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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Wednesday, December 31, 2003
Change of Management For everything there is a season. For reasons that are beyond my control and which I do not have authority to divulge, the management of Legal Theory Blog is changing hands. For details, surf here.
Update: My apologies to those of you who did not follow the link to Ciceronian Review's satirical post suggesting that LTB had been taken over by Dick Cheney. Not really.

Conference Announcement: Digital Cops in Virtual Environment--CyberCrime and Digital Law Enforcement Conference Yale Law School will be hosting Digital Cops in Virtual Environment--CyberCrime and Digital Law Enforcement Conference on March 26-28, 2004. Here is the description:
    The Information Society Project at Yale Law School is pleased to announce its upcoming conference on Cybercrime and Digital Law Enforcement entitled: "Digital Cops in Virtual Environment," which will take place on March 26-28, 2004 at Yale Law School. This ground-breaking conference will bring together policy makers, security experts, law enforcement personnel, social activists and academics to discuss the emerging phenomena of cybercrime and law enforcement. The conference will question both the efficacy of fighting cybercrime and the civil liberties implications arising from innovations in law enforcement methods of operation. During this weekend-long conference, a distinguished group of experts will discuss how a shift to a digital environment: (1) changes the crime scene; (2) facilitates the commission of new types of crimes; (3) leads to radical changes in law enforcement methods; (4) equips law enforcement with new tools of surveillance, technological design and risk sorting systems; (5) presents challenges for the legal process; and (6) introduces new forms of social resistance through hacktivism and counter-surveillance.

Bainbridge on the SEC Shareholder Access Proposal Stephen M. Bainbridge (University of California, Los Angeles - School of Law) has posted A Comment on the SEC Shareholder Access Proposal on SSRN. Here is the abstract:
    The Securities and Exchange Commission (SEC) recently proposed a set of amendments to its proxy rules intended to provide shareholders of public corporations with a limited ability to nominate candidates for a corporation's board of directors and to have their nominee placed on the corporation's own proxy statement and card. This essay reviews the principal features of the proposal and identifies several issues remaining for resolution. The essay concludes that the SEC likely has authority to adopt the proposal, but argues that the costs the rule will impose on corporations outweigh any likely benefits from greater shareholder democracy.

Bibas on Therapeutic Judging Stephanos Bibas (University of Iowa - College of Law) has posted Using Plea Procedures to Combat Denial and Minimization (JUDGING IN A THERAPEUTIC KEY, Bruce J. Winick & David B. Wexler, eds., 2003) on SSRN. Here is the abstract:
    Criminal defendants, who may be ashamed of their acts and feel guilty, are often loath to admit guilt to others or even themselves. Thus, many enter Alford or nolo contendere pleas, which refuse to admit guilt but accept punishment as if guilty. Defense lawyers and many judges and prosecutors like these pleas because they are efficient and avoid the ordeals of trials. This book chapter criticizes Alford and nolo contendere pleas, because their efficiency comes at a steep price. The defendants who most want to use these pleas are in deepest denial, but they are the ones who most need to confront and admit guilt as a first step towards moving past it. The legal system can challenge their denials at trial, or it can allow guilty defendants to persist in it. Guilty defendants who remain in denial resist successful treatment and are much more likely to reoffend. They also deny victims closure, catharsis, and vindication. And they frustrate society's desire for clear, unambiguous resolutions and moral messages. For those defendants who cannot or will not admit guilt, the law should insist on jury trials, to vindicate the innocent and confront the guilty defendants. In short, jury trials are valuable morality plays. Alford and nolo contendere pleas short-circuit this process, exalting efficiency at the expense of key therapeutic and moral goals of the criminal justice system.

Cohen and Blavin on Internet Metaphors I. Glenn Cohen and Jonathan H. Blavin (Law Clerk, U.S. Court of Appeals for the First Circuit and Government of the United States of America - 9th Circuit) have posted Gore, Gibson, and Goldsmith: The Evolution of Internet Metaphors in Law and Commentary (Harvard Journal of Law and Technology, Vol. 16, No. 1, p. 265, Fall 2002) on SSRN. Here is the abstract:
    This paper addresses the evolution of metaphors for the Internet and shows how they have constrained and determined the development of cyberlaw. Within the law, metaphors mold the framework of discourse, determining the scope of appropriate questions about and answers to various social and legal problems. Courts and commentators employ metaphors as heuristics to generate hypotheses about the application of law to novel, unexplored domains. Metaphors structure the way lawyers conceptualize legal events, as they infiltrate, consciously and unconsciously, legal discourse. Under the classic formalist view of common law analogy as syllogism, analogical reasoning from precedent begins with the establishment of a rule behind a case or group of similar cases. Judges then apply the rule fairly mechanically to the case at hand to yield a result that is understood through the background of precedent. In contrast to figurative literary metaphors, highly structured analogical, metaphorical mappings may be used to make persuasive, logical arguments. Like all metaphors, however, legal metaphors possess a paradoxical quality, embodied in the constant tension between the legal metaphor's literal incongruence and metaphorical congruence with reality. Metaphors whose metaphorical congruence with reality is perceived as dominant, such as the "marketplace of ideas" metaphor in First Amendment jurisprudence and the "bundle of sticks" metaphor in Takings clause jurisprudence, will continue to have analogical value and will be perpetuated through judicial opinion and scholarly commentary. Conversely, legal metaphors erceived as having greater literal incongruence with reality, such as the slavery metaphor of African Americans as chattels, will lose their value and be discarded. While metaphors aid humans in comprehending abstract concepts and legal doctrines, they also may limit human understanding by selectively highlighting various aspects of an issue while suppressing and marginalizing others. Unreflective use of metaphors can lead lawyers to take for granted the "realities" that metaphors enable. A bad metaphor can also simply lead to bad decision making. For example, Cass Sunstein argues that the "marketplace of ideas" metaphor has turned the right to free expression into a degraded form of commerce. This paper seeks to explore the evolution of metaphorical inferences as applied to the Internet within legal commentary and judicial opinions. Three metaphors in particular will be examined: the information superhighway, cyberspace, and the Internet as "real" space. Given the Internet's ongoing evolution as an unstable and ever-changing technology, courts and commentators have faced perpetual difficulty in mapping metaphors to it. Changing social constructions of the Internet as necessitated by its evolving underlying technological architecture have supported, or conversely eroded, a particular metaphor's literal congruence with reality. The purpose of this paper to make transparent the different conceptions of the Internet courts and commentators are sub silentio employing, and the various sociological, technological, and ideological conceptions of the world that support them.

Semeraro on Capital Sentencing Steven Semeraro (Thomas Jefferson School of Law) has posted Responsibility in Capital Sentencing (San Diego Law Review, Vol. 39, p. 79, 2002) on SSRN. Here is the abstract:
    The recent evidence of innocents on death row has led to a call to revisit the legal doctrine governing capital punishment. But abandoning that doctrine would be the wrong response. It fosters individual responsibility in capital sentencing by placing the participants in the process - from the legislator to the prosecutor, trial judge, and jury and ultimately to the appellate judge - in an environment in which their sense of responsibility is broadened compared to earlier capital punishment systems. By strengthening the sense of responsibility of those inside the process, we heighten our trust in their decision. Drawing on psychological research, empirical data from juror interviews, and the social theory of Vaclav Havel, this article suggests that individual responsibility - rather than the goals advanced by the Court itself (consistency and individualization) - is the key to a moral capital sentencing process. Although modern doctrine is worth preserving, it could be improved significantly by focusing explicitly on heightening individual responsibility. This article proposes two concrete ways to improve existing doctrine: (1) require the trial judge to explain the sentencer's role to the jury in the narrative voice, a way of speaking associated with the assignment of responsibility; and (2) require heightened scrutiny of death sentences, bringing the responsibility of appellate judges in capital cases into line with the responsibility they bear in other constitutional cases.

Tuesday, December 30, 2003
Internet Law in Review Doug Isenberg's Internet Law Year in Review 2003 is available on Gigalaw.

More on Public Reason and Faith-Based Prisons My post from yesterday, Public Reasons and Faith-Based Prisons, has prompted a variety of reactions. The distinguished law and religion scholar, Steve Smith, emailed comments which I've appended at the end of my original post. Rick Garnett replied to my post over at Punishment Theory. Here is a taste of Rick's post:
    As for your hypo about sectarian legislative preambles -- the "Christianity is the true religion" preamble strikes me as inappropriate, though I see nothing illiberal--or unconstitutional--about a legislator supporting and arguing for the policy for that reason, assuming that the legislator sees some connection between the truth of Christianity, the proposal in question, and the common good. That the state should speak in a non-religious voice does not mean, it seems to me, that citizens and legislators must do so.
Stephen Bainbridge emails to remind me of the United States Supreme Court's opinion in Holy Trinity Church v. U.S., 143 U.S. 457 (1892), which famously (or infamously) states:
    If we pass beyond these matters to a view of American life, as expressed by its laws, its business, its customs, and its society, we find every where a clear recognition of the same truth. Among other matters note the following: The form of oath universally prevailing, concluding with an appeal to the Almighty; the custom of opening sessions of all deliberative bodies and most conventions with prayer; the prefatory words of all wills, 'In the name of God, amen;' the laws respecting the observance of the Sabbath, with the general cessation of all secular business, and the closing of courts, legislatures, and other similar public assemblies on that day; the churches and church organizations which abound in every city, town, and hamlet; the multitude of charitable organizations existing every where under Christian auspices; the gigantic missionary associations, with general support, and aiming to establish Christian missions in every quarter of the globe. These, and many other matters which might be noticed, add a volume of unofficial declarations to the mass of organic utterances that this is a Christian nation.
And John Gardner (Oxford) has a marvelous comment up over at Punishment Theory. Here's a brief excerpt from Gardner:
    The liberal prohibition on such government double-dealing does not entail that there is some special class of reasons which is such that governments should never rely on them. It is consistent with governments relying on reasons of utility, for example, so long as they do not conceal that they do so. It is also consistent with governments relying on reasons of respect for God or respect for art, respect for marriage, etc, so long as they do not conceal that they do so.
Finally, Kyron Huigens has a nice post including the following remark:
    A reason is suitable for public debate, public policy, and law only if some empirical evidence -- available to all -- could in principle disprove the proposition. This excludes faith-based reasons for the same reason that science cannot disprove religion: like faith itself, faith-based reasons are not falsifiable in principle. This kind of belief is explicitly not premised on empirical evidence, but instead on an experience of the divine.
On this last point, it seems to me that there is a grave difficulty with Huigens's suggestion. Let me repeat the crucial sentence: "A reason is suitable for public debate, public policy, and law only if some empirical evidence -- available to all -- could in principle disprove the proposition." How would this criteria apply to the values that are conventionally used as premises in public political debate? For example, what empirical evidence could, in principle, disprove the proposition that human dignity is a very great value or that the innocent persons should not be injured or killed absent the most extraordinary justifications? Perhaps I misunderstand Huigens point. Surf on over to Punishment Theory for more!

Defending the MLA Chun the Unavoidable defends the MLA against familiar criticisms in this post. See also Invisible Adjunct, John & Belle Have A Blog and John Holbo. Here is a taste of Chun's post:
    A larger point is that one of the reasons that people (especially journalists) feel like the MLA is an allowable target is because of what they perceive as the low barrier of entry. Anyone can (or should, at least) read novels, poems, short stories, etc. So why do these pretentious fops get up there and pretend they know so much better than the rest of us? Huh? HUH!?!? Relax. We do know more. It's only a delusion that makes you think that you know enough about the problems of literary interpretation to demand that its professional discourse make perfect sense to you. It's an understandable delusion, but one that you can cure yourself of quickly enough by reading everything ever written about, for example, Frank Norris over the next five or so years. Now write three hundred pages of scholarship on him that advances something new and takes into account the relevant developments in literary history and interpretation. After you've completed this exercise, which I'm sure any Chronicle journalist or average blogopath could do in record time, then you'll realize just how little is actually known about how literature works and the reason why professional attempts to analyze it are fraught with jargon and assumptions of prior knowledge.
Although I'm reasonably well informed about theories of interpretation (literary and otherwise), I really don't know much about the current state of applied literary theory--i.e. the application of literary theory to particular works or authors. So, I really don't feel qualified to enter into this debate in an informed way. I have my prejudices, but I must confess that they are most just that: Chun is right: article titles certainly are an inadequate basis to judge scholarship. Here is a question I do find interesting: What should count as "adding value" in the context of literary scholarship? Of course, the criteria will be contestable (part of literary theory itself), but contestability does not equal subjectivity. For example, should it count as a criterion for adding value that the content of the scholarship could, in principle, lead a reader to a deeper or more enriching understanding of the work in question? I'd better stop now, before I proceed deeper into the minefield.

Rorty on Habermas Richard Rorty has a marvelous review of Jurgen Habermas's Truth and Justification on Notre Dame Philosophical Reviews. Here is a taste:
    Habermas is one of the few philosophers who is as much at home with Hegel, Hamann and Heidegger as he is with Davidson, Sellars and Dummett. So he is able to move back and forth, smoothly and perspicuously, between small-scale critical analyses and insightful historical comparisons and generalizations. The result is a survey of the contemporary philosophical scene that is far more imaginative, and far more stimulating, than the sort found in books whose authors’ range of reference is limited to the last few decades’ worth of work within analytic philosophy.
And from a bit later in the review:
    Habermas regards Brandom as representing “the state of the art of pragmatic approaches in analytic philosophy of language”, but thinks that Brandom’s “assimilation of the objectivity of experience to the intersubjectivity of communication is reminiscent of an infamous Hegelian move” (7-8). He reads Brandom as an arch-contextualist, whose inferentialist theory of the nature of propositional content “obliterates the distinction between the intersubjectively shared lifeworld and the objective world”. Brandom, he says, “does not rescue the realist intuitions by recourse to the contingent constraints of a world that is supposed to exist independently and for everyone” (155), and so is driven to a linguistified version of Hegel’s objective idealism. Habermas argues that we need a concept of empirical truth that “connects the result of successful justification with something in the objective world” (42). This means keeping intact the distinction between the availability of a “justification-independent point of reference” for assertions of empirical fact and the absence of such a point of reference when we turn to moral judgments and norms. In morality, he says, we lack “the ontological connotation of reference to things about which we can state facts” (42). So he criticizes Brandom’s refusal to accept any version of the Kantian distinction between theoretical and practical uses of reason.
And finally:
    Like Putnam and the late Bernard Williams, Habermas wants to naturalize and de-transcendentalize philosophy, and to disconnect morality from metaphysics. So he is willing to concede a lot of ground to Nietzsche’s polemics against Plato—and in particular to give up on the correspondence theory of truth. But he nevertheless holds on both to claims of unconditionality and to what he calls “the natural Platonism of the lifeworld”—a Platonism that insists on “a justification-transcendent standard for orienting ourselves by context-independent truth-claims” (254).
Highly recommended!

Dana on Existence Value In a world of cost-benefit analysis, how might we account for the value associated with the mere existence of particular natural features (wetlands, forests, etcs.) when that value is not reflected in any form of consumption--other than knowledge that the particular feature exists? David A. Dana (Northwestern University Law School) has posted Existence Value and Federal Preservation Regulation on SSRN. Here is the abstract:
    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. 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 physical effects. This Article argues that a significant set of the interstate effects of natural resource degradation and destruction on the American populace cannot plausibly be classified as either physical or market effects: some, perhaps many, Americans lose some sense of well-being simply by virtue of the loss of the existence of wetlands, waterways, and other natural resources in states where they do not live. Existence values (or more precisely, the desire to prevent the loss of existence values) provide a powerful positive account of how the federal political process, despite concerted opposition by wellorganized business interests, has at times come to restrict the degradation of natural spaces that few out-of-state residents are likely to ever visit or otherwise use. Existence values also provide a strong normative account of why such restrictions are, from a societal vantage, presumptively welfare-maximizing. Indeed, as explained in Part III of the Article, federal regulation is more likely to be necessary to maximize welfare in the context of interstate losses in existence value than in the context of interstate physical effects, such as air or water pollution crossing state lines. The principal claim of those who reject the use of existence values as a rationale for federal regulation is that existence values are nonmeasurable and hence unsuitable for consideration in public policy. As explored in Part IV of the Article, this empirical objection is inconsistent with the findings of contingent value (CV) surveys in which respondents have been asked how much they would be willing to pay for the preservation of one or more natural resources. The CV surveys completed to date, although admittedly imperfect as measurement devices, suggest significant values for the preservation of a range of natural resources. More important, the federal political process itself provides a comparative measure of the magnitude of the existence-value benefits of natural preservation (on the one hand) and the magnitude of the competing economic benefits associated with the degradation or destruction of natural settings (on the other). If anything, given the core insights of public choice theory and the structural supports in the federal political process for industries whose economic interests often run counter to natural preservation (e.g., the mining, timber, and oil industries), we should expect the federal political process to understate significantly the comparative magnitude of the existence-value benefits of natural preservation. The current literature also contains a non-empirical objection to existence values as a justification for federal regulation. The essence of this objection is that federal preservation regulation premised on existence value preferences is illegitimate because it violates the principles of respect for private property rights and distributive justice among communities. As explained in Part V of the Article, these principles, at best, support the claim that all sorts of government regulation - and not just federal regulation aimed at preserving natural resources - is illegitimate from a particular (and highly contestable) point of view. The normative defense of existence values and existence-value-driven regulation developed in Parts III-V provides a useful perspective from which to evaluate the current state of Commerce Clause doctrine. Commerce Clause doctrine has never formally recognized existence-value concerns as a basis for federal jurisdiction, and that is unlikely to change. However, certain doctrinal approaches to the Commerce Clause create room for regulation motivated by existence-value concerns, and others, such as the approach arguably endorsed by the majority in SWANCC, do not. If one accepts that federal regulation premised on existence-value concerns is presumptively welfare maximizing, then one must accept that Commerce Clause tests that preclude such regulation carry a substantial social cost. The normative defense of existence-value regulation also has implications for the choice between approaches to standing that facilitate citizen enforcement of regulations premised on existence-value concerns, and approaches, such as that endorsed by the majority in Lujan v. Defenders of Wildlife, that impede such enforcement.
This is an interesting paper. Here are a few random thoughts, intended as musings rather than criticisms:
  • Dana's approach has the virtue that it allows some consideration of existence values--which otherwise are left out of cost-benefit analysis altogether, but it also seems to fail to capture what is real about existence values. I take it that the real point is not the psychological effects of the existence of nature, but the intrinsic value.
  • But of course, assigning intrinsic value to unspoiled nature raises other problems. In particular, it may be difficult to articulate public reasons that express such intrinsic values. This raises a troubling point--if the real underlying values are not based in public reasons, then is it legitimate to count the derivative psychological expression of the underlying values for the purposes of cost-benefit analysis?
  • Existence values persis over time, raising familiar and troubling questions about discounting. Is it proper to apply a discount rate to future exsitence values? If the discount rate is even moderately high, then the future values count for virtually nothing. If not discount rate is applied, then they count for everything.
Download it while its hot!

Stout on the New Finance Lynn A. Stout (University of California, Los Angeles - School of Law) has posted The Mechanisms of Market Inefficiency: An Introduction to the New Finance on SSRN. Here is the abstract:
    During the 1970s and early 1980s, the Efficient Capital Market Hypothesis (ECMH) became one of the most widely-accepted and influential ideas in finance economics. More recently, however, the idea of market efficiency has fallen into disrepute as a result of market events and growing empirical evidence of inefficiencies. This Article argues that the weaknesses of efficient market theory are, and were, apparent from a careful inspection of its initial premises, including the presumptions of homogeneous investor expectations, effective arbitrage, and investor rationality. By the same token, a wide range of market phenomena inconsistent with the ECHM can be explained using market models that modify these three assumptions. In illustration, this Article explores three important strands of today's finance literature: (1) the expanding body of work on asset pricing when investors have heterogeneous expectations; (2) recent theoretical and empirical scholarship on how and why arbitrage may move certain types of publicly available information into price more slowly and incompletely than earlier writings suggested; and (3) the exploding literature in behavioral finance, which examines what happens to prices when market participants do not all share rational expectations. Taken together, these three bodies of work show signs of providing the essential framework on which can be built a new and more powerful working model of securities markets.

Korobkin on Form Contracts & Bounded Rationality Russell B. Korobkin (University of California, Los Angeles - School of Law) has posted Bounded Rationality, Standard Form Contracts, and Unconscionability (University of Chicago Law Review, Vol. 70, p. 1203, 2003) on SSRN. Here is the abstract:
    Economic theory suggests that, in most circumstances, market forces will ensure that stan-dard form contracts contain terms that are not only socially efficient but also beneficial to non-drafting parties as a class compared to other possible combinations of price and terms. This analy-sis in turn suggests that courts should enforce all form terms or, at a minimum, all form terms that non-drafting parties read and understand. Relying on social science research on decisionmaking, this Article argues that non-drafting parties (usually buyers) are boundedly rational decisionmak-ers who will normally price only a limited number of product attributes as part of their purchase decision. When contract terms are not among these attributes, drafting parties will have a market incentive to include terms in their standard forms that favor themselves, whether or not such terms are efficient. Thus, there is no a priori reason to assume form contract terms will be efficient. The Article then argues that the proper policy response to this conclusion is greater use of mandatory contract terms and judicial modification of the unconscionability doctrine to better respond to the primary cause of contractual inefficiency.

Monday, December 29, 2003
Public Reasons and Faith-Based Prisons (Update: & Comments by Steve Smith) Over at Punishment Theory, there has been a very interesting exchange on faith-based prisons. (Start here and scroll up.) In this most recent posts, the discussion has turned to the question whether it is appropriate for legislators to support faith-based prisons for religious reasons. Rick Garnett's most recent post takes on this thorny issue:
    More important, though, is the point that the Constitution should not be read to require -- and, as Michael Perry has argued recently, liberal theory should not be understood to require -- religious citizens and legislators to avoid relying on religious reasons for supporting policy proposals. Instead, it would seem more consistent with the "equality" norms that Kyron and I both value to say that we should all openly and respectfully articulate and rely on those reasons that are most convincing to us, and see if our fellow citizens are persuaded.
Set aside the constitutional question for now. As a matter of political morality, ought we adhere to an ideal of public reason that would require that legislative action be supported in ways that appeal to common reason of all citizens? Or should our ideal of public reason be based on the principle of laissez-faire: let all reasons content in the market place of ideas?
When thinking about this question, I think it is important to be careful and precise. Some of the distinctions that we ought to observe include the following:
  • The ideal of public reason may differ by context. Reasons that are appropriate for ordinary citizens may be inappropriate for judges, and yet a different standard may apply to legislators. There may be a difference between things that legislators say off the floor, things they say on the floor, and things they include in official documents, such as preambles or committee reports.
  • The distinction between public and nonpublic reasons is not identical to the distinction between religious and secular reasons. For example, many secular reasons are rooted in comprehensive philosophical doctrines of the good, and therefore, are not public: utilitarians believe that only consequences count, but that belief, although secular, is not a public reason. In addition, some religious reasons express publicly shared values in well-understood religious language. "Thou shall not kill," expresses the value of the sanctity of human life--a public reason. That it is expressed in religious language does not necessarily mean that it should not count as a public reason.
  • An ideal of public reason can be either exclusive or inclusive. An exclusive ideal of public reason is based on the principle that reasons that are not public should be excluded from a particular sphere of discourse (e.g. public political debate, legislative debate, official legislative documents, court opinions, etc.). An inclusive ideal is based on the principle that public reasons should be included in public discourse, also in a particular sphere.
So, here are some questions for Rick Garnett:
    1. When you say "we should all openly and respectfully articulate and rely on those reasons that are most convincing to us," do you mean to articulate a principle of laissez-faire? (It sounds like you do?) Of do you mean instead to support an inclusive ideal of public reason?
    2. To which of the following contexts does your principle apply:
      a. citizens (including officials) in public political debate outside of "official contexts," b. legislators on the floor of the legislative chamber, c. official legislative documents, such as preambles to legislation or committee reports, and official executive documents, d. judicial opinions?
    3. When you say "those reasons that are most convincing to us," do you mean to include explicitly sectarian reasons and the deep and controversial premises of secular doctrines? For example, would it be appropriate to argue based on the authority of a particular religious text or religious teacher, or to argue from the authority of a particular secular exponent of a nonpublic secular doctrine?
    4. In particular, would the following be appropriate uses of nonpublic reasons--only insofar as your ideal of public reason is concerned:
      a. The inclusion in the preamble of a bill establishing a faith-based prison system of the following statement: "Whereas Christianity is the true religion and only Christian teaching can produce true rehabilitation of offenders."
      b. The inclusion of the following statement in a judicial opinion, "The legislature explicitly relied on Protestant Christianity as the reason for the passage of this bill. Were Protestantism the true faith, it would supply a rational basis for establishment of prisons that teach that doctrine. But Protestantism is a false doctrine, and therefore this legislation lacks a rational basis."
Of course, Garnett may prefer not to answer these questions. (After all, one of the great pleasures of the legal academy is that answering interrogatories becomes optional!) Nonetheless, I hope the questions themselves serve the purpose of demonstrating that there are no simple, clean-cut answers to the deep questions of political morality that are raised by ideals of public reason. Surf on over to punishment theory!
Update: My colleague, Steve Smith, writes re my questions for Garnett:
    Interesting questions. For myself, I'm quite skeptical of the whole idea of "public reason" as a device for restricting discourse. So my inclination would be to answer "yes" to your questions 1, 2, and 3. But this "laissez faire" view, as you put it, probably needs to be qualified in a couple of ways. First, we do recognize that in certain contexts the considerations or reasons we can appeal to are appropriately limited. Jurors are supposed to base their verdicts on the evidence, not on things they independently hear. etc. So the case of judges is interesting, because we say they're supposed to base their judgments on "the law," whatever that means. Stephen Carter has a nice essay on this point, in which he basically says (if I recall): If you favor legal positivism and if that's a viable position, then judges shouldn't rely on their own religious convictions. But if you're more with the realists, or Dworkin, or the Warren Court, etc., then there's no reasons to single out religious convictions for exclusion. The other qualification, I think, is that I believe it can be argued that we have a "nonsectarian" tradition, which I interpret to mean that government should justify its actions and decisions with reasons no more exclusive than necessary. This raises doubts about your fourth question, because I take that the answers you suggest, even if they were sincere in context, would be gratuitously narrow and exclusive. I'd use Jefferson's Virgina Bill as a model: it begins by saying "Almighty God hath created the mind free," etc. It could have said nothing religious, but then it would have failed to provide any plausible justification. conversely, it could have said, "Jesus Christ . . .", and it's conceivable that a majority of Virginians might have preferred this, but this language would have been unnecessarily exclusive. "Almighty God" struck the right note of inclusiveness.

Weekend Wrap Up On Saturday, the Download of the Week was Plea Bargaining Outside the Shadow of Trial by Stephanos Bibas, and the Legal Theory Bookworm recommended a collection of essays by Jeremy Waldron. Sunday's Legal Theory Calendar previewed the start of three important conferences, the Annual Meeting of the Association of American Law Schools, the Faculty Division of the Federalist Society, and the American Society for Political and Legal Philosophy. Also on Sunday, the Legal Theory Lexicon entry was on Positive and Normative Legal Theory.

Allen and Mace on the Privilege Against Self-Incrimination The privilege against self-incrimination has long defied attempts at theoretical explanation. So, I was especially intrigued to see that Ronald J. Allen and M. Kristin Mace (Northwestern University Law School and Independent) have posted The Self-Incrimination Clause Explained and Its Future Predicted (Journal of Criminal Law and Criminology, 2003) on SSRN. Allen is, of course, one of our most eminent theorists of the law of evidence. Here is the abstract:
    Like many areas of the law, the Fifth Amendment has defied theoretical explanation by scholars. We examine whether the fifth amendment cases can be explained with a relatively simply theory, and find that they can. The key to that theory is the recognition that, although never acknowledged by the Court, its cases make plain that "testimony" is the substantive content of cognition - the propositions with truth-value that people hold or generate (as distinct from the ability to hold or generate propositions with truth-value). This observation leads to a comprehensive positive theory of the Fifth Amendment right: the government may not compel disclosure of the incriminating substantive results of cognition that themselves (the substantive results) are the product of state action. As we demonstrate in this article, this theory explains all of the cases, a feat not accomplished under any other scholarly or judicial theory; it even explains the most obvious datum that might be advanced against it - the sixth birthday question in Muniz. There remain two sources of ambiguity in Fifth Amendment adjudications. First, compulsion and incrimination are both continuous variables - questions of degree. The Court has recognized this and set about defining the amount of compulsion and incrimination necessary to a Fifth Amendment violation. The result is a common law of both topics rather than a precise metric of either. These two variables are independent and do not interact, which reduces the complexity of decision making. Compulsion, in other words, is in no way determined by the extent to which the results are incriminating. Compulsion is determined on its own, as is the sufficiency of incrimination. The second source of ambiguity arises from the Court not explicitly equating "testimony" with cognition, though that is precisely what has controlled its decisions. Given that the Court's opinions have not focused on substantive cognition as the third element of a Fifth Amendment violation, it is not surprising that the Court has not clarified whether cognition, too, is a continuous or discontinuous variable. This is where the future lies. The Court will have to clarify two matters: first, whether the extent of cognition matters, and second, the derivative consequences of cognition. In addition, the Court will have to determine whether these two issues are, like compulsion and incrimination, independent. Does the extensiveness of the compelled cognition determine how far its causal effect will be traced? We then note that this "theory" does not look like a standard academic theory with its attendant emphasis on normative analysis. We examine whether the normal meaning of "normative justification" is a very useful one in any field of law with the range of the fifth amendment, point out that it is quite similar to the fourth amendment in this regard, and that scholarly efforts to discover its "true" justification may be doomed to failure. This does not mean that fields of law are unjustified, but perhaps that the justification must come in other terms. The terms plainly applicable to these two areas are the traditional ones of the rule of law. The Court has strived to make sense of ambiguous directives through creating and sustaining relatively clear legal categories and by responding to new situations through analogies to prior cases. We think it plausible that, however dull this may appear to the legal theorist, the legal system may be better off as a result. The article thus adds to the growing literature concerning the nature of legal theorizing by demonstrating yet another area where legal theorizing in its modern conventional sense (involving the search for the moral or philosophical theory that justifies an area of law) has been completely ineffectual, whereas explanations that are informed by the presently neglected values of legality (clarity, precision, consistency, fidelity to authority) have considerable promise.
No normative theory, it appears. Does the positive theory work? The key concept is obviously the equation of "testimony" with the content of cognition, as this passage from the paper makes clear: "In the cases, 'testimony' means substantive cognition, the product of cognition that results in holding or asserting propositions with truth-value." (26) But in the following paragraph, the definition of cognition is formulated just a bit differently: "Cognition 'involves the acquisition, storage, retrieval, and use of knowledge.' We use the term to refer to these intellectual processes that allow one to gain and make use of substantive knowledge and to compare one's 'inner world' (previous knowledge) with the 'outside world' (including stimuli, such as a question from an interrogator)." (26) I would think that the use of the term "knowledge" must be an unintended error. Defining "knowledge" is a tricky business, but almost everyone agrees that "knowledge" must be true belief--e.g. the common equation of knowledge with justified true belief. But compelled disclosure of the content of false beliefs would surely be a violation of the privilege for Allen and Mace. So perhaps, Allen and Mace actually meant something like: "Cognition involves the acquisition, storage, retrieval, and use of belief." Of course, not all all evidence of cognition is excluded by the privilege: as Allen and Mace state, "It is important to note that state action is required to trigger both the cognition and the disclosure of the results." I haven't really thought this through, but here is one interesting implication of their view: The contents of belief can frequently be inferred from actions. A simple example is the demeanor of a suspect in custody. According to the Allen/Mace theory, if demeanor gives rise to an inference about the suspects beliefs (or knowledge), then "testimony" has occurred. Of course, this does not mean that either the inferences or their fruit are proscribed by the privilege--that conclusion cannot be reached until we conclude that the "testimony" is the produce of "coercion." A very interesting paper. Highly recommended.

Edmundson on Privacy William A. Edmundson (Georgia State Law School) has posted Privacy (THE BLACKWELL GUIDE TO THE PHILOSOPHY OF LAW AND LEGAL THEORY, Martin P. Golding, William A, Edmundson, eds., Oxford: Blackwell Publishing, April 2004) on SSRN. Here is the abstract:
    This essay concerns privacy as a moral right, and as a candidate for protection as a positive legal or constitutional right. It discusses the threefold distinction between what have been termed physical, informational, and decisional privacy rights, and then briefly surveys the efforts to provide a unified theory of privacy in its varying manifestations. The central section of the essay explores the relation between decisional privacy rights and the right to liberty - a relation whose importance is emphasized in the recent decision of the U.S. Supreme Court in Lawrence v. Texas, 123 S.Ct. 2472 (2003). Unlike liberty in the sense of a moral permission to engage in conduct of a given type, decisional privacy is best understood as a right to do wrong - or, more precisely, to do what society, or the legislature, may correctly or incorrectly perceive to be wrong. As such, decisional privacy raises vexing questions about the place of rights in moral and political theory. The essay concludes by suggesting that constitutional privacy might better be conceived in terms of informational privacy rights grounded on individual dignity than in terms of liberty as a decisional privacy right.

MacKinnon and Siegel's New Anthology on Sexual Harassment Catharine A. MacKinnon and Reva Siegel (University of Michigan Law School and Yale Law School) have posted Directions in Sexual Harassment Law: Introduction and Afterword (DIRECTIONS IN SEXUAL HARASSMENT LAW, Catharine A. MacKinnon and Reva B. Siegel, eds., Yale Press, 2004) on SSRN. Here is the abstract:
    In Directions in Sexual Harassment Law, 38 authors explore the past and future development of the field, with an introduction by Reva Siegel and an afterword by Catharine MacKinnon, the volume's co-editors. Siegel opens the collection with "A Short History of Sexual Harassment," which recounts striking changes in the practice and protest of sexual harassment in the past and in our own day. She analyzes legal recognition of sexual harassment as sex discrimination, treating it as an important chapter in this history that reveals much about the ways antidiscrimination law enables and limits challenges to the social world of which it is a part. MacKinnon closes the book with an assessment of the changes wrought by sexual harassment law in the quarter century since she argued for legal recognition of the claim in Sexual Harassment of Working Women (1979). Anchoring her analysis in the national debates spanning the Thomas-Hill hearings and the Clinton impeachment, MacKinnon charts the norms and practices this body of law has transformed, as well as the entrenched understandings and arrangements that it has yet to disturb. (Siegel's and MacKinnon's essays are posted with this abstract.) Directions in Sexual Harassment Law will be published by Yale University Press in January of 2004. Its 37 essays are grouped in seven parts. In Part I, Contexts, Andrea Dworkin, Guido Calabresi, Anne Simon, Pamela Price, and Gerald Torres offer brief observations on the law's role in addressing sexual harassment. In Part II, Unwelcomeness, Carol Sanger, Louise Fitzgerald, Kathy Abrams, Jane Larson, and Robin West analyze the role of notions of consent in sexual harassment law and theory. In Part III, Same-Sex Harassment, William Eskridge, Katherine Franke, Janet Halley, Marc Spindelman, and Chris Kendall debate the relation of gender and sexuality and the role of law in regulating sexual relations and redressing sexual injury. In Part IV, Accountability, Judith Resnik, David Oppenheimer, Deborah Rhode, Ann Scales, and Cass Sunstein & Judy Shih explore questions of institutional responsibility for sexual harassment in both the employment and education settings. Part V, Speech, considers how, if at all, law ought take account of speech values in the ways it defines and regulates sexual harassment, in essays by Frederick Schauer, Dorothy Roberts, Robert Post, Kingsley Browne, Janine Benedet, and Jack Balkin. In Part VI, Extensions, Adrienne Davis, Tanya Kateri Hernandez, Lea VanderVelde, Sally Goldfarb, and Diane Rosenfeld trace the life of the sexual harassment paradigm in other legal contexts. Part VII, Transnational Perspectives, considers sexual harassment law in comparative perspective. Orit Kamir, Susanne Baer, Abigail Saguy, Yukiko Tsunoda, Martha Nussbaum, and Christine Chinkin respectively analyze sexual harassment law in Israel, Germany, France, Japan, India, and under international human rights law.

Greenberg on Deconstructing Binary Race & Sex Categories Julie A. Greenberg (Thomas Jefferson School of Law) has posted Deconstructing Binary Race and Sex Categories: A Comparison of the Multiracial and Transgendered Experience (San Diego Law Review, Vol. 39, p. 917, 2002) on SSRN. Here is the abstract:
    Millions of people are multiracial and cannot be classified as being of one distinct race. Similarly, millions of people are transgendered and cannot easily be categorized as either male or female. Racial classification systems have existed for centuries and have been the subject of extensive commentary and critique for decades. Sex and gender classification systems, on the other hand, just started to become the subject of litigation in the last half of the twentieth century and it is only during the last decade that sex classification systems have become the topic of extensive scholarly discussion. Race and sex classification systems originally were based upon two assumptions: (1) race and sex are binary; and (2) race and sex can be biologically determined. Racial categorization has moved away from these two simplistic assumptions. Most scholars and legal institutions now agree that race cannot be defined by biological factors and that race has been socially constructed. Sex classification systems, on the other hand, are still primarily based on the assumptions that sex is binary, unambiguous, and can be biologically determined, despite scientific research that indicates that none of these assumptions is completely accurate. An understanding of the issues that have arisen under a binary racial classification system may assist legal institutions and gender scholars and activists as they seek to understand and modify the current sex classification system. This article explores whether some of the major issues being discussed by race scholars engaged in the "multiracial" category debate should be considered by legal institutions and scholars as they analyze the effect of binary sex/gender classification systems on sexual minorities.

Sunday, December 28, 2003
Legal Theory Lexicon: Positive and Normative Legal Theory
    Introduction One of the most fundamental distinctions in legal theory is that between "positive legal theory" and "normative legal theory." This post provides a very brief introduction to the distinction, aimed at law students (especially first years) with an interest in legal theory.
    The core idea of the distinction between positive and normative legal theory is simple: positive legal theory seeks to explain what the law is and why it is that way, and how laws affect the world, whereas normative legal theories tell us what the law ought to be. Thus, a positive theory of tort law might seek to explain what causal forces have produced the existing principles of tort law, whereas a normative theory of tort law would tell us what rules of tort liability would be best, right, or justifiable. Or more simply: positive legal theories are about facts and normative legal theories are about values.
    Positive Legal Theory Sometimes, the notion of positive legal theory is presented in an oversimplified way--as if there were a single, well-defined type of theory that counted as positive. In fact, the phrase "positive legal theory" is used in a variety of ways. The one thing that positive legal theories have in common is that they are not normative. Nonetheless, there are three characteristic type of positive legal theory that can be identified:
      Positive Legal Theory Type 1: Doctrinal Theories--The first kind of legal theory that is called "positive" is quite simply a theory of what the content of a particular field of legal doctrine is. Thus, a theory of the freedom of speech might simply seek to explain the shape of existing first amendment doctrine. Or a theory of hearsay rule might seek to provide an account of the rule and exceptions that explains and accurately predicts particular applications of the rule. Doctrinal legal theories are responsive to questions like, "What are the principles that shape this area of the law?" or "Can these cases be explained by some underlying theory?"
      Positive Legal Theory Type 2: Explanatory Theories--The second kind of legal theory to which the label "positive" is applied are explanatory theories--theories about why the law is the way it is. For example, a very simple Marxist theory might state that the content of the law can best be explained by the interests of the ruling class. Some legal economists have tried to argue that common-law rules are efficient, because there is "evolutionary pressure" on inefficient legal rules.
      Positive Legal Theory Type 3: Effects Theories--The third kind of legal theories that are referred to as "positive" are theories about the consequences that will be produced by a given regime of legal rules. This is the sense of "positive theory" that is most frequently invoked by legal economists. The question --"What effects will a strict liability regime (as opposed to a negligence) regime have on the manufacturers of consumer products?"--can be answered by a legal theory that is positive in the sense that it predicts behavior but does not explicitly evaluate the desirability of the rule.
    Normative Legal Theory Normative legal theories, on the other hand, are by their nature evaluative. Thus, a normative theory of products liability law would take a stand on the question whether negligence or strict liability is the better rule. Normative legal theories tend to be entwined with more general normative theories, e.g. moral or political theories, although this is not necessarily the case. The Legal Theory Lexicon already includes entries on deontology, utilitarianism, and virtue ethics--three of the most important general normative theories that have had an influence on the law. There are two other distinctions that are important to understanding the general idea of a normative legal theory:
      Ideal versus Nonideal Theory Some normative legal theories are "ideal"--that is, they are theories about what the best legal rule would be in the world in which everything was politically possible, the law could be adequately enforced, and other legal rules that interact with the subject of the theory could be adjusted to produce the best overall system. Other normative legal theories are "nonideal"--that is, they are theories that assume a variety of constraints on the choice of legal rules. For example, a nonideal theory might take into account political feasibility or it might take into account the possibility that the system would not provide an optimal level of enforcement for the rule that would otherwise be best. The Legal Theory Lexicon entry on second best explores these ideas in greater detail.
      Justificatory Theories and Critical Theories Normative legal theories also vary in their "attitude" towards the status quo. You are likely to encounter normative legal theories that start with the question, "What is the best justification that be given for such and such a legal rule?" These justificatory theories have a limited purpose. They do not address the ultimate question, "What is the best legal rule?" On the other hand, many legal theories have the opposite purpose--the critique of existing legal doctrine. Thus, a critical theory might enumerate all of the criticisms that could be made of an existing legal rule--even though some of the criticisms may rest on inconsistent premises.
    The Intersection of Positive and Normative Theory So far, we have been assuming a fairly sharp distinction between positive and normative legal theory. And for many purposes, assuming that there is a bright line that separates normative and descriptive legal theory is a good working hypothesis. Even assuming there is such a bright line, however, there are relationships between positive and normative legal theories.
      Positive Theory in the Service of Normative Theory One relationship is clear and straightforward. Many normative theories underdetermine what the legal rules should be in the absence of substantial information about the effects of the rules. This is most obvious in the case of utilitarian theories, where information about consequences does all the real work of determining which legal rule is best. For normative theories like utilitarianism, positive theory performs an essential service. Without a positive account of the effects of a given rule choice, utilitarianism has nothing to say about what rule is best.
      Positive Theory as a Constraint on Normative Theory Another relatively noncontroversial relationship between positive and normative legal theories arises when a positive theory that explains why the law has the shape that it does, is taken as imposing a constraint on normative theory. For example, public choice theory makes certain predictions about how legislatures will act in response to various incentives. Some legal rules that might be justified by ideal normative legal theory may be considered "unrealistic" in light of positive theory. In cases like this, positive legal theory provides constraints that limit the options available to normative theory.
      Interpretivism and "Law as Integrity" There is another, more controversial, way that positive and normative legal theory can interact. Ronald Dworkin's theory of law, "law as integrity," attempts to combine the aims of positive doctrinal theory and normative theory. The idea is that a legal theory should both fit and justify the existing legal landscape. Thus, a Dworkinian theory of the freedom of speech would need to both fit the contours of the Supreme Court's decisions and justify those decisions. Of those interpretations of free speech doctrine that fit the legal topography, Dworkin maintains that judges should select that interpretation that makes the existing law, "the best that it can be." Dworkin's view of legal theory blurs the line between positive and normative legal theory--essentially combining the enterprises that I have called positive doctrinal theory and justificatory normative theory. As you might imagine, this is hugely controversial--although that is a topic for another post.
    Conclusion The distinction between positive and normative legal theories is fundamental, but once you have the terminology down, it is usually easy to apply. The tricky part comes when you are confronted with theories like Dworkin's that blur the lines between the positive and the normative. When you do, my advice is that you stay on your toes. A common mistake is to try to force interpretivist theories into either the positive or the normative. Although there may be deep reasons of legal theory that would justify such a forcing move, it will rarely be productive to start there. A better strategy is to try to understand such hybrid theories from the inside first. When you are constructing your own theories, it is always important to be sure you know whether your theory is positive, normative, or has elements of both. One of the oft-repeated questions that law professors ask of entry-level candidates giving job talks (or ambitious students writing papers) is whether their theory is positive or normative. Be sure you know the answer before the question is asked!
    For a complete collection of all the Legal Theory Lexicon posts with a table of contents, go here.

Legal Theory Calendar

Saturday, December 27, 2003
Finding Nemo Torts Hypo Here by Wu!

WSIS My general impression has been that WSIS (the UN/ITU sponsored event on the "Information Society") hasn't produced much of value. For the IP Justice take on WSIS, go here.

Ito & Seltzer on Blogging & Privacy Joi Ito posted the following:
    How many people who blog know that many blogs automatically send trackbacks or send pings to pingers sites like ... One of the problems of using the "big time bloggers" to design the technology is that we often forget that many people would rather NOT have their contexts collapsed.
And Wendy Seltzer has some thoughtful things to say in reply, starting with:
    We early adopters know how referer logs work; we know that Google and the Internet Archive (and a host of less benign others we don't know) can keep their argus eyes on everything we do. We know how to write .htaccess files, or at least whom to ask for something similar, if we want better (though still not total) privacy. We've internalized the norm that conduct not marked private is public.

More on Faith-Based Prisons Check out these posts by Rick Garnett and Kyron Huigens over at Punishment Theory.
Update: And more from Southern Appeal and Will Baude.

Legal Theory Bookworm This week, the Legal Theory Bookworm recommends Jeremy Waldron's Law and Disagreement--a collection of 13 essays by one of the most thoughtful and interesting thinkers in the legal academy. Here is a passage that I particularly liked:
    Max Radin once wrote that it is the job of a legislature to pass statutes not form intentions. A legislature is an artificial actor, and the passage of a statute is its action: indeed we refer to statutes as acts of Congress or Parliament or whatever. But though we use the language of agency in this way, we must not be misled by an obsessive analogy with the actions of natural persons into searching for a legislative equivalent for every event or state associated with action in the psychology of individual agents. Few would say, for example, that legislatures (as opposed to particular legislators) have motives as well as intentions associated with particular acts; few would be willing to put the kind of weight on the motive/intention distinction that we apply in the individual case. So why insist on a correlate for intention at all? Why not simply say that the act of a legislature is an artificial resultant of the acts of individual legislators, structured and related to one another through certain procedures, decision-functions and perhaps machines? Why not say that while each of the latter actions--the individual actions--is of course the product of an intention, the resultant action--the act of the legislature itself--need not be.

Download of the Week This week, the Download of the Week is Plea Bargaining Outside the Shadow of Trial (Harvard Law Review, June 2004) by Stephanos Bibas (University of Iowa - College of Law). Here is the abstract:
    Plea-bargaining literature predicts that parties strike plea bargains in the shadows of expected trial outcomes. In other words, parties forecast the expected sentence after trial, discount it by the probability of acquittal, and offer some proportional discount. This oversimplified model ignores how structural distortions skew bargaining outcomes, causing them to diverge from trial outcomes. Part I of this Article explores the various structural forces that warp plea bargains. Agency costs, attorney compensation and workloads, resources, sentencing and bail rules, and information deficits all skew bargaining. In addition, psychological biases and heuristics warp judgments. Part II applies recent research from behavioral law and economics and cognitive psychology to critique plea bargaining. Overconfidence, denial, discounting, risk preferences, loss aversion, framing, and anchoring all affect bargaining decisions. Skilled lawyers can partly counteract some of these problems, but they can also overcompensate. The oversimplified shadow-of-trial model of plea bargaining needs to be supplemented by a structural-psychological perspective. On this perspective, uncertainty, money, self-interest, and demographic variation greatly influence plea bargains. Part III explores how to respond to the various structural and psychological influences that warp plea bargains. Reforming systems of defense counsel, bail rules, and the structure of sentencing rules, and increasing use of mediators and judges in bargaining could ameliorate some of these influences. Other problems, such as demographic variations in psychology, are very difficult to correct. These influences cast light on how civil and criminal bargaining differ in important respects.
Download it while its hot!

Friday, December 26, 2003
Why Hasn't the MPAA pursued the RIAA's litigation strategy? Check out this post on Furdlog.

Welcome to the Blogosphere . . . to John Perry Barlow's BarlowFriendz.

Buck on the International Criminal Court Here.

Green on Establishment of Religion in Prisons Over at Punishment Theory, Stuart Green has a nice post on establishment of religion in prisons.

Four Michigan Law School Blogs I've been very impressed with Glorfindel of Gondolin, Silent Treatment, Letters of Marque, and Think Inc.. I've been slow in catching up with these law student blogs, so I hope its not too late to say "Welcome to the Blogosphere!"

Birnhack and Rowbottom on Protecting Children from Harmful Material on the Internet Michael Birnhack and Jacob H. Rowbottom (University of Haifa - Faculty of Law and Independent) have posted Shielding Children: The European Way (Chicago-Kent Law Review, Vol. 79) on SSRN. Here is the abstract:
    The Internet crosses physical borders, and carries with it both its promises and its harms to many different countries and societies. These countries thus share the same technology, but they do not necessarily share the same set of values or legal system. This paper compares the legal response in the United States and in Europe to one important issue: the exposure of children to certain materials, which are deemed harmful to them but not harmful to adults. This US-European comparison, in which the experience in the United Kingdom serves as a leading example, illustrates the traits of various kinds of regulation of the new media: public ordering (direct and indirect), private ordering, and ordering by code, i.e., by technological means. We examine the various kinds of regulation and their constitutional meaning. The US opted mostly for a direct legal attack on the material which is harmful to children, an approach which thus far, failed the judicial test, due to the limitations it imposes on freedom of speech of adults. While the European framework allows greater balancing between expression rights and competing interests, the European response has not been to follow the direct restrictions attempted in the US. Instead, accepting the practical difficulties of enforcing direct restrictions, the emerging legal response in European countries has been a market-based solution, guided by a legal framework that fosters self-regulation. The article considers the reasons for adopting the approach of self-regulation and the impact that such methods of control have on freedom of expression. In particular, examining the relationship of such controls with the communitarian approach advocated by professor Amitai Etzioni.

Bibas on Ineffective Assistance of Counsel Stephanos Bibas (University of Iowa - College of Law) has posted The Psychology of Hindsight and After-the-Fact Review of Ineffective Assistance of Counsel (Utah Law Review, March 2004) on SSRN. Here is the abstract:
    Strickland v. Washington tries to guarantee criminal defendants effective assistance of counsel by individually reviewing each defense lawyer's performance after-the-fact. Despite much terrible lawyering, courts rarely reverse convictions. Why? Behavioral psychology provides a key insight: Judges have difficulty reviewing individual lawyers' performance in hindsight. While the Supreme Court and some commentators have worried about the dangers of Monday-morning quarterbacking and 20/20 hindsight, they have overlooked the greater danger that in retrospect, convictions appear inevitable. Psychologists call this the inevitability or confirmatory bias. Strickland's vagueness and its refusal to lay down more specific guidelines for counsel exacerbate this problem by leaving plenty of room for the inevitability bias. The poor records surrounding guilty pleas further exacerbate the problem. The better solution is to move from case-by-case retrospective review to prospective efforts to improve indigent-defender systems, whether through structural-reform litigation or legislative change.

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

Thursday, December 25, 2003
Best Wishes from Legal Theory Blog In this holiday season, I would like to send my very best wishes to all the readers of Legal Theory Blog.

Broome's Brown-Blackwell Lectures You can download John Broome's Brown-Blackwell Lectures in three parts: Lecture 1: Rationality; Lecture 2: Theoretical reasoning; and Lecture 3: Practical reasoning. Here is a tiny taste from the marvelous third lecture:
    I find practical reasoning a much more difficult subject than I originally thought it was. I’m sorry to say I can only just touch the beginning of it. There is so much to be done. For example, I need in the end to give a proper account of normative practical reasoning, which can bring you to satisfy the requirement of rationality (5). This must be reasoning that takes you from believing you ought to F to intending to F. I have already said you must be able to reason by saying to yourself;
    I ought to F
    So, I shall F.
    But there are many problems over this, and I cannot deal with them today. Instead, I am going to concentrate instrumental reasoning. Moreover, on a very special kind of instrumental reasoning: reasoning from an end to a means that you believe is necessary. This kind of reasoning should bring you to satisfy requirement (4). Of all types of practical reasoning, this type must surely be the easiest to understand. But it’s hard enough, and you will see that I do not feel secure with the account I have of it.

Levy on Deflating Morality Neil Levy has posted Deflating Morality. Here is an excerpt:
    It is the purpose of this paper to explore the possible threats posed to morality from developments in cognitive science, evolutionary theory and psychology. The threats I shall consider have developed separately, and are motivated by different concerns, but they each pose a similar problem for morality: they apparently show that our that our moral beliefs and intuitions are the product of mechanisms which are not plausibly taken to track moral concerns. If this is the case, then (it seems) we have little reason to think that central parts of morality, perhaps the whole show, is anything more than a systematic illusion. Investigation of our cognitive mechanisms might show us to be in the grip of a massive collection delusion.

Dinwoodie & Dreyfuss on Preserving the Public Domain of Science Graeme B Dinwoodie (Chicago-Kent College of Law) and Rochelle Cooper Dreyfuss (New York University School of Law) have posted Preserving the Public Domain of Science Under International Law on SSRN. Here is the abstract:
    At the time the TRIPS Agreement was negotiated, the main focus of attention was on codifying then agreed-upon norms of protection. As a result, the Agreement can be read to reflect a static view of the structure of intellectual property law. In this paper, we address whether - and how - the TRIPS Agreement can, however, be read with more fluidity, and thus to allow adjustments in national intellectual property regimes designed to reflect the dynamic nature of information production. To focus that inquiry, we concentrate on efforts in US patent law to ensure a broader public domain for "upstream" inventions. The expansion of patentable subject matter to include upstream inventions has worried observers, leading some to suggest that other elements of patent law must be modified in order to re-create public-domain space in which work can be undertaken in accordance with traditional scientific norms. Because possible modifications would contract protection, they arguably raise TRIPS-compliance concerns, and bring into question the resilience of the Agreement. Considering all of these modifications would allow us to fully probe the provisions of the TRIPS Agreement to see which are most hospitable to protecting the public domain of science. In this paper, however, we look at only three stylized examples. These are (1) excluding certain discoveries from the subject matter of eligible patent protection; (2) creating a statutory exemption that gives courts discretion to permit unauthorized uses of sufficient social significance; and (3) varying the right to relief. The paper asks whether each approach could be adopted by the United States without falling afoul of the TRIPS Agreement as it is currently understood. Our purpose is not to predict the outcome of future disputes - there are far too few precedents for that. Rather, our goal is to identify interpretive approaches that allow member states to keep their laws attuned to the developments and needs of science. We conclude that a reform seeking to preserve the scientific public domain should pass muster under WTO dispute settlement scrutiny, but that it would have a greater chance of doing so if framed as an exemption from liability for infringement than as a subject matter exclusion. In our view, a targeted exemption (e.g., permitting specified uses) appears less susceptible to challenge than an open-ended exemption (like a fair use defense) that affords courts discretion. Varying the right to relief should also be TRIPS-compatible. Although the inclusion of provisions requiring effective enforcement of intellectual property rights was a crucial advance made by the TRIPS Agreement, there are substantial ambiguities (and some intentional vagueness) in those provisions. We view choices regarding remedies as directly implicating national authority; indeed, the ambiguity and vagueness might reflect the view that WTO members should be afforded substantial autonomy on precise questions of relief provided effective enforcement is available. We also raise broader questions regarding the level of formalism generated by the WTO dispute settlement system, and the extent to which the TRIPS Agreement allocates power between supranational and national institutions, between international and national laws. This allocation might be regarded as a form of neo-federalism; we argue that the content of this form of devolution should reflect the principles and concepts underlying not just the TRIPS Agreement, but the system of international intellectual property law as a whole.

Wednesday, December 24, 2003
Posner on Same Sex Marriage Judge Posner has some typically illuminating thoughts about same-sex marriage here. I particularly like the following passage:
    Judges like to pretend that their decisions are dictated by "logic," or by an authoritative text or precedent, because it downplays the element of judicial discretion, which worries people. The pretense wears particularly thin in constitutional cases about marriage and sex, because the Constitution does not say anything about these subjects, and the framers of the Constitution, and of the major amendments, in particular the Fourteenth Amendment, which is the principal source of constitutional rights against the states, were not thinking about marriage, sex, homosexuality, or related topics when they drafted these founding documents. (Neither were the ratifiers.) Decisions such as the four that I have mentioned, together with the Supreme Court's other well-known sex-related decisions, such as Griswold v. Connecticut (holding that a state cannot forbid married couples to use contraceptives) and Roe v. Wade, are all "political" decisions--not in the narrow Democratic versus Republican sense, but in the sense of being motivated by values not dictated by the orthodox materials of judicial decision-making. Precedent and analogy operate as fig leaves in such cases. So we have to dig much deeper to answer the question whether there should be a constitutional right of homosexual marriage. We have to consider why homosexuals want the right, what the consequences of giving it to them might be, why the right is so strongly opposed by the public, and whether the Supreme Court is the proper institution to authorize homosexual marriage.
As the readers of legal theory blog will know, the high esteem in which I regard Judge Posner is counterbalanced with my almost complete disagreement with his theory of judging. But one cannot help but admire his frankness and intelligence! Link courtesy of the The Right Coast.

Bayne and Kolers offer a Pluralist Account of Parenthood Tim Bayne and Avery Kolers (Macquarie University - Department of Philosophy and University of Louisville - Philosophy Department) have posted Toward a Pluralist Account of Parenthood (Bioethics, Vol. 17, pp. 221-242, June 2003) on SSRN. Here is the abstract:
    What is it that makes someone a parent? Many writers - call them 'monists'- claim that parenthood is grounded solely in one essential feature that is both necessary and sufficient for someone's being a parent. We reject not only monism but also 'necessity' views, in which some specific feature is necessary but not also sufficient for parenthood. Our argument supports what we call 'pluralism', the view that any one of several kinds of relationship is sufficient for parenthood. We begin by challenging monistic versions of gestationalism, the view that gestation uniquely grounds parenthood. Monistic and necessity gestationalism are implausible. First, we raise the 'paternity problem'- necessity gestationalists lack an adequate account of how men become fathers. Second, the positive arguments that necessity gestationalists give are not compelling. However, although gestation may not be a necessary condition for parenthood, there is good reason to think that it is sufficient. After further rebutting an 'intentionalist' account of parenthood, in which having and acting on intentions to procreate and rear is necessary for parenthood, we end by sketching a pluralist picture of the nature of parenthood, rooted in causation, on which gestation, direct genetic derivation, extended custody, and even, sometimes, intentions, may be individually sufficient for parenthood.

Hirsch on Abrogation of State Sovereign Immunity Pursuant to the War Power Jeffrey M. Hirsch (National Labor Relations Board, Appellate Court Branch) has posted Can Congress Use Its War Powers to Protect Military Employees from State Sovereign Immunity? (Seton Hall Law Review, Vol. 34, Spring 2004) on SSRN. Here is the abstract:
    The need to attract and keep soldiers has never been greater, yet that necessity is threatened by the Supreme Court's burgeoning state sovereign immunity jurisprudence. Congress has sought to promote military service in the Uniformed Services Employment and Reemployment Act (USERRA), which protects soldiers from adverse employment actions based on their military status. Although USERRA is clearly intended to apply to state employers, the Court's dicta that Congress cannot abrogate state sovereign immunity under Article I of the Constitution appear to emasculate that aim. This article, however, argues that the Court's recent holdings show that USERRA's abrogation, enacted pursuant to Congress's war powers, is an exception to the general prohibition against abrogation under Article I. The validity of war powers abrogation is supported by the historical importance of a unified national defense - well recognized during the plan of the constitutional convention and by the Court itself - which reveals that the states did not expect to possess immunity where the federal government exercises its war powers. This issue is important, for, as this article details, few suitable alternatives exist for military personnel who are deprived of their USERRA rights by state employers. Indeed, unless war abrogation is upheld, or Congress acts to secure conditional waivers of state immunity, military employees in only a few states will have the level of protection deemed necessary by Congress.

Nance & Morris on Jury Understanding of DNA Evidence Dale A. Nance and Scott B. Morris (Case Western Reserve University - School of Law and Illinois Institute of Technology - Institute of Psychology) have posted Jury Understanding of DNA Evidence: An Empirical Assessment of Presentation Formats for Trace Evidence with a Relatively Small Random Match Probability on SSRN. Here is the abstract:
    In cases involving scientific evidence in the form of a test result linking the accused to a crime (e.g., DNA match), expert testimony sometimes can also provide a suitably reliable estimate of the chance of a coincidental match (the random match probability). Considerable controversy, however, attends the question of whether to allow testimony reporting that probability and, if so, in what form it should be given. Additional and related controversy concerns the implications of proficiency test results for testimony about the chance of false positive lab error, especially when that figure greatly exceeds the random match probability. This paper reports a large scale empirical study, using members of an Illinois jury pool, designed to contribute to our understanding of the issues involved. Our results confirm earlier research suggesting that jurors, rather than being credulously overwhelmed by the science, tend to undervalue forensic match evidence. On the other hand, our results differ from most prior research in showing that variation in the way the random match probability is presented and explained can reduce the extent of the undervaluation, without at the same time inviting inferential fallacies that would exaggerate the probative value of the match. And contrary to predictions, our results also show that incorporating information about comparatively large lab error rates, when it has any discernible effect, actually increases the jurors' assessed probability of guilt and willingness to convict.

Appell on Randall Kennedy Annette Appell (University of Nevada, Las Vegas - William S. Boyd School of Law) has posted Disposable Mothers, Deployable Children (Review Essay) (Michigan Journal of Race & Law, Vol. 9, 2004) on SSRN. Here is the abstract:
    This essay reviews Randall Kennedy's Interracial Intimacies (2003), a book that explores African American-white interracial adult-adult relationships and African American- and Native American-white adult-child relationships. For Kennedy, such relationships reflect and promote racial liberty or justice. The paper praises the book for highlighting the arbitrariness and destructiveness of racial classifications, but criticizes it for cloaking in terms of racial liberty what is essentially a conservative narrative about race and poverty that limits socioeconomic and racial mobility. The essay explores how the book fails to take into account fallacies of race neutrality and important distinctions between youth and adults, private and public family law systems, men and women, and adoptive and birth families. The essay first outlines the content and structure of the book and then explores the larger contexts the book ignores. Paying particular attention to Kennedy's portrayal of transracial adoption, the paper shows how his depiction and promotion of such adoption fails to account for the needs and experiences of children, masks institutional racism in, and affecting, the child welfare system, and reflects a white supremacist, patriarchal social agenda that seeks to limit the ability of poor women of color to bear and raise children.

Tuesday, December 23, 2003
Welcome to the Blogosphere . . . to 110 West 3rd (The adventures of Huey, Dewey & Puddles @ New York University School of Law).

Rappaport on Sunstein Over at The Right Coast, Michael Rappaport responds to Cass Sunstein's op/ed in the Washington Post entitled In Court v. Congress, Justices Concede One.

Muller on Padilla & Gherebi Eric Muller has a thoughtful post on Padilla and Gherebi on Is That Legal?. For my money, these two decisions are an unqualified victory for the rule of law.

Choice, Responsibility, and the Iraqi People Read Chris Bertram's four quotations on choice & responsisiblity over at Crooked Timber.

Get Your Hasen Now Election-law superblogger Rick Hasen's new book, The Supreme Court and Election Law: Judging Equality from Baker v. Carr to Bush v. Gore (NYU Press 2003), has almost sold out of its first press run. You can still get a copy of this excellent book from or Barnes & Noble (20% discount). Highly recommended.

Lubben on Railroad Reorganization & Bankruptch Theory Stephen Lubben (Seton Hall University - School of Law) has posted Railroad Receiverships and Modern Bankruptcy Theory on SSRN. Here is the abstract:
    Some of the most important - and most interesting - recent work in the area of corporate and sovereign bankruptcy is rooted in the late 1800s and early 1900s, the golden age of the railroad receivership. Yet we know very little about railroad or equity receiverships beyond how they worked in theory. This paper remedies the existing gap in the literature by looking at a sample comprised of the largest railroads in the United States at the turn of the twentieth century, approximately half of which went through a receivership between 1890 and this country's entry into World War I. By examining the fate of these two groups of railroads after the World War, I am able to shed some light on the long-term effectiveness of receiverships. The results are striking. The data shows that having undergone a receivership before World War I made a railroad more than two and a half times (i.e., 150%) more likely to undergo another receivership or bankruptcy after the War. The average railroad that reorganized under a receivership subsequently failed at a rate more than twice as high as railroads that had never gone through a receivership and almost three times as high as modern chapter 11 debtors. And the data shows that Morgan's involvement with a road had little effect on the road's ability to avoid financial distress.

Georgakopoulos on Judicial Recalls Nicholas L. Georgakopoulos (Indiana University School of Law - Indianapolis) has posted Judicial Reaction to Change: The California Supreme Court Around the 1986 Elections (Cornell Journal of Law and Public Policy, Forthcoming). Here is the abstract:
    After an unsuccessful attempt in 1982, the California electorate removed three of the Justices of the Supreme Court of California in the 1986 elections because they were soft on crime. This article studies the voting patterns of the three justices who were on the California Supreme Court before and after the elections, revealing three distinct judicial and political strategies.

Monday, December 22, 2003
Weekend Update On Saturday, the Download of the Week was misnamed, because two papers, one by Eugene Volokh and the other my John Gardner, were recommended. Also on Saturday, the Legal Theory Bookworm recommended Akhil Amar's fine book on the bill of rights. On Sunday, a sparse Legal Theory Calendar included the first day of the American Philosophical Association's Eastern Division meeting, and the Legal Theory Lexicon discussed transparency.

Rubenstein on Taking Away the Right to Vote Kim Rubenstein (University of Melbourne Law School) has posted Can the Right to Vote be Taken Away? The Constitution, Citizenship and Voting Rights in 1902 and 2002 (SELECTIVE DEMOCRACY: RACE, GENDER AND THE AUSTRALIAN VOTE, John Chesterman and David Philips, eds., Melbourne Publishing Group, 2003) on SSRN. Here is the abstract:
    This chapter deals with three related issues. Linked directly to the commemoration of the centenary of white women's vote is the story of the fight for women's voting rights and how that is directly reflected in Australia's constitutional document. This leads to a discussion of the significant lack of protection of voting rights in the Australian constitution. Finally, the chapter addresses the disjuncture between citizenship and substantive rights in the Australian legal and political environment. This is relevant, not just to women, but to all Australians.

Bradford on the Laws of War William C. Bradford (Indiana University Purdue University Indianapolis (IUPUI) - School of Law) has posted Barbarians at the Gates: A Post-September 11th Proposal to Rationalize the Laws of War (Notre Dame Law Review, Vol. 79, 2004) on SSRN. Here is the abstract:
    By reference to a series of events in the film Saving Private Ryan, a fictionalized account of the Allied invasion of Normandy in 1944, and to a hypothetical scenario involving a U.S. covert operation to eliminate weapons of mass destruction in the custody of terrorists, this Article juxtaposes the two contending paradigms - the code of martial honor, a regime of professional self-regulation rooted in non-legal norms and customs and institutionalized in the system of courts-martial, and the judicial model embodied by the International Criminal Court - to illustrate that only martial honor suppresses violations of the laws of war while granting soldiers a necessary margin of appreciation in defending against manifestly evil adversaries bent on destroying civilization. The Article resurrects an ancient taxonomy denoting terrorists as a species of near-rightless outlaws - barbarians - with regard to whom the West may place some aspects of the laws of war in abeyance and drape its military forces and civilian commanders with broad immunities in operations designed to preempt, defeat, and destroy these malefactors. The Article concludes by offering roposals for measures likely to draw law and justice into a closer relationship by rationalizing the laws of war in support its teleological mission - the protection of the civilization it defends and reflects.

Bibas on Plea Bargaining Stephanos Bibas (University of Iowa - College of Law) has posted Plea Bargaining Outside the Shadow of Trial (Harvard Law Review, June 2004) on SSRN. Here is the abstract:
    Plea-bargaining literature predicts that parties strike plea bargains in the shadows of expected trial outcomes. In other words, parties forecast the expected sentence after trial, discount it by the probability of acquittal, and offer some proportional discount. This oversimplified model ignores how structural distortions skew bargaining outcomes, causing them to diverge from trial outcomes. Part I of this Article explores the various structural forces that warp plea bargains. Agency costs, attorney compensation and workloads, resources, sentencing and bail rules, and information deficits all skew bargaining. In addition, psychological biases and heuristics warp judgments. Part II applies recent research from behavioral law and economics and cognitive psychology to critique plea bargaining. Overconfidence, denial, discounting, risk preferences, loss aversion, framing, and anchoring all affect bargaining decisions. Skilled lawyers can partly counteract some of these problems, but they can also overcompensate. The oversimplified shadow-of-trial model of plea bargaining needs to be supplemented by a structural-psychological perspective. On this perspective, uncertainty, money, self-interest, and demographic variation greatly influence plea bargains. Part III explores how to respond to the various structural and psychological influences that warp plea bargains. Reforming systems of defense counsel, bail rules, and the structure of sentencing rules, and increasing use of mediators and judges in bargaining could ameliorate some of these influences. Other problems, such as demographic variations in psychology, are very difficult to correct. These influences cast light on how civil and criminal bargaining differ in important respects.

Brown on Prioritarianism for Variable Populatons Campbell Brown has posted Prioritarianism for Variable Populations. Here is a taste:
    Philosophical discussions of prioritarianism (i.e., the view that we ought to give priority to those who are worse off) have hitherto been almost exclusively focused, at least tacitly, on cases involving a fixed population. The kinds of choices to which prioritarianism has been applied are commonly assumed not to affect either which people exist, or how many people exist. Such an assumption, though perhaps expedient in some contexts, is a significant limitation. It is widely acknowledged that many of the choices we actually face do involve actions with variable effects on both the identity and the size the world's population. The aim of this paper is to extend the discussion of prioritarianism to encompass also variable populations. I argue that prioritarianism, as normally conceived, is not tenable in this area. However, I also propose two modified versions of prioritarianism that, so I argue, show more promise. Finally, I briefly discuss the implications of prioritarianism for the so-called Repugnant Conclusion.

Sunday, December 21, 2003
Sunstein on the New Federaism Jurisprudence Cass Sunstein has an op/ed in the Washington Post entitled In Court v. Congress, Justices Concede One. Here is a taste:
    [The Supreme Court's recent decision upholding the Bipartisan Campagin Reform Act represents] a striking contrast to the Rehnquist Court's approach in many other areas, where it has shown absolutely no willingness to defer to legislative judgments. Consider, for example, the court's 2000 ruling that Congress lacks power to require states to pay damages for certain violations of the Americans With Disabilities Act. Congress had compiled an extensive factual record, demonstrating that state and local governments had often acted arbitrarily against disabled workers. The court gave the back of its hand to this record, blithely saying that "the legislative record available to Congress did not demonstrate sufficiently widespread violations." Or consider the Rehnquist Court's skepticism about Congress's finding that the Violence Against Women Act was necessary in light of the states' failure to treat sexual violence with the seriousness it deserves. Refusing to defer to that finding, the court declared that Congress had not provided a "proportional" response to the problem.
Sunstein is thoughtful as usual, but I must confess that I find "[a]bsolutely no willingness to defer to legislative judgment" puzzling. In cases that are the chief targets of Sunstein's critique, the Court did not defer to Congress in two distinct dimensions.. First, the Court did not defer to Congress's expansive view of the scope of the Commerce Clause power--an unremarkable assertion that the Court and not Congress has the final word on the meaning of the Constitution. Second, the Court has been willing to take a hard look at the support which Congressional findings of fact find in the legislative record. Surely Sunstein is right to observe that when the Supreme Court is now less deferential to Congress when it comes to defining the outer limits of congressional power. But the historical background against which this shift took place is important. Congress had interpreted the Supreme Court's decisions of the late 30s and early 40s as granting to Congress a virtually plenary legislative power, and by the early 1990s, the conventional wisdom was that the Court was so deferential to Congress on commerce-clause power that, in effect, the Court had abdicated the enterprise of confining Congress to its enumberated powers. Surely there is a middle ground between complete abdication and absolutely no deference. Where is the Court today? And although the Court varies in the degree of deference it affords to Congress, most of the shifts occur within that middle ground. Read Sunstein's op/ed!

Legal Theory Lexicon: Transparency
    Introduction Sooner or later, most law students encounter the idea that "transparency" (as opposed to "opaqueness") is a desirable characteristic in markets, procedures, and governance institutions (both private and public). But what is "transparency" and why is it a good thing? This entry in the Legal Theory Lexicon provides a very brief introduction to the concept of transparency for law students (especially first-year law students) with an interest in legal theory. The basic idea of transparency is simple: things go better when processes are open. Markets function best when transactions are public. Judicial processes work best when they are visible to the participants and the public. Governments work best when both inputs to decisions and the meetings in which decisions are made are public. This post provides a brief introduction to the idea of transparency in a few important contexts.
    Transparency and Democratic Process Why should the processes of democratic decisionmaking be transparent? There are so many different answers to this question that one hardly knows where to begin, but we might start by distinguishing between answers that rely on consequentialist reasoning and those that appeal to ideas about rights, fairness, or legitimacy. The consequentialist case for transparency in government usually rests on the idea that opaque processes are likely to facilitate corruption or capture. Corruption is more likely because secret decisionmaking facilitates rent-seeking (soliciting bribes) by public officials; transparency processes make bribery more difficult and increase the likelihood that it will be exposed. "Capture" is the term used to describe domination of a regulatory process by the interests who are supposed to be regulated. When lawmaking (or administrative rulemaking) is done in secret, there is a greater likelihood that the information flow will be one sided.
    The Bush Administration's energy policy provides a good example of debates over the pros and cons of transparency in government. The administration developed its energy policy through non-transparent procedures. Vice-President Cheney met in private with a variety of interest groups, and the records of the meetings were not made available to the public. Critics charged that this secrecy allowed oil and coal interests to dominate the decision-making process to the detriment of the public interest. The administration defended the process, arguing that public processes would have inhibited free and frank discussion of the issues by the various interest groups. Whether or not this argument was correct in this particular context, it illustrates an important point. Transparency in government comes at a price. Transparent processes may be inefficient--what can be done in private in minutes may take hours in public. Transparent processes may also distort decision-making, forcing political actors to pander to public opinion at the expense of good policy.
    The case for transparency in government need not rest on consequences. It might also be argued that transparent government is required by the rights of citizens to meaningfully participate in democratic self-government. If public officials conduct business in private, then it becomes more difficult for citizens to make meaningful decisions at the ballot box.
    Transparency in the Market and the Boardroom The case for transparent markets is simple. Efficiency requires information. Efficient pricing, for example, requires that buyers know what they are buyng and sellers know what they are selling. "Buying a pig in a poke" is simply a colorful way of expressing the idea that a nontransparent transaction has occurred. Transparency is especially important in capital markets Securities regulation in the United States rests on the assumption that mandatory disclosure of accurate financial information will lead to investor confidence and facilitate efficient financial markets. Without transparency each investor would face either uncertainty or enormous information acquisition costs. Efficient capital markets produce enormous benefits, because they enable resources to be allocated to their highest and best use. Finally, transparency in corporate governance aims to prevent management from appropriating wealth owned by stockholders.
    There are, however, situations in which transparency is inconsistent with efficient markets. Trade secret law, for example, aims at the opposite of transparency. The theory is that the ability to keep secrets creates an incentive to develop new ideas, inventions, and processes; disclosure would allow competitors to appropriate the new idea without compensation, and hence would reduce the incentives for the creation of new knowledge. Similarly, corporations are not required to disclose business strategies and tactics.
    Transparent Judicial Procedures Civil litigation and criminal trials provide a final context in which transparency is an important value. When we think about the transparency of judicial procedures, there are two different groups for whom the process may be transparent or opaque. The first group is comprised of litigants (plaintiffs/defendants in civil litigation and defendants in criminal litigation). The second group consists of the public at large. Most legal systems place a higher value on transparency to participants than on transparency to the public. While it is not unusual for a hearing to be closed to the public, it is very unusual for a judicial proceeding to exclude the parties themselves. But there are important exceptions to this rule. Deliberations by both judges and juries are usually opaque. Thus, even the defendant in a criminal case is not allowed to observe the deliberations of the jury. A similar rule applies to judicial deliberations. For example, the conferences of an appellate court (e.g. the United States Supreme Court) are conducted in the strictest secrecy, as are the communications between among judges and between judges and their clerks. In these contexts, the thought is that open deliberations would actually distort the decision making process, leading to worse rather than better decisions.
    Conclusion Concern with process is ubiquitous in legal theory, and processes can be transparent or opaque. As a law student, you might begin to ask yourself about the effect of legal rules on transparency. Does this rule make the process more transparent or more opaque. When you encounter rules that render processes opaque, always ask why?

Legal Theory Calendar
    The Legal Theory Calendar would be empty, but for the start of the Eastern Division of the American Philosophical Association on Saturday. Next week, the Annual Meeting of the Association of American Law Schools starts, with the American Society for Political and Legal Philosophy meeting in conjunction.
    Saturday, December 28
      Eastern Division of the American Philosophical Association starts today. Events of interest to legal theorists include:
        Society for Social and Political Philosophy meeting.
        Radical Philosophy Association meeting.
        Colloquium: Intention and Action Theory, Chair: Michael Thompson (University of Pittsburgh), wth papers by Jing Zhu (University of Waterloo), "On the Principle of Intention Agglomeration"; Commentator: Edward Hinchman (University of Wisconsin-Milwaukee); Luca Ferrero (University of Wisconsin-Milwaukee), "The Inefficacy of Future-Directed Intentions" Commentator: G.F. Schueler (University of New Mexico); Speaker: David A.Truncellito (George Washington University) , "Actions and Action-Processes: An Account of Act-Individuation" Commentator: Kieran Setiya (University of Pittsburgh).

Saturday, December 20, 2003
Weatherson on Consequentialism Brian Weatherson blogs on his favorite moral theory over at Crooked Timber. Here is a taste:
    It’s a form of consequentialism, so in general it says the better actions are those that make for better worlds. (I fudge the question of whether we should maximise actual goodness in the world, or expected goodness according to our actual beliefs, or expected goodness according to rational beliefs given our evidence. I lean towards the last, but it’s a tricky question.) What’s distinctive is how we say which worlds are better: w1 is better than w2 iff behind the veil of ignorance we’d prefer to be in w1 to w2. What I like about the theory is that it avoids so many of the standard counterexamples to consequentialism. We would prefer to live in a world where a doctor doesn’t kill a patient to harvest her organs, even if that means we’re at risk of being one of the people who are not saved. Or I think we would prefer that, I could be wrong. But I think our intuition that the doctor’s action is wrong is only as strong as our preference for not being in that world. We even get something like agent-centred obligations out of the theory. Behind the veil of ignorance, I think I’d prefer to be in a world where parents love their children (and vice versa) and pay special attention to their needs, rather than in a world where everyone is a Benthamite maximiser. This implies it is morally permissible (perhaps even obligatory) to pay special attention to one’s nearest and dearest. And we get that conclusion without having to make some bold claims, as Frank Jackson does in his paper on the ‘nearest and dearest objection’, about the moral efficiency of everyone looking after their own friends and family. (Jackson’s paper is in Ethics 1991.)

Legal Theory Bookworm This week The Legal Theory Bookworm recommends The Bill of Rights: Creation and Reconstruction by Akhil Reed Amar. Amar is one of the most interesting and creative constitutional theorists in the American legal academy. Over and over again, I've found myself impressed by Amar's ability to make the case that what seems like a novel reading of the Constitution is, in fact, what the text meant all along. Especially compelling is Amar's insistence on intratextualism--which combines a belief in the primacy of the text with a commitment to holism, the insight that the words of a given constitutional provision can be illuminated by comparing the use of similar words and phrases elsewhere within the document. Amar's book on the bill of rights is already a classic. Here is the blurb on Amar's wonderful book:
    "The Bill of Rights stands as the high temple of our constitutional order--America's Parthenon--and yet we lack a clear view of it," Akhil Reed Amar writes in his introduction to The Bill of Rights. "Instead of being studied holistically, the Bill has been broken up ... with each segment examined in isolation." With The Bill of Rights, Amar aims to put the pieces back together and take a longer view of a document few Americans truly understand. Part history of the Bill, part analysis of what the Founding Fathers' intentions really were, this book provides a unique interpretation of the Constitution. It is Amar's hypothesis that, contrary to popular belief, the Bill of Rights was not originally constructed to protect the minority against the majority, but rather to empower popular majorities. It wasn't until 19th-century post-Civil War reconstruction and the introduction of the 14th Amendment that the notion of individual rights took hold. Prior to that, the various amendments to the Constitution that make up the Bill of Rights were more about the structure of government and designed to protect citizens against a self-interested regime. Yet so great has been the impact of the 14th Amendment on modern legal thought that the Bill's original intentions have almost been forgotten.
    Through skillful interpretation and solid research, Amar both reconstructs the original thinking of the Founding Fathers and chronicles the radical changes that have occurred since the inclusion of the 14th Amendment in the Bill of Rights. The results make for provocative reading no matter where you stand on the political spectrum.

Download of the Week This week I am recommending two articles, one by John Gardner on tort theory and the other by Eugene Volokh on crime-facilitating speech. These are both extraordinary papers, among the best I've read this year:
    Eugene Volokh, (UCLA Law) Crime-Facilitating Speech:
      The crime-facilitating speech problem looks different if one is just focusing on the Hit Man contract murder manual than if one is looking at the broader range of cases. It may, for instance, be appealing to categorically deny First Amendment protection to murder manuals or to bomb-making information, on the grounds that the publishers know that the works may help others commit crimes. But such a broad justification would equally strip protection from newspaper articles that mention copyright-infringing Web sites, academic articles that discuss computer security bugs, and mimeographs that report on who is refusing to comply with a boycott, when some noncompliers had been physically attacked in the past by unknown third parties.
    John Gardner (Oxford), What is Tort Law For? Here is a taste from the start of the paper:
      A late twentieth century debate among English tort lawyers, reaching its high point in the late 1970s and 1980s, concerned the place of ‘policy considerations’ in tort cases. The judge’s role in a tort case, said traditionalists, is to do justice between the parties. No, said their revisionist critics, that represents an irresponsible blindness. The law of torts, even as used by lawyers and judges, must not ignore its own social consequences, its consequences for people other than the litigants. If a certain decision would bring down the insurance industry or bankrupt local authorities, the judge must have a way of avoiding that decision. He has to be able to look beyond the instant case.
      This debate among lawyers raises theoretical issues about the separation of powers and the political role of courts. But it also raises issues about the purpose or point of tort law. At least, so say many legal theorists. They say that to adjudicate between the traditionalist and the revisionist tort lawyers, we first must decide between two warring theories of tort, or perhaps one should say two warring families of theories. On one side of the street there lives a family of instrumentalist theories, dominated by economic analysis of law. In the instrumental perspective, the point of tort law is the control of social costs, and all of tort law’s norms must answer to this point. On the other side of the street live those who think of tort law as the home of principles of justice, more particularly of something called corrective justice.
    Download them while their hot!

Friday, December 19, 2003
RIAA v. Verizon Internet Services: DC Circuit Holds that Section 512(h) of the DMCA Does Not Authorize Subpoenas in P2P Cases The United States Court of Appeal for the District of Columbia Circuit has held that Section 512(h) of the Digital Millenium Copyright Act does not authorize subpoenas directed at ISP that are intended to discover the identity of those who share files over P2P services (KaZaA, etc.). Chief Judge Ginsburg's opinion can be found here. After reading the Opinion and the statute, I am convinced that the DC Circuit is correct. 512(h) subpoenas are limited to the situations described in Section 512(c)(3)(A), and that section is targeted at ISP's that host copyrighted materials on the ISP's own servers. P2P users host on their own computers, and hence (c)(3)(A) is inapplicable. I am writing in haste, but off the cuff, this seems quite significant: identifying P2P users is crucial to the RIAA's litigation offensive. The obvious next question is whether an alternative route is available to the RIAA for obtaining this information from the ISPs. The ISPs themselves cannot be named as parties in a P2P suit--because of the safe harbor provisions of the DMCA. The user cannot be sued, because the users identity is unknonw. Perhaps, the user could be sued as "Unknown KaZaA user of IP Number," and then discovery processes could be directed at the ISP. Any thoughts?
Link courtesy of the stupendous Howard Bashman!

Leib on Marxist Tort Theory Ethan J. Leib (Yale University - Department of Political Science) has posted What Should a Marxist Legal Analysis of Torts Become? on SSRN. Here is the abstract:
    Pashukanis, the Bolshevist jurist writing in the wake of the Russian Revolution, did not offer a theory or analysis of torts in his most important and widely read treatise, The General Theory of Law and Marxism. Arthur Ripstein nevertheless offers a theory of torts in his name. Ripstein's Pashukanis rejects individual responsibility altogether, something the fault system emphasizes more than any other tort regime-type: all accidental losses must be held in common, then, because Marxists believe that any reification of the individual through a moralistic notion like "responsibility." This account coheres with the presumed antipathy "Marxists" have for the fault system. Indeed, consistent with Pashukanis's presumed preference for full social insurance, Ripstein's approach condemns strict liability too, insofar as it relies on an account of responsibility for what we cause (though Pashukanis as well as many other reputable Marxists endorse strict liability at times too). Nevertheless, I shall try to show that the fault system can be maintained for the Marxist, despite Pashukanis's Marxist critique of law. Ultimately, I conclude that because both an economistic and a moralistic application of the fault system need not in fact betray a Gemeinschaft understanding of law, it could be admissible in a Marxist administration of tort. Moreover, once I delineate a Marxist framework for the analysis of the law (liberated from the predominant "class instrumentalist" form of Marxism), I hope to show that other regime-types are not as unproblematic as Marxists occasionally suggest; strict liability and social insurance are no more inherently "Marxist" than the fault system. This exercise might have normative implications for those engaging in policy debates about tort reform; but for my purposes here, I only argue that the Marxist theory of law does not produces monolithic answers to the question "What Should a Marxist Legal Analysis of Torts Become?".

More on Padilla Bridget O'Neill has a piece entitled Jose Padilla: A Constitutional Challenge for Us All.

Morgan on Copyright and the Public Interest Owen Morgan (University of Melbourne - Faculty of Law) has posted Copyright, the Public Interest and Content Restrictions (Media and Arts Law Review, Vol. 8, No. 3, p. 213, 2003) on SSRN. Here is the abstract:
    The ownership and control of copyright are critical to the exploitation of films, sound recordings, broadcasts and other facets of the entertainment industry. However, owners of copyright should be concerned as to the extent to which their investment is protected. An issue exists as to whether the content of works should be a factor in determining whether copyright subsists. From the perspective of the content of films, this article discusses three lines of authority from three different jurisdictions that bear on the issue of the content of restrictions in copyright. The alternative approaches are: (1) that the courts may refuse to enforce copyright; (2) that copyright exists in all works but the courts may limit the remedies available because of a work's content; and (3) that copyright exists in a work irrespective of its content and all the remedies are available to a plaintiff. The article focuses on whether the public interest justifies the courts in refusing to enforce copyright.

Geidner on the Massachusetts Gay Marriage Ruling Chris Geidner's findlaw column argues that a civil-unions statute would not satisfy the Massachusetts Supreme Judicial Court's decision. Laurence Tribe replies here, with a further response from Geidner here.

Brown on Prioritarianism Campbell Brown has posted The Priority of Benefits. Here is a taste:
    The Prioritarian believes that we ought to give priority to benefiting those who are worse off. This has lead many to suppose that Prioritarianism is a ``benefit-centred'' view: they suppose that, for the Prioritarian, benefits (and harms) are of irreducible moral significance. However, as I argue in this paper, the Prioritarian is not committed to such benefit-centrism. Moreover, I show that Prioritarianism is a more appealing view if it is defined in terms other than those of benefits and harms.

Thursday, December 18, 2003
Padilla v. Rumsfeld: Second Circuit Rules that the President Lacks Inherent Power to Detain American Citizens as Enemy Combatants on American Soil
    Here are reports from ABC News, the BBC, the Washington Post, and CNN. The AP story begins as follows:
      President Bush does not have power to detain American citizen Jose Padilla, the former gang member seized on U.S. soil, as an enemy combatant, a federal appeals court ruled Thursday. The decision could force the government to try Padilla, held in a so-called ``dirty bomb'' plot, in civilian courts. In a 2-1 ruling, a three-judge panel of the 2nd U.S. Circuit Court of Appeals said Padilla's detention was not authorized by Congress and that Bush could not designate him as an enemy combatant without the authorization.
    Here is an excerpt from the Second Circuit opinion:
      "[P]residential authority does not exist in a vacuum, and this case involves not whether those responsibilities should be aggressively pursued, but whether the President is obligated, in the circumstances presented here, to share them with Congress. Where, as here, the President’s power as Commander-in-Chief of the armed forces and the domestic rule of law intersect, we conclude that clear congressional authorization is required for detentions of American citizens on American soil because 18 U.S.C. § 4001(a) (2000) (the "Non-Detention Act") prohibits such detentions absent specific congressional authorization. Congress’s Authorization for Use of Military Force Joint Resolution, Pub. L. No. 107-40, 115 Stat. 224 (2001) ("Joint Resolution"), passed shortly after the attacks of September 11, 2001, is not such an authorization, and no exception to section 4001(a) otherwise exists. In light of this express prohibition, the government must undertake to show that Padilla’s detention can nonetheless be grounded in the President’s inherent constitutional powers. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637-38 (Jackson, J., concurring). We conclude that it has not made this showing. In reaching this conclusion, we do not address the detention of an American citizen seized within a zone of combat in Afghanistan, such as the court confronted in Hamdi v. Rumsfeld, 316 F.3d 450 (4th Cir. 2003) ("Hamdi III"). Nor do we express any opinion as to the hypothetical situation of a congressionally authorized detention of an American citizen." This holding "effectively moots arguments raised by both parties concerning access to counsel, standard of review, and burden of proof."
    And here is the crucial passage discussing the Quirin case:
      The government argues that Quirin established the President’s inherent authority to detain Padilla. In Quirin, the Supreme Court reviewed the habeas petitions of German soldiers captured on United States soil during World War II. All of the petitioners had lived in the United States at some point in their lives and had been trained in the German Army in the use of explosives. See 317 U.S. at 20-21. These soldiers, one of whom would later claim American citizenship, landed in the United States and shed their uniforms intending to engage in acts of military sabotage. They were arrested in New York and Chicago, tried by a military commission as “unlawful combatants,” and sentenced to death. The Court denied the soldiers’ petitions for habeas corpus, holding that the alleged American citizenship of one of the saboteurs was immaterial to its judgment: “Citizenship in the United States of an enemy belligerent does not relieve him from the consequences of a belligerency which is unlawful because in violation of the law of war.” Id. at 37. The government contends that Quirin conclusively establishes the President’s authority to exercise military jurisdiction over American citizens. We do not agree that Quirin controls. First, and most importantly, the Quirin Court’s decision to uphold military jurisdiction rested on express congressional authorization of the use of military tribunals to try combatants who violated the laws of war. Id. at 26-28. Specifically, the Court found it “unnecessary for present purposes to determine to what extent the President as Commander in Chief has constitutional power to create military commissions without the support of Congressional legislation.” Id. at 29. Accordingly, Quirin does not speak to whether, or to what degree, the President may impose military authority upon United States citizens domestically without clear congressional authorization. We are reluctant to read into Quirin a principle that the Quirin Court itself specifically declined to promulgate.
    The majority opinion (jointly authored by Rosemary S. Pooler and Barrington D. Parker, Jr.) is here and the dissent by Richard C. Wesley is here.

Mackenzie Reviews Friedman Over at Notre Dame Philosophical Reviews, Catriona Mackenzie has a Review of Marilyn Friedman's Autonomy, Gender, and Politics. Here is a taste:
    The ideal of autonomy has been criticized by feminist philosophers on grounds ranging from claims that autonomy promotes character ideals such as independence and self-sufficiency that historically have been associated with masculinity and social privilege, through to claims that the ideal assumes the existence of a metaphysically dubious true self. One prominent charge is that the notion of autonomy is excessively individualistic and that ideals of autonomy ignore the social dimensions of selfhood and the importance of relationships and community to agents’ identities. Relational approaches to autonomy have developed in response to these kinds of charges. Briefly, relational theories are motivated by two interrelated concerns. The first is to explore the implications of the social dimensions of agency and identity for theories of autonomy. Thus relational theorists have focused attention on the ways in which agents’ self-conceptions, values and beliefs, are shaped by the social environment and on the contributory role of that environment to the capacities and competences necessary for autonomy. The second concern is to demonstrate the value of autonomy for agents who are subject to oppressive social relationships and institutions and to analyze the ways in which oppressive socialization can impair agents’ autonomy.
    Autonomy, Gender, Politics makes an important and challenging contribution to the development of relational approaches to autonomy and to the ongoing debate about how best to articulate a relational approach. The debate centres on two issues. One is whether relational theorists should endorse a content-neutral or a more substantive account of autonomy. Content-neutral, or procedural, approaches stipulate that an agent is autonomous with respect to her motivations, values, or choices just so long as these have been subjected to appropriate critical scrutiny, irrespective of their substantive content. Proponents of substantive approaches charge that the constraints on critical reflection required by content-neutral theories are insufficient to distinguish autonomous from non-autonomous reflection. Substantive approaches thus propose a range of substantive constraints on the content of an autonomous agent’s choices, beliefs, values and motivations. The other, connected, issue is whether sociality or relationality should be understood as merely causal or whether it should be understood as constitutive. In brief, is autonomy social just in the sense that human selfhood is social and the social environment provides the necessary causal conditions for the development of autonomy competence? Or is autonomy constitutively social? One way of articulating this claim would be to argue that autonomy is inconsistent with social relationships that subordinate an agent to the will of others. Another way of articulating the claim would be to argue that the reflective capacities necessary for autonomy are intrinsically social.
Courtesy of Online Papers in Philosophy.

Gardner on the Purpose of Tort Law at ANU In Australia, at ANU's RSSS, John Gardner (Oxford) presents What is Tort Law For? Here is a taste from the start of the paper:
    A late twentieth century debate among English tort lawyers, reaching its high point in the late 1970s and 1980s, concerned the place of ‘policy considerations’ in tort cases. The judge’s role in a tort case, said traditionalists, is to do justice between the parties. No, said their revisionist critics, that represents an irresponsible blindness. The law of torts, even as used by lawyers and judges, must not ignore its own social consequences, its consequences for people other than the litigants. If a certain decision would bring down the insurance industry or bankrupt local authorities, the judge must have a way of avoiding that decision. He has to be able to look beyond the instant case.
    This debate among lawyers raises theoretical issues about the separation of powers and the political role of courts. But it also raises issues about the purpose or point of tort law. At least, so say many legal theorists. They say that to adjudicate between the traditionalist and the revisionist tort lawyers, we first must decide between two warring theories of tort, or perhaps one should say two warring families of theories. On one side of the street there lives a family of instrumentalist theories, dominated by economic analysis of law. In the instrumental perspective, the point of tort law is the control of social costs, and all of tort law’s norms must answer to this point. On the other side of the street live those who think of tort law as the home of principles of justice, more particularly of something called corrective justice.
Gardner suggests that this debate poses a false choice between two grand views of tort law. And here is a passage, a bit further on, that I particularly love:
    The mistaken idea is that as we seek deeper and deeper explanations, as we dig down into the foundations of our thought and action, our categories and principles get ever broader and are capable of explaining ever more things. A theoretical investigation of something is therefore more successful, the more unifying it is. If I can explain legal doctrines using one big idea I am doing better than someone who can only explain 8 using one big idea, or someone who can explain but needs two big ideas to do it. But this is a kind of theoretical machismo. Good theoretical work tends to explain rather than explain away the complexities and tensions of a subject. As you dig deeper you find that if anything the subject fragments more, the work that you need to do to understand it becomes more fine-grained and technical, there are fewer and fewer things that can be said that are both true and unqualified.
Bravo! If I might be allowed the privilege of acting as chorus to Gardner's solo, I should like to add the following. "Explaining rather than explaining away"--Gardner's phrase goes to something deeply important at the foundations of legal theory. In the late twentieth and early twenty-first century, legal theorists have looked out from law to other normative disciplines (economics, political theory, moral philosophy) for unifying theories. And, of course, there are unifying normative theories to be found--welfarism, Kantian ethics, aretaic moral theory, and so forth. Much good has come of this outward turn, but much harm has come as well. Unification come at a price. Some legal theorists have paid for their theories with the coin of simplification. If all that were involved was self-conscious use of idealizing assumptions, with the richer, more complex, story held in abeyance, and then brought back center stage, then we would have nothing to worry about. But all too often, the idealizing assumptions remain on stage for the whole play. The thick, complex, tension-filled stuff that is law is left outside the theater. When I read Gardner, I am reminded of the work of Philippa Foot, the eminent moral philosopher who graced the UCLA philosophy department when I was acquiring my own philosophical sensibility as a student. Foot's work was deeply influence by Wittgenstein, and from Foot (and also from the late Rogers Albritton), I acquired a deep appreciation for the kind of moral reasoning that begins very close to the ground--that starts with the thick ethical language and concrete situations. This kind of foundational work tends to have a moderating influence on conceptual ascent. When theoretical edifices are built on firm foundations, they are less fragile--less likely to become castles in the air or ivory towers. John Gardner's work is immensely rewarding because Gardner works hard to build solid foundations. Download it while its hot!

Volokh on Crime-Facilitating Speech at Yale Today at Yale's Legal Theory Workshop, Eugene Volokh, UCLA (Law) presents Crime-Facilitating Speech. Volokh is concerned, not with advocacy of unlawful conduct, but with examples like this:
    A textbook, magazine, Web site, or seminar describes how people can make bombs (conventional or nuclear), make drugs, painlessly and reliably commit suicide, commit contract murder, engage in sabotage, evade taxes, or more effectively resist arrest during civil disobedience.
And Volokh brings his problem into focus in this passage:
    The crime-facilitating speech problem looks different if one is just focusing on the Hit Man contract murder manual than if one is looking at the broader range of cases. It may, for instance, be appealing to categorically deny First Amendment protection to murder manuals or to bomb-making information, on the grounds that the publishers know that the works may help others commit crimes. But such a broad justification would equally strip protection from newspaper articles that mention copyright-infringing Web sites, academic articles that discuss computer security bugs, and mimeographs that report on who is refusing to comply with a boycott, when some noncompliers had been physically attacked in the past by unknown third parties.
Volokh's conclusions are previewed here:
    (A) Should crime-facilitating speech be generally unprotected whenever the speaker knows that (or is reckless about the possibility that) it may facilitate crime? (B) Should it be unprotected in such circumstances when it may facilitate extraordinarily serious harms, such as nuclear or biological attacks? (C) Should it be unprotected, even when it’s published (and not just said to a small group of criminals), when it has virtually no lawful value, for instance because it reveals social security numbers or computer passwords? . . . [T]he right answer to A is no, and to B and C is yes.
This is an important and neglected topic, and as usual, Volokh moves the ball forward--way forward! Download it while its hot!

Brown on Blameless Wrongdoing & Democracy Campbell Brown has posted Consequentialism, Democracy, and Blameless Wrongdoing. Here is a taste:
    This paper addresses an apparent conflict between consequentialism and democracy. Suppose that a person believes that some policy which receives majority support is not such that its implementation would have the best possible consequences. If the person endorses democracy, she must believe that the policy ought to be implemented; yet if she is a consequentialist, she must believe that it ought not to be. I propose a solution to this dilemma involving the notion of ``blameless wrongdoing.''
And from later in the paper:
    We should, first of all, note the general point that, according to consequentialism (even simple-minded consequentialism), it is entirely possible for a wrong action to have better consequences than a right action. Suppose, for example, that (i) I give a million dollars to charity, when I could easily have given a hundred dollars more, and (ii) you give a thousand dollars to the same charity, when you could not have given a single cent more. Plausibly, my action is wrong and yours right; yet, also plausibly, the outcome of my action is better than the outcome of yours. The reason that this sort of thing can happen is, of course, that judgements of rightness are made only relative to a set of available alternatives.14 The outcome of my action is worse than that of at least one available alternative; so my action is wrong. The outcome of your action, on the other hand, is not worse than that of any available alternative; so your action is right. However, since the set of available alternatives is different in each case, it is consistent with these judgements of rightness that my action has a worse outcome than yours.

Wednesday, December 17, 2003
Brown & Nagasawa Ask Whether There Is A Best of All Possible Worlds Campbell Brown with Yujin Nagasawa have posted The Best of All Possible Worlds, forthcoming in Synthese:
    The Argument from Inferiority holds that our world cannot be the creation of an omnipotent and omnibenevolent being; for if it were, it would be the best of all possible worlds, which evidently it is not. We argue that this argument rests on an implausible principle concerning which worlds it is permissible for an omnipotent being to create: roughly, the principle that such a being ought not to create a non-best world. More specifically, we argue that this principle is plausible only if we assume that there is a best element in the set of all possible worlds. However, as we show, there are conceivable scenarios in which that assumption does not hold.

More on the Fact/Value Distinction Over at punishment theory, Kyron Huigens has a very fine post on the fact/value distinction, which was the subject of Sunday's Legal Theory Lexicon.
Be sure to click read Dennis Patterson's comments following Kyron's post.

Sage on Malpractice William M. Sage (Columbia Law School ) has posted Understanding the First Malpractice Crisis of the 21st Century (Alice Gosfield, ed., HEALTH LAW HANDBOOK, 2003) on SSRN. Here is the abstract:
    Although the notion that physicians owe a legal duty of competence to patients extends back hundreds of years, its public policy significance is of more recent vintage. Incorporating malpractice policy into overall health policy is made necessary by two related historical phenomena: the transformation of health care from a personal service to a complex series of industrial processes, and its simultaneous recognition as a public resource heavily funded and heavily regulated by government. This book chapter posits that the current malpractice crisis can best be understood as a product of these changes. Two principal lessons can be derived from this analysis. First, the current malpractice crisis - albeit a severe one - reflects the successes of modern medicine far more than its failures. Second, reform proposals that treat the current crisis as merely a reprise of the crises of the 1970s and 1980s misconstrue the problems affecting the established malpractice system and shortchange the range of possible solutions.

Parisi, Schulz, and Depoorter on Commons and Anti-Commons Francesco Parisi , Norbert Schulz and Ben Depoorter (George Mason University School of Law , University of Wuerzburg - General and Yale University - Law School) have posted Duality in Property: Commons and Anticommons (International Review of Law and Economics, Forthcoming) on SSRN. Here is the abstract:
    Commons and Anticommons problems are the consequence of symmetric structural departures from a unified conception of property. In this paper, we endeavor to provide a dual model of property, where commons and anticommons problems are the consequence of a lack of conformity between use and exclusion rights. The general model is then extended to consider the different equilibria obtained under vertical and horizontal cases of property fragmentation. The paper concludes formulating a hypothesis of legal rules for promoting unity in property.

Tuesday, December 16, 2003
Stunning Decision in Raich v. Ashcroft: Regulation of Homegrown Medical Cannabis is Outside Congress's Power The Ninth Circuit has decided Raich v. Ashcroft, ruling in favor of the plaintiff in an as-applied challenge to the Controlled Subtances Act in the context of homegrown marijuana. As you may already know, this case was argued by Randy Barnett (see his post on the Volokh Conspiracy here) in a magnificiently effective oral argument, that I blogged here. You can find the Ninth Circuit's opinion here. The AP Story is here.
The constitutional question was whether Congress's power over interstate commerce extends to the regulation of homegrown marijuana for medical purposes. The Ninth Circuit, relying on the United States Supreme Court's decisions in United States v. Lopez and United States v. Morrison ruled for the plaintiffs. Unless and until the decision is stayed, the consequence is that homegrown medical marijuana is legal in the State of California. The federal statute is invalid, and state law permits the medical use of marijuana.
The key to this case was the way that the class of activities regulated by Congress is defined. The government's position was that Congress was entitled to define the class, and hence that the relevant class of activity is defined by the broad sweep of the Controlled Substances Act (all drugs, commercial and noncommercial, interstate and intrastate). Under the relevant caselaw, this broad class of activity is within Congress's commerce power. The plaintiffs argued that the courts rather than Congress had a constitutional responsibility to define the relevant class, and that noncommercial, homegrown, medical marijuana use does not have a substantial effect on interstate commerce. The Supreme Court agreed with the plaintiffs on this crucial point. Here is an excerpt from the opinion:
    [T]he appellants are not only claiming that their activities do not havethe same effect on interstate commerce as activities in other cases where the CSA has been upheld. Rather, they contend that, whereas the earlier cases concerned drug trafficking, the appellants’ conduct constitutes a separate and distinct class of activities: the intrastate, noncommercial cultivation and possession of cannabis for personal medical purposes as recommended by a patient’s physician pursuant to valid California state law.
    Clearly, the way in which the activity or class of activities is defined is critical. We find that the appellants’ class of activities—the intrastate, noncommercial cultivation, possession and use of marijuana for personal medical purposes on the advice of a physician—is, in fact, different in kind from drug trafficking. For instance, concern regarding users’ health and safety is significantly different in the medicinal marijuana context, where the use is pursuant to a physician’s recommendation. Further, the limited medicinal use of marijuana as recommended by a physician arguably does not raise the same policy concerns regarding the spread of drug abuse. Moreover, this limited use is clearly distinct from the broader illicit drug market—as well as any broader commercial market for medicinal marijuana—insofar as the medicinal marijuana at issue in this case is not intended for, nor does it enter, the stream of commerce.
This is not the only Ninth Circuit decision to take the Supreme Court's new commerce-clause jurisprudence seriously. Prior decisions upheld challenges to federal statutes as applied to noncommercial child pornography and a home-assembled machine gun. Taken together, the Ninth Circuit's recent decisions suggest that the Supreme Court's decisions in Morrison and Lopez could mark the beginning of a true constitutional revolution (or restoration?)!

Bill of Attainder The D.C. Circuit has struck down the Elizabeth Morgan Act on Bill of Attainder clause grounds. I found the decision quite odd. Isn't it clear that Congress's intent was to decide the custody dispute rather than to punish Eric A. Foretich? The section of the opinion that deals with this issue cites abundant evidence that Congress wanted to protect Elizabeth Morgan, but a Congressional intent to prevent Foretich from having contact with his daughter is not the same as an intent to punish Foretich! Of course, Congressional interference with specific child custody cases may be bad policy, but but the D.C. Circuit is bound by Supreme Court precedent limiting the Bill of Attainder clause to legislative acts that are punitive in nature. Based on my initial review of the opinion, the reasoning appears quite weak on this point. Courtesy of Howard Bashman.

Lawyers and Philosophers Brian Leiter reports on some remarks by Mark Tushnet--which go to the philosophical ideal of precision. Tushnet argues that lawyers are less concerned with precision than philosophers. But lawyers can be quite precise when they are on their own turf--and my experience is that many philosophers get quite mushy when it comes to technical legal distinctions--especially those that do not have close philosophical analogs.

Subways, Starbucks & Transaction Costs Economics Why are Starbucks company owned and Subways franchised? Bainbridge searches for a transactions cost answer. Here is a snippet:
    Replicability requires close monitoring. In turn, this leads to the problem of incentives. How do you make sure that the employees work hard? You hire a supervisor? But how do you make sure the supervisor works hard? And so on. Alchian and Demsetz's famous solution to this problem was to give the ultimate monitor the residual claim, so as to provide incentives that monitor to work hard. Franchising gives a residual claimant-like status to the local franchisee, while the franchise contract gives the franchisee incentives to ensure that the local employees comply with brand requirements. Franchising thus can be understood as an adaptive response to the problem of monitoring numerous employees in countless locations. If this analysis is correct, one would expect to see corporate ownership in settings where monitoring via a vertically integrated management structure can be effected at low cost (relative to situations in which franchising dominates). But does Starbucks really face lower monitoring costs than Subway?
One possibility is that the nature of the monitoring problems is just a bit different. In particular, it is possible that in the Subway context, franchisee's can reliably internalize the knowledge of both the practices and goals, but perhaps this is more difficult in the case of high-quality (contestable) espresso beverages. Is it possible that it is essential that Starbucks managers need to have or develop a taste for good espresso that cannot be reduced to a formula, and hence, that franchisees, even with the proper abilities, would lack the requisite sensibility?

Blair on Shareholder Value & Corporate Governance Margaret M. Blair (Georgetown University Law Center) has posted Shareholder Value, Corporate Governance and Corporate Performance: A Post-Enron Reassessment of the Conventional Wisdom (CORPORATE GOVERNANCE AND CAPITAL FLOWS IN A GLOBAL ECONOMY, Peter K. Cornelius and Bruce Kogut, eds., Oxford University Press, January 2003) on SSRN. Here is the abstract:
    The notion that the primary, or in extreme versions, the only legitimate goals of corporate management and governance should be to maximize the value of the shareholders' interest in the company is based on a series of elegant and facile, but deeply flawed assumptions about the nature of the relationships among corporate participants, about how financial markets work, about how human beings work together in groups, and about what the law requires. Contrary to these assumptions, shareholders are neither the "owners" of corporations, nor the only claimants with investments at risk; stock prices do not always accurately reflect the true underlying value of equity securities; managers will not necessarily do a better job of running corporations if they focus solely on share value, or if they are heavily incentivized with stock options, or if they are constantly vulnerable to being ousted in a hostile takeover; and corporate law does not require shareholder primacy. Instead, this essay suggests that, once basic societal and business institutions are in place, such as rule of law, sophisticated and uncorrupted courts, an independent accounting profession, liquid financial markets and an adequate securities regulation system, the principle element needed to foster wealth creating productive activity may be a powerful set of cultural norms emphasizing personal and group integrity, cooperative behavior among team members, and responsibility in the team's relationships to the larger communities in which it operates.

Monday, December 15, 2003
Ethical Selector Take this test! Frequent readers of legal theory blog may be able to guess with which philosopher I scored 100% agreement. Here are some other results:

Weekend Wrap Up On Saturday, the Download of the Week was The Case Against Moral Luck by David Enoch and Andrei Marmor. And the Legal Theory Bookworm recommended three books on the theory and history of contract law. Even with exam periods in full swing, there are still some entries for the Legal Theory Calendar. And the Legal Theory Lexicon on Sunday is on Facts and Values.

Shah and Kesan on Code and Governance Rajiv C. Shah and Jay P. Kesan (University of Illinois at Urbana-Champaign - Institute of Communications Research (ICR) and University of Illinois College of Law and the Institute of Government and Public Affairs) have posted Manipulating the Governance Characteristics of Code (The Emerald Research Register Info, Vol. 5, No. 4, pp. 3-9) on SSRN. Here is the abstract:
    Regulation through "code," i.e., the hardware and software of communication technologies, is growing in importance. Policymakers are addressing societal concerns such as privacy, freedom of speech, and intellectual property protection with code-based solutions. While scholars have noted the role of code, there is little analysis of the various features or characteristics of code that have significance in regulating behavior. This paper examines three universal governance characteristics that policymakers may use to ensure code comports with societal concerns. The characteristics that are studied are transparency, defaults, and standards. For each characteristic, the paper discusses the salient regulatory issues for manipulating code. Additionally, the paper provides normative proposals for modifying some characteristics, such as defaults. In the future, our analysis should aid policymakers seeking to manipulate code to ensure that code comports with our societal values and addresses our societal concerns.

Reich on the WTO Arie Reich (Bar-Ilan University - Faculty of Law) has posted The World Trade Organization as a Law Harmonizing Institution on SSRN. Here is the abstract:
    The central argument of this article is that the WTO is emerging as a major player in the field of global harmonization of national laws. Usually, when we think of institutions that deal with and promote harmonization of law, we think of organizations such as the UNIDROIT, UNCITRAL, or even non-governmental organizations, such as the ICC. The WTO, in contrast, is usually perceived of as an organization whose mandate is to lower artificial trade barriers between nations - such as custom tariffs, quotas and other border measures - and not as an organization that attempts to harmonize such domestic policies as domestic commercial law. That perception of the GATT/WTO - as shown in the article - was basically correct in the past, at the outset of the GATT regime, but it is not accurate anymore. The article therefore examines the harmonizing function of the WTO, first in a historic perspective, and then prospectively - in an attempt to map the areas of commercial law where potential exists for harmonization within the WTO. It shows that while originally the GATT regime did not deal with law, nor was it very keen to use law as a means to achieve its objectives, it has gradually had to change its focus - not only by embracing law in the latter sense (as has been widely discussed in the literature), but also by viewing domestic law as part of its subject matter. I will show that this opens up wide horizons for new harmonization initiatives that were unthinkable just a few years ago - within the GATT and, in many cases, elsewhere, as well. The last part of the article examines the institutional advantages and disadvantages of an organization like the WTO assuming the role of a law-harmonizing institution, in comparison to the bodies that hitherto have been performing this role, and suggest ways in which the WTO could improve its working and negotiations procedures in order to better fulfill its new role.

Mary Rorty Review's Habermas Over at Notre Dame Philosophical Reviews, you will find Mary V. Rorty's Review of Jürgen Habermas' The Future of Human Nature:
    Germany—even when contrasted with other European countries—has taken a very conservative attitude toward anything that smacks of eugenics (for clear historical reasons), and Habermas has been one of the most prominent voices reminding his countrymen that they cannot and dare not forget the errors of their past. In the three lectures compiled in this recent book he speaks out on some issues that are of great interest to contemporary bioethics, which he sees as related to the history of eugenics. Habermas questions the ethical justification for genetic interventions, embryo research and preimplantation genetic diagnosis (PGD). This book consists of a translation of a German essay first published in 2001 by Suhrkamp Verlag in Germany, plus two sections not included in the original German text. A clarifying postscript to the first two chapters was written after presenting the original text to a skeptical audience at a New York University law school colloquium in 2002, and the author also includes his address on the occasion of receiving the Peace Prize of the German Book Trade in 2001. The collection constitutes an important contribution to national and international controversy on current and proposed scientific and medical advances in biomedical research, and will be of interest to any reader of Buchanan, Brock, Daniels and Wickler’s From Chance to Choice or Kass’ Life, Liberty and the Defense of Dignityj.

Conference Announcement: 2004 Australasian Association of Philosophy
    The 2004 meeting of the Australasian Association of Philosophy will be held from Sunday July 4 to Friday July 9. The location will be South Molle Island, on the Great Barrier Reef. The website of the conference is: Registration costs, submission deadlines, and more conference information is available at the conference website. ** General Information The 2004 meeting of the Australasian Association of Philosophy will be held at the Great Barrier Reef Resort at South Molle Island in the Whitsunday Passage, starting with the Presidential Address on the evening of Sunday July 4th, and running though to about lunchtime on Friday July 9th. The conference is open to philosophers from Australasia and anywhere else in the world. The resort can also accommodate persons accompanying those attending the conference. A meeting of the Australasian Association of Logic will be integrated into the conference. Meetings of other associations may also be integrated in the same way. ** Accommodation Details of the resort can be found at: There is accommodation of various prices (at special conference rates). Details can be found at There is also accommodation (quad-share) in Polynesian Rooms, about ten minutes walk from the main resort. This is $70 per person per night. This accommodation is reserved for students and those not in full-time employment. All accommodation prices include breakfast, lunch and dinner. (Alcohol is extra.) Accommodation bookings must be made direct through the website of the resort. The deadline for bookings, with deposit, is May 31st, 2004. People attending the conference are welcome to arrive before the conference or stay on after it at the same rates. Child care facilities (free from 8 am to 4 pm) are available. ** Travel Most people will arrive by plane. Fly to Proserpine/Whitsunday Airport (in Queensland). (You can fly there direct on either Qantas or Virgin Blue from Cairns, Brisbane or Sydney.) From there, there is a bus that will take you to Airlie Beach. This connects with a boat that will take you to the resort. The total cost of the transfer from airport to the resort is AUS$62 return. People coming by car should drive to Airlie beach and pick up the boat there. (Cars are not taken to the Island.) ** Social Programme Various social events will occur during the conference. These will include a reception after the Presidential Address on the Sunday. A barbecue on the beach one evening — probably the Wednesday, and the conference dinner — probably on the Thursday evening. The costs of these events are included in accommodation and registration. Other events to be organised (probably just after the conference finishes) may include a twilight reef cruise (with drinks) and a one day diving cruise on the reef. The costs of these are extra. Full details will be announced in due course. People are, of course, free to arrange whatever social activities they choose, from among those offered by the resort, at any time. ** Conference Registration To register, for the conference fill out the registration form and submit it on the website ( If you are offering a paper, fill in the title and abstract sections of the form as well. Completed forms should be received by May 31st, 2004. Registration fees (in Australian dollars) are as follows. These are payable at the registration desk on arrival. Those who wish to register at the reduced rate must provide proof of status (e.g., a current student card) at the desk. Some of the registration fees of non-students will be used to subsidise student expenses. Students wishing to be considered for such reimbursement should make this clear at registration. Any reimbursement will be sent after the conference. AAP Member / not AAP Member Full $175 $200 Student/Unwaged $80 $90 Accompanying adult $20 There is a discount of $25 on full registration and $10 on student registration for members of the AAP. Membership of the AAP is by subscription to the Australasian Journal of Philosophy. To subscribe (which may be done online), go to the AAP website and follow the appropriate links. Membership will be checked with OUP records at the registration desk. ** Papers Offers of papers on any area of philosophy are welcomed. If you wish to submit a paper, you should give the title and an abstract of up to 200 worlds (text only) at the appropriate point on the registration form. Any paper for which an abstract is received by the deadline (May 31st, 2004) will be accepted. The exact length of sessions will be determined when the total number of papers is known. Provisionally, we expect sessions to be 75 minutes long. (45 minutes for the presentation; 30 minutes for discussion.) Full information is available at Conference enquiries are to go to

Sunday, December 14, 2003
Legal Theory Lexicon: Fact and Value Legal Theory Lexicon provides very short introductions to basic concepts of moral, political, and legal philosophy with an eye to law students, especially first year law students. Good luck to all of the readers of legal theory blog who are in the midst of exams. This week, we take a quick look at the fact/value distinction:
    Introduction Law students quickly learn that normative argument is an integral part of the law school experience. And sooner or later, they are likely to encounter what is called the fact/value distinction. Of course, the relationship between fact and value is a deep and complex philosophical topic. Even a survey of the basic topics would take us far afield into the heart of metaethics and across the field of normative moral philosophy. Nonetheless, we can take a quick look at three important ideas with which every legal theorist should have a basic familiarity.
    Hume on Deriving an Is from an Ought The locus classicus for the distinction between fact and value is David Hume's famous observation about the derivation of an "is" from an "ought." Here is the famous passage from Hume's Treatise on Human Nature, Section 1, Book III:
      I cannot forbear adding to these reasonings an observation, which may, perhaps, be found of some importance. In every system of morality, which I have hitherto met with, I have always remark'd, that the author proceeds for some time in the ordinary ways of reasoning, and establishes the being of a God, or makes observations concerning human affairs; when of a sudden I am surpriz'd to find, that instead of the usual copulations of propositions, is, and is not, I meet with no proposition that is not connected with an ought, or an ought not. This change is imperceptible; but is however, of the last consequence. For as this ought, or ought not, expresses some new relation or affirmation, 'tis necessary that it shou'd be observ'd and explain'd; and at the same time that a reason should be given; for what seems altogether inconceivable, how this new relation can be a deduction from others, which are entirely different from it. But as authors do not commonly use this precaution, I shall presume to recommend it to the readers; and am persuaded, that this small attention wou'd subvert all the vulgar [poorly reasoned] systems of morality, and let us see, that the distinction of vice and virtue is not founded merely on the relations of objects, nor is perceiv'd by reason.
    What is Hume up to? One might start with the idea that Hume's point is about the form of moral arguments. If all the premises are "is"propositions, then perhaps Hume is claiming that some sort of logical fallacy has been committed if the conclusion of the argument is an ought statement. Consider this example:
      Premise: Withdrawing from Iraq is a policy that would save human lives and improve the condition of the Iraqi people.
      Conclusion: Therefore, the United States ought to withdraw from Iraq.
    We might think that there is a missing premises, which would be of the form:
      Premise: The United States policy towards Iraq ought to aim at saving lives and improving the condition of the Iraqi people."
    But there is a problem with this interpretation of Hume's point. One can easily produce a version of the argument that contains only is premises, but that looks more or less valid. For example:
      Premise: Withdrawing from Iraq is a policy that would save human lives and improve the condition of the Iraqi people.
      Premise: The policy that would save lives and improve the condition of the Iraqi people is the most choice worthy policy.
      Conclusion: Therefore, the United States ought to withdraw from Iraq.
    I'm sure that you, gentle reader, have run ahead of me, and are at this very point objecting that the second premise includes a covert "ought" statement. And perhaps it does, but the pointexercise exericse is that Hume's point is not just about the formal qualities of moral arguments. For his point to get off the ground, it must have substantive metaethical punch--it must be grounded on some theory about what counts as a fact and what counts as a value.
    G.E. Moore on the Naturalistic Fallacy The second classical source for the fact/value distinction is G.E. Moore's discussion of the so-called naturalistic fallacy and his open-question argument. The core idea of the naturalistic fallacy is that one cannot identify "goodness" with any natural property. That is, it would be a mistake to identify goodness with the natural property of pleasure or happiness or health. Why is it a fallacy? Moore thought that the fallacy could be brought out by the open-question argument. So suppose, someone says that withdrawing from Iraq would be good if and only if withdrawing from Iraq would produce more pleasure than any alternative course of action, and that this is so, because goodness just is the maximization of pleasure. Moore claims that it is nonetheless an open question whether this is so. "Is pleasure good?" is an open question, as is, "I concede that withdrawing from Iraq will produce the most pleasure, but nonetheless is is a good thing to do?" Moore's point was that if these questions are open in the sense that they are not nonsensical questions, then it cannot be the case that goodness is the maximization of pleasure. Moore claimed that for any natural property that might be used to define goodness, the open-question argument will still be available. Moore's conclusion was that goodness must be a non-natural basic property that is somehow directly perceived by some human faculty of moral intuition.
    The Entanglement of Fact and Value It is not uncommon for relatively sophisticated legal thinkers to accept that the fact/value distinction is a well-established truth of metaethics, but this would be a vast oversimplification. In fact, both the Humean and Moorean versions of the fact/value distinction are hugely controversial. One relatively simple demonstration of the difficulties that face any attempt to argue that facts and values belong to two mutually-exlusive realms can begin with what might be called thick ethical terms. (Thin ethical terms would include "right" and "good," they are thin because they don't seem to carry any particular descriptive or factual content.) A good example of a thick ethical term might be "cruel." Actions can be described as cruel, and there is likely to be a good deal of intersubjective agreement on the question whether a particular action is cruel or not. Moreover, when asked why an action is cruel, the answer will certainly include a number of fact, e.g. the action caused pain, the pain was unnecessary to accomplishment of the actions purpose, and so forth. Cruel has a clear factual component. But cruel also involves moral values. So, for example, it would be quite odd to say, "His action was cruel, but it was nonetheless good." Such an assertion would naturally lead to the question: "So what was good about it that justified the cruelty." Of course, there are many possible answers to this challenge, but one of them is not: "Oh, there was nothing else that made it good; it was just a cruel action." Contrast this to, "His action was cruel, and therefore it was wrong." Imagine now the query: "Yes it was cruel, but what was wrong with that." And now the reply, "Huh? What was wrong with it was that it was cruel. Didn't you hear me?"
    Of course, there are many many thick ethical terms. For law students, the really interesting thing is that many legal concepts are closely related to (or are themselves) thick ethical terms. A good example is "murder." Whether or not an action is "murder" in the ordinary, nonlegal sense of that term is clearly a question that involves the entanglement of fact and value. "Was it murder?" leads to "Was someone killed?", "Was the killing in self defense?" and so on. If we conclude that an action was murder, then ordinarily we also conclude that the action is morally wrong--even thought in rare circumstances, murder might be morally justified. Murder is a concept in which law, fact, and value all seem to be entangled. As a law student, you might begin to look for fact/value distinctions and for the entanglement of fact and value. My guess is that you will see these ideas operating everywhere, but especially in torts and criminal law!
Good luck on your exams!

Legal Theory Calendar
    Thursday, December 18
      In Australia, at ANU's RSSS, John Gardner (Oxford) presents What is Tort Law For?
      At Yale's Legal Theory Workshop, Eugene Volokh, UCLA (Law) presents Crime-Facilitating Speech

Saturday, December 13, 2003
WSIS Report Maria Farrell reports on WSIS here.

IM and the Law School Classroom Check this out!

Sen on Markets and Freedom Chris Bertram at Crooked Timber quotes Amartya Sen on markets and freedom. If you aren't already familiar with Sen, you will not regret surfing on over!

Legal Theory Bookworm This week, Legal Theory Bookworm recommends three books about contract law. The first is Grant Gilmore's classic little book on the history of contract law, The Death of Contract. Gilmore's very short and very readable book provides a highly opinionated (and controversial) story about the evolution (and devolution) of contract law. The second is Charles Fried's Contract as Promise, which focuses on the normative foundations of contract law. Fried argues that contract law is essentially about promises, and his book provides an excellent counterpoint to Gilmore's. The third is The Rise and Fall of Freedom of Contract by Patrick S. Atiyah, which provides a comprehensive and scholarly account of the history of modern contract law.
Update: Nate Oman suggests some additional recommendations: Michael J. Trebilcock, The Limits of Freedom of Contract, David Ibbetson, An Historical Introduction to the Law of Obligations and James Gordley, The Philosophical Origins of Modern Contract Doctrine.

Download of the Week The Download of the Week is The Case Against Moral Luck by David Enoch and Andrei Marmor (Hebrew University and University of Southern California - Law School). Here is the abstract:
    In this essay we purport to suggest a comprehensive argument against the existence of moral luck. We argue that once some crucial distinctions are taken into account, our moral judgments are not as sensitive to luck as the proponents of moral luck suggest. The intuitions, or moral opinions, purportedly supporting moral luck, once carefully characterized, can be accommodated consistently with there being no moral luck. Those moral luck intuitions that cannot be thus accommodated do indeed have to be rejected, but doing so, we proceed to argue, comes with an intuitive price that is not unreasonable given the importance of the relevant version of the control condition. Indeed, one way of explaining these moral luck intuitions away is attributing them to a failure to distinguish between them and the more benign intuitions that are consistent with there being no moral luck. We concentrate on three out of the four main categories of (purportedly) moral luck: luck about consequences of actions (consequential luck), luck in the morally relevant circumstances one encounters (circumstantial luck), and luck about moral character (constitutive luck). As is now common in the literature on moral luck, we try to abstract from the larger issues concerning the freedom of the will, which is why we do not discuss the fourth category, concerning luck in how one's will is caused. There is a worry, however, that abstracting from these (even) larger issues is not philosophically legitimate. We address this worry, though in a somewhat preliminary way, in the last section.

Friday, December 12, 2003
Bainbridge on Spitzer Stephen Bainbridge goes after my friend and law school classmate Eliot Spitzer here.

Unlearned Hand on Procedure and Discourse in the Blogosphere Please read this marvelous post by Unlearned Hand over at En Banc.

Cruel and Unusual? Kyron Huigens has a nice post on Justice Scalia and Pancuronium Bromide over at Punishment Theory.

Rule Consequentialism NZ Polis and No Right Turn are having an interesting debate about rule consequentialism.

Hitz on Plato & Democracy Zena Hitz has posted Plato, democracy, and desire. Here is a taste:
    I analyze the two major texts in the Republic where democracy is explicitly criticized: the Ship of State image and subsequent discussion in book 6, and the account of the democratic city and the democratic man in book 8. Plato's demagogues (democratic politicians) and demos (citizenry), described as greedy and corrupt in the book 6 passages, resemble the demagogues and the demos of Aristophanes' Knights, to which Plato's text makes reference. However, the vision of the Knights is radically reinterpreted by Plato, since the satisfaction of the demos' appetites does not in fact promote its well-being or serve its interest. An analysis of Republic 8 further shows that the problem with promoting the satisfaction or apparent interest of the demos is not that the demos has desires for the wrong sorts of objects, but that it pursues its goals for the wrong reasons.
And here is a bit from the conclusion to whet your appetite:
    I don't think one can help but be struck, while examining Plato's writing on democracy, at how stark the choice was for him between the standard of reason and the standard of desire, the pursuit of the human good and the pursuit of vice. It is this starkness and simplicity, I think, that lend these passages their sharp polemical character and hence lead one to think that Plato's condemnation of democracy was absolute. But so far as practical politics is concerned, these criticisms cannot in fact be decisive without an examination of the practical alternatives. To what extent Plato means the rule of reason to be a practical alternative to democracy, and to what extent he means only to criticize from the perspective of the ideal, are vast and complicated questions, which requires the examination of a far greater portion of Plato's political thought than is possible here.
This is a very interesting paper. Take a look!

McGrath and Weatherson on Cloning Sarah McGrath and Brian Weatherson have posted Cloning and Harm. Here is an exerpt:
    We advocate a libertarian position on cloning. Cloning should only be banned if it wrongfully harms the child created. Since cloning is an experimental technology, it is probable that in ordinary cases, where couples could have children through more traditional means, cloning could wrongfully harm the child by putting her at risk for various diseases and deformities. But if the parents could not have children genetically related to them only by any other means, then the child is not wrongfully harmed by being created through cloning unless its life is so bad it would be better off not living. Given how little we know about cloning, it is not certain that clones produced using current technology would satisfy even that weak criteria. But in the near future we will know enough about cloning to be confident that standard is met, and at that time cloning should be allowed for couples that cannot have children through other means.
Highly recommended!

Sale on Delaware & Corporate Scandals Hillary A. Sale (University of Iowa College of Law) has posted Delaware's Good Faith (Cornell Law Review, Vol. 89, 2004) on SSRN. Here is the abstract:
    In the post-Enron era, there has been considerable discussion about what went wrong at Enron and elsewhere and how to fix it. Congress passed the Sarbanes-Oxley Act, the New York Stock Exchange adopted new corporate governance regulations designed to create better checks and balances, and other self-regulatory organizations followed suit. In addition, the Securities and Exchange Commission, both before and after the Sarbanes-Oxley Act, promulgated many new regulations. One voice, however, has been fairly quiet. The State of Delaware, the mother of all corporate law, has been largely absent from the debate. The Delaware judiciary, however, has issued several opinions that indicate movement may be afoot. In this Article, I raise some questions about Delaware's (declining) role in corporate law, and discuss the emerging duty of good faith and its potential for curbing abuses like those seen in the past few years. To do so, I examine several key cases from Smith v. Van Gorkom, to Caremark, to the Disney cases. In these, and other cases, I argue, the judiciary has put forth a set of guiding principles for fiduciary good faith. I argue that this duty is appropriately a separate duty, not an obligation on the other two key fiduciary duties of due care and loyalty. I compare the Delaware cases and the standards within them to the standard for pleading and proving scienter under the federal securities laws. Using the federal standard as a jumping off point, I argue that the duty of good faith can be analogized to the types of situations involving scienter and, thereby, limited in a meaningful manner. As a result, good faith can help to fill the gap in fiduciary duties without becoming excessively capacious.

Reese on the First Sale Doctrine R. Anthony Reese (University of Texas at Austin - School of Law) has posted The First Sale Doctrine in the Era of Digital Networks on SSRN. Here is the abstract:
    Copyright law's first-sale doctrine allows the owner of any particular lawful copy of a copyrighted work to resell, rent, lend, or give away that copy without the copyright owner's permission. The article first considers the effects the first-sale doctrine has had as part of a copyright system in which many types of works are disseminated by the distribution to the public of tangible copies that can be retransferred by the copy owner to others who can just as easily use the copy to access the work. These effects have largely been to increase the affordability of copies of works (primarily by providing secondary sale, rental, and lending markets that can offer access at a lower price than that charged by the copyright owner for the purchase of a new copy) and the availability of works (by making it possible to obtain access to a work when it goes out of print or when a copyright owner withdraws or suppresses it and by increasing the likelihood that a copy or copies of the work will be preserved over time). Next, the article considers how a shift to digital dissemination - both via transmissions over digital networks and in the form of technologically protected digital copies - may well result in the existence of fewer freely transferable copies of copyrighted works that can be distributed without the copyright owner's consent under the first-sale doctrine. The article then considers how this shift might affect the affordability and availability of copyrighted works. As to affordability, the article concludes that the shift's effect may be positive in some respects but may pose particular problems for library lending, perhaps the most affordable form of access. As to availability, the article concludes that the shift to digital dissemination may give copyright owners more complete control over access to copyrighted works and in particular may eliminate the preservation benefits of widespread distribution of copies that are legally and practically transferable under the first-sale doctrine. The article ends by suggesting some steps that might be taken, particularly with respect to fostering availability of copyrighted works, should the predicted effects of a shift to digital dissemination begin to materialize.

Bratton on Rules, Principles, and Rents William W. Bratton (Georgetown University Law Center) has posted Enron, Sarbanes-Oxley and Accounting: Rules Versus Principles Versus Rents (Villanova Law Review, Vol. 48, p. 1023, 2003) on SSRN. Here is the abstract:
    In our self-regulatory system of corporate law, the job of insisting on trustworthy numbers devolves in the first instance on the gatekeepers. It follows that the auditors take the brunt of the blame and that the Sarbanes-Oxley Act (the "Act"), the legislation intended to address the scandals and restore confidence in the securities markets, responds by regulating the accounting profession. More accurately, Sarbanes-Oxley triggers the start of a political process intended over time to produce a new regulatory regime. The statute follows the standard regulatory strategy of delegating most of the task of devising the new regime's terms to an administrative agency, a new Public Oversight Board (POB). The regulatory outcome remains open accordingly. High financial stakes imply an ongoing political contest over the POB's political and institutional gestalt and the terms of any new regulation. The resulting uncertainty, although regrettable, probably could not have been avoided. Unfortunately, Sarbanes-Oxley does not stop with an open-ended delegation of authority respecting the audit function to a new agency. The Act goes on to address the substance of Generally Accepted Accounting Principles (GAAP). It does this first in section 108(d), which requires the SEC to study the accounting system to ascertain the extent to which it is "principles-based," as opposed to "rules-based," and to tell us how long it will take for us to achieve a "principles-based" system; and second, in section 108(a), which requires the Financial Accounting Standards Board (FASB) and any other approved standards-setting body to adopt procedures ensuring prompt consideration of new rules reflecting "international convergence on high quality accounting standards." Given an ongoing political contest respecting the shape of the POB and its regulatory program, critical questions need to be asked about these substantive initiatives. More particularly, this Article asks whether substantive intervention into the articulation of GAAP could trigger just the sort of regulatory error that the agency delegation model, followed in respect of the POB, was intended to avoid. "Principles-based accounting" and "international convergence," however desirable in the abstract, have to be considered in light of the institutional contexts in which they would operate and effect consequences. "Principles" and "convergence," by themselves do little to constrain rent-seeking behavior on the part of managers and auditors. Absent antecedent institutional reform that ensures auditor independence and lessens the negative impact of rent-seeking and influence activity on audit quality, perverse effects could follow in the event that sections 108(d) and 108(a) influence GAAP's future shape. Unfortunately, Sarbanes-Oxley does not ensure the requisite institutional reform; it merely holds out the possibility of reform. Part I describes Sarbanes-Oxley's delegation to the POB, surveying the issues the Act leaves open and the ongoing political contest respecting their resolution. Part II situates the principles-based accounting that the Act commends in the context of the Enron disaster. This discussion begins with a story currently in circulation - that Enron exemplifies the abuses of rules-based accounting under GAAP and demonstrates the need to move to principles-based accounting. The discussion then falsifies the story, showing that Enron violated both rules and standards under GAAP. Full responsibility for the disaster goes to the enforcement of GAAP's rules and standards by Enron's auditor rather than to the rules and standards themselves. The discussion then broadens, explaining why the relative merits of rules and principles are being debated in respect of GAAP at this time, and how the principles-based argument rests on a false premise, holding out risks for audit quality.

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

Huang on Frivolous Litigation Games Peter H. Huang (University of Pennsylvania Law School) has posted Lawsuit Abandonment Options in Possibly Frivolous Litigation Games (Review of Litigation, Vol. 23, January 2004). Here is the abstract:
    This paper develops a new theory of possibly frivolous litigation by focusing on a plaintiff's options to unilaterally abandon a lawsuit. Federal Rule of Civil Procedure 41(a)(1)(i) and its various state law counterparts permit, under certain circumstances, a plaintiff to voluntarily dismiss her lawsuit without prejudice. This paper's options approach to litigation, including quite possibly, frivolous litigation is placed in the context of the literature of economic models about litigation in general and frivolous litigation in particular. This paper demonstrates that possibly frivolous lawsuits will be filed and settled when the values of a plaintiff's options to unilaterally abandon litigation exceed the costs of purchasing those litigation-abandonment options by continuing the litigation. This paper also addresses some of the limitations of an abandonment options game-theoretic model of litigation. In particular, there is reason to believe that people have cognitive limitations in their abilities to reason backwards in sequential interactions. Empirical and experimental evidence also exists that indicates that emotions affect how people make decisions. Finally, recent psychological experiments indicate that decision makers often overvalue options and over-invest in keeping options alive, even if those options present little intrinsic value. This paper briefly explains how and why many laws and judicial doctrines effectively preclude specific legal options. Appendix A provides an accessible, non-technical, self-contained, and user-friendly primer about options for those unfamiliar with options. Appendix B contains a formal, mathematical game-theoretic analysis of a plaintiff's options to unilaterally abandon a lawsuit.

Thursday, December 11, 2003
Congratulations . . . to Gary O'Connor on the first birthday of Statutory Construction Zone.

Stoljar on Zombies at ANU At ANU's RSSS, Daniel Stoljar (RSSS) presents Advertisement for a Solution to the Zombie Problem. But is it mere puffery?

Peter Strauss at USD At the University of San Diego, Peter Strauss is presenting in the Law, Economics, and Politics Workshop Series.

Call for Papers: Joint Session
    CALL FOR PAPERS 2004 JOINT SESSION OF THE MIND ASSOCIATION AND THE ARISTOTELIAN SOCIETY UNIVERSITY OF KENT AT CANTERBURY, 9-12 JULY OPEN SESSIONS A number of parallel sessions on Saturday and Sunday afternoons will be available for the presentation of papers not previously published. It is expected that at this year's Joint Session there will be a considerable number of these sessions available, allowing room for many submissions to be included. The intention is to accommodate all philosophical material, so far as time and space in the programme allow, and not to operate a selective policy. Each presentation should last no more than 20 minutes, so that a further 10-15 minutes may be allowed for discussion. Presented papers should aim to introduce material involving recent research. There are no restrictions on the areas of philosophy which papers may address. Philosophers whose papers are included in this part of the programme must be or become subscribing members of one of the organising societies. Those wishing to make a presentation should submit by e-mail attachment a copy of their paper, together with a 250-word abstract, to Dr. Alan Thomas ( by 1st March 2004. Decisions on whether papers have been accepted will be made by the end of April 2004. Papers accepted for the Open Sessions will not be published in the Supplementary Volume of the Aristotelian Society (unlike papers invited for the plenary programme of the conference); and expenses will not be paid. Nobody should submit a paper for both the Postgraduate and the Open Sessions. POSTGRADUATE SESSIONS Two parallel sessions on the Saturday afternoon will be devoted to short presentations by graduate students (or those who have recently obtained a postgraduate degree). Each student should speak for 20 minutes, allowing 10 minutes for discussion. Students wishing to participate should send their paper, preferably by attachment in Word 95 or higher, otherwise in two hard copies, by 1st March 2004 to: Mr. A. W. Price, Department of Philosophy, Birkbeck College, Malet Street, London, WC1E 7HX. Email: The paper should be about 2000 words but no more than 2500 words, including notes and bibliography, and should begin with a brief abstract. It should be typewritten in 12-point text, single-spaced throughout (i.e. including references and quotations), on one side of white A4 paper. All pages should be numbered and have margins of 1 inch or more. Papers containing symbols liable to distortion in transmission should be submitted as hard copies; otherwise soft copy is welcome. Please ensure that there are no self-identifying references in the text. Submissions should be accompanied by a separate page containing the title of the paper, the name of the author, institution and status, and email and postal addresses. Authors are advised to consult supervisors about what may be suitable for presentation to a largely professional audience. Given the tight word-limit, they are advised to give as much space as they can to the statement of their own ideas. The papers will be sent to referees, and a maximum of eight will be selected by the Joint Committee for presentation at the Joint Session. The programme will be settled in May. The selected authors will have their conference fee and accommodation expenses (but not their travel costs) paid by the Mind Association and the Aristotelian Society. Some papers may subsequently be considered for publication in the Proceedings of the Aristotelian Society. INVITED SPEAKERS Inaugural Address - Dorothy Edgington Symposia: Sarah Broadie and Anthony Kenny Dan Garber and Jean-Baptiste Rauzy Michael Smith and Edward Harcourt Andrew Williams and Michael Otsuka Justin Broackes and David Wiggins Crispin Wright and Martin Davies For information about the Aristotelian Society & the Joint Session see

Enoch & Marmor on Moral Luck David Enoch and Andrei Marmor (Hebrew University and University of Southern California - Law School) have posted The Case Against Moral Luck on SSRN. Here is the abstract:
    In this essay we purport to suggest a comprehensive argument against the existence of moral luck. We argue that once some crucial distinctions are taken into account, our moral judgments are not as sensitive to luck as the proponents of moral luck suggest. The intuitions, or moral opinions, purportedly supporting moral luck, once carefully characterized, can be accommodated consistently with there being no moral luck. Those moral luck intuitions that cannot be thus accommodated do indeed have to be rejected, but doing so, we proceed to argue, comes with an intuitive price that is not unreasonable given the importance of the relevant version of the control condition. Indeed, one way of explaining these moral luck intuitions away is attributing them to a failure to distinguish between them and the more benign intuitions that are consistent with there being no moral luck. We concentrate on three out of the four main categories of (purportedly) moral luck: luck about consequences of actions (consequential luck), luck in the morally relevant circumstances one encounters (circumstantial luck), and luck about moral character (constitutive luck). As is now common in the literature on moral luck, we try to abstract from the larger issues concerning the freedom of the will, which is why we do not discuss the fourth category, concerning luck in how one's will is caused. There is a worry, however, that abstracting from these (even) larger issues is not philosophically legitimate. We address this worry, though in a somewhat preliminary way, in the last section.

Karel on Independent ISP's in New Zealand Annemieke Karel (Victoria University of Wellington) has posted The Development and Implications of Free ISPs in New Zealand on SSRN. Here is the abstract:
    The New Zealand telecommunications experience illustrates the process of competition in a market for network services, characterised by technological change and minimal regulation. The story of free ISPs is merely one episode in the battle of Telecom and Clear for the New Zealand telecommunications market. It was enabled by a complex combination of regulation, contractual choices and an unanticipated surge of the Internet. Despite certain static inefficiencies, the free ISPs have brought a considerable number of dynamic efficiencies that should be taken into account when evaluating New Zealand's light-handed policy regime in this industry.

Herman on Appredni and the Sentencing Guidelines Susan M. Herman (Brooklyn Law School) has posted Applying Apprendi to the Federal Sentencing Guidelines: You Say You Want a Revolution? (Iowa Law Review, Volume 87, No. 2, March 2002). Here is the abstract:
    In Apprendi v. New Jersey, the Supreme Court held that any fact, other than a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum must be found by a jury and by proof beyond a reasonable doubt. The Court therefore reversed Apprendi's sentence, which had been enhanced during the sentencing phase when the judge found him guilty of a hate crime. This article explores the Court's formalistic attempt to limit its holding only to situations where the enhanced sentence is "above the statutory maximum," as opposed to Justice Thomas's view that the theory should more generally require jury decisions about aggravating facts. In particular, the article analyzes arguments for applying the rationale of Apprendi to the Federal Sentencing Guidelines, which generally operate within a statutory maximum but share many of the problems Apprendi addresses. The Guidelines commit a wide range of factual decisions that may increase sentences dramatically to the sentencing phase, where these facts are decided by a judge under a less demanding standard of proof than proof beyond reasonable doubt. Using Apprendi as a microcosm of issues that have preoccupied the Court in recent debates over constitutional interpretation, the article comments on the Court's use of history in Apprendi, and then discusses the history of the Federal Sentencing Guidelines. The author, who has previously criticized the Court's positivistic approach to deciding when people convicted of crimes may claim procedural protection attaching to decisions about how long they will be incarcerated, applies that critique here, criticizing the Court's formulation of the right in question, which allows the scope of rights to be determined by legislative drafting decisions. Finally, the article explores what an alternative functional approach to the right to jury trial might look like. Using the Federal Sentencing Guidelines as a focal point, the article discusses the questions Apprendi raises about the extent to which the jury will function as a second locus of democratic input into the criminal justice system. A majority of the Court in Apprendi embraced a potentially revolutionary, idealistic view of the jury, while Justice Breyer in dissent, argued for a pragmatic approach to the criminal justice system, relying on the judgments of professional decision-makers who are not politically or democratically accountable: the professionals of the Sentencing Commission, and career sentencing judges as opposed to lay juries. The future scope of Apprendi will depend on how seriously the Court wishes to champion the role of the jury. Apprendi has already led to thousands of lower court cases trying to determine its scope, virtually none of which has found the theory of Apprendi to apply to the Guidelines. If the Court does decide to apply the theory of Apprendi to the Guidelines, that decision will be revolutionary; if not, Apprendi's theory can be easily avoided by legislatures in drafting their statutes and the purported revolution will fizzle.

Ryan on Wireless Spectrum Allocation Patrick S. Ryan (Katholieke Universiteit Leuven - ICRI) has posted Wireless Spectrum Allocation and New Technologies: Reviewing Old and New Paradigms Through a Case Study of the U.S. Ultra Wideband Proceeding on SSRN. Here is the abstract:
    This working paper is discussion of the regulation of wireless technologies in the U.S. and in Europe, beginning with the new announcement of spectrum in the U.S. for "Advanced Wireless Services," and continuing on to discuss wireless technology as it applies to spectrum management and general regulatory principles. The working paper's emphasis is on the results of the four years of proceedings in the U.S. to approve Ultra-Wideband Technology (UWB). A discussion of UWB has recently begun in Europe through the CEPT SE24 and ETSI TG31a projects. It is likely that European regulation will produce industry and governmental concerns similar to those in the U.S., and likewise, similar regulatory constraints. The working paper also includes a preliminary discussion of how new technologies like UWB may question scarcity in spectrum management, and how this may impact freedom of expression principles under the U.S. Constitution and the European Convention for Human Rights. Finally, a discussion of the Federal Communications Commission (FCC) rulemaking procedure in the U.S. is also included, with suggestions for alternatives to improving the FCC's efficiency as an administrative lawmaker, such as an interim-final rulemaking procedure, and lessons that the FCC can learn from its sibling FDA. The regulation of spectrum by the courts by a discussion is also included in light of the of the NextWave and GWI litigation.

Wednesday, December 10, 2003
Aretaic Punishment Theory Over at Punishment Theory, Rick Garnett and Kyron Huigens are debating the aretaic turn (i.e. the turn to virtue-focused approches) as applied to the theory of punishment.

Who Owns the Internet Froomkin quoting Oram here.

Moving Day Normblog has moved here.

BCRA Decision The Supreme Court has handed down its decision in the Bipartisan Campaign Reform Act case. Here is the opinion. And here is analysis from Rick Hasen.

Gelepithis on Human-Robotic Communications Petros Gelepithis (Kingston University) presents An Argument for the Impossibility of Human-Robotic Communication at the Centre for Philosophical Studies in London.

Persson on Persons Ingmar Persson (Lund University - Department of Philosophy) has posted Two Claims about Potential Human Beings (Bioethics, Vol. 17, pp. 503-517, October 2003) on SSRN. Here is the abstract:
    It seems that at conception something is formed which, due to its genetic make-up, has the potentiality to develop into a full-blown human being. Many believe that in virtue of this potentiality, this organism, the human zygote or early embryo, has an intrinsic value which makes it wrong to use or produce it merely as a means to some end, e.g., some scientific end such as to produce embryonic stem cells. Against this it is here argued, first, that it does not follow from the fact that something has a potential to become a (fully developed) human being that it already is a human being (in a rudimentary sense). In fact, a human being begins to exist no earlier than a couple of weeks after conception, at the stage known as gastrulation. Thus, even granted the questionable assumption that something has intrinsic value in virtue of being a human being, the zygote will not have intrinsic value. Secondly, the value an embryo has in virtue of its potentiality to become a full-blown human being can only be instrumental, a value as a means. But of course it cannot be wrong to treat that which has merely instrumental value as a mere means or instrument to some end.

Baums & Scott on Comparative Corporate Judgment Theodor Baums and Kenneth E. Scott (J.W. Goethe University, Frankfurt/Main and Stanford Law School) have posted Taking Shareholder Protection Seriously? Corporate Governance in the United States and Germany. Here is the abstract:
    The paper undertakes a comparative study of the set of laws affecting corporate governance in the United States and Germany, and an evaluation of their design - if one assumes that their objective were the protection of the interests of minority outside shareholders. The rationale for such an objective is reviewed, in terms of agency cost theory, and then the institutions that serve to bound agency costs are examined and critiqued. In particular, there is discussion of the applicable legal rules in each country, the role of the board of directors, the functioning of the market for corporate control, and (briefly) the use of incentive compensation. The paper concludes with the authors' views on what taking shareholder protection seriously, in each country's legal system, would require.

O'Hear on Federal/State Sentencing Disparities Michael M. O'Hear (Marquette University Law School) has posted National Uniformity/Local Uniformity: Reconsidering the Use of Departures to Reduce Federal-State Sentencing Disparities (Iowa Law Review, Volume 87, No. 2, March 2002) on SSRN. Here is the abstract:
    A wide range of crimes may be prosecuted in either state court or federal court. A successful federal prosecution typically results in a much longer sentence than would a state prosecution. The disparity between state and federal sentences raises at least two major concerns. First, a federal prosecution may be undertaken in lieu of state prosecution as a result of random chance, vindictiveness, bias, or other questionable considerations. In such cases, the imposition of a relatively harsh federal sentence may appear arbitrary. Second, the imposition of relatively harsh federal sentences may circumvent the criminal justice policy preferences of state and local communities. In light of these concerns, the author proposes that federal judges consider state sentencing laws when deciding whether to depart downward from the presumptive ranges specified in the federal sentencing guidelines. The author suggests a set of criteria to identify those cases for which departure on the basis of federal-state disparities would be most appropriate.

Conference Announcement: Truth & Realism at St. Andrews
    CONFERENCE ANNOUNCEMENT TRUTH & REALISM June 17th-20th 2004 Webpage: Prelim.htm Email: Main Speakers: Robert Brandom Michael Devitt Terence Horgan Paul Horwich John McDowell Ernest Sosa Michael Williams Crispin Wright Conference Commentators: Simon Blackburn Richard Rorty Timothy Williamson Commentators: JC Beall Marian David Dorothy Edgington Chris Gauker John Hawthorne Jane Heal Michael Lynch Mark Richard Chairpersons Pascal Engel Jennifer Hornsby Peter Pagin Sven Rosenkranz Tadeusz Szubka Alessandra Tanesini Brian Weatherson Ralph Wedgewood Conference Organisers Patrick Greenough Michael Lynch

Tuesday, December 09, 2003
Partisan Gerrymandering Rick Hasen's excellent comments on Vieth can be found here.

Stare Decisis, the Rule of Law, and Our Moment in History What if the current downward spiral of politicization were broken and the Supreme Court began to follow the rules laid down? Even if the Court were composed entirely of neoformalists, judges who had a true and deep commitment to decision on the basis of the constitutional text and history, many important questions would remain. One of the most important of these concerns the role of precedent. Matthew Yglesias's recent arguments in favor of a strong role for constitutional stare decisis have provoked another response--this one from Michael Rappaport:
    While the question of what precedents to follow is complicated, this argument is awfully convenient. After 60 years of liberal justices ignoring precedent, now that conservatives have some measure of control over the Court, it is time to respect precedent. After the New Deal Court eviscerated the judicial precedents that imposed limitations on the economic powers of the government on grounds of judicial restraint, and after the Warren Court eviscerated precedents to erect new rights in the social arena based on a judicially activist agenda, it is now suddenly the time to discover the importance of precedent.
Of course, Rappaport's argument is a familiar one. It is the flip side of an attack that the left has made on conservatives who have endorsed textualist and originalist constitutional methodologies: the left has charged that the right has endorsed originalism as a flag of convenience. Of course, the transition to formalism will always produce winners and losers. At any given moment in history, the various elements of formalist constitutionalism will have a variety of short-term political effects.
If I might be excused for the crudest of generalizations, I would like to suggest the following picture. At this moment in history, the constitutional text and its original meaning are a mixed bag, but on balance taking the text seriously would mean a substantial devolution of power from the national government to the states. For example, an originalist approach to the commerce clause would necessitate a more limited role for the national government in consumer protection, environemental regulation, and so forth. The bag is mixed because on some issues (constitutional sovereign immunity and the 11th Amendment, the text and history may actually point in a pro-nationalist direction. Overall, originalism might turn out to have a bias towards the "right," although I am inclined to think that the long-term political effects of constitutional originalism are difficult to predict.
And at this moment in history, constitutional precedent has a liberal tilt--the result of the long domination of the Court by the left from the late 1930s through the late 1970s or perhaps the early 1980s. Again, this is only an on-balance effect--many conservative decisions from the 1970s forward are in the United States Reports.
If you are a realist, then none of this matters to you. For you, the law is an instrument to be wielded as a political sword to advance a political agenda. Some realists would use the sword to strike only the blows of high politics--where "high politics" is understood as limited to the great issues of constitutional principle. Other realists see no a priori prohibition against using the sword of instrumentalist law to strike low political blows--maniuplating election rules to shape the outcomes of electoral politics. But what if you are a formalist? What if you believe that the rule of law provides enormous goods and that a downward spiral of politicization creates enormous risks? How should a formalist react to the fact that at any given moment in history, a transition to formalism will create winners and losers?
To me, the answer to this question seems obvious. If you are a formalist, the question should not be, "How can I shape the transition to constitutional formalist to advance my own political agenda?" If you thought that way, you wouldn't be a formalist. Rather, the question should be, how can the transition to formalism best advance the rule of law. I've argued that the answer to this question involves a traditional commitment to stare decisis as an integral part of the formalist program. For my take on these issues, see The Case for Strong Stare Decisis, or Why Should Neoformalists Care About Precedent?, a post in three parts, to wit:Also, see Will Baude's reply to Yglesias.

Bainbridge on Revitalizing Corporate Boards Here.

Cheffins on Corporate Law Scholarship Brian R. Cheffins (Faculty of Law, University of Cambridge) has posted The Trajectory of (Corporate Law) Scholarship on SSRN. Here is the abstract:
    While considerable attention is devoted to legal scholarship, little has been written on the process by which academic writing on law evolves. This paper departs from the existing pattern and examines five potential trajectories for legal scholarship. One is based on the idea that knowledge "accumulates" as part of "progress" towards a better understanding of the matters under study. The second is the concept of the "paradigm", derived from work done on the history and sociology of science. The third focuses on the idea that academic endeavor concerning law yields useful ideas since market forces are at work. The fourth is a "cyclical" thesis, based on the assumption that themes legal scholars write about arise on a reoccurring basis. Finally, legal scholarship can potentially be characterized in terms of fads and fashions. It appears that scholarly trends in law develop in a manner that is at least partially consistent with each of the five potential trajectories identified. At the same time, none captures fully the dynamics at work and indeed there is some conflict between the various paths available. The paper tests these conjectures by focusing on a particular topic, namely corporate law. The survey offered does not identify one of the five potential trajectories as being dominant. Still, each does help to explain how corporate law scholarship has developed. Correspondingly, for those who are interested in why some ideas prosper whereas other claims "burn out", this paper offers a "test-driven" analytical framework that can be applied to discern how academic writing on law evolves over time.

Call for Papers: Nanotechnology
    - CALL FOR PAPERS - HYLE: International Journal for Philosophy of Chemistry & TECHNE: Journal of the Society for Philosophy and Technology invite papers for a joint special issue on N A N O T E C H C H A L L E N G E S Some fifteen years ago, when the term 'nanotechology' was almost unknown, ideas about molecular manufacturing or 'producing new materials at the nanometer scale' would clearly have been associated with synthetic chemistry or materials science. Today, almost all of the natural and engineering sciences are engaged in nanotechnology, in some disciplines even as much as 10 per cent. The rapid emergence and growth of nanotechnology across the disciplines, fuelled by visions of a new technological revolution and huge governmental funding, present many great challenges not only to scientists and engineers, but also to those whose profession is to reflect on science and technology and their place in society. With their particular audiences of philosophers of technology and philosophers of chemistry, respectively, TECHNE and HYLE join forces to address these challenges. Since we, the editors of the journals, believe that the two audiences share too much interest in this topic to go separate ways, we have decided to undertake the experiment of cooperative journal editing. We particularly welcome papers on one or more topics of the following non-exclusive list. DISCIPLINARY CHALLENGES - Is nanotechnology a distinct field that can be clearly defined and distinguished from established scientific and engineering disciplines? - Does nanotechnology necessarily require or actually establish new relationships between the classical discipline? Is it a multi-, inter-, or transdisciplinary field or an emerging new hybrid-discipline? - Does nanotechnology undermine or require revision of the classical distinction between science and technology? EPISTEMOLOGICAL CHALLENGES - What is the epistemological status of current visions about future achievements of nanotechnology? - Does the emphasis on the visualization and control of the nano-sphere suggest an epistemological change with reference to the epistemology of chemistry, physics, or other natural sciences? - Do we need to reconsider the epistemological role of instruments in nanotechnological research? ONTOLOGICAL & METAPHYSICAL CHALLENGES - Does nanotechnology undermine the nature-artifact distinction in a way unknown in former technologies and sciences? - Do nanotechnological ideas about human enhancement and human-machine-interfaces undermine the human-nonhuman distinction and the notion of a person? - Is nanotechnology driven by metaphysical ideas about nature or religious ideas about man? ETHICAL AND SOCIOLOGICAL CHALLENGES - Do nanotechnological products and processes require new ethical and legal standards of assessment? - Are the specific goals of nanotechnology consistent with each other and with socially accepted values? - What kinds of normative ideas and emotions are mediated by the public images nanotechnology? - Does the current nano-hype, with its alchemical promises such as longevity and enormous wealth, result in the well-known series of public frustration and hostility? Is it possible to indentify the actors who benefit from and who lose in this version of an apparently recurrent game? Manuscripts should follow the general Guidelines for Contributions, available on the HYLE website. Inquiries regarding suitability of submissions may be send to one or both of the Editors. Authors may indicate in which journal they would prefer to have their paper published, although the final decision will be made by the Editors. Send electronic submissions to Joachim Schummer not later than June 30, 2004 in appropriate form for anonymous reviews. Davis Baird, Editor of TECHNE ( Joachim Schummer, Editor of HYLE ( For more information, please visit

Bebchuk on Shareholder Access to the Ballot Lucian Arye Bebchuk (Harvard Law School) has posted Symposium on Shareholder Access to the Ballot on SSRN. Here is the abstract:
    This paper contains the proceedings of a symposium on shareholder access to the ballot held at Harvard Law School in October 2003. The symposium brought together SEC officials, CEOs, directors, institutional investors, money managers, shareholder activists, lawyers, judges, academics, and others to discuss the subject from a wide range of perspectives. The symposium included six sessions. The first session focused on the basic pros and cons of shareholder access. It featured a presentation and discussion of two papers: "Election Contests in the Company's Proxy: An Idea whose Time has not Come" by Martin Lipton and Steven Rosenblum, Wachtell, Lipton, Rosen & Katz; and "Shareholder Access to the Ballot" by Lucian Bebchuk, Harvard Law School. The second session focused on the perspective of boards and management. The panel speakers were Richard Breeden (Chairman, Richard C. Breeden & Co.), John Castellani (President, The Business Roundtable), James Rogers (Chairman of the Board and Chief Executive Officer, Cinergy Corp.), and Ralph Whitworth (Chairman of the Board, Apria Healthcare Group, Inc.). The third session focused on the perspective of institutional investors. The panel speakers were Orin Kramer (Partner, Kramer Spellman, L.P.A), Robert Pozen (Visiting Professor of Law from Practice, Harvard Law School and formerly Vice-Chair, Fidelity Investments), Michael Price (Managing Partner, MFP Investments) and Sarah Teslik (Executive Director, Council for Institutional Investors). The fourth session of the symposium focused on the perspective of shareholder activists and advisers. Panelists were Jaime Heard (Chief Executive Officer, Institutional Shareholder Services), Robert Monks (Founder, Lens Governance Advisors), Damon Silvers (Associate General Counsel, AFL-CIO), and John Wilcox (Vice Chairman, Georgeson Shareholders). The fifth session focused on legal problems in designing a shareholder access rule. The panel speakers were John Coffee (Professor of Law, Columbia Law School), Joseph Grundfest (Professor of Law and Business, Stanford Law School), Robert Todd Lang (Senior Partner, Weil, Gotshal & Manges), Charles Nathan (Partner, Latham & Watkins), and Leo Strine (Vice Chancellor, Delaware Chancery Court). The final session featured concluding remarks. The speakers were Robert Clark (Harvard University Distinguished Service Professor and Professor of Law, Harvard Law School), Floyd Norris (Chief Financial Correspondent, The New York Times), and Harvey Goldschmid (Commissioner, U.S. Securities and Exchange Commission). Each session started with opening presentations by the panelists, followed by a discussion among the panelists and between the panelists and other participants in the symposium.

Fisch on Corporations and the Lawmaking Process Jill E. Fisch (Fordham University School of Law) has posted Corporations and the Lawmaking Process: The Case of Federal Express on SSRN. Here is the abstract:
    Corporate political activity has been extensively regulated since 1907, but the regulatory restrictions have had limited effectiveness. Most recently, public outcry over the Enron scandal was fueled by media reports that Enron had purchased special interest legislation through large political donations. At the same time, corporate political activity is poorly understood, and the prevailing model that describes corporations as buying political favors in exchange for campaign contributions is both inadequate and incomplete. This Article introduces an alternative, the political capital model, that focuses on the qualitative character of political activity. The Article argues that corporations develop political capital – by building experience, reputation, and relationships - that enables them to influence the political process. The Article applies this model to the political activity of Federal Express ("FedEx"). By examining FedEx's involvement in a series of regulatory reforms, the Article demonstrates how FedEx has cultivated its political capital and deployed that capital to secure favorable regulatory changes. In so doing, the Article highlights the advantages of the political capital model in explaining FedEx's success. The Article goes on to consider the extent to which the FedEx experience is typical both by comparing FedEx to its commercial competitors and by identifying several factors that are likely to be key components in explaining FedEx's decision to invest in political capital. Finally, the Article explores the significance of the differences among firms with respect to their involvement in politics. The qualitative components of the political capital model suggest that firm specific differences may be due, in part, to efficient specialization and economies of scale. In particular, the FedEx experience suggests that firm specific private gains obtained through corporate political activity may not necessarily constitute inappropriate special interest legislation, but may instead reflect subsidization of the political activity of leader firms. If such subsidies enable efficient specialization and reduce the cost of free riding by competitors, they may be more desirable than is commonly perceived. Although this Article offers merely a modest starting point for future research, the political capital model identifies key components of the political process that are outside the scope of existing research on corporate political activity, and challenges future research to incorporate these elements.

Cox on Outside Directors and Independent Counsel James D. Cox (Duke Law School) has posted Managing and Monitoring Conflicts of Interest: Empowering the Outside Directors with Independent Counsel (Villanova Law Review, Vol. 48, No. 4, p. 1077, 2003) on SSRN. Here is the abstract:
    For most of the last one hundred years, the corporate approach toward related party transactions has been they can be managed, not prohibited. The most common approach toward managing conflicts of interests is review by the board's independent directors. The well-received monitoring role for directors of public companies envisions the outside directors carrying out their responsibilities to manage related party transactions, particularly pursuant to state conflict of interest statutes. This article makes the case that the ability of the outside directors to discharge this monitoring task in the case of related party transactions with senior managers is dependent upon their being assisted by "independent" counsel (counsel with no on-going relationship with the company or its senior management). Independent counsel is not now required for the board's review of conflict of interest transactions. However, we see that in analogous conflict situations that an independent counsel is an essential element for assessing the overall independence of the outside directors' actions. Thus, selectively injecting independent counsel is advanced as a modest extension of the law governing conflict of interest transactions that will significant impact in improving the quality of the outside directors' monitoring and managing related party transactions involving senior management.

Farrelly on Genes and Justice Colin Farrelly (University of Birmingham - Department of Political Science and International Studies) has posted Genes and Social Justice: A Rawlsian Reply to Moore (Bioethics, Vol. 16, pp. 72-83, 2002) on SSRN. Here is the abstract:
    In this article, I critically examine Adam Moore's claim that the threshold for overriding intangible property rights and privacy rights is higher, in relation to genetic enhancement techniques and sensitive personal information, than is commonly suggested. I argue that Moore fails to see how important advances in genetic research are to social justice. Once this point is emphasised one sees that the issue of how formidable overriding these rights are is open to much debate. There are strong reasons, on grounds of social justice, for thinking the importance of such rights is likely to be diminished in the interests of ensuring a more just distribution of genes essential to pursuing what John Rawls calls a person's 'rational plan of life'.

Monday, December 08, 2003
Neo-Formalism Matthew Yglesias writes:
    The thing about the text of the constitution is that it's (mostly) very old, and has therefore already been the subject of a great deal of litigation. It would be mighty odd if anybody in particular thought that all of these cases had been decided correctly. Hence, if you take the text seriously, you're going to wind up overturning precedents here and there, trying to "recover" the real text from decades of wrongly decided cases. But of course not all the other justices are going to agree with you about how to read the initial text, and not all of the questions you think were wrongly decided are going to get re-litigated. The result is going to be all this legal instability that we see today where it's hard to know whether or not the things you're doing are unconstitutional (in the positive law sense that they would be ruled against by the Supreme Court) because the court is constantly reconceptualizing the positive law in an effort to make it more faithful to the text.
And Will Baude desponds:
    The trouble is, if you create a system and series of norms where all decisions are taken seriously even when they directly contravene the text, then you create a strong incentive for unvirtuous judges to totally ignore what the text says. Obviously, it's bad to have unvirtuous judges, but nobody can deny that we've had some before and may again. In other words, we want to take the text of the Constitution seriously because that's the only way we can get later generations to take our text seriously
Read both posts in full!

Felten on Alternative Compensation for Copyright Owners Ed Felten has a good report on the Harvard conference, here.

Dunbar on Fraud on the Market at Columbia At Columbia's Law and Economics series, Fred C. Dunbar - National Economic Research Associates, Inc. presents Fraud on the Market Meets Behavioral Finance.

Buel on Domestic Violence & Tort at Texas At the University of Texas, Sarah Buel (UTLaw ) presents Access To Meaningful Remedy: Overcoming Doctrinal Obstacles In Tort Litigation Against Domestic Violence Offenders.

Perry at NYU Stephen Perry is presenting at NYU today. Steve, what's your paper title?

Sanchirico on Error Chris William Sanchirico (University of Pennsylvania--School of Law & Wharton School) has posted Finding Error on SSRN. Here is the abstract:
    Commentators have expressed concern that hindsight bias may distort legal fact finding. The worry is that the fact finder, seeing that an accident has occurred, will be too quick to conclude that the accident was likely to have occurred, and thus too quick to hold defendants liable. There is good reason to believe that this form of across-person hindsight bias does affect decision making. But the application of this finding to legal process has been hampered by the failure adequately to separate across-person hindsight bias from a confounding rational use of outcome information in judging others' beliefs. This rational use arises in the case that the defendant was in a position to know and now has reason to be less than forthcoming - a case of particular interest to law. Under those conditions, rational probabilistic reasoning dictates that the fact finder, on seeing that the accident did in fact occur, increase its assessment of how likely a reasonable defendant would have thought the accident to be ex ante. The interaction between this rational use of outcome information, on the one hand, and across-person hindsight bias, on the other, may produce surprising normative implications. Hindsight bias would, for example, be beneficial if it corrected for fact finders' cognitive error in not putting outcome information to its rational use.

Sitkoff on Capital Market Efficiency Robert H. Sitkoff (Northwestern University School of Law) has posted Trust Law, Corporate Law, and Capital Market Efficiency (Journal of Corporation Law, Vol. 28, 2003) on SSRN. Here is the abstract:
    In both the publicly-traded corporation and the private donative trust a crucial task is to minimize the agency costs that arise from the separation of risk-bearing and management. But where the law of corporate governance evolved in the shadow of capital-market checks on agency costs, trust governance did not. Thus, even more than that of close corporations, the law and study of private trusts offers an illuminating counterfactual - a control, as it were - for a playful thought experiment about the importance of capital market efficiency to the law and study of public corporations. The animating idea for this essay is that many of the differences on the agency costs frontier between the public corporation and the private donative trust can be roughly attributed to their relative positions in modern capital markets and the related disparity in their residual claimants' ease of exit. Among other things, this approach reveals a correlation between the trust law model and the views of corporate law scholars who doubt the ECMH and its implications for corporate governance. The essay also discusses the use of market data for assessing breach and damages in corporate and trust litigation and for empirical evaluation of theoretical scholarly analysis in both fields. More generally, comparison of the governance of the public corporation and the private donative trust brings into view the importance of relative price efficiency for the modern approach to corporate governance.

Call for Papers: International Justice at the University of Navarra
    International Justice - Benefit Sharing with Developing Countries Workshop to be held at ISSEI 2004 2 - 7 August 2004 University of Navarra, Pamplona, Spain ------------------------------- During our two-day workshop, we would like to explore three themes: 1) Theoretical ideas and models of distributive justice that could be applied to benefit sharing with developing countries. 2) Critical and constructive comments on the Bonn Guidelines of the Convention on Biological Diversity and the Human Genome Project Ethics Committee's Statement on Benefit Sharing. 3) Explorations of the concepts of "community", "benefits", "participation" and "representation", which are essential to the practical side of benefit sharing agreements. Selected papers of this workshop will be published in a special journal issue (international, peer-reviewed). We have received funding from the European Commission to invite speakers from developing countries. Confirmed speakers are: Prof. Udo Schuklenk, South-Africa Prof. Fatima Alvarez-Castillo, the Philippines Dr. Dafna Feinholz, Mexico If you would like to apply for a fourth subsidised place for speakers from developing countries, please send a full paper by the deadline (decisions will be based on how close the paper addresses our areas of interest). All other speakers, please send an abstract of no more than 300 words to Doris Schroeder ( Deadline: 15 December 2003. More information on ISSEI can be found at This workshop will be organised jointly by Dr. Miltos Liakopoulos (Lancaster University, UK) and Dr. Doris Schroeder (Centre for Professional Ethics, Preston, UK). Please feel free to email us with any inquiries or to discuss topics.

Tillman on Presentment Seth Barrett Tillman (New Jersey District Court) has posted A Textualist Defense of Article I, Section 7, Clause 3: Why Hollingsworth v. Viriginia was Rightly Decided, and Why INS v. Chadha was Wrongly Decided on SSRN. Here is the abstract:
    I argue that the Orders, Resolutions and Votes Clause (the ORV Clause) is not a second or residual presentment clause. Rather, I propose that the original meaning of the ORV Clause was as follows: Every [final] Order, Resolution, or Vote [of a single house] to which the [prior] Concurrence of the Senate and House of Representatives may be necessary [as bicameral congressional authorization for subsequent single house action] shall be presented to the President [so that her veto might act upon both the subsequent single house action just as it acted upon the prior authorizing legislation]; and before the [subsequent single house action] shall take Effect [in conformity with the prior authorizing legislation], shall be approved by him, or being disapprove by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill. To the extent that this interpretation of the ORV Clause can be supported, it establishes that the much criticized Hollingsworth v. Virginia (1798) was rightly decided, but that INS v. Chadha (1983) was wrongly decided. This paper rejects Madison’s explanation for the meaning of the ORV Clause as reported in his Notes on the Debates in the Federal Convention. The paper largely supports the position taken based upon close textual and intratextual analysis of the many provisions of the Constitution, and by noting logical and chronological inconsistencies in Madison’s Debates.

Huang on Regulating Irrational Exuberance Peter H. Huang (University of Pennsylvania Law School) has posted Regulating Irrational Exuberance and Anxiety in Securities Markets (THE LAW AND ECONOMICS OF IRRATIONAL BEHAVIOR, Francesco Parisi and Vernon Smith, eds., University of Chicago Press) on SSRN. Here is the abstract:
    This paper analyzes the regulatory implications of irrational exuberance and anxiety in securities markets. U.S. federal securities laws mandate the disclosure of certain information, but regulate only the cognitive form and content of that information. An important and unstudied question is how to regulate securities markets where some investors respond not only cognitively to the form and content of information, but also emotionally to the form and content of information. This paper investigates that question when some investors feel exuberance or anxiety that is unjustified by cognitive processing of the available information. This paper develops the implications for mandatory securities disclosure of irrational exuberance and anxiety.

Branson on Enron Douglas M. Branson (University of Pittsburgh School of Law) has posted Enron - When All Systems Fail: Creative Destruction or Roadmap to Corporate Governance Reform? (Villanova Law Review Vol. 48, No. 4, pp. 989-1022, 2003) on SSRN. Here is the abstract:
    This article raises the unthinkable proposition (for academics at least) that Enron may have been an aberration. The Enron debacle may have been the rare case in which nine, ten or more sets of monitors and gatekeepers failed. Alternatively, as with Tyco, WorldCom, Adelphia, Rite Aid or other celebrated corporate "busts," Enron may be the handiwork of one or two well placed wrongdoers, in this case, CFO Andrew Fastow. Enron then may not be the pathway to meaningful reform at all. The article next proceeds to a critical review of Sarbanes-Oxley's principal provisions. The conclusion reached is that by and large only a few meaningful reforms have resulted, and those with significant costs (such as federalization of key aspects of corporate governance). One suggested pathway to meaningful reform would have been to take an enabling approach rather than the regulatory, even punitive, one that Sarbanes-Oxley encapsulates. The enabling approach would focus on the positive side of corporate governance, which over has improved dramatically in the United States over the last 20 years, principally through the predominance of independent directors. The article suggest several measures that could be taken to enhance the positive in corporate governance, including several lessons from the Enron board's operation that thus far have been ignored. The conclusion reached is that Enron's most meaningful contribution to our political economy is neither Sarbanes-Oxley nor the enabling reforms suggested. Enron's contribution instead is creative destruction of a different kind, namely, creative destruction of what Professor William Bratton terms the "winning culture," or what the author terms the culture of the "good deal exemption," and the countless moral hazards that those cultural viewpoints spawned.

Sunday, December 07, 2003
Legal Theory Lexicon: Conduct Rules and Decision Rules The target audience of Legal Theory Lexicon is law students, especially first year law students, with an interest in legal theory. Best of luck on your exams! Here is a very short entry to provide a very brief break from studying:
    Substantive rules of law (such as the rules of torts, contract, and property) are usually assumed to be addressed to two audiences. As conduct rules, the substantive law is addressed to everyone (citizens, officials, and noncitizens). Thus, property law tells us who has dominion over which resources. If this land is mine, then the law communicates the message that I can use my land and exclude others from its use. These very same legal rules also serve as decision rules, they tell courts how to resolve disputes. We usually assume that the content of the conduct rules are the decision rules are identical, but this need not be the case. Professor Meir Dan-Cohen of U.C. Berkeley proposed a very famous thought experiment. He asked us to imagine acoustic separation between ordinary citizens, who would only "hear" the conduct rules, and officials (such as judges), to whom the decision rules would be addressed. This leads naturally to the following thought: should decision rules and conduct rules have the same content or should they differ. And if they differ, how could the law prevent acoustic leakage, e.g. prevent ordinary citizens from learning about the content of the decision rules?
    Example? Here's a pretty clear example. Suppose that we have a conduct rule that says, "Ignorance of the law is no excuse." This might be a good conduct rule, because we want citizens to inform themselves about the content of the law, and we certainly don't want citizens deliberately insulating themselves from knowledge of the law in order to create a defense if they charged with its violation. But at the same time, we might prefer that ignorance of the law would serve as an excuse, at least some of the time, when it comes to actually convicting and punishing defendants. Punishment is expensive and injurious, and sometimes no really good purpose will be served by punishing someone who is reasonably ignorant of the law's content.
    But how can we excuse ignorance of the law without altering the conduct rule? One way to accomplish this goal would involve some obfuscation by judges. Opinions might state boldly: "Ignorance of the law is no excuse," while simultaneously excusing ignorant defendants on the ground that "knowledge of the legal status of the intentional content is part of the mental state that is an element of the crime." The first formulation is easily accessible to ordinary folks; the second is couched in language that may be opaque except to those trained in the law.
Thanks to the excellent new blog Punishment Theory for reminding me of this important topic. As a second year law student, I was given Meir-Dan Cohen's Decision Rules and Conduct rules: On Acoustic Separation in Criminal Law, 97 Harvard Law Review 625 (1984) to evaluate for publication in the Review. I still remember vividly the meeting of the articles office in which I advocated publication of the article. One editor took the position that the article should be published if it would have the same influence on legal theory as Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 Yale L.J. 16 (1913), has produced. Rather a tough standard, don't you think?

Legal Theory Calendar
    Semesters are ending, but there are still a few events in the upcoming week.
    Monday, December 8 Wednesday, December 10
      Petros Gelepithis (Kingston University) presents An Argument for the Impossibility of Human-Robotic Communication at the Centre for Philosophical Studies in London.
    Thursday, December 11
      At ANU's RSSS, Daniel Stoljar (RSSS) presents Advertisement for a Solution to the Zombie Problem. But is it mere puffery?
      At the University of San Diego, Peter Strauss is presenting in the Law, Economics, and Politics Workshop Series.

Saturday, December 06, 2003
Legal Theory Bookworm This week, the Legal Theory Bookworm recommends Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law by Allen Buchanan. Here is a precis of the book:
    This volume articulates a systematic vision of an international legal system grounded in the commitment to justice for all persons. It provides a probing exploration of the moral issues involved in disputes about secession, ethno-national conflict, "the right of self-determination of peoples", human rights, and the legitimacy of the international legal system itself. Buchanan advances vigorous criticisms of the central dogmas of international relations and international law, arguing that the international legal system should make justice, not simply peace among states, a primary goal, and rejecting the view that it is permissible for a state to conduct its foreign policies exclusively according to what is in the "the national interest". He also shows that the only alternatives are not rigid adherence to existing international law or lawless chaos in which the world's one superpower pursues its own interests without constraints. This book not only criticizes the existing international legal order, but also offers morally defensible and practicable principles for reforming it.

Download of the Week This week, the download of the week is Michael Moore and Heidi Hurd's paper, Punishing Hatred and Prejudice. Here is the abstract:
    This article undertakes a detailed examination of the justifications advanced for the national and international rush to enact and apply hate and bias crime legislation as an answer to the tragically brutal expressions of racial animosity, bigotry, homophobia, and misogyny that continue to remind the Western World of its inability to protect its citizens from those who do not share its egalitarian ideals. In undertaking this project, we seek to synthesize and critically evaluate over a decade's worth of scholarship on the wisdom of the enhanced penalties imposed by hate and bias crime legislation. We further seek to demonstrate that this literature, to date, has sadly failed to provide both an adequate moral justification and an acceptable doctrinal framework for this politically popular form of state action. The article is divided into four parts, corresponding to the four principal rationales for hate/bias crime legislation that have advanced over the past decade or more. Part I considers the "wrongdoing thesis" - the claim that the harms perpetrated by offenders who are motivated by group-hatred or prejudice represent wrongs more serious than those perpetrated by defendants who commit the same offenses with different motivations. We work through an extensive catalogue of harms that are commonly claimed to be uniquely associated with hate- and bias-motivated crimes: elevated physical and psychic injuries to principal victims; wide-spread fear within the principal victim's community; a diminished faith in the legal system and an associated instability within the larger social order; vigilante acts of retaliation by victims and their communities; the publication by such criminal acts of harmful messages corruptive of the moral order; and the associated, but independent harm of the state being complicit whenever it fails to express in law the moral outrage that such "statements" properly incite. As we demonstrate, even if social science ultimately vindicates the empirical claims made by those who propound the various wrongdoing theses, there are conceptual and moral problems that prevent these arguments from justifying the blanket sentence enhancements imposed by existing hate and bias crime legislation. Part II takes up different versions of what we call the "expressivist thesis" - the thesis that the disrespect for communities expressed by acts of group-hatred and prejudice properly invite denunciation by the state in the form of elevated criminal penalties. As we argue, either the expressivist thesis is redundant with the wrongdoing thesis, and so invites the problems articulated in Part I; or it depends upon a free-standing expressivist theory of punishment, and is, for that reason, unsustainable. Part III considers what we call the "culpability thesis" - the thesis that hate and prejudice constitute uniquely culpable mental states that justify penalties more severe than are meted out for other forms of viciousness. We demonstrate in this Part that if hate and bias are construed as culpability criteria, then hate/bias crimes are novel doctrinal inventions that are more at home within character-based theories of the criminal law that are best justified by political perfectionism, as opposed to act-based theories that are more in harmony with classic political liberalism. Finally, Part IV takes up the "equality thesis" - the thesis that the enhanced penalties of hate/bias crimes properly function to achieve a more egalitarian distribution of the risk of crime within our society, because they deter the (further) victimization of groups of citizens who already bear a disproportionate amount of our society's violence. As we demonstrate, each of the various senses that can be ascribed to this claim render it either conceptually incoherent or morally indefensible, and as such, it fails to function as a promising alternative to the theories of hate/bias crime legislation that we examine in Parts I, II and III.
Also highly recommended:

Friday, December 05, 2003
Netanel on a Use Levy & P2P On the heels of a terrific paper by Jessica Litman, comes this truly excellent paper by Neil W. Netanel (University of Texas School of Law): Impose a Noncommercial Use Levy to Allow Free Peer-to-Peer File Sharing (Harvard Journal of Law & Technology, Vol. 17, December 2003). Here is the abstract:
    Noncommercial users of peer-to-peer systems, such as Kazaa and Gnutella, should be free to distribute and modify files as they wish. But providers of services and devices the value of which are substantially enhanced by such P2P file-swapping should be charged a statutory fee - what I term the Noncommercial Use Levy ("NUL") - set as a percentage of gross revenue. Likely candidates include Internet access, P2P software and services, computer hardware, consumer electronic devices (such as CD burners, MP3 players, and digital video recorders) used to copy, store, transmit, or perform downloaded files, and storage media (like blank CDs) used with those devices. Once collected, levy proceeds would be allocated among copyright holders in proportion to the popularity of their respective works and of user-modified version of their works, as measured by digital tracking and sampling technologies. I estimate that an average levy of some 4 percent of annual retail revenues of P2P-related goods and services would be sufficient to compensate copyright holders for the lost revenues they suffer as a result of NUL-privileged activity, at least for the next 5 years. Following my description of the NUL and how it would operate, I consider some common criticisms that scholars have put forth regarding levies. These include the argument that the NUL would unfairly and inefficiently require low-volume users of copyright-protected material to subsidize both copyright owners and high-volume users. I then favorably compare the NUL with three proffered alternatives for resolving the P2P file sharing controversy. These include (1) "digital abandon," a regime in which the law accords authors neither proprietary control nor a right to receive remuneration for P2P uses of their work; (2) "digital lock-up," a regime in which proprietary copyright reaches full fruition as copyright holders use digital encryption to control all uses of their works; and (3) a regime of government compensation to copyright holders paid out of general tax revenues rather than a levy on P2P-related goods and services. My proposed NUL is not a panacea. But a balance of trade-offs favors it over the alternatives.
This is an important paper, which I urge you to read.

Brooks on Human Rights & Terrorism Rosa E. Brooks (University of Virginia - School of Law) has posted War Everywhere: Human Rights, National Security, and the Law of Armed Conflict in the Age of Terrorism on SSRN. Here is the abstract:
    Both international and domestic law take as a basic premise the notion that it is possible, important, and usually fairly straightforward to distinguish between war and peace, emergencies and normality, the foreign and the domestic, the external and the internal. From an international law perspective, the law of armed conflict is triggered only when a armed conflict actually exists; the rest of the time, other bodies of law are applicable. Domestically, U.S. courts have developed a constitutional and statutory jurisprudence that distinguishes between "national security" issues and "domestic" questions, with the courts subjecting government actions to far less scrutiny when those actions are taken in the name of national security. This article asserts that these distinctions are no longer tenable. In almost every sphere, the process of globalization has problematized once straightforward legal categories, but this is nowhere more apparent and more troubling than in the realm of armed conflict and national security. September 11 and its aftermath have highlighted the increasing incoherence and irrelevance of these traditional legal categories. Shifts in the nature of security threats have broken down once tenable distinctions between situations of armed conflict and situations of "internal disturbance" that do not rise to the level of armed conflict, between states and non-state actors, between combatants and civilians, between geographic zones in which conflict is occurring and zones in which conflict is not occurring, between temporal moments in which there is no conflict and temporal moments in which there is conflict, and between matters that clearly affect the security of the nation and matters that clearly do not. The breakdown of these once straightforward distinctions has allowed the U.S. government to argue, among other things, that detainees at Guantanamo may be held indefinitely without charge; that even U.S. citizens may be designated "unlawful combatants" by executive fiat and held indefinitely without charge or access to attorneys, and that the U.S. may kill any suspected terrorist in any state on earth at any time. In response to these arguments, many in the human rights, civil rights and international law communities have struggled to insist on the continuing viability of the law of armed conflict's traditional boundaries, since the erosion of these boundaries has had (and will almost certainly continue to have) a disastrous effect on basic rights and vulnerable populations. But the erosion of boundaries is an inescapable social fact, and this article asserts that it needs to be candidly acknowledged, rather than denied. To say that the erosion of traditional boundaries is in inescapable fact is not to minimize the degree to which it is nonetheless genuinely cause for alarm. The existence of reasonably clear boundaries between conflict and non-conflict, combatants and civilians, and "lawful" and "unlawful" belligerents is what allows us to determine which legal rules apply, and, more critically, allows us to identify people and rights meriting protection. As traditional categories lose their logical underpinnings, we are entering a new era: the era of War Everywhere. It is an era in which the legal rules that were designed to protect basic rights and vulnerable groups have lost their analytical force, and thus, too often, their practical force. In the long run, the old categories and rules need to be replaced by a radically different system that better reflects the changed nature of 21st century conflict and threat. What such a radically different system would look like is difficult to say, and this article does not attempt to describe what such a new system might look like. This article does suggest, however, that at least on an interim basis, international human rights law may provide some benchmarks for evaluating U.S. government actions in the war on terror. Unlike domestic U.S. law and the law of armed conflict, human rights apply to all people at all times, regardless of citizenship, location, and status. Although human rights law permits derogation in times of emergency, it also outlines core rights that cannot be eliminated regardless of the nature of the threat or the existence or non-existence of an armed conflict. Applying international human rights law in both domestic and international contexts would not solve all the problems created by the increasing irrelevance of other legal frameworks, but it would provide at least a basic floor, a minimum set of standards by which international and domestic governmental actions could be evaluated.

Welcome to the Blogosphere . . . to Punishment Theory, a group blog that includes Darryl Brown, Antony Duff, Claire Finkelstein, Rick Garnett, Stuart Green, Kyron Huigens, Stephen Morse, Ken Simons, and Victor Tadros. What a lineup! Bookmark this now!

Fried on Nozick at Berkeley 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.

Islamic Law & Human Rights at Oxford 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.

Laclau on the Logic of Representation at Buffalo At the University of Buffalo, Ernesto Laclau presents Empty Signifiers and the Logic of Representation with comments by Guyora Binder & Betty Mensch.

Weiner on Integration of the Civil Rights Movement at Rutgers At the University of Texas, Mark Weiner (Rutgers-Newark) presents The Multiple Integrations of the Civil Rights Movement.

Duff & Darby on Trial by Jury at SAP London 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.

Scheffler on Doing and Allowing at UNC At the University of North Carolina's philosophy series, Samuel Scheffler (Winston Distinguished Visitor) presents Doing and Allowing.

Wolff on Disadvantage at Bristol At the University of Bristol's philophy series, Jo Wolff (UCL) presents What is Disadvantage and What Should be Done About it?

Aristotle Conference in London At the University of London's Philosophy Programme, there is a one-day conference, Aristotle on Potentiality and Actuality.

Lewinsohn-Zamir on Objective Welfare I strongly recommend Daphna Lewinsohn-Zamir's paper, The Objectivity of Well-Being and the Objectives of Property Law (78 N.Y.U. L. Rev. 1669 (2003), Westlaw here, account required). Here is a taste:
    Enhancement of people's well-being is justifiably regarded as one of the major goals of the state. It is decidedly good to assist individuals to fare as well as possible. But the crucial questions, "What is well-being?" and, "Which criterion of well-being should be chosen by the state?" are very controversial and, as such, extensively debated in the philosophic literature. Three types of theories compete among themselves to be the most appropriate criterion for measuring and *1752 advancing well-being: mental state, preference, and objective list. This complex, rich issue is mostly ignored in legal writing, due to the dominance of the economic-analysis-of-law scholarship. Consequently, it is usually assumed that "well-being maximization" is tantamount to "preference-satisfaction maximization," and the latter goal is then contrasted with the potentially conflicting goal of "fairness" or "distributive justice." This Article seeks to remedy this state of affairs by drawing attention to the vast possibilities presented by the consideration of objective theories of well-being. On the one hand, preference theories suffer from grave deficiencies that cannot be overcome satisfactorily within the bounds of subjectivity. On the other hand, an objective theory of welfare may often succeed where preference theories fail. Furthermore, this Article demonstrates that careful consideration of various suggested theories of welfare-- particularly those based on the preference-satisfaction criteria--reveals that even seemingly subjective theories contain substantial objective elements. Hence, objectivity in well-being and nontrivial intervention in people's preferences cannot be avoided. The difference between an acceptable preference theory and an adequate objective theory of welfare is primarily a matter of honesty and degree.

Sentencing Law Coursebook Nora V. Demleitner , Douglas A. Berman , Marc L. Miller and Ronald F. Wright (Hofstra University, School of Law (Visiting) , Ohio State University - Michael E. Moritz College of Law , Emory University School of Law and Wake Forest University - General) have posted Sentencing Law and Policy: Cases, Statutes, and Guidelines on SSRN. Here the abstract:
    This coursebook provides materials for a 3-unit course or seminar on sentencing law. In a criminal justice system where more than 90% of cases are resolved through plea bargains, sentencing law becomes the primary legal arena for the daily work of the practicing criminal lawyer. The field of sentencing also provides a case study in the dynamics of law reform, and wrestles with profound and ancient themes of justice and the nature of law: what makes rules and procedures wise, which institutions should design and implement these rules, how much discretion the rules should (or must) allow in each case, and what impact the law will have on human lives. The book surveys common elements that operate in several different sentencing systems: the federal sentencing guidelines, state guideline systems, discretionary indeterminate sentencing, and capital sentencing. The organization of the book covers the institutions and basic design choices for sentencing systems (Chapters 1-3), the "inputs" that determine sentences for individual cases (Chapters 4-5), the "outputs" of the system, including the racial and gender patterns found in sentences (Chapters 7-9), and the procedural contexts for sentencing decisions (Chapters 6, 10, and 11). Principal materials come from many sources, reflecting the many institutions that shape and apply sentencing law. The examples from structured guideline jurisdictions - the dominant modern sentencing reform - occupy the center of attention. Because the federal system is well-developed and closely critiqued, the book devotes steady attention to that system, but also samples from many state systems. The capital materials generate revealing comparisons with non-capital sentencing practices.

Call for Papers: Law & War
    Call for Essays: Law and War Peace Review, A Journal of Social Justice Author Deadline: April 15, 2004 Guest Editor: Chad Kautzer Contributors will include Noam Chomsky The U.S. National Security Strategy adopted in 2001 maps an aggressive, unipolar vision of American empire. New interpretations of preemptive strike, imminent threat, and unlawful combatant have followed, leaving the letter of the law (of war) unchanged, while radically reinterpreting the terms to which it applies. Have jus ad bellum and international humanitarian law become mere tools of imperial aspirations, or can they yet serve the cause of a peaceful international order? Peace Review invites submissions for a special issue devoted to law in the context of war in the following three respects: 1) The development of international law’s central concepts and theories; 2) The social dimension of its institutionalization; and 3) The contemporary military and interpretive threats to the rule of law itself. Possible questions for consideration might include: How do colonial, religious, or commercial interests inscribe today’s international laws and just war theories? How have competing public and private interests contributed to the evolution of terms such as preemptive strike, imminent threat, or individual and nation-state sovereignty? What role have social movements and NGOs played in the codification of international humanitarian law and the operations of the United Nations? What role could they play in the future? How are we to conceive of the relationship between recent U.S.-led wars and the globalization of capitalist markets? Does the International Criminal Court or the concept of humanitarian intervention have a future after the Bush years? Peace Review is a quarterly, multidisciplinary, transnational journal of research and analysis, focusing on the current issues and controversies that underlie the promotion of a more peaceful world. We define peace research to include human rights, development, ecology, culture, race, gender and related issues. Our task is to present the results of this research and thinking in short (2500-3500 words), accessible and substantive essays. For writer’s guidelines or to send essay submissions by email attachment to Robert Elias, Editor or Anne Hieber, Managing Editor Or send correspondence to Peace Review, University of San Francisco, 2130 Fulton Street, San Francisco, CA, 94117. Telephone: 415-422-2910 or Fax: 415-422-5671, Attn. Elias or Hieber.

Paul on International Trade Institutions & Economic Development Joel R. Paul (University of California, Hastings College of the Law) has posted Do International Trade Institutions Contribute to Economic Growth and Development? (Virginia Journal of International Law, Forthcoming) on SSRN. Here is the abstract:
    Proponents of trade liberalization routinely defend international trade institutions as engines of economic growth that benefit everyone. How trade proponents justify trade institutions matters because their justificatory rhetoric leads to certain policy conclusions about whether it is appropriate to link trade to environmental, labor, or human rights policies. This paper examines the theory and operation of international trade law and institutions and questions whether these institutions in fact promote economic growth as proponents claim. Neither neo-liberal economic theory nor empirical studies support the claim that international trade institutions promote economic growth. To the contrary, international trade institutions are internally inconsistent and may distort economic efficiency and result in negative growth under some circumstances. To the extent that international trade institutions have promoted economic growth, they have often contributed to a growing disparity of wealth within and between the industrialized and developing countries. Trade institutions like the WTO have succeeded in coordinating policies and resolving conflict through dispute-settlement, even if they do not necessarily promote significant economic growth. For this reason, it is entirely consistent with their policy-coordination function for these institutions to promote labor, human rights, and environmental standards.

Garcia on Trade and Human Rights Frank J. Garcia (Boston College - Law School) has posted Integrating Trade and Human Rights in the Americas (INTERNATIONAL TRADE AND HUMAN RIGHTS: FOUNDATIONS AND CONCEPTUAL ISSUES, Frederick M. Abbott and Thomas Cottier, eds., University of Michigan Press, 2003) on SSRN. Here is the abstract:
    This paper analyzes the relationship between the OAS Inter-American human rights system and several regional integration systems, including NAFTA, MERCOSUR and the proposed Free Trade Area of the Americas (FTAA). Broadly speaking, there are two models for the relationship between integration systems and human rights protection: the leverage model and the incorporation model. The leverage model involves making effective participation in extrinsic human rights systems a legal or political condition of integration system membership. The incorporation model focuses on the juridical interpenetration of the two systems at many levels. This paper will focus on the leverage model, as it applies or may apply to the American hemisphere. Such inquiry involves addressing two questions: first, to what extent has membership in hemispheric integration systems been used to leverage more effective human rights protection; and second, to what extent should such leverage be developed as part of the evolution of hemispheric integration. The paper concludes, first, that the existing relationship between trade and human rights in the Americas follows the linkage model, but only to a limited extent, and primarily between trade and democracy. Linking trade to formal democracy, while desirable and to some extent successful in the hemisphere as this paper will show, is not adequate to address the range of human rights challenges facing the hemisphere. In view of the fact that the OAS Inter-American system exists as a promising legal venue for human rights protection, this paper also concludes that hemispheric efforts to strengthen the relationship between trade and human rights should focus instead on linking membership in the emerging FTAA system with effective participation in the OAS system. Since the U.S. does not even participate in the OAS system, further integration between trade and human rights in this hemisphere will therefore require strategies for overcoming U.S. resistance to the OAS system.

Nachbar on IP & Constitutional Norms Thomas B. Nachbar (University of Virginia School of Law) has posted Intellectual Property and Constitutional Norms (Columbia Law Review, Vol. 104, March 2004) on SSRN. Here is the abstract:
    The paper examines a question of general interpretive significance about the relationship between enumerated powers within the particular context of intellectual property. Specifically, the paper asks whether Congress can avoid the restrictions on its intellectual property power (such as the "limited times" requirement or the prohibition against protecting facts and consequently electronic databases) by resorting instead to other Article I powers, most notably the Commerce Clause. It is my position that the Intellectual Property Clause stands as no barrier to legislation passed pursuant to another Section 8 power. Because of the nature of a government of enumerated powers, it is impossible as a matter of text or structure to determine whether limits on one Article I power apply to the others. A review of precedent confronting overlapping Section 8 powers in other contexts leads one to a more nuanced approach: to identify the values underlying the different Section 8 restrictions and whether they are worthy of general application - whether they represent constitutional norms. What follows is an attempt to identify such a norm in the Intellectual Property Clause, as reflected by the First Amendment, present in Supreme Court precedent, or demonstrated by the history surrounding the Intellectual Property Clause's inclusion in the Constitution. Once one closely examines the history of intellectual property and American trade regulation, it becomes clear that no such generally applicable norm is at work in the limits on Congress's intellectual property power. The economics of trade regulation, demonstrate that, far from unique, the intellectual property power is economically indistinguishable from other forms of trade regulation - any benefit conferred by means of an exclusive right could be conferred in some other way, such as through taxation or industry regulation. Furthermore, finding such a limit would require a rejection of our modern understanding of the commerce power and would turn the concept of enumerated powers on its head. In the end, "exclusive rights" are merely another form of regulation that Congress may, and frequently does, use to confer economic rents on favored special interests. The Constitution, it will come as no surprise, offers very little protection against rent-seeking.
Nachbar & I had an email exchange on this topic some months ago. I look forward to reading this ASAP!

Thursday, December 04, 2003
Stein on Utilitarianism and the Disabled Mark S. Stein (Yale University - Department of Political Science) has posted Utilitarianism and the Disabled: Distribution of Resources (Bioethics, Vol. 16, pp. 1-19, 2002) on SSRN (but there is a $19 charge for this paper). Here is the abstract:
    Utilitarianism is more convincing than resource egalitarianism or welfare egalitarianism as a theory of how resources should be distributed between disabled people and nondisabled people. Unlike resource egalitarianism, utilitarianism can redistribute resources to the disabled when they would benefit more from those resources than nondisabled people. Unlike welfare egalitarianism, utilitarianism can halt redistribution when the disabled would no longer benefit more than the nondisabled from additional resources. The author considers one objection to this view: it has been argued, by Sen and others, that there are circumstances under which utilitarianism would unfairly distribute fewer resources to the physically disabled than to nondisabled people, on the ground that the disabled would derive less benefit from those resources. In response, the author claims that critics of utilitarianism have fallaciously exaggerated the circumstances under which the disabled would benefit less than the nondisabled from additional resources. In those limited circumstances in which the disabled really would benefit less from resources, the author argues, it does not seem unfair to distribute fewer resources to them.
I would love to read the paper--without paying $19 for the privilege. In the meantime, I am curious about the "exaggeration" claim in the abstract. Frequently, the disabled require large resource expenditures to achieve the conditions for full participation in social life & also frequently, these same resources might produce greater utility if allocated otherwise. Copy anyone?

Welcome to the Blogosphere . . . to Cliopatria, a group blob by historians:
    Timothy Burke Oscar Chamberlain Kenneth Heineman Robert "KC" Johnson Ralph E. Luker Mary Catherine Moran

Silver on Class Action Blackmail I highly recommend Charles Silver's recent article, "We're Scared to Death": Class Certification and Blackmail, 78 N.Y.U. L. Rev. 1357 (2003) (available on Westlaw here, account required). Silver offers a very careful analysis of the thesis that class actions lead to so-called blackmail settlements. One of the strenghths of Silver's article is his precise analytic dissection of the different versions of the blackmail argument--which Silver shows rely on different and inconsistent assumptions. The version of the blackmail thesis that I have always thought was plausible occurs when: (1) the defendant is a corporation, (2) if plaintiff wins, the damage award were affect control (i.e., who will manage the corporation), and (3) the plaintiff's probability of prevailing on the merits is very low. In these circumstances, there is arguably an agency problem. Shareholders with diversified portfolios should be risk-neutral and hence prefer management to roll the dice, but management does not have a diversified portfolio (You can only be CEO of one corporation at a time, and if you lose your company to a class action, your prospects of getting another CEO gig may effectively be zero, but in all likelihood settling a class action will have no significant effects on the rents you can extract from shareholders.) In the bargaining game for settlement, the plaintiff (or rather class counsel) knows that the three conditions are satisfied & knows about the agency problem described. Hence, the plaintiff can hold out for a settlement that exceeds the expected values of the claims. (Silver describes this view and cites to an unpublished paper by J.B. Heaton, Settlement Pressure 29 (Feb. 2002)). Silver offers a nuanced and to my mind fair assessment of this argument--which he frames as the question whether corporate class action defendants act "as if" they were risk averse--and then makes the following argument:
    If they are risk averse, does their fear of losing class actions at trial provide a good reason for recognizing a claim of duress? In particular, is it a good reason to use litigation procedures that generate less fear rather than more?
    Affirmative answers to these questions have radical potential. If litigants' risk tolerances should guide judges' choices among available procedures, personal injury plaintiffs may be entitled to many accommodations. First, these plaintiffs typically are human beings, not corporations, so evidence of risk aversion applies to them straightforwardly. Second, the worst-off of these plaintiffs have severe injuries and correspondingly large compensation claims. The latter represent sizeable fractions of their wealth--perhaps their largest assets--and entail nondiversifiable risks. Risk aversion is likely to have serious consequences in this setting. Third, empirical studies show that plaintiffs with large personal injury claims often settle cheaply and identify risk aversion as the likely cause.
Very interesting points. One possible difference is that personal injury plaintiffs are individuals & hence we might way they "own" their risk aversion & hence should be responsible for it. This leads naturally to another point made by Silver:
    The possibility of discouraging risk aversion by rewarding risk neutrality raises an important question: Why do efficiency-minded jurists like Easterbrook and Posner want to insulate defendants from the consequences of risk aversion instead of punishing them for making economically irrational decisions? Markets promote efficiency by disciplining inefficient behavior. This is one reason why liability insurers collect billions of dollars in premiums every year: They can handle risks and claims better than policyholders. Discipline also should promote risk-neutral decisions in class action lawsuits, which in turn should promote efficient deterrence of wrongdoing and settlement of claims. By treating defendants' aversion to risk as a reason for altering procedures, Easterbrook and Posner discourage corporate defendants from acting "as if" they are risk neutral. They may even cause "as if" risk-averse behavior to spread by rewarding companies that demonstrate their susceptibility to threats.
But in the case of corporations, there is an agency problem. The risk aversion (as I've specified it above) is embedded in the context of the conflict of interests between risk averse management and risk neutral stockholders. Does this agency problem justify a adjustment in the general procedures for class actions? I don't know. I do think that Silver's careful analysis moves the ball forward and he has changed the way that I think about these problems.
I learned greatly from Silver's article, which I recommend highly. Much of this is out of my area--so please take my comments as speculative suggestions.

Bilgrami on Identity Politics at Penn Akeel Bilgrami (Philosophy- Columbia) presents Liberaism and Relativism in the face of Indentity Politics at the Penn's law and philosophy series today. The first paragraph starts thus:
    "for over three decades now, secular liberalism has been confronted by a certain brand of politics which we have taken to describing, without too much precision, as "identity" politics. This paper will try to take philosophical stock of this confrontation. To do so, it will first spend some time setting the stage with some rather abstract conceptual props: three frameworking concepts in particular, 1) internal reasons 2) Identity and 3) weakness of will.

Weiler on a Constitution for Europe at NYU 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.

Jolls on Debiasing at Yale At Yale's Legal Theory Workshop, Christine Jolls (Harvard Law) presents Debiasing Through Law.

Young on Structural Injustice at Princeton At the Princeton Political Philosophy Colloquium, Iris Marion Young will present Responsibility and Structural Injustice.

Davis on Slavery at FSU At Florida State University, Adrienne Davis (University of North Carolina) presents Re-thinking Slavery.

McAdams at the University of Michigan At the University of Michigan's Law and Economics series, Richard McAdams is presenting.

Frankel at Boston University At Boston University, Tamar Frankel is presenting today.

Norman on the Meaning of Life at Herfordshire 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.

Stanley on Interest Relativity and Knowledge at MIT At MIT's philosophy series, Jason Stanley (University of Michigan) presents Context, Interest-Relativity, and Knowledge.

Molot on Judicial Role Jonathan T. Molot's An Old Judicial Role for a New Litigation Era recently appeared at 113 Yale L.J. 27 (2003) (Westlaw here, account required). Here is a taste of this very stimulating paper:
    Judges called upon today to review settlements in mass tort suits--and to approve settlement-only class actions in particular--face a problem analogous to that which judges confronted, and largely overcame, in reviewing agency regulations. In both contexts, judges have been asked to evaluate an agent's actions on behalf of a principal--rather than to resolve traditional disputes between adversaries--and have found themselves proceeding without the litigant input or legal criteria they enjoy in a traditional adversarial setting. In administrative law, judges responded to this problem by promoting participation by affected parties and establishing procedural and substantive criteria for judicial review. They encouraged someone to intervene on behalf of absent principals and supplied those intervenors with procedural and substantive grounds upon which to challenge agency action. In this manner, judges structured their review of administrative decisions to resemble their traditional adjudicative role, albeit at significant expense. Similar responses are available in contemporary class action practice, some of which have been explored by scholars and some of which have not. Given the strong parallels between the problems that judges face when reviewing agency decisions and class settlements, we should seriously consider the parallel avenues available to address these problems and bring contemporary judicial behavior back into line with the judiciary's traditional adjudicative role. When it comes to ensuring that parties, rather than judges, frame the issues in disputes, the administrative law analogy serves to reinforce proposals that already have been advanced by civil procedure scholars. As noted in Part I, scholars have proposed a variety of reforms to improve representation for absent class members. Some would change fee structures so as to align attorney and client interests more closely, some would rely on guardians ad litem or rival plaintiffs' attorneys to second-guess class attorneys and challenge settlements on behalf of absent class members, and some would assign multiple class attorneys to represent different subclasses of plaintiffs with conflicting interests. Other scholars have *111 explored a variety of ways to empower class members to protect themselves. These proposals would give class members additional powers to object to proposed settlements, to opt out of those settlements, and even to take splinter groups of plaintiffs with them. Although, as Part I explored, each of these proposals would be costly, the administrative law analogy supports implementing them nonetheless. Given the lengths to which we have gone to give affected parties both the ability and incentive to challenge administrative action in court, it is hard to see why we should not also encourage dissident class members and attorneys to challenge class settlements in court. When it comes to giving judges the substantive criteria they need to review class settlements, the administrative law example not only provides support for reform, but also provides concrete guidance on how that reform *112 should be structured. Our best hope of making the judicial role in class settlements resemble the judiciary's traditional adjudicative role is by modeling judicial review of class settlements after the substantive record review judges undertake in administrative law. Judges should ask not simply whether settlements are "fair, adequate, and reasonable"--the rather vague standard they currently apply--but also whether proposed settlements (1) reasonably implement the applicable substantive law regime (à la Chevron) and (2) have reasonable evidentiary support in the record (à la State Farm). In order to secure judicial approval, a settlement's proponents would have to show that the settlement appropriately protects the plaintiffs' substantive law rights, and would have to construct a record of evidence to support their conclusion. Dissident class members and attorneys would be able to defeat a proposed settlement on either ground, and, as in the administrative process, would have an opportunity to contribute to the evidentiary record. Indeed, to facilitate the construction of the record, dissidents would have to be given access to any pre-settlement discovery conducted by the parties and allowed some opportunity to conduct additional discovery themselves.

Margalioth on Mandates Yoram Y. Margalioth (Tel Aviv University - Law School) has posted The Many Faces of Mandates: Beyond Traditional Accommodation Mandates and Other Classic Cases (San Diego Law Review, Vol. 40, No. 645, Spring 2003) on SSRN. Here is the abstract:
    The paper compares the two main social policy tools used by society to enhance the welfare of its workers: mandated benefits and tax financed programs. It shows that mandated benefits could involve economic inefficiency (excess burden) identical to that of taxes; and that they often have perverse redistribution effects. According to the literature that followed Lawrence Summers' seminal paper on mandated benefits, mandates are assumed to produce less distortion than tax financed programs. In this paper I stress the fact that a critical assumption behind this idea is that tax-financed programs have a particular design, namely, that participation in them is not limited to employees. The Article goes beyond what is considered to be the classic case in terms of the distortions discussion (mandated health insurance vs. tax financed government provided health care) to situations in which exclusion of non-employees seems plausible and sensible. This Article also goes beyond "traditional" accommodation mandates by looking at several thought provoking cases such as overtime and pension vesting (which turn out to be just like accommodation mandates, but with distributive effects running in the opposite direction potentially). Interestingly, a number of real-world mandates disproportionately target or benefit a particular group (e.g., men) that is a discrete demographic group that could be identified in advance. Nevertheless this type of accommodation mandates differs from those discussed by Christine Jolls's seminal work on Accommodation Mandates in that they are unintended by the policymaker and might redistribute wealth in the opposite direction of what society usually views as desirable. Unlike the mandates that Jolls discussed that could hurt their intended beneficiaries, if restrictions on wage and employment differentials were not binding, these mandates are ones in which, precisely if restrictions on wage and employment differentials bind, groups to whom we would normally want to redistribute (women, lower compensated employees) will be made worse off.

Tiersma on the Meaning of Sex Peter Tiersma (Loyola Marymount University) has uploaded Did Clinton Lie?: Defining 'Sexual Relations' (Chicago-Kent Law Review, Forthcoming) to SSRN. Here is the abstract:
    With the impeachment proceedings against President Clinton now well behind us, we can step back and consider the matter somewhat more dispassionately. The focus of the impeachment hearings was that Clinton perjured himself and engaged in obstruction of justice. I limit my observations to the question of whether he committed perjury, and in particular whether he lied when he denied having a sexual relationship with a White House intern, Monica Lewinsky. When Clinton was first asked during a deposition whether he had ever had an "affair" or "sexual relationship" with Lewinsky, he quite explicitly denied it. He was asked about his denials during a second legal proceeding - his testimony before a grand jury - when he was again placed under oath. Clinton insisted that his denials were true based on the ordinary understanding of these terms. In other words, he appealed to usage of that phrase in the speech community. His lawyers during the impeachment made similar arguments on the basis of dictionary definitions. Because there seems to be a great deal of variation in how people use this phrase, I will argue that Clinton's defenders were largely correct on this point. The lawyers examining the president were obviously aware of the dangers of using such a slippery term, so they introduced a definition of "sexual relations" into evidence during the deposition and then asked Clinton whether, under that rather convoluted definition, he had engaged in "sexual relations" with Lewinsky. Clinton again denied having done so, but was later forced to admit to at least some sexual activity with the former intern. During the subsequent grand jury proceedings he was also interrogated on his denials of having "sexual relations," as defined. His defense consisted of an extremely literalistic dissection of the words of the definition. I will suggest that a large part of the problem is that the definition had largely been textualized. A result of textualization is that the resulting text invites a very literal and sometimes even hypertechnical interpretation, and Clinton was only to happy to comply.
Doesn't it all hinge on what the word "did" means?

Eisenberg and Macey ask whether Anderson was Different Theodore Eisenberg and Jonathan R. Macey (Cornell Law School) have posted Was Arthur Andersen Different? An Empirical Examination of Major Accounting Firms' Audits of Large Clients on SSRN. Here is the abstract:
    Enron and other corporate financial scandals focused attention on the accounting industry in general and on Arthur Andersen in particular. Part of the policy response to Enron, the criminal prosecution of Andersen, eliminated one of the few major audit firms capable of auditing many large, public corporations. This article explores whether Andersen's performance, as measured by frequency of financial restatements, measurably differed from that of other large auditors. Financial restatements trigger significant negative market reactions and their frequency can be viewed as a measure of accounting performance. We analyze the financial restatement activity of approximately 1,000 large, public firms from 1997 through 2001. After controlling for client size, region, time, and industry, we find no evidence that Andersen's performance significantly differed from that of other large accounting firms.

Licht on Corporate Governance Reform Amir N. Licht (Interdisciplinary Center Herzliyah - Radzyner School of Law) has posted Legal Plug-Ins: Cultural Distance, Cross-Listing, and Corporate Governance Reform (Berkeley Journal of International Law, Forthcoming) on SSRN. Here is the abstract:
    This paper considers the extent to which countries or companies can successfully borrow foreign corporate governance elements with a view to improving their own governance system. Companies in particular theoretically can rent other countries' governance system through cross-listing. At bottom, the question is whether foreign legal elements can be "plugged-in" neatly into an existing corporate governance system, be compatible with it, and produce the expected improvements. Advances in different branches of psychology dealing with cultural orientations and cognitive styles suggest that the greater the cultural distance between the source and target countries the more difficult it would be to implement such a strategy for corporate governance reform. To demonstrate these points in detail, this paper considers South Korea's corporate governance system and its culture as a reference case.

Beaulac on Vattel Stephane Beaulac (Faculty of Law, University of Montreal) has posted Emer de Vattel and the Externalization of Sovereignty (Journal of the History of International Law, Vol. 5, pp. 237-292, 2003) on SSRN. Here is the abstract:
    The paper examines the history of the mental-social phenomenon that is the word 'sovereignty' and how it was utilised to develop public international law. It focuses on the seminal work of Emer de Vattel, 'Droit des Gens,' published in 1758. The argument is that 'sovereignty,' which had been introduced and used in relation to internal governance, was transformed in order to create a legal scheme for the new reality of the society of nations. Thus the purpose for which Vattel resorted to 'sovereignty' was to carry out its externalization and hence transpose this idea-force from the internal plane to the international plane. With this new 'external' sovereignty, the ruling entity was now to enjoy exclusive power to govern, which entailed being the sole representative of the people both internally and externally, and also meant that it could not be submitted to any foreign state or to any higher law externally. Vattel's utilisation of the word 'sovereignty' has had an extraordinary effect on the shared consciousness of society, including that of the emerging international society. The impact of the externalization of 'sovereignty' is still very much present today in the way international relations are conducted within the Westphalian state system as well as in the way public international law regulates such affairs, which is often called the 'Vattelian' legal system.

Williams on Originalism Norman Williams (Willamette University - College of Law) has posted The Failings of Orginalism: The Federal Courts and the Power of Precedent (UC Davis Law Review, January/February 2004) on SSRN. Here is the abstract:
    The debate over the constitutionality of court of appeals rules designating their unpublished opinions as non-precedential and forbidding citation to those opinions has focused exclusively on the historical foundation for such treatment of opinions by courts. The Eighth Circuit in Anastasoff v. United States and the Ninth Circuit in Hart v. Massanari reached different conclusions regarding the constitutionality of their respective no-precedent rules, but their methodological approaches were the same. Both courts asked whether the Framers' understanding of Article III and the "judicial power" vested in the federal courts would uphold or condemn such rules. I demonstrate that, contrary to these courts' suppositions, history cannot provide the authoritative answer to the constitutionality of the no-precedent rules. The Framers said precious little (comparatively speaking) about the new federal courts to be created by the new Constitution, and what little they did say was confined largely to the composition and jurisdictional reach of the new courts, not to the manner in which the judges would discharge their interpretive duties. The few times that the Framers mention the role of precedent, they did so in the context of discussions of other matters, such as the Supreme Court's equity powers. At best, their cursory and passing references to the role of precedent signify an expectation among select Framers, who had been schooled in the common law tradition, that the courts would consult prior judicial opinions in deciding cases; they do not reflect any broadly shared consensus regard the role of precedent in adjudication, much less any agreement that the Constitution itself compels the use of and reliance upon precedent as a constituent of the "judicial power." More generally, my analysis shows that, in assessing the constitutionality of a whole host of procedural rules adopted by the federal courts, the original understanding of Article III and the "judicial power" provides little insight into the constitutionality of those rules. Hence, originalism provides an incomplete and ultimately inconclusive analytical approach for resolving questions regarding the procedures and practices of the federal courts. Moreover, originalism's default rule - that, unless the Framers condemned the practice, it is constitutional - has no applicability to rules adopted outside democratic, public-regarding processes, such as is the case with court rules adopted by the federal judges themselves.

Licht on Corporate Governance 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.

Wednesday, December 03, 2003
The Night of the Living Dead . . . or why we should read Marx today. Brian Leiter has a wonderful post on the contemporary relevance of Marx. Here is a taste:
    Particularly important, in my view, remains the Marxian theory of ideology, which predicts that the ruling ideas in any well-functioning society will be ideas that promote the interests of the ruling class in that society, i.e., the class that is economically dominant. By the “ruling ideas” we should understand Marx to mean the central moral, political and economic ideas that dominate discussion in the mass media and in the corridors of power in that society. The theory is not peculiar to Marx, since the “classical realists” of antiquity like the Sophists and Thucydides advanced essentially the same theory: the powerful clothe their pursuit of self-interest in the garb of morality and justice. When Marx says that, “The ideas of the ruling class are in every epoch the ruling ideas” (The German Ideology) and that, “Law, morality, religion are to [the proletariat] so many bourgeois prejudices, behind which lurk in ambush just as many bourgeois interests” (The Communist Manifesto), he is simply translating in to Marxian terms the Sophistic view “that the more powerful will always take advantage of the weaker, and will give the name of law and justice to whatever they lay down in their own interests” (that's WKC Guthrie's gloss on the Sophistic view).
Leiter recommends Jonathan Wolff's book, Why Read Marx Today? (2002). Let me add two other recommendations. First, G. A. Cohen's Karl Marx's Theory of History: A Defence (1980) and second Jon Elster's Making Sense of Marx (1985). If you read Cohen and Elster, you will get a lively sense of very important debates about the underlying causes of historical change--debates that, in my opinion, are very important for legal theorists with an interest in explaining legal change.

Speech Act Theory & Overruling The November issue of the Yale Law Journal has a very interesting student note titled How Judges Overrule: Speech Act Theory and the Doctrine of Stare Decisis, 113 Yale L.J. 493 (2003). (Westlaw here, account required). Here is a taste:
    Judges must be given the ability to overrule; otherwise, we would be stuck with a decision even if it was wrongly decided and times and thinking had changed. In the recent case of Lawrence v. Texas, the Court employed many of the rhetorical devices identified in this Note to overrule the controversial case of Bowers v. Hardwick. Lawrence held that a Texas statute making it a crime for two persons of the same sex to engage in intimate sexual contact violated the Due Process Clause. The Lawrence Court applied two of the Casey factors--that Bowers had not induced detrimental reliance and that the case itself had caused uncertainty. It cited the dissenting opinion of Justice Stevens in Bowers as support for the present decision. It employed elements of implicit overruling by asserting that cases subsequent to Bowers had already weakened Bowers's foundation. It even enacted the performative fallacy of "saying makes it so" by asserting its superior intelligence in authoritative tones. Whether or not Lawrence was rightly decided, the Court requires the flexibility of overruling. The Justices are not trying to trick us when they use these rhetorical devices. They are not trying to enact bad law through sleight-of-hand semantics. Rather, these devices allow the Justices to achieve the near impossible--the ability to overrule effectively when necessary, even as the very legitimacy on which they rely to give their rulings force is threatened. Judges may be liars, but in this paradoxical world of law in which we live, they have no other choice. They must lie, or the fiction of legitimacy that we have so carefully constructed will come crashing down, bringing with it the entire judicial system as we know it. We should thank our lucky stars, then, that they do their job so well.

Patterson on Interpretation at Oxford Frequent readers of Legal Theory Blog know that one of the most interesting events of the week is likely to be the Tuesday paper at the Oxford's Jurisprudence Discussion Group. This week, the regular Tuesday meeting is moved to Wednesday. Dennis Patterson (Rutgers, Camden-Law & New Brunswick-Philosophy) presents Interpretation in Law. Here is a taste:
    I argue that interpretation is a “second-order” feature of legal practice. In other words, I want to disagree with those who make the case for interpretation as a basic or fundamental feature of legal practice.1 While interpretation is certainly an important element of legal practice, it is an activity that depends upon widespread agreement among legal practitioners with respect to most features of legal practice. In short, interpretation is important but it is not foundational.
And from later in the paper:
    In explicating understanding, interpretation is a non-starter. Even if we were to grant the intepretivist the premise that all understanding involves interpretation, the intepretivist position collapses on its own terms. If all understanding is interpretation, then all interpretation is itself in need of interpretation. That is, if understanding a rule, symbol or sign is a matter of an act of interpretation standing between the interpreter and the thing interpreted, there is no reason why this same logic should not apply to the interpretation itself.
And finally,
    But where does this leave interpretation? If understanding – i.e., knowing how to engage in a practice – is exhibited in action, what role, if any, is there for interpretation? Again, Wittgenstein is instructive here. When it comes to interpretation, we can see that interpretation depends upon understanding – i.e., unreflective action – already being in place. We should, as Wittgenstein argues, “restrict the term ‘interpretation’ to the substitution of one expression for another.” Interpretation is a second-order activity, one that not only depends upon understanding already being in place but an activity that is actuated by a breakdown or failure in understanding. In short, interpretation is a therapeutic, not foundational, activity.
I always learn from Patterson's papers.

Mahoney on the Value of Judicial Independence at Northwestern 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.

Stanko on Government Targets & Criminal Justice at Oxford 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.

Pogge at Tulane At Tulane's Center for Ethics and Public Affairs, Thomas Pogge will be speaking.

Araiza on Section 5 Power William D. Araiza (Loyola Marymount University) has posted The Section 5 Power and the Three-Tiered Structure of Equal Protection on SSRN. Here is the abstract:
    This Article addresses the current controversy over the scope of Congress' power to enforce the Equal Protection Clause via the Section 5 power. Recent Section 5 cases have engendered much criticism, some of it focused at the Court's seeming disrespect for Congress' factfinding capabilities, some of it on the "congruence and proportionality" standard the Court has enunciated, and the most aggressive of it arguing that Congress should have a greater role in determining constitutional meaning. This Article takes a different tack. It focuses not on what power Congress should have vis-a-vis the Court, but rather, on what the Court has actually said about equal protection. Specifically, it argues that many equal protection decisions don't represent abstract statements of equal protection law; instead, they reflect the outcome of decisional methods that speak to underlying constitutional concerns but which don't themselves yield statements about what the Equal Protection Clause means. Thus, less equal protection "law" exists than is commonly assumed. And if that's the case, more room exists for Section 5 legislation. The Article focuses on the rational basis standard. It argues that the rarity of judicial strike-downs under that standard does not mean that almost all classifications so reviewed satisfy the Equal Protection Clause. Instead, it suggests that that standard is better understood as a statement by the court that it often doesn't have the capability confidently to identify violations of the Clause's underlying rule against unreasonable classifications. The implication under the latter view is that the decision upholding the law does not itself amount to a declaration of constitutional law, which Congress is therefore obliged to respect when the latter seeks to enforce the Clause. The Article argues that the Court's own explanations and application of the rational basis standard support this judicial-restraint characterization. It then argues that the reasons for that restraint apply with much less force to Congress, given the latter's institutional characteristics. The Article then applies these insights to the Court's explanation, in City of Cleburne v. Cleburne Living Center, of why it would not grant suspect class status to the mentally retarded. Cleburne's explanation allows a comparison of Congress' and the Court's abilities to determine whether a classification runs a high risk of being constitutionally unreasonable. The Article then confronts a final theoretical problem: If most rational basis cases don't reflect true declarations of equal protection law, and if rational basis cases comprise the vast majority of equal protection claims, then where is the law in the Equal Protection Clause? The Article suggests that lurking in the rational basis cases is a fundamental principle of equal protection law - namely, the rule against animus. The last major part of the Article considers if, and how, this anti-animus rule could cabin would otherwise seem to be a very broad Section 5 power. The Article concludes by speculating about what this analysis means for Section 5 enactments addressing gender and race. In particular, the Court's gender jurisprudence implies a significant role for congressional input via the Section 5 power. The Article also speculates whether this analysis illuminates the scope of Congress' power to address substantive rights under the Due Process or other clauses of the Fourteenth Amendment.
Araiza workshopped this paper at USD recently, and a most interestind discussion ensued. Highly recommended!

Ghosh on Deprivatizing Copyright Shubha Ghosh (State University of New York - Law School) has posted Deprivatizing Copyright on SSRN. Here is the abstract:
    My thesis is that while James Madison saw in copyright a coincidence of private interest and public good, historically copyright, with its roots in the Statute of Anne, originated and has developed as a devolution of the sovereign's role in cultural production. This devolution has over time lead to an expansion of private rights over various forms of expressive activities, including literary works, musical works, software, architectural works, and as I emphasize in this article, model legislation, religious texts, and encryption technology. The contemporary debate over copyright reflects this devolution that has been accelerated through decades of deregulation in such diverse areas as the airlines, telecommunications, financial services, law enforcement, pollution control, education, and income distribution policy. Hence, the title of this article: the time has come to recognize both copyright law as a form of privatization and the need to deprivatize copyright in order to realize the public good that Madison envisioned.

Conference on the Laws of War (Today through Friday) 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

Madigan on Self-Identifying Speech James P. Madigan (University of Chicago - Law School) has posted Questioning the Coercive Effect of Self-Identifying Speech (Iowa Law Review, Volume 87, No. 1) on SSRN. Here is the abstract:
    In Boy Scouts of America v. Dale, the United States Supreme Court held that the Boy Scouts had a First Amendment right to expel an assistant Scoutmaster because he was a homosexual. The Court upheld an associational right to interpret broad terms like "moral" and "clean" in the Scout Oath and bylaws to mean "not gay." The Court also upheld a speech right to expel gays: their participation would force the group to express a pro-homosexuality message, which the Scouts wished to avoid. Dale is the doctrinal intersection between the freedom from coerced speech and the freedom of expressive association. This article suggests that those two freedoms are really one in the same. There exists no crisp methodological distinction between the claim that a group is being forced to espouse some message that it does not wish to convey and the claim that a group is being forced to espouse a message that is different from the message the group has chosen to convey. The best way to approach expressive association claims is not to artificially distinguish them from the freedom from compulsory speech. Instead, the former First Amendment right is derivative of the latter. Taken together, these rights insulate individuals and groups from bearing messages with which they disagree. Yet there is no First Amendment right to discriminate based solely on status traits like race, sex, or sexual orientation. Because those traits are not expression, being forced to associate with individuals does not force a group to send a message affirming those individuals' status. The article traces the freedom from government-coerced speech case law and demonstrates how it can be applied to the Scouts' claim in Dale. The argument is that self-identifying oneself as gay, though speech, is not sufficient to render an association with openly gay people as a compelled affirmation of homosexuality. In fact, self-identifying speech is indeterminate, and it is expressed for a variety of reasons in ordinary life. Associating with a person who self-identifies as gay, then, does not coerce a group like the Scouts to say anything; nor does it require the group to change its organizing principles, since those say nothing explicit about homosexuality. Thus, the First Amendment should not insulate the Scouts from anti-discrimination laws.

Black and Cheffins on Comparative Outside Director Liability Bernard S. Black and Brian R. Cheffins (Stanford Law School and Faculty of Law, University of Cambridge) have posted Outside Director Liability Across Countries on SSRN. Here is the abstract:
    In a companion paper (Bernard Black, Brian Cheffins, and Michael Klausner, Outside Director Liability,, we discuss the “vigilance duties” of American outside directors under various bodies of law (including company, securities, bankruptcy, labor, and environmental law). We point out that, once procedural rules, indemnification, directors’ and officers’ (D & O) insurance and the settlement incentives of affected parties are taken into account, outside directors of U.S. public companies who are acting in good faith almost never face “actual liability” (i.e. end up out of pocket). In this paper, we consider whether this pattern exists on a cross-border basis and conclude that it does. The analysis focuses primarily on Britain and Germany. We find that, as compared with the United States, there are various differences with respect to the legal details. Still, the window of actual personal liability is roughly equivalent: extremely small, but present. The paper then seeks to verify how robust this pattern is in cross-border terms by offering a summary of the position in two additional common law jurisdictions (Australia and Canada) and two additional civil law jurisdictions (France and Japan). It transpires that in these countries, as with the U.S., Britain and Germany, honest outside directors face a narrowly open window of actual liability. The fact that the pattern of outside director liability is replicated across borders implies that it is sensible public policy to expose honest outside directors to a tiny (though real) risk of actual liability. After all, if the situation was otherwise, how could so many countries get it wrong? Still, there is a nagging question: if the prospect of ending up out-of-pocket is highly remote, what will motivate outside directors to “do the right thing”? The concluding section of the paper identifies various candidates, and highlights how cross-border analysis potentially sheds light on their disciplinary capabilities. Nevertheless, it falls to our companion paper to offer a detailed consideration of the policy implications of the liability pattern this paper has identified.

Nance on Admissibility of Expert Testimony Dale A. Nance (Case Western Reserve University - School of Law) has posted Reliability and the Admissibility of Experts (Seton Hall Law Review, Vol. 34) on SSRN. Here is the abstract:
    Modern law on expert testimony insists, as a condition of admissibility, that the asserted expertise be determined by the trial judge to be reliable. Reliability is usually characterized as a dichotomous attribute of evidence, as if expertise were either reliable or unreliable. This article argues that making progress in the development of meaningful and appropriate restrictions on the admissibility of expert testimony requires that we abandon this conceptualization and understand the implications of endorsing a gradational notion of reliability in which evidence can be more or less reliable and in which a comparative assessment of reliability is prominent. Consistent with Supreme Court precedent and available empirical evidence about jury decision-making, this article recommends that, in deciding whether to exclude expert testimony, the court's comparative reliability inquiry should focus on whether more reliable expertise is reasonably available to the proponent, rather than on the question of whether the jury will overvalue the expertise at the offered level of reliability. A rudimentary outline of how this would work is provided.

Margalioth on Tax Incentives for the Promotion of Developing Countries Yoram Y. Margalioth (Tel Aviv University - Law School) posts Tax Competition, Foreign Direct Investments and Growth: Using the Tax System to Promote Developing Countries (Virginia Tax Review, Vol. 23, Forthcoming) on SSRN. Here is the abstract:
    I propose to use tax incentives to attract foreign direct investments (FDI) to developing countries to promote growth, and explain what practical and conceptual changes in the tax systems of developing as well as developed countries (introducing a notion of inter-nation equity) should be made to make this work. Such a proposal could be justified on equity (redistribution) as well as efficiency grounds, being an exception to the usual tradeoff between the two considerations. The motivation for writing this paper stems from the following facts: (a) in spite of transfers of well over $1 trillion from developed to developing countries over the past 50 years, the gap is widening as many poor countries fail to experience economic growth; (b) according to "the new growth theories" endogenous technological progress is the engine of growth; (c) nevertheless, the standard advice of international bodies to developing countries continues to be limited to: more savings and more schooling; (d) nearly all of the world's technological progress originates in about 20 leading countries; (e) foreign direct investments (FDI) could transfer technology from developed to developing countries that could have spillover effects promoting growth in developing countries; (f) little implementation of the "new growth theories" was done in the legal literature; (g) no implementation was done in the field of law and development and tax policy.

Bake on Constitutional Theory Thomas E. Baker (Florida International University - College of Law) has posted Constitutional Theory in a Nutshell on SSRN. Here is the abstract:
    The purpose and function of this article is to provide the intelligent novice a beginner's guide to the considerable body of scholarly writings about the theory of American constitutional law. This article is all about trying to make some sense of in-class discussion and out-of-class readings in treatises and law reviews of a peculiar dialect of legalese that might be called "con law prof talk." Constitutional theory helps us to master our subject. It helps us to understand Supreme Court decisions and helps us to cope with the elaborate and often conflicting opinions of the Justices. It allows us to distinguish between a good argument and a bad argument. Constitutional theory helps us to understand where an argument is coming from and where it might take us. It helps us to see the big picture. We better understand how a doctrine came to be and how it might evolve. We see how different doctrines are related and how they fit into the overall organization of constitutional law. Constitutional theory allows us to talk about our subject with each other. It is the patois that constitutional law professors write and speak to other professors and to their students. If we manage to gain some perspective from the vantage of constitutional theory, we will better understand constitutional law. At least, that is what a con law prof would tell you while sober. This article provides a nutshell description of the leading theories and identifies some of the leading theorists on the Constitution. The unit of currency here is the academic law review article, not the Supreme Court decision. The citations here provide illustrative examples of the vast body of literature. The discussion provides preliminary sketches of an intellectual landscape that is vast and often foreboding to the beginner. This article is organized around three basic interpretative questions: Who has the authority to interpret the Constitution? What are the legitimate sources of meaning for interpreting the Constitution? How is the Constitution interpreted within different theoretical approaches? The discussion then briefly identifies some of the basic tenets of the prominent contemporary schools of legal philosophy about the Constitution: liberal theory; conservative theory; feminist theory; critical race theory; and postmodern theory. Finally, a somewhat self-consciously introspective conclusion will ask rhetorically: does theory matter? (The answer is a faux-Zen bit of con law prof talk: "It depends ....")

Hall on Business Method Patents Bronwyn H. Hall (University of California at Berkeley) has posted Business Method Patents, Innovation, and Policy on SSRN. Here is the abstract:
    The trickle of business method patents issued by the United States Patent Office became a flood after the State Street Bank decision in 1998. Many scholars, both legal and economic, have critiqued both the quality of these patents and the decision itself. This paper discusses the likely impact of these patents on innovation. It first reviews the facts about business method and internet patents briefly and then explores what economists know about the relationship between the patent system and innovation. It concludes by finding some consensus in the literature about the problems associated with this particular expansion of patentable subject matter, highlighting remaining areas of disagreement, and suggesting where there are major gaps in our understanding of the impact of these patents.

Tuesday, December 02, 2003
Legal Theory--The Movie Well, at least the screenplay for Legal Theory: The Movie!

Baker on the Voice of the People Lynn A. Baker (University of Texas Law School) has posted Preferences, Priorities, and Plebiscites on SSRN. Here is the abstract:
    This Essay discusses a recent "populist" critique of plebiscites: that they "cannot be trusted to reflect the voice of the people accurately or meaningfully." At the center of the critique are two concerns: that previous discussions of plebiscites have been based on a too narrow understanding of "what it means to hear the voice of the people," and that "single-issue direct democracy lacks a mechanism for reflecting voter priorities among issues." The Essay examines both claims and ultimately finds them unpersuasive. The Essay concludes with an examination of the related claim that the mere availability of direct democracy distorts the "voice of the people" as expressed through candidate elections and representative lawmaking, and concludes that representative lawmaking need not be exclusive.
Highly recommended!

Bainbridge on Disney In the wake of Roy Disney's resignation, Stephen Bainbridge has a really fine post on the failures of the Walt Disney Co.'s Board of Directors. Here is a taste:
    The core problem of corporate governance is reconciling the need to preserve the discretionary authority of the board of directors with the need to hold boards accountable for how they exercise that authority. The long-term problem at Disney has been that virtually every mechanism we have for holding boards accountable has failed. Director independence failed because the board has been comprised of nominally independent folks who in fact were cronies of Eisner or know-nothing ceremonial directors. Shareholder activism failed because it never made a serious dent in the board's complacency. Litigation failed because the board was willing to pay zillions to Ovitz, Katzenberg, etc.... SOX and the other post-Enron reforms failed because Eisner is so good at boardroom politics that he was able to use even those reforms to further entrench himself. We don't have a lot of tools left.

A Seat at the Bargaining Table I recently blogged Jessica Litman's paper Sharing and Stealing, quoting this passage:
    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.
Ernest Miller responds:
    I don't believe that the fact that you file-share gives you any more moral or political claim to a seat at the copyright bargaining table. Copyright is about issues of culture and free speech. I think that is a sufficient basis for a strong moral and political claim for every citizen to have a seat at the copyright bargaining table. Prof. Litman certainly didn't mean that only file-sharers have a right to be at the bargaining table, but the impression given is that file-sharers somehow have privileged status. Sixty million people can't be wrong is the oft-heard phrase. Yes, they can. A stronger moral claim to be part of the bargaining process can be made by those who boycott the artists whose representatives attack innovation and fair uses, rather than those who merely desire "free music."
Miller is right--the mere fact that there are 60 million users of file sharing programs does not, by itself, entite them to a seat at the table. But I read Litman's comment a bit differently than did Miller. In particular, I was thinking of Litman's excellent book, Digital Copyright: Protecting Intellectual Property on the Internet--a major theme of which is that the interests of content consumers have not been represented in the behind-the-scenes bargaining processes that have shaped the copyright statutes in the United States. The 60 million users of file sharing programs are consumers of IP. If copyright legislation will emerge from a bargaining process among interest groups, then consumers in general and file sharers in particular ought to be represented if we want to avoid a legislative process that aims at enhancing the rent-seeking opportunities of content owners.
A more difficult question is how to get consumers a seat at the table. There is, of course, a huge collective action problem. It is all well and good to discuss the moral and political claims of all citizens, but file sharers have a concrete interest and may even be politically engaged by the issue. As I read Litman, it is those characteristics that single out the 60 million as a politically relevant group.

Leiter's Advice for Academic Job Seekers Brian Leiter has sound advice & good information for those seeking jobs in law schools or philosophy departments.

Course Websites Eszter Hargittai blogs on the trend towards password protecting course web sites over at Crooked Timber. Here is a taste:
    Five years ago when a few savvy instructors rushed to integrate the Web into their teaching and put their syllabi online the idea exchange so crucial to academia was alive and well in the teaching realm of our work. A few years later, witness how various password-protected courseware adopted by so many campuses is making it increasingly impossible to see others’ teaching materials. Sure, some people may not want to share their syllabi, but I suspect many wouldn’t mind. Regardless, the increasing proliferation of these services makes the teaching side of our work less and less visible to a wider audience. So while blogs may be opening some aspects of teaching, courseware is closing others.
I would like to endorse Hargittai's suggestion that we all make a special effort to post public versions of our syllabi--even class web pages are otherwise closed to the public.

Bernstein on Article 2 at Northwestern 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.

Schwartz at Chicago At the University Chicago's Law and Economics Series, Alan Schwartz (Yale Law School) is presenting.

Baade on the Texas Supreme Court at UT At the University of Texas Hans Baade presents The Post-Civil War Texas Supreme Court.

Piper on the Patentability of Medical Diagnostic Methods At Oxford's IP Seminar, Tina Piper presents The Unpatentability of Medical Diagnostic Methods: A Promise and its Perils.

Nolan on Rylands v. Fletcher at Oxford At Oxford's Private and Commercial Law Discussion Group, Donal Nolan presents The Distinctiveness of Rylands v Fletcher.

Vexler on Berlin's Failure to Ground LIberalism at Oxford At Oxford's Ockham Society, Vladislav Vexler (Oxford) presents Why Isiah Berlin Failed to Ground Liberalism.

Vandall on Casino Liability for the Social Costs of Gambling Frank J. Vandall (Emory University - School of Law) has posted Winning At Craps: Are Casinos Vulnerable To State Suits For Social Costs? – A Preliminary Analysis (Managerial and Decision Economics, 2003) on SSRN. Here is the abstract:
    "Winning at Craps" takes the theory used in the tobacco suits and asks whether casinos might be liable for social costs in suits by the states. The cause of action in nuisance, the defense of assumption of risk, cause in fact and proximate cause are evaluated. Policy arguments dealing with the legality of gambling, addiction and taxation are considered.

Zick on Constitutional Empiricism Timothy Zick (St. John's University - School of Law) has posted Constitutional Empiricism: Quasi-Neutral Principles and Constitutional Truths (North Carolina Law Review, Vol. 82, December 2003) on SSRN. Here is the abstract:
    This Article describes and analyzes "constitutional empiricism," a trend, instituted by the Rehnquist Court, which is characterized by judicial reliance in constitutional review on empirical and scientific data, conventions, and processes. The Court has historically relied upon traditional sources, such as text, structure, and history, to interpret constitutional powers and rights. In the continuing search for neutrality and objectivity, however, the Court has recently turned not only to social science and other empirical data, which have become common sources of interpretation in constitutional cases, but also to the precepts and methods of scientific and empirical inquiry. Constitutional empiricism is a method of constitutional interpretation which seeks to imitate scientific inquiry. The Court purports, for example, to be able to distinguish, by reference to empirical observation, "real" from sham legislative predicates. It now routinely empirically tests these predicates as if they were legislative hypotheses, predictions, theories, and falsifiable causal claims. Beyond this empirical testing of legislative predicates, empiricism is also manifested in the Rehnquist Court's efforts to quantify constitutional norms found in provisions as disparate as the Due Process Clause, the Establishment Clause, and the Cruel and Unusual Punishments Clause, among others. Thus, for example, the constitutionality of punitive damages awards is determined by reference to newly announced due process ratios; the validity of vouchers depends in large part upon an "Establishment Equation"; and whether execution of the mentally retarded is "cruel and unusual" depends upon the "direction of change" observed in state legislative outputs. Drawing upon debates in the philosophy of science discipline, the Author argues that constitutional empiricism does not provide long-sought neutral methods and principles for constitutional interpretation. Empiricism is based upon a host of subjective choices that affect not only which questions will be answered empirically, but also the collection, categorization, and ultimate interpretation of data. Thus, the precepts of empiricism do not, as would appear, function as a set of "neutral principles." In fact, the Author argues, far from propelling constitutional interpretation into the twenty-first century, empiricism has been utilized, thus far, to draw attention away from a return to the sort of formalism and conceptualism that characterized early eras of constitutional interpretation. More generally, the Author contends that empirical methods are ill-suited to the discovery of constitutional meaning. Because it filters evidence, fails to provide standards for separating "good" empirical results from "bad" results, and demands that hypotheses be legally "correct," constitutional empiricism does not advance constitutional knowledge in the same manner that empirical methods advance scientific knowledge. Perhaps even more disturbing, however, the Author argues that finding constitutional truths empirically threatens to further compress an already narrow constitutional discourse.
And here is a bit more from the text:
    Is science essentially positivist and value-free, revealing empirically determinate facts? Is it possible, as positivists believe, to find an objective truth in the empirical “facts” of the matter? If so, a naturalist turn in constitutional law might present a plausible path to interpretive objectivity. Or, as Thomas Kuhn and others have claimed, is science interest- and culture-bounded, an intrinsically imperfect endeavor revealing only socially constructed facts? Is empirical data, as interpretivists insist, inseparable from the biases and paradigms of its observers? Constitutional empiricism, with its emphasis on the proof of “real” predicates and its reliance on mathematical functions, directly implicates this long-standing debate.
For an article that purports to apply philosophy of science to constitutional method, I found Zick's article surprising dated in its treatment of the philosophy of science. This is, nonetheless, an interesting and provocative piece.

Field on Judicial Review of Copyright Examination Thomas G. Field Jr. (Franklin Pierce Law Center) has uploaded Judicial Review of Copyright Examination to SSRN. Here is the abstract:
    The article urges that judicial deference to the Copyright Office's validity determinations (positive or negative) should be influenced less by the three jurisdictional contexts (one collateral, two direct) in which they may be challenged than by evident support for its position and whether that support is legal or factual. Minimally, I hope to initiate an overdue discussion of such matters.

Gilson versus Lipton and Rowe Martin Lipton and Paul K. Rowe (Wachtell, Lipton, Rosen & Katz and Wachtell, Lipton, Rosen & Katz) have posted Pills, Polls, and Professors: A Reply to Professor Gilson (The Delaware Journal of Corporate Law, Vol. 27, No. 1, pp. 1-55, 2002). Here is the abstract:
    In the fifteen years since Unocal Corp. v. Mesa Petroleum Co., the Delaware courts have developed a comprehensive legal framework for corporate control contests that has led to predictability in corporate governance and furthered the fundamental values of corporation law. Academic criticism of the Delaware model persists, however, reflecting continuing adherence to the efficient market hypothesis and, more broadly, an unexplained academic preference for market transactions over elections as the means of resolving control contests. A recent example of such criticism, exemplified by Professor Gilson's "Unocal Fifteen Years Later (And What We Can Do About It)," advocates reversing the course of Delaware takeover law since 1985, and particularly urges the validation of shareholder bylaws that dismantle a "poison pill." This article defends the key choices of the post-Unocal regime of Delaware law. The article first reviews the events that gave birth to the Delaware framework, then summarizes recent attacks on the Delaware model, and finally demonstrates the jurisprudential and practical deficiencies of the criticism. As the article shows, the academic critics propose abandonment of a tested and successful balance notwithstanding the complete absence of evidence indicating that the Unocal compromise has harmed corporate governance, damaged shareholder welfare, or impeded economically desirable transactions. The article concludes that there is no reason to depart from the well-reasoned and well-understood Unocal rules.
And Ronald Gilson (Stanford) has posted Lipton and Rowe's Apologia for Delaware: A Short Reply (The Delaware Journal of Corporate Law, Vol. 27, No. 1, pp. 37-57, 2002). Here is Gilson's abstract:
    Three themes animate Martin Lipton and Paul Rowe's thoughtful response to my critical evaluation of Unocal's fifteen-year history. First, they maintain that affording shareholders a primary role in the governance of takeovers depends on a commitment to the stock market's informational efficiency. Second, they claim that allowing shareholders to amend or repeal a poison pill ignores empirical evidence that the existence of a poison pill is associated with higher takeover premiums. Third, they assert that the Delaware General Corporation Law (DGCL) reflects an implicit mega-principle that assigns control over takeovers to managers. This short reply corrects Lipton and Rowe's misunderstanding of the importance of market efficiency in assessing the efficiency of a primary role for shareholders in takeover decision making; suggests that the impact of a poison pill on takeover premiums depends entirely on what a court will allow a target company to do with its pill; and, finally, complicates Lipton and Rowe's argument that the structure of the DGCL implies a primary takeover role for the board.

Garvey on Mercy and Atonement in Death Penalty Commutations Stephen P. Garvey (Cornell Law School) has posted Is it Wrong to Commute Death Row? Retribution, Atonement and Mercy (North Carolina Law Review, Vol. 82) on SSRN. Here is the abstract:
    Is it a morally permissible exercise of mercy for a governor to commute the death sentences of everyone on a state's death row, as Governor Ryan recently did in Illinois? I distinguish three different theories of mercy. The first two theories locate mercy within a theory of punishment as retribution. The first theory treats mercy as a means by which to achieve equity. As such, this theory is not really a theory of mercy; it is instead a theory of justice. The second theory treats mercy as a genuine virtue independent of justice. In particular, mercy is understood as an imperfect obligation. But such a theory cannot, I argue, justify mass commutations. Mercy so understood comes at the cost of doing justice. As such, at some point short of the last commutation the demands of mercy must yield to those of justice. The third theory, in contrast to the first two, locates mercy within a theory of punishment as atonement, not in relationship to a theory of punishment as retribution. This theory of mercy, which treats mercy as a means by which to preserve the possibility of eventual atonement between the offender and the family of the victim, can, I suggest, provide a plausible and morally attractive basis for permitting, though not requiring, the commutation in the name of mercy of the death sentences of every inmate on death row.

Beale on Corporate Tax Shelters Linda M. Beale (Illinois) has posted Putting SEC Heat on Audit Firms and Corporate Tax Shelters: Responding to Tax Risk with Sunshine, Shame and Strict Liability (Journal of Corporation Law, Vol. 29, 2004) on SSRN. Here is the abstract:
    In passing Sarbanes-Oxley, Congress missed an opportunity to address the impact on auditor independence and corporate governance of the tax services provided by auditors to reporting companies and their executives. Although the SEC's adopting release for auditor independence rules suggests that audit committees should not approve auditor tax services for transactions that lack a business purpose, the only non-audit tax service that the rules unambiguously prohibit is auditor representation of audit clients on tax issues in court proceedings. This Article argues that the SEC's approach fails to respond adequately to the multidisciplinary expansion of audit firms. In particular, this Article contends that the inadequacy of audit committees' information about audit firms hinders their ability to perform key functions of selecting auditors and approving non-audit tax services. Similarly, directors likely have insufficient information about a reporting company's tax risks to permit effective monitoring of internal tax and accounting functions or company participation in potentially abusive tax transactions. Those information asymmetries also leave investors without tax risk information that would otherwise factor into investment decisions. To address these problems, this Article urges the SEC to ban auditor provision of certain tax shelter services. These rules need not invent a separate, SEC-generated definition of problematic tax shelters. They can simply adopt by cross-reference the reporting categories for corporate tax shelters established in the IRS's recently finalized corporate tax shelter regulations. The Article also proposes two types of internal tax risk disclosure, also based on the IRS reporting categories, to enhance company directors' decisionmaking. The audit firm tax risk profile and reporting company tax risk profile would provide objective information to directors about audit firm and reporting company promotion of, and participation in, aggressive tax transactions. As an additional benefit, the profiles would counter the tendency of auditors to acquiesce in promoters' analysis of aggressive tax transactions. Finally, the Article proposes certain public disclosure based on these tax risk profiles, and a series of strict liability penalties to deter non-disclosure and ensure adequate review.

Monday, December 01, 2003
Conference Announcement: Equal Justice in the West at UNLV
    CONFERENCE ANNOUNCEMENT PURSUING EQUAL JUSTICE IN THE WEST FEBRUARY 20-21, 2004, BOYD SCHOOL OF LAW, UNLV 2004 marks the fiftieth anniversary of *Brown v. Board of Education* and the fortieth anniversary of the Civil Rights Act of 1964. Often overlooked as a major site for civil rights activism, the western United States presents an especially rich and complex study in equality and civil rights law. In recognition of the landmarks of 1954 and 1964, this conference brings together leading historians, legal scholars and activists to discuss the multiple dimensions of equal justice and to examine aspirations for equal justice in the new century in light of the western region's ethnic and racial diversity, contested borders, and history of conquest and migration. The conference will take place at the Boyd School of Law on the UNLV campus in Las Vegas, Nevada. The conference will run from 8:30 a.m. to 5:30 p.m. , with a reception from 5:30-7:30 on Friday, February 20, 2004 , and from 9:00 a.m. to 3:00 p.m. Saturday, February 21, 2004. Confirmed speakers include: Prof. Annette Appell, Boyd School of Law--UNLV,Prof. Margalynne Armstrong, Santa Clara University School of Law, Prof. Devon Carbado, UCLA School of Law, Prof. David Cruz, University of Southern California Law Center,Prof. Adrienne Davis, University of North Carolina School of Law, Dr. Michael Green, Community College of Southern Nevada, Prof. Bill Hing, UC Davis School of Law, Dean Joan Howarth, Boyd School of Law--UNLV, Dean Kevin R Johnson, UC Davis School of Law, Prof. Sylvia Lazos, Boyd School of Law--UNLV, Dr. Patricia Limerick, University of Colorado, Center for the West, Prof. Spencer Overton, George Washington Univ. Law School, Ms. Eva Paterson, Executive Director, Equal Justice Society, Dr. Willard Rollings, University of Nevada-Las Vegas, Dr. Quintard Taylor, University of Washington, Prof. Gerald Torres, University of Texas--Austin, Dr. Beverly Wallace, University of Nevada--Law, Prof. John Valery White, Louisiana State University Law Center On Friday afternoon, February 20, there will be a discussion led by community activists who were involved in the struggle for civil rights in Las Vegas and Nevada during the 1950's-1960's: Former Governor Michael O'Callahan, The Rev. Donald Clarke, The Hon. Michael Douglas, Ms. Ruby Duncan, the Hon. Joseph Neal, and Ms. Sarah Knight-Preddy. The panel will be followed by a reception for all participants and attendees. The subjects of the papers presented will include: the history of civil rights in the West and in Nevada, African American migration to the West, Alien land laws and modern property disputes, Native Americans and land disputes, race and voting rights in the West, immigration law in the 21st century, gender and sexual orientation in the West, children's rights, building alliances for equal justice, and African American women in Nevada. Boyd School of Law is presenting this conference as a service to the community, legal scholars, and the legal profession. There is no charge for attendance, except for those registering for Nevada CLE credit. For information, contact Prof. Lynne Henderson,, or Ms. Kim Vangeel,

Viet Dinh on the Padilla Case Randy Barnett points to this article in the Los Angeles Times, recounting the criticism that Viet Dinh (formerly the head of the Office of Legal Policy) has made in public of the incarceration of Jose Padilla. Kudos to Viet Dinh!

Special Interest Groups & the Politics of Judicial Selection Byron York's The Hill piece on the Democratic memos on judicial selection has prompted a reply from Rick Hasen. Rick is right: there is nothing per se wrong with close collaboration between Senate Democratic Staffers and special interest groups regarding judicial appointments. If there is a problem here, it is the content of the interaction. This kind of lobbying is part of the increased politicization of the judicial selection process, and it is further evidence that respect for the rule of law and concern for judicial virtue is not high on the agenda of the Senate.

O'Connor on Statutory Construction Gary O'Connor is the author of the fine blog, Statutory Construction Zone. Now he has an article posted on SSRN: Restatement (First) of Statutory Interpretation. Here is the abstract:
    This article argues that the American Law Institute should promulgate a "Restatement of Statutory Interpretation." The article compares statutory interpretation to the law of contracts, and uses the Restatement of Contracts as a model for its proposal. The article argues that a Restatement would avoid the biggest disadvantages of a recent proposal for "Federal Rules of Statutory Interpretation" (in the June 2002 Harvard Law Review). That is, it would not require congressional action and it would not raise any separation-of-powers concerns. In addition, such a Restatement could apply to the interpretation of both state and federal statutes; could have advantages that are similar to other Restatements - i.e., clarity, uniformity, and conservation of judicial resources; could be more flexible to adapt to particular jurisdictions; could serve as a bridge between scholarly work and judicial practice; and could provide a useful baseline for scholarly and judicial analysis of statutory - interpretation issues. At the very least, a Restatement of Statutory Interpretation could have the salutary effect of focusing attention on areas of agreement rather than just areas of disagreement, on possibilities rather than just problems.

Twenty Questions with Richard Posner Get the answers while they are hot over at How Appealing!

Weekend Update On Saturday, the Download of the Week was Matt Adler's new paper on fear and cost-benefit analysis. Also on Saturday, the Legal Theory Bookworm recommended Heidi Hurd's Moral Combat. On Sunday, the topic of the Legal Theory Lexicon was virtue ethics. Finally, the Legal Theory Calendar presented a roundup of talks, workshops, and conferences for this week.

Schiff on Alterity at Chicago 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.

Preuss on Comparative Constitutionalism at the University of Chicago 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.

Grajzl & Murrell on Politicians at George Mason At George Mason's Philosophy, Politics and Economics series, Peter Grajzl & Peter Murrell (Economics/IRIS, University of Maryland Professions) present Politicans and Institutional Reforms.

Nagin-Brown on Brown v. Board at Northwestern 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.

Hurd & Moore on Hate Crimes Michael Moore & Heidi M. Hurd (University of Illinois at Urbana-Champaign - College of Law) has posted Punishing Hatred and Prejudice on SSRN. Here is the abstract:
    This article undertakes a detailed examination of the justifications advanced for the national and international rush to enact and apply hate and bias crime legislation as an answer to the tragically brutal expressions of racial animosity, bigotry, homophobia, and misogyny that continue to remind the Western World of its inability to protect its citizens from those who do not share its egalitarian ideals. In undertaking this project, we seek to synthesize and critically evaluate over a decade's worth of scholarship on the wisdom of the enhanced penalties imposed by hate and bias crime legislation. We further seek to demonstrate that this literature, to date, has sadly failed to provide both an adequate moral justification and an acceptable doctrinal framework for this politically popular form of state action. The article is divided into four parts, corresponding to the four principal rationales for hate/bias crime legislation that have advanced over the past decade or more. Part I considers the "wrongdoing thesis" - the claim that the harms perpetrated by offenders who are motivated by group-hatred or prejudice represent wrongs more serious than those perpetrated by defendants who commit the same offenses with different motivations. We work through an extensive catalogue of harms that are commonly claimed to be uniquely associated with hate- and bias-motivated crimes: elevated physical and psychic injuries to principal victims; wide-spread fear within the principal victim's community; a diminished faith in the legal system and an associated instability within the larger social order; vigilante acts of retaliation by victims and their communities; the publication by such criminal acts of harmful messages corruptive of the moral order; and the associated, but independent harm of the state being complicit whenever it fails to express in law the moral outrage that such "statements" properly incite. As we demonstrate, even if social science ultimately vindicates the empirical claims made by those who propound the various wrongdoing theses, there are conceptual and moral problems that prevent these arguments from justifying the blanket sentence enhancements imposed by existing hate and bias crime legislation. Part II takes up different versions of what we call the "expressivist thesis" - the thesis that the disrespect for communities expressed by acts of group-hatred and prejudice properly invite denunciation by the state in the form of elevated criminal penalties. As we argue, either the expressivist thesis is redundant with the wrongdoing thesis, and so invites the problems articulated in Part I; or it depends upon a free-standing expressivist theory of punishment, and is, for that reason, unsustainable. Part III considers what we call the "culpability thesis" - the thesis that hate and prejudice constitute uniquely culpable mental states that justify penalties more severe than are meted out for other forms of viciousness. We demonstrate in this Part that if hate and bias are construed as culpability criteria, then hate/bias crimes are novel doctrinal inventions that are more at home within character-based theories of the criminal law that are best justified by political perfectionism, as opposed to act-based theories that are more in harmony with classic political liberalism. Finally, Part IV takes up the "equality thesis" - the thesis that the enhanced penalties of hate/bias crimes properly function to achieve a more egalitarian distribution of the risk of crime within our society, because they deter the (further) victimization of groups of citizens who already bear a disproportionate amount of our society's violence. As we demonstrate, each of the various senses that can be ascribed to this claim render it either conceptually incoherent or morally indefensible, and as such, it fails to function as a promising alternative to the theories of hate/bias crime legislation that we examine in Parts I, II and III.
Both Moore and Hurd's work is always careful and deep. Highly recommended!

Baldwin on Right Regulation Robert Baldwin (University of London - Department of Law) has posted Is Regulation Right? on SSRN. Here is the abstract:
    Most of us think it proper to study regulation but it is harder to say how regulation can be carried out properly. Regulators, indeed, seem to be on a hiding to nothing - they are routinely savaged in the press, they are seldom informed that they have got it right and hardly ever told what a balanced or successful regime of regulation would like. It is accordingly worth pausing to consider why regulators have such a rough ride, whether they can ever get it right, what sort of future they can look forward to.

Klarman on the History of Race and Rights Michael J. Klarman (University of Virginia School of Law) has posted Race and Rights, 1920-2000 on SSRN. Here is the abstract:
    This essay, which is a contribution to the Cambridge History of Law in America, Volume 3 (1920-2000), summarizes the Supreme Court's racial jurisprudence from 1920 to the present. The essay's primary interpretive focus is on situating the Court's decisions in the social and political context of the times and on evaluating the consequences - direct and indirect - of the rulings. The essay concludes by deriving some general lessons from this history: the extent to which the Supreme Court systematically favors the interests of racial minorities, the circumstances under which Court rulings are likely to prove efficacious, and the extent to which such decisions are likely to deviate from popular opinion.

Steinberg on Short Form Mergers in Delaware Marc Steinberg (Southern Methodist School of Law) has posted Short-Form Mergers in Delaware (The Delaware Journal of Corporate Law, Vol. 27, No. 2, pp. 489-504, 2002) to SSRN. Here is the abstract:
    This article analyzes the ramifications of the Delaware Supreme Court's decision in Glassman v. Unocal Exploration Corp. that limited a minority shareholder's remedy in the short-form merger context normally to that of appraisal. This decision stands in marked contrast to the invocation of the entire fairness test that applies in parent-subsidiary long-form mergers. Nonetheless, important issues remain outstanding after Glassman, including the continued critical role of adequate disclosure, the determination of fair value, the viability of the "loss state remedy" theory, a parent corporation's increased use of the tender offer as a means to consummate a short-form merger, and the availability of appropriate relief, including rescissory damages, when fraud is perpetrated in the short-form merger setting. While applauding the Delaware Supreme Court's decision in facilitating the effectuation of short-form mergers, and hence in providing increased assurance of commercial certainty, Professor Steinberg posits that the Delaware courts' keen scrutiny with respect to the adequacy of disclosure in this context is crucial in order to provide minority shareholders some meaningful degree of protection.

Harcourt on Racial Profiling Bernard E. Harcourt (University of Chicago - Law School) has uploaded Rethinking Racial Profiling: A Critique of the Economics, Civil Liberties, and Constitutional Literature, and of Criminal Profiling More Generally (The University of Chicago Law Review, Vol. 71, Fall 2004) to SSRN. Here is the abstract:
    New data on highway stops and searches from across the country have spawned renewed debate over racial profiling on the roads. The new data reveal consistently disproportionate searches of minority motorists, but, very often, an equal or lower general success rate - or "hit rate" - associated with those searches. Economists are developing new models of racial profiling to test whether the data are consistent with policing efficiency or racial prejudice, and argue that equal hit rates reflect that the police are maximizing the success rate of their searches. Civil liberties advocates are scrutinizing the same data and, in most cases, reaching opposite conclusions. They argue that equal hit rates merely reflect similar offending patterns by race and thus that the disproportionate searches are racially biased. Meanwhile many constitutional commentators decry racial profiling on the highways as "plainly unconstitutional," while courts draw technical legal distinctions to easily dispose of civil suits alleging racial profiling on the roads. The debate over racial profiling on the highways is becoming increasingly empirical, technical, and engaged. It is also focusing increasingly on the issue of policing efficiency. The problem is, the debate is asking the wrong question and tracking the wrong statistic. The key question is not whether racial profiling maximizes the success rate of searches, and the key statistic is not the comparative hit rate by race associated with those searches. Instead, the key question for purposes of the empirical, policy, and constitutional analyses is: What are the conditions under which it is justifiable to use race in policing? The key statistics, it turns out, are the comparative elasticities of offending to policing and the relative offending rates of the different racial groups. When we pose the right question properly, it becomes clear that both sides of the debate have it wrong: the use of race in police searches is neither plainly unconstitutional nor simply efficient. Racial profiling on the highways can be justified as an effective law enforcement tool or, from a constitutional perspective, as a narrowly tailored policing technique that promotes a compelling governmental interest in law enforcement if the following three conditions are satisfied: (1) racial profiling has a long-term negative effect on the profiled crime, (2) while increasing the efficient allocation of police resources, (3) without producing a ratchet effect on the profiled population. These three specific conditions will only be satisfied in certain identifiable situations of comparative elasticity and offending as between racial groups. Under these narrow conditions, race can constitutionally be used in policing to advance a traditional law enforcement interest in combating crime. There may be other non-law enforcement interests that warrant using race in policing as well. There may be a compelling interest in having a prison population that reflects more accurately the demographic distribution of the offending population, or even of the population as a whole. There may be a compelling interest in combating crimes committed against historically disadvantaged groups. But with regard to the traditional law enforcement interest of fighting crime, race can only properly be used under these three narrow conditions. Race in this criminal justice context should not be treated differently than in other contexts, such as education or employment. If racial profiling satisfies the three narrow conditions, then opposition to racial profiling should be based on the grounds of affirmative action: because of this country's institutional history of racism, or in order to achieve a more balanced carceral population, or for other compelling reasons, the police should endeavor to minimize the minority representation in prison by profiling white offenders. Conversely, if racial profiling does not satisfy any one of the three conditions, then racial profiling should be conditioned on compensating innocent minority motorists who are searched for wasting their time, for diminishing their dignity, and for inflicting emotional harm. If one of the conditions is not satisfied, innocent minority motorists are being used for other purposes - for example, to increase search success rates regardless of a ratchet effect - and they should be compensated for the taking. As an empirical matter, it is fair to speculate, drawing reasonable inferences from other data sources, that minority motorists may have slightly lower elasticity of offending to policing because of diminished job opportunities and other market alternatives, and slightly higher offending rates because of drug trafficking patterns. As a result, racial profiling on the roadways may increase the overall costs to society, including the amount of profiled crime, and likely produces a ratchet effect on the profiled population, resulting in a greater disproportion of minority arrests or negative contacts with the police over and above any possibly higher offending rate. This is going to have significant repercussions on minority motorists: it is likely to more unevenly distribute criminal records, supervision, and post-punitive collateral consequences, and to significantly boost the public perception that minorities are drug users and drug dealers. Racial profiling on the highways, accordingly, is poor crime policy and, because of the ratchet effect, is not narrowly tailored to the governmental interest in law enforcement. Given that no federal or state agency has attempted to establish the three narrow conditions under which race could properly be considered in policing, the practice of racial profiling on the highways should be considered presently unconstitutional. The important point is, however, that racial profiling on the highways is presently unacceptable not because of any per se constitutional bar on using race in police searches, but rather because of the mathematics of criminal profiling. The central problems with racial profiling - possible adverse long-term effects on the profiled crime and probable ratchet effect - are problems about criminal profiling in general, not about race. The same problems may infect any type of criminal profiling, whether of minorities for drug possession, of the wealthy for tax evasion, of single mothers for welfare fraud, or of white males for domestic terrorism or serial murder. To be sure, the ratchet effect is most disturbing when it plays on race, as well as gender, social or family status, class, or wealth. The ratchet effect violates a core principle of punishment theory, namely that anyone who is committing the same crime should face the same likelihood of being caught, and that race, gender, class, or status should not affect that equation. But both the ratchet effect and the long-term effect on the profiled crime are phenomena that may undermine any scheme of criminal profiling. In this sense, the debates over racial profiling on the highways should make us reexamine our views on the larger question of criminal profiling more generally.