground that this duty is supported by considerations of transparency and democratic legitimacy. Rappaport's most recent post resulted in my doing a bit of additional research that I would like to share with you. Both James Wilson and Joseph Story have written about the appointments power in ways that lend support to my transparency argument. Let me just quote the passages, and you can draw your own conclusion:
      James Wilson, Government, Lectures on Law:
        The person who nominates or makes appointments to offices, should be known. His own office, his own character, his own fortune should be responsible. He should be alike unfettered and unsheltered by counsellors. No constitutional stalking horse should be provided for him to conceal his turnings and windings, when they are too dark and too crooked to be exposed to publick view. Instead of the dishonourable intercourse, which I have already mentioned, an intercourse of a very different kind should be established--an intercourse of integrity and discernment on the part of the magistrate who appoints, and of gratitude and confidence on the part of the people, who will receive the benefit from his appointments. Appointments made and sanctioned in this highly respectable manner, will, like a fragrant and beneficent atmosphere, diffuse sweetness and gladness around those, to whom they are given. Modest merit will be beckoned to, in order to encourage her to come forward. Bare-faced impudence and unprincipled intrigue will receive repulse and disappointment, deservedly their portion.
      Joseph Story, Commentaries on the Constitution:
        Nor is it to be expected, that the senate will ordinarily fail of ratifying the appointment of a suitable person for the office. Independent of the desire, which such a body may naturally be presumed to feel, of having offices suitably filled, (when they cannot make the appointment themselves,) there will be a responsibility to public opinion for a rejection, which will overcome all common private wishes. Cases, indeed, may be imagined, in which the senate from party motives, from a spirit of opposition, and even from motives of a more private nature, may reject a nomination absolutely unexceptionable. But such occurrences will be rare.
    I don't want to overclaim the significance of these passages, but both passages do suggest that my transparency argument resonates with concerns that were expressed during periods far closer to the framing and ratification of the Constitution than is our own time.
    Thought Experiment Number Two It does seem unlikely, but let's imagine what might happen if George Bush were to start surfing the blogosphere and became convinced that he does, in fact, have the power to call the Senate into executive session. The President then sends a formal notice of the session to the Senate. Given Rule XXIX, it seems most likely that the Senate would agree to appear--although one can certainly imagine that some members of the minority caucus might decide to boycott the executive session. Now imagine that the President speaks to the assembled members of the Senate, stating his view that he has the power to ask each Senator for her or his advice and consent. Surely, at this point, some member of the Senate would object to the proceedings, arguing that the Senate, even when in executive session, must follow its own rules. At this juncture things might go in any number of directions, but here is one possibility. Suppose that the chair, a member of the Senate majority, were to rule that the Senate's rules do not apply when the Senate is in a special executive session for the purpose of giving the President advice and consent. What then? Well surely the ruling of the chair would be appealed to the whole Senate, and such a point of order is not debatable and hence not subject to the filibuster. But how would the Senate vote? It would be a dramatic moment--indeed, one of the most dramatic moments in our constitutional history. Undoubtedly, many members of the President's own party would be reluctant to see the Senate's power eroded by a vote to sustain the chair, but members of the majority would also be under the most intense of pressure to vote with their leadership and their President under these circumstances.
    Conclusion Hypotheticals are good clean fun, but surely my second thought experiment is not in the cards. Surely, neither the President nor the Senate would wish to risk a constitutional crisis. Surely, there is room for compromise between the President, the Senate Majority, and the Senate Minority over judicial nominations. Surely there is a resolution of the current conflict that is better than multiple filibusters or mass recess appointments or nuclear options or the President summoning the Senate to the White House as an executive council. Surely.

Two By Stuart Buck Stuart Buck (The Buck Stops Here), who provides a very articulate and intelligent voice in the blogosphere, has two new papers on SSRN:
    Salerno v. Chevron: What To Do About Statutory Challenges Administrative Law Review, Vol. 55, No. 3, Summer 2003:
      The Chevron standard for judging agency statutory interpretations is ubiquitous in administrative law cases. But few scholars have noticed that the Supreme Court in 1993 spoke approvingly of a standard that seems to be utterly different from Chevron: the Salerno standard, from United States v. Salerno, in which the Court said that no facial challenge to a law can succeed unless the plaintiff demonstrates that there is no set of circumstances in which the law could be applied constitutionally. In Reno v. Flores, the Court said the Salerno no-set-of-circumstances test equally applies to challenges arguing that an agency regulation is inconsistent with the agency's authorizing statute. It is extraordinarily difficult to see how the Salerno standard could be consistent with Chevron. Chevron allows the court to overturn the agency's decision if the regulation is either 1) directly contradicted by the statute or 2) unreasonable. But the Salerno standard seems to require that the agency's regulation be upheld if even one set of circumstances existed in which the regulation was consistent with the statute. The conflict between Chevron and Salerno has caused courts to struggle with the question whether to follow Reno v. Flores or not. My purpose in this article is to reconcile the Court's approval of what I will call "statutory Salerno" with the preexisting Chevron doctrine. This reconciliation will require a substantial re-conceptualization of Salerno itself; here I rely heavily on the exemplary work of Marc Isserles. In Isserles's view, Salerno is merely descriptive, not normative. That is, the "no set of circumstances test" is not a "test" at all, in the normal use of that word. Rather, the phrase "no set of circumstances" merely describes what happens when a statute is declared facially invalid. And such a ruling is usually based, not on counting up the number of invalid applications of the statute, but on some substantive constitutional doctrine that literally looks only at the "face" of the statute. If this view of Salerno is correct, then the analogue in the statutory context is none other than Chevron Step One. Under Step One, if a statute is clear as to a particular issue, and the agency’s regulation is contrary to the statute, then the regulation is to that extent facially invalid. As a result, the regulation must be vacated on its face and/or remanded to the agency for further consideration. In any event, a facial challenge under Step One is judged not by imagining all possible applications of the regulation, but by a direct "facial" comparison of the regulation and the authorizing statute. Here as under the modified view of Salerno, facial considerations come first, causing the invalidity of all potential applications, not the other way around.
    TELRIC vs. Universal Service: A Takings Violation? Federal Communications Law Journal, Forthcoming:
      Local phone companies are trapped between two utterly contradictory pricing systems. At the retail level, they are forced by federal and state law to offer universal service to all customers at relatively equal prices - and often at prices that are inversely related to the cost of service (as when residential users are charged less than business customers, even though they are more expensive to serve). But on the wholesale level, the Federal Telecommunications Act of 1996 forces local phone companies to lease their equipment and lines to their competitors at rates that are based on the cost of service. This combination of contradictory pricing systems is unwise and potentially disastrous. It allows competitive phone companies to enter markets where customers are relatively over-charged, while leasing the local phone companies' lines at cost. Meanwhile, the local phone companies are left serving the under-charged customers (i.e., those in rural and residential areas) due to their universal service obligations. As a result, local phone companies may have a viable claim that the Takings Clause has been violated.

Student Edited Law Reviews Chris Geider has a very thoughtful post on student-edited law reviews on En Banc.

Republican Unilateral Disarmament on the Filibuster of Judicial Nominations Check out Rick Hasen's report and comment on this Roll Call article.

John Hart Ely The late John Hart Ely's article Interclausal Immunity (Virginia Law Review, Vol. 87, pp. 1185-1199, September 2001) has just appeared on SSRN. Here is the abstract:
    In Richardson v. Ramirez, decided in 1974, the Supreme Court, speaking through (then just plain) Justice Rehnquist, upheld the practice of approximately half the states of disfranchising convicted felons even after their release from prison, sometimes for life. One might have expected this to be a slam dunk the other way, given voting's status as the quintessential political right and thus a "fundamental interest" requiring strict scrutiny under the Equal Protection Clause, and the evident looseness of the fit between having been convicted of (or pleaded to) a felony, any felony, and any "compelling" reason for taking one's vote away. But actually Rehnquist had a pretty good answer to this, that Section 2 of the very amendment under which the challenge was brought (the Fourteenth), in specifying the sorts of franchise-deprivation for which a state's representation in Congress could lawfully be reduced, explicitly exempted (along with not being male, 21 years of age, or a U.S. citizen) the fact that one had been convicted of a crime.
Everything I ever read by Ely was worthwhile!

Redding on Shariat Jeff Redding (Columbia University - Center for the Study of Law and Culture) posts Constitutionalizing Islam: Theory and Pakistan on SSRN. Here is the abstract:
    This article explores Pakistan's Shariat judicial system's understanding of what is required by a constitutional and legal system, in order for that system to be considered "Islamic." In the main part of this article, I present some of the Pakistani Shariat judicial system's landmark cases, interpreting them and demonstrating how they build and structure the Islamic system of constitutional and legal governance that I believe they do. As I argue, these cases emphasizes the importance of Muslim community consensus in determining those laws which will be enforced by an Islamic legal system. This article adds to the literature on Islamic law in a couple of different ways. First of all, most theories of Islamic constitutionalism root themselves in the exegesis and discussion of Islamic religious texts and precedents. My argument, however, emphasizes the importance of extant political realities - in particular, the Muslim sectarian divide in Pakistan - in contemporary discussions of Islamic constitutionalism. Moreover, in the concluding section of my article, I compare Pakistan's approach to defining Islamic law and constitutionalism with India's approach. India, as I argue, has emphasized a more top-down, state-led approach to defining Islam. While this has often resulted in admirably progressive interpretations of Islamic law, I argue that Pakistan's approach - one that is more of a community-led, bottom-up approach - is likely to be needed as well, if Islamic legal reform is to be a sustainable and peaceful enterprise.

Denning Reviews Noonan Brannon P. Denning (Cumberland School of Law) posts Judge Noonan's J'accuse. . .! on SSRN. Here is the abstract:
    This review of Judge John T. Noonan's book, Narrowing the Nation's Power: The Supreme Court Sides with the States, critically evaluates the evidence Judge Noonan offers in support of his thesis that the Court's recent federalism decisions have done violence to the Constitution, and put Congress's ability to govern effectively at risk. I conclude that while one may quarrel with aspects of the Court's recent approach to federalism questions, the indictment Judge Noonan has penned fails to acknowledge reasonable arguments that contradict his thesis, and that he unfairly suggests that the Court has abandoned good faith legal analysis in favor of political will in rendering its recent decisions.

Whitman on Metapreferences and Multiple Selves at George Mason At George Mason's Workshop in Philosophy, Politics, and Economics, Glen Whitman (Economics, California State University-- Northridge) presents Meta-Preferences and Multiple Selves.

Kilborn on the German Experience with Consumer Debt Relief Jason Jeremy Kilborn (Louisiana State University, Baton Rouge - Paul M. Hebert Law Center) has posted The Innovative German Approach to Consumer Debt Relief: Revolutionary Changes in German Law, and Surprising Lessons for the U.S. (Northwestern Journal of International Law and Business, Vol. 24, No. 2) on SSRN. Here is the abstract:
    To add another enlightening dimension to current U.S. consumer bankruptcy reform debate, this Article describes the consumer provisions of the new German Insolvency Act. It reports on Germany's rising consumer debt problem and the various ways in which German debtor-creditor law failed to address this increasing problem before 1999. It then examines the consumer provisions of the new German Insolvency Act, in force since January 1999 and significantly amended in December 2001. It reveals critical distinctions between the theory of consumer insolvency, as described in German law and legal literature, and the reality of consumer insolvency in practice as it has developed in the nearly five years since the law went into effect. From this examination, this Article extracts several lessons for U.S. law reformers battling with provisions quite similar to those implemented in the new German law. As it turns out, the German and U.S. consumer debt relief systems produce largely the same economic results. Important distinctions between the German and U.S. economic and social systems suggest, however, that the German approach - and the amendments currently under consideration in the U.S. Congress - would not lead to success in the U.S. At the same time, the German system focuses on achieving important societal goals that U.S. law neglects, which might be incorporated into U.S. law through more careful reform of U.S. debtor-creditor law.

Sunday, November 16, 2003
Legal Theory Lexicon: Deontology
    Introduction Two weeks ago, the Legal Theory Lexicon explored utilitarianism, an approach to normative moral theory that has had an enormous influence on legal thought. This week, I take up one of utilitarianism's main rivals, deonotology. Deontological moral theories vary in myriad ways, but the focal point for deontology is the concept of duty with its correlative notions of right and permission. Thus, the distinctive thesis of deontology in general might be formulated as the claim that the rightness of action is a function of whether the action is required, prohibited, or permitted by a moral duty. This is, of course, a simple formulation, and contemporary philosophical theories in the deontological tradition offer more sophisticated and nuanced formulations. This post aims to introduce the central idea of deontological moral theory with special reference to the interests of a first-year law student with an interest in legal theory. Almost every first year course will include deontological ideas. In criminal law, deontology is reflected in the notions that an action cannot be a crime unless it is the violation of a moral duty and in retributive theories of punishment. In torts, deontological theories argue against the economic analysis of tort law and for the idea that tort law is best explained by a theory of corrective justice. In property law, deontological theories emphasize the role of property in creating spheres of autonomy. In contracts, the deontological approach results in the idea that contract is fundamentally explained by the duty to keep a promise. And even in civil procedure, deontological ideas appear in the view that litigants have a right to a "day in court."
    What Rights and Duties Do We Have? The idea that some actions are wrong and therefore forbidden has a strong intuitive appeal. And we can easily generate a list of action types that are at least ceteris paribus wrongful: telling lies, breaking promises, intentionally killing or injuring an innocent person, stealing, and so forth. For some purposes, a simple list of wrongs may be sufficient. But philosophers and legal theorists are unlikely to be satisfied with a list. Why not? Because the content of the list is likely to become controversial. Lying belongs on the list, but what about the failure to make a full disclosure to a stranger in an arms length commercial transaction? Battery is on the list, but should the exception for self-defense be extended to defense of property?
    So what method or principle allows us to identify the list of duties, rights, and permissions that would provide the content of a fully specified deontological moral theory? One possibility is that we would identify the list by appeal to our sense of what is right and wrong. Let's give that sense a fancy name: call it "moral intuition." One possible method for identifying the content of a deontological moral theory would be to consult our moral intuitions about particular cases. But objections to this method are likely to arise immediately. For example, my intuition may not agree with your intuition. What then? Even if I consult only my own intuition, I may come to see that my intuitions about particular cases are not consistent at the level of principle. My intuition makes an exception for lies told to instructors as excuses for turning in late papers, but not for lies told to friends as excuses for extreme lateness.
    Raw moral intuitions might be refined through a technique suggested by the philosopher John Rawls--the method of reflective equilibrium. We might aim to order our raw moral intuitions by positing some general principles that would explain and unify our considered judgments about particular cases. Once we have a set of general principles, it may turn out that some of our considered judgments about particular cases need to be revised. In other cases, a general principle may conflict with a considered judgment about a particular case that we hold very firmly. In such a case, we may wish to modify our general principles. If we work at it, we might eventually reach a point where our revised general principles are in agreement with our revised judgments about particular cases. Rawls call this state "reflective equilibrium." The same procedure might be used collectively to resolve conflicts between the judgments of different individuals; Norman Daniels call this interpersonal use of reflective equilibrium, "wide reflective equilibrium."
    Kant Reflective equilibrium is one way to specify the content of a deontological moral theory. The German philosopher Immanuel Kant provides another. Before I proceed any further, I want to make it clear that what I am about to say does not provide anything close to even a basic introduction to Kant's moral philosophy. That would take a series of several Legal Theory Lexicon posts. Nonetheless, we can get a glimpse of one of Kant's most important ideas, the categorical imperative. Kant believed that duty was the central moral idea, and he recognized the problem of specifying duty. Kant had a particularly deep and interesting solution to that problem which begins with the idea of a good will: "Nothing can possibly be conceived in the world or out of it that can be called good without qualification except a good will." And a good will is a will that aims for the good and not merely for the objects of desire and inclination. If we act on the basis of a hypothetical imperative (if I want X, then I should do Y), we act on the basis of desire and inclination. In order to aim for the right, we must act on the basis of a categorical imperative, that is, on the basis of a reason or principle that does not include a desire or inclination. So what would a categorical imperative look like? Kant's answer to this question is stunningly brilliant--one of the most awesome moves in the history of philosophy. Kant suggested that one could act on the basis of a categorical imperative by consulting what he saw as three equivalent formulas:
      The Formula of the Law of Nature: "Act as if the maxim of your action were to become through your will a universal law of nature."
      The Formula of the End Itself: "Act in such a way that you always treat humanity, whether in your own person or in the person of any other, never simply as a means, but always at the same time as an end."
      The Formula of the Kingdom of Ends: "So act as if you were through your maxims a law-making member of a kingdom of ends."
    Onora O'Neill, the great Kant scholar, has a really wonderful essay called A Simplified Account of Kant's Ethics. If you are still reading this post and you haven't already read O'Neill's piece, download the word file and read it now--believe me it is worth it.
    O'Neill focused on the formula of the end itself, so let me say just a few words about the formula of the law of nature by giving an example. Suppose you are deciding whether to tell a lie to a friend to get out of a lunch date. You first ask yourself, "What is the maxim (or principle) of my action?" Suppose the answer is "Lie when convenient!" Now, you imagine that if you were to lie to your friend the principle upon which you acted would become a universal law of nature--everyone would one lie when it was convenient. Could or would you do this? Arguably not, for two reasons. First, if everyone were to lie whenever it was convenient, human communication might become impossible, because no one could be trusted. The maxim--lie whenever convenient--has a contradiction in conception, because the lie would never be believed in the possible world in which the maxim of your action was a universal law of nature. Second, if one can imagine a world in which everyone lies when convenient, you might not be willing to lie on this occasion if the result of your action was that the maxim--lie whenever convenient--were to become a universal law of nature as a result. You might not want others to lie to you when they thought it was convenient--we can call this a contradiction in the will. Of course, my analysis of this example has been very sketchy and crude, but I hope that I have done enough to give you the general idea.
    Some Objections to Deontology All of the main approaches to moral theory are controversial, and because the debates have been raging for centuries, the arguments are now enormously complex. So I am going to give two very simple objections to deontology, with the warning that the current state of play on these objections is now so complex and ramified that you really must be a specialist to give even a rough summary.
      The Indeterminacy Objection. The first objection is that the content of a deontological moral theory is underdeveloped by the various methods for deriving a set of duties, rights, and permissions. So, for example, the method of reflective equilibrium may help us to order our considered judgments about particular rights, duties, and permissions, but it might be objected that this method is unlikely to settle any of the major disputes about what the duties, rights, and permissions actually are. Different people will arrive at different reflective equlibria. Even a single individual may come to believe that a variety of equilibriums are equally plausible or that her view of the most stable equilibrium is unstable, changing frequently in response to new examples or arguments. Kant's approach is subject to the same objection, with many critics arguing that Kant's method does not produce unique answers to particular questions about duty. Deontological moral theorists might counter that although their methods may not always produce unambiguous answers that will produce universal assent, that this is an unrealistic criterion for an acceptable moral theory. Particular deontological theories may allow the zone of moral disagreement to be narrowed and provide illuminating insights about particular cases.
      The Rigor Objection. The second objection begins with the assumption that deontology does produce determinate answers to particular questions of morality, but argues that the answers are implausible, because they are too demanding or inflexible. Consequentialist critics of deontology argue that absolute rights, duties, and permissions can lead to consequences that would not be morally acceptable. One famous hypothetical, based on Kant's discussion of lying, imagines that you are in Germany before World War II and a Nazi has come to your door and inquired whether you have seen a Jew who has escaped. If there is an absolute moral duty to tell the truth, then you are not permitted to lie in response, but telling a lie may be the only way to save the life of an innocent person. Surely, the consequentialist argues, telling the lie is not only morally permissible, it is morally required. Deontologists can try to escape from examples like these in a variety of ways. For example, the deontologist might simply argue that there is no duty to tell the truth to evil doers who will use the truth for evil purposes. Or the deontologist might argue that this is a case which duties conflicts, and that some higher order principle favors the duty to protect the innocent person from evil over the duty to tell the truth. Or the deontologist might allow that duties can be overridden by consequences in some circumtances. Some deontologists may bite the bullet and argue that one is required to tell the truth, even if the consequences are horrific.
    Conclusion In a sense, the battle between deontology and consequentialism is one of the great battles of contemporary legal theory. Legal theorists argue over deontological and consequentialist theories of contract, tort, property, criminal law, procedure, constitutional law, and many other doctrinal fields. As a law student, you might start to look for deontological arguments in cases and class discussion. Almost every time class discussion turns to the question, "What should the rule be?," you will be able to construct both consequentialist and deontological arguments for and/or against the various possible rules. Getting the hang of normative legal theory is, in large part, a matter of mastering a set of consequenitalist and deontological moves.
    Links Bibliography

Legal Theory Calendar
    Monday, November 17
      At George Mason's Workshop in Philosophy, Politics, and Economics, Glen Whitman (Economics, California State University-- Northridge) presents Meta-Preferences and Multiple Selves.
    Tuesday, November 18
      At the University of San Diego, William Araiza (Loyola Marymount) presents The Section 5 Power and the Three-Tiered Structure of Equal Protection.
      At Oxford's Jurisprudence Discussion Group, Kyron Huigens presents A Specification to Coherence Theory of Punishment`s Justification.
      At Oxford's Faculty of Law, John Gardner presents What is Tort Law For? to the Private and Commercial Law Discussion Group.
      At the Oxford Intellectual Property Research Centre, Gerald Dworkin presents Unfair competition: Is the Common Law in need of a Loose Cannon?
      At Loyola Marymount's Loyola Law School, Thomas D. Lyon (Professor of Law, University of Southern California Law School) presents Rehabilitating the Child Witness.
    Wednesday, November 19
      At Oxford's Centre for Criminological Research, Liora Lazarus presents Prisoners and Human Rights in Comparative Perspective.
    Thursday, November 20 Friday, November 21
      At Berkeley's marvelous Kadish series, Arthur Applbaum (Professor of Ethics and Public Policy, Kennedy School of Government, Harvard University) presents Legitimacy in a Bastard Kingdom.
      At the University of North Carolina, Philosophy series, Richard Rorty presents Putnam, Pragmatism, and Parmenides.
      At Brooklyn Law School, The David G.Trager Public Policy Symposium is entitled Our New Federalism? National Authority and Local Autonomy in the War on Terror.
      At the University of Edinburgh, the Moral Epistemology Conference will be held today and Saturday. Speakers include: Walter Sinnott-Armstrong, Ralph Wedgwood, Michael Ridge, Nancy Sherman, Jonathan Dancy, and John Skorupski.
      For three pounds, you can see A C Grayling speak on Enlightenment and Counter-Enlightenment, Then and Now, at Conway Hall, Red Lion Square, London.
      David Papineau presents Cultural and Biological Evolution at the Royal Institute of Philosophy in London.
      At the University of Texas, Troy Duster (NYU), David Chambers (Michigan) and Eric Tang (CAAAV) present The Miner's Canary.
      At SUNY Buffalo, Makau Mutua (UB) presents Taming Leviathan.
      At the Australian National University, a conference entitled Intellectual Property & the Life Sciences: Agriculture, Health & Trade happens today.
    Saturday, November 22
      The Cybersecurity, Research and Disclosure Conference will be happening at Stanford's Center on Internet and Society today.

Saturday, November 15, 2003
More on the Senate's Duty to Give Timely Advice and Consent, or Can George Bush Call the Senate Into Executive Session at the White House?
    In a post on Friday, I tentatively argued for two propositions. First, I argued that the Senate has a constitutional obligation to give the President advice and consent in a timely fashion. I argued that this duty flows from an understanding of the constitutional text and from historical evidence, particularly the views of President Washington. Second, I argued that if the Senate fails to fulfill this duty, the President retains a long-dormant power to call the Senate into session as an Executive Council and to ask each Senator for advice and consent (or nonconsent). There have been some very thoughtful reactions to my suggestions, provoking some further thoughts.
    My good friend and colleague Michael Rappaport focused on my first argument, which flows from the fact that the Constitution uses the modal verb "shall" in the relevant clause: "[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States." Rappaport observes: "This textual argument seems to suggest that the President must nominate persons to all positions that are open, but historically this has never been the understanding. Presidents have decided not to fill vacant offices for various reasons, including saving money. Certainly, there is no constitutional infirmity with the President choosing to allow offices to remain unfilled." By way of response, two observations: (1) Rappaport's argument does lie easily with the constitutional text, and I suspect that Rappaport shares my deep commitment to honoring the text where that is possible; (2) this point is not essential to the core of my argument--which is that once a nomination has been made, the Constitution imposes a duty on the Senate to give advice and to either consent to the President's nomination or express its lack of consent. This is not to say that the Senate must act immediately, or that it may not deliberate thoughtfully in difficult cases. But it is to say that the Senate may not, consistent with the language of the Constitution, simply ignore the President's nominations. The power to ignore all nominations is tantamount to the power to eliminate the executive and judicial branches of government--just as the power to tax is the power to destroy. Surely, the most reasonable reading of the constitutional text is that the Senate has an obligation to give the President advice and consent in a reasonable period of time--with the end of the Senate's session operating as an outer limit on what is reasonable.
    Rappaport concedes that the power to deplete the Supreme Court would be troublesome, but replies:
      If the President did not have a duty to make nominations, then he could dissolve the Supreme Court by refusing to appoint the Justices. This is a clever example because the Constitution establishes and appears to require the existence of a Supreme Court, but again I do not think it works. It is possible that President Washington might have been constitutionally obligated to nominate justices to the Supreme Court in order to allow the Court to sit, but that hardly suggests that Presidents are required to fill judicial offices generally. Even if there were two vacancies on the Supreme Court, it could continue to operate and therefore it is quite possible that the President would not be required to make a nomination. Certainly, that there are, let us assume, 15 vacancies out of 150 circuit court judges, imposes no obligation on the President or the Senate. The circuit courts can continue to operate with these vacancies and the Constitution does not even require the existence of lower federal courts.
    Rappaport's point is a reasonable one, but I would like to advance two very tentative arguments by way of reply. First, Rappaport's argument seems to concede that there is a constitutional duty to fill judicial offices, but to qualify that duty by reference to the vacancy rate. This is a significant concession by itself, but it leads to a further point. Second, if there is such a duty, it seems odd that it would depend on the particular vacancy rate for particular courts. The President may refuse to nominate (or more relevantly, the Congress may refuse to give advice and consent) if there are seven Justices sitting. When does the duty kick in? When 5 Justices are left? Three? One? If our choice is between a general constitutional duty to give advice and consent and a particular duty that is triggered by some number of vacancies, then it would seem that the general duty is more consonant with the text of the Constitution and with common sense. Update: Rappaport's latest post makes it clear that he does not believe that a duty to appoint or confirm exists even if the result is dissolution of the judicial branch. This reinforces my prior argument (the power not to appoint and confirm is the power to destroy), but fully answers the argument that immediately precedes this update.
    Rappaport had another marvelous argument--one that uses the resources of legal realism. Update: Rappaport's reply makes it clear that he himself is not a realist. I still think that his argument "uses the resources of legal realism," but to the extent my phraseology was misleading, I accept the helpful clarification. And here is Rappaport's argument:
      Another argument against Solum's view is the similarity between a failure to vote on a nomination and a vote that refuses to confirm. Certainly, the Senate has no obligation to confirm nominees, even if that prevents the Supreme Court from having a quorum in order to sit. Yet, the refusal to vote operates in much the same manner: a refusal to vote denies confirmation (until such time as a vote is held and the Senate chooses to confirm). If the Constitution permits the Senate to vote no, it is not at all clear why it does not allow the Senate not to vote.
    As I understand it, the essence of Rappaport's argument is that the difference between an up-or-down vote, on the one hand, and stalling (e.g. a filibuster or bottling a nomination up in committee) is merely formal and therefore without constitutional significance. Let me begin my answer by observing that I do not accept this premise as a general matter. Formalities are of constitutional significance when the Constitution requires formal acts. In the case of judicial selection, the Constitution does require "advice and consent." Perhaps the question admits of a difference of opinion, but to my ears, those words, "advice and consent," when struck by the mallet of inquiry, peal in tones both formal and substantive. That is, when the Constitution requires that the Senate give "advice and consent," it seems most reasonable to read those words as requiring more than mere silence. Of course, a deconstructionist might argue that silence is advice and that failure to vote is the functional equivalent of a vote of failure. In my most realist moments, I can almost convince myself that this is so. But then my eyes drift again to the constitutional text, and there are the words, in black and white, advice and consent, and I find myself unable to sustain the conviction that the formalities are without constitutional significance.
    Moreover, the differences between hearings followed by a vote of no and Senatorial inaction are not merely formal. The differences are also substantive. Substantive? How? There are at least three substantive differences between mere inaction and a negative vote:
      The first is a difference of timing. If the Senate stalls and delays, then the President's action is in limbo and the office goes unfilled. This might seem a mere triviality were it not for the lessons of recent experience: the Senate may stall, not just for days, not just for weeks, not just for months, but literally for years.
      The second difference is a difference of message. From a negative vote, the President may plainly infer that the Senate advises against the nominee. But what should the President infer from parliamentary tactics of delay? Not that the Senate advises against the nominee--because often that is not the case. From such tactical exercises the President does not receive one of the two things that the Senate is constitutionally obligated to give. And what is that? Advice. The Senate is constitutionally obligated to both give both advice and consent. The Constitution uses the conjunction, "and," not the disjunction, "or." So the Senate must give "advice." Perhaps, one might become convinced that saying nothing is a form of advice, but this reading of the text does not seem to be the best or more reasonable reading--even if it might count as a "possible" reading.
      The third difference is a difference of transparency. Let me say right away, that the transparency point that I am about to make does not apply to the current filibusters--which are reasonably transparent. But when the Senate fails to act on a judicial nomination because of a blueslip or other parliamentary technique that prevents the nomination from coming to the floor, it is frequently unclear just who is responsible for the failure to give advice and consent. Sometimes Senatorial stalling on judicial nominations is opaque. But we have good reasons to favor a transparent process over an opaque process--for familiar reasons of democratic legitimacy.
    Finally, Rappaport argues against my most controversial suggestion--that the President has the power to call the Senate into executive session:
      While President Washington's view is plausible, it is certainly not compelled and there are strong arguments against it. First, the Constitution states that each house shall determine the rules of its proceedings and that strongly suggests that the Senate need not allow the President to require that they meet in the White House or that they meet when he says so. Indeed, it is not clear that the Constitution even allows Congress to delegate such power to the President. Second, President Washington's view has not been followed, if it ever was, in the last 200 years. It is hard to argue that it ought to be resurrected at this late date. Given Solum's strong views on judicial precedent, this should be an especially strong argument for him (even though the practices of the Senate are not judicial precedents but legislative ones).
    As to Rappaport's first point, it is, of course, correct that the Senate may determine its own rules, but from that fact, it does not follow that the Senate has no obligations with respect to the content of those rules. President Washington's letter suggests that the Senate is constitutionally obligated to come into executive session when and where the President requires. And this brings me to Rappaport's second point. I would suggest that the history actually supports my view of the President's dormant power to call the Senate into session at a place and time of the President's choosing. Not only did President Washington, who presided over the Convention in Philadelphia, articulate the view that the President has such a power. The Senate itself, for most of its history, has recognized that Power in the form of Rule XXIX, which has long provided: "When the Senate shall be convened by the President of the United States to any other place, the Presiding Officer of the Senate and the Senators shall attend at the place appointed, with the necessary officers of the Senate."
    One final observation about this point. There should not be, I think, a general principle of constitutional desuetude. Update: Rappaport makes it clear that he is not claiming that there is such a general principle in his latest post. Constitutional powers are meant for the ages; the Constitution contains many provisions that the framers and ratifiers surely hoped would never be invoked. The Constitution contemplates invasions and insurrections, wars and threats to the republican form of government. The powers granted against improbable occurrences should not be construed to disappear simply because the constitutional machinery succeeded for some dozens or hundreds of years in fending off such unlikely calamities. If the President was granted the power to call the Senate into executive session by the Constitution of 1789, then he has that power still. Moreover, I am yet to be convinced that the Constitution may be amended by such expediencies as "transformative appointments" or "structural accommodation." Failure to exercise a power that constitutional prudence would reserve for extraordinary cases does not constitute a precedent for the nonexistence of the power when the extraordinary cases do arise.
    All of this is quite tentative, and most of all, I should like to say that I learned enormously from Michael Rappaport's most instructive post. Read Rappaport's Post!
    And also see Matthew Yglesias and Paul Jaminet.
And Rappaport's latest post is here.

Legal Theory Bookworm This week, the Legal Theory Bookworm recommends Eric Posner's Law and Social Norms. Eric Posner's book addresses the question, "What is the role of law in a society in which order is maintained mostly through social norms, trust, and nonlegal sanctions?" Posner's answer to this question is developed in three parts. First, he develops a model of cooperation and the production of social norms. Second, he applies the model to a variety of legal contexts, including gratuitous promises, family law, criminal law, voting, racial discrimination, and commercial contracts. Third, he explores the normative implications of his theory, discussing distributive justice, commodification, and privacy--among other topics. This is a rich book, and it defies easy summary, but I think it is an essential work for anyone who intends to do applied legal theory. Posner and other pioneered the explicit exploration of the relationship between law and social norms, and their work has been extraordinarily fruitful. Here is a tiny sample of Posner's prose from early in the book:
    What motivates the norm entrepreneur? People earn returns when they contribute to shifts in mass behavior. Corporations earn money when consumption of their products becomes a symbol of cultural competence. That is why they invest so much in shifting people's beliefs about the kind of person who wears a certain pair of sneakers, or a blouse with a certain label on it, or a car that has a distinctive hood ornament. Politicians earn the loyalty of vast groups of people when they effect a shift in behavior that benefits these people. Journalists and academics receive all the benefits of fame when their pronouncements influence millions. But norm entrepreneurship is risky precisely because one breaks a norm by challenging it. Few people take this risk, and those who do either have tastes or values that lies on the extremes of the distribution, or else have immense talent and charisma, so people cannot afford to shun them. In politics, we observe people with immense talents but ordinary tastes, people with ordinary talents but extreme tastes, and people with both immense talents and extreme tastes. The first group consists of politicians, the second of martyrs, the third of leaders and heroes.
Highly recommended!

Download of the Week This week, the download of the week is Steve Heyman's Ideological Conflict and the First Amendment. Here is the abstract:
    According to the prevailing view, constitutional interpretation ideally should consist in the development and application of a single, unified set of principles. This Essay challenges this position in the context of free speech jurisprudence. As the constitutional debates of 1787-91 show, the First Amendment and the Bill of Rights did not reflect a single view, but instead were intended to reconcile conflicting views on the proper relationship between liberty and government. In order to obtain the broad support necessary for adoption, the Bill of Rights was deliberately drafted on the level of general principles that could command a consensus. When the time came to apply these principles to concrete situations, however, ideological differences were bound to reemerge. Thus, the First Amendment and the Bill of Rights have always been subject to competing interpretations rooted in differing political, social, and cultural views. It follows that constitutional interpretation is best understood not as monological but as dialectical: the meaning of the Constitution emerges from a struggle between opposing positions, as well as from an effort to reconcile these positions within a more comprehensive view. The Essay then applies this dialectical approach to the classic cultural conflict over free expression - the problem of pornography. After reviewing the ongoing debate between conservatives, liberals, and radical feminists, the Essay seeks to bring these apparently incommensurable perspectives together within a common framework. This function can best be performed by a comprehensive theory of rights - a theory that is broad enough to encompass not only the rights of individuals, but also the rights of communities (which are central to the conservative view) and the rights of groups (which are important to the feminist position). Applying this analysis, the Essay concludes that individuals should enjoy broad freedom to make and view sexually oriented materials. But this protection should not extend to material that invades the rights of others. In particular, violent pornography may be banned because it violates the rights of women as a group, especially their right to recognition as human beings. Violent pornography also infringes the rights of the community as a whole, by undermining the mutual recognition that constitutes the community. In addition, the society should have the right to exclude pornography from the public sphere, to shield children from such material, and to decline to subsidize such material. Contrary to the Supreme Court's traditional doctrine, however, the community should have no general power to ban material that it considers to be obscene, for such a power is inconsistent with the autonomy of individuals to determine the content of their own thought and expression. In these ways, the rights-based approach seeks to recognize and incorporate the core values of each position: the liberal focus on autonomy, the feminist demand for equality, and the conservative concern for community.
Download it while its hot!

Friday, November 14, 2003
Barnett on the Filibuster Conspirator Randy Barnett has an op/ed in the New York Sun on the filibuster. Here is an excerpt:
    The Constitution often speaks in general terms in passages that do not automatically apply themselves to a particular case. Within these general terms, there is much room for judicial choice and change. In applying these more general provisions, some politics or ideology will inevitably creep into judicial decisions. In these areas, who controls the presidency and the Senate makes a big difference. When controlled by the same party, we can expect nominees to move in the direction of that party’s politics where the Constitution allows some discretion. Indeed, in the long run, this is what keeps the lifetime tenured judiciary in touch with the American electorate, and helps justify judicial review of legislation. Given that all judicial nominations inevitably will be “political” to this degree, to prevent the downward spiral in which we are now locked, senators ought to vote to confirm candidates nominated by the other party whom they believe have the required intelligence and ability to do the job of judges, and whose judicial philosophy is to follow the dictates of the Constitution, even where it cuts against a nominee’s political inclinations. Those unwilling to do so lack “judicial virtue” and are unqualified. But more than this the opposing party cannot expect.
Very interesting. Read the whole thing!

Machine Guns and Cannabis Brett Thomas argues that United States v. Stewart (blogged here), holding that Congress lacks commerce-clause power to criminalize homemade machineguns, would not extend to homegrown medical cannabis. Here is his argument:
    One of the main prior cases this case has to work around is Wickard v. Filburn (1942), in which it was held that Congress had the power to restrict private ownership of wheat, even wheat which was grown on one's own land, as part of regulating interstate trade in wheat. While I'm not familiar with the original case, this decision (Stewart) makes no challenge to Wickard, and instead goes to great lengths to explain why this case is different:
      [B]y crafting his own guns and working out of his own home, Stewart functioned outside the commercial gun market. His activities obviously did not increase machinegun demand. Nor can we say that Stewart's homemade machineguns reduced overall demand. Unlike wheat, for example, which is a staple commodity that Filburn would probably have had to buy, had he not grown it himself, there is no reason to think Stewart would ever have bought a machinegun from a commercial source, had he been precluded by law from building one himself.
    Given a hypothetical homegrown marijuana case (especially a medical one), I don't think a plausible argument could be made that a hypothetical defendant wouldn't have simply purchased some marijuana rather than growing it. Marijuana seems a lot more clearly analogous to the Wickard wheat case than machinegun manufacture does.
But there is a crucial difference. Wickard involved wheat fed to farm animals as part of an "economic" activity, i.e. a for-proft farm. Lopez and Morrison have already established the general principle that the Wickard cumulative effect test does not apply to noneconomic activities (e.g. the possession of Gun in Lopez and the assault in Morrison). Consumption of homegrown cannabis for personal medical reasons is not an economic activity. Homegrown marijuana for intrastate sale would be within the commerce clause power under Lopez and Morrison. Homemade machineguns for intrastate sale would also be within that commerce power.
Thomas also argues that Congress has the power to prohibit the distribution of marijuana seeds. Clearly, the rationale of Wickard, as limited by Morrison and Lopez does apply to the sale of marijuana seeds. It is not so clear that it would extend to gifts of homegrown seeds. But the main point is the power to prohibit the distribution of seeds is not the same as the power to prohibit possession and use. And because the power is not the same, the statutory provisions under which defendants could constitutionally be prosecution (or enjoined) is not the same.
Update: More from Brett Thomas.

Is the filibuster of judicial nominees unconstitutional? And if it is, what can be done?
    Rick Hasen reports (via Roll Call):
      Senators Lindsey Graham and Saxby Chambliss "are filing a lawsuit against the Senate in an attempt to force the Supreme Court to overrule the use of a filibuster to block a presidentÂ’s judicial nominations."
    This lawsuit is going nowhere, because the courts should properly (and will) view the question as one for the Senate itself to resolve, and hence as nonjusticiable. But justiciability is one thing, and the merits are another. So, what about the merits? There is, I think, a rather strong case to be made that the Senate has a constitutional duty to give the President advice and consent. The relevant constitutional provision is Article 2, Section 2, Clauses 2 and 3:
      [The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
      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.
    So, the relevant phrase is "he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court." One key here is the word "shall," which unambiguously establishes a Presidential duty to appoint the officers specified. That a duty is involved is also reasonably inferable from the structure of the constitution; without such a duty, Presidents would have the power to dissolve the Supreme Court by refusing to appoint "Judges of the supreme Court." And if the President has a constitutional duty to appoint, then surely the Senate has a constitutional duty to give advice and consent.
    If there is a duty to give advice and consent, then is there a further duty to give such advice and consent in a timely fashion? This question all but answers itself. Surely the Senate cannot fulfill its duty to give the President advice and consent by delaying indefinitely. Rather, the most reasonable interpretation of the Senate's duty is that the Senate must give advice and consent within a reasonable time. What is the outer limit? That, of course, is a difficult question. The structure of the constitution does, however, suggest that the outer limit is the end of the Senate's session--once that limit is reached, the President's recess appointments power comes into effect.
    And what about a filibuster? The Senate's cloture rule is not mandated by the constitution; it is an internal rule of the Senate. May the Senate adopt rules that disable the Senate from carrying out a constitutional duty? Arguably not. The constitutional duty to give timely advice and consent arguably entails a duty to adopt rules of procedure that give reasonable assurance that the duty may be fulfilled. A rule that allows a minority of the Senate to delay confirmation of a nominee for judicial office indefinitely is arguably a rule of procedure that is inconsistent with the Senate's duty to give timely advice and consent.
    The notion that the Senate has a duty to give timely advice and consent is reinforced by George Washington's letter to the Senate Committee on Treaties and Nominations of 10 Aug. 1789. Here is what he wrote:
      The President has the "power by and with the advice and consent of the Senate, to make treaties and to appoint Officers." The Senate when these powers are exercised, is evidently a Council only to the President, however [necessary] its concurrence may be to his Acts. It seems incident to this relation between them, that not only the time but the place and manner of consultation should be with the President. It is probable that the place may vary. The indisposition or inclination of the President may require, that the Senate should be summoned to the President's House. Whenever the Government shall have buildings of its own, an executive Chamber will no doubt be provided, where the Senate will generally attend the President. It is not impossible that the place may be made to depend in some degree on the nature of the business. In the appointment to offices, the agency of the Senate is purely executive, and they may be summoned to the President. In treaties, the agency is perhaps as much of a legislative nature and the business may possibly be referred to their deliberations in their legislative chamber. The occasion for this distinction will be lessened, if not destroyed, when a chamber shall be appropriated for the joint business of the President and the Senate. The manner of consultation may also vary. The indisposition of the President may supersede the mere question of conveniency. The inclination or ideas of different Presidents may be different. The opinions both of President and Senators as to the proper manner may be changed by experience. In some kinds of business it may be found best for the President to make his propositions orally and in person, in others by written message. On some occasions it may be most convenient that the President should attend the deliberations and decisions on his propositions; on others that he should not; or that he should not attend the whole of the time. In other cases again, as in Treaties of a complicated nature, it may happen that he will send his propositions in writing and consult the Senate in person after time shall have been allowed for consideration. Many other varieties may be suggested as to the mode, by practice. If these remarks be just, it would seem not amiss, that the Senate should accommodate their rules to the uncertainty of the particular mode and place that may be preferred; providing for the reception of either oral [or] written propositions, and for giving their consent and advice in either the presence or absence of the President, leaving him free to use the mode and place that may be found most eligible and accordant with other business which may be before him at the time.
    Washington's understanding was that the timing of advice and consent was within the power of the President, because the Senate, when it acts in this capacity, is an "executive council," and indeed the advice and consent language is borrowed from language defining the role of the privy council in Great Britain. Of course, Washington did not press the point, and the Senate met in its own chamber when it gave advice and consent. But Washington's understanding is nonetheless instructive on the question at hand--whether the Senate has a duty to give the President advice and consent in a timely fashion.
    If the Senate fulfills that duty of its own accord, by giving the President timely advice and consent, then constitutional prudence would suggest that Presidents should not press the point--that they should allow the Senate to fulfill its duty in the manner of its choosing. But what if the Senate fails to fulfill its duty? What if the Senate allows months to pass without acting on a Presidential nomination?
    Here is one possibility. The Presidential power to call the Senate into session as an executive council, although dormant, has not been exterminated. (Update: Indeed, such a power seems to be explicitly recognized by Senate Rule XXIX, which provides, "When the Senate shall be convened by the President of the United States to any other place, the Presiding Officer of the Senate and the Senators shall attend at the place appointed, with the necessary officers of the Senate.") If the Senate will not fulfill its constitutional duty to give advice and consent in a timely fashion in a manner of its own choosing, then the President may exercise his power to call the Senate to the executive offices (the White House) and ask for advice and consent in a reasonable manner of his choosing. So the President might choose to ask each Senator, seriatim, for the Senator's advice with respect to a judicial nominee and after that advice is given, the President could then ask the Senator for her consent.
    But what if the Senators refuse to heed the President's call, what then? One possibility is that the President would compel the Senators to attend, an unattractive option. Another possibility is that if a quorum of the Senate does not appear a duly notice executive session, the Senate is then in "recess" for the purposes of the recess appointments clause and the President may fill the vacancy.
    So the picture looks like this. The Senate has a constitutional duty to give the President timely advice and consent. If the Senate is willing to fulfill that duty, then constitutional prudence suggests that the President should allow the Senate to do so in a manner of its own choosing. But if the Senate refuses to fulfill the duty, then the President may exercise his long-dormant power to call the Senate into session as an executive council. If the Senate appears, then the President may seek and the Senators must give, advice and consent (or nonconsent as the case may be). If the Senate does not appear, then the Senate is in recess and the President may fill the vacancy will a recess appointment that expires at the end of the Senate's next session.
    What do you thinK?

Update: Comments from Matthew Yglesias, Paul Jaminet and Michael Rappaport (whose post is absolutely essential reading).
Further update: For my reply to Rappaport, scroll up or click here.

Roundtable on Law and Religion at the University of San Diego At the University of San Diego's Institute for Law and Philosophy, the Roundtable on Religion. The participants include Stanley Fish, (Illinois, Chicago) and Michael Perry (Emory).

Dual Enforcement of Constitutional Norms at William & Mary William and Mary School of Law is hosting a conference entitled Dual Enforcement of Constitutional Norms on this Friday, November 14. Chief Justice Rehnquist will be the keynote speaker; other participants include Dan Rodriguez (University of San Diego).

Rubin on Compliance at Buffalo At SUNY Buffalo, Ed Rubin (Penn) presents Rethinking Politics and Law for the Administrative State: From Legitimacy to Compliance.

Primo on Budget Legislation at Temple At George Mason's Philosophy, Politics, and Economics series, David Primo (Politics, University of Rochester) presents Open vs. Closed Rules in Budget Legislation: A Result and an Application.

Greenfield on Internal Affairs at UCLA At UCLA, Kent Greenfield (Boston College School of Law) presents The Undemocratic Centerpiece of Corporate Law: The Internal Affairs Doctrine".

Conference at William and Mary Today: Dual Enforcement of Constitutional Norms
    William and Mary School of Law is hosting a conference entitled Dual Enforcement of Constitutional Norms on this Friday, November 14.
    Are state and federal constitutional law separate and distinct systems of law, each with its own doctrines, traditions, and dominant norms? If not, how are they related? This conference will bring leading academics together with distinguished federal and state judges to address the question of whether and to what extent state and federal constitutional law may profitably be understood as complementary features of a shared project of elaborating and enforcing constitutional norms.
    The Honorable William H. Rehnquist, Chief Justice of the United States, will deliver the keynote address. This conference is co-sponsored by the National Center for State Courts and the Conference of Chief Justices.
      The Honorable Shirley S. Abrahamson, Chief Justice, Wisconsin Supreme Court Lynn A. Baker, University of Texas James A. Gardner, State University of New York at Buffalo The Honorable Leroy R. Hassell, Sr., Chief Justice, Supreme Court of Virginia The Honorable Hans A. Linde, Willamette University College of Law, Oregon Supreme Court (ret.) The Honorable Ellen Ash Peters, University of Connecticut, Connecticut Supreme Court (ret.) Robert J. Pushaw, Jr., Pepperdine University The Honorable William H. Rehnquist, Chief Justice of the United States Daniel B. Rodriguez, University of San Diego Jim Rossi Florida State University Lawrence G. Sager, University of Texas Robert Schapiro, Emory University The Honorable Randall T. Shepard, Chief Justice, Indiana Supreme Court Michael E. Solimine, University of Cincinnati Robert F. Williams, Rutgers University - Camden The Honorable Roger L. Wollman, United States Court of Appeals for the Eighth Circuit

Christopher on the Prosecutor's Dilemma Russell Christopher (University of Tulsa College of Law) has posted The Prosecutor's Dilemma: Bargains and Punishments (Fordham Law Review, Vol. 72, October 2003) on SSRN. Here is the abstract:
    Unlike consequentialists, retributivists condemn bargain justice - plea bargains and immunity deals - as violating a number of conditions of just punishment. While the difficulties prosecutor-initiated bargaining poses for prisoners in a consequentialist system of criminal justice is well known under the rubric of the prisoner's dilemma, this Article introduces the difficulties prisoner-initiated bargaining poses for prosecutors in a retributivist system of criminal justice. Applying four central principles of retributivism to a prisoner-initiated proposal offering inculpatory testimony on the prisoner's confederates in exchange for immunity demonstrates that each principle paradoxically requires, and is violated by, both acceptance and nonacceptance of the offer. Retributivism's conflicting principles generate a moral dilemma - the Prosecutor's Dilemma - in which no matter what a prosecutor does in response to the offer, retributivism's principles will be violated. According to the means preferred by retributivists themselves to resolve conflicts among principles, the Prosecutor's Dilemma is to be resolved by not accepting the offer and punishing neither the prisoner nor her confederates. Though perhaps theoretically sound, the resolution is a practical disaster. It allows prisoners to self-immunize merely by tendering a dilemmatic immunity offer. While the resolution perhaps reduces retributivism to the point of absurdity by disabling retributivism from justifying punishment of either the prisoner or her confederates, without the resolution of the Prosecutor's Dilemma retributivism remains internally inconsistent. As a result, the Prosecutor's Dilemma supplies an indirect defense of bargain justice.
This was a lot of fun to read. Here is the hypo that the paper revolves around:
    In the Prosecutor’s Dilemma, suppose only one member of a group of three culpable wrongdoers who have committed a serious crime is apprehended by the authorities. All three deserve the same degree of punishment because each committed the same wrongdoing with the same culpability. The one culpable wrongdoer in custody (the “One”) offers to inculpate the other two (the “Two”) in exchange for immunity from prosecution and punishment. The Two cannot be apprehended (or convicted and punished) without the One’s inculpatory information and testimony. If the offer is accepted, two culpable wrongdoers will be convicted and receive their just deserts, but one will not. If the offer is not accepted, at most one culpable wrongdoer will be convicted and receive her just deserts, but at least two will not.
You can see where the argument will go! But I am not sure that I agree with the article's conclusion. Isn't there are straightforward retributivist case for punishing the "One" under these circumstances? From a deontological perspective, isn't the fact that the two will escape punishment as a consequence of the act of the One not determinative of the duty of the prosecutor? Download it while it's hot!

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:

Berkowitz on Habeas Roger Berkowitz (Benjamin Cardozo School of Law) has posted Error-Centricity, Habeas Corpus and The Rule of Law as The Law of Rulings on SSRN. Here is the abstract:
    This article begins with an historical observation, that until recently error wasnot considered a problem in criminal law. Today, however, an elaborate system of appellatecourts and extraordinary means of post-conviction relief have been adopted to root out errorfrom legal verdicts. This article asks what law's relatively newfound concern with errorreveals about the changing nature of truth and justice in modern society. By asking howerror comes to be understood within habeas corpus jurisprudence, the article explores themodern legal understanding of truth and justice as objectivity and fairness.

Thursday, November 13, 2003
Big News on the Commerce Clause: United States v. Stewart The new Commerce Clause jurisprudence (Lopez and Morrison) comes home to roost in the Ninth Circuit's pathbreaking decision today that holds that the federal government may not ban a homemade machine gun. Here is a link to the PDF file. (Via Volokh.) Here are the two key paragraphs of the opinion:
    We start by considering the first and fourth prongs of the Morrison test, as we have deemed them the most important. See McCoy, 323 F.3d at 1119. The first prong is not satisfied here. Possession of a machinegun is not, without more, economic in nature. Just like the statute struck down in Lopez, section 922(o) “is a criminal statute that by its terms has nothing to do with ‘commerce’ or any sort of economic enterprise, however broadly one might define those terms.” Lopez, 514 U.S at 561. Unlike in Wickard v. Filburn, 317 U.S. 111 (1942), where growing wheat in one’s backyard could be seen as a means of saving money that would otherwise have been spent in the open market, a homemade machinegun may be part of a gun collection or may be crafted as a hobby. Or it may be used for illegal purposes. Whatever its intended use, without some evidence that it will be sold or transferred—and there is none here—its relationship to interstate commerce is highly attenuated.
    Moreover, the regulation itself does not have an economic purpose: whereas the statute in Wickard was enacted primarily to control the market price of wheat, id. at 115, there is no evidence that section 922(o) was enacted to regulate commercial aspects of the machinegun business. More likely, section 922(o) was intended to keep machineguns out of the hands of criminals—an admirable goal, but not a commercial one.
And one more important paragraph from later in the opinion:
    This case fails Morrison’s other requirements as well.
    As we stated earlier, section 922(o) contains no jurisdictional element anchoring the prohibited activity to interstate commerce. Congress also failed to make any legislative findings when it enacted the statute. While neither Lopez nor Morrison requires Congress to make findings every time it passes a law under its Commerce Clause power, the Supreme Court did note the importance of findings where—as here—such findings would “enable [a court] to evaluate the legislative judgment that the activity in question substantially affected interstate commerce, even though no such substantial effect was visible to the naked eye.” Lopez, 514 U.S. at 563.
The implications are staggering. Here is one: Homegrown marijuana would seem directly analagous to homemade machineguns. And in fact, the Ninth Circuit has a homegrown medical marijuana case pending now. Wow!
For more on the implications for medical marijuana, scroll up or click here.

Why Did Tom Harkin Watch The Bachelor Last Night?
    Tom Harkin remarked yesterday that he would be watching The Bachelor, ignoring the Republic protest against the Democratic filibuster of a few Bush nominees. Why was Harkin relaxing while the Republican caucus was up at the wee hours of the night? Because the 24/7 tactic for breaking a filibuster is doomed to failure. The filibustering party need have only one Senator or the floor to maintain the filibuster; the party opposing the filibuster must maintain a quorum, which currently means the entire Republican caucus. So why are the Republicans engaging in a symbolic protest, a sort of Senatorial sit in?
    Bill Frist was not watching The Bachelor last night--he was at the sit in. Yesterday, Frist had an op/ed in the Washington Times. Here is a taste:
      Over the past year, a Senate minority has used the filibuster for the first time in history to deny a bipartisan majority of senators their right to vote on judicial nominees. While majorities have delayed judges in the past, through the majority's delegation to the Judiciary Committee, votes on judges have never before been blocked by a minority.
      Of course, the debate is more than about mere Senate procedure. The minority is amending the people's Constitution without the people's assent. The reason for this is now well-known. Senate liberals have sought, with increasing intensity, to politicize not just the confirmation process but the courts themselves.
      In pursuing this course, liberal Democrats are threatening the legitimacy of America's courts. That legitimacy comes from much more than black robes and a high bench. It comes from the people's belief that judges will apply the law or the Constitution without regard to personal politics.
      Rather than seeking to determine the judiciousness of a nominee and whether a nominee will be able to rule without bias, liberal Democrats are out to guarantee that our judges are, in fact, biased against some and in favor of others. In the America that would result, citizens will have to worry about the personal politics of the judge to whom they come for justice.
    Of course, some Democrats will make virtually the same charge in reply, arguing that they all they want is qualified judges who will follow the law and arguing that the Republican nominees are political ideologues who will vote a political agenda and disregard the law. But not all Democrats have taken this line. Senator Charles Schumer has been remarkably frank in offering a legal realist (dare we say Critical Legal Studies?) analysis of the judicial selection process. Consider the following report from the Harvard Crimson:
      On Friday, Schumer echoed and intensified the message of a controversial June 2001 New York Times Op-ed, where he argued that the Senate should consider appointees’ ideology as part of “its responsibility to advise and consent.”
      Schumer said he considers three criteria when looking at a nominee: legal excellence, ideology and diversity. With respect to ideology, he added that judges should be moderate and aim to interpret rather than make law.
    There is, you will notice, an interesting tension within Schumer's remarks. On the one hand, he believes that political ideology is the key to the judicial selection process. When Schumer spoke in the Spring at hearings on the Republican proposal to limit filibusters of judicial nominees, he was even more frank about this--arguing that judicial decisions are driven by political views and not by the rules laid down. On the other hand, Schumer is afraid of being too frank about his commitment to the ideological selection of judges, mouthing the formalist line that judges should "interpret rather than make law."
    Neither Schumer nor the Republicans can have it both ways. Of course, you can try to maintain that when decisions go your way, judges are just following the law, but when they go your opponent's way, the decisions must be the result of politics. But that is simply deception and hypocrisy. In my opinion, Schumer's less public remarks reveal his true position. Charles Schumer sees the judicial confirmation process as a struggle for political power. Many on the Republican side of the aisle agree with his diagnosis. But my guess is that many Democrats and Republicans do not agree with the proposition that judges should vote their political preferences. Many on both sides of the aisle still believe that judges should follow the rules laid down and that politicized judging does real damage to the rule of law. Unfortunately, those who advocate the rule of law are finding it more and more difficult to defend this position against the charge that it is pie in the sky. More and more, sophisticated voices maintain that the downward spiral of politicization is now irreversible. Indeed, it appears that both sides now understand the judicial selection process as a prisoner's dilemma. If the Democrats support the rule of law and select formalist judges, then the Republicans can go political, gaining an edge in the third branch. And vice versa, if the Republicans go formalist, then the Democrats can go political. What each party fears most is playing the fool, allowing the other side unilaterally to stack the bench with politicized judges. The outcome of the prisoner's dilemma has been an escalating battle over the judicial selection process, and we have now reached the stage where Democrats are filibustering multiple nominees and the Republicans are talking about going nuclear (using parliamentary maneuvers to eliminate the filibuster option on judicial nominees) or mass recess appointments.
    But where does a downward spiral of politicization end? What happens when we complete the conceptual reorientation and see judging as a mere extension of ordinary politics? Nothing good. The bottom of a downward spiral of politicization is a thoroughly politicized judiciary. We know what that looks like. It exists in odd corners of the United States, where lawyers know that winning--even in a run-of-the-mill tort case--is almost entirely a function of how much you have contributed to the local political machine. A thouroughly politicized judiciary is the norm in much of the third world, and the result is that the transparency required for well-functioning markets cannot be achieved--at enormous costs in human welfare. In a thoroughly politicized judiciary, every case is a patronage opportunity or a chance to score political points.
    Tom Harkin watched The Bachelor last night. But did he sleep peacefully, his dreams untroubled by the damage that both parties have done to the rule of law? I hope not.
Update: More on Judicial Selection, from Will Baude, John Rosenberg, Stuart Buck, Josh Chafetz, Randy Barnett, Brett Marston, the Curmudgeonly Clerk (guest blogging at Crescat Sententia), Matthew Yglesias, Rick Hasen, Tung Yin and Stephen Bainbridge (most recently here, but also here and here). And for comic relief, try Anthony Rickey & Roger Payne.

Fleming on Originalism at Yale At Yale's Legal Theory Workshop, James Fleming (Fordham) presents Are We All Originalists Now? I Hope Not!. This should be good! Fleming is taking on what he calls,
    "'the originalist premise,' the assumption that the best conception of constitutional interpretation simply has to be a form of originalism: old or new, narrow or broad, concrete or abstract, if only we could articulate the right version of originalism.

Okin on Multiculturalism & Feminism at NYU At NYU's Colloquium in Legal, Political and Social Philosophy, Professor Susan Moller Okin (Radcliffe Institute for Advanced Study & Stanford University, Department of Political Science) presents Multiculturalism and Feminism: No Simple Question, No Simple Answers.

Brooks on Covenants & Conventions at Michigan At the University of Michigan's Law and Economic series, Richard Brooks (Yale) presents Covenants & Conventions.

Jaworska on Moral Psychology at Princeton At Princeton's Political Philosophy Colloquium, Agnieszka Jaworska (Stanford University) presents Moral Psychology in Practice: Lessons from Alzheimer's Disease and the "Terrible Twos".

Teson on Global Justice and Free Trade at FSU At Florida State University, Fernando Teson (FSU) presents Global Justice and Free Trade.

Meurer on Patent Claim Scope at BU At Boston University, Michael Meurer presents Invention, Refinement and Patent Claim Scope: A New Perspective on the Doctrine of Equivalents.

American Society for Legal History Today 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.

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

Gilson and Kraakman Twenty Years Later Ronald J. Gilson and Reinier Kraakman (Stanford Law School and Harvard Law School) have posted The Mechanisms of Market Efficiency Twenty Years Later: The Hindsight Bias on SSRN. Here is the abstract:
    Twenty years ago we published a paper, "The Mechanisms of Market Efficiency," that sought to describe the institutional underpinnings of price formation in the securities market. Since that time, financial economics has moved forward on many fronts. The sub-discipline of behavioral finance has struggled to bring yet more descriptive realism to the study of financial markets. Two important questions are (1) how much has this new discipline changed our understanding of the efficiency and nature of the institutional mechanisms that set price in financial markets; and (2) how far does this discipline carry novel implications for the regulation of financial markets or corporate behavior more generally? We argue that, despite its heavy reliance on the psychology of cognitive bias, the principal contribution of behavioral finance is to enrich our understanding of market institutions rather than to present us with a fundamentally new paradigm of market behavior. In particular, the cognitive limitations of individual investors or noise traders are likely to matter to pricing behavior to the extent that they interact with - and are not offset by - the arbitrage mechanism in the market. The most important contribution of behavioral finance lies in sharpening our understanding of the limitations of the arbitrage mechanism. Even when cognitive bias does not have clear implications for securities prices, however, it may have important implications for policy. These implications are unlikely to arise in the area of corporate takeovers, as some have claimed, but they do arise in areas akin to consumer protection, as where cognitive bias might lead unsophisticated investors to construct dangerously undiversified retirement portfolios.

Setear on International Evolution John K. Setear (University of Virginia School of Law) has posted Taking Both Biology and International Law Seriously: Evolutionary Biology, Neo-Realist Theories of International Relations, and the Promise(s) of International Law on SSRN. Here is the abstract:
    Borrowing from theories of evolutionary biology and natural selection, neo-realist theorists of international relations assert that states in the international system must either conduct rational, egoistic foreign policies or perish. This paper argues that these neo-realist arguments are misguided. Both logic and empirical evidence undermines the neo-realist claim that low rates of state "death" show high selection pressure in the international system. Furthermore, neo-realist arguments are inconsistent with theories of evolutionary biology concerned with small populations ("genetic drift"), with extinctions concentrated in space and time ("puncutated equilbrium"), and with the fittest mode of reproduction (sexual vs. asexual) in complex and interdependent environments. The shortcomings of neo-realist theories of international relations leave plenty of scope for international law as one method among many viable methods of international cooperation.
Interesting, sounds like Setear must be right. Just off the cuff, it does strike me as quite a stretch to argue that evolutionary biology has much to teach us about international relations. In evolutionary biology, there are well understood microfoundations (DNA + natural selection) for evolutionary explanations. In international relations, there may be "state death," but there is no "evolutionary mechanism," i.e. not mechansim by favorable adaptions are passed on by parent states to child states. Enough kibbitzing, download the paper!

Baird and Rasmussen on the Conceptual Foundations of Corporate Reorganizations Douglas G. Baird and Robert K. Rasmussen (University of Chicago Law School and Vanderbilt University School of Law) have posted Control Rights, Priority Rights, and the Conceptual Foundations of Corporate Reorganizations (published in Virginia Law Review, Vol. 87, pp. 921-959, September 2001) on SSRN. Here is the abstract:
    Modern Chapter 11 places control decisions in the hands of the bankruptcy judge and insists on rigid adherence to absolute priority in all cases. In both respects, modern Chapter 11 departs sharply from the equity receivership. The equity receivership governed the reorganization of railroads and other large firms in the 19th Century, and it was fashioned in a way that strongly suggests that it vindicated the creditors' bargain. This paper suggests that, when a speedy auction of the firm is not possible, these twin principles of the equity receivership continue to make sense. When the managers and shareholders cannot be easily separated, control rights should lie in the hands of someone whose loyalties are aligned with the creditors, but the reorganization itself should not affect the value of the managers' equity interest. To use the language of the equity receivership, the "relative priority" of their interests should be preserved. The focus of modern scholarship on the absolute priority rule neglects the question of who controls the assets during the reorganization. It also fails to take account of the role that existing manager/shareholders will play in firms that possess going concern value and cannot be resold in the market. In this environment, the absolute priority rule triggers costly renegotiations that may yield no off-setting advantages over the relative priority rule.

Chin on the Little-Known Repeal of Section 2 of the 14th Amendment Gabriel J. Chin (University of Arizona - James E. Rogers College of Law) has posted Reconstruction and the Right to Vote: Did the Fifteenth Amendment Repeal Section 2 of the Fourteenth? (Georgetown Law Journal, Forthcoming) on SSRN. Here is the abstract:
    Designed to promote African American suffrage, the second sentence of Section 2 of the Fourteenth Amendment reduces congressional representation of states disenfranchising male citizens over 21 who have not been convicted of crimes. During Jim Crow, many former Confederate states denied the vote to African Americans, yet none ever lost a seat in Congress under Section 2. This paper proposes that one reason Section 2 was never used is because it was repealed by the Fifteenth Amendment. The fundamental inconsistency between the provisions is that Section 2 recognized state authority to deny the vote to African Americans while the Fifteenth Amendment removed that power. As a matter of remedy, Section 2 reduced congressional representation and allowed the discrimination to continue, while the Fifteenth Amendment employed the quite different remedy of actually allowing African Americans to cast ballots. Section 2 cannot be an alternative remedy to the Fifteenth Amendment; a court finding unconstitutional disenfranchisement has no discretion to allow it to continue if it reduces the offending state's basis of representation in Congress. Section 2 cannot offer a concurrent remedy; enfranchisement plus reduction of the basis of representation would reward the discriminated-against group with a diluted vote. Section 2 cannot be recast as a provisional remedy, because Congress has power under the Fourteenth and Fifteenth Amendments to regulate, enjoin and invalidate elections in ways beyond Section 2, without Section 2's built-in limitations, exceptions and restrictions. In sum, the Fifteenth Amendment covers more elections and persons than Section 2 of the Fourteenth, and offers stronger remedies. That the Fifteenth Amendment does everything Section 2 could do and more both demonstrates that Section 2 was impliedly repealed and explains why it was never invoked. (Section 2 could survive if it applied to non-racial restrictions on the franchise, but the Supreme Court cases rejecting this construction are correct. One reason to read Section 2 narrowly in spite of its broad language: The Constitution is traditionally discreet about race; indeed, the apportionment provision of the original Constitution replaced by Section 2 referred to slaves as "all other persons."). Although never enforced, Section 2 is tremendously important to modern voting rights law. Section 2's penalty is inapplicable to disenfranchisement based on commission of "rebellion or other crime." In Richardson v. Ramirez in 1974, the Supreme Court declined to apply strict scrutiny under the Equal Protection Clause of Section 1. The Court did not use Section 2 simply as evidence of the views of the states and Congress; this would have been insufficient because strict scrutiny had invalidated almost all state voting restrictions, including ones widely accepted when the Fourteenth Amendment was passed. Instead, the Court held that Section 2 textually authorized felon disenfranchisement, obviating the possibility of considering its validity under Section 1. This paper proposes that Richardson should be reexamined, because it rests on a provision no longer in force.

Wednesday, November 12, 2003
More on Recess Appointments Randy Barnett has an impressive post on the Conspiracy. Stephen Bainbridge analogizes the current standoff to a game of chicken. Pejman Yousefzadeh also has an excellent post. My post post from earlier today can be found here.
Bainbridge argues that the Senate Democratic filibuster is heading at high speed towards the Republican 30 hour minimarathon. Who will swerve?
    How do you win a chicken game? If I am one of the drivers, I need to convince the other drive that I am not going to swerve. In his book The Strategy of Conflict, Thomas Schelling suggests a precommitment strategy: i.e., "the power through binding oneself." In order to convince the other driver that I will not swerve, I need to use a precommitment device. What then do I do? The classic answer is that I make a big deal out of visibly throwing my steering wheel out the window. If I'm right that the chicken game is a useful model for the nomination impasse, the task (for others with more expertise in con law and senate procedures than I) is to figure out the equivalent of throwing the steering wheel out the window. I don't know whether recess appointments is the answer, but I'm reasonably sure this lame 30 hour marathon wouldn't make Potsie Weber swerve, let alone the Fonz.
Bainbridge is right. Not even 30 days of filibuster would cause the Democrats to back off the filibuster. How about massive use of the recess appointments power? Maybe. But here is a problem. Recess appointments of intellectually able conservatives and libertarians would certainly bother Senate Democrats, but it will also bother the Democratic base, and it is not clear that the Democrats will view this as a net negative--especially if their chances of ousting Bush in 2004 look decent (or better than decent). Suppose, then, that the Democrats do not swerve. What then? Well, there is no equivalent of a head on collision. Filibusters combined with recess appointments will not lead to some kind of melt down. Rather, one would expect that the Democrats would search for a retaliatory move. And what might that be? Well, it is obvious, isn't it? The Democrats will filibuster every Republican nominee. And what is the natural coutermove? More recess appointments. But now we are on the verge of a constitutional crisis and in the middle of an election year. That would be exciting indeed! Neither side may relish this scenario; so then we have come round back to Bainbridge's question: Who will blink first? Any guesses?

Goelzhauser is Back . . . with his own blog, at the old address. He continues to blog at En Banc--which, by the way, is a marvelous blog.

Two By Heyman I always enjoy and learn from the work of Steve Heyman, who has two new papers up on SSRN today:
    Spheres of Autonomy: Reforming the Content Neutrality Doctrine in First Amendment Jurisprudence (William & Mary Bill of Rights Journal, Vol. 10, p. 647, 2002):
      In recent decades, the doctrine of content neutrality has become the cornerstone of First Amendment jurisprudence. In the leading case of Police Department v. Mosley (1972), the Supreme Court declared that speech may "never" be regulated because of its content, for that would be "the essence of . . . censorship." If this view were taken literally, however, it would disable government from regulating speech even when necessary to prevent serious injury to individuals or society. In response to this concern, the Court has carved out several exceptions to the neutrality doctrine. Yet the Justices have never succeeded in explaining the rationale for these exceptions, or in squaring them with the general principle of content neutrality. As a result, the Court’s First Amendment opinions often seem arbitrary and unpersuasive. Far from illuminating free speech problems, the doctrine of content neutrality, when taken as the central concern of the First Amendment, only makes them more obscure. The time has come to reconsider the content neutrality doctrine. In this Essay, I argue that content neutrality is an important element of free speech jurisprudence, but that it should not be regarded as "the first principle of the First Amendment." Instead, it should be understood within a broader normative framework. The neutrality doctrine is rooted in an underlying conception of autonomy. When individuals act within the scope of their own autonomy, government may not intrude into this realm by regulating the content of thought or expression. Nor may government interfere with the collective autonomy of citizens by imposing unjustified restrictions on public debate. Some acts of speech, however, should be regarded as invading the autonomy or rights of others. In such cases, the rationale for content neutrality no longer holds; in regulating speech, the government is not invading the autonomy of speakers, listeners, or the community, but instead is protecting the rightful freedom of others. After developing this view, the Essay explores the shortcomings of content neutrality when it is treated as the central principle of the First Amendment, divorced from the normative framework that is developed here. Focusing on judicial efforts to deal with hate speech in R.A.V. v. City of St. Paul and with pornography in American Booksellers Association v. Hudnut, I argue that the courts’ increasing reliance on the content discrimination doctrine to resolve difficult First Amendment problems only obscures the crucial substantive issues at stake, and leads to hypertechnical decisions that are inaccessible to the public. This approach not only gives short shrift to other values affected by speech, it also fails to persuasively articulate and defend the values that underlie the First Amendment itself. Finally, the Essay discusses how the theory and doctrine of content neutrality should be reformed in order to avoid these difficulties while preserving its legitimate role in First Amendment jurisprudence.
    Ideological Conflict and the First Amendment:
      According to the prevailing view, constitutional interpretation ideally should consist in the development and application of a single, unified set of principles. This Essay challenges this position in the context of free speech jurisprudence. As the constitutional debates of 1787-91 show, the First Amendment and the Bill of Rights did not reflect a single view, but instead were intended to reconcile conflicting views on the proper relationship between liberty and government. In order to obtain the broad support necessary for adoption, the Bill of Rights was deliberately drafted on the level of general principles that could command a consensus. When the time came to apply these principles to concrete situations, however, ideological differences were bound to reemerge. Thus, the First Amendment and the Bill of Rights have always been subject to competing interpretations rooted in differing political, social, and cultural views. It follows that constitutional interpretation is best understood not as monological but as dialectical: the meaning of the Constitution emerges from a struggle between opposing positions, as well as from an effort to reconcile these positions within a more comprehensive view. The Essay then applies this dialectical approach to the classic cultural conflict over free expression - the problem of pornography. After reviewing the ongoing debate between conservatives, liberals, and radical feminists, the Essay seeks to bring these apparently incommensurable perspectives together within a common framework. This function can best be performed by a comprehensive theory of rights - a theory that is broad enough to encompass not only the rights of individuals, but also the rights of communities (which are central to the conservative view) and the rights of groups (which are important to the feminist position). Applying this analysis, the Essay concludes that individuals should enjoy broad freedom to make and view sexually oriented materials. But this protection should not extend to material that invades the rights of others. In particular, violent pornography may be banned because it violates the rights of women as a group, especially their right to recognition as human beings. Violent pornography also infringes the rights of the community as a whole, by undermining the mutual recognition that constitutes the community. In addition, the society should have the right to exclude pornography from the public sphere, to shield children from such material, and to decline to subsidize such material. Contrary to the Supreme Court's traditional doctrine, however, the community should have no general power to ban material that it considers to be obscene, for such a power is inconsistent with the autonomy of individuals to determine the content of their own thought and expression. In these ways, the rights-based approach seeks to recognize and incorporate the core values of each position: the liberal focus on autonomy, the feminist demand for equality, and the conservative concern for community.
Download them while thier hot!

Recess Appointment for Pickering? Or Bork?? Courtesy of Rick Hasen (Election Law Blog), the Hill is reporting that Republican Senators are urging Bush to use the recess appointments power to circumvent Democratic filibusters of Bush's nominees to the United States Courts of Appeals:
    Some key Republican senators want President Bush to to overcome Democratic filibusters by appointing conservative judges to the federal circuit courts when the Senate recesses. While the White House is so far taking a cautious approach toward the idea, the president is believed to be open to this approach. While federal judges are named for life, a recess appointment would expire at the end of 2004 unless the Senate acted on the stalled nominations. If Bush went along, his action could be viewed as an escalation in the partisan battle over judicial nominees that has already bogged down the Senate this week and endangers the prospect of a pre-Thanksgiving adjournment.
Interestingly, the Hill also reports that Bush offered Miguel Estrada a recess appointment, which was turned down. Most interesting of all, however, is this tidbit from the story:
    An alternative to appointing nominees such as Pickering, Bush could appoint ultra-conservative alternates to fill vacancies on the bench. Such substitutes might make the blocked nominees seem less controversial by comparison. “You could also fill the positions with interim appointments who could step aside [when blocked nominees clear the Senate.]” said Kyl, adding that the president could make a very good case for that option. “The most confrontational suggestion is don’t fill it with the guys you nominated fill it with the even more outspoken people such as [once-rejected U.S . Supreme Court nominee Robert] Bork,” said a GOP aide. “That way Democrats have incentive to approve the people you’ve nominated. That has an appeal. That has a high sense of drama.”
This suggestion originated with Conspirator Randy Barnett in a National Review Online piece entitled Benching Bork. I hesitate to repeat the refrain, but once again, we are in a downward spiral of politicization of the judicial selection process. Both Democrats and Republicans seem to believe that their own moves are justifiable retaliations in response to escalatory moves by their opponent. These asymmetrical perceptions have led to a situation where the Democrats have taken the unprecedented step of an avowedly ideological filibuster of multiple nominees, and the Republicans are seriously floating the idea of making ideological recess appointments in retaliation. Although there has always been an ideological dimension to judicial selection, especially with respect to hot-button issues and the Supreme Court, we seem to be on the brink of making ideology the driving force of every judicial nomination. Realistically, of course, ideology has always played some role at every level of the federal bench. But politicization is not an all or nothing phenomenon. The effect of a thoroughly politicized judicial selection process will surely be a more politicized judiciary. When judges are selected for their disposition to vote along ideological lines, it seems quite likely that they will in fact be more ideological. As blatantly ideological judges are added to the bench, those who are already sitting will find it more and more difficult to decide cases on the basis of the rules laid down. "Why should I be restrained," judges may reason, "when by colleagues are getting their way by voting their ideology?" Where does this all lead? You might be interested in my post entitled Going Nuclear: The Constitutionality of Recess Appointments to Article III Courts.

Barry at University College, London At University College, London's School of Public Policy: Colloquium in Legal and Social Philosophy, Brian Barry (Columbia) presents Can Social Democracy Survive Cultural Diversity?

Marks on Universal Jurisdiction Jonathan H. Marks (University of North Carolina at Chapel Hill - School of Law) has posted Mending the Web: Universal Jurisdiction, Humanitarian Intervention and the Abrogation of Immunity by the Security Council (Columbia Journal of Transnational Law , Vol. 42, January 2004) on SSRN. Here is the abstract:
    The sporadic but increasing exercise of universal jurisdiction by national criminal courts has inevitably created a tension between individual criminal responsibility for serious international crimes and claims of sovereign immunity. In Democratic Republic of Congo v Belgium, the International Court of Justice had the opportunity of resolving that tension. However, the Court's articulation of immunity for serving foreign ministers creates possibilities for abuse where ministers rely on their official positions to perpetrate serious international crimes and to insulate themselves from prosecution. This article reexamines the rationales for and objections to universal jurisdiction, and argues that where public officials perpetrate serious international crimes, the arguments for upholding immunity are weak. In such cases, the arguments for universal criminal jurisdiction as a less invasive form of humanitarian intervention may be compelling. The article contends that the Security Council should withdraw immunity in such cases and that although this would be novel, there is both legal authority and historical precedent to support such action. Although it will be a challenge for the Council to withdraw immunity on a principled basis, this challenge should not be insurmountable at least where the immunity of an official of a permanent member of the Council is not involved.

Schaefer on National History and Constitutionalism Michael Schaefer (Royal Netherlands Academy of Arts and Sciences) has posted Memory in the Construction of Constitutions (Ratio Juris, Vol. 15, pp. 403-417, 2002) on SSRN. Here is the abstract:
    In connection with the contemporary debates in political philosophy between liberal, republican and proceduralist–deliberative views of democratic politics, I deal with the question of how the different concepts in these debates can be related to the particular national history, memories and expectations of a polity. I shall concentrate on one German example of the relationship between constitutionalism and democracy, in order to show that political philosophy must pay more attention to the different shared practices and understandings within each liberal society.

Tuesday, November 11, 2003
Wallace Reviews Joyce on the Myth of Morality On the wonderful Notre Dame Philosophical Reviews, R. Jay Wallace (University of California, Berkeley) reviews Richard Joyce's The Myth of Morality, Cambridge, 2002, 264pp, $60.00 (hbk), ISBN 0521808065. Here is a taste:
    This book is an impressive and stimulating treatment of central issues in metaethics. It is extremely well-written, combining clarity and precision with an individual style that is engaging and very often witty. It presents a general commentary on the contemporary metaethical debate, on the way to defending a position in that debate—moral fictionalism—that is distinctive and worthy of reaching a wider audience. The book is full of arguments, presenting a wealth of stimulating ideas, objections, and suggestions on all the topics addressed. A significant virtue of the book is Joyce’s success at clarifying the menu of fundamental options in the metaethical discussion. He does an excellent job throughout of defining the issues under dispute, stating precisely the differences between the available positions, and locating the most significant considerations for and against those positions. The book could easily serve as a clear introduction to the main issues in the contemporary metaethical debate for those who are new to the subject. Joyce’s favored position combines two main parts. There is, first, an error theory of moral discourse, to the effect that such discourse is typically used in an assertoric manner, but that moral assertions by and large fail to state truths (9). And there is, second, the distinctively fictionalist claim that it may be sensible and useful to continue to deploy moral discourse even after we have come to see that it is fundamentally flawed.

More on IP Theory and the Capacious Water Well Eugene Volokh and I had an exchange on IP theory some time back (Volokh--Solum--Volokh--Solum), which has now has provoked a reaction form Cyberbug. Surf on over.

Prakash on Federal Abortion Legislation and the Commerce Clause Over at The Right Coast, Sai Prakash has some illuminating remarks about the partial-birth abortion legislation and Congress's power under the Commerce Clause.

Welcome to the Blogosphere . . . to Bronson Yake whose new blog is Right to the Point.

Welcome to the Blogosphere . . . to Keith Burgess-Jackson's new AnalPhilosopher. Analytic?

Conference Blogging: Leiter Raises An Important Question, Part One Brian Leiter has posted an extremely negative reaction to my blogging (which begins here and ends here) from the Rawls and the Law Conference at Fordham University over the weekend. Please read his very thoughtful remarks, which conclude: "I would urge Larry Solum, who otherwise provides a valuable service, to stop blogging conferences." On the other side of the fence, I recieved dozens of postive comments via email and in the blogosphere. I note this comment from Micah Schwartzman on Crooked Timber:
    Solum has completed his remarkable coverage of the Rawls conference. Weighing in at more than twelve thousand words in two days, I think it’s the most impressive blogging performance I’ve seen since the early war coverage. And for those of us who couldn’t be at the conference, we couldn’t have asked for a better, or more knowledgeable, correspondent. Kudos, and many thanks, to Solum.
Leiter objects that my comments may have given a misleading impression of the content (especially of two of the papers, one from a colleague of Leiter's). In both cases, my remarks were negative and critical. (As readers of Legal Theory Blog know, I rarely make negative comments about any work.) I can certainly understand that reading a negative remark about one's talk on the Internet would be difficult for the individuals involved. I am sure that Leiter himself has experienced his share of indignant reactions, both to the opinions that he expresses on his blog and to the very sharp comments that he makes about individuals and departments in the Philosophical Gourmet and in his academic quality rankings of law schools. It is an interesting fact about academic life that one is usually spared direct confrontations with one's critics. After you give a talk, you hear from your friends and from those who liked what you said, but not from those who found your talk unilluminating or unhelpful. It is understandable and not unexpected that critical remarks in the blogosphere would generate controversy.
So this leads me to the larger question: should there be public comment (in the blogosphere) on scholarly presentations at a public conference? I would take it that no one would maintain that such comments are out of bounds in private, at the event or subsequently (including in forms that take on a semi-public character, e.g. forwardable emails). The questions is: is it fair to speakers and to readers (my readers, in this case) to give real time reactions to talks as they occur. On the up side, of course, reporting of an academic event provides a venue for bringing attention to the ideas that are presented and discussed. On the down side, however, any comments that go beyond mere reportage will, of necessity, present only one side of the story. So, for example, my blogging revealed that I liked some papers better than others, that I thought some ideas were brilliant and others weak, and that some of the talks were well done (as acts of communication) while others were not. Is there a risk that blogging from a conference will cement a one-sided view, doing a disservice to those who were involved and to readers who may take the report as the final word rather than as one blogger's opinion?
Because academic blogging is relatively new, this question deserves careful reflection. Let me share some preliminary thoughts with you. I would also like to invite feedback, both from other bloggers on their blogs and from readers in the form of email ( In random order, here are some of my initial reactions to the issues that Leiter raises:
  • Real time blogging is necessarily incomplete and opinionated. Blogging a talk in real time does not mean production of a transcript. One reports some of the points that are made and reacts to a few of those. The goal is not to provide a substitute for attending the talk or reading the paper, but simply to convey a lively sense of (and reaction to) some of the main themes.
  • Opinions are only opinions. I have a variety of opinions about legal theory--what's good, what's not, what's interesting, what's dull. But when I express an opinion, I would hope that my readers do not take me as expressing a dogmatic truth that admits of no disagreement. Others are free to disagree. When I blogged the Fordham conference, I tried to differentiate my opinions from reportage by using blue to set the opinions off, and I think this was quite clear to my readers. (If I am wrong about this, let me know!)
  • More discussion, not less is the better response. Opinions about matters academic differ. Anyone who has been around the business for a substantial period of time, knows that any given talk may generate both high praise and derision. Orthodoxy of opinion is not good for a vibrant intellectual life, and neither is silence. Rather, the academy is best served by robust discussion, debate, and disagreement.
  • The blogosphere is new, and the shock will wear off. I think that my extensive blogging from the Rawls and the Law conference was in some ways a new thing. People have blogged talks before, but I went out of my way to try to blog about every panel and to give a lively sense of what was going on.
  • Conference blogging should be responsible. So, for example, I might have made negative comments about several speakers or questions made by more junior scholars without big reputations. This would, I think, have been unfair and irresponsible. Is it also irresponsible to make a negative comment about a major figure? I am not sure. It may be that academic discourse is best served, if critical comments are reserved for written work and oral presentations are given immunity from public critical comment. Before blogging, it was already difficult for many scholars to put themselves out in public and deliver new work to a live audience. Will the possibility of instant reaction in the blogosphere inhibit scholars from advancing untested ideas or force them to be overly careful in their mode of presentation? Perhaps, blogospheric criticism and the traditional academic collegiality do not mix. Should it be a maxim of academic blogging that one should only say nice things? Perhaps. Certainly Leiter’s comments suggest that as a pragmatic matter the rule should be: if you can’t saying anything nice, don’t say anything at all.
At this stage in the game, I think it is best if I refrain from a point by point refutation of the specific remarks that are included in comments that Leiter forwards from two of the participants in the conference. Both of the individuals involved are well-established and respected scholars, and I do not think any good purpose would be served by an extended discussion of the merits of their talks or their defenses of those merits. (Perhaps, I am wrong about this, and I am willing to engage in an extended debate if that will be helpful in some way. For now, I would simply say that I do not believe that my blogging can fairly be characterized as misrepresentation.) I urge you to read their remarks, which Brian Leiter has posted on his blog.
Please let me know what you think! There will be more on this topic in the next few days.
Brian Leiter has more to say here in an attempt to defend his earlier remarks.

Another Twenty Questions Over at Another Rice Grade, you will find 20 Questions (with answers) for Clint Bolick (Vice President and Co-Founder of the Institute for Justice).

Fuchs on Selective Conscientious Objection at Oxford At Oxford's Jurisprudence Discussion Group, Amir Fuchs presents The Fallacies of Objections to Selective Conscientious Objection.

Chin on Software Antitrust Analysis at Oxford At Oxford's faculty of law, Andrew Chin presents Antitrust Analysis in Software Product Markets.

Dessemontet on IP Arbitration at Oxford At Oxford's IP Seminar, François Dessemontet presents Arbitration and Intellectual Property Law.

Barr-Gill at George Mason At George Mason, Oren Barr-Gill is presenting today.

Penney on Crime in the Digital Age Steven Penney (University of New Brunswick - Faculty of Law) has posted Crime, Copyright, & the Digital Age (WHAT IS A CRIME? CRIMINAL CONDUCT IN CONTEMPORARY SOCIETY, Law Commission of Canada eds., UBC Press, 2004) on SSRN. Here is the abstract:
    This essay, which will appear as a chapter in a collection entitled What Is a Crime? Criminal Conduct in Contemporary Society, edited by the Law Commission of Canada (forthcoming 2004, UBC Press), describes and evaluates efforts to criminalize digital copyright infringement in the United States in Canada. Part II relates the history of criminal copyright legislation and enforcement in the two nations. That history reveals a longstanding legislative and administrative reluctance to impose criminal punishments on copyright infringers. It also shows, however, that in recent decades legislatures have become more willing, in the face of new technological threats and industry pressure, to expand the scope and severity of criminal copyright offences. This has culminated in two novel responses to the threat of digitization: the criminalization of non-commercial infringement and the prohibition (enforced by criminal as well as civil sanctions) of technologies enabling the circumvention of protections against unauthorized copying. Part III explores the impact of digitization on the economics of copyright enforcement. It describes the weakening of civil enforcement mechanisms wrought by digitization and canvasses the normative debate surrounding the appropriate scope of copyright protection for digital works. I note the extent of copyright protection on the ground depends heavily on the availability and efficacy of remedies and argue that criminal law principles should play a prominent role in determining the extent to which those remedies are criminalized. Part IV attempts to articulate limiting principles for the application of criminal penalties to copyright infringement. Section A canvasses moral theories of criminalization, including approaches grounded on analogy, consensus, and harm. While these theories generate useful insights, especially on the interaction between law and shared social norms, none provides a compelling argument for or against the criminalization of copyright infringement. Section B turns to economic analysis. The standard economic model of crime predicts that optimal deterrence can be achieved by adjusting enforcement and punishment levels. Econometric and socio-legal research reveals, however, that under certain conditions deterrence may not be achievable. I argue that this is likely to be the case for certain types of copyright crime, including non-commercial online file sharing and technological circumvention. This failure of deterrence results from strategic interactions often associated with digital copyright infringement, including low visibility, widespread disobedience, risk aversion, substitution effects, and most importantly, disjunction between criminal punishments and social norms. Under these conditions, criminalization is likely to be ineffective and harmful. Part V concludes, recommending restraint regarding the expansion of criminal copyright law.

Liu on the Copyright Consumer Joseph P. Liu (Boston College - Law School) has posted Copyright Law's Theory of the Consumer (Boston College Law Review, Vol. 44, 2003) on SSRN. Here is the abstract:
    Copyright law has a rather well-developed theory of the author, but it has no similarly well-developed conception of the consumer. This exploratory Article is an attempt to begin piecing together a coherent image of the copyright consumer. The author argues that copyright law currently conceives of consumers in one of two ways, either as passive consumers of copyrighted works or as active authors in their own right. This binary conception of the consumer, however, is incomplete, as it neglects important and complex consumer interests in autonomy, communication, and creative self-expression. By examining these additional interests, it is possible to begin constructing a richer and more complex image of the copyright consumer. This image, in turn, can help shed light on some of the current debates over the proper shape and scope of copyright law.

Monday, November 10, 2003
Muller on Racial Profiling Is That Legal's Eric L. Muller (University of North Carolina at Chapel Hill - School of Law) has posted Inference or Impact? Racial Profiling and the Internment's True Legacy (Ohio State Journal of Criminal Law, Vol. 1, No. 1) on SSRN. Here is the abstract:
    In the debate about racial and ethnic profiling in the wake of the September 11 terrorist attacks, critics of the administration's policies have frequently argued that the government has made the same fundamental error as the Roosevelt administration made when it forced 110,000 Japanese Americans into camps during World War II. This is a powerful rhetorical strategy, but is it an accurate one? What was the "fundamental error" of the Japanese American internment? In this article, Professor Muller argues that the fundamental error of the internment was not the inference of suspicion that the government drew from the fact of Japanese ancestry, but the enormity of the deprivations that the government imposed on the basis of that inference. Seen this way, the internment recedes as a rhetorical device, which allows for a more careful and subtle debate about whether the socio-legal landscape has changed enough in the past 60 years to prevent a civil liberties tragedy like the internment from recurring. Professor Muller concludes that that landscape has not changed enough to ensure that national-origin-conscious enforcement strategies will not leap from minor to massive intrusions.
Muller's work is always good!

Weekend Wrap Up On Saturday, the Legal Theory Bookworm and the Download of the Week made their regular appearances. On Sunday, the Legal Theroy Lexicon explored the idea of Public Reason and the Legal Theory Calendar previewed the talks, conferences, and workshops for this week. Also over the weekend, there was extensive coverage of the Rawls and the Law conference at Fordham. Coverage begins here and ends here.

Abizadeh on Nationalism and Democratic Legitimacy at Chicago At the University of Chicago's Political TheoryWorkshop, Arash Abizadeh (McGill University) presents On the Demos and its Kin: Nationalisms and Democratic Legitimacy.

Cole on Terrorist Guilt by Association at Loyola Marymout At Loyola Marymount, Loyola Law School, David D. Cole (Georgetown University Law Center) presents Guilt by Association and Terrorist Financing. Update: Ted Seto writes that the paper actually delivered was "Judging the Next Emergency: Judicial Review and Individual Rights in Times of Crisis," and not the paper reported on Loyola's website.

Okin on Rawls & Feminism at Chicago At the University of Chicago's Legal Philosophy series, Susan Okin (Political Science, Stanford University) presents Rawls and his Feminist Critics: Debating Justice and Gender.

Sander on Affirmative Action in Legal Eduction at UCLA At UCLA, Rick Sander presents A Systematic Analysis of Affirmative Action in American Legal Education.

Bohnet on Investing in Trust at Columbia At Columbia's law and economic series, Professor Iris Bohnet (Harvard University, Kennedy School of Government) presents Is Trust a Bad Investment?, authored with nava Ashraf and Nikita Piankov.

Crommelin on National Security & Constitutionalism Michael Crommelin (University of Melbourne - Faculty of Law) has posted Constitutional Challenges Posed by National Security: An Australian Story on SSRN. Here is the abstract:
    The "war against terror" presents significant constitutional challenges. These challenges are not new. They were present 52 years ago, in one of Australia's most controversial constitutional cases: the Communist Party case. This paper places the Communist Party case in the context of its time, when international tensions were high: the Cold War was at a critical stage, and Australian troops were engaged in hostilities on the Korean Peninsula. The Australian Parliament - with enormous popular support - enacted legislation to dissolve the Australian Government Party and to impose sanctions upon any "communist" regarded as likely to engage in activities prejudicial to the security and defence of Australia. The High Court of Australia upheld a challenge to the constitutional validity of this legislation. The Australian Constitution contains no Bill of Rights, as such. The Court reached its conclusion by curbing the legislative authority of the Commonwealth Parliament. The paper considers several constitutional issues highlighted by the Communist Party case: the scope of Commonwealth legislative powers, the scope of Commonwealth executive power, legislative control of the executive branch of government, the significance of judicial review in the Australian constitutional framework, and the requirements for formal amendment of the Australian constitution.

Caudill & LaRue on Daubert David Caudill and Lewis LaRue (Washington and Lee University - School of Law and Washington and Lee University - School of Law) have posted Why Judges Applying the Daubert Trilogy Need to Know About the Social, Institutional and Rhetorical - and Not Just the Methodological - Aspects of Science (Boston College Law Review, Vol. 45, p. 1, 2003) on SSRN. Here is the abstract:
    In response to the claim that many judges are deficient in their understanding of scientific methodology, we identify in recent cases (i) a pragmatic perspective on the part of federal appellate judges when they reverse trial judges who tend to idealize science (i.e., who do not appreciate the local and practical goals and limitations of science), and (ii) an educational model of judicial gatekeeping that results in reversal of trial judges who defer to the social authority of science (i.e., who mistake authority for reliability). Next, we observe that courts (in the cases we analyze) are not interested in pragmatically constructing legal science, but rather attempt to ensure that science itself, conceived pragmatically (i.e., without idealizing science), is appropriated in law. We conclude that trial judges who fail to appreciate the social, institutional, and rhetorical aspects of science tend to reject reliable - albeit pragmatic - science, to welcome unreliable - albeit authoritative - science, and thereby to create a body of legal science that is out of sync with mainstream science.

Sunday, November 09, 2003
Legal Theory Lexicon: Public Reason
    Introduction How should citizens in a modern pluralist democracy debate and discuss public affairs? What kinds of reasons are appropriate in the context of judicial opinions, legislative debate, or administrative decisionmaking? There is wide agreement that the government should not censor public debate about politics, at least not without very good reason. But when it comes to a related question of political morality - "To what ideal should citizens aspire in political debate?" - the issue is cloudy. For example, some have argued that religious reason should be excluded from public debate; others argue for the exclusion of statements which degrade people on the basis of their religion, race or ethnicity. Still others contend that in public debate, an ideal of political morality should mirror the freedom of expression: all viewpoints should contend in a marketplace of ideas. An ideal of public reason can provide guidance on these issues. This post provides a very short introduction to the idea of public reason--with a special emphasis on the role of that idea in the work of John Rawls.
    Historical Perspective Where does the idea of public reason come from? Contemporary scholarship sometimes assumes that the notion of public reason was invented out of whole cloth by Rawls, but in fact, it has a long philosophical history. For example, the phrase "public reason" is found in Thomas Hobbes' Leviathan. The section of Leviathan in which this passage appears addresses the question, whose reason should govern the question of whether a purported miracle has occurred?
      For in these times, I do not know one man, that ever saw any such wondrous work, done by the charm, or at the word, or prayer of a man, that a man endued but with a mediocrity of reason, would think supernaturall: and the question is no more, whether what we see done, be a Miracle; whether the Miracle we hear, or read of, were a reall work, and not the act of a tongue, or pen; but in plain terms, whether the report be true, or a lye. In which question we are not every one, to make our own private Reason, or Conscience, but the Publique Reason , that is, the reason of God's Supreme Lieutenant, Judge; and indeed we have made him Judge already, if wee have given him a Soveraign power, to doe all that is necessary for our peace and defence. A private man has alwaies the liberty, (because thought is free,) to beleeve, or not beleeve in his heart, those acts that have been given out for miracles, according as he shall see, what benefit can accrew by mens belief, to those that pretend, or countenance them, and thereby conjecture whether they be Miracles, or Lies. But when it comes to confession of that faith, the Private Reason must submit to the Publique ; that is to say, to God's Lieutenant.
    In this passage, Hobbes uses the phrase "public reason" to refer to the reason or judgment of the sovereign.
    A second use of the phrase "public reason" is found in Rousseau's Discourse on Political Economy:
      In effect, though nature's voice is the best advice a good father could listen to in the fulfillment of his duty, for the magistrate it is merely a false guide which works constantly to divert him from his duties and which sooner or later leads to his downfall or to that of the state, unless he is restrained by the most sublime virtue. The only precaution necessary to the father of a family is that he protect himself from depravity and prevent his natural inclinations from becoming corrupt, whereas it is these very inclinations that corrupt the magistrate. To act properly, the former need only consult his heart; the latter becomes a traitor as soon as he listens to his. Even his own reason ought to be suspect to him, and the only rule he should follow is the public reason , which is the law. Thus nature has made a multitude of good fathers of families, but it is doubtful that, since the beginning of the world, human wisdom has ever produced ten men capable of governing their peers.
    Rousseau's use of the phrase "public reason" is quite different than Hobbes'. Public reason is contrasted to the reason of private individuals. The latter sort of reason is self-interested; the former sort is concerned with the common good. This suggests a connection between Rousseau's idea of public reason and his notion of the general will. The general will (like public reason) is concerned with the good of all; whereas, the individual will (like private reason) is concerned with the good of the individual.
    Another early use of the phrase "public reason" is found in Thomas Jefferson's Second Inaugural Address:
      [I]t is proper that you should understand what I deem the essential principles of our government, and consequently those which ought to shape its administration . . . . [They include] the diffusion of information and the arraignment of all abuses at the bar of public reasons
    Jefferson's notion of public reason seems connected to an ideal of democratic government. Information should be widely diffused so that government actions may be judged at the bar of public reason - which in this case seems to be the collective reason of the citizens of a democratic society. In this view, the quality or efficacy of public reason is connected to the freedom of speech and press.
    In What is Enlightenment, Kant introduces the idea of public reason as an answer to a question that might be phrased, "What restrictions on freedom of public discourse will facilitate public enlightenment?" Kant replies:
      The public use of man's reason must always be free, and it alone can bring about enlightenment among men; the private use of reason may quite often be very narrowly restricted, however, without undue hinderance to the progress of enlightenment. But by the public use of one's own reason I mean that use anyone may make of it as a man of learning addressing the entire reading public . What I term the private use of reason is that which a person may make of it in a particular civil post or office with which he is entrusted.
    As Kant uses the phrase, "public reason" is defined in terms of the audience to which reasons are given. Public reason is addressed to the entire public. Public reason should be free if the public is to become enlightened - that is, if citizens are to rely on their own reason without the guidance of another. Notice Kant's use of the phrase is, in a sense, diametrically opposed to Hobbes'. For Hobbes, public reason is reason bound by the judgment of the sovereign; for Kant, public reason is precisely that reason which is free from such constraint.
    Here is the point of the history: the idea of public reason is contested, with different theorists offering different conceptions public reason. I am about to give you Rawls's ideas about public reason, but it is very important to realize that Rawls's theory is just one of many, and that new theories of public reason are likely to emerge in the years ahead.
    Rawls and Public Reason In an early formulation, Rawls explained what he has called the "idea of free public reason":
      [G]reat values fall under the idea of free public reason, and are expressed in the guidelines for public inquiry and in the steps taken to secure that such inquiry is free and public, as well as informed and reasonable. These values include not only the appropriate use of the fundamental concepts of judgment, inference, and evidence, but also the virtues of reasonableness and fair-mindedness as shown in the adherence to the criteria and procedures of common sense knowledge, and to the methods and conclusion of science when not controversial, as well as respect for the precepts governing reasonable political discussion.
    Although this discussion contains the core of the Rawls' position, a few additional points deserve separate discussion:
      First, Rawls understands public reason as the reason of a political society. A society's reason is its "way of formulating its plans, of putting its ends in an order of priority and of making its decisions accordingly." Public reason contrasts with the "nonpublic reasons of churches and of many other associations in civil society." Both public and nonpublic reason share features that are essential to reason itself, such as simple rules of inference and evidence. Public reasons, however, are limited to premises and modes of reasoning that can appeal to the public at large. Rawls argues that these include "presently accepted general beliefs and forms of reasoning found in common sense, and the methods of science when these are not controversial." By contrast, the nonpublic reason of a church might include premises about the authority of sacred texts and modes of reasoning that appeal to the interpretive authority of particular persons.
      Second, the limits imposed by Rawls' ideal of public reason do not apply to all actions by the state or even to all coercive uses of state power. Rather, his ideal is limited to what he calls "the constitutional essentials" and "questions of basic justice." Thus, the scope of the freedom of speech and qualifications for the franchise would be subject to the Rawlsian ideal, but the details of tax legislation and the regulation of pollution control would not.
      Third, Rawls' ideal of public reason applies to citizens and public officials when they engage in political advocacy in a public forum; it also governs the decisions that officials make and the votes that citizens cast in elections. The ideal does not apply to personal reflection and deliberation about political questions; by implication it could not apply to such reflection or deliberation about questions that are not political in nature.
    With these features in mind, we can offer a summary of the Rawlsian ideal of public reason; this ideal has three main features: (1) The ideal of public reason limits the use of reason to (a) the general features of all reason, such as rules of inference and evidence, and (b) generally shared beliefs, common- sense reasoning, and the noncontroversial methods of science. (2) The ideal applies to deliberation and discussion concerning the basic structure and the constitutional essentials. (3) The ideal applies (a) to both citizens and public officials when they engage in public political debate, (b) to citizens when they vote, and (c) to public officials when they engage in official action - so long as the debate, vote or action concerns the subjects specified in (2). With Rawls' view in mind, we proceed to two preliminary subjects: first, the role of the idea of public reason in the regulation of public discourse and, second, the ways in which a particular ideal of public reason might be justified.
    Public Reason and Law How is the idea of public reason relevant to legal theory? One answer to this question might begin with Rawls's observation that judicial reasoning, for example the reasoning of the Supreme Court, exemplifies public reason. It would be unusual to see a Supreme Court justice rely on a particular religion or on a deep philosophical view about the meaning of life or the ultimate nature of the good. There are exceptions, however. One of the most infamous Supreme Court opinions in the contemporary period is Chief Justice Burger's concurring opinion in Bowers v. Hardwick, the case that was recently overruled in Lawrence v. Texas. Burger argued that criminalization of homosexual conduct was constitutionally permissible, because the prohibition on such conduct was rooted in Judeo-Christian morality. Arguably this argument exceeded the bounds of public reason, because the United States is a pluralist society in which there are many citizens outside of the Judeo-Christian tradition, including, for example, Buddhists, adherents of Native American religions, and nonbelievers.
    One of the interesting features of the idea of public reason is that it provides an argument against what we might call going deep in legal theory. By going deep, I mean making arguments that rely on deep philosophical premises, about ultimate values on the one hand or metaethics and moral psychology on the other. So, for example, it might be argued that utilitarianism (or welfare economics) is an inappropriate source of legal arguments, when the argument relies on a deep utilitarian premises, such as the notion that only utility (e.g. hedonic value or preference satisfaction) is valuable. That premise, it might be argued, goes beyond public reason.
    The idea of public reason is deeply controversial and the subject of heated debate, but the connections between public reason and law have only recently begun to be explored in depth. For an example of a recent discussion of these issues, take a look at my post on the public reason session at Fordham's recent "Rawls and the Law" conference--here.

Legal Theory Calendar
    Monday, November 10
      At the University of Chicago's Political TheoryWorkshop, Arash Abizadeh (McGill University) presents On the Demos and its Kin: Nationalisms and Democratic Legitimacy.
      At Loyola Marymount, Loyola Law School, David D. Cole (Georgetown University Law Center) presents Guilt by Association and Terrorist Financing.
      At the University of Chicago's Legal Philosophy series, Susan Okin (Political Science, Stanford University) presents Rawls and his Feminist Critics: Debating Justice and Gender.
      At UCLA, Rick Sander presents A Systematic Analysis of Affirmative Action in American Legal Education.
      At Columbia's law and economic series, Professor Iris Bohnet (Harvard University, Kennedy School of Government) presents Is Trust a Bad Investment?, authored with nava Ashraf and Nikita Piankov.
    Tuesday, November 11
      At Oxford's Jurisprudence Discussion Group, Amir Fuchs presents The Fallacies of Objections to Selective Conscientious Objection.
      At Oxford's faculty of law, Andrew Chin presents Antitrust Analysis in Software Product Markets.
      At Oxford's IP Seminar, François Dessemontet presents Arbitration and Intellectual Property Law.
      At George Mason, Oren Barr-Gill is presenting today.
    Wednesday, November 12
      At University College, London's School of Public Policy: Colloquium in Legal and Social Philosophy, Brian Barry (Columbia) Can Social Democracy Survive Cultural Diversity?
      At Oxford, Guy Goodwin-Gill presents the Annual Harrell-Bond Lecture, Refugees and Their Human Rights.
    Thursday, November 13 Friday, November 14
      At the University of San Diego's Institute for Law and Philosophy, the Roundtable on Religion. The participants include Stanley Fish, (Illinois, Chicago), Kent Greenawalt (Columbia University School of Law), and Jeremy Waldron (Columbia University School of Law).
      Update: William and Mary School of Law is hosting a conference entitled Dual Enforcement of Constitutional Norms on this Friday, November 14. Chief Justice Rehnquist will be the keynote speaker.
      At SUNY Buffalo, Ed Rubin (Penn) presents Rethinking Politics and Law for the Administrative State: From Legitimacy to Compliance.
      At George Mason's Philosophy, Politics, and Economics series, David Primo (Politics, University of Rochester) presents Open vs. Closed Rules in Budget Legislation: A Result and an Application.
      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.
      At UCLA, Kent Greenfield (Boston College School of Law) presents The Undemocratic Centerpiece of Corporate Law: The Internal Affairs Doctrine".

Saturday, November 08, 2003
Blogging from Rawls and the Law, Part 12: Thank you! Rawls and the Law was a really terrific event, with a remarkable share of truly fine papers and a good deal of productive and interesting discussion. I want to express my thanks to Fordham Law School for supporting this event, and especially to Jim Fleming, who organized it. I know from experience how much work an event like this requires: Jim did an amazing job.
The twelve posts in this series span over two days. This is the last post in the series. The Fordham Law Review will publish a very big, fat issue based on the conference paers. I will certainly purchase a copy for my bookshelf!

Rawls and the Law, Part 11: Public Reason Revisited
    They have saved, if not the best, then at least my favorite topic for last: public reason.
    Samuel Freeman
      Freeman is first. He begins with some objections to Rawls’s conception of public reasons: (1) public reason is incomplete, and (2) that public reason, because it brackets truth, may be influenced by ideas that are false; (3) the objection that using the Supreme Court as the exemplar of public reason undermines democracy. But first Freeman simply lays out Rawls’s view of public reason—reading at top speed! Public reasons are reasons that are addressed to others in their capacity as free and equal citizens. Rawls developed his idea of public reason to meet the problem that even in a well-ordered society, there will be disagreement about premises and standards of argument that are relevant to the justification of principles and institutions of justice.
      Freeman says that the role of public reason is to justify the constitutional essentials, but that raises the question: “Is public reason up to this task?” So take abortion: How can we justify the constitutional treatment of abortion without going beyond public reason? Freeman rehearses Rawls’s argument that political values can give a political answer to the question whether there should (or should not) be a right to abortion. Freeman adds that in Roe, the Supreme Court did, in fact, duck the metaphysical question, and instead relied on the concept of legal not moral personhood. By analogy, for Rawls, the answer would lie in the political conception of the person. But what if some reasonable citizens think abortion is murder? Freeman quotes Rawls, “Public reason is addressed to citizen as citizens.” And then Freeman quotes Rawls, reciprocity is reciprocity among citizens qua free and equal citizens. It is not required that everyone be convinced by public reason. So, for example, Quakers cannot accept the politically reasonable conclusion that war is sometimes justified. This does not make them unreasonable, but it does make their stand on war “politically unreasonable.” Which views are reasonable comprehensive views is a different question than the question as to what the content of public reason is.
      Now Freeman moves to item number two, that public reason, because it brackets truth, may be influenced by ideas that are false—an objection associated with Joseph Raz. Freeman points out that Rawls simply does not hold the view that the content of public reason is determined by the content of comprehensive doctrines.
      Freeman was great. I wished he had a lot more time.
    Dennis Thompson
      Thompson’s role is to comment on Freeman’s paper. Public reason is not very popular with the public. “Refraining from telling the whole truth,” seems more a vice than a virtue. So Rawls uses legal analogies, “exclusionary rules, etc.,” to show that it is not unreasonable to refrain from the whole truth. Thompson expands this notion, to a general point about “preclusionary reasons.” Like other preclusionary practices, public reason must be justified. There are three conditions (of what?), Thompson says: (1) the decisions with which public reasons are concerned are binding; political power is coercive. Public reason should constrain public institutions, public officials and (controversially) majorities more than others. (2) Public reasons functions in a specific institutional context. Rawls and Freeman treat public reason as a “free floating idea.” This, says Thompson, is why public campaign financing and minimal prerequisites for deliberative democracy are prerequisites for public reason. Sam would keep dissent from public reason out of the public forum. The public forum should make room for questions about which there is “public disagreement.” (3) Reasons should be precluded only to the extent that doing so is necessary to sustain the practice of public reasons. Thompson argues that the “constitutional essentials” may not be easy to agree upon. In addition, none of the grounds of public reason seem to do the job So Thompson would extend public reason to matters beyond the constitutional essentials: taxation, property, etc. Thompson was excellent.
    Abner Greene
      Greene begins by summarizing his views of the religion clauses. Religious reference is different, because it posits an extrahuman source of belief. For religious people, what is special about religion is the extrahuman source of authority. So law should not be based on religious arguments. But then, those who wish to rely on religious reasons may be muted, and so, exit (or rather exit proxies such as exemptions) must be offered to religious persons.
      Now Greene has three objections to Rawls:
        (1) Greene argues that Rawls improperly excludes nonreligious comprehensive doctrines from public reason.
        (2) Greene argues that the exclusion of religious reasons for legislation undermines the legitimacy of law for citizens whose reasons have been excluded. So, we should relax the bindingness of the law for those persons.
        (3) Greene argues that exclusion of comprehensive doctrines that do not themselves support such exclusion discriminates against them as compared to the exclusion of comprehensive doctrines that do support their own exclusion. Greene argues that compensation must be offered for this discrimination.
        Greene was moving very quickly, and also trying to cover an awful lot of ground, making his presentation very difficult to follow.
    David Richards
      Richards says that the appeal of contractualism is the protection it offers to rights. Martin Luther King, Jr., must be understood, says Richards, as the leader of movement. The close study of King’s life and work reveals a highly personal interpretation of religion that opened up arguments of public reason not previously available in our society. Three of King’s most successful experiments: Montgomery, Birmingham, and Selma. The appeal of King’s nonviolent voice drew on American Constitutionalism, e.g. Brown v. Board Richards spends a great deal of time developing the reasons that King appealed to black women in the South.I must confess that Richards paper simply did not speak to me. I found it quite difficult to see the arc of argument and even to discern the aim or purpose of the paper.
    Michael Baur added some very nice comments, primarily directed at Richards, but blogging fatigue had set in. But then at the very end there were two wonderful questions.
    Samuel Freeman answering a question got to one of the most important changes in Rawls’s late philosophy—his move to the idea that justice as fairness would not be the only theory of justice accepted by reasonable citizens in a well-ordered society. Freeman gave an interpretation of Rawls on this point that I do not full agree with. Basically Freeman thought that all the members of the family would agree on the first principle and the basic content of the second principle, but would disagree on fair equality of opportunity and the fair value of the political rights. I think Rawls does (and can) admit of more disagreement than that, but I cannot elaborate now.
    And then, the most dramatic exchange of the whole conference arrived, with Dworkin and Freeman going back and forth on public reason. Dworkin pressed Freeman on a point in his paper, “Why does the fact that public reason is addressed to citizens in their political capacity make any difference?,” Dworkin asked. Freeman then rehearsed his argument, and pressed back, reminding Dworkin that Dworkin could argue from his comprehensive doctrine, but that Rawls’s idea of public reason would ask Dworkin to also provide a “public reason.” Dworkin then replied, essentially saying that he did not see what was nonpublic about reasons drawn from a comprehensive moral theory.
    Dworkin’s strategy here was to use the kinds of nonpublic reasons that he (Dworkin) would offer. For example, he might argue for an ideal of equality based on the moral value of enabling each person to realize their full capacities. (I’m sure that is not quite what Dworkin said, but you get the idea.) “Why can’t I say that?” After Freeman’s answer, the question becomes, “Why do I (Dworkin) have to say more than that?” Dworkin’s example, however, is one of the closest cases, because his argument, although it draws on a deeper moral view, is very close to a public reason, e.g. it is simply a deep reason for the fundamental equality of citizens. The very statement of the full argument includes within it, public reasons. So Dworkin’s example is a bad one. A better example is a reason drawn from a comprehensive doctrine that is not itself bound up with a public reason. So, for example, take these examples: (1) someone justifies a constitutional prohibition on aid to religion on the ground that all religions are false and that it is an improper expenditure of public funds to aid in the inculcation of false beliefs; (2) someone argues that the freedom of speech should always be interpreted via a balancing test because the only source of ultimate value is pleasure and the absence of pain, and hence it is wrong to protect speech when that protection has net negative hedonic value; (3) someone argues that abortion should be prohibited on the ground that fetuses are ensouled at the moment of conception, and therefore it is murder to abort a fetus. Now Dworkin might argue in reply that he can exclude these reasons from judicial decision making on another ground—that these reasons would be bad ones given the history of our institutions. (I’m not sure, but concede this for the sake of argument.) But that is not the point of the examples. The point of the examples is that in each case the reasons offered is one that citizens (in their capacity as citizens) would find inaccessible. Thus, if I am a theist, I might find reason one inaccessible. If I am a Kantian, I might find reason two inaccessible. If I am an atheist, I might find reason three inaccessible. What does inaccessible mean? It means that these are reasons that I cannot accept given my own reasonable comprehensive doctrine of the good. But couldn’t you give up your comprehensive conception? Sure I could. But that’s the point. Good citizens don’t ask their fellows to give up their reasonable comprehensive conceptions in public political debate or as the author of a judicial decision or as a legislature speaking on the floor of a legislative chambers about the constitutional essentials. An example, it was unreasonable for Justice Burger to ground his dissent in Bowers v. Hardwick in a particular theological tradition (i.e. the Judeo-Christian tradition), because this argument could not be accepted as reasonable by citizens who were Buddhist or atheist. Likewise, it would have been unreasonable for Justice Kennedy to counter that argument by stating that this view of the Judeo-Christian tradition had been rejected by the true religion (whatever that might be). I’m sure Dworkin has a comeback. I wonder what it is.

Blogging from Rawls and the Law, Part 10: Property, Taxation, and Distributive Justice
    Anne Alstott
      Alstott is up first. She has three questions:
        (1) What does a fair society (and parents) owe children? Alstott notes this is a big question, but she will focus on one point, Continuity of Care. The same person must provide the care over time. We cannot, says Alstott, be ?serial parents.? And Rawls? There is a section in TJ on moral teaching in the family?which might have an inchoate notion of continuity of care. Now, Alstott says, Rawls says that society owes to children what is required for the development of autonomy. So, continuity of care could be a central concern in family law, but Alstott is not concerned with it. Rather, she wants to discuss the impact of continuity of care on parents? lives. Most parents do provide continuity of care, especially mothers. And the costs of continuity of care is borne mostly by mothers.
        (2) Does a fair society owe anything to parents? So what, if anything, do we owe parents? Parents bear the cost of not exiting. It is good for children and costly for parents. The no-exit obligation is unusual; it is like the military, prison, and childhood. Alstott is not saying there is a legal obligation, but a normative and aspirational obligation. So, should society alleviate this burden? It should. We cannot make parents whole, but we can recognize that no-exit forecloses options. Alstott says it is fair to expect continuity of care and fair to alleviate the burden.
        (3) If so, what does society owe parents? Alstott recommends a ?caretaker resource account,? a fund upon which parents can draw.
      I liked the paper, but I thought it was a great shame that Alstott didn?t try in some serious way to connect the project with Rawls. She might consider Sharon Lloyd?s work on this topic, which parallels many of her arguments.
    Robert Cooter
      Cooter is a pioneer in law and economics and a marvelous presenter. This should be fun. Cooter begins with the observation that the social norm for charitable giving is relatively inchoate and not enforced. Cooter says that this problem is a serious one with respect to the norms embedded in the difference principle. The IRS reports tax deductions for charitable giving. He notes that persons in lower income are excluded. In the 50-100,000 bracket, the average is 2-3%. At the upper end, it rises to 4%. Cooter says this is disgraceful and unnecessary. The obligation to give charity, says Cooter, is a disjunctive obligation. You don?t owe this duty to everyone; you can give to some but not others. It is no wonder we don?t know how much we should give, because we lack information on what others give. Experimental evidence on trust games suggests that when you give X a dollar, and then say, you can keep it, or you can give the dollar to Y, in which case, we will Y a second dollar. If the game is anonymous, there is considerable altruism, but if you publicize gifts, then people give more. Cooter proposes that organized charities should demand that public figures (business people, entertainers, sports figures) should disclose their aggregate giving. And Cooter suggests an optional box that would allow you to voluntarily disclose the ratio of giving to AGI.
      I was mildly disappointed in Cooter?s failure to relate his proposal to Rawls?s theory in any substantial and systematic way. Here are few rough thoughts about the connections:
        (1) Cooter might be suggesting that there is an obligation to engage in "redistributive charity," in nonideal theory. That is, given that our society does not satisfy the difference principle, the question arises, "What duties do individuals have to give to those in need? Cooter might argue that those who have more than they would receive under a just distribution (a terribly difficult question, because of the complex counterfactual information required), have a duty to give and that government has a corresponding obligation to facilitate such redistributive charity.
        (2) Cooter might be arguing that even in the case of ideal theory, where we are in a society in which the two principles are satisfied, the question arises as to which institutions can best implement the difference principle. He might then argue that at least some of the required distribution would better be accomplished through voluntary, private giving. Why?
          (a) Cooter may believe that the charitable giving will simply be more efficient, achieving the redistributive aims at lower cost and hence increasing the amount available for redistribution. In this case, Cooter might even argue that charitable redistribution will actually improve the lot of the worst off group as compared with state redistribution. This would give Cooter a Rawlsian reason to favor charity over the state.
          (b) Cooter might argue that charity is preferable because it is voluntary, involving less interference with individual life plans than the alternative. This argument, however, runs into fairness problems--because the burden of charity will not fall evenly (with some giving and some not).
          (c) Cooter might argue that charity has good educative effects. For example, encouraging charity may lead to greater understanding of and social support for the two principles. Again, this would give Cooter a reason for favoring charity that would be Rawlsian ins spirit.
        (3) Cooter might believe that there is an individual obligation to give, even if the society already satisfies the two principles. Or in a variation of this position, he might believe, a la Gerald Cohen, that individuals have no right of political morality to demand incentives and hence that those with excess wealth or income have an obligation to transfer the excess resources to those who are less well off than themselves. This position, it seems to me, would not be Rawlsian in spirit.
    Linda Sugin
      Sugin?s topic is Nagel and Murphy?s recent book on tax policy. What constraints does a theory of justice impose on the tax system? Why, for example, does Rawls endorse a relatively flat consumption-based tax? Almost any tax can provide a social minimum (satisfying the second principle), but the first principle does constrain the choice between tax systems. An endowment tax, for example, interferes with the ability of individuals to choose their life plans.I thought Sugin?s paper was very nice, thoughtful, sharp, and very Rawlsian.
    Thomas Nagel
      Nagel is one of the very best. This should be fun. He begins with Alstott; her proposal, would have distributive effects, but (he argues), the aim would not be redistributive. He asks what the relationship between Alstott?s proposal and Rawls, noting that the principles of justice apply to the ?basic structure of society.? And the role of the family in the basic structure is controversial. The deep inequality resulting from child care continuity falls disproportionately on women and hence violates the presumption of equal liberty. Cooter?s proposal is next on Nagel?s agenda. Cooter?s proposal, says Nagel, is an alternative to Rawls?s proposal that individuals should be free to choose how to expend resources if the basic structure is just. Nagel thinks that Cooter is assuming that charity is ?morally superior? to state redistribution?not just more efficient. Nagel disagrees: justice should be a matter of entitlement, not charity. If Cooter is arguing for redistributive charity, then, Nagel observes, we would need to steer charity towards the needy. The distinction between collective and individual responsibility, Nagel notes, is at the heart of Rawls?s liberal view. Turning to Sugin, Nagel agrees with her that tax systems should not be taken in isolation. Nagel works carefully through several of Sugin?s point, and pauses on Sugin?s point that tax may be used to prevent the accumulation of great extremes of wealth. Rawls believed that great accumulations of wealth were undemocratic; therefore, Nagel argues, the estate tax should not be eliminated. Nagel was superb. One wished for more!
    Discussion In the discussion period, Cooter observes that federal spending is not very redistributive, and so, pace Nagel, Cooter says it is not clear that increasing charitable redistribution would not have a greater redistributive effect that more federal spending. Cooter says, he is not sure what the philosophical foundations of his position are. He says, it is not clear that the difference principle does not require his proposal. As Cooter made this remark, I understood him to be saying that even if governental action satisfies the difference principle, individual charity is still required (beyond the government action). So my first reaction was to think Cooter had said something that was silly. I thought, "Once the two principles are satisfied, of course, Rawls's theory does not require more. How would the argument that more than what is required is required go." But now, with some additional time to reflect, I think that I must have misunderstood Cooter.
    Seana Shiffrin suggests that letters from the IRS (as opposed to a website) would provide the information, without public shaming. Cooter says that would be ok too, but he thinks it is an obligation to give one?s fair share and hence publicity (does he mean shaming?) is appropriate.
    A question to Alstott, should we redistribute to child-rearers if we have a just distribution otherwise and if we also eliminate gender-discrimination. Alstott says we have an obligation to give children continuity of care. I must have missed something, because Alstott?s answer seemed to provide everything except an argument.
    Susan Moller Okin asked a question about what counts as charity, arguing that opera is only a charity if the donation comes from those who hate opera. Okin also argued that the Catholic church builds expensive cathedrals and that donations to the Mormon church support ugly buildings. I found Okin's question puzzling. I'm sure Okin did not intend deliberate offense to Catholics and Mormons, but her remarks struck me as likely to offend and as pushing the bounds of civility.
    All and all, a most stimulating session.

Blogging from Rawls and the Law, Part 9: Tort
    Sleep is glorious. I’m back at the Rawlsfest at Fordham University School of Law. This morning’s panel is on Rawls and tort law. I am looking forward to a powerhouse panel—Fletcher, Keating, Perry, Ripstein, and Zipursky. But I must say that I am a skeptical listener. Although I am deeply sympathetic to the Rawlsian project, it has always struck me that the application of Rawls’s own theory (as opposed to Rawlsian methods) to tort law would be contrary to important commitments in Rawls’s own work. Torts is not my field—so I am here to learn.
    Arthur Ripstein
      Ripstein is first up. He begins by noting that Rawls does not discuss corrective justice in an explicit way in TJ and his other writings. From the point of view of distributive justice, Ripstein argues, tort law is puzzling. Surely not. What on earth was Ripstein thinking, since distributive justice presumes, at a minimum, that the just distributions will create legally protectable entitlements? Ripstein now introduces a distinction, between dogmatists and skeptics--a not particularly perspicuous set of labels for those who think tort law serves distinct aims and those who do not. Now, Ripstein makes a good Rawlsian point: the original position itself is not a particularly good device for construction of principles of tort law. Behind the veil of ignorance, Ripstein points out, outcomes are what matters. So from behind the veil, it doesn’t matter who injured you. Ripstein now turns to Rawls’s essay, “Social Unity and the Primary Goods.” In that essay, Rawls gives us a way of understanding individual responsibility for own lives. This is our responsibility for our own conceptions of the good and life plans. Ripstein is now trying to get tort duties out of the notion of self-responsibility for individual life plans. I would need to see the full paper, but this argument seems rather unpromising. Not that the conclusions are implausible. They are. But rather that there is nothing distinctive in the concept of self-responsibility that supports the institution of tort law. Indeed, the argument is more likely to work the other way around. Because each of us is responsible for his or her own life plan, there are reasons why tort liability should be limited. In other words, Ripstein has a way of explaining the limits on tort law, but not the basic structure of the law itself. Ripstein now says, “This is a very abstract abstract,” alluding to Marx. Indeed! If we think of the law of tort in terms of the division of responsibility, damages restore to each person “what is theirs,” as opposed to restoring a just distribution. Yes! This is an important point, and Ripstein might also look to the lecture, “The Basic Structure as Subject,” for more support for this idea. Despite my quibbles, this was a very nice paper.
    Stepehen Perry
      Another wonderful legal theorist. And Perry is a deeply learned and careful thinker. Perry notes his agreement with Ripstein on the inapplicability of the original position to the question of how to construct principles of tort law. Perry now takes on Ripstein, who Perry says accepts the “luck egalitarian” interpretation of Rawls. Now, Perry is working through Ripstein’s argument is a very careful way. Perry turns to the notion of property and the way that protection of property (trespass) is part of Ripstein’s view. But, and this is quite important, Perry argues that the Rawlsian ideas that Ripstein invokes underdetermine the shape of tort duties, e.g. they do not discriminate between a tort regime and a New Zealand style version of social insurance (no fault). Surely Perry is absolutely right here. Perry is now honing in on the weakest point of Ripstein’s paper: Ripstein’s claim that self-responsibility requires a particular shape for tort law. This is a compelling criticism; it will be interesting to see if Ripstein has a comeback. Once we have given up the hope of deriving deontology, from a hypothetical contract, it is difficult to see how there could be a Rawlsian derivation of deontology.
    George Fletcher
      Fletcher was a pioneer of tort theory, and is considered one of the great figures of contemporary American legal theory. This is actually the first time I’ve heard him speak, and I am looking forward to it. Fletcher starts out by claiming that TJ was focused on fairness and that “reasonableness” appears in Political Liberalism as one of the two moral powers. Well, I’m afraid Fletcher has made a rather poor first impression. These remarks are quite simply absurd, betraying an utter lack of understanding of both the early and the late Rawls. Fletcher now makes an argument that “fairness” and “reasonableness” are uniquely American ideas. And not just uniquely American, but unique to American law. I am speechless. (“Blogless?”) American law, says Fletcher, sends to the world the idea that one can be “reasonable but wrong,” and hence, “toleration.” Locke? Hello! Now, Fletcher is talking about the reasonable person standard. He argues that the reasonable person standard is problematic because it only permits a single right answer. But this is just plain silly. The reasonable person standard does not say there is only one way of acting reasonably (or unreasonably). There is one judgment “reasonable” or “unreasonable,” but many different actions that would count as reasonable or unreasonable. Now, Fletcher is on to the “reasonable” and the “rational.” Fletcher correlates the “rational” with the Kantian idea of treating others as ends in themselves, and the “reasonable” as something beyond that. This is a most unusual interpretation of Kant.
    Gregory Keating
      Keating begins with the distinction between “negligence” and “strict liability.” Negligence says the conduct was wrong; strict liability says that leaving the loss on the plaintiff is wrong. Now Keating recites the facts of Vincent v. Lake Erie, the case where the ship is lashed to a dock during a storm, where the court rejects the argument that because the conduct is reasonable, the ship owner need not make reparation. Keating now goes back to Fletcher’s famous article, which argued that much of tort can be explained by the distinction between reciprocal and nonreciprocal risks. Keating now moves to enterprise liability (e.g. market share liability), which can be justified by economic arguments or by fairness arguments (i.e. that is unfair to dump the costs of an enterprise on a few unlucky victims). I wish Keating had elaborated at this point—where his distinctive theoretical perspective would have emerged. Keating paraphrases Holmes on the change in social circumstances, from a world of isolated individual harms (e.g. batteries) to a world of systematic imposition of risks by enterprises. In the modern world, risks can be insured. We can leave a loss with the victim or shift the loss to the enterprise, which will pass the risk on to the beneficiaries of the activity. Enterprise liability, says Keating, is therefore “fairer.” Keating was his usual careful self. But where’s the Rawls? In the full paper, I suspect.
    Benjamin Zipursky
      Zipursky begins by laying out a very ambitious agenda for his remarks. Indeed, it would take me several hours to cover the ground he lays out. Zipursky’s presentation is both terse and dense. He touches briefly on Keating and then moves to Ripstein, reconstructing their arguments in an illuminating way. He then turns a very important point, that Rawls says, “Do the work!,” and then see how it comes out. The alternative is to worry about metaethics and moral epistemology. Rawls made these points in his Presidential Address to the Eastern Division of the American Philosophical Association, which is available in his Collected Works. As a rule of thumb, you can only develop and communicate one or two ideas in 12 minutes. Zipursky certainly does not believe in this rule.

Download of the Week The download of the week is Elizabeth Garrett 's paper Framework Legislation. Here is a taste:
    Much recent scholarship studying Congress has focused on issues of institutional design and assessed procedural innovations to determine why rules have been changed or retained and to describe the effects of certain design features on outcomes. Notwithstanding the focus on procedure, one component of contemporary legislative process has not received sustained attention. There is no systematic study of what I call “framework legislation.” Such legislation establishes a procedural framework to structure decision making in a particular policy area; it supplements, and sometimes supplants, ordinary rules of procedure. Constitutions are frameworks in a similar way, although they are more durable than framework legislation and they usually apply generally, rather than to a subset of issues. The standing rules of the House and Senate also establish frameworks for deliberation and congressional action; again, they tend to apply generally, although certain rules of procedure may be related to the kind of framework legislation I study here. The best known and most ubiquitous example of framework legislation is the congressional budget process, first put into place with the Congressional Budget and Impoundment Control Act of 1974 and substantially revised in 1985 with adoption of the Balanced Budget and Emergency Deficit Control Act (“Gramm-Rudman-Hollings”) and changed again in 1990 with enactment of the Budget Enforcement Act. Although the budget process tends to dominate discussion of framework legislation, and exerts great influence on the design of other frameworks, it is only one example of a larger phenomenon. Other scholarship studying the institutional design of Congress has discussed framework legislation, typically in one of two contexts. First, frameworks have been assessed in analyses of the larger phenomenon of modern congressional change and reform. It identifies and explains various procedural innovations adopted by the post-reform Congresses, changes that began in the 1970s with the Legislative Reorganization Act of 1970 and continued through the reforms implemented by the 104th Congress and its Contract with America. This scholarship describes and evaluates the rise of “unorthodox lawmaking,” a term used by Barbara Sinclair to differentiate the complicated reality of modern lawmaking from the textbook process. Unorthodox lawmaking and post-reform innovation includes the adoption of framework legislation, but the procedural changes discussed in this work are broader and thus any analysis of framework laws is incidental. Framework laws are discussed in a second scholarly context that has a narrower focus than the assessment of sweeping procedural trends in modern Congresses. Some scholars have analyzed one particular example of framework legislation, usually the congressional budget process. Although such focused studies may lead to conclusions about framework legislation in general, as well as about other congressional procedures, the scholarship tends to be restricted to understanding and critiquing the congressional budget process, or much less frequently, another particular framework. Moreover, to the extent that general conclusions can be drawn, they are often left to the reader and not made explicitly. This approach is consistent with the objective of the scholarship – to understand the development or operation of a particular framework.

Legal Theory Bookworm This week the Legal Theory Bookworm recommends Dennis Patterson's Law and Truth. Here is the blurb:
    Taking up a single question--"What does it mean to say a proposition of law is true?"--this book advances a major new account of truth in law. Drawing upon the later philosophy of Wittgenstein, as well as more recent postmodern theory of the relationship between language, meaning, and the world, Patterson examines leading contemporary jurisprudential approaches to this question and finds them flawed in similar and previously unnoticed ways. He offers a powerful alternative account of legal justification, one in which linguistic practice--the use of forms of legal argument--holds the key to legal meaning.
As Patterson admits in the afterword, this is mostly a work of demolition. Patterson takes on Ernest Weinreb, Michael Moore, Ronald Dworkin, and Stanley Fish, and in his characteristically blunt and clear headed way, Patterson puts each of these thinkers to the test. Patterson labels himself as a post-modernist, but for once, here is a book that makes pomo look intellectually attractive. Highly recommended!

Friday, November 07, 2003
Blogging from Rawls and the Law, Part 8: The Law of Peoples
    I knew that I had vowed not to take red eye flights for a good reason! I am dead tired, dear reader, but I am sticking it through to the final panel out of loyalty to you! I am especially excited by this panel, with a deeply interesting topic and a wonderful panel.
    The Law of Peoples sets out Rawls's theory of international justice, but it may not be the theory you expect. In the domestic case, Rawls has a very strong liberty principle, but internationally, societies are entitled to membership in the society of nations even if they fall fairly far short of the ideal of a liberal society. Domestically, Rawls has a difference principle that requires inequalities work to the benefit of the least advantaged. Internationally, Rawls permits far greater disparities of wealth.

    Stephen Macedo
      Macedo is first up. There are, he says, two controversial feature of Rawls’s law of peoples:
        First, Rawls says that rich countries do not have obligations of distributive justice, once societies become self governing. Thus, there is no international difference principle.
        Second, Rawls does not require that societies do not need to comply with all of the basic liberties as a matter of the law of peoples.
      One explanation for these features of Rawls’s international views is that it flows from Rawls’s idea of overlapping consensus, but Macedo (Quite rightly in my view!) rejects this explanation. We need a moral explanation—says Macedo. There is a moral explanation: the law of peoples is for self-governing peoples. It is important to see how tough it is to be regarded a self-governing community.
      But, asks Macedo, isn’t there an international basic structure? Macedo recognizes that there are international institutions, but claims that nations really are different.
      And, asks Macedo, what about individual human rights? Very often, says Macedo, this will be the case. But not always. So, to count as a decent society, there must be real consultation of all groups. The conception of the good must aim at the good at all, not just some. Oppressed groups must really be represented. In other words, Macedo claims, these conditions are quite tough; they are designed to insure that the illiberal societies are really self governing.
      Macedo covered an incredible amount of ground!
    Thomas Pogge
      Pogge has been working on these issues for as long as anyone. It is a treat to be able to hear his thoughts.
      Pogge quickly gets to an important issue. Domestically, for Rawls, only individuals count. Internationally, only peoples count. How can this be? In the domestic case, the parties adopt a theory of justice—details come later in the four stage sequence. In the international case, however, the eight principles of international law are directly endorsed. Pogge’s analysis is fairly dense—not really suitable to blogging—but one of his major ideas is that the asymmetries between the national and international cases seem arbitrary. The original position is set up differently, with dramatically different consequences, but (Pogge asserts) Rawls does not justify these differences.
      This criticism seems quite fair, so far as it goes. When the The Law of Peoples was first published, I participated in a close reading group. Over and over, it seemed to me (and other members of the group), Rawls was only sketching his view in The Law of Peoples, leaving it for others to fill in the arguments.
    Seyla Benhabib
      Benhabib’s topic is cross border movements of people and the issues of transnational justice that such movements give rise to. Not only Rawls, but also his sympathetic critics, such as Pogge and Charles Beitz, fail to adequately address these issues. Rawls, she notes, simply does not address the questions of entry and exit into societies in TJ. In The Law of Peoples, Rawls uses the idea of “peoples” as a device of representation. So what do “peoples” represent? Rawls tries to distinguish peoples and states, but Benhabib notes that his definition of a just people assumes statehood, because just institutions (which only states have) are an attribute of liberal peoples. If peoples are defined by common sympathies, as Rawls seems to suggest, there is a price to be paid in terms of individual rights. I must have missed some step in this argument. Perhaps, I have reached the point where jet lag and lack of sleep have caught up with me! At the end of the paper, Benhabib recommends that we go back to Kant’s cosmopolitanism: all human beings who come to our territory have a claim on our hospitality (but not permanent residence). At the end, Benhabib suggests that sovereign control over citizenship must go!
    Martin Flaherty had interesting comments and focused on a passage in The Law of Peoples that has always seemed important to me--that the theory is intended to offer a realistic utopia.

Blogging from Rawls and the Law, Part 7: Equal Citizenship: Race and Ethnicity
    Here is the interesting thing about Rawls and Race. On the one hand, Rawls clearly believes that racial discrimination is unjust & indeed racial injustice seems to be part of the motivation for his work. On the other hand, Rawls has very little to say about racial injustice. Why is this? That was the topic that the panel needed to address. Not an easy task!
    Seana Shiffrin
      Shiffrin is asking why Rawls does not address race. Rawls does not explicitly include race in the characteristics masked by the veil of ignorance, and the two principles do not include any specific guarantee against racial discrimination. After noting that the two principles would rule out many forms of racial discrimination, Shiffrin then notes that many forms of discrimination are private and would not be addressed to the two principles. Shiffrin then zeros in on the “fair equality of opportunity” component of the second principle of justice, and makes the case that it too does not address the problem of race discrimination and does not address these problems in the right way. Shiffrin then considers the possibility that problems of racism would simply not arise in a society well-ordered by justice as fairness—because class differences and historical injustices such as slavery would never have arisen in such a society. But Shiffrin finds this unsatisfactory as well. For example, racist attitudes might exist even in a well-ordered society. Rawls was clearly concerned with racism, but it remains a puzzle why he failed to address racism explicitly.
    Anita Allen
      Allen’s question is about racial privacy. She begins by rehearsing the history of the recognition of a right to privacy on natural law grounds by a Georgia court on social contract grounds—one hundred years ago. Then, she fast forwards to contemporary litigation in which governments have resisted disclosure of racial date. Even more recently, a failed initiative sought to prevent the collection of racial data. Is there anything in justice as fairness that would address the question of racial privacy? In the original position, race would not matter—but this doesn’t mean that racial information should be private outside the veil. In the end, Allen concludes, Rawls simply does not help with this question.
    Tommie Shelby
      Shelby wants to focus on what Rawls did say about race. He notes that Rawls explicitly says that our pre-theoretical belief is that racial discrimination is unjust. The parties behind the veil in the original position will not know what race they belong to. And hence, the parties will not choose principles that advantage or disadvantage persons on the basis of race. So Rawls says, “no party would put forth principles that advantage particular races.” This does seem to directly contradict some of Shiffrin’s assertions about what Rawls said in TJ, but perhaps I misunderstood Shiffrin. In addition, Rawls requires “justice as regularity,” which entails the unbiased administration of the laws—formal equality before the law. Shelby then made a very nice argument that at the constitutional stage, a prohibition on racial discrimination would be selected. This was a very good paper!
    Sheila Foster, the moderator, asked why Rawls isn’t discussed by critical race theorists. Why is there racial injustice despite formal equality? Race scholars, she argues, are skeptical about rationality itself.
    Frank Michelman asked Shiffrin how the principle would be spelled out, e.g. would it require colorblindness or what? Shiffrin has a very nice come back, that the principle would be no vaguer than other components of the first principle.

Blogging from Rawls and the Law, Part 6: Equal Citizenship: Gender
    Susan Moller Okin
      Okin begins by noting the parallelism between the development of second-wave feminism and the rebirth of political theory. Feminist critiques of Rawls didn’t really get going until the 80s, and Rawls did not respond until the 1990s.
      The whole theory is masculinist in its assumptions, i.e. that the original position is the epitome of atomistic liberal man. Okin comments that this criticism was flawed, because it was based on a misunderstanding of the original position and because she believes that Rawls’s theory can be plausibly read as combining a rights-based theory of justice with an “ethic of care,” Why this latter point? Because the original position forces the representatives behind the veil of ignorance to have concern for everyone.
      Gender equality is simply left out of Rawls’s theory. For example, gender is not explicitly placed behind the veil of ignorance. Moreover, the idea of that the parties behind the veil of ignorance of “heads of families,” which Rawls subsequently abandoned, may have an unstated male bias. In addition, Rawls assumed families were just, but did not investigate this question. Political Liberalism made the problem worse, because it seems to rely on the public/private distinction, and hence, his theory seems to allow as reasonable “conceptions of the good,” various views, including religious views, that exclude women. For example, both the Old Testament and Catholicism are anti-feminist. In the late essay, “Public Reason Revisited,” Rawls seems to exclude the internal structure of the family is outside the limits of justice.
      Okin ends by asking, “Why not apply principles of justice to families?”
    Linda McClain
      McClain begins by stating that she intends to broaden the focus from families to associations. She notes that families and the process of moral learning that takes place within the family are essential for the stability of justice as fairness. Citizens view the political conception of justice as congruent with the values they apply within their nonpolitical associations. The political conception of justice shapes the social world. Rawls says that the gender system can be critiqued from within political liberalism—so long as it affects the political equality of women. Moreover, the goal equality for women, McClain observes, is, for Rawls, a value that provides public reasons for all citizens.
    Marion Smiley
      Smiley begins by saying that she intends to offer a defense of Rawls. She says that political liberalism and its conception of the political person might be used to undermine male power and the idea of the political person might provide a way of getting beyond feminist critiques of Rawls. Smiley covers some of the same ground as Okin, and does a very nice job of stating the criticisms in a particularly direct and clear way. But then I completely lose the thread of her argument as she begins to use the technical vocabulary of feminist theory. Smiley begins to talk about individuals taking turns behind the veil of ignorance—a suggestion that I find utterly mystifying. Her next topic is a critique of Rawls’s use of heads of household as the persons behind the veil of ignorance in TJ. This discussion is also confusing to me, since Rawls explicitly disavowed this way of laying out the original position in later work. Smiley also argues that racial identity is not included as a primary good. Smiley suggests that Rawls’s idea of democratic citizenship might be reworked by defining democracy as the equal sharing of political power and the absence of hierarchical relationships of domination. Smiley seems to believe that Rawls would resist this move, although I couldn’t quite see why. In fact, there is a sense in which these two ideas are quite central to Rawls’s project.
    Tracey Higgins, the moderator, concluded with some challenging remarks, suggesting that the time for dialogue between liberalism and feminism is over, because liberalism is inherently incapable of responding to the feminist challenge.
    Chris Naticchia asked a very good (but perhaps overly long) question about religious associations and the requirements of a reformed, more feminist version of Rawls’s theory. By way of answer, Susan Okin suggested that gender-discriminating religions should not receive any public support (e.g. no tax exemptions), but that they could be allowed to exist—so long as children were not allowed to be indoctrinated by the religion, e.g. no child could exclusively attend a school that taught the gender-discrimination religious doctrines.
    Seyla Benhabib asked a question about the original position, suggesting that the issue was one of moral epistemology. She also noted that there were connections between Rawls’s position on feminist issues and some of the issues that arise in The Law of Peoples. Why not shift the debate to democratic politics in civil society? Okin responded to the first point—re the original position—by arguing that the original position requires one to think about everyone’s position in society. How do you do that? Okin says, by learning about what it is like for persons whose positions are different than your own.

Blogging from Rawls and the Law, Part 5: Ronald Dworkin’s Keynote Address
    Now it is time for Ronald Dworkin’s keynote address. Dworkin is certainly among the greatest legal theorists of our time (perhaps of any time), and there are deep and interesting connections between his work and the work of John Rawls. Dworkin’s own theory, law as integrity, has had an enormous influence, both in the legal academy and on the way that judges and lawyers think about what they do. Jim Fleming introduces Dworkin, who now takes the stage.
    Dworkin begins by noting that the topic, Rawls and the Law, could be attacked from many angles. How has Rawls influence lawmakers? What are the implications of Rawls’s theory for various areas of law? Or we might ask, how American constitutionalism influenced Rawls’s theory? But Dworkin’s question will about Rawls and a legal philosopher and legal theorist. Rawls, says Dworkin, speaks to the central issues of legal philosophy. Because legal philosophy is a branch of political philosophy, Rawls speaks to a variety of issues that concern legal philosophers. He offers some examples:
      What is law? That question is paradigmatically one of legal philosophy, but what kind of question is this?
      What is the character of the enterprise of thinking about what law is? And once we have a methodology, then what is the best theory of law.
    Rawls has something to say about both parts of this question. And there is a third question,
      When judges must make independent fresh judgments of their own, what kinds of reasons or arguments would count as appropriate to the judicial enterprise? Can judges appeal to religion, personal belief, or macroeconomic concerns? These questions are relatively neglected in legal theory, and Rawls has a doctrine of public reason, which Rawls says applies to judges.
      And from that question, we could go to questions about constitutional theory, i.e. the classic question, “is judicial review antidemocratic?”
      And another question is whether a constitutional court ought to go gently in the face of divisive political controversies that are brought to law (abortion, school prayer, etc.).
      Finally, Dworkin hopes to speak to the question of the truth or objectivity of claims in the various domains of value, e.g. the question whether legal propositions can be objectively true. Dworkin points out that legal realism gave a negative answer to this question. The question of objective truth, Dworkin says, is especially important to the law—because of the fact legal disagreement. For example, lawyers disagree about market-share liability in tort law, but if the disagreement is to be genuine, then there must be some background theory that explains what the disagreement is about.
    H.L.A. Hart, Dworkin says, developed a theory of law in answer to these questions about objectivity. Propositions of law are true when they can be inferred from the decisions of institutions authorized to make such decisions. Hart insisted that his claim is merely descriptive—but, Dworkin says, he finds it impossible to say what kind of description Hart’s claim is. At this point, Dworkin argues that Hart’s description does not capture the phenomenology.
    Dworkin says that Rawls spoke to the issue of what legal philosophy should be like, by example. Rawls began with the distinction between the concept of justice and particular conceptions of justice, which are substantive theories answering the questions, “what is just and what is unjust?” The assumption for Rawls is not that people agree about what is just. Rather, what makes disagreement about justice meaningful, is that we agree about specific cases. We agree slavery is unjust, for example. So the enterprise is “reflective equilibrium,” in which we generate principles of general scope and attempt to match them to our considered judgments about particular cases. Dworkin says, We legal philosophers can follow that example. We can identify the noncontroversial cases of things that are law. And we have an abstract concept, of law, or legality, or the rule of law. We can seek a reflective equilibrium between our judgments about concrete cases and an abstract understanding of the concept of law. That, Dworkin says, is what legal philosophers have always done.
    If you approach legal philosophy in that way, then what conception of legal philosophy is, in fact, best? There are, Dworkin says, two classic positions. Positivism, which claims that law is a matter of fact, and antipositivism, which claims that law is a matter of value. Rawls, says Dworkin, did not speak directly to that question.
    But suppose, Dworkin, that the representative parties in the original position were asked to choose between two views of the legal system—a simplified positivism that limits the role of judges to interstitial legislation, and a simplified version of interpretivism, which asks judges to make the decision that accords with the theory that best justifies the law. So, how would the parties deliberate in the original position? Dworkin then makes an interesting point, that if the parties in the original position had chosen utilitarianism (instead of the two principle of justice), then they would choose positivism as their theory of law. Why? Because a central planning authority, Dworkin argues, can best maximize utility. Judges are ill suited to the task of making decisions that will maximize utility. By similar reasoning, Dworkin argues, that the representative parties in the original position who have chosen the two principles would also be led to affirm interpretivism as their theory of law. Dworkin then argues equality and the maximin rule for choice in the original position would also support interpretivism.
    Dworkin is extemporizing, so it is unfair to judge his argument on the basis of the oral presentation, but this argument seemed quite slippery. The joints of the argument went passed rather quickly, but, for example, Dworkin’s maximin argument seemed woefully underdeveloped.
    Now, Dworkin turns to Rawls’s discussion of the rule of law, and focuses on Rawls’s discussion of the role of consistency in a common-law system in preventing arbitrary decision.
    At this point, Dworkin changes topic to the question of legitimacy. Institutions, says Dworkin, are to be judged by the outcomes they produce as measured against the criteria provided by the two principles of justice. Rawls does not, for example, say that the American system of judicial review does the best job of producing the best outcomes. But Rawls did say that the program of judicial review that we have in the United States, while it limits parliamentary sovereignty does not eliminate popular sovereignty. Rawls cites Ackerman’s discussion of a new deal constitutional moment to illustrate this point. Rawls also says that in evaluating a constitutional structure, we must ask how well it protects the fundamental liberties. Judicial review, Dworkin argues, may help citizens to develop the two moral powers. How? By putting these issues into a forum of principle (rather than politics), may have an educative effect. (“Educative” is my gloss on Dworkin’s point.)
    Rawls said that he hasn’t made up his mind about whether the Supreme Court should have waited to make its abortion decision. He says something similar about the assisted suicide case. Rawls had endorsed the so-called “Philosophers Brief,” in that case. But Rawls says, that there is a good argument on the side—the argument advance by Cass Sunstein—that it was premature to decide the question given the deep disagreement about the issue. Criticizing Rawls, Dworkin argues that these arguments for delay are bad arguments. The issues in these cases are claims of fundamental rights; the parties to these cases are entitled to liberty now and civil peace cannot justify denying the individuals their rights. Dworkin then argues that delay would not have resulted in a political resolution of the abortion controversy similar to that which has now been reached in Europe—because Europe lacks the fundamentalist groups that are present and political important in the United States.
    Dworkin now turns to the part of his talk that is most critical of Rawls. Dworkin suggests that he has doubts about the idea of public reason. "Has doubts" is Dworkin's polite way of saying that he believes that Rawls was simply dead wrong about this. Rawls argument for an ideal of public reason was based on what Rawls called "the liberal principle of legitimacy." The constitutional essentials, Rawls claimed, should be justifiable on the basis of public reasons, and public reasons are those that are shared by citizens (e.g. the uncontroversial facts established by history and science, common sense, and public political values). The idea of reciprocity implicit in Rawls's idea of public reason, says Dworkin, will not work. If you believe something passionately, Dworkin argues, then you will believe that everyone else who is reasonable will accept that thing. Moving very quickly, Dworkin then argues that the case for the difference principle must rest on a comprehensive moral doctrine. And turning to abortion, Dworkin says that resolution of the issue must be drawn from a comprehensive moral theory (in particular, a conception of who/what counts as a moral person). Dworkin argues that judges must rely on their own moral beliefs, but that our tradition rules out certain kinds of beliefs as reasons, e.g. religious reasons.
    I am reacting to Dworkin's oral remarks in real time, and not a written text. Moreover, Dworkin was rushing, so it is difficult to assess his arguments on public reason. Nonetheless, his moves seemed awfully quick and underdeveloped to me. For example, Dworkin asserted that if you believe something passionately, then you also must believe that any reasonable person would or could also believe that thing. But this argument fails to clash with Rawls's arguments as to why this is not so. Rawls developed an account of what he called "the burdens of judgment." In a pluralist society, we come from different backgrounds and affirm a variety of different religious and philosophical doctrines. Given these differences, Rawls argues, we come to recognize that other people who are reasonable will not come to agree with us about fundamental matters. So, for example, a reasonable theist could not be expected to accept as a reason for one of the constitutional essentials the proposition that God does not exist. And vice versa, a reasonable atheist could not be asked to accept as the basis for an interpretation of the right of religious liberty, the proposition that atheists will be eternally damned. Of course, not everyone accepts this kind of reasonable disagreement. There are dogmatists of every stripe who believe that only their own comprehensive views about the meaning of life and ultimate good are reasonable, and that everyone who disagrees is unreasonable. Perhaps, Dworkin meant to endorse this kind of dogmatism, but this would not be a minor disagreement with Rawls. Rather, it would be a rejection of a fundamental premise of Rawls's theory of justice--the citizens are equal in the sense that they possess the two moral powers and hence that each individual has the power to form, reflect on, and revise her own conception of the good. I do not see how Dworkin can reject the fact of reasonable pluralism without also losing Rawls's conception of the person, and once Dworkin has jettisoned all this, it is hard to see how Dworkin's views could, in any meaningful sense, be seen as Rawlsian views.
    Finally, Dworkin turns to the question of objectivity and truth, and to Rawls’s remarks on this in Political Liberalism. First, disagreement (even persistent disagreement) is not evidence against truth. Second, it would be a mistake to suppose that the idea of objectivity in the moral or legal domain requires metaphysical backing. But, Rawls added, but if we want to claim that we say is true, then we have a responsibility to integrate that judgment into a cohesive whole. (Dworkin then quotes an extended passage from Political Liberalism on political constructivism and slavery.) Coherent connection and due reflection are required for truth.
    At the very end, Dworkin confesses that his interpretation of Rawls makes Rawls very much like Dworkin.
    It was a typical Dworkin performance. Brilliant at points, but rushed and underdeveloped at others. Like many talks Dworkin has given in recent years, it has a sort of rough unfinished feel. What shines through, however, is Dworkin’s deep respect for and engagement with the ideas of John Rawls.

Blogging from Rawls and the Law, Part 4: The Constitutional Essentials of Political Liberalism
    Frank Michelman
      The first speaker is Frank Michelman, the distinguished constitutionalist from Harvard Law School. Michelman is a distinguished and handsome man, with graying hair and a strong moustache. He is a careful and sensitive thinker, and this shines through in his presentation. His topic is “judicial review,” a topic upon which Rawls never developed a fully worked out view. Michelman wants to explore the possibility that Rawls’s position on this important issue is inconsistent. Is judicial review required by justice as fairness (Rawls’s theory)? In Political Liberalism, Rawls (according to Michelman) disavows taking a position on the question of judicial reviews. Michelman then notes Rawls’s idea of the “constitutional essentials,” arguing that Rawls’s sorting of some requirements of the two principles into this category and its complement (things outside the constitutional essentials). Justice as fairness, says Michelman leaves a place for judicial review, and the distinction between things inside and outside of the constitutional essentials may then map onto those matters that are inside and those that are outside the power of judicial review. It is a shame that Michelman had only 12 minutes—clearly this topic and the speaker were worthy of an hour of their own. Just when it was getting exciting, when Michelman was developing his own view of what Rawls’s position should be, time was really out!
    Lawrence G. Sager
      Now at the University of Texas, Larry Sager was for many years on the faculty of NYU. Sager has long curly hair and a full beard—the very model of the professor who refuses to admit that the 1960’s ended more than 30 years ago. Sager too begins with Rawls’s refusal to constitutionalize the full difference principle. It is not accident that constitutional theorists of Michelman and Sager’s generation, this topic is central: for them, a constitutional right to a just distribution of income was the holy grail of constitutional theory. For a certain group of constitutional theorists, Rawls’s work was tantalizing, making a just distribution of income a cornerstone of justice but refusing to make such a right to such a distribution part of the constitution and hence enforceable by the courts. Unlike Michelman, Sager does not think that the key to this refusal is justiciability. Rather oddly, Sager spends some time making the point that Rawls’s position on this issue is not dictated by the constitutional text. Duh! Now, Sager is wandering—discussing the role of constitutional precedent, a topic that is only tangentially related to the question he is supposedly addressing. Now, Sager runs over some of the Supreme Court’s cases dealing with welfare, and asserts that a right to welfare makes sense of them—an argument that I think that many theorists of a younger generation believe has been thoroughly discredited. Sager is a marvelous speaker and a living museum of constitutional theory. It was thrilling to hear him argue once again for the grand ideas of big think liberal constitutional theory.
    James Fleming
      Jim Fleming is an old friend, and, in my opinion, one of the finest constitutional theorists of his generation. He is one of the very sharpest thinkers about constitutionalism, and his work is deeply entwined with Rawls’s theory. Fleming begins by outlining his own view, which emphasizes something very important—the relationship between the basic liberties (guaranteed by the first principle) and what Rawls calls “the two moral powers.” The first moral power is the power to deliberate and act on a conception of the right, and the second moral power is to form and revise a conception of the good. Thus, the basic liberties (such as freedom of speech and liberty of conscience) provide the framework that enable citizens to exercise the two moral powers. Fleming moves on to the problem of balancing in constitutional doctrine—relating this to Rawls’s discussion of the relationship between the two principles of justice. The basic liberties cannot be compromised (balanced away) on the basis of values outside of the first principle of justice, but such balancing may take place within the various values served by the first principle. Fleming has a nice discussion of the R.A.V. case, critiquing Scalia’s opinion from a Rawlsian framework, and he has a similarly nice analysis of the Roberts v. Jaycees case. In both cases, Fleming’s strategy is to show that liberties within the first principle are being adjusted against each other. The contrast between Fleming (representing a younger generation of constitutional theorists) and Sager symbolizes a very significant change in constitutional theory. Fleming had a sophisticated command of the inner workings of Rawls’s theory, and applies that understanding to the constitutional issues that have commanded the attention of the Rehnquist court.
    T.M. Scanlon
      Tim Scanlon was one of Rawls’s early graduate students and is one of the world’s most distinguished moral philosophers. Scanlon’s task was to comment on Fleming, and Scanlon begins by noting that Rawls did not believe his theory would, could, or should directly guide constitutional adjudication. As an aside, Scanlon makes the point that rights cannot be balanced against one another—if they are to be rights, they must be adjusted if they seem to conflict. Now Scanlon goes to the blackboard. I feel like I’m back in a graduate seminar. Scanlon moves to explication of the structure of Rawls’s theory, and in particular of what Rawls called the four-stage sequence. The original position is the first stage, but that is not where constitutional rights are defined in Rawls’s theory. Rather, that function belongs to the second stage—the constitutional convention. And more content is provided at the third stage—the legislative stage. The four stage sequence is key to understanding the interplay between Rawls’s theory and constitutionalism, but many theorists simply ignore this aspect of Rawls’s theory. Now Scanlon turns to hate speech and the R.A.V. case. Regulating hate speech might be justified on the basis of its impact on what Rawls called, “the social bases of self respect.” Scanlon simply puts this to the side—too bad. Scanlon then turns to the analogy that Fleming made between hate speech and regulation of campaign finance. By restricting hate speech, we could try to guarantee the “fair value of the political liberties.” Scanlon then gets into the details, noting that Rawls’s discussion of campaign finance explicitly stated that campaign finance must be content neutral, but in the case of hate speech, regulation cannot be content neutral. Scanlon asks, “What should we do about this problem?” One possibility, he suggests, is “narrow tailoring.” Essentially, Scanlon’s position is that narrow tailoring would allow “hate speech” when it is part of a serious political discussion. But, Scanlon says, serious debate about the equality of citizens may be worse than nonpolitical ridicule or harassment. I can’t keep up with the pace of Scanlon’s argument, and he never reached a conclusion. What a wonderful job. Scanlon was brilliant and lucid.
    Discussion Among the Panelists Michelman starts with Sager—disavowing that justiciability is the explanation of Rawls’s divisions between that which is inside the constitutional essentials and that which is not. Michelman then turns to Sager’s concerns with ascertainability and entanglement, and asks the question, “Why are these things important, if we are not concerned with judicial review?” Michelman suggests that the answer might be found in Rawls’s principle of political legitimacy—requiring that the constitutional essentials be justifiable through public reason.
    Sager replies, stating that he agrees with everything that Michelman has said.
    Fleming replies to Scanlon, initially by noting that his own view, although Rawlsian, is not necessary Rawls’s own view. He then makes a revealing point—that is analysis was guided by his intuitions about how the cases should come out. In other words, results first, theory second. I am severely distracted, because Ronald Dworkin has just come into the room and is now sitting next to me.
    Sager makes a comparative point, suggesting that in many European jurisdictions hate speech, although banned in ordinary discourse, would be allowed in a serious novel (and presumably, films or scholarly works, as well).
    Tim Scanlon emphasized that he had not come down on one side or the other of the hate speech question, but rather that his goal was to show that both sides of the hate speech debate were represented in Rawls’s own work.
There are several questions from the audience, some good, others not. One of the great risks of seeking to turn an academic conference into a public event is the possibility of off-the-wall questions, and several of those came from the audience. The session comes to a close, with applause. It was an auspicious beginning.

Blogging from Rawls and the Law, Part 3: The Insider's Guide to Rawls Terminology This is the third installment of blogging from the big Rawls and the Law conference at Fordham law school. Scroll down for details on the conference, which begins the morning and runs through tomorrow. Since I am likely to be throwing around quite a bit of Rawlsian jargon, I thought I would provide a quick guide to some of the most important concepts and abbreviations:
    TJ: If you want to signal to others that you are a "Rawls insider," the single most important thing is to use initials TJ to refer to Rawls's most important book, A Theory of Justice. But do not similarly abbreviate Political Liberalism, The Law of Peoples, or Justice as Fairness.
    The Liberty Principle. The first of Rawls's two principles of justice; the liberty principle guarantees to all citizens a fully adequate scheme of basic liberties.
    The Difference Principle. The second of the two principles, the difference principle requires that social and economic inequalities work to the benefit of the least advantaged group in society and be attached to positions that are open to all on the basis of fair equality of opportunity.
    Lexical ordering. The two principles are lexically ordered. The first principle must be satisfied, before the second principle kicks in.
    Justice as fairness. "Justice as fairness" is the official name that Rawls gives to his theory. He uses "Justice as rightness" to refer to a related view, which is a comprehensive moral doctrine and not just a theory of political morality.
    The Original Position. This is a thought experiment in which representative parties deliberate behind a veil of ignorance and choose between the two principles and rival theories of justice, such as utilitarianism.
    Reflective equilibrium. Rawls did not believe that he could demonstrate that justice as fairness follows deductively from first principles. Rather, he suggested that his views could be justified by the method of reflective equilibrium, by which we adjust our general principle of justice in light of our considered judgments about particular cases and abstract principles. When all of our judgments are consistent, we are in reflective equilibrium.
    Political Liberalism. This is the name that Rawls gave to his later views as modified to take into account criticisms of TJ. Political liberalism is a political view and not a metaphysical view. It flows from ideas that are accepted in a modern democratic society and is not based on a metaphysical doctrine of the nature of persons.
    Overlapping Consensus. Rawls believed that justice as fairness could be stable (or self-reproducing) despite the fact that persons in a free society will inevitably disagree over ultimate questions of morality and religion. Rawls argued that this stability is possible because justice as fairness could be the subject of an overlapping consensus among the adherents of a variety of comprehensive moral, religious, and philosophical doctrines.
    Public Reason. Public reason is simply the shared reasons of citizens. Nonpublic reasons, on the other hand, are those which are limited to particular groups, such as the reasons that are internal to particular religions or to comprehensive philosophical theories of the good. Public reason includes the shared values of the political culture (such as the equality of citizens) as well as logic and mathematics, common sense, and the noncontroversial results of science.
I'm sure that as I blog today, I'll need to define several additional terms, but this is at least a start!

Blogging from Rawls and the Law, Part 2: A Very Short Annotated Bibliography This is the second installment of blogging from the big Rawlsfest at Fordham Law School. The sessions will be starting in another hour or so, but in the meantime, I thought I would provide bits and pieces of background material.. A few months ago, I prepared a very short annotated bibliography of Rawls's works and some of the secondary literature, and I thought this would be a good occaision to share it with you. Here goes:
    Works by Rawls
    • John Rawls, ''Political Liberalism'' (Paperback edition, New York: Columbia University Press, 1996).
        The hardback edition published in 1993 is not identical. The paperback adds a valuable new introduction and an essay titled "Reply to Habermas."
    • John Rawls, ''A Theory of Justice'' (Revised edition, Cambridge, Massachusetts: Belknap Press, 1999).ISBN:0-674-00077-3.
        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). ISBN: 0-674-00079-X.
        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). ISBN: 0-674-1379-6.
        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.
    Secondary Literature
    • ''Reading Rawls: Critical Studies of ''A Theory of Justice'','' edited by Norman Daniels (New York: Basic Books, 1974) ISBN: 465-06854-5.
        This anthology collects many of the important early reactions to ''A Theory of Justice'', including a famous essay by H.L.A. Hart.
    • Chandran Kukathas & Philip Petit, ''Rawls: ''A Theory of Justice'' and its Critics'' (Stanford: Stanford University Press, 1990) ISBN: 1-8047-1768-0.
        This is a short study of Rawls's work and critical reactions. Philip Petit is a prominent political philosopher in his own right.
    • ''Cambridge Companion to Rawls,'' edited by Samuel Freeman (Cambridge: Cambridge University Press, 2003) ISBN: 0521657067.
        This anthology includes essays by prominent philosphers, including Thomas Nagel, T.M. Scanlon, Onora O'Neil, and Martha Nussbaum.

Blogging from Rawls and the Law, Part 1: A Biographical Sketch This morning I am blogging from Rawls and the Law, the big Rawlsfest at Fordham Law School near Lincoln Center in New York. You can scroll down to the next entry for details on the conference.. Before I begin reporting on the sessions, I thought I'd give you just a bit of background. Let's start with his life. John Rawls was the single most important political philosopher of the twentieth century. Here is a brief biographical sketch from the open source wikipedia:
    John Borden (Bordley) Rawls was born in Baltimore, Maryland. He was the second of five sons to William Lee Rawls and Anna Abell Stump. Rawls only attended school in Baltimore for a short time before transferring to a renowned Episcopalian preparatory school in Connecticut called Kent. Upon graduation in 1939, Rawls went on to Princeton University where he became interested in philosophy. In 1943, he completed his Bachelor of Arts degree and joined the army. During this time (World War II), Rawls served as an infantryman in the Pacific where he toured New Guinea, the Philippines, and Japan and witnessed the aftermath of the bombing of Hiroshima. After this experience, Rawls turned down the offer of becoming an officer and left the army as a private in 1946. Shortly thereafter, he returned to Princeton to write a doctorate in moral philosophy. Rawls then married Margaret Fox, a Brown graduate, in 1949. Margaret and John had a shared interest in indexing - they spent their first holiday together writing the index for a book on Nietzsche, and Rawls wrote the index for A Theory of Justice himself. After earning his Ph.D. from Princeton in 1950, Rawls decided to teach there until 1952 when he received a Fulbright Fellowship to Oxford University (Christ Church), where he was influenced by the liberal political theorist and historian of ideas Isaiah Berlin. Next, he returned to the United States, serving first as an assistant and then associate professor at Cornell University. Finally in 1962, he became a full professor of philosophy at Cornell. Another accomplishment made in the early 1960s was his achievement of a tenured position at Massachusetts Institute of Technology. However, he moved to Harvard University two years later, where he remained for almost forty years. Unfortunately, Rawls suffered the first of several strokes in 1995, which severely impeded his ability to continue working. Nonetheless, he was still able to complete a work entitled, The Law of Peoples, which contains the most complete statement of his views on international justice.
More soon!

Rawls and the Law at Fordham Today and tomorrow at Fordham, the big Rawls and the Law fest. It is Friday morning, and I took the red eye from San Diego last night. I'm sitting in the Starbucks on Columbus circle, preparing to blog what promises to be the legal theory event of 2003. Here are the details:
    RAWLS AND THE LAW Fordham University School of Law November 7-8, 2003 Rawls and the Law Preliminary Schedule, Panels, and Panelists FRIDAY, NOVEMBER 7: 1.The Constitutional Essentials of Political Liberalism(9:30 a.m.-11:00 a.m.)
      James E. Fleming, Fordham University School of Law Frank I. Michelman, Harvard Law School T.M. Scanlon, Harvard University Department of Philosophy Jeremy Waldron, Columbia University School of Law Moderator: Charles A. Kelbley, Fordham UniversityDepartment of Philosophy
    2. Keynote Address: Rawls and the Law (11:15 a.m.-12:30 p.m.)
      Ronald Dworkin, New York University School of Law
    Lunch (12:30 p.m.-2:00 p.m.) 3. Equal Citizenship: Gender (2:00 p.m.-3:15 p.m.)
      Linda C. McClain, Hofstra University School of Law Susan Moller Okin, Stanford University Department ofPolitical Science Marion Smiley, Brandeis University Department of Philosophy Moderator: Tracy E. Higgins, Fordham University School ofLaw
    4. Equal Citizenship: Race and Ethnicity (3:30 p.m.-4:45 p.m.)
      Anita L. Allen, University of Pennsylvania Law School Tommie Shelby, Harvard University Department of African &African-American Studies Seana Shiffrin, University of California at Los AngelesSchool of Law Moderator: Sheila R. Foster, Fordham University School ofLaw
    5. The Law of Peoples (5:00 p.m.-6:15 p.m.)
      Seyla Benhabib, Yale University Department of PoliticalScience Stephen Macedo, Princeton University Department of Politics Thomas W. Pogge, Columbia University Department ofPhilosophy Moderator: Martin S. Flaherty, Fordham University Schoolof Law
    Reception (6:15 p.m.) SATURDAY, NOVEMBER 8: 6. Justice as Fairness Restated: Tort (9:30 a.m.-11:00 a.m.)
      George P. Fletcher, Columbia University School of Law Gregory C. Keating, University of Southern California Law Center (visiting at Harvard) Stephen R. Perry, New York University School of Law Arthur Ripstein, University of Toronto Department of Philosophy Moderator: Benjamin C. Zipursky, Fordham University School of Law
    7. Property, Taxation, and Distributive Justice (11:15a.m.-12:30 p.m.)
      Anne L. Alstott, Yale Law School Robert D. Cooter, University of California at Berkeley School of Law Thomas Nagel, New York University School of Law and Department of Philosophy Moderator: Linda F. Sugin, Fordham University School of Law
    Lunch (12:30 p.m.-2:00 p.m.) 8. The Idea of Public Reason Revisited (2:00 p.m.-3:30 p.m.)
      Samuel Freeman, University of Pennsylvania Department of Philosophy Abner S. Greene, Fordham University School of Law David A. J. Richards, New York University Law School Dennis Thompson, Harvard University Department of Government Moderator: Michael Baur, Fordham University Department of Philosophy

Duff at Oxford At Oxford's Jowett Society, Antony Duff (Stirling) is lecturing, but I lack a title.
Go anyway, whatever Duff is doing, it is bound to be good!

Lawrence v. Texas Symposium at Ohio State At Ohio State, a symposium on Lawrence v. Texas with Martha Nussbaum, Cass Sunstein, Catharine A. MacKinnon, and others.
More at Lee Blog!

Slaughter gives the Alec Roche Lecture at Oxford At Oxford, Anne-Marie Slaughter (Princeton) presents Alec Roche Annual Lecture in Public International Law.

Wilkinson on Commodification of the Body At the Society for Applied Philosophy in London, Steven Wilkinson (Keele) & Carol Jones (University of Wales, Cardiff) present Commodification of the Body: Ethical Issues.

Midgley at the Royal Instiute of Philosophy At the Royal Institute of Philosophy in London, Mary Midgley presents Souls, Minds, Bodies and Planets.

Heuer on Buck Passing at Tulane At Tulane's Center for Ethics and Public Affairs, Ulrike Heuer (University of Pennsylvania) presents Buck-Passing. On the Relation of Values and Reasons for Actions.

Philosophy of Language at Yale At Yale's Philosophy Department, there is a conference entitled Themes in Philosophy of Language, participants include: David Kaplan, Robert Stalnaker, Timothy Williamson, Anne Bezuidenhout, Jennifer Hornsby, Sean Kelly, John Mcfarlane, David Sosa, Katalin Balog, Keith Derose, Michael Nelson, Paul Pietroski, Ted Sider.

Murray at ANU on Traditional Leaders and Democracy At Australian National University, Christina Murray (University of Cape Town) presents South Africa's Troubled Royalty: Traditional leaders after democracy, the Annual Geoffrey Sawer Lecture.

Ewing on Ethics and Counter-Terrorism at Buffalo At SUNY Buffalo, Chuck Ewing presents Ethical Dilemmas Faced by Psychologists Working for the Government in Intelligence and Counter-Terrorism Work.

Juratowitch on Retroactive Criminal Liability at Oxford At Oxford's Human Rights Discussion Group, Ben Juratowitch presents The Prohibition on Retroactive Criminal Liability in International Human rights Law.

Charles on Colored Speech Guy-Uriel Charles (University of Minnesota School of Law) has posted Colored Speech: Cross Burnings, Epistemics, and the Triumph of the Crits? on SSRN. Here is the abstract:
    This Essay examines the Court's recent decision in Virginia v. Black. It argues that Black signifies a different approach to the constitutionality of statutes regulating cross burnings. It shows how the Court's conservatives have essentially accepted the intellectual framework and the mode of analysis suggested previously by the critical race theorists. In particular, this Essay explores the role that Justice Thomas plays in the case. The Essay explains Justice Thomas's active participation as a matter of epistemic authority and epistemic deference.

Women Lawyers & Income Disparity Joni Hersch (Harvard University - Harvard Law School) has posted The New Labor Market for Lawyers: Will Female Lawyers Still Earn Less? (Cardozo Women's Law Journal, Vol. 10, No. 1, Fall 2003) on SSRN. Here is the abstract:
    To examine the magnitude and source of the gender pay disparity among lawyers, this paper uses data from a large national survey reporting individual information for 1990 and 1993 on a wide array of work related and personal characteristics. The data show a large earnings shortfall for female lawyers earning their J.D. before 1990, even after controlling for differences in work history, hours worked, type of employer, and family characteristics. In contrast, female lawyers earning their J.D. between 1990 and 1993 earn more than their male counterparts. By examining the sources of the gender pay gap among the older cohort it is possible to draw inferences for the younger cohort on the likelihood that this female earnings advantage will persist. The findings of this paper suggest that although the gender disparity will narrow as women gain experience in the legal profession, a gap due to family status is likely to persist. First, men receive a large premium to being married. To the extent this premium derives from specialization, women lawyers may likewise benefit from marital specialization as more women have spouses with supporting careers. But the evidence from the younger cohort does not bode well, as traditional patterns of spousal employment status persist. Second, although marital status and children do not directly affect women's earnings, they do influence hours worked. Finally, one cannot rule out the existence of discrimination because there is a large unexplained gender pay disparity that remains even after controlling for extensive work-related and personal characteristics.

Kaplow on Redistribution Louis Kaplow (Harvard Law School) has posted Concavity of Utility, Concavity of Welfare, and Redistribution of Income on SSRN. Here is the abstract:
    The marginal social value of income redistribution is understood to depend on both the concavity of individuals' utility functions and the concavity of the social welfare function. In the pertinent literatures, notably on optimal income taxation and on normative inequality measurement, it seems to be accepted that the role of these two sources of concavity is symmetric with regard to the social concern about inequality in the distribution of income. Direct examination of the question, however, reveals that this is not the case. Concavity of utility has a simple, direct effect on the marginal social value of redistribution, as might be expected, whereas concavity of the social welfare function has a more subtle influence, one that in some cases may not be very significant. The implications of this difference are examined for some standard forms of utility and welfare functions, including particular versions that appear in the optimal income taxation literature.

Thursday, November 06, 2003
Weissman on Human Rights Deborah Weissman (University of North Carolina at Chapel Hill - School of Law) has posted The Human Rights Dilemma: Rethinking the Humanitarian Project (Columbia Human Rights Law Review, Forthcoming) on SSRN. Here is the abstract:
    This Article provides an interpretive account of the human rights discourse at a time when the U.S. legal community is deepening its relationship with these issues. It maps the context of the human rights project over the past one hundred years, with a critical eye and as a cautionary tale. It reviews the historical circumstances and the ideological framework in which human rights have been appropriated as an instrument of national policy, often to the detriment of humanitarian objectives. It considers the role of law, not only as an instrument by which colonial rule was maintained but as a system that has claimed center stage in the human rights project, often producing outcomes inimical to human rights. It demonstrates that the disparity in power between colonizer and colonized continues to affect the ongoing development of human rights norms and has resulted in the production of legal remedies that are often incapable of safeguarding international human rights. It uses comparative legal discourse as a way to illustrate how the human rights project stipulates the need to rescue people of other cultures from themselves. The Article argues for a shift in methodological and attitudinal approaches to human rights work and suggests that commitment to human rights must be guided by an awareness of the power relationships from which remedies originate. It contends that without such awareness, humanitarian enterprises may inadvertently result in baneful consequences and implicate the human rights project in the very wrongs it seeks to correct.

Dogan on Code & the Common Law Stacey Dogan (Northeastern University School of Law) has posted Code Versus the Common Law (Journal of Telecommunications and High Technology Law, Vol. 2, Fall 2003) on SSRN. Here is the abstract:
    The explosion of peer-to-peer file sharing has forced a reexamination of the essential structure of copyright law in the United States. In a digital, interconnected world, the dispersion of copying and distribution activities makes it more difficult for copyright holders to identify users who derive value from their works. And at least theoretically, the inability to capture such value could ultimately jeopardize the incentive to produce and distribute creative expression. There is widespread disagreement over what, if anything, should be done about these threats. While suggestions range from copyright abandonment to digital lockup, two of the principal proposals share an important common feature: each would replace our current law, which centers on copyright owners and those who actually use their works, with one that sweeps a much broader array of characters into the legal arena. Under the first proposal, the current market-based approach to intellectual property licensing would give way to a government-imposed levy on a wide range of technology services. Under the second scheme, reflected in bills such as the failed Consumer Broadband & Digital Television Promotion Act, an assortment of related industries would share responsibility for protecting against infringement of publishers' copyrights. This article critically evaluates a core assumption that underlies these schemes: that the challenges posed by file sharing either cannot, or should not, be addressed through application or tweaking of the common law of copyright. Before shifting from the current acts-based, individualized scheme to one that falls back on neutral technology as either a tax base or an enforcer, we should have confidence that the current system does not work and cannot be fixed.

Race and Judicial Selection A thoughtful post by Stuart Buck, but I am not persuaded.

Free Napster At Penn State.

New Career Opportunity: Virus Bounty Hunter The New York Times reports:
    At a news conference in Washington including national and international law enforcement officials, Microsoft announced a $5 million antivirus reward program to encourage tipsters, with initial rewards of $250,000 for evidence leading to the capture and conviction of the original authors of the MSBlast and SoBig programs, which plagued Internet users this year.
$250,000 may be chump change to Jack Nicholson, but it might just do the trick.
The privately offered bounty is little discussed by legal theorists, and I would guess that in general bounties are unlikely to be offered because of the combination of: (1) free rider problems among those who benefit from the result of the bounty, and (2) transaction costs in negotiating a bounty program among those who will benefit. But, of course, these problems are solved when a field is dominated by a monopolist.

Socratic Method & IM Courtesy of Stephen Bainbridge, check this out!

30 Hour Mini Marathon Roll Call reports that the Senate Republican Leadership is going for a mild version of 24/7:
    The battle lines have been drawn in the Senate for the chamber’s first all-night political brawl in more than a decade, with both sides spoiling for a fight next week over the judicial confirmation process.
    Senate Republicans said that their so-called “30-hour plan” — at least 30 straight hours of uninterrupted debate on judges — is set to begin sometime Wednesday, probably late in the afternoon, and carry on until nearly midnight Thursday. They’re even holding out the option of going into the wee hours of the morning Friday if their troops are up for it.
The Republicans are not trying to break the filibuster (although they may say that they are). Rather this is an attempt to mobilize their base and turn up the political heat on the Democrats.
Why not go 24/7 until the Democrats give up? Suppose the Republicans try to break the filibuster of a judicial nomination by forcing it to go 24/7. Now imagine that it is 11 p.m. In order to muster a quorum, pretty much the whole Republican caucus has to be there. If they leave, the Democrats can suggest the lack of quorum and go home for the night. If they stay, then the Democrats are home sleeping while the Republicans grow progressively more tired and cranky. The basic point is that the filibustering party has a huge tactical advantage. Here is the analysis of Stan Bach of the Congressional Research Service (Filibusters and Cloture in the Senate):
    “… late-night or all-night sessions put as much or more of a burden on the proponents of the question being debated than on its opponents. The Senators participating in the filibuster need only ensure that at least one of their number always is present on the floor to speak. The proponents of the question, however, need to ensure that a majority of the Senate is present or at least available to respond to a quorum call or roll call vote. . . . This works to the advantage of the filibustering Senators, so the burden rests on their opponents to ensure that the constitutional quorum requirement always can be met.
That's why it has been 20 years since 24/7 has been tried. In fact, no modern filibuster has been broken by the 24/7 tactic.
Thanks to Rick Hasen, election-law superblogger, who has a short post on this here.

Rawls and the Law tomorrow at Fordham I will be blogging from the Rawls and the Law conference tomorrow at Fordham. Be sure and say hi if you are there!

Elizabeth Garrett on Framework Legislation at USD/UCSD At the University of San Diego & University of California at San Diego's Law, Economics and Politics Workshop, Elizabeth Garrett (University of Southern Californa) is presenting Framework Legislation. Drat! This conflicts with a class, so I must miss what promises to be a very interesting paper! Here is a taste:
    Much recent scholarship studying Congress has focused on issues of institutional design and assessed procedural innovations to determine why rules have been changed or retained and to describe the effects of certain design features on outcomes. Notwithstanding the focus on procedure, one component of contemporary legislative process has not received sustained attention. There is no systematic study of what I call “framework legislation.” Such legislation establishes a procedural framework to structure decision making in a particular policy area; it supplements, and sometimes supplants, ordinary rules of procedure. Constitutions are frameworks in a similar way, although they are more durable than framework legislation and they usually apply generally, rather than to a subset of issues. The standing rules of the House and Senate also establish frameworks for deliberation and congressional action; again, they tend to apply generally, although certain rules of procedure may be related to the kind of framework legislation I study here. The best known and most ubiquitous example of framework legislation is the congressional budget process, first put into place with the Congressional Budget and Impoundment Control Act of 1974 and substantially revised in 1985 with adoption of the Balanced Budget and Emergency Deficit Control Act (“Gramm-Rudman-Hollings”) and changed again in 1990 with enactment of the Budget Enforcement Act. Although the budget process tends to dominate discussion of framework legislation, and exerts great influence on the design of other frameworks, it is only one example of a larger phenomenon.
    Other scholarship studying the institutional design of Congress has discussed framework legislation, typically in one of two contexts. First, frameworks have been assessed in analyses of the larger phenomenon of modern congressional change and reform. It identifies and explains various procedural innovations adopted by the post-reform Congresses, changes that began in the 1970s with the Legislative Reorganization Act of 1970 and continued through the reforms implemented by the 104th Congress and its Contract with America. This scholarship describes and evaluates the rise of “unorthodox lawmaking,” a term used by Barbara Sinclair to differentiate the complicated reality of modern lawmaking from the textbook process. Unorthodox lawmaking and post-reform innovation includes the adoption of framework legislation, but the procedural changes discussed in this work are broader and thus any analysis of framework laws is incidental.
    Framework laws are discussed in a second scholarly context that has a narrower focus than the assessment of sweeping procedural trends in modern Congresses. Some scholars have analyzed one particular example of framework legislation, usually the congressional budget process. Although such focused studies may lead to conclusions about framework legislation in general, as well as about other congressional procedures, the scholarship tends to be restricted to understanding and critiquing the congressional budget process, or much less frequently, another particular framework. Moreover, to the extent that general conclusions can be drawn, they are often left to the reader and not made explicitly. This approach is consistent with the objective of the scholarship – to understand the development or operation of a particular framework.

Lemley on IP, Ex Post & Ex Ante, at Stanford At Stanford's Olin series, Mark Lemley (School of Law, University of California, Berkeley) presents Ex Ante Versus Ex Post Justifications for Intellectual Property. Here is a taste:
    Of late, new justifications for intellectual property protection have begun to appear in the literature and in court decisions. These arguments focus not on the incentive to create new ideas, but on what happens to those ideas after they have been developed. One form of the new justifications argues that intellectual property protection is necessary in order to encourage the IP owner to make some further investment in the improvement, maintenance, marketing, or commercialization of the product. Another strand argues that such protection is necessary in order to prevent a sort of “tragedy of the commons” in which the new idea will be overused. I refer to both these new arguments as “ex post” justifications for intellectual property, because they defend intellectual property rights not on the basis of the incentives they give to create new works but on the basis of the incentives an IP right will give its owner to manage or control works that have already been created.
And here is a nice bit on the Posner/Landes interference argument:
    Landes and Posner make a more sophisticated argument – that consumers desire uniformity in their cultural icons, and that permitting a work to enter the public domain will permit its reuse in many different contexts, thus perhaps reducing the value consumers get from the work.65 The argument is that if we permit portrayals of Mickey Mouse as a drug dealer, or Barbie as a porn star, or Scarlett O’Hara abusing her slaves, these countercultural works will somehow infect the wholesome nature of the icon, ruining it for everyone else. In economic terms, Landes and Posner argue that the creation of unauthorized derivative works may have a demand-reducing effect on all works based on the original, overwhelming what they acknowledge is a positive economic effect from reducing price and expanding the potential market.
    The demand-reducing effects argument may be true, though I’m skeptical that it is a widespread enough phenomenon to serve as a justification for copyright or the right of publicity. First, it would seem to apply only to the subset of works that are extremely well known – that have become cultural icons around which people have expectations. Thus, it is better as a justification for the right of publicity than for copyright, where Landes & Posner locate it. Second, there is substantial social value to allowing people to criticize and subvert cultural icons.66 At a minimum, that social value needs to be weighed against any demand-reducing effect. Third, the problem seems self- limiting. If customers want the original Gone With the Wind, not the rather more sordid story of The Wind Done Gone, there won’t be a large market for the latter, and we shouldn’t expect them to proliferate sufficiently to drive out demand for the former. If on the other hand they do proliferate, presumably we should question our intuition that customers want the real thing and not the retelling. In short, reduc ing the value customers place on the original Gone With the Wind is likely to be a problem only where there is a substantial increase in social value among the large group of people who demand the retelling from the slave’s perspective. Finally, even at its strongest the Landes/Posner argument justifies only controls on unauthorized derivative works, not controls on reproduction of copyrighted works that have entered the public domain. It therefore cannot justify indefinite copyright terms.
Download it while its hot!

Van Parijs on European Language at NYU At NYU's Colloquium in Legal, Political and Social Philosophy, Philippe Van Parijs (Universite Catholique de Louvain, Belgium) presents Europe's Three Language Problems. This paper explores the issues of justice raised by what seems to be the inevitability of English becoming the language of Europe. Here is a taste:
    Firstly, inequalities in competence in the lingua franca can be massively reduced through an effective ban on dubbing and other ways of facilitating early learning. Secondly, inequalities in the shouldering of the burden of learning the lingua franca can be compensated by poaching the web and free riding in other ways on the intellectual production of the natives of the lingua franca. Thirdly and finally, inequality in the respect expressed towards the various languages can be alleviated to some extent through demystification and ceremonial recognition, but above all through allowing each recognised community to give top status to its language within some home territory. Providing fairness is vigorously pursued along each of these three dimensions, we can accept without rancour or resentment the increasing reliance on English as a lingua franca. We need one, and only one, if we are to be able to work out and implement efficient solutions to our common problems on European and world scale, and indeed if we are to be able to determine and secure, again Europe- and worldwide, a fair distribution of burdens and benefits, even in matters of linguistic justice.

Cruz on the Marriage Amendment at Loyola Marymount At Loyola Marymount's Loyola Law School, David B. Cruz (Professor of Law, University of Southern California Law School) presents The Federal Marriage Amendment.

Selmi on Disparate Impact Theory at BU At Boston University, Mike Selmi (George Washington University) presents Was the Disparate Impact Theory a Mistake?

Murphy at Penn At the University of Pennsylvania's law and philosophy program, Liam Murphy (New York University) is speaking.

Kalman on the Dark Ages of Yale at UCLA At UCLA's legal history series, Laura Kalman (U.C. Santa Barbera) presents The Dark Ages: Yale Law School and "The Sixties.

Orbach on the Ownership of Creative Works for Hire at Michigan At the University of Michigan's Law & Economics series, Barak Orbach (Humphrey Fellow in Law & Economics, Michigan) presents The Law and Economics of Hired Creativity: Who Should Own the Rights .

Smith on Mind and Meaning at Berkeley At U.C. Berkeley, Philosophy, Barry Smith (Birkbeck School of Philosophy) presents The Interiority of Mind and the Publicity of Meaning.

Cullity on Public Goods and Fairness at ANU At RSSS (Australian National University), Garrett Cullity (University of Adelaide) presents Public Goods and Fairness.

Taha on Media Con at FSU At Florida State, Ahmed Taha (Wake Forest) presents Is Fox in the Henhouse? Empirical Evidence on Media Conglomerates and Bias in Movie Reviews.

Lippitt on Kierkegaard & MacIntyre at Herfordshire John Lippitt (Hertfordshire) presents After Kierkegaard After MacIntyre: Several Questions for Narrative Ethics in London at the University of Hertfordshire Centre for Normativity and Narrative.

Wednesday, November 05, 2003
Spier on Manufacturer Liability at USD/UCSD
    Introduction At the University of San Diego & University of California at San Diego's Law, Economics and Politics Workshop, Kathy Spier (Northwestern) presented Manufacturer Liability for Harms Caused by Consumers to Others.
    Update: Spier's Talk I attended Spier's talk this afternoon afternoon at UCSD. This paper, which was coauthored with Bruce Hay (Harvard Law), focuses on the question whether manufacturers should be liable for harms to third parties when the consumers of the product are judgment proof. For example, should a gun manufacturer be liable to third parties for injuries caused by guns, if the consumer is judgment proof? The idea is that the manufacturer would be liable for the shortfall--the damages that could not be paid by the consumer. Spier calls this "residual manufacturer liability."
    A Question About Causation My question for Spier concerned causation: what concept of causation is involved here? If the notion of cause is "cause in fact," then there will be too much liability since every injury to every person is caused (in fact) by innumerable products. On the other hand, if we use the legal idea of "proximate cause," then Spier's question is not well defined, because proximate cause already has built into substantive rules of liability that would exclude manufacturer liability in many of the cases Speier discusses, e.g. gun manufacturers may well not be the proximate cause of an injury intentionally caused by the use of a gun.
    An Example Here is an example of the causation problem. Some consumer C shoots a victim P with a gun manufactured by G. But G is not the only but-for cause of the harm to P. The manufacturer A of the automobile that C used to drive to P's location to shoot P is a but-for cause of P's injury, as in the manufacturer T of the tires, and G of the gasoline, etc. Given a strict liability regime, how can we differentiate between G, A, T, and G? In fact, if we trace the causal chain back far enough, it will turn out that every product is the but-for cause of every injury.
    Spier's Answer Spier had a nifty slide for the causation question based on the McVeigh case:
      Fertilizer + Diesel Fuel + Ryder Truck = Bomb
    And then Spier notes that this problem is outsdie the scope of her model. She speculated that this problem is analagous to the problem of optimal allocation of a tax in public finance economics.
A very interesting talk. Download the paper if you are interested in tort theory!

Jo Wolff is the Anderson Foundation Visitor at Texas Starting today at the University of Texas Law and Philosophy Program, Brian Leiter is hosting Jonathan Wolff (Philosophy, University College London) for three days. Wolff will be the Anderson Foundation Visitor, giving papers and seminars on some of his current work on fairness and equality, as well as participating in a session on his recent book Why Read Marx Today? (OUP, 2002). This should be excellent!

Papastephanou on Rawls at the Institute for Education At London's Institute for Education, Marianna Papastephanou (University of Cyprus, Nicosia) presents Rawls's Justice as Fairness, Citizenship and Education.

Sebba on International Crimes at Oxford At Oxford's Centre for Criminological Research Seminar Series, Leslie Sebba presents The Response to International Crimes: Punishment, Compensation or Restorative Justice?.

Dana on Federal Preservation Regulation at Northwestern At Northwestern's Law and Economics Colloquium, David Dana (Northwestern University School of Law) presents Existence Value and Federal Preservation Regulation. Here is a taste:
    The challenge to federal preservation regulation builds on a crimped conception of environmental externalities. Conventional economic and political theory predicts that the states will underregulate the degradation or destruction of natural resources within their borders when some or all of the resulting adverse effects fall outside their borders, that is, upon out-of-staters. Academic critics of the federalization of environmental law agree with this conventional view at an abstract level, but, in their view, only the physical effects of the destruction of a natural resource on out-of staters should count as an interstate externality that can justify federal intervention.6 The federal courts may be moving toward an even narrower conception of what constitutes an environmental externality that can justify federal regulatory intervention – a conception in which the externality must entail interstate market effects in addition to interstate market effects.

Is the filibuster unconsitutional? Judicial Watch so claims in a lawsuit that is undoubtedly doomed to failure. Here is a brief excerpt from a report in The Hill:
    Judicial Watch, which bills itself as a legal watchdog group, is seeking the summary judgment in its complaint that the Senate’s rules, which effectively allow a minority of 41 senators to filibuster judicial nominees, are unconstitutional. The suit names as defendants the Senate, Secretary of the Senate Emily Reynolds and Senate Sergeant at Arms Bill Pickle.
I've argued that the Senate has a consitutional duty to give advice and consent (and hence to vote on judicial nominations), but it also seems clear that the Senate and not the courts are the consitutionally appropriate forum for decision of the issue.

Nard on Biopiracy Craig Nard (Case Western Reserve University - School of Law) has posted In Defense of Geographic Disparity (forthcoming Minnesota Law Review, Vol. 88, p. 221, 2003) on SSRN. Here is the abstract:
    One of the most controversial issues in contemporary patent law relates to "biopiracy," which concerns the exploitation of indigenous traditional knowledge by Western firms without justly compensating the keepers of the knowledge. A high profile example is the neem tree controversy. The leaves and bark of the neem tree, which is indigenous to India, have been used as natural pesticides and fuel by the people of India for years. In the early 1990s, the multinational company, W.R. Grace, obtained United States and European patents on pesticide products derived from the neem tree. The European patents were invalidated, but the validity of the American patents remained in tact. The reason for this difference in result is that unlike European patent law, the United States patent code distinguishes between prior knowledge and use in foreign countries and prior knowledge and use in the United States. That is, American patent law, particularly 35 U.S.C. section 102, does not recognize as prior art foreign knowledge and use, such as that which was involved in the neem case. This geographic disparity has been the subject of much criticism, most recently by Professor Margo Bagley of Emory University School of Law. In her well-written article, Professor Bagley contends that section 102's geographic limitation is unconstitutional and bad policy. This essay challenges these assertions. By advocating the elimination of the geographic disparity and thereby allowing foreign knowledge and use to serve as prior art, Professor Bagley seeks to protect developing nations and indigenous peoples from patent rights. In contrast, I argue for an offensive approach whereby patent rights serve to not only induce the commercialization of products derived from traditional knowledge, but also to compensate the keepers of traditional knowledge while respecting the need to conserve the host country’s biodiversity. In this regard, the geographic distinction in American patent law is crucial. Novelty is a sine qua non of patent protection, but I believe Professor Bagley's conception of the "public domain" is too broad and does not fully take into account the utilitarian nature of American patent law. While it is true that the Framers drafted the IP clause in the shadow abusive monopolistic practices, the driving force behind the clause was the enhancement of public welfare. The geographic distinction is consistent with the IP clause because the distinction provides an incentive to invest in and commercialize products derived from traditional knowledge; products that otherwise would most likely remain undeveloped or out of reach for a vast majority of potential beneficiaries. In other words, the prospect of a patent allows for the dissemination of and access to products based on indigenous knowledge in a manner that benefits many more people than would otherwise have benefited. And it is this result the Framers sought to promote. Professor Bagley and I found common ground when she argues that indigenous peoples "receive no benefit or compensation" from the exploitation of their traditional knowledge. This is the most pronounced concern, but the problem here is not the availability of patent protection as it is the lack of an adequate compensatory mechanism for developing nations and indigenous peoples. Safeguards must be put in place so as to prevent "biopiracy." The availability of patent protection must be accompanied by consent, an equitable compensatory structure, and a commitment to conserve the host nation’s biodiversity. The remuneration, properly channeled, can be invested in research and development, healthcare, conservation, or general infrastructure. While not without problems, this approach compares favorably to a scheme that seeks to protect indigenous peoples from patent rights by rendering patent protection unavailable for products derived from traditional knowledge.

Harel on Theories of Rights Alon Harel (Hebrew University of Jerusalem - Felt Center for Legal Studies) has posted Theories of Rights on SSRN. Here is the abstract:
    The paper is an attempt to present and investigate critically the nature of rights and their role in moral theory. The discussion is divided into two sections: section I discusses the nature of rights and section II investigates the role of rights within moral theory and its relations with other components of moral theory. Section I explores the nature of rights from three different perspectives: their formal or logical structure, their substance, and their special strength and importance in practical reasoning. Section II explores the role of rights in moral theory. The first sub-section asks, whether the value of rights is derivative, or foundational. The second sub-section investigates the accusation that the discourse of rights promotes a sectarian normative agenda, which is overly individualistic, masculine and Western.

Tuesday, November 04, 2003
Northwestern's Woes The current plight of Northwestern University's School of Law is analyzed in a detailed post by Brian Leiter.

Bainbridge versus Froomkin And even more on Janice Brown. Froomkin versus Bainbridge. Not the thrilla in Manila, but the match of fear in the sphere! Blogo--that is.
And Kaimi Wenger weighs in here.

Bookworms Multiply The Legal Theory Bookworm begat The Libertarian Bookworm. And in addition to the bookworm, there were three other regular features over the weekend: the Legal Theory Calendar, Download of the Week, and Legal Theory Lexicon (on utilitarianism).

Newman on Lochner Nathan Newman (the only blogger as intelligent as Brian Leiter) argues that Lochner would not have been endorsed by the framers of the Constitution of 1789, based on Blackstone's approval of flour mill monopolies:
    [E]conomics at the time of the Revolution was a hive of monopolies and all sorts of anti-competitive regulations. The most prominent legal theorist of the time, William Blackstone, thought it obvious that government could require people to grind their flour at a designated mill, since a mill was erected "on condition, that when erected, [all inhabitants] should all grind their corn there only." (3 Commentaries 235). Ferry owners could sue the constructers of bridges as unfair competition against their monopoly rights in this period. (Chadwick v. Property of Haverill Bridge, MA Supreme Judicial Court 1798). American towns regularly regulated the rates charged by mill owners and prohibited building roads in competition with toll roads.
Of course, Lochner was based on the 14th Amendment to the Constitution, and the free-labor ideology that grounds the 14th and informs Lochner was the product of abolitionist and reconstructionist ideas that rejected the Blackstonian paradigm. This might seem to be an obstacle to Newman's argument, but, in actuality, such a simple-minded response, relying as it does on a relatively naive conception of time, is quite misguided. For an explanation, surf here or here or here.
Update: Not to mention that this criticism of Newman is based on an unsophisticated view of causation.

Harold Koh is the New Dean at Yale Law School More here.

Completely Off Topic Department: The Sex Kitten Effect My ability to restrain myself has been completely overwhelmed by this post by Volokh. For a detailed analysis with relevant citations to the literature, Signal + Noise has the goods.

Rappaport on the Politics of the Janice Brown Nomination Over at The Right Coast, Michael Rappaport has a keen analysis of the politics of the Brown nomination. Here is a taste:
    Some people might bemoan the fact that politics is being used against Janice Brown and that the Republicans must now engage in a political campaign. While understandable, this attitude is unrealistic and may even reflect a misunderstanding of our system. The Constitution places judicial appointments in the political sphere. More fundamentally, the separation of powers and the system of checks and balances assumes that each party will use its political assets to pursue its objectives. If the Democrats can filibuster in the Senate, the President can counter by using the powers of his office to fight for the nomination. Our system assumes that the results of this process will in general be desirable. The system does not work, however, when one side engages in unilateral disarmament, as the Republicans have done so far.
Frequent visitors will know that I disagree with this perspective, but Rappaport makes as good a case as I've heard for the propriety of the politicization of the judicial selection process.

Supreme Court Clerks My thanks to reader Stephen Dillard for the pointer to this article on Here is a taste:
    A survey of this term's 35 law clerks reveals that more and more of the clerks are from non-Ivy League schools, and, like last year, a growing number have not taken the traditional path to the Court -- arriving directly from an appeals court clerkship. Fully 19 of the clerks ended their lower court clerkships a year or more ago, and a different 19 graduated from non-Ivy League law schools. The University of California Boalt Hall School of Law is the alma mater of four clerks, and the University of Texas sent two of its own to the high court. The law schools at Notre Dame, Ohio State and Brigham Young are also represented.

Interview with David Bernstein Conspirator and George Mason lawprof David Bernstein is interviewed here.

Political Compass Update Some obsessive-compulsive disorder resulted in my compiling a list of political-compass results for dozens of bloggers here. Now Tim Lambert has organized the results into a chart, and you can add yourself via an interactive form. Surf here to join the fun. For analysis, see this post by the Plainsman.

Lemley and Moore on Continuation Patents Mark Lemley and Kimberly Moore (University of California, Berkeley - School of Law (Boalt Hall) and George Mason University School of Law) have posted Ending Abuse of Patent Continuations on SSRN. Here is the abstract:
    One of the oddest things to an outsider about the United States patent system is that due to continuation practice it is impossible for the U.S. Patent and Trademark Office (PTO) ever to finally reject a patent application. Continuation applications have led to abuse of the patent prosecution process. They serve very little useful purpose, and what benefits they confer may be outweighed by their potential for mischief. In an effort to study the pervasiveness of continuation practice, we compiled an original dataset comprising 2,224,379 patents, every patent issued from 1976 through 2000. We found that while continuations are filed in 23% of all patent applications, patents based on continuation applications represent 52% of all litigated patents. Although continuations are used in a minority of all patents, it is the most important minority because it is the minority most likely to end up in litigation. We examine the efforts undertaken to control the problems associated with continuation patents (changing the patent term, publishing applications, prosecution laches) and find them insufficient. The world would probably be a better place if they were abolished. Recognizing, however, that the abuse of continuation practice is not as pervasive as some might think, we propose a number of means by which Congress and the courts could strengthen existing rules designed to limit their abuse while preserving the practice. At a minimum, the empirical data we present can provide litigants and judges with a baseline for assessing the reasonableness of delay caused by the filing of multiple continuations by the patentee in determining the applicability of equitable remedies such as prosecution laches.

Bernstein Does the Federalists at Loyola At Loyola Marymount University's Loyola Law School, David Bernstein addresses the Federalist Society.

Vega on the Exclusive/Inclusive Debate at Oxford At Oxford's Jurisprudence Discussion Group, Juan Vega speaks On Positivism's Exclusive/Inclusive Divide.

Zuckert on Deadication (?) at Texas At the University of Texas's Constitutional Studies Luncheon Colloquium, Michael Zuckert (Notre Dame) presents De(a)dication: Lincoln, Gettysburg, and the Founders. Does this have something to to with Phil Lesh?

Cole on Takings at Florida State At Florida State, Daniel Cole (Indiana-Indianapolis) presents Regulatory Takings as Conflicts Between Private and Public Property Regimes.

Carrington on the Civil Jury and Democracy Paul Carrington (Duke University School of Law) has uploaded The Civil Jury and American Democracy (forthcoming Duke Journal of Comparative & International Law, Vol. 13, No. 3, p. 79, Summer 2003) to SSRN. Here is the abstract:
    Herbert Bernstein, like others who admire European institutions, never acquired a taste for American civil procedure. Having taught him precisely that course at the University of Michigan Law School in 1965-66, I always took this as a personal failing on my part. What Herbert and others of his persuasion are unable to appreciate is the central importance in the American scheme of government of the right to jury trial in civil cases. As a tribute to him, I will explain one more time why that institution is indispensable and why it explains other features of American government that many international observers, and not a few Americans, find objectionable. The importance of the institution is not measured by the number of civil jury trials, which is not great. It is, however, the right to jury trial that makes the rest of the constitutional scheme acceptable. And other institutional arrangements were structured around the concept of a democratic courthouse. In this essay, I will briefly account for how the civil jury came to America, why it is here to stay, and how other features of American civil litigation are linked to that central institution. My words are addressed in part to foreign lawyers who are not intimately familiar with American institutions.
And here is the core of his argument:
    In its role in civil proceedings, the jury performs a comparable function by rendering the legislators who make the controlling law doubly accountable to the people, who first elect their lawmakers and are then called to administer the laws those representatives make. Law departing too far from the common understanding, from common sense, or from commonly shared moral values tends to be modified in its enforcement by civil juries to fit common habits of mind. This accountability was also applicable to judges making the common law.

Young at Princeton At Princeton's Political Philosophy Colloquium, Iris Marion Young (University of Chicago) is presenting, but I have no title.

Sykes on the WTO at Chicago At the University of Chicago's Olin series, Alan O. Sykes (Frank and Bernice J. Greenberg Professor of Law, University of Chicago Law School) presents The Economics of WTO Rules on Subsidies and Countervailing Measures.

Simon on Pragmatism and Liberal Legalism William Simon (Stanford Law School) has posted Solving Problems v. Claiming Rights: The Pragmatist Challenge to Legal Liberalism on SSRN. Here is the abstract:
    Recent developments in both theory and practice have inspired a new understanding of public interest lawyering. The theoretical development is an intensified interest in Pragmatism. The practical development is the emergence of a style of social reform that seeks to institutionalize the Pragmatist vision of democratic governance as learning and experimentation. This style is reflected in a variety of innovative responses to social problems, including drug courts, ecosystem management, and "new accountability" educational reform. The new understanding represents a significant challenge to an influential view of law among politically liberal lawyers over the past 50 years. That view - Legal Liberalism - is less a creature of academic theory than an implicit popular jurisprudence of practicing lawyers. It consists of a cluster of ideas associated with the Warren Court, the ACLU, the NAACP Legal Defense Fund, Ralph Nader, and the legal aid and public defender movements. This essay seeks to reconsider Legal Liberalism in the light of the Pragmatist approach and to offer a tentative appraisal of the newcomer. It begins by explicating the sometimes - tacit premises of Legal Liberalism and exploring its shortcomings. It then introduces the contrasting premises of the Pragmatist approach as they appear in a variety of recent works of legal scholarship. It illustrates the Pragmatist approach with a discussion of two case studies - one of drug courts and one of "second generation" employment discrimination remedies. It concludes with some comments about ambiguities and limitations of Legal Pragmatism.

Perlman on a Unified Theory of Professional Regulation Andrew Perlman (Suffolk University - School of Law) has posted Toward a Unified Theory of Professional Regulation (forthcoming Florida Law Review, Vol. 55, p. 97, 2003) on SSRN. Here is the abstract:
    The Bar has addressed several issues in recent years that impact the legal profession’s structure, including rules relating to multidisciplinary practice, multijurisdictional practice, and client solicitations. Unfortunately, theories of legal ethics have not focused on these rules, but have instead concentrated on regulations that govern how lawyers represent their clients, such as the duty of confidentiality or rules against the presentation of perjured testimony. This article contends that, by applying ethics theories to the structural rules, an additional justification emerges for more progressive regulations. Specifically, the article concludes that traditional theories can supplement existing calls for multidisciplinary practices, more liberal unauthorized practice rules, and more permissive regulations of client solicitation.

Bainbridge on Catholic Social Thought and the Corporation Stephen Bainbridge (University of California, Los Angeles - School of Law) has posted Catholic Social Thought and the Corporation on SSRN. Here is a taste:
    This brief essay explores Catholic social thought on corporate governance. Human dignity and freedom are central principles of Catholic social thought. This essay argues that preserving the economic freedom of corporations to pursue wealth is an essential part of effective means for achieving human freedom. To the extent prudential judgments about corporate regulation are required, the Church and civil society should strive towards a nuanced balancing of freedom and virtue.

Carlson on Hegelian Essence David Carlson (Cardozo Law School) has posted Essence and Reflection According to Hegel on SSRN. Here is the abstract:
    What is the essence of a matter? Unreflective procedure assumes that essence is what remains when all contingencies or "appearance" is stripped away. But for Hegel, it's appearances all the way down. Everything is an onion, so that when appearances are stripped away, there's nothing at the center at all. From this Hegel surmises that the essence of a thing is that it must disappear. This theory of essence is developed in Hegel's monumental Science of Logic. "Essence and Reflection According to Hegel" is the fourth in a series of articles that, by means of a pictographic system, records every single step that Hegel makes in the Science of Logic. The article takes the reader through the three chapters of "Reflection" - illusory being, the essentialities (i.e., identity and difference), and ground. The article ends with "existence" - Hegel's word for the world of "things" which have "properties."
In a class he taught on Quine at UCLA in the early 80s, Tyler Burge remarked that he found Hegal to be the most difficult of all philosophers. I've always thought that Hegel's writings on political philosophy and ethics were reasonably clear, but I've never attempted the logic.

Testa on Contractualism Georgia Testa (University College London) has posted Contractualism and the Significance of Numbers. Here is a taste:
    In cases where the number of people who will be affected by our actions seems to make a moral difference to what we should do, it is natural to think that this is due to consideration of collective impact. This is supposed to pose a problem for Scanlon's contractualism, for it is a defining feature of such contractualism that it eschews justifications that appeal to the collective impact of our actions. Scanlon has offered a justification of why we should save the greater number that has been accused of being essentially non-contractualist, by covertly appealing to the claims of a group, supporting the worry that contractualism has insufficient conceptual resources to deal with cases of this kind. This paper rebuts the claim and argues that it relies on a misunderstanding of contractualist justification which permits aggregative considerations but not the aggregation of considerations - a crucial distinction. However, even though this distinction makes it theoretically possible for contractualism to accommodate the intuition that numbers count, Scanlon's argument for why we should save the greater number is question-begging, leaving it an open question whether contractualism does support the common sense judgement in these cases.

Setiya on Explaining Action Kieran Setiya (Pittsburgh, Philosophy) has posted Explaining Action (to appear in the Philosophical Review). Here is a taste:
    [O]ne thing we know about action is that an act meets the normative standards that apply to action as such (or meets them perfectly) only if it meets the standards of practical reason, and in particular, only if it is what there is most reason to do. This is how a substantive theory of the aim of action might be the beginning of a theory of reasons to act. If we can say what the aim of action is – without reference to practical reason – and if success in achieving this aim constitutes action as correct or excellent or good as such, and thus as what there is most reason to do, we can derive substantive conclusions about reasons to act (ones about what there is most reason to do) from the constitutive aim of action. It is a further question whether we can get from this modest starting point to a general theory of particular reasons and their weights; but, at the very least, we will have made a start.

Monday, November 03, 2003
Secret Court Proceedings Isn't it obvious that they should be reserved for only the most compelling of national security concerns? Read Froomkin here!

Green on Copyrighting Facts Michael Green (George Mason University - School of Law) has posted Copyrighting Facts (forthcoming Indiana Law Journal, Vol. 78, pp. 919-964, 2003) on SSRN. Here is the abstract:
    This article is a limited defense of copyrights for the contents of factual compilations. The form of protection that I propose, under which the collective factual content of such compilations is protected, differs from an approach that protects individual facts and from the currently accepted approach (as articulated in Feist v. Rural Telephone), under which only selections and arrangements of individual facts are protected. Although I accept that there are sound economic justifications for refusing to copyright individual facts, my justifications differ from those that have traditionally been offered. The traditional justifications are: 1) that the monopolization costs of protecting individual facts are too great, because facts are too valuable as components for future works to have access to them limited by property rights, and 2) that facts fail the independent creation requirement for copyright protection, because they are not authored by anyone. Both of these justifications fail. Monopolization costs can at most justify limited terms for copyrights in facts. And, far from failing the independent creation requirement, facts (properly understood as representations of reality rather than reality itself) are as much works of authorship as novels are. I argue that transaction and enforcement costs are the real reasons that individual facts are not copyrightable. Furthermore, some components of factual works - specifically, ground breaking and explanatorily powerful theories like Einstein's theory of relativity - should be copyrightable if our sole concerns were transaction, enforcement and monopolization costs. Instead such theories are not protectable because any work that borrows them is their complement (in the sense that its production makes them more desirable), provided that the work acknowledges the theories' true provenance. This is because it is only through dissemination in other works that such theories can undergo the test of truth. But nothing about the uncopyrightability of the components of factual works stands in the way of copyrights for the collective factual content conveyed by such works. It might appear that protecting collective content is no different from the Feist approach, in which selections and arrangements of facts alone are protected. After all, collective factual content is created by selecting and arranging individual facts. If individual facts are not protected, then the selections and arrangements, it seems, must be. But this is a fallacy. Protecting a fictional story is not the same as protecting the methods of selection and arrangement used to generate the story from unprotected elements of character, plot, and setting. Likewise, protecting the collective factual content of a database is not the same as the Feist method. The collective content of databases, I argue, should be protected in the same manner that fictional stories are. Such an approach, far diverging from traditional copyright principles, follows from them.
It has always struck me that Feist is an anachronism--reading the modern function of copyright vis a vis the entertainment industries back into a clause that equates copyright with promotion of the progress of science.

Witte on Nonmarital Children John Witte (Emory University - School of Law) has posted Ishmael's Bane: The Sin and Crime of Illegitimacy Reconsidered (forthcoming Punishment and Society: The International Journal of Penology, Vol. 5, No. 3, 2003) on SSRN. Here is the abstract:
    This essay offers a critical rereading of the Western theological and legal doctrine of illegitimacy or bastardy. The author traces the Western stigma against bastards to the Bible, particularly to the story of Ishmael, the illegitimate son of Abraham and Hagar. He then shows the systematic discrimination against bastards in classic canon law and in early modern Anglo-American common law, and the slow amelioration of their plight in legal reforms in the United States in the past century. The author concludes that the Western doctrine of illegitimacy is theologically illegitimate and suggests a few historically-informed legal remedies, notably adoption, that would help mitigate the plight of illegitimates today.

Janice Brown and Lochner Eric Muller and David Bernstein both have very thoughtful posts. Also, check out Will Baude. And some of my thoughts were posted here.

Hasen on Ely and Election Law You will want to read Rick Hasen's post on John Hart Ely!

I will be speaking today at ILTF on Legal and Technological Change At the International Law and Technology Forum in Dallas, I will be giving a talk entitled Is Technology Changing the Law or is the Law Changing Technology?

Sinnott-Armstrong at Oxford Today at Oxford's Moral Philosophy Seminar, Walter Sinnott-Armstrong (Dartmouth) presents Moderate Pyrrhonian moral scepticism.

Cyrenne on Political Liberalism and Universal Values at Chicago At the University of Chicago's Political Theory Workshop, Chad Cyrenne (University of Chicago) presents Should Political Liberals Uphold Universal Values?, with discussion by Victor Muñiz-Fraticelli. Here is a taste:
    What can political liberals say to so-called "reasonable non-liberals"? What kinds of language are likely to be persuasive when persons with very different moral understandings disagree about important issues? Do the normative foundations of a political liberalism preclude certain kinds of discourse? Do they provide an adequate vantage point for political and moral critique? In recent times, these questions have taken on special urgency. Both at home and abroad, critics of a political liberalism are anxious to know just what political liberals will say to illiberal or non-liberal minorities. On the one hand, critics charge that political liberals are too exclusionary, banishing (in particular) certain kinds of religious discourse from the public sphere.1 On the other, there is the concern that political liberals are too permissive, lacking the necessary moral resources to criticize oppressive practices and beliefs.

Vorenberg at Northwestern on the Era of the Oath At Northwestern's Colloquium on the Legal and Constitutional History of the United States, Michael Vorenberg (Brown University, History) presents The Era of the Oath Reconsidered: Race, Religion, and Citizenship in the Civil War Era. Here is a taste:
    A richer, perhaps more valid reading of events would acknowledge the right of witness testimony as fundamental to American citizenship. Scholars and activists have always known that the right was crucial, but they have not explored as fully as possible why it is crucial, and whether it is in fact as significant a rights as rights more commonly deemed “political,” namely office-holding, jury service, and voting. The standard pyramid of rights, with the prohibition of slavery on the bottom, the right of testimony on the next level, the right of suffrage on the next, and the “social” right of racial intermarriage at the top, may help us to think about the way that rights have developed over the whole course of American history, but the pyramid sheds little light on the meaning of any particular rights struggle at any particular moment.72 If the struggle over the oath during the Civil War reveals anything, it is that Americans during the war, and because of the war, came to realize that the “civil” right of witness testimony was actually in the same league with the “political” right of suffrage.

Baroness Warnock at UCL on Assisted Reporduction At University College London, Baroness Mary Warnock (House of Lords) presents Problems in Assisted Reproduction.

Morris at George Mason on Coercive State Power At George Mason's Workshop in Philosophy, Politics, and Economics, Christopher Morris (Philosophy, University of Marlyand) presents Are States Essentially Coercive? Here is a taste:
    I have argued that influential conceptions of state power as essentially coercive are mistaken. They are mistaken in thinking that states and force are conceptually connected. And more importantly, they err in attributing too much importance to coercive power. It is not that just states can eliminate the threat of sanctions. It is that sanctions and force do not play as central a role as it widely thought. The widespread belief that “political power is always coercive power” has misled political thinkers in a number of ways. First of all, they suggest “bad man” theories of law or “realist” views of states (and international affairs). Defenders of these theories tend to assume that coercion and force are necessary to order. There may be considerable truth to their assumption, but their theoretical conclusions will typically not be warranted if the importance of coercion and force is understood as I have argued here.

D'Agostino on Freelancers at Oxford At the Oxford Intellectual Property Research Centre, Giuseppina D’Agostino presents Should Freelancers be allowed to keep their Copyrights in the Digital Era?.

Cooper at Stanford's CIS
    The Stanford Law and Technology Association (SLATA) and the Center for Internet and Society (CIS) present: Media Ownership and Democracy in the Digital Information Age Monday, November 3, 2003 12:30 - 1:30 p.m. Room 80 (Moot Courtroom) Stanford Law School Lunch will be provided! Mark Cooper, Director of Research at the Consumer Federation of America will discuss his new book Media Ownership and Democracy in the Digital Information Age. More at:

Lieberman at UCLA Law At UCLA, Robert Lieberman (Columbia Univ., Political Science Dept.) addresses the law faculty.

Eden responds to Leiter on the Socratic Method John Eden responds to Brian Leiter's recent remarks on the Socratic method, here on the Legal Theory Annex.

Sunday, November 02, 2003
Legal Theory Calendar
    Monday, November 3
      At the International Law and Technology Forum in Dallas, Lawrence Solum presents Is Technology Changing the Law or is the Law Changing Technology?
      At the University of Chicago's Political Theory Workshop, Chad Cyrenne (University of Chicago) presents Should Political Liberals Uphold Universal Values?, with discussion by Victor Muñiz-Fraticelli.
      At Northwestern's Colloquium on the Legal and Constitutional History of the United States, Michael Vorenberg (Brown University, History) presents The Era of the Oath Reconsidered: Race, Religion, and Citizenship in the Civil War Era.
      At George Mason's Workshop in Philosophy, Politics, and Economics, Christopher Morris (Philosophy, University of Marlyand) presents Are States Essentially Coercive?
      At Oxford's Moral Philosophy Seminar, Walter Sinnott-Armstrong (Dartmouth) presents Moderate Pyrrhonian moral scepticism.
      At University College London, Baroness Mary Warnock (House of Lords) presents Problems in Assisted Reproduction.
      At Stanford's Center for Internet and Society Mark Cooper (Director of Research at the Consumer Federation of America) talks about Media Ownership and Democracy in the Digital Information Age.
      At UCLA, Robert Lieberman (Columbia Univ., Political Science Dept.) addresses the law faculty.
      At the Oxford Intellectual Property Research Centre, Giuseppina D’Agostino presents Should Freelancers be allowed to keep their Copyrights in the Digital Era?.
    Tuesday, November 4 Wednesday, November 5
      Starting today at the University of Texas Law and Philosophy Program, Brian Leiter is hosting Jonathan Wolff (Philosophy, University College London) for three days. Wolff will be the Anderson Foundation Visitor, giving papers and seminars on some of his current work on fairness and equality, as well as participating in a session on his recent book Why Read Marx Today? (OUP, 2002). This should be excellent!
      At the University of San Diego & University of California at San Diego's Law, Economics and Politics Workshop, Kathy Spier (Northwestern) presents Manufacturer Liability for Harms Caused by Consumers to Others.
      At London's Institute for Education, Marianna Papastephanou (University of Cyprus, Nicosia) presents Rawls's Justice as Fairness, Citizenship and Education.
      At Oxford's Centre for Criminological Research Seminar Series, Leslie Sebba presents The Response to International Crimes: Punishment, Compensation or Restorative Justice?.
      At Northwestern's Law and Economics Colloquium, David Dana (Northwestern University School of Law) presents Existence Value and Federal Preservation Regulation.
    Thursday, November 6
      At the University of San Diego & University of California at San Diego's Law, Economics and Politics Workshop, Elizabeth Garrett (University of Southern Californa) is presenting.
      At NYU's Colloquium in Legal, Political and Social Philosophy, Philippe Van Parijs (Universite Catholique de Louvain, Belgium) presents Europe's Three Language Problems.
      At Loyola Marymount's Loyola Law School, David B. Cruz (Professor of Law, University of Southern California Law School) presents The Federal Marriage Amendment.
      At Boston University, Mike Selmi (George Washington University) presents Was the Disparate Impact Theory a Mistake?
      At the University of Pennsylvania's law and philosophy program, Liam Murphy (New York University) is speaking.
      At Stanford's Olin series, Mark Lemley (School of Law, University of California, Berkeley) presents Ex Ante Versus Ex Post Justifications for Intellectual Property.
      At UCLA's legal history series, Laura Kalman (U.C. Santa Barbera) presents The Dark Ages: Yale Law School and "The Sixties.
      At the University of Michigan's Law & Economics series, Barak Orbach (Humphrey Fellow in Law & Economics, Michigan) presents The Law and Economics of Hired Creativity: Who Should Own the Rights .
      At U.C. Berkeley, Philosophy, Barry Smith (Birkbeck School of Philosophy) presents The Interiority of Mind and the Publicity of Meaning.
      At RSSS (Australian National University), Garrett Cullity (University of Adelaide) presents Public Goods and Fairness.
      At Florida State, Ahmed Taha (Wake Forest) presents Is Fox in the Henhouse? Empirical Evidence on Media Conglomerates and Bias in Movie Reviews.
      John Lippitt (Hertfordshire) presents After Kierkegaard After MacIntyre: Several Questions for Narrative Ethics in London at the University of Hertfordshire Centre for Normativity and Narrative.
    Friday, November 7
      At Fordham, the big Rawls and the Law conference arrives! Here is the link for details.
      At Ohio State, a symposium on Lawrence v. Texas with Cass Sunstein, Catharine A. MacKinnon, and others.
      At Oxford, Anne-Marie Slaughter (Princeton) presents Alec Roche Annual Lecture in Public International Law.
      At Tulane's Center for Ethics and Public Affairs, Ulrike Heuer (University of Pennsylvania) presents Buck-Passing. On the Relation of Values and Reasons for Actions.
      At Oxford's Jowett Society, Antony Duff (Stirling) is lecturing, but I lack a title.
      And also at Oxford's Human Rights Discussion Group, Ben Juratowitch presents The Prohibition on Retroactive Criminal Liability in International Human rights Law.
      At SUNY Buffalo, Chuck Ewing presents Ethical Dilemmas Faced by Psychologists Working for the Government in Intelligence and Counter-Terrorism Work.
      At Australian National University, Christina Murray (University of Cape Town) presents South Africa's Troubled Royalty: Traditional leaders after democracy, the Annual Geoffrey Sawer Lecture.
      At Yale's Philosophy Department, there is a conference entitled Themes in Philosophy of Language, participants include: David Kaplan, Robert Stalnaker, Timothy Williamson, Anne Bezuidenhout, Jennifer Hornsby, Sean Kelly, John Mcfarlane, David Sosa, Katalin Balog, Keith Derose, Michael Nelson, Paul Pietroski, Ted Sider.
      At the Royal Institute of Philosophy in London, Mary Midgley presents Souls, Minds, Bodies and Planets.
      At the Society for Applied Philosophy in London, Steven Wilkinson (Keele) & Carol Jones (University of Wales, Cardiff) present Commodification of the Body: Ethical Issues.

Legal Theory Lexicon: Utilitarianism
    Introduction This installment of the Legal Theory Lexicon is an introduction to utilitarian moral and political philosophy tailored to law students (especially first-year law students) with an interest in legal theory. Law students learn early on that classroom discussion of cases and statutes may begin with questions about what the rule is but is likely to turn to questions about what the rule should be. And in most law school classrooms, analysis of the “should” question is likely to go down one of two paths. The first path leads to fairness (which outcome in this case is fair to the parties; which rule will produce fair results in the future). The second path leads to policy (which rule will produce the best consequences in the future). Theories about fairness will be covered in future installments of the Legal Theory Lexicon; today, we focus on arguments of policy and the theoretical question, “What does it mean to say that a rule would produce the best consequences?” One answer to that question is “utilitarianism,” a theory of enormous interest and influence. But what exactly is “utilitarianism” and how might it be criticized or defended?
    What is “utilitarianism”? Just about every law student has some basic familiarity with the idea of utilitarianism, but unless you were a philosophy or economics major, you may have only a fuzzy notion of what this term really means. In this history of moral philosophy, utilitarianism is strongly associated with two historical figures, Jeremy Bentham and John Stuart Mill. Mill’s views are important and deeply interesting, but they are also extremely difficult to sort out properly. Jeremy Bentham, however, provides a wonderful entrée into the world of utilitarian moral and political philosophy. Law students should be especially fond of Bentham, because with only a bit of exaggeration, we can say than Bentham is the original disgruntled law student. Bentham, you see, was highly displeased with William Blackstone’s lectures on law at Oxford University. The common law, Bentham thought, was a disorganized and irrational body of law, characterized by an irrational worship of historical pedigree and an immoral disregard of the consequences of legal rules. Legal rules, Bentham believed, should be codified, and the codes should be written so as to produce “the Greatest Good, for the Greatest Number.” That is, we should adopt those legal rules that will maximize utility.
    Consequentialism Utilitarianism is just one member of a more general family of moral theories, which we might call “consequentialist.” Consequentialism is the view that morality is about consequences of decisions. Utilitarianism is a particular form of consequentialism, but not the only form. Consequentialism is sometimes contrasted to deontology, where deontological moral and political theories maintain that there are moral rules or principles, the violation of which cannot be justified on the ground that good consequences would result.
    Disambiguating Utilitarianism Let’s pause for a moment. It turns out that “utilitarianism,” the term, refers to many different interrelated theories. “Utilitarianism” is ambiguous, and so we need to specify what we mean by utilitarianism by answering some questions:
    • What is utility? That is, when we say, the greatest “good” for the greatest number, what do we mean by “good?”
    • What is scope of decision? That is, what should maximize utility, individual actions, general rules, principles, or something else?
    • What does it mean to maximize utility?
    • Does the rightness of an action depend on actual or expected utilities?
    What is utility? What is utility? What is a good consequence? Or to use a bit of jargon, what is a “utile,” where the word “utile” stands for a unit of utility? There are many possible answers to this question, but here are three versions of utilitarianism that give three different answers to this question:
      Hedonistic Utilitarianism. Bentham himself believed that utility was pleasure and the absence of pain. Suppose it were possible to measure and quantify pleasures and pains. We might then call one unit of pleasure a positive “hedon” and one unit of pain a negative “hedon.” Maximizing utility then, would simply be to maximize the sum of hedons. When we evaluated legal rules, we would engage in what Bentham called a “hedonic calculus.”
      Eudaimonistic Utilitarianism. But is the good really just a matter of pleasures and pains? Many of Bentham’s critics argued that not all pleasures are good. Would you really want to live your life carrying around a device that constantly stimulated the pleasure center of your brain and suppressed the pain center? Rather than maximize pleasure, we might instead maximize “happiness”—eudaimonia in ancient Greek. Happiness may be related to pleasure, but it includes more abstract satisfactions. Climbing a mountain may involve much more pain than pleasure, but this activity may still be highly rewarding to the climber.
      Preference Satisfaction Utilitarianism. But if happiness seems a better candidate for “good” than pleasure, there are difficulties with the proposition that the law should maximize “happiness.” Happiness is notoriously difficult to define, and different persons have different views about what makes for a happy life. Moreover, happiness, like pleasure, is difficult to measure directly. For these reasons and others, some utilitarian theorists (especially economists) substitute “preference” for happiness as the “good” to be maximized. Preferences can be measured in a variety of ways. For example, we can ask individuals to simply rank order their preferences among various states of affairs, giving us an ordinal utility function for the individual. Economists have devised a variety of techniques for translating these rank orderings (1st best, 2nd best, etc.) into numerical values. Thus, we can construct a cardinal utility function for an individual. Because preference-satisfaction is measurable, most economists use a preference-based conception of utility. And because of the influence of economics on legal theory, this form of utilitarianism has had the greatest impact on contemporary legal theory as well.
    There are other versions of utilitarianism, but you get the idea.
    Scope of Decision So let’s assume we have a working conception of utility. Our next question is: What exactly is the decision that is supposed to maximize utility? Is each individual action required to maximize utility? Or is it general rules that we are concerned with? Or principles? Or something else? I am going to call this question, the scope of decision question. Different forms of utilitarianism give different answers to the scope of decision question. Let’s take a quick look at some of the possibilities:
    • Act Utilitarianism. (abbreviated AU) The first possibility is that each individual action should maximize utility. Given this answer to the scope of decision question, we might formulate utilitarianism as follows:
        Act so that your action maximizes utility as opposed to any alternative action that you could perform.
      Suppose, for example, that you must decide whether to break or keep a promise to have lunch with a friend. You would ask yourself, “Would keeping my promise produce greater utility than breaking it?” Thus, you would consider the costs of your decision, such as: (1) your friend will be hurt, (2) you will miss out on the satisfaction of having lunch with your friend, and (3) your friend may not trust your promises in the future if you break this promise. And you would consider the benefits, such as: (1) you will be able to use a free ticket to go to the baseball game if you break the promise, and (2) you will not have to listen to your friend's boring stories. You then add the utilities for each action, and choose the action that produces the greatest utility.
    • Rule Utilitarianism. (abbreviated RU) The case of promises reveals a potential problem with AU. If I calculate utilities every time, I decide whether to break or keep a promise, my promises may not be viewed by others as trustworthy. And if my promises are not trustworthy, then I will not be able to use the institution of promising to coordinate my behavior with that of other people. But the ability to coordinate through promises produces good consequences. One way out of these difficulties is to shift the scope of decision from individual actions to general rules. Thus, although the individual actions of breaking my promise might maximize utility as compared to the alternative, the general rule, “keep your promises,” might produce more utility than the alternative rules, such as “keep your promises, but only when there is nothing better to do.”
      Rule utilitarianism itself has two important subvariants, and we can add a third, specifically legal, variant as well:
        Ideal Rule Utilitarianism (IRU) says that you should act in accordance with the set of “ideal rules” that would maximize utility if everyone were actually to act in conformity with the rules.
        Actual Rule Utilitarianism (ARU) says that you should act in accord with the set of “actual rules” that would maximize utility if it were adopted as the moral code of a real society in which persons will sometimes fail to live up to the requirements of the moral code.
        Legal Rule Utilitarianism (LRU) responds to an obvious fact about the application of utilitarianism to the law. The law is concerned with individual acts (e.g. an individual judge's decision in an individual case at the trial level), but it is also concerned with rule-creating acts (e.g. the decision of a legislator to vote for or against a given bill). So it is reasonable for legal theorists to advance a more specialized version of utilitarianism, which we can call "Legal Rule Utilitarianism," as a theory about legal rules. Notice, however, that LRU will have a set of variants. So we can distinguish the utility of an ideal system of legal rules (with perfect compliance) versus an actual system of legal rules (with disobedience and enforcement costs) versus a single nonideal actual rule (where the status quo system of rules is assumed and we look at the utility of changing only a single rule).
    • Utilitarian Generalization (abbreviated UG) There is one more answer to the scope of decision problem that is worth mentioning. UG is the view that one should act on the basis of principles (or maxims) that would produce the greatest utility if they were generalized (e.g. we acted upon by everyone. Because this form of utilitarianism, plays very little role in legal thought, I won't discuss it further.
    What does it mean to maximize utility? There is yet another ambiguity about utilitarianism that is really important to its application. What does "the greatest good for the greatest number" mean? Alternatively, what does it mean to maximize utility? This is a really complex topic. Right off the bat, it has both an intrapersonal and interpersonal dimension. To simplify, I will focus on the interpersonal problem. Let's assume we have utility values for individuals. What do we do with them? You may think the answer is obvious, "Add them up!," but it isn't so easy. Here are some alternatives:
    • Classical Utilitarianism. "Add them up" is the classic answer. That is, we simply sum individual utilities. Sometimes this is called the "utilitarian social welfare function" by economists. This can lead to some confusion as this is what some economists think the term "utilitarianism" means.
    • Average Utilitarianism. But we could average rather add. That is, we could take the sum of individual utilities and divide by the number of persons. You, gentle reader, undoubtedly have run way ahead of me and seen that this will make a big difference to things like population policy. We might have a choice between a larger population with a lower average utility but a greater sum, and a smaller population, with a higher average, but a lower sum.
    • Bernoulli-Nash John Nash (of A Beautiful Mind fame) is associated with another alternative. We might multiply rather than add utilities. I won't go into the reasons why this might be a good idea, except to tell you that multiplication makes more sense if we our utility values for individuals are relative rather than absolute.
    Actual or Expected Utilities We rarely know with certainty what consequences will result from actions or rules. Utilitarianism might look to the actual consequences of rules. If so, then some actions that looked right at the time will turn out to be very wrong, because of some unanticipated effect of the action. The alternative is to say that the rightness or wrongness of an action depends on its expected consequences. Given the phenomenon of uncertainty, a given action may lead to several different possible future states of the world. If we could assign a probability to each state, then the expected consequences of a given action could be calculated by taking the product of the utility value for the state and the probability that the state will coming into being. Take the following choice situation:
      Action A has a 50% chance of producing a utility of 10 and a 50% chance of producing a probability of 0. Since .5*10 + .5*0 = 5, the expected utility of action A is 5.
      Action B has a 90% chance of producing a utility of 0, and a 10% chance of producing a utility of 100. Since .9*0 +.1*100 = 10, the expected utility of action A is 10.
      And since 10 > 5, action A has the greater expected utility. Of course, it may turn out that action B produces a utility of zero, but if what counts is expected utility, then this ex post fact is irrelevant to the moral evaluation of action A.
    Some Objections to Utilitarianism Utilitarianism is an enormously controversial view, with adamant defenders and critics. It is worth our while to examine a few of the most prominent objections, but we will only be sliding across the surface of a deep and complex topic.
      The Rights Objection. Utilitarianism evaluates actions on the basis of the consequences they produce, and therefore does not require respect for moral or legal rights. The literature is full of hypotheticals in which utilitarianism is alleged to justify intuitively unattractive rights violations. Suppose, for example, the slavery is contrary to a moral right, but that in a particular society, enslaving a small minority of the population would produce greater utility for the majority than it produced disutility for the enslaved minority. If these facts were true, the utilitarianism seems to say that slavery would be morally required. But most people would disagree, saying that slavery cannot be justified simply because it produces good consequences: “We have a moral right not to be enslaved." Utilitarians are likely to get quite huffy when this argument is made. They may say, “But slavery does not produce good consequences. It produces bad consequences, and that’s why we think slavery is so awful.” And then the critic might say, “But suppose slavery did produce good consequences, what then?” You can see how this debate could go on for quite some time before we made any progress. Notice, however, that act utilitarianism seems more open to the rights objection than does rule utilitarianism. Rules against rights violations may produce good consequences, even if individual acts of rights violation could be justified on utilitarian grounds.
      The Self-Defeating Objection Another objection is that utilitarianism may be self-defeating. Suppose that everyone tried to deliberate as a utilitarian. It might turn out that nonetheless they would make decisions that led to bad consequences. For example, some people may be extremely bad at predicting the consequences of their actions. Others may systematically overestimate their own utilities while systematically underestimating those of others. One answer to this objection is famously associated with the British moral philosopher R.M. Hare. Hare proposed a two-level theory of morality. Utilitarianism, Hare argued, operates at the level of detached moral theorizing. Ultimately, an action is deemed good or bad based on its utility. But ordinary moral deliberation, Hare continued, operates at a different level. Ordinary folks should deliberate on the basis of moral rules of thumb, such as keep your promises, don’t steal, and don’t enslave your enemies when you vanquish them. As you might guess, there are many criticisms of two-level theories, but you get the general idea.
      The Impossibility of Interpersonal Utility Comparisons This one gets very complicated, very fast. So let me just state the general idea. Suppose we are trying to add up individual utilities for everyone in society. How do we come up with values that are truly comparable across persons. That is, how do we know that X amount of my pleasure or happiness or preference satisfaction is equal to Y amount of yours? This problem is especially vexing for economists, and one solution is simply to limit the conclusions of economics to cases that involve making everyone better off—hence obviating the need for interpersonal comparisons.
      The Demandingness Objections The list of objections goes on and on, but let’s do just one more. It is frequently argued that utilitarianism (especially act utilitarianism) is too demanding. Why? Imagine that it is your day off. You have two choices. You can either read a novel or your can work for Oxfam. If you read a novel, you will produce some positive utility—your enjoyment of the novel. But if you worked for Oxfam, you would save 1.7 starving children in the third world from death. Well, of course, you should work for Oxfam. But the problem is that it will always be the case that I could produce more utility for others if I dedicated my time to helping the least fortunate. Utilitarianism seems to require me to work for Oxfam after work and to stay up as late as I possibly can. In fact, I may be able to maximize utility by neglecting my health and family. If this is true, many would find utilitarianism too demanding and hence implausible.
    Utilitarianism and Legal Theory In the law, utilitarian thinking is most associated with normative law and economics. It is useful to review the various forms of utilitarianism in this context:
      --Normative law and economics uses preferences rather than pleasure or happiness as its concept of utility.
      --Normative law and economics usually assumes that the system of legal rules (as opposed to individual actions or ideal moral rules) provide the relevant scope of decision.
      --Normative law and economics usually assumes that utilities are to be summed—although this issue is rarely addressed in any detail.
      --Normative law and economics usually assumes that it is expected utilities, rather than actual utilities, that are to be maximized.
    If you are interested in the relationship between utilitarianism and legal theory, you will definitely want to check out Kaplow and Shavell’s book, Fairness versus Welfare. Kaplow and Shavell don’t take a stand on the question as to whether utilities should be summed, multiplied, or combined in some other way, but they do offer a trenchant defense of consequentialism as well as an attack on nonconsequentialist approaches to legal theory.
    Links Bibliography The literature on utilitarianism is vast, but here are some good starting points: And finally, on a personal note, I was privileged to take the class on utilitarianism that was taught by Greg Kavka at UCLA more than twenty years ago. Kavka's tragic early death deprived us of an excellent philosopher and a wonderful human being.
For past and future installments of the Legal Theory Lexicon, go here.

Legal Theory Blog Today I'm catching a plane for Dallas early this morning, so the regular Sunday features (the Calendar & Lexicon) will appear later than usual today.

Saturday, November 01, 2003
"What Is Jurisprudence?" and Leiter's Top Ten Long before I started Legal Theory Blog, I posted a list of jurisprudence books on My primary motive for posting the list was that a number of similar lists had been posted by various law students (for example, here and here) and I thought that a philosophically curious law student might want a different perspective. I called the list "Top Ten Contemporary Jurisprudence," without really explaining what that meant, but I certainly had no intention of communicating the message that the books on the list were the ten most significant contributions to law and philosophy scholarship of the contemporary period. Rather, the list was constructed to expose law students to a reasonably broad range of theoretical ideas about the nature of law. Here is my list:
    H.L.A. Hart, The Concept of Law, Ronald Dworkin, Taking Rights Seriously John Finnis, Natural Law and Natural Rights Richard Posner, Economic Analysis of Law Randy Barnett, The Structure of Liberty: Justice and the Rule of Law Lon Fuller, The Morality of Law Roger Shiner, Norm and Nature: The Movements of Legal Thought John Rawls, A Theory of Justice Bruce Ackerman, We the People: Foundations Duncan Kennedy, A Critique of Adjudication
Hart, Dworkin, and Finnis were included to represent contemporary philosophical debates about the nature of law. Barnett, Fuller, Kennedy, and Posner represent important schools of thought within the legal academy. I included Rawls because of his enormous influence on legal theory. I wanted to choose one book on high constitutional theory. This was a tough choice, and I considered John Hart Ely and several others before settling on Bruce Ackerman's book. I included Roger Shiner's book on the list in part because I believe that it has been underappreciated and in part because I find Shiner's Wittgensteinian reconstruction of the interplay between legal positivism, natural law, and legal realism to be powerfully illuminating and edifying. I didn't view myself as the judge for a contest; rather, I was hoping to give some advice on good books for a theoretically inclined law student to read, if by some miracle, time permitted!
Brian Leiter, who publishes the Philosophical Gourmet and an influential ranking of law school faculites, disagrees with my list, and proposes the following list of his own:
    Karl Llewellyn, The Bramble Bush Hans Kelsen, Pure Theory of Law Lon Fuller, The Morality of Law H.L.A. Hart, The Concept of Law H.L.A. Hart, Essays in Jurisprudence and Philosophy Joseph Raz, The Authority of Law John Finnis, Natural Law and Natural Rights Ronald Dworkin, Law's Empire Gerald Postema, Bentham and the Common Law Tradition Leslie Green, The Authority of the State
Hear, hear! I second every one of Brian's choices, and if you scroll down, you will see that I've made Postema's book the Legal Theory Bookworm's recommendation for this week. Brian's list, unlike mine, is, I think, intended to represent Brian's view of the ten best books on the philosophy of law in the contemporary period. I am a bit uncomfortable with advancing an opinion on that topic. I am grateful that Brian is not hesitant, because I find his opinions to be both well-informed and stimulating, but for myself, I would hesitate to make such a pronouncement without going through a very careful process of comparison--a task which would take many weeks and certainly could not be completed by this morning.
But I would like to comment on an objection that Brian made to my list:
    It's fair to say this is an extremely idiosyncratic list, though the main difficulty seems to reside in how the category "jurisprudence" is being conceived--more precisely, the difficulty is that I have no idea how to describe "jurisprudence" so conceived, such that all these books on the list are jurisprudential.
What does the word "jurisprudence" mean? Here is a dictionary defintion:
    1 a : a system or body of law b : the course of court decisions 2 : the science or philosophy of law
The relevant OED definition is "The science which treats of human laws (written or unwritten) in general; the philosophy of law." And our word "jurisprudence" comes from the Latin juris prudentia -- by the activity of prudentes; advisors, experts, and an online encyclopedia defines the contemporary meaning as "the branch of humanist sciences that studies the law and the complex of legal principles." In the United States, the legal academy has quite naturally come to view jurisprudence as the subject matter of the course that is labeled as "jurisprudence" in the law school curriculum. Of course, it turns out that the content of such courses has varied enormously, both across institutions and over time. The traditional jurispurdence class of the 1960s focused on H.L.A. Hart's The Concept of Law and might include the Hart-Fuller debate over the separation of law and morals as its central theme. In the early 1970s, many law professors abandoned Hart and Fuller, and instead taught courses that focused on the Rawls-Nozick debate. At around the same time, more traditional courses began to incorporate Ronald Dworkin into the mix, and in some cases, Joseph Raz. In the 1980s and early 1990s, Hart and Raz tended to drop out and Dworkin (representing "liberal legal thought" might be paired with works by representatives of the Critical Legal Studies movement. When I took jurisrpudence from Charles Fried at Harvard, the focus of the course was Saul Kripke's then recent book Wittgenstein on Rules and Private Language.
So what does Brian Leiter mean by jurisprudence. Courtesy of Will Baude of Crescat Sententia, here is the Leiter defintion:
    Jurisprudence stands to law as philosophy of science stands to science. In both cases, we're interested in certain abstract theoretical questions about what there is (and the nature of what there is) and about how we know (and whether we know) what there is. In the case of law, this means the jurisprudential questions of significance revolve around (a) what does it mean to say that "law" exists in some society, i.e., what has to be the case for there to be law, how do we demarcate (should we demarcate?) "law" from the other kinds of norms characteristic of human societies (moral norms, aesthetic norms, norms of etiquette), and what kind of normative system is law (i.e., what kind of reasons for action do legal systems supply as distinct from other kinds of normative systems--and how good are those reasons?); and (b) how do we know what the law is (given its nature, per (a)), e.g., what structures of reasoning (if any) justify claims about what the law is, to what extent do existing adjudicative mechanisms approximate appropriate structures of reasoning, and so on. Ackerman, Posner, and Rawls do not, by and large, offer answers to these questions, though Ackerman and Posner, in particular, seem to presuppose certain answers to them (and Posner, in other writings, does have some explicit answers to some of these questions, but not in his Economic Analysis of Law). Kennedy offers some explicit answers to some of these questions, but they are poorly formulated and philosophically insubstantial. Barnett fares somewhat better than Kennedy on the core jurisprudential questions, but not as well as Hart, Raz, et al.
Dictionary definitions are hardly dispostive, but consider the contrast between the OED definition and Leiter's core move. Leiter:
    Jurisprudence stands to law as philosophy of science stands to science.
And contrast that with, the OED:
    Jurisrudence is "The science which treats of human laws (written or unwritten) in general.
And here is my take:
    Jurisprudence has at least two, interrelated, meanings. First-order jurisprudence is simply systematic legal theory. Thus, constitutional theory, tort theory, contract theory, and so forth, are all branches of first-order jurisprudence. These first order disciplines examine normative, descriptive, and conceptual issues at a theoretical level. Second-order jurisprudence is roughly coextensive with the philosophy of law (in the sense that Brian specifies when he compares philosopohy of law to philosophy of science). The paradigmatic question for second-order jurisprudence is "What is law?," and in the Anglo-American tradition, that question has recieved various answers, from Bentham, Holmes, Gray, Hart, Raz, Finnis, Dworking, Coleman, and so forth.
I am not sure whether or not Leiter's would disagree with my conception of jurisprudence. Certainly, the more capacious defintion that I have suggested is entirely consistent with general usage. Leiter's narrower definition is, however, quite consistent with the usage of an important subsegment of the American and English legal academies.
Is this all a matter of definition or is there something substantive on the table? I think that the defintional dispute reflects a substantive disagreement. I have no quarrel with the philosophy of law, narrowly concieved. I relish the debates between inclusive and exclusive legal positivists. They are intrinsically interesting and great fun. But it would be shame if "jurisprudence"--understood as the practice of theoretical reflection in the legal academy--were to take these topics as an exclusive or central focus. To bring us back around to the lists, my point is simply this. When a theoretically inclined law student seeks advice about what to read, the answer should not be, "Focus exclusively on philosophical debates about the nature of law." Rather, the better answer is, "Read widely in legal theory from a variety of normative and philosphical perspectives. Learn about constitutional theory, tort theory, contract theory. Read some CLS, some libertarian thinkers, some normative law and economics."
Legal theory is at its best when it is normative and entangled with substantive questions of policy and doctrine.
Update: Leiter responds at the end of his original post.

Legal Theory Bookworm This week, the Legal Theory Bookworm recommends Gerald Postema's magnificient book, Bentham and the Common Law Tradition. I hope intellectual historians will excuse me for the anachronism, but I have always thought of Bentham as the original angry law student. He was unhappy with Blackstone's legal formalism, that he spent the rest of life developing one of the most power intellectual programs in the history of legal thought--legal instrumentalism, guided by a utilitarian moral and political philosophy. Bentham's ideas have triumphed again and again, as his program influenced codification in the nineteenth century, legal realism in the twentieth century, and the normative law and economics movement today. Postema's book is the single best philosophical work on Bentham's ideas in the context of law, and it tells the story of Bentham's relentless criticism of the common law--that messy and unscientific body of precedents that seems so unsuited to the role of scientific pursuit of the greatest good for the greatest number. You may have some trouble locating a copy--Oxford has foolishly allowed this important book to go out of print. It is worth the hunt!

Download of the Week This week's download of the week is The Copyright Divide (forthcoming Cardozo Law Review, Vol. 25, 2003) by Peter Yu (Michigan State University-DCL College of Law). Yu's paper addesses one of the most controversial topics in copyright policy--the RIAA's recent efforts to enforce the copyright laws against individuals, engaged in noncommercial P2P filesharing. Here is the abstract of Yu's very interesting paper:
    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.

Two Dimensional Ideology Grid: And A Large But Now Fixed Number of Data Points Added Thanks to everyone who sent in their scores. I'm now declaring the list officially closed We now have thirty-five data points:And for purposes of comparison:Silly, but fun! To take the test, go here.

Hasen on Hatch on Judicial Selection The Pickering filibuster is on, and Rick comments on the following report from the Los Angeles Times:
    After the vote, Sen. Orrin G. Hatch (R-Utah) predicted that the Republican Senate majority would soon take steps to suppress the Democrats' ability to use filibusters to thwart judicial nominees. He said that the framers of the Constitution did not envision that a minority of senators would be able to block a nomination on the Senate floor.
Rick comments:
    What is Hatch thinking? Readers of this blog will recall that Senator Lott made similar statements months ago during the Estrada filibuster, where he threatened the "nuclear option." Among other things the idea was that Republicans would reverse the filibuster rules by a simple majority vote.
For Rick's very fine analysis of the political feasibility of the "nuclear option," surf here. And for my comments, go here.