Legal Theory Blog

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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, June 30, 2004
Volokh Ranks the Justices on Free Speech Eugene Volokh has a very interesting post entitled Which Justices Have the Broadest (and Narrowest) Views of Free Speech?. Kennedy is broadest; Breyer is narrowist. Reading Eugene's nuanced and intelligent post got me thinking about the assumption, standard in political science, that a unidimensional left-right ideology line captures almost all of the variance among the justices. Is free speech an exception? Any political scientists out there willing to enlighten me?

Baude on Thomas & Scalia Split The New Republic Online today has a column by Will Baude (Crescat Sententia) entitled Brothers in Law. Here's a taste:
    Given the widely held perception of Thomas as an unserious justice who leans on Scalia for intellectual guidance, it probably surprised many Court watchers to see the justices parting ways on two key decisions during the last week--yesterday's decision striking down the Child Online Protection Act and Monday's decision in Hamdi v. Rumsfeld. But it shouldn't have come as a surprise at all. That's because the widely held myths about Thomas are largely false: He is neither a knee-jerk conservative nor Scalia's yes-man. Rather, he has carved out a distinct jurisprudence as an advocate of textualism, a style of reading laws and constitutions in which words are taken at face value rather than interpreted in historical context or mitigated by practical considerations. There are notable ideological differences between Scalia and Thomas. Scalia, for instance, takes a narrower view of free speech and is less willing to reverse previous Court decisions, even when it is clear that they departed from the original intentions of the Constitution's framers. Thomas, by contrast, sees himself as a staunch defender of the classically liberal vision of the country's founders.

Hasen on Larios Be sure to check out Rick Hasen's What Does Today's Summary Affirmance in Larios v. Cox mean? over at Election Law Blog. This is the 1 person 1 vote case in which the lower court had struck down a redistricting plan for state legislators on the theory that political gerrmandering was illicit. Here's a taste from Rick's post:
    The Supreme Court's summary affirmance today in Larios supports the result in the lower court, but not necessarily its reasoning. Thus, the case stands for the proposition that there is no 10% safe harbor any longer; state and local redistricting plans can be struck down even if the deviations are under 10%.

Welcome to the Blogosphere . . . to Hanno Kaiser's Weblog, which covers antitrust, jurisprudence, law & economics, privacy, and free software.

Smith on the Nonsectarian Principle Steven Douglas Smith (University of San Diego - School of Law) has posted Nonestablishment Under God? The Nonsectarian Principle on SSRN. Here is the abstract:
    Using as a point of reference the Ninth Circuit's assertion in Newdow v. United States Congress that "[a] profession that we are a nation "under God" is identical, for Establishment Clause purposes, to a profession that we are a nation "under Jesus," a nation "under Vishnu," a nation "under Zeus," or a nation "under no god," this essay attempts to disentangle three themes that the modern discourse of religious freedom often conflates, with baneful effect. We can call these the "public secularism" principle, the "neutrality" principle, and the "nonsectarian principle." The essay argues that the first two of these principles have exercised a pernicious influence over First Amendment jurisprudence: but the third, if it could be extracted so that its own distinctive virtues could be appreciated, might provide valuable mooring for what is at present a deeply disoriented discourse.

Alexander & Schwarzschild on Grutter Larry Alexander and Maimon Schwarzschild (University of San Diego School of Law and University of San Diego School of Law) have posted Grutter or Otherwise: Racial Preferences and Higher Education (Consitutional Commentary, Vol. 21, 2004) on SSRN. Here is the abstract:
    Last year's Supreme Court decisions on affirmative action, Gratz and Grutter, are dubious as constitutional law, bringing to mind what John Hart Ely said about Roe v. Wade: "[I]t is not constitutional law, and gives almost no sense of an obligation to try to be." There was at best a cosmetic difference between the University of Michigan undergraduate school's crude "20-points-extra for minority applicants" (which the Court struck down) and the Law School's "holistic" and disingenuous preferences (which the Court upheld). The idea that the Law School has a "compelling state interest" in these racial and ethnic preferences is utterly inconsistent with the Court's suspect classification-compelling interest jurisprudence now extending back over many decades. Yet the Grutter decision does not require public colleges and universities to have racial preferences in admissions, much less in faculty hiring or promotions. The decision merely permits admissions preferences. So the question is thrown back to the universities, or to the state legislatures, to decide about preferential affirmative action as a matter of policy. And in this article, we suggest that racial preferences, at least in higher education, have proved very bad as a matter of policy. First, if you are going to give racial preferences, you have to identify people by race. It is not only invidious for the government to do that, it is increasingly impossible as people marry and have children outside the racial "affirmative action" boxes. Second, racial preferences are bad for students and for educational institutions themselves. Preferences dilute admissions standards that, while far from perfect, are much better than "race" as admissions criteria. Preferential admissions tend to lower educational standards too, as schools try to disguise the educational gap between those admitted preferentially and those admitted by standard criteria. One of the worst outgrowths of racial preferences is that students admitted through such preferences are systematically mismatched educationally. A generation of minority students, who would have done well, or certainly no worse than average, at colleges where they would have been admitted on their merits, have instead been "cascaded" upwards to colleges where their preparation is significantly below average and where, entirely predictably, they do poorly. Preferences, moreover, lead to identity politics and racial segregation on campus; they promote nihilism about academic quality; and they create a culture of dishonesty which inevitably spills over into many aspects of educational life. This article urges public - and private - colleges and universities to hold students and faculty of whatever race or ethnicity to the same high standards, and to reject the educational politics of racial and ethnic division which are implicit in preferential affirmative action.

Jinks on the Law of War Derek Jinks (Arizona State University College of Law) has posted Protective Parity and the Law of War (Notre Dame Law Review, Vol. 79, 2004) on SSRN. Here is the abstract:
    Traditionally, protective schemes in the law of war are tightly coupled to rigid status categories. The contours of these status categories (and the content of corresponding protective schemes) reflect the dual normative commitments of this body of law: military necessity and humanitarianism. Formal protection varies along a number of axes (including combatant status, nationality, territory, and the character of the conflict) because it is thought that these factors roughly track the vulnerability of and the security challenges posed by specific status groups. In early law of war treaties, specific status categories are defined in terms that encourage protection-seeking states (and at times individuals) to orient their behavior in ways that promote the objectives of humanitarian law. Protection, in these treaties, is a carrot for rule-regarding behavior - harsh, summary treatment at the hands of the enemy, the stick. Such an approach, by design, includes coverage gaps. Beginning with the 1949 Geneva Conventions, this understanding of status has been in decline. Over the last half century, protective schemes have converged and coverage gaps have closed. From the human rights perspective, these developments are all to the good. The humanization of humanitarian law reflects the progressive trajectory of international law in which universal human rights trump parochial state interests. From the traditionalist perspective, the law of war has lost its compass. Protection of unlawful combatants (1) undermines the humanitarian ambitions of the law of war by compromising the protection of innocent civilians; and (2) undermines political and institutional support for the law of war by imposing on states obligations that are inconsistent with various security imperatives. Both views are flawed. Protection should, contra the human rights view, accommodate the realities of the battlefield. On the other hand, humane treatment of the enemy, irrespective of pre-capture conduct, furthers the military objectives of the capturing state. My argument is that humanitarian protection in time of war should not vary by detainee status category - what I will call protective parity. The paper has a descriptive and a prescriptive dimension. Through an analysis of the legal situation of unlawful combatants, I illustrate that (1) protective schemes are converging; and (2) although the protective significance of POW status is declining, there are some persistent gaps in coverage. The unique protective significance of POW status (and the claims that justify this extra increment of protection) suggests that POWs are systematically over-protected (even if only to a modest extent) and unlawful combatants are systematically under-protected. To make this case, I offer a cluster of offensive claims and one defensive claim. On the offensive side, I argue that various claims for expanding or contracting humanitarian protection do not track status categories. In this way, the claims that undergird these ostensibly competing schools of thought support protective parity. Consider the following related points. If protective schemes compromise legitimate security interests (think of the policy arguments advanced by the United States to justify its treatment of the detainees in Cuba), then some status categories (e.g., POWs) are systematically over-protected. That is, these security-based claims, if valid, would apply irrespective of whether the detainees were properly classified as POWs or not. If humane treatment of the enemy increases battlefield effectiveness (because poor treatment discourages surrender, encourages reprisals, decreases troop morale, and decreases political support for the war effort), then some status categories (e.g., unlawful combatants) are systematically under-protected. On the defensive side, I argue that protective parity is consistent with the principle of distinction. Even if irregularization undermines distinction, the question is how best to encourage fighters to distinguish themselves from the civilian population. I maintain that protective status categories are an inefficient way to incentivize individual combatants because these categories necessarily trade on collective considerations - such as the organizational characteristics of the fighting force. The rule of distinction would be better served by an individualized war crimes approach that accorded all fighters substantial humanitarian protection and punished (in accord with basic requirements of due process) individual bad actors.

Merges on the Public Domain Robert P. Merges (University of California, Berkeley - School of Law (Boalt Hall)) has posted A New Dynamism in the Public Domain (University of Chicago Law Review, Vol. 7 1, pp.183-203, 2004) on SSRN. Here is the abstract:
    Many believe intellectual property has overreached, and that policymakers must respond. In this essay, I argue that the critique may have merit, but private parties are in some cases taking matters into their own hands. Firms and individuals are increasingly injecting information into the public domain with the explicit goal of preempting or undermining the potential property rights of economic adversaries. Biotechnology firms invest millions of dollars in publin domain gene sequenc databases, to prevent hold-ups by firms with patents on short gene sequences. Major software firms fight entrenched rivals by investing millions of dollars, contributing to open source operating systems. In both cases, property-preempting investments (PPI's) are made to offset the effects of competitors' property rights. Individuals and nonprofits are joining in too, with initiatives such as the Creative Commons project. All of these major private investments in the public domain reveal a self-correcting feature of the intellectual property system that has been overlooked until now, and signal that public lawmaking is not the only arena in which the excesses of intellectual property may be addressed.

Claus on the True Meaning of Separation Laurence Claus (University of San Diego School of Law) has posted Montesquieu's Mistakes and the True Meaning of Separation on SSRN. Here is the abstract:
    "The political liberty of the subject," said Montesquieu, "is a tranquility of mind arising from the opinion each person has of his safety. In order to have this liberty, it is requisite the government be so constituted as one man needs not be afraid of another." The liberty of which Montesquieu spoke is directly promoted by apportioning power among political actors in a way that minimizes opportunities for those actors to determine conclusively the reach of their own powers. Montesquieu's constitution of liberty is the constitution that most plausibly establishes the rule of law. Montesquieu concluded that this constitution could best be achieved, and had been achieved in Britain, by assigning three fundamentally different governmental activities to different actors. He was wrong. His mistaken conclusion rested on two errors. The first of these was theoretical; the second, both empirical and theoretical. First, Montesquieu's analysis was informed by the early eighteenth-century orthodoxy that no sovereign power could viably be divided. Montesquieu rightly saw that liberty from the arbitrary exercise of power would be served by apportioning power among multiple actors, but he thought the apportionment sustainable only if along essentialist lines. Lawmaking could be separated from law-executing, but neither of those kinds of power could durably be divided internally. The extent to which actors participated in the exercise of more than one kind of power Montesquieu viewed as a protective qualification to a primary essentialist separation. He failed to see that involving multiple actors in every exercise of power, albeit by permitting actors' individual involvement in the exercise of more than one kind of power, is the true protection against arbitrariness. Checks and balances, not essentialist separation of activities, prevent actors from conclusively determining the reach of their own powers. The critical liberty-promoting criterion for separation is not whether powers differ in kind, but whether apportionment will prevent actors from conclusively determining the reach of their own powers. Second, Montesquieu did not appreciate the nature of the English common law and the mechanism that its doctrine of precedent established for authoritative judicial exposition of existing law. That empirical error caused him to distinguish and trivialize the English judicial function as merely the ad hoc determination of disputed facts. Consequently, Montesquieu failed to recognize the lawmaking character of English judicial exposition. This essay analyzes implications of Montesquieu's mistakes for modern claims, both in Britain and in the United States, that liberty and the rule of law are promoted by separating power in certain contexts. In particular, this essay questions the British Government's recent claim that the values underlying separation of powers theory call for removing ultimate appellate jurisdiction from the House of Lords. It also traces Montesquieu's influence on the American founders' attempt to separate power along essentialist lines, and considers some sub-optimal consequences of that attempt, including the nondelegation quandary and the emergence of an unchecked judicial lawmaker.

Book Announcement: Open Architecture as Communications Policy
    Open Architecture as Communications Policy Contact:
      Mark Cooper Director of Research Consumer Federation of America 301-384-2204
    Policy Leaders Identify Open Architecture as the Key to Internet’s Broadband Future New book warns that FCC policy shift jeopardizes innovation and economic growth WASHINGTON – In a book released today, leaders in Internet policy and other telecommunications experts explore new, technology-neutral approaches to preserving open communications networks and the freedom of the Internet. Open Architecture as Communications Policy details how network neutrality is imperative for the future of an innovative high-speed Internet, cautioning regulators not to impose legacy telecommunications regulation on Internet Protocol-based applications. The book, edited by Mark N. Cooper and published by the Center for Internet and Society (CIS) at Stanford Law School, grew out of a forum on Capitol Hill cosponsored by CIS and the Consumer Federation of America. “The book brings together many of the best minds on the convergence of communications technology and public policy and some of the strongest advocates of open architecture as the underpinning of the success of the Internet,” Cooper said. “This book is especially relevant now, as the FCC attempts to reverse its 35-year long commitment to ensuring open, nondiscriminatory interconnection and carriage of data services on the nation’s telecommunications networks. Open architecture at the heart of the Internet and telecommunications networks created an environment for dynamic innovation and the widespread adoption of the Internet. “With two cases pending Supreme Court review, a dozen proceedings ongoing at the FCC, and talk of a rewrite of the 1996 Telecom Act in the air, the future architecture of the Internet hangs in the balance. It is critical for policy makers to have a full appreciation for the importance of principles of open architecture as public policy.” The book combines several classic works on open architecture and public policy with new essays and empirical studies from John W. Butler, Vinton G. Cerf, Earl W. Comstock, Mark N. Cooper, Michael J. Copps, Robert E. Kahn, Mark A. Lemley, Lawrence Lessig, Richard S. Whitt, and Timothy Wu. The book is available for download at no charge under a creative commons license at: Requests for review copies of Open Architecture as Communications Policy can be sent to Mark Cooper at Paper copies of the book are available from Amazon. _______________________________________ Book Summary: Open Architecture as Communications Policy Mark N. Cooper, Editor Open architecture is the design principle on which the success of the Internet and information technologies rests. In this book, founders of the Internet and its most ardent defenders describe how open architecture was implemented in the end-to-end principle of the Internet, open interfaces of the personal computer, and nondiscriminatory interconnection and carriage for communications networks. Empirical studies examine the convergence of technology and public policy that created a dynamic environment for decentralized innovation, rapid technological change, and strong economic growth. The digital communications platform became a general-purpose technology with a transformative power equaling or exceeding the great industrial technologies of a century earlier – railroads, electricity, and telecommunications. Legal analyses demonstrate that the Federal Communications Commission inexplicably turned its back on the thirty-five year record of success of its Computer Inquiries, which ensured nondiscriminatory access to communications services. Case studies document the chill on innovation that results when owners of advanced telecommunications networks are allowed to close the platform, exclude service providers, restrict applications and limit the availability of network functionalities. The book explores new, technology-neutral approaches to preserving both open communications networks and the freedom of the Internet. Contents/Contributors FCC Commissioner Michael Copps established the policy context for the Capitol Hill symposium that gave the impetus for the book (Broadband Technology Forum: The Future Of The Internet In The Broadband Age, March 26, 2004) with a challenge for the “Internet in the broadband age… We need to make sure that it continues to foster freedom and innovation, that the openness that is its hallmark has a future every bit as bright as its past.” Robert E. Kahn and Vinton G. Cerf, What Is the Internet (and What Makes It Work)?, INTERNET POLICY INSTITUTE (1999, revised 2004), provide a brief discussion of the architecture of the Internet through the chronology of the development of its fundamental technologies. Both of the authors were at the center of the creation of the seminal technologies. They are keenly aware of the role of institutions and public policies in the creation of the Internet. Mark A. Lemley, Professor of Law at University of California at Berkeley, and Lawrence Lessig, Professor of Law at Stanford Law School and founder of the Center for Internet and Society, include a paper presenting a discussion of the design principle of the Internet: The End of End-to-End: Preserving the Architecture of the Internet in the Broadband Era, UCLA LAW REVIEW (2001). Not only does it explain how the design principle operates to promote innovation, but also it directly refutes many of the economic arguments made by those who would abandon, or allow the network facility owners to abandon, the end-to-end principle and open communications networks. A study by Mark N. Cooper, Making the Network Connection, takes a broad view of the impact of the Internet. It attempts to use network theory and recent analyses of technological change to reinforce the long-standing claim that the open architecture of the Internet represents a fundamental change and improvement in the innovation environment. It concludes with an examination of the role of Internet Service Providers in the spread of the Internet. In a second Chapter entitled Anticompetitive Problems of Closed Communications Platforms, which draws from an earlier paper Open Communications Platforms: Cornerstone Of Innovation And Democratic Discourse In The Internet Age, JOURNAL OF TELECOMMUNICATIONS AND HIGH TECHNOLOGY LAW (2003), Cooper demonstrates the increased possibility of anticompetitive practices by firms that dominate key points of the digital communications platform. It links the potential harm back to the network theory by presenting a case study of the elimination of Internet Service Providers. Timothy Wu, University of Virginia Law Professor, provides a detailed study of the customer contract provisions that threaten or infringe on the freedom for consumers to use the Internet and applications in a paper entitled Network Neutrality, Broadband Discrimination, (first published in JOURNAL OF TELECOMMUNICATIONS AND HIGH TECHNOLOGY LAW (2003), which also attempts to precisely define the characteristics of the Internet that should be preserved. Wu also includes a new analysis (from Broadband Policy: A User’s Guide, Journal OF TELECOMMUNICATIONS AND HIGH TECHNOLOGY LAW, forthcoming) that reviews several aspects of the current policy debate and offers a recommendation of nondiscrimination. Lawrence Lessig joins Wu in a formal proposal for network neutrality that was presented to the Federal Communications Commission (FCC) in an ex parte filed at the FCC. Earl W. Comstock and John W. Butler, partners in the same firm, combine legal analysis from Access Denied: The FCC’s Failure to Implement Open Access as Required by the Communications Act, JOURNAL OF COMMUNICATIONS LAW AND POLICY, (2000) with the legal brief filed on behalf of Earthlink in the second case heard by the Ninth Circuit Court of Appeals involving broadband (Brand X v. FCC, 345 F. 3d 1120 9 9th Cir. 2003). Comstock and Butler show why the FCC has had so much trouble convincing the Ninth Circuit Court of Appeals that its approach to deregulating advanced telecommunications networks fits under the statute. Twice the Court found that the obligations of nondiscrimination and interconnection of Title II of the Communications Act apply to cable modem service. The detailed recounting of the history and purpose of the Computer Inquiries that runs through the legal arguments is a strong reminder that the FCC adopted the correct policy over 35 years ago when it recognized the fundamental importance of nondiscriminatory access to the essential telecommunications function of the network on which applications and services ride. The book concludes with a discussion of Horizontal Leap Forward that combines a paper by Richard Whitt of MCI that formed the basis for Vinton Cerf’s comments to the forum and a letter from Cerf to Chairman Powell and Secretary of Commerce Evans. The paper picks up and develops the distinction between transmission and applications as it is being discussed in regard to contemporary digital networks. Whitt attempts to synthesize the emerging thinking about reforming regulation of communications by moving from the old vertical view, in which industries are regulated because of their underlying technologies or the services they provide, to a horizontal view, in which similar functionalities are treated similarly across networks, regardless of which technology is used. Open architecture at the physical or transmission layer is the key policy advocated in the paper.

Leib on Redistricting Ethan J Leib has posted Ugly White Districts on SSRN. Here is the abstract:
    A case just decided by a three-judge panel in the Southern District of New York, where plaintiffs challenge the 2002 New York State Senate redistricting plan, presents a new kind of redistricting challenge. See Rodriguez v. Pataki, 2004 WL 503748 (S.D.N.Y.). Rodriguez raises the issue of what to do about bizarrely-shaped white districts that are constructed or preserved using race as an obvious motivation - apparently in violation of Shaw v. Reno, 509 U.S. 630 (1993), which held ugly black districts to be violative of the Fourteenth Amendment's Equal Protection Clause - but are adjacent to majority-minority districts that must be preserved in accordance with both Sections 2 and 5 of the Voting Rights Act, the laws forbidding dilution and retrogression of majority-minority districts. Here, I ask what Justice Sandra Day O'Connor should do about unsightly majority white districts that are drawn principally to maintain white majorities, eve n if such districts also help fashion adjacent majority-minority districts required by the Voting Rights Act.

Edelman, Nagareda, and Silver on Allocation in Multiple-Claimant Representations Paul H. Edelman , Richard A. Nagareda and Charles Silver (Vanderbilt University School of Law , Vanderbilt University School of Law and University of Texas Law School) have posted The Allocation Problem in Multiple-Claimant Representations on SSRN. Here is the abstract:
    Multiple-claimant representations - class actions and other group lawsuits - pose two principal-agent problems: shirking (failure to maximize the aggregate recovery) and misallocation (distribution of the aggregate recovery other than according to the relative value of claims). Clients have dealt with these problems separately, using contingent percentage fees to motivate lawyers to maximize the aggregate recovery and monitoring devices (disclosure requirements, settlement vetoes, and third-party review) to encourage appropriate allocations. The scholarly literature has proceeded on the premise that monitoring devices are needed to police misallocations, because the fee calculus cannot do the entire job. This paper shows that this premise is mistaken and that its consequence has been to misdirect our understanding of the importance of information problems and bargaining costs in attorney-client relationships. In fact, it is relatively straightforward, as a mathematical matter, to design a two-part contingent fee arrangement that incentivizes a lawyer to both maximize an aggregate recovery and allocate it according to relative claim values. The failure of the market for multiple-claimant representations to generate fee arrangements of this type therefore reflects the operation of empirical factors, not the inherent limits of contingent fees. We believe the principal barriers are information and bargaining costs. Two-part contingent fee arrangements require more information than claimants or attorneys are likely to possess and require more expensive negotiations than the monitoring devices the market actually employs. Monitoring devices are thus cheaper substitutes for more refined contingent fee arrangements, rather than unique solutions to allocation issues.

Tuesday, June 29, 2004
Ashcroft v. ACLU. Updated 5:11 p.m.
    Introduction The Supreme Court has decided Ashcroft v. ACLU, with a 5-4 vote that preserves the injunction against enforcement but remands for further proceedings. Here is the statement of the holding from the syllabus:
      The Third Circuit was correct to affirm the District Court’s ruling that enforcement of COPA should be enjoined because the statute likely violates the First Amendment. . . . The District Court did not abuse its discretion when it entered the preliminary injunction. . . . It is reasonable to assume that technological devel-opments important to the First Amendment analysis have occurred in the five years since the District Court made its factfindings. By affirming the preliminary injunction and remanding for trial, the Court allows the parties to update and supplement the factual record to re-flect current technology. Remand will also permit the District Court to take account of a changed legal landscape.
    And from the opinion:
      This opinion does not foreclose the District Court from concluding, upon a proper showing by the Government that meets the Government’s constitu-tional burden as defined in this opinion, that COPA is the least restrictive alternative available to accomplish Con-gress’ goal.
    And here are the votes:
      KENNEDY, J., delivered the opinion of the Court, in which STEVENS, SOUTER, THOMAS, and GINSBURG, JJ., joined. STEVENS, J., filed a con-curring opinion, in which GINSBURG, J., joined. SCALIA, J., filed a dis-senting opinion. BREYER, J., filed a dissenting opinion, in which REHNQUIST, C. J., and O’CONNOR, J., joined.
    The Procedural Posture & the Remand for a Trial Ashcroft came up on an interlocutory appeal following a preliminary injunction and now has been remanded for a trial. From a proceduralist's point of view, this result can hardly be a shock. The standard of review for preliminary injunctions is "abuse of discretion," and unless the grant of a preliminary injunction rests on a predicate error of law, a remand is the expected outcome. The Brief for Petitioner (the brief filed on behalf of the United States) is remarkably weak--really dreadfully weak--on this point. In the crucial section, entitled "There Is No Alternative To COPA That Is Equally Effective," there is no discussion at all of the procedural posture. The government treats this issue as if the Supreme Court were reviewing conclusions of law by the de novo standard. Of course, the Supreme Court is inconsistent about procedural issues in general and standards of review in particular. If the Court had really wanted to uphold COPA, it could have done so. (Because the Supreme Court has the final word, it can do whatever it wants within very broad limits.) But after reading the Opinion and the Brief for Respondent, this decision seems entirely unremarkable in result. Having said that, I do think that the majority has sent a message to the District Court re the factual inquiry into "less restrictive alternatives" to COPA. Given the clear message that its prior findings meet the Court's approval, the District Court will surely take a very hard look at any evidence the government might offer against the use of filtering as an alternative. It hard to imagine what evidence would suffice.
    Opinions Blogosphere
      --Balkinization. Jack Balkin posts COPA sent back for retrial.
        Breyer's dissent also raises the question of whether this decision is simply a temporizing move. It's quite possible that there were five votes to keep the stay, but not five votes to strike the statute down in its entirety. So the result is a compromise-- kick it back to the lower courts for another round. Breyer says: there's no more evidence you need to make a decision. So you should make one. If you think that there are no real less restrictive alternatives to this statute, or, put another way, that you don't want Congress legislating in this area, you should simply say so.
      --How Appealing. Today's Supreme Court Rulings.
      --Volokh Conspiracy. Eugene Volokh posts Another Scalia/Thomas Split.
      --Scotus Blog. Sex, the Internet and congressional frustration.
        Thus, the Court sketched out a future scenario in which Congress does the best it can to capture a moment in digital time as a basis for regulation, the inevitable legal challenge ensues to block the new rules, and then the predictable delays in litigation carry the dispute into an entirely new, and very different, digital moment. Kennedy stressed that the Court was not setting up “an insuperable obstacle to fair review” by requiring Internet regulation cases to be based upon current facts. But his stress on the technology gap that opens over the years clearly was a warning that the legislative task will be difficult, indeed, if Congress hopes to adopt a censorship regime that can stand up in the Supreme Court.
        Aside from the shadow that this warning casts over any new legislation in this field, Congress is almost sure to be deeply offended by the Court’s reaction to a law it thought it was tailoring precisely to fit Supreme Court specifications. The 1998 law was a new attempt to insulate minors from sex on the Internet after the Court in 1997, in Reno v. American Civil Liberties Union, had struck down an earlier version. Supposedly learning from that experience, Congress passed COPA in somewhat narrower form – for example, it lowered the age of youth to be sheltered by law to those below 17, and it limited its ban to sexually explicit offerings on the Web, and only those that are commercial in nature. It adopted a formula to define Web items it regarded as harmful to minors from the Court’s own formulas in prior rulings. Today, none of that helped the congressional cause, at least for now.
      --The Importance of. First thoughts on Ashcroft v. ACLU by Ernie Miller.
        I'm not a fan of obscenity law. I think it is mess that should simply be gotten rid of. For this reason, Breyer's dissent fascinates me. One of the main reasons the law isn't burdensome, according to Breyer, is because it mostly applies to content that doesn't receive protection from the First Amendment anyway, obscenity:
          The Act’s definitions limit the material it regulates to material that does not enjoy First Amendment protection, namely legally obscene material, and very little more.
        Indeed, the language does track the "Miller" test for obscenity (no relation), but with a slight difference: it applies "with respect to minors." You would think that would mean something, but you would be mostly wrong, according to this dissent:
          The only significant difference between the present statute and Miller’s definition consists of the addition of the words “with respect to minors,” §231(e)(6)(A), and “for minors,” §231(e)(6)(C). But the addition of these words to a definition that would otherwise cover only obscenity expands the statute’s scope only slightly. That is because the material in question (while potentially harmful to young children) must, first, appeal to the “prurient interest” of, i.e., seek a sexual response from, some group of adolescents or postadolescents (since young children normally do not so respond). And material that appeals to the “prurient interest[s]” of some group of adolescents or postadolescents will almost inevitably appeal to the “prurient interest[s]” of some group of adults as well.
      --New York Times. Justices Uphold Block of Web Porn Law but Send Case Back.
        The majority explicitly stopped short of deciding whether the law is constitutional. That is a question that can only be answered after a trial, the majority said, even as it acknowledged that the rapid advances in Internet and computer technology make it difficult to foresee what all the issues at a trial will be.
      --CNN. High court bars Internet porn law enforcement.
        In considering the issue a third time, the court did not end a long fight, however. The majority voted to send the case back to a lower court for a trial that could give the government a chance to prove the law does not go too far.
      --Washington Post. High Court Leaves Online Porn Case Unresolved.
        The court specifically recommended increased use of "filtering" software that, once installed on computers, can block certain kinds of content. Justice Anthony Kennedy, writing for the majority, conceded that filters are not perfect, but said that "content-based prohibitions" like COPA "have the constant potential to be a repressive force in the lives and thoughts of a free people."
      --Christian Science Monitor. Court upholds objections to law regulating Internet porn.
        On a broader level, the decision is significant because congressional efforts to protect children from online pornography represent the cutting edge of government attempts to regulate cyberspace.
        A debate has long raged over whether the Internet should be treated as an unrestricted free market of ideas and images or more as a government-controlled information "superhighway" complete with speed limits, tolls, and cyber traffic cops.
        With this ruling, the nation's highest court has declined to endorse a role for the US government as a cyber traffic cop, at least in this context.
      --U.S. Newswire. Morality In Media 'Saddened But Not Surprised' by Supreme Court's Ruling on 'COPA' Case.
      --Los Angeles Times. Justices Strike Down Online Porn Law.
        Today's ruling is an important victory for the owners and operators of thousands of websites. In their view, the law might have subjected them to criminal punishments, not for selling pornography but for including sexual explicit photos or discussions that might be seen as harmful to minors.

Yglesias on Rawls Via Chris Bertram, I came across this post by Matthew Yglesias on John Rawls:
    A Theory of Justice is a brilliant work in many ways, but it’s also — quite obviously — wrong in a number of ways and employs a variety of arguments that are pretty dubious. Any undergraduate can see this, and dozens — if not hundreds — do so every semester. Now it seems to me that a slightly more scrupulous philosopher might have looked at the manuscript and said to himself, “this is a very interesting argument I’m putting together here, but it doesn’t quite work. Better keep on revising.” But instead Rawls put his thought-provoking work out there in the press, attracting decades worth of criticisms, counter-criticisms, suggestions for improvement, and so forth, thus becoming the major figure in postwar political philosophy.
Yglesias's hubris is simply astonishing. He is obviously unaware of the history of A Theory of Justice, surely one of the most thoroughly vetted works in the history of contemporary academic philosophy. Rawls is certainly controversial--every great political philosopher is--but to assert that A Theory of Justice suffers from obvious problems that an undergraduate can spot is so off the mark that it calls Yglesias's integrity or judgment into question. Bad form. Poor job. Shame.

Monday, June 28, 2004
Hamdi, Padilla, & Rasul: Updated on June 29 at 12:04 p.m.
    Introduction The Supreme Court decided Hamdi, Padilla, and Rasul This morning. This post, which will be updated throughout the day is about the three decisions, with links to opinions, news, and blogospheric reaction, as well as my own commentary. Here are the bottom lines:
      Nos. 03-334, Rasul v. Bush, and 03-343, Al Odah v. United States, per Justice Stevens, reversed and remanded. 6-3 for Rasul, et al.
        The holding as stated in the syllabus:
          United States courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at Guantanamo Bay.
        The vote count as stated in the syllabus:
          STEVENS, J., delivered the opinion of the Court, in which O’CONNOR, SOUTER, GINSBURG, and BREYER, JJ., joined. KENNEDY, J., filed an opinion concurring in the judgment. SCALIA, J., filed a dissenting opinion, in which REHNQUIST, C. J., and THOMAS, J., joined.
      No. 03-6696, Hamdi v. Rumsfeld, per Justice O'Connor, reversed and remanded. 8-1 for Hamdi.
        The holding as stated in the syllabus:
          The judgment is vacated, and the case is remanded.
            JUSTICE O’CONNOR, joined by THE CHIEF JUSTICE, JUSTICE KENNEDY, and JUSTICE BREYER, concluded that although Congress authorized the detention of combatants in the narrow circumstances alleged in this case, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker.
            JUSTICE SOUTER, joined by JUSTICE GINSBURG, concluded that Hamdi’s detention is unauthorized, but joined with the plurality to conclude that on remand Hamdi should have a meaningful opportu-nity to offer evidence that he is not an enemy combatant.
        The vote count as stated in the syllabus:
          O’CONNOR, J., announced the judgment of the Court and delivered an opinion, in which REHNQUIST, C. J., and KENNEDY and BREYER, JJ., joined. SOUTER, J., filed an opinion concurring in part, dissenting in part, and concurring in the judgment, in which GINSBURG, J., joined. SCALIA, J., filed a dissenting opinion, in which STEVENS, J., joined. THOMAS, J., filed a dissenting opinion.
      No. 03-1027, Rumsfeld v. Padilla, per the Chief Justice, reversed and remanded. 5-4 for Rumsfield on jurisdictional grounds.
        The holding as stated in the sullabus:
          1. Because this Court answers the jurisdictional question in the negative, it does not reach the question whether the President has authority to detain Padilla militarily.
          2. The Southern District lacks jurisdiction over Padilla’s habeas petition.
        The vote count as stated in the syllaubs:
          REHNQUIST, C. J., delivered the opinion of the Court, in which O’CONNOR, SCALIA, KENNEDY, and THOMAS, JJ., joined. KENNEDY, J., filed a concurring opinion, in which O’CONNOR, J., joined. STEVENS, J., filed a dissenting opinion, in which SOUTER, GINSBURG, and BREYER, JJ., joined.
    Opinions How the Justices Voted The following is a list of Justices, in order of seniority, with their votes (opinions joined or authored) in each of the cases:
        Rasul--joined Scalia’s dissenting opinion.
        Hamdi--joined O’Connor’s plurality opinion.
        Padilla--authored opinion of the Court.
        Rasul--authored opinion of the Court.
        Hamdi--joined Scalia’s dissenting opinion.
        Padilla--authored dissenting opinion
        Rasul--joined opinion of the Court.
        Hamdi--authored plurality opinions.
        Padilla--joined opinion of the Court.
        Rasul--authored dissenting opinion.
        Hamdi--authored dissenting opinion.
        Padilla--joined opinion of the Court.
        Rasul--authored concurring opinion.
        Hamdi--joined O’Connor’s plurality opinion.
        Padilla--joined opinion of the Court.
        Rasul--joined opinion of the Court.
        Hamdi--authored concurring opinion.
        Padilla--joined Stevens’s dissenting opinion
        Rasul--joined Scalia’s dissenting opinion.
        Hamdi--authored dissenting opinion.
        Padilla--joined opinion of the Court.
        Rasul--joined opinion of the Court.
        Hamdi--joined Souter concurrence.
        Padilla--joined Souter dissent.
        Rasul--joined opinion of the Court.
        Hamdi--joined O’Connor’s plurality opinion.
        Padilla--joined Stevens’s dissenting opinion
    O'Connor was the only Justice to join the Opinion of the Court in Rasul and Padilla and to join (and author) the plurality opinion in Hamdi. Only one other Justice, Anthony Kennedy, was in the majority in all three cases. Two Justices, Scalia and Thomas, dissented in both Rasul and Hamdi and joined the opinion of the Court in Padilla. Aaron Schwartz offers this interesting chart.
      --Scotus Bog.
        Marty Lederman has post entitled Hamdi and Padilla Appear to be a Huge Loss for the Government.
          In Hamdi, four Justices, including Justice Scalia, conclude that Hamdi's detention itself is unlawful -- a result that Hamdi himself barely argued for (his briefs being more focused on the opportunity to challenge his encombatanttnet status).
        Tom Goldstein offers Apprendi redux.
        Amy Howe posts Jurisdiction in Padilla and Rasul.
          In reaching its holding [in Padilla], the Court relied on what it described as its “longstanding practice confirm[ing] that in habeas challenges to present physical confinement . . . the default rule is that the proper respondent is the warden of the facility where the prisoner is being held.” The Court acknowledges that “Padilla’s detention is undeniably unique in many respects,” but concludes that “it is at bottom a simple challenge to physical custody imposed by the Executive—the traditional core of the Great Writ” and “thus not unique in any way that would provide arguable basis for a departure from the immediate custodian rule.” Further, the Court explained, Section 2241 allows district courts to issues writs of habeas corpus only “within their respective jurisdictions.” The combination of these two principles, according to the Court, “compose a simple rule that has been consistently applied in the lower courts, including in the context of military detentions: Whenever a §2241 habeas petitioner seeks to challenge his present physical custody within the United States, he should name his warden as respondent and file the petition in the district of confinement.” Such a rule is necessary, the Court continued, to prevent “rampant forum-shopping, district courts with overlapping jurisdiction, and the very inconvenience, expense, and embarrassment Congress sought to avoid when it added the jurisdictional limitation 137 years ago.”
        Lyle Denniston posts No presidential monopoly on war powers.
          The Supreme Court's first review of the Bush administration's handling of the war on terrorism may force a fundamental reordering of constitutional priorities, especially in the way the government may deal with individuals caught up in that war. Amid all the writing by the Justices in today's three historic rulings, no sentence stands out as vividly as this one, "A state of war is not a blank check for the President when it comes to the rights of the Nation's citizens."
      --How Appealing. Today's U.S. Supreme Court opinions and Order List.
      --Volokh Conspiracy.
        Eugene Volokh posts Justices Scalia & Breyer.
          I've only read the Hamdi case so far, but here's a tentative thought (subject to revision as I read the other cases and rethink the matter) — two significant facts in this case are that Justice Scalia voted against the government, and Justice Breyer voted (partly) in favor of the government.
          This is because these votes may well change the political dynamics within the conservative and liberal movements. I know there are quite a few conservative lawyers and policy wonks who are uneasy (whether rightly or wrongly) with broad assertions of military powers even during wartime. And I'm pretty sure there are quite a few liberal lawyers and policy wonks who are uneasy (again, whether rightly or wrongly) with what they see as a September 10th attitude towards civil rights during wartime.
        Stuart Benjamin offers Breyer v. Scalia, Pragmatism v. Formalism.
          What's interesting here is that this split is not as unusual as some might imagine. Yes, this court is split 5-4, along conservative/liberal lines, in many cases (think Bush v. Gore). But in some notable cases it has been split 5-4 along formalist/pragmatist lines. One of the biggest cases of the last few years is Apprendi v. New Jersey, in which the Supreme Court held that juries, not judges, must impose increases in penalties for a crime beyond the prescribed statutory maximum. That case was 5-4, with Stevens, Scalia, Souter, Thomas and Ginsburg posed against Rehnquist, O'Connor, Kennedy, and Breyer. The exact same lineup occurred in Blakely v. Washington, which came down last Thursday and imperils the federal sentencing guidelines. As for Hamdi, the reason that the five formalists (Scalia, Stevens, Souter, Thomas, Ginsburg) didn't win is that one of them (Thomas) found his formalism taking him in the opposite direction — he alone adopted the government's position, across the board.
        Eugene Volokh posts Does federal law bar military detention of U.S. citizens?
          Five of the Justices in Hamdi -- Justice O'Connor, joined by Chief Justice Rehnquist, Justice Kennedy, and Justice Breyer in the plurality, plus Justice Thomas in his dissenting opinion -- took the view that the [the post-September 11 Authorization for Use of Military Force] allowed military detention at least of citizens who are "'part of or supporting forces hostile to the United States or coalition partners' in Afghanistan and who 'engaged in an armed conflict against the United States' there." That's why Hamdi lost on the statutory question.
          But what about Padilla, who is alleged to be an enemy combatant, but who apparently wasn't engaged in an armed conflict against the United States in Afghanistan? Well, four of the Justices in Hamdi -- Justices Souter and Ginsburg, who partially concurred in Hamdi, and Justices Scalia and Stevens, who dissented -- disagree with the view I give above, and think that the Authorization doesn't apply even to Hamdi. It follows that they think it shouldn't apply to Padilla, either.
        Jack Balkin posts Hamdi can be held as illegal combatant but must have access to courts.
        And More on the detention cases.
          Institutionally speaking, the Court is reasserting its authority in the face of an Administration that repeatedly said it was irrelevant. Generally speaking, this is not a good thing to tell courts. If you tell courts they have no jurisdiction to oversee Executive misbehavior, they will strain to find that they have the formal ability to do so, even if they don't exercise it in practice.
          The plurality opinion in Hamdi is clearly a pragmatic compromise. Justice O'Connor strains to find Congressional authorization for detaining enemy combatants (Justice Souter's concurrence explains why the argument is strained), so that she can then hold that some process is due-- essentially the right to be heard and present your own evidence to prove your own innocence and the right to rebut assertions from the state. Hamdi also has a right to an attorney on remand, but the plurality stops short of saying that enemy combatants always have a right to an attorney. In dicta, O'Connor states that the Executive may provide due process through military tribunals immediately after a person is captured, or, in a subsequent habeas proceedings in which the burden is on the accused to show that he or she is not an enemy combatant. This is unnecessary to the decision of the case but it's clearly advice to lower courts. The advice is worrisome precisely because it's unnecessary. Michael Froomkin has posted Today's Trifecta--What Does it All Mean? (Pt. I: Hamdi).
        In summary, eight members of the Court think Hamdi (and, by implication, Padilla) is at least entitled to a hearing, with four saying he should be sprung straight away, albeit two on statutory and two on constitutional grounds. The poor district court doesn’t get very clear directions about what process is due on remand. Four Justices in plurality say it should be a uniquely crabbed process. Two others would give more, two don’t really address it. One says no process is due. And, the plurality’s views are a floor, not a ceiling, and the opinion admits more process if the circumstances and dictates of witness availability and national security permit.
        It could be a procedural donnybrook below…
      --Scrivener's Error. Room 101. I. Civil Procedure. II. Government Power. III. Military Necessity.
        The decisions in the Detainee Trilogy depend almost entirely upon their procedural contexts; the only serious considerations of the merits were in dissenting (or mixed concurring-and-dissenting) opinions. Thus, the first two segments of this discussion concentrated on procedural aspects: venue and jurisdiction, and the scope of the habeas corpus power. That brings us to the shrivelled third leg: the substantive justification for detention.
      --New York Times. Supreme Court Affirms Detainees' Right to Use Courts.
        The Supreme Court ruled today that people being held by the United States as enemy combatants can challenge their detention in American courts — the court's most important statement in decades on the balance between personal liberties and national security.
      --Washington Post. Detainees, Combatants Can Challenge Detentions. Justices Rule Padilla Must Refile Suit.
      --Los Angeles Times.
        Justices: Detainees Can Have Court Hearings (AP Story).
          The Supreme Court dealt a setback to the Bush administration's war against terrorism today, ruling that both U.S. citizens and foreign nationals seized as potential terrorists can challenge their treatment in U.S. courts.
          The court refused to endorse a central claim of the White House since the terrorist attacks of Sept. 11 2001: That the government has authority to seize and detain suspected terrorists or their protectors and indefinitely deny access to courts or lawyers while interrogating them.
        Justices: Detainees Can Have Court Hearings (David Savage)
          The Supreme Court rejected the Bush administration's claim today that the war on terrorism gives the president, as commander in chief, the unchecked power to imprison "enemy combatants," both at home and abroad.
          Instead, the justices said that the Constitution gives all those held in U.S.-controlled territory a right to plead their innocence before a judge.
      --NPR. Nina Totenberg.
      --BBC. Britons welcome Guantanamo ruling.
        Two British men released from Guantanamo Bay have welcomed a US court decision to allow detainees access to the US legal system. But Shasiq Rasul and Asif Iqbal warned it was unlikely prisoners held in the Cuban camp would be told the news.
      --MSNBC. Historic court rulings hold political fodder.
        In the midst of a hotly contested presidential election, the U.S. Supreme Court has handed President Bush a historic defeat in the cases of Yaser Hamdi, an American citizen captured in Afghanistan but now being held in the Navy brig in Charleston, S.C., and alleged al-Qaida and Taliban personnel held at the U.S. Naval Base in Guantanamo Bay in Cuba. With its decisions in the two cases and that of another American citizen and alleged al-Qaida member, Jose Padilla, the Supreme Court has opened the way to much more legal battling. And the justices have added to Bush’s difficulties at a time when opinion polls show him in an atypically weak position for a wartime leader seeking a second term.
      --CBC. Terrorism suspects have rights, U.S. court rules.
        The U.S. Supreme Court handed down mixed decisions Monday on the rights of people captured in the Bush administration's war on terrorism.
        Ruling on two separate cases, the country's top court said the U.S. government has the power to hold American citizens and foreign nationals without charges or trial, but that prisoners can use the U.S. courts to challenge their treatment.
      --Christian Science Monitor. Terror detainees win right to sue.
        The court's actions constitute a major victory for civil libertarians and human rights advocates who have denounced the president's antiterror tactics as a substantial erosion of fundamental American freedoms.

Saturday, June 26, 2004
The Final Seven For information on the final seven cases on the Supreme Court's docket, the place to go is On the Docket. The big three terrorism/detention/due-process cases are Rasul, Padilla, and Hamadi.
And for more, got to the excellent SCOTUS Blog, especially here and here.

Felten on the Future of Filesharing If you have an interest in IP or cyberlaw, you will want to read Ed Felten's post on the future of filesharing. Here is a taste:
    From a technology standpoint, the future of filesharing will involve co-evolution between filesharing technology on one side, and anti-copying and anti-filesharing technology on the other. By "co-evolution" I mean that whenever one side finds a successful tactic, the other side will evolve to address that tactic, so that each side catalyzes the evolution of the other side's technology. The resulting arms race favors the filesharing side, for two reasons. First, the filesharing side can probably adapt faster than the anti-filesharing side; and speed is important in this kind of move-countermove game. Second, the defensive technologies that filesharing systems are likely to adapt are the same defensive technologies used in ordinary commercial distributed systems (end-to-end encryption, anti-denial of service tactics, reputation systems, etc.), so the filesharing side can benefit from the enormous existing R&D efforts on defensive technologies.

Welcome to the Blogosphere . . . to, a group blog (or webzine?) sponsored by the Manhattan Institute.

Legal Theory Bookworm This week, the Legal Theory Bookworm recommends The Spirit of Liberty by Learned Hand. This book requires no blurb or words of praise. Instead, I should like to simply include a quotation from Hand's A Personal Confession written in 1958:
    I have often said to myself, "What do you mean by interpreting." Here are the word used; but they have all kinds of fringes, as James used to call it. The occasion that has arisent wasn't actually provided for; the terms are inevitably equivocal and ambiguous. What do you mean by "what they were intended for"? Perhaps you won't agree, but the best I can make of it is that, as far as you can, you try to put yourself--imaginatively to project yourself--into the position (resuciate you might say) of the authors of those words at the time they uttered them. What would they have said had they been faced with the present occasion? Well, I know people who say this is a fantastic unreality, yet certainly in the case of statutes (I am not going to get into the Constitution) you really must ask yourself what they would have said.
We all read Hand's opinions, but his essays and speeches are wonderful reading. Don't miss this.

Download of the Week This week, the Download of the Week is The Unitary Executive in the Modern Era, 1945-2001 by Christopher S. Yoo and Steven G. Calabresi (Vanderbilt University - School of Law and Northwestern University - School of Law). Here is the abstract:
    The impeachment of President Clinton has reinvigorated the debate over Congress's authority to employ devices such as special counsels and independent agencies to restrict the President's control over the administration of the law. The initial debate focused on whether the Constitution rejected the "executive by committee" employed by the Articles of the Confederation in favor of a "unitary executive," in which all administrative authority is centralized in the President. More recently, the debate has begun to turn towards historical practices. Some scholars have suggested that independent agencies and special counsels have become such established features of the constitutional landscape as to preempt arguments in favor of the unitary executive. Others, led by Bruce Ackerman, have suggested that the New Deal represented a "constitutional moment" that ratified major changes in the distribution of power within the federal government. Still others have argued that the increased policymaking functions of the modern administrative state justify permitting Congress to impose greater limits on presidential control over the execution of the law. To date, however, a complete assessment of the historical record has yet to appear. This Article is part of a larger project that offers a comprehensive chronicle that places the battles between the President and Congress over control of the administration of federal law in historical perspective. It reviews the period between 1945 and 2001, beginning with the Administration of Harry Truman, ending with the Administration of Bill Clinton, and paying particular attention to the Clinton Impeachment. The record reveals that these Presidents consistently defended the unitariness of the executive branch to a degree sufficient to keep the issue from being foreclosed by history. In fact, the episodes discussed provide eloquent illustrations of the legal and normative arguments supporting the unitary executive.
Download it while its hot!

SSRN Top Recent Downloads The Social Science Research Network compiles lists of top ten downloads by subject matter. (Click on the category name for the full list of the top ten papers by number of downloads in the past 60 days.) Here are categories and selected papers of interest to legal theorists:

Friday, June 25, 2004
Blunkett Watch If you are concerned about the erosion of civil liberties, you will surely want to check out BlunkettWatch, maintained by by John Gardner, who admits to being an airy-fairy civil libertarian and is also the Professor of Jurisprudence at Oxford.

Constitutive Commitments Cass Sunstein & Randy Barnett (1. Sunstein, 2. Barnett, 3. Sunstein, 4. Barnett) are engaged in an interesting exchange on Sunstein's idea of "constitutive commitments," something more than mere policies and less than binding constitutional law. This is all in the context of Sunstein's claim that Roosevelt's "Second Bill of Rights":
    The right to a useful and remunerative job in the industries or shops or farms or mines of the Nation; The right to earn enough to provide adequate food and clothing and recreation; The right of every farmer to raise and sell his products at a return which will give him and his family a decent living; The right of every businessman, large and small, to trade in an atmosphere of freedom from unfair competition and domination by monopolies at home or abroad; The right of every family to a decent home; The right to adequate medical care and the opportunity to achieve and enjoy good health; The right to adequate protection from the economic fears of old age, sickness, accident, and unemployment; The right to a good education.
Sunstein's claim is that we (as a polity) have a constitutive commitment to these rights. And what is that?
    It would be nice to have a clear sense of necessary and sufficient conditions for constitutive commitments, but lacking these, let's make a rough first cut: A constitutive commitment is in place if over a significant period of time, a presidential candidate could not seriously question that commitment without essentially disqualifying himself. This means that the commitment must have both wide and deep support (and not just among academics, elites, or the media; a strong political majority is needed). We can imagine hard intermediate cases and the definition leaves ambiguities; but the prohibition on racial discrimination in employment, the antitrust laws, and some kind of social security program are evident examples -- and so too, I think, with a ban on the nationalization of industries and on federal taxes above a certain rate (eg Kennedy-era levels). Any nation will have some constitutive commitments that some reasonable people will reject; and reasonable people sometimes get those commitments to change over time.
Very interesting! I should think, however, that Sunstein hasn't really taken a "rough" cut at the criteria for "constitutive commitments," but rather has come up with a rough and ready test for their existence. In other words, the presidential disqualification test provides imperfect evidence for the existence vel non of a constitutive commitment. Why? The presidential disqualification test is conceptually mismatched to the idea of a "constitutive commitment." What would disqualify one as a serious Presidential candidate can depend on many things, only some of which might properly be called "constitutive" or "commitments." For example, my guess is that advocacy of drug legalization would pretty much doom any presidential candidate, but it simply does not follow that we have a "constitutive commitment" to criminalization of drugs. I don't think Sunstein himself would disagree. He believes that constitutive commitments must be deep (and not shallow). The point is that we really need some sense of what counts as deep for the notion of constitutive commitment to have real content. Mere duration will not do; as a shallow commitment can persist over time. It seems to me that the criterion for depth is likely to involve the content of the commitments and the relationship of that content to other beliefs. A constitutive commitment (in the sense that Sunstein seems to intend) is one that is conceptually entwined with other political ideals and beliefs about the nature of the political world.
One of the most interesting questions about constitutive commitments concerns how they come into being and how they change. In this respect, they are clearly quite different from both mere policies (embodied in statutes, orders, and regulations) and constitutional law (found in the written text of the constitution and the decisions of the courts). Laws come into being through more or less well-defined procedures. You can tell when a new statute has been enacted and when a constitution has been amended. "Constitutional commitments" are less definite. Of course, there may be moments when implicit and ill-defined commitments become crystallized and relatively clear: perhaps Roosevelt's speech was such a moment for basic economic rights. Such clarity is likely to be greatest when some great national event or challenge focuses national attention on a particular issue. Surely the Great Depression did focus the nation on the role of government in promoting jobs and prosperity. But as time passes, it seems likely that the crystallization will begin to erode and the content of the commitment will gradually less clear. Thus, assuming their was once a clear consensus on the commitment to (and meaning of) Roosevelt's list of economic rights, it seems likely that much of his program is now in some dispute. The commitment is both less broad and less deep than it once was. I take it, for instance, that the so-called Reagan Revolution (cemented in some sense by Clinton's welfare reform package) involved some erosion and modification of the constitutive commitments that Sunstein finds in Roosevelt's list of economic rights.
Read Barnett and Sunstein's fascinating posts.
Update: More here from Tim Sandefur.

Welcome to the Blogosphere . . . to Sentencing Law and Policy, a new blog authored by Douglas Berman (Ohio State).

Technicalities?In a New Republic Online op/ed, Dana Mulhauser takes the Supreme Court to task for deciding the Cheney energy commission case on technical grounds in a 7-2 decision. Here is a taste:
    The Cheney suit arose from the energy task force created by President Bush in 2001. The commission met in a series of private conferences and recommended that the solution to the country's energy woes was an increase in energy production. Interest groups sued under the Federal Advisory Committee Act, a 1972 law that orders committee records to be unsealed. Yesterday the Court simply sent the case back to the appeals court, with an instruction to "be mindful of the burdens imposed on the Executive Branch in any future proceedings." This comes on the heels of the Court's Pledge of Allegiance ruling, which was decided on standing grounds without regard to the merits of the case.
As C.E. Petit argues (see post below), the remand of the case on procedural grounds appears to be quite sound, and a product of lawyering error. So what is Mulhauser's position? Perhaps, Mulhauser believes that the Supreme Court should simply disregard procedural rules when it faces an important substantive issue. Perhaps, Mulhauser simply doesn't believe that procedural law is "hard law," endorsing instead the critical legal studies position, that "law is politics."
Mulhauser's core idea, that the Supreme Court should bend procedcural law, in order to facilitate its role as the final authority on all questions is one of the most pernicious in all of contemporary legal theory. The rule of law is precious and valuable; it cannot be maintained if the nation's highest court views the rules of procedures as mere instruments in the service of a policy agenda.

Friday Calendar

Kreit on Congressional Regulation of Noncommercial Activity Alex Kreit has posted Why is Congress Still Regulating Noncommercial Activity? (Harvard Journal of Law and Public Policy, Vol. 28) on SSRN. Here is the abstract:
    This essay considers the Commerce Clause broader regulatory scheme doctrine. Lower courts have adopted this doctrine, mentioned twice in United States v. Lopez, to uphold a wide range of federal noncommercial regulation from statutes that cover drug, gun, and child pornography possession to environmental and endangered species regulations. As a result, Lopez and United States v. Morrison thus far have not turned out to be the landmark cases they first seemed. Despite the central role the broader scheme doctrine has played in defining post-Lopez Commerce Clause power in lower court decisions, commentators surprisingly have overlooked it almost entirely. The one academic article to focus on the doctrine correctly argues that it creates perverse legislative incentives for Congress but makes only that limited contribution. As broader scheme cases work their way toward the Supreme Court, the oversight is especially significant. This essay provides the first thorough examination of the broader scheme doctrine, argues that the prevailing interpretation by lower courts is misguided, and proposes a new framework for analyzing broader scheme questions. The analysis reveals that lower courts have upheld noncommercial activity by mistakenly relying on Wickard v. Filburn in their interpretation of the broader scheme doctrine. Instead, the broader scheme doctrine finds its roots in cases like Maryland v. Wirtz and Hodel v. Virginia Surface Mining & Reclamation Association. I propose a new framework for analyzing broader scheme questions based on the Wirtz and Hodel enterprise theory. This framework adheres to Lopez's substantive limits against federal regulation of purely local, noncommercial activity by permitting Congress to regulate noncommercial activity only when performed as part of an economic enterprise.
I was especially interested in Kreit's analysis of Wickard v. Filburn. Here is the crucial passage:
    Lopez recognized the economic nature of the activity involved as the principle distinguishing fact of previous substantial effects cases such as Wickard.138 In particular, Lopez found that Wickard “involved economic activity in a way that the possession of a gun in a school zone does not.” This assertion is noteworthy because the Wickard Court clearly stated that the individual instance of wheat production at issue was not commercial.140
Footnote 140 reads:
    See United States v. Wickard, 317 U.S. at 128 (nothing that Filburn’s activity could be regulated “though it may not be regarded as commerce”). See also, Jesse Chopper, Taming Congress’s Power Under the Commerce Clause: What Does the Near Future Portend?, 55 ARK. L. REV. 731, 744 (2003) (noting that the Lopez majority’s observation that aggregation was only applied to economic activity was “contradicted by the Wickard Court’s analysis”).
It would seem to me that the cited passage from Wickard does not provide clear support for the proposition in text. Feeding farm-grown wheat to livestock is not itself commerce--that's what the Wickard court states. But that does not entail that feeding livestock (raised for sale) is not part of an economic activity; because of course, the wheat is a factor of production and hence is, clearly, part of an economic activity. "Commerce" was not a synonym for "economic" at the time the Wickard opinion was written; rather, the "economic activity test" that features in the new Federalism cases, Lopez and Morrison is, as far as I can tell, basically a contemporary idea.
This is a very interesting article on a very important topic. Highly recommended!

Petit on the Cheney Case C.E. Petit has a very informative post on procedural issues in the Cheney case. Here's a taste:
    [I]mportant constitutional questions—among them, the one stated by Justice Thomas—will go unanswered because the trial attorneys made three pretty basic errors in procedure. First, they didn't use other discovery devices available to create a sufficient record to even allow an opinion. . . . Second, the case never should have reached the Supreme Court because the appeal was taken too soon. An "interlocutory" appeal (one before final judgment) should be allowed only when the result of the appeal (1) turns on a pure question of law and (2) will materially advance the process of the case in the trial court. . . . Finally, and perhaps most critically, the wrong remedy was at issue.
Read the whole thing for a very persuasive analysis.

Yoo & Calabresi on the Unitary Executive Christopher S. Yoo and Steven G. Calabresi (Vanderbilt University - School of Law and Northwestern University - School of Law) have posted The Unitary Executive in the Modern Era, 1945-2001 on SSRN. Here is the abstract:
    The impeachment of President Clinton has reinvigorated the debate over Congress's authority to employ devices such as special counsels and independent agencies to restrict the President's control over the administration of the law. The initial debate focused on whether the Constitution rejected the "executive by committee" employed by the Articles of the Confederation in favor of a "unitary executive," in which all administrative authority is centralized in the President. More recently, the debate has begun to turn towards historical practices. Some scholars have suggested that independent agencies and special counsels have become such established features of the constitutional landscape as to preempt arguments in favor of the unitary executive. Others, led by Bruce Ackerman, have suggested that the New Deal represented a "constitutional moment" that ratified major changes in the distribution of power within the federal government. Still others have argued that the increased policymaking functions of the modern administrative state justify permitting Congress to impose greater limits on presidential control over the execution of the law. To date, however, a complete assessment of the historical record has yet to appear. This Article is part of a larger project that offers a comprehensive chronicle that places the battles between the President and Congress over control of the administration of federal law in historical perspective. It reviews the period between 1945 and 2001, beginning with the Administration of Harry Truman, ending with the Administration of Bill Clinton, and paying particular attention to the Clinton Impeachment. The record reveals that these Presidents consistently defended the unitariness of the executive branch to a degree sufficient to keep the issue from being foreclosed by history. In fact, the episodes discussed provide eloquent illustrations of the legal and normative arguments supporting the unitary executive.
Highly recommended!

Klass on Compelled Subsidization Gregory Klass has posted The Very Idea of a First Amendment Right against Compelled Subsidization on SSRN. Here is the abstract:
    On March 24, the Supreme Court granted certiorari in Veneman v. Livestock Marketing Associations, Docket No. 03-1164, which presents the question of whether mandatory assessments on beef producers used to fund generic beef advertising violate the First Amendment rights of dissenting industry members. The Court undoubtedly decided to hear the case to resolve the sharply diverging reasoning in its two earlier decisions on industry-association advertising, Glickman v. Wileman Brothers and Elliot, 521 U.S. 457 (1997), and United States v. United Foods, 533 U.S. 405 (2001). This article discusses the compelled subsidization doctrine, which holds that there is a First Amendment right not to subsidize the speech of others. The Supreme Court has considered the First Amendment rights of dissenters in the context of mandatory union dues, bar association payments, state university student fees, and industry-association advertising. This article argues that the Court has failed in these cases to formulate a clear, universally applicable test for deciding when the right against compelled subsidization is violated, and that this failure results from the lack of a coherent account of what First Amendment interests are at stake in compelled subsidization. It also recommends an alternative account of wherein the right lies, which is the danger of covert state subsidization of one side or another in public debate on contentious political or ideological issues. From this account follows a new general test: The compelled subsidization of the speech of others violates the First Amendment just when the funds collected are used to promote the message of an identifiable viewpoint or interest in debate on a controversial political or ideological issue. In addition to making specific recommendations on how Veneman should be decided, the article briefly describes the connections between the compelled subsidization doctrine and the Court's recent rulings on campaign finance regulation, particularly McConnell v. Federal Election Commission, 124 S.Ct. 619 (2003). Not only do both lines of cases raise the question of whether money is ever speech, but both also turn on the extent to which the First Amendment protects not only individual expressive rights, but the integrity of public political debate.

At & Chappe on Claim Selection by Lawyers Christian At and Nathalie Chappe (University Franche-Comte - CRESE and Université de Franche-Comté) have posted The Lawyer as a Portfolio Manager: How does the Fee System Influence on the Lawyer's Decision of Handling Legal Claim? on SSRN. Here is the abstract:
    In this article the lawyer acts as a portfolio manager. Through a portfolio analysis, we offer some insights into the widespread idea that contingency lawyers are providing a risk sharing service. We demonstrate that a lawyer paid at an hourly rate chooses a fully concentrated portfolio, whereas a contingency lawyer chooses a diversified portfolio.

Bhattacharya and Daouk on No Law Utpal Bhattacharya and Hazem Daouk (Indiana University and Cornell University - Department of Applied Economics and Management) have posted When No Law is Better Than a Good Law on SSRN. Here is the abstract:
    This paper argues, both theoretically and empirically, that sometimes no security law may be better than a good security law that is not enforced. The first part of the paper formalizes the sufficient conditions under which this happens for any law. The second part of the paper shows that a specific security law - the law prohibiting insider trading - may satisfy these conditions, which implies that our theory predicts that it is sometimes better not to have an insider trading law than to have an insider trading law but not enforce it. The third part of the paper takes this prediction to the data. We revisit the panel data set assembled by Bhattacharya and Daouk (2002), who showed that enforcement, not the mere existence, of insider trading laws reduced the cost of equity in a country. We find that the cost of equity actually rises when a country introduces an insider trading law, but does not enforce it.

Sugin on Rawls & Distributive Justice Linda Sugin (Fordham University School of Law) has posted Theories of Distributive Justice and Limitations on Taxation: What Rawls Demands from Tax Systems (Fordham Law Review, Vol. 72, 2004) on SSRN. Here is the abstract:
    In The Myth of Ownership, Liam Murphy and Thomas Nagel offer a devastating critique of traditional tax policy analysis and its partial justice orientation, and demand that taxation be evaluated as part of a broader overall scheme of economic justice. This paper, presented as part of Fordham Law School's conference on Rawls and the Law, considers how to approach tax policy in light of their analysis, and how to understand what John Rawls' theory of justice requires of a system of taxation under that approach. It argues that the connection between taxes and justice is less specific than we might hope, and that theories of justice generally do not endorse particular tax policies, but are more likely to preclude them. Rather than searching in theories of justice for required precepts of taxation, we might more fruitfully ask what constraints, if any, a particular theory of justice imposes on the tax system. By applying this approach to Rawls' ideas about taxation, his endorsement of a flat consumption-based tax, which is quite puzzling in light of much of what Rawls wrote about economic justice, can be better understood. If we read Rawls' discussion of economic justice to offer limitations, rather than mandates, then a wide variety of tax systems may be part of a just Rawlsian society, and Rawls' first principle of justice, which concerns political rights, imposes more significant limitations on systems of taxation than does his second principle, even though the second principle explicitly concerns economic rights.

Thursday, June 24, 2004
Thursday Calendar
    At Florida State University, Mark Seidenfeld, FSU College of Law, presents Why Agencies Act: Rational, Psychological and Institutional Influences on Agency Decisions to Regulate.
    At the American Enterprise Institute, War, International Law, and Sovereignty: Reevaluating the Rules of the Game in a New Century. Speakers include John R. Bolton, Stephen Rademaker, Jeremy Rabkin, and John Yoo.
    Reasons and Rationality continues today at ANU.

Valauri on McCulloch & the Fourteenth Amendment John T. Valauri (Northern Kentucky University - Salmon P. Chase College of Law) has postedMcCulloch and The Fourteenth Amendment (Temple Political & Civil Rights Law Review, 2004) on SSRN. Here is the abstract:
    The issue of the nature and scope of Congress' enforcement power under section five of the Fourteenth Amendment has been a source of ongoing debate and discussion since the adoption of that amendment. This dispute has only intensified since the Supreme Court's 1997 decision in City of Boerne v. Flores, which limited congressional power to remedial, rather than substantive, measures through a "congruence" and "proportionality" test. City of Boerne has been the target of extensive attack from the date of its decision. Chief Justice John Marshall's classic 1819 opinion in McCulloch v. Maryland has been one of the main clubs used by critics to beat up on the Court here. Although McCulloch was a Commerce Clause case decided a half century before the adoption of the Fourteenth Amendment, its relevance to City of Boerne is manifest. Both the framers of the amendment and its early judicial interpreters hearkened back to Marshall's "necessary and proper" analysis of Congress' power to enforce its enumerated powers. My paper develops two ironies in the McCulloch-based critique of City of Boerne. The first and larger irony derives from the fact that these critics misunderstand McCulloch. Despite the appearance given by the progress of the controversy to date, the Court's opinion in City of Boerne is, in fact, consistent with Marshall's McCulloch doctrine of Congress' enforcement (he would say "incidental") powers. Marshall's doctrine, which derives from Alexander Hamilton's arguments in The Federalist and Opinion on the Constitutionality of the Bill for Establishing a National Bank and which is also repeated in Joseph Story's Commentaries on the Constitution, places a means/ends limitation on the exercise of Congressional enforcement power, not the looser rational basis non-limit proffered by City of Boerne critics. The means/ends or "necessary and proper" doctrine of congressional enforcement/incidental power finds support not merely in history and precedent, but also in the text of the Constitution (especially the "Necessary and Proper Clause") and the structure of the government it puts in place (a federal system, no longer a confederation, and not a unified national system like England or France). The second and double irony is that the very doctrine put in Marshall's mouth by contemporary doubters of City of Boerne is precisely that with which he was accused in the 1819 attack on McCulloch by the "Richmond Junto" and which he refuted in his pseudonymous defense as a "Friend of the Union."

Bellia on Executive Power Patricia L. Bellia (Notre Dame Law School) has posted Executive Power in Youngstown's Shadows (Constitutional Commentary, Vol. 19, No. 1, pp. 87-154, 2002) on SSRN. Here is the abstract:
    Fifty years after it was handed down, the Supreme Court's decision in Youngstown Sheet & Tube Co. v. Sawyer is among the most important of the Court’s separation of powers cases. This Article explores two quite different legacies of the Youngstown case. First, Youngstown has a symbolic or rhetorical power, in that it stands as an example of a court invalidating the actions of a coordinate branch of government in a politically delicate context. When a court wields this weapon, it can take some cover in Youngstown’s shadows, and the possibility of a court exercising this power disciplines the executive branch. Second, the Youngstown case, and particularly Justice Jackson's concurrence, is of special importance to "congressional primacy" scholars, who believe that the Constitution is best read to lodge most foreign affairs powers with Congress. The Article argues that Youngstown offers fewer lessons for analyzing problems of presidential power in foreign affairs than congressional primacy scholars suggest. In particular, the case offers no general theory of the scope of the President's constitutional powers with respect to foreign affairs. Moreover, contrary to scholars' assertions, the case provides no basis for courts to construe statutory delegations of authority to the executive in the foreign affairs area any more narrowly than statutory delegations of authority in purely domestic contexts. In fact, Justice Jackson's opinion in Youngstown contains the seeds of a misplaced political question doctrine, in that it allows courts to skirt questions about the President's constitutional authority in foreign affairs.

Norton on the Interesting in the Integrity of Government Expression Helen L. Norton (University of Maryland - School of Law) has posted Not for Attribution: Government's Interest in Protecting the Integrity of it's Own Expression (UC Davis Law Review, Vol. 37, pp. 1217-1350, 2004) on SSRN. Here is the abstract:
    Public entities increasingly maintain that the First Amendment permits them to ensure that private speakers' views are not mistakenly attributed to the government. Consider, for example, Virginia's efforts to ban the Sons of Confederate Veterans' display of the Confederate flag logo on state-sponsored specialty license plates. Seeking to remain neutral in the ongoing debate over whether the Confederate flag is a symbol of hate or heritage, Virginia argued that the state would be wrongly perceived as endorsing the flag if the logo appeared on a state-issued plate adorned by the identifier VIRGINIA. The Fourth Circuit was unpersuaded, holding that the logo’s exclusion violated the First Amendment. Such clashes between public and private entities' expressive claims raise a series of interesting questions. Do governmental entities have a legitimate interest in ensuring that they are not mistakenly understood as endorsing or delivering what are actually the views of private speakers? If so, what actions does the First Amendment permit them to take to protect that interest? As disputes involving these questions rise in number, courts increasingly search for guidance. Cases that appear to involve elements of both government and private speech are especially challenging given current constitutional doctrine that appears to demand a choice between one or the other. Too often, courts fail or refuse to acknowledge that government itself is speaking in a particular context, and thus has an interest in protecting the integrity of its own expression. Even those courts that acknowledge the legitimacy of government's interest in protecting its own expressive integrity too often muddy the waters by claiming to apply some sort of forum doctrine. The better framework is to understand these not as forum cases, but situations in which government itself is speaking - either on its own or jointly with a private speaker - and is thus free to protect the integrity of its own expression by protecting what is truly its own speech from being appropriated by others. For these reasons, we should think more carefully about the circumstances under which private speech may be mistakenly understood as that of the government. I suggest that government can persuade us that its efforts are not a pretext for squelching unpopular or inconvenient private speech by demonstrating that it is itself speaking and that it reasonably fears that, absent preventive action, its speech will be mistakenly perceived to endorse others' expression. Particularly helpful factors in assessing competing private and governmental claims to the same expression include the identity of the literal speaker, the reasons for governmental and private participation in the program at issue, the availability of alternative avenues for ventilating the private expression, and the effectiveness of government disclaimers or rebuttals.

Caudill & LaRue on Expert Testimony David S. Caudill and Lewis H. LaRue (Washington and Lee University - School of Law and Washington and Lee University - School of Law) have postedNon-Romantic View of Expert Testimony (Seton Hall Law Review, Vol. 35, No. 1, 2004). Here is the abstract:
    The Daubert trilogy as a whole deflects attention away from abstract identifications of scientific validity (including the demarcation controversy aimed at rooting out allegedly junk science from the courtroom), and toward the application of expertise to the particular case at hand. That emphasis on application is reflected as well in post-trilogy scholarship, wherein we see three patterns or contours that both help quiet the debates and provide useful guidance to judges and lawyers. First, there is a pragmatic recognition, in various forms, that the focus should be on how science is being used rather than on science in the abstract. Second, that focus must be accompanied by a modest view of science rather than an idealized version of its capacity to produce knowledge for law. Third, the focus on the application phase of expertise must also be accompanied by a modest view of law itself, including judges, lawyers, juries, and the evidentiary rules. It is far too easy, in the post-trilogy series of debates, to romanticize the power of science, or the virtues of the legal system, or both, and to fail to recognize their practical limitations. Romantic images of science are often bolstered by demonizations of forensic scientists, plaintiff's experts, or social science, just as romantic images of law often rely on demonizations of judges untrained in science, lawyers as overly zealous advocates, or jurors as emotional, uncritical, and confused. Thus the pragmatic emphasis on application needs to be mediated by pragmatic views of science and law. Fortunately, the pragmatic aspects of science and law-which we associate with their local, social, rhetorical, and institutional features-are most visible in the focus on application. Nevertheless, in the heat of debate, the limitations of law and science often recede into the background, which results in undue attention to red herrings as well as unrealistic proposals for reform.

Call for Papers: Virtue Epistemology
    Virtue Epistemology Stirling Management Centre University of Stirling 19th-21st November, 2004 Conference Overview This conference aims to bring together some of the leading philosophers in the world to discuss epistemological themes that fall broadly under the title of Virtue Epistemology. For the conference homepage, go to: This event is generously sponsored by The Philosophical Quarterly. The proceedings of this conference are provisionally scheduled to appear in a special issue of Philosophical Studies. The conference has been timed to coincide with Professor John Greco's visit to the Department of Philosophy at the University of Stirling as a 2004 Scots Philosophical Club Centenary Fellow. For further details about this visit, go to: This event forms part of the Knowledge, Mind and Value project that is based at the Department of Philosophy at Stirling. For more details about this project and its activities, go to: Speakers & Commentators Sven Bernecker (Manchester) John Greco (Fordham) Susan Haack (Miami) Chris Hookway (Sheffield) David Owens (Sheffield) Ernest Sosa (Brown/Rutgers) Michael Brady (Stirling) Jonathan Dancy (Reading) Jonathan Knowles (Oslo) Andrew McGonigal (Leeds) Alan Millar (Stirling) Duncan Pritchard (Stirling) René van Woudenberg (Amsterdam) Call for Papers There will be a number of open parallel sessions at the conference for submitted papers, including sessions specifically for postgraduate students. Reading time will be 25 minutes for postgraduate presentations, with 25 minutes discussion, and 30 minutes for non-postgraduate presentations, with 30 minutes discussion. Submitted papers should be relevant to the conference theme and of a length that is suited to the allotted time. The deadline for submissions is October 1st, 2004. Submissions should be sent to: Virtue Epistemology Conference Paper Submission, c/o Dr. Duncan Pritchard, Department of Philosophy, University of Stirling, Stirling, FK9 4LA Scotland, UK E-mail submissions will also be considered, provided that the files are in a suitable format. E-mailed submissions should be directed to Dr. Duncan Pritchard at It is a precondition of having a paper accepted for the conference programme that the speaker is registered for the conference. Registration The conference will be held at the Stirling Management Centre which is situated on the University of Stirling campus (and which is also an hotel). Delegate numbers for this conference are strictly limited and will be filled on a first-come, first-served basis. Given that interest in this event is expected to be high, prospective delegates are encouraged to register early. The full registration fee is £50, which includes lunch on both the Saturd= ay and the Sunday, tea/coffee throughout the conference, and the conference dinner on the Saturday night (including wine). A reduced registration fee of £40 is available for those who do not wish to attend the conference dinne= r. A limited number of postgraduate bursaries are available which refund the equivalent of the full conference fee. These will be allocated on a first-come, first-served basis. A registration form can be found on the conference webpages. There will also be a pre-conference dinner on Friday 19th November for those who have arrived early for the conference (and also a pre-conference talk - more details about this to follow). This will cost £25 per head, which includes wine and transportation costs between the Philosophy Department and the restaurant. Further Information For further information about the conference, including details about how to register, go to: Alternatively, you can contact either of the conference organisers, Dr. Michael Brady ( and Dr. Duncan Pritchard (

Call for Papers: Theorizing Disability
    Theorizing Disability: a Society for Critical Exchange session at the Northeast Modern Language Association Convention in Cambridge, Mass., March 31-April 2, 2005. Papers that consider the study of or analyze discourses surrounding ability and disability, involving disciplinary frameworks across the humanities as well as other fields. Presentations may engage any relevant theory, including critique of the theoretical underpinnings of the study of disability and/or the notion of ability. Abstracts due 9/15/04 to Scott DeShong, or alternatively Quinebaug Valley Community College, 742 Upper Maple St., Danielson CT 06239, USA. For more information on NEMLA and its annual convention see

Call for Papers: Nations and Nationalism
    Nations and Nationalism Published by Blackwell Publishing on behalf of the Association for the Study of Ethnicity and Nationalism Nationalism is one of the central issues of the modern world. Since the demise of the Soviet Union there has been a proliferation of nationalist and ethnic conflicts. The consequent explosion of interest in ethnicity and nationalism has created an urgent need for systematic study in this field. Nations and Nationalism aims to satisfy this need. As a scholarly, multidisciplinary and interdisciplinary journal, it is designed to respond to the rapid growth of research in the study of nationalism and nationalist movements throughout the world. Nations and Nationalism is the only journal in the English-speaking world specifically devoted to the study of nationalism. Print ISSN: 1354-5078 Online ISSN: 1469-8129 The Editors Nations and Nationalism European Institute London School of Economics Houghton Street London WC2A 2AE UK Content available by subscription. Free sample issue available online. See: Current Issue: Volume 10: Issue 1, January 2004 Date: 14 June 2004

Call for Papers: On the Good, Goods and the Good Life
    Final Call for Papers - Proposals Due 25th June BIENNIAL CONFERENCE IN PHILOSOPHY, RELIGION AND CULTURE "On the Good, Goods and the Good Life" The topic is intended to be interpreted broadly and to cover a wipe scope of interests - metaphysical, socio-political and ethical. Such areas can be addressed from the points of view of literature, the arts, social sciences, religion, theology and philosophy. Both work on contemporary issues and historical scholarship are welcomed. The conference specifically aims to foster interaction between scholars in the universities and scholars in theological colleges. It also encourages young scholars. Saturday 2nd and Sunday 3rd October 2004 9am - 6pm Catholic Institute of Sydney 99 Albert Rd, Strathfield NSW 2135 Convenors: Peter Forrest (UNE), David Dockrill (University of Newcastle), Stephen Curkpatrick (MCD & Monash), Andrew Murray (Catholic Institute of Sydney). Registration fee: $77 ($55 students) includes morning/afternoon teas and lunch. An informal reception will be held on the Friday night. A conference dinner will be held on the Saturday night. (Booking and payment of $33 required by September 21). All prices include GST. For further details on proposal submission (deadline June 25), available accommodation and registration forms please contact Andrew Murray at Catholic Institute of Sydney. Phone (02) 9752 9500 Fax (02) 9746 6022 Email: Information will also be posted on the website:

Book Announcement: Deliberative Democracy in America
    Deliberative Democracy in America: A Proposal for a Popular Branch of Government By Ethan J. Leib 3/17/2004 | 168 pgs | 6 x 9 Political Science, American Politics, Political Theory trade | 0-271-02363-5 Penn State University Press We are taught in civics class that the Constitution provides for three basic branches of government: executive, judicial, and legislative. While the President and Congress as elected by popular vote are representative, can they really reflect accurately the will and sentiment of the populace? Or do money and power dominate everyday politics to the detriment of true self-governance? Is there a way to put “We the people” back into government? Ethan Leib thinks there is and offers this blueprint for a fourth branch of government as a way of giving the people a voice of their own. While drawing on the rich theoretical literature about deliberative democracy, Leib concentrates on designing an institutional scheme for embedding deliberation in the practice of American democratic government. At the heart of his scheme is a process for the adjudication of issues of public policy by assemblies of randomly selected citizens convened to debate and vote on the issues, resulting in the enactment of laws subject both to judicial review and to possible veto by the executive and legislative branches. The “popular” branch would fulfill a purpose similar to the ballot initiative and referendum but avoid the shortcomings associated with those forms of direct democracy. Leib takes special pains to show how this new branch would be integrated with the already existing governmental and political institutions of our society, including administrative agencies and political parties, and would thus complement rather than supplant them.

New from Law and Politics Book Review
  • PUBLIC LAW, by Adam Tomkins. Oxford: Oxford University Press, 2003. 256pp. Paper $24.95 / £16.99. ISBN: 9-780199-260775. Reviewed by Mary L. Volcansek.
  • THE PRICE OF RIGHTS: THE COURTS, GOVERNMENT LARGESSE, AND FUNDAMENTAL LIBERTIES, by Daniel C. Kramer. Peter Lang, 2004. 216pp. Paper. ?25.00 / £18.00 / US$29.95. ISBN: 0-8204-6153-9. Reviewed by Dr. Christopher Malone.
  • THE IDEA OF PUBLIC LAW, by Martin Loughlin. Oxford: Oxford University Press, 2003. 199pp. Paperback. $29.95 / £15.99. ISBN: 0-19-927472-X. Cloth $72 / £40. ISBN: 0-19-926723-5. Reviewed by Ethan J. Leib.
  • CONSTITUTIONAL JUSTICE: A LIBERAL THEORY OF THE RULE OF LAW, by T.R.S. Allan. Oxford: Oxford University Press, 2003. 342pp. Hardcover. $105.00 / £52.50. ISBN: 0198298307. Paper. $29.95 / £19.99. ISBN: 019926788X. Reviewed by Beau Breslin.
    REGULATION IN THE STATES, by Paul Teske. Washington, DC: The Brookings Institution, 2004. 272pp. Cloth $52.95. ISBN: 0-8157-8312-4. Paper $22.95. ISBN: 0-8157-8313-2. Reviewed by Tracy Lightcap.

Book Announcement: The Higher Law: Thoreau on Civil Disobedience and Reform
    The Higher Law: Thoreau on Civil Disobedience and Reform Henry D. Thoreau Edited by Wendell Glick With an introduction by Howard Zinn To read the introduction, please visit: These thirteen selections from the polemical writings of Henry D. Thoreau represent every stage in his twenty-two years of active writing. This edition, introduced by writer and historian Howard Zinn, is a microcosm of Thoreau's literary career. It allows the reader to achieve a full sense of Thoreau's evolution as a writer and thinker. To read the entire book description, go to: 0-691-11876-0 Paper $12.95 US and L8.95 232 pages. 5 x 8.

Wednesday, June 23, 2004
More on Brad Hooker Over at Pea Soup, Douglas Portmore has a post on Brad Hooker and Rule Utilitarianism. Here's a tiny morsel:
    According to Hooker’s version of rule-consequentialism (RC), the criterion of rightness is as follows: “An act is wrong if and only if it is forbidden by the code of rules whose internalization by the overwhelming majority of everyone everywhere in each new generation has maximum expected value in terms of well-being (with some priority for the worst off).”

Gathii on Rights Upon Conquest and Iraq James Thuo Gathii (Albany Law School) has posted Foreign and Other Economic Rights Upon Conquest and Under Occupation: Iraq in Comparative and Historical Context (University of Pennsylvania Journal of International Economic Law, Vol. 25, No. 2, p. 491, Summer 2004) on SSRN. Here is the abstract:
    Under customary international law, conquest does not extinguish pre-existing private property and contract rights. However, the applicability of this classical rule has been restricted in scope and at best it has been applied inconsistently over the last century. This article examines the rationales underlying the rule and the reasons accounting for the uneven and inconsistent application of its prohibition of extinction of private property and contract rights upon conquest. I argue that the primary reason accounting for its uneven and inconsistent application has been to facilitate the political expediency and hegemony of conquering states over weaker and vulnerable states. Hence, courts have held treaties embodying this rule that private property rights shall be inextinguishable upon conquest, are subject to the overriding constraint of their compatibility with national policy during times of war. In the United States, such views have been fortified by judicial attitudes reluctant to use international law to restrain the Executive Branch especially with regard to war time decisions. It follows that the prohibition against extinguishing private property and contract rights upon conquest is more likely honored by conquering states when it is most compatible with their interests. For example, the prohibition is often enforced to secure the private property rights of nationals from a powerful belligerent state who are domiciled in a weaker state vulnerable to conquest. Yet, the private property rights of weaker enemy states are often subject to sequestration or confiscation. It is therefore not surprising that following the U.S.-led conquest of Iraq in the early 2003, most scholarly and press coverage has focused on the status of the foreign corporations' property in Iraq before the war. By contrast, there has been little attention given to the impact of the conquest on the private property and contracts of Iraqi citizens entered into before the war. In addition, the human rights of the Iraqi people for the most part took a back-seat during the conquest and only emerged in significance in the planning of returning sovereign control of the country back to Iraqis. This difference in the application of the rule against extinction of private property rights and contracts upon conquest is not a post-second World War phenomenon but rather a reflection of a more systemic disregard of rights of non-European peoples going back decades in the history of international law. Thus, as Native American ownership of land in early America history was held to have been extinguished upon conquest, and the various peace treaties between the United States and Spain treated Native American ownership of land as mere possession. Similar possession of land by White colonial settlers was held to constitute unimpeachable private property interests upon conquest. While under the classical international law rule, conquest does not extinguish pre-existing private property and contract rights, as a general matter, the municipal law of conquering states often requires the suspension of all contracts, except those of necessity at the beginning of hostilities between states. Thus the national security interests and the political exigencies in preventing free commerce between belligerent states over time modified and relaxed the rule against extinction of private property and contract rights upon conquest. For example, trading with enemy laws in the U.S. and the U.K. authorize the confiscation, and sequestration of the property and contracts of enemy nationals. The rationale for these actions has been to prevent enemy nationals from helping their home state in the war effort. By contrast to the rule prohibiting extinction of private property rights by conquest, the protection of private property and contract rights under military occupation has a much lower threshold. Though the occupying power is required to respect pre-existing private property rights, interferences are permissible where they accord with the requirements laid down under Articles 48, 49, 51, 52, 53, 54, and 56 of the Hague Regulations of the 1907 Hague Convention. However, these provisions do not anticipate all possible scenarios where the private property of enemy state nationals may be interfered with by an occupying power. This arguably gives occupying powers wiggle room to interfere with private property rights in occupied territory much more broadly than conquest does. In addition, expansive readings of the duties of an occupying power under Article 43 of the Hague Regulations have in practice justified broad authority. It is also credible to claim that there are differences in some aspects of the treatment of the private property of the Fascists and Nazis, whom the Allied powers authorized to continue receiving certain payments such as pensions, as opposed to Japanese ultranationalists or Iraqi Baathists. Thus, while the Fascists and Nazis were defeated by conquest and their territory occupied, their private property rights were relatively better protected than those of the defeated Japanese after World War II and more recently those of the Baathists in Iraq after the U.S.-led conquest. In Part Two of the paper, I examine the rule against extinction of private property and contract rights, its rationales and why it has changed over time. In Part 3, I examine how the rule against extinction of private property rights and contracts upon conquest has been most attenuated in situations of non-western states conquered by western states, compared to the conquests among European states. This difference in the extinction of private property rights and contracts upon conquest is, I argue, a systemic expression of the hegemonic power of conquering states that goes back decades in the history of international law. To show that this hegemonic impulse to override private property rights of non-Europeans upon conquest in the history of international law, I discuss a 1905 House of Lords decision that explicitly found the rule against extinction was preempted by the overriding prerogatives of the Crown. I also discuss Indian ownership of territory in colonial America which upon conquest was treated as constituting mere possession, while similar possession of land by White colonial settlers was held to constitute unimpeachable private property interests. Part 4 is the most ambitious part of the paper. I explore whether the conquest of Iraq is exhibiting a parallel process of privileging and protecting foreign economic interests while under-protecting the property rights of Iraqis under the U.S.-led occupation as demonstrated in Part 3. To do so, first I outline the law governing treatment of private property under occupied territory before discussing the variety of claims that Iraqis in general and Iraqi women in particular may bring under the international legal regime to secure their private property rights adversely affected by conquest and occupation. I also discuss the international law governing treatment of Iraqi public assets under occupation and how the "De-Baathification" of Iraq compares and contrasts with similar occupation reconstruction programs in Nazi Germany, Fascist Italy, and Japan. In Part 4, I also examine the process of transforming the Iraqi economy into an open market economy and illustrate how the doctrine of military necessity, and the political and hegemonic objectives of transforming Iraq have justified expansive powers of the United States as an occupying power beyond those contemplated by Article 43 of the Hague Regulations. These powers include the authority to expropriate private property rights, and the privatization of formerly publicly owned wealth in an unprecedented transformation of the Iraq economy into a market economy. This Section ends with an examination of whether a future Iraqi government would be bound by the decisions of the U.S.-led occupation, and the alternative forums that Iraqis may turn to for remedies as a result of adverse consequences to their economic interests and their limitations that these alternatives pose.

Wu on the Broadband Debate Tim Wu (University of Virginia School of Law) has posted The Broadband Debate: A User's Guide (Journal of Telecommunications and High Technology Law, Forthcoming) on SSRN. Here is the abstract:
    What follows is a basic guide to the policy divisions in the broadband debate that have emerged and some suggested areas of reconciliation. For simplicity sakes I divide the argument to a debate between the openists and the deregulationists. The summary is critical. I fault the openists for being too prone to favor regulation without making clear the connection between ends and means. For example, too few openists have asked the degree to which the structural "open access" remedies pushed by independent service providers actually promote the openists' vision. Meanwhile, I fault the deregulationists two reasons. First, the deregulationists have overlooked the fact that limiting government, as they desire, sometimes requires government action. Remedies like network neutrality, for reasons I suggest, may be as important for control of government as it is of industry. I also fault the deregulationists for an exaggerated faith in industry decision-making. I suggest that some deregulationists have failed to familiarize themselves with the processes of industry decision-making before demanding deference to it. This is a particularly serious problem given an industry with a recent track record of terrible judgment and even outright fraud. One example is the demand by some deregulationists that deference is due to a so-called mart pipe vision, without analysis of whether that vision has any independent merit. The Article, finally, seeks to reconcile the two sides of the broadband debate and defends the network neutrality principle as a starting point. Deregulations and openists, while divided along many lines, share a common faith in innovation as the basis of economic growth. Both sides, in short, worship Joseph Schumpeter and his ideas of competitive, capitalistic innovation. Fidelity to this shared faith should mean mutual surrender of idealized models of either government or powerful private entities, respectively, in exchange for a shared cynicism. We should recognize that both government and the private sector have an unhappy record of blocking the new in favor of the old, and that such tendencies are likely to continue. The deregulationist and openist should reconcile by remembering their common dedication to the principle of free and unmediated market entry, symbolized by the rubber-cup of Hush-A-Phone. It is by returning to such points of consensus that the reconciliation of communications policy can begin. I argue that neither deregulationists or openists should have reason to oppose Network Neutrality rules that create rights in users to use the applications or equipment of their choice. What both sides should want in an inevitable regulatory framework for broadband are rules that pre-commit both industry and government to open market entry. It must be remembered that rules creating rights in users also guarantee the right of operators to enter the application market, free of government hindrance. For these and other reasons discussed below, limited network neutrality rules should on reflection be attractive to both sides.

Miller on the Merits in Class Certification Geoffrey P. Miller (New York University School of Law) has posted Review of the Merits in Class Action Certification on SSRN. Here is the abstract:
    In Eisen v. Carlisle & Jacquelin, the Supreme Court declared that federal courts may not "conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action." This proscription - sometimes known as the "Eisen" rule - has become a pillar of class action practice, both under Federal Rule of Civil Procedure 23 and under state-court class action procedures. The rule can have a crucial influence on whether a case is certified as a class action - and, given the importance of certification, on the success or failure of the litigation. This Article analyzes the proper scope of a court's inquiry into merits issues when ruling on motions to certify a class. Part I of the Article distinguishes three approaches to this question: strong-form rules that prohibit inquiries into the merits and require the court to accept as true the well-pleaded allegations in the complaint; weak-form rules that permit reasonable inquiries into the merits as relevant to certification and usually place burdens of production and persuasion on the plaintiff; and super-weak rules which permit or require the court to investigate the class's chances of success in the litigation and place burdens of production and persuasion on the plaintiff. Parts II-VI compare these rules with respect to the values of fidelity to law, accuracy in adjudication, fairness in judgments, fairness in settlements, and judicial economy. Part VII argues that weak-form rules are superior to the alternative approaches.

Palrey, Johnson, & Crawford on Internet Governance John Palrey, David Johnson & Susan Crawford have posted The Accountable Net: Peer Production of Internet Governance on SSRN. Here is the abstract:
    Three problems of online life - spam, informational privacy, and network security - lend themselves to the peer production of governance. Traditional sovereigns have tried and, to date, failed to address these three problems through the ordinary means of governance. The sovereign has a role to play in the solution to each of the three, but not as a monopoly and not necessarily in the first instance. A new form of order online, brought on by private action, is emerging in response to these problems. If properly understood and encouraged, this emerging order could lead to an accountable internet without an offsetting loss of those aspects of online life that we have found most attractive. There has been a great deal of loose talk about the need for "internet governance," particularly in the context most recently of the World Summit on the Information Society, but much less careful analysis of the question whether the online world really does pose special problems, or present special opportunities, for collective action. There has been a general discussion as to whether the internet, as a general rule, lends itself to governance by traditional sovereigns or if something in the net's architecture resists such forms of control. We do not seek to re-open this debate, acknowledging at the outset the important role that traditional sovereigns have to play in most areas of decision-making and enforcement on the internet. Rather, we seek to look more closely at a series of particularly thorny issues that have proven especially challenging for policy makers seeking to impose governance by states. We seek the special problems - and corresponding opportunities - of online activity and assess the relative merits of various options for how to resolve them.

Wednesday Calendar
    At the Philosophy Program of Australian National University's RSSS, Reasons and Rationality, today through Friday, 25 June, 2004. Speakers include: Jeanette Kennett (Monash), Stephen Matthews (CSU), Jonathan Dancy (Reading), Ruth Chang (Rutgers), Caroline West (Sydney), Niko Kolodny (Harvard/ANU), and Jay Wallace (Berkeley).

Tuesday, June 22, 2004
Hooker on the Costs of Internalizing a Moral Code Check out Hooker on the Cost of Internalizing a Moral Code, a post by Dan Boisvert on Pea Soup. Here's a spoonful:
    Hooker goes to great lengths to discuss the importance of taking into account the costs associated with having each member of an overwhelming majority of each new generation accept a particular moral code. This raises the question of just what costs are supposed to be counted in the calculation that determines the ideal moral code.
Read the whole thing!

Schill New Dean at UCLA Law Eugene Volokh reports that "Michael H. Schill, a law professor at NYU (where he specializes in housing law and policy), has been named dean . . . at UCLA Law School."

Jackson v. Posner on the Authority of the Decisions of Foreign Tribunals Check out Richard Posner's No Thanks, We Already Have Our Own Laws and Vicki Jackson's Yes Please, I'd Love to Talk With You. I have a very small idea re this debate. The place to start is with commercial law. Should foreign decision's be cited as nonbinding but authoritative on issues of international commercial law? Once we get clear about that, many of the red-herring issues will drop out.

Baude on Hiibel v. Nevada Check out Will Baude's Bad ID on The New Republic Online. Here's the teaser:
    Yesterday, in Hiibel v. Nevada, with a 5-4 decision following the usual conservative-liberal split, the Supreme Court upheld a Nevada law that requires people to identify themselves to an officer who has "reasonable suspicion" that they may have committed a crime. The ruling expands on a 1968 case called Terry v. Ohio, which held that a police officer could frisk suspects for weapons even if the officer lacked "probable cause" (suspicion strong enough to arrest them). Now the police can compel people to say who they are, and the constitutional ban on unreasonable searches will not get in the way....

Ethical Internalism Check out An Argument for Ethical Internalism on Desert Landscapes. Here is a taste:
    Suppose a singer and a dancer chat after the show. They go:
      Singer: “dancer, you should really give 30% of your income to famine relief.” Dancer: “but you don’t.” Singer: “all the same, one should.” Dancer: “but you don’t!”
    Philosophers have often thought that Dancer is committing some sort of fallacy with her replies. What Singer actually does is beside the point. The issue is whether she’s *right* about what one ought to do.

Geist on Canadian Internet Politics Check out Michael Geist's piece in the Toronto Star. Here is a taste:
    In recent weeks several groups have tried to capture the attention of the national parties and local candidates by posing questions on technology law policy and posting the responses online. The Canadian Internet Policy and Public Interest Clinic (CIPPIC) at the University of Ottawa, online at, distributed a questionnaire to each national party covering key copyright policies issues including positions on music file sharing and Internet service provider liability as well as on spam, the use of open source software, and national ID cards (in the interests of full disclosure it should be noted that I am a faculty adviser to CIPPIC). Similarly, Digital-Copyright Canada, a user and creator group, posed similar copyright questions ( to each local candidate across the country, while the Canadian Teachers' Federation asked each party for their views on copyright issues of concern to the education community. With responses in hand from four of the five major political parties, different visions of Canadian technology law policy have begun to emerge.

Rappaport on the Incorporation of the Establishment Clause Justice Thomas's opinion in Newdow continues to elicit interesting comments. I recommend Incorporation of the Establishment Clause?, posted by Michael Rappaport on The Right Coast. Here is a taste:
    One possibility is that the [Establishment] Clause was originally a federalism provision, like the Tenth Amendment, and therefore not appropriately applied against the states. This appears to be Justice Thomas's preferred position in his Newdow concurrence. Another possibility is that it was originally a federalism provision, but by 1868 it was understood to protect an individual right of people not to be subjected to an established Church. Then, it might apply against the states, but with the same content as it had against the federal government. Justice Thomas contemplates this possibility in his concurrence, saying that if the Establishment Clause does apply against the states, it should only apply against real establishments (or possibly where there is coercion).
For more on this topic, I highly recommend two articles by Kurt Lash:

Bellia on Bits and Borders Patricia L. Bellia (Notre Dame Law School) has posted Chasing Bits Across Borders (University of Chicago Legal Forum, pp. 35-101, 2001) on SSRN. Here is the abstract:
    As computer crime becomes more widespread, countries increasingly confront difficulties in securing evidence stored in electronic form outside of their borders. These difficulties have prompted two related responses. Some states have asserted a broad power to conduct "remote cross-border searches" - that is, to use computers within their territory to access and examine data physically stored outside of their territory. Other states have pressed for recognition of a remote cross-border search power in international fora, arguing that such a power is an essential weapon in efforts to combat computer crime. This Article explores these state responses and develops a framework for evaluating the legality of cross-border searches, both as a matter of international law and as a matter of U.S. law. The Article argues that remote cross-border searches are problematic as a matter of international law, and that U.S. adoption of bilateral or multilateral agreements authorizing remote-cross border searches on foreign law standards lower than those of the Fourth Amendment would be problematic as a matter of U.S. constitutional law. The Article also situates the remote cross-border search issue within the context of the larger theoretical debate over the power of geographically based sovereigns to exercise jurisdiction over internet activities. That debate ordinarily focuses on a sovereign's jurisdiction to prescribe legal rules governing internet conduct; by broadening the inquiry to focus on a sovereign's enforcement jurisdiction, a study of remote cross-border searches highlights certain normative bases for refining our understanding of how principles of territorial sovereignty apply in the internet context.

Rhodes on General Jurisdiction Charles W. (Rocky) Rhodes IV (South Texas College of Law) has posted Clarifying General Jurisdiction (Seton Hall Law Review, Vol. 34, p. 807, 2004) on SSRN. Here is the abstract:
    This Article highlights the due process limitations on a state's assertion of general in personam jurisdiction, predicated partially on a survey of some 3,000 federal and state opinions. While the judiciary is still encountering difficulty defining the parameters of dispute-blind jurisdiction, I did identify and catalog six existing doctrinal approaches. But as none of these approaches is satisfactory, I propose a new principle that comports with the holdings, although not necessarily the reasoning, of the Supreme Court, most federal circuit courts, and a number of federal district courts and state courts. This proposal is that the minimum contacts analysis for general jurisdiction should be based on two interrelated components: a qualitative and then quantitative comparison of the defendant's forum conduct to the activities of a local business. The qualitative component is satisfied if the nonresident defendant is conducting those types of activities in the forum - such as directing its business operations from the state, producing its goods or services in the state, or selling such goods or services through in-state business transactions - that typically define a commercial domiciliary of the state. The quantitative component then adjudges whether the nonresident defendant engages in such forum activities in a comparable frequency to at least some local businesses. I finally examine the theoretical foundation of general adjudicatory jurisdiction under this model. Employing an analogy to traditional substantive due process doctrine, I conclude that the constitutional limitations on a state's jurisdictional reach are premised on both fairness and state sovereign interests. Nonetheless, the predominant underpinning for general adjudicatory jurisdiction is the absence of state sovereign interests over those defendants not conducting activities in the forum similar to a domiciliary owing its allegiance to the state.

Carlson on Preemption & Greenhouse Gas Emissions Ann E. Carlson has posted Federalism, Preemption, and Greenhouse Gas Emissions (U.C. Davis Law Review, Vol. 37, No. 281, 2003) on SSRN. Here is the abstract:
    California, long a leader in regulating emissions from automobiles, is now attempting to regulate motor vehicle greenhouse gas emissions. The state's new regulatory efforts present interesting legal questions about preemption under two separate federal statutes, the Clean Air Act and the Federal Energy Policy and Conservation Act. The state's role in regulating air pollution more generally is also under legal attack on preemption grounds in a number of different cases. In this symposium article, I analyze the legal challenges California's greenhouse gas emissions will likely face and describe the ways in which California's unique role in regulating air pollution is at risk. I also suggest that California's place in air pollution regulation presents an example of federalism often ignored in standard debates about the proper division of regulatory authority between the states and the federal government. Rather than assigning regulatory responsibility to the federal government alone, to the states alone, or delegating to the states a cooperative federalism role as is typical in many environmental statutes, Congress acted differently in regulating mobile source air pollution. Congress has set a baseline of automobile emissions standards but has freed up only one state, California, to do more than the federal minimum. Other states may opt into the California regulatory scheme. This innovative federal/state scheme, I suggest, may produce its own regulatory dynamic: by singling out California for environmental leadership, the state's behavior may be influenced not only by its own voter preferences, competition with other states, etc., but by its special regulatory role. California's unique role has likely increased the state's bureaucractic expertise, concentrated innovation geographically, taking advantage of economic benefits that flow from geographic concentration, and created a private constituency - mobile source technology firms - for stronger regulation. The state's special role may, indeed, provide a model for regulating other national problems.

Ripstein on Rawls and Corrective Justice Arthur Ripstein (University of Toronto) has posted The Division of Responsibility and the Law of Tort (Fordham Law Review, Forthcoming) on SSRN. Here is the abstract:
    In A Theory of Justice, Rawls makes almost no mention of the issues of justice that animated philosophers in earlier centuries. There is no discussion of justice between persons, issues that Aristotle sought to explain under the idea of corrective justice. Nor is there discussion, except in passing, of punishment, another primary focus of the social contract approaches of Locke, Rousseau and Kant. My aim in this article is to argue that implicit in Rawls's writing is a powerful and persuasive account of the normative significance of tort law and corrective justice.

New Reviews on Law and Politics Book Review Three new reviews are up on Law and Politics Book Review:
  • COMPULSORY COMPASSION: A CRITIQUE OF RESTORATIVE JUSTICE, by Annalise Acorn. Vancouver: University of British Columbia Press, 2004. 224 pp. Cloth USD$85.00 / CDN$116.55. ISBN: 0-7748-0942-6. Paper $29.95/CDN$41.00. ISBN: 0-7748-0943-4. Reviewed by J.H. Bogart.
  • DISPUTE PROCESSING AND CONFLICT RESOLUTION: THEORY, PRACTICE AND POLICY, by Carrie Menkel-Meadow. Burlington, VT: Ashgate/Dartmouth, 2003. 540pp. Cloth $122.95 / £65.00. ISBN: 075462305X. Reviewed by Stephen Daniels.
  • ENGLISH LAWYERS BETWEEN MARKET AND STATE: THE POLITICS OF PROFESSIONALISM, by Richard L. Abel. New York: Oxford University Press, 2003. 752pp. Hardback $135.00 / £95.00 ISBN: 0198260334. Paper $55.00 / £30.00. ISBN: 0198260342. Reviewed by Patrick Schmidt.

Monday, June 21, 2004
Lash on Hamilton on Newdow Last week, I posted a brief comment on Mari Hamilton's Findlaw column on Newdow, which included:
    The history at the time of the framing is otherwise, however. The first draft of the First Amendment by James Madison applied to both state and federal government. Only politics - not principle -- forced it to be limited to the [federal government].
Kurt Lash writes:
    If Marci is suggesting that Madison attempted to apply the Establishment Clause against the states, this is not correct. On June 8, 1789, Madison proposed the two following amendments:
      1) The civil rights of none shall be abdidged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.
      2) No state shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.
    As reported out of the select committee on July 28, these two proposals became:
      1) No religion shall be established by law, nor shall the equal rights of conscience be infringed.
      2) No state shall infringe the equal rights of conscience, nor the freedom of speech, or of the press, nor of the right of trial by jury in criminal cases.
    In both versions, it is clear that the free exercise principle (the rights of conscience) was to be applied against the states, but the non-establishment principle was not. Apparently not even Madison believed that the Establishment Clause was appropriately applied against the states. The issue is not whether Madison believed religious establishments were appropriate (he did not). The issue is whether he believed the non-establishment principle should be nationalized (he did not).

Ryan on Public Trust and Telecommunications Patrick S. Ryan (Katholieke Universiteit Leuven - ICRI) has posted Application of the Public-Trust Doctrine and Principles of Natural Resource Management to Electromagnetic Spectrum (Michigan Telecommunications and Technology Law Review, Vol. 10, No. 2, p. 285, 2004) on SSRN. Here is the abstract:
    Electromagnetic spectrum is among our largest natural resources. However, while the past few decades have seen a rich body of environmental law develop for other natural resources, this movement has largely passed over the electromagnetic spectrum. This article argues that to remedy that situation, the public-trust doctrine, which is now a cornerstone of modern environmental law, should be extended to electromagnetic spectrum. This extension would not be a leap: the public-trust doctrine has already been used to guarantee the public access to various bodies of water (not just navigable water), and to protect recreational lakes and beaches, wildlife preserves, and even the air. Electromagnetic spectrum is at least as valuable as these other resources, so access to it should be similarly guaranteed in order for the public to enjoy its full potential. This article will first show that there is a problem with the way that the electromagnetic spectrum is regulated, that its regulation stifles innovation and has favored incumbents by wrongly giving them exclusive access to a natural resource at no charge, and that the situation has been exacerbated by mistakenly assuming that auctions are a panacea for past spectrum-allocation problems. The article will then argue that the public-trust doctrine, as well as other more general concepts borrowed from environmental-law scholarship - such as sustainable consumption, electromagnetic pollution, and ecological imbalance - should be imported into a new spectrum-management paradigm. Two technologies, Ultra-Wideband and Software Defined Radio may be well-suited for a new regulatory paradigm that is freer than the one that the spectrum has always had, and that provides for access to the spectrum's being guaranteed by the public-trust doctrine.
Wow! I will read this with interest.

Myers on Local Redistribution Minor Myers III (Debevoise & Plimpton LLP) has posted A Redistributive Role for Local Government (Urban Lawyer, Vol. 36, No. 4, Fall 2004) on SSRN. Here is the abstract:
    With the welfare reforms of 1996, the federal government transferred to the states substantial authority over the structure, scope, and generosity of the nation's largest redistributive program, now known as Temporary Assistance for Needy Families. As many have shown, however, states suffer from a structural handicap - the inability to dissuade new entrants who would be a net drain on the state fisc - that prevents them from matching the redistributive desires of their residents. This paper argues that local governments, given their unique organizational characteristics, should receive a larger share of redistributive responsibility in the U.S. Unlike the federal governments, local governments can respond to local preferences for redistribution and, unlike states, which are subject to the Supreme Court's "right to travel" doctrine, they have sufficient ability through zoning and property taxation to limit the influx of new recipients. This paper also articulates in a general way what such a role might look like. In short, local governments should play a larger role in the Temporary Assistance for Needy Families program. Also, states should reinforce the powers that enable localities to be such effective mechanisms of redistribution in the first place so they can redistribute effectively to their own residents and those of neighboring local governments.
Interesting, but isn't there a problem with escape?

Barmes on the Common Law of Employment Contracts Lizzie Barmes (University College London - Faculty of Laws) has posted The Continuing Conceptual Crisis in the Common Law of the Contract of Employment (Modern Law Review, Vol. 67, pp. 435-464, May 2004) on SSRN. Here is the abstract:
    The effects on the common law of the contract of employment of the decision of the House of Lords in Johnson v Unisys Ltd are considered. The focus is on liability rather than remedies. It is argued that the case created conceptual instability in the common law understanding of a breach of a contract of employment. The logical consequence of the majority reasoning is that in some cases the existence or not of a breach by an employer is contingent on an employee's reaction. Relevant case law history and developments since the Johnson decision inform a detailed critique of the arguments that underpinned it. A solution is suggested according to which, prima facie, contracts of employment would be required to be performed in accordance with terms that have been implied by law.

Gathii on Extraterroriality & Terrorism James Thuo Gathii (Albany) has posted Torture, Extra-Territoriality, Terrorism and International Law on SSRN. Here is the abstract:
    This paper was written prior to the revelation of torture at the AbuGraib Prison in Iraq and of internal U.S. government memos laying down a legal basis to avoid international and domestic prohibition of torture of terrorism suspects. The paper critically appraises the arguments favoring the loosening international and constitutional prohibitions against torture in the "war" against terrorism. It does so by examining three justifications that federal courts have invoked to justify abstaining from reviewing the conditions of confinement of prisoners held on suspicion of involvement in trans-continental terrorism, even where such conditions include allegations of torture. The first of these justifications is that international and constitutional constraints, including those against torture and those requiring due process, do not apply to prisoners that are held outside the territory of the United States. The second justification is that the prisoners were captured in the U.S war against terrorism and the President has designated them "enemy combatants." Further, in light of the extra-"ordinary circumstances" arising as a result of the attacks on the United States on September 11, 2001, the enhanced authority of the President's War Powers is not subject to judicial review. The third justification is that where the prisoners are aliens, they are not entitled to constitutional and international protections otherwise available to citizens and friendly aliens. Thus one of the primary questions examined is whether extra-territorial torture of foreign citizens in the context of the war on terrorism ought to be subject to judicial review in the United States under the rules of customary international law. In other words, does the extra-territorial location of an alleged violation of rules of customary international law against a foreign citizen preclude judicial review? I argue that there are no justifiable grounds for denying jurisdiction to a person alleging torture under rules of universal jurisdiction, even if such a person is a foreigner captured in the course of war and is held outside the territory of the United States. To argue otherwise is problematic for at least two reasons. First, by denying jurisdiction, federal courts effectively acquiesce to allegations of torture during interrogations as well as to cruel, inhuman and degrading imprisonment conditions. Second, denials of jurisdiction that definitively bar judicial scrutiny of the merits of executive decisions in times of war are contrary to the obligations of the United States under international law. Jurisdictional denials also legitimize an international and constitutional doctrine under which there are no limitations of executive power to hold suspects indefinitely, incommunicado and without due process even if they are tortured. To demonstrate the sheer limitlessness of this doctrine of unconstrained executive power that, in turn, justifies loosening the prohibitions against extra-territorial torture, I examine how best to frame the allegations of torture in a manner that is cognizable for purposes of obtaining federal judicial power with regard to the conditions of confinement of the Guantanamo Bay detainees. I then examine the prohibition against torture under both international and U.S. law and the "extra-ordinary circumstances" doctrine. This doctrine has guided federal judicial responses to petitions challenging the conditions of confinement including allegations of torture of the Guantanamo Bay detainees by the confining authorities. In addition, I compare and contrast the assumption of jurisdiction with respect to extra-territorial commercial conduct with the problems associated with accepting extra-territorial jurisdiction over questions regarding the conditions of confinement of the detainees. By doing so, I show that federal courts are far more willing to assume jurisdiction over remote, extra-territorial commercial conduct, than they are to confer jurisdiction and enforce fundamental human and civil rights norms in the context of confinement conditions of non-U.S. nationals held extra-territorially. While it may seem that extra-territorial commercial conduct achieves opposite results from efforts to enforce fundamental rights and freedoms extra-territorially, I show that these outcomes converge in their consistency with the United States' national interest. Further, I also show that there is a close symmetry between cases where jurisdiction has been denied to the detainees by federal courts in the United States, on the one hand, with case-law from the British colonial experience, on the other. The underlying similarity between the colonial and Guantanamo Bay cases is their invocation of extra-territoriality and foreign citizenship as rationales for precluding judicial intervention. I also refer to a recent European Court of Human Rights case and to the "colonial clause" of the European Covenant on Human Rights with a view to demonstrating that powerful countries have seldom been held accountable for the exercise of powers that are incompatible with basic principles of international law by their own courts. Moreover, such lack of accountability has, under some circumstances, been precluded under treaty law. Ultimately, it is clear that the manner in which arguments about jurisdiction have been marshaled to justify a particular vision of why enemy aliens and enemy combatants cannot be heard in a federal court reinforces distinctions between those that U.S. law accords rights and those to whom it does not on the basis of differences of race, religion and national origin. After all, it can safely be surmised that the overwhelming majority, if not all, the Guantanamo Bay prisoners are Muslims of Arabic or Persian descent. Further, jurisdictional denials legitimize a very expansive doctrine of Executive powers that justifies or acquiesces to torture of the Guantanamo Bay prisoners, which is inconsistent with the obligations of the United States under international law.

Gagnon, Macklin, & Simons Deconstruct Engagement Georgette Gagnon , Audrey Macklin and Penelope Simons (Independent , Faculty of Law, University of Toronto and University of Toronto - Faculty of Law) have posted Deconstructing Engagement on SSRN. Here is the abstract:
    This project triangulates the governance relationships between Canada, Canadian corporate citizens operating transnationally in conflict zones, and citizens of the host countries. We examine the human rights implications of militarized commerce and advocate state accountability for regulating the activities of transnational enterprises (TNEs) and domestic corporations operating transnationally. We will also explore the various policy instruments available to a home state to address the 'governance gap' exposed and exacerbated by the global expansion of market relations and the recession of governance relations as the normative and institutional framework within which social, economic and human rights are organized and negotiated. We pursue these themes through analysis of a specific privatized human rights regime developed and operationalized by a Canadian corporate actor (Talisman Energy) in its operations in Sudan. Increasing public attention to, and concern about, the labour, environmental and human rights consequences of global corporate activity in zones of conflict or in so-called 'failed states' has brought to the fore debates about the home state's role as regulator. Our research makes an original and timely contribution to the advancement of public policy on this issue.

Sunday, June 20, 2004
Legal Theory Calendar
    Wednesday, June 23
      At the Philosophy Program of Australian National University's RSSS, Reasons and Rationality, today through Friday, 25 June, 2004. Speakers include: Jeanette Kennett (Monash), Stephen Matthews (CSU), Jonathan Dancy (Reading), Ruth Chang (Rutgers), Caroline West (Sydney), Niko Kolodny (Harvard/ANU), and Jay Wallace (Berkeley).
    Thursday, June 24
      At Florida State University, Mark Seidenfeld, FSU College of Law, presents Why Agencies Act: Rational, Psychological and Institutional Influences on Agency Decisions to Regulate.
      At the American Enterprise Institute, War, International Law, and Sovereignty: Reevaluating the Rules of the Game in a New Century. Speakers include John R. Bolton, Stephen Rademaker, Jeremy Rabkin, and John Yoo.
      Reasons and Rationality continues today at ANU.
    Friday, June 25

Legal Theory Lexicon: Metaethics
    Introduction Suppose that we are debating a question in normative legal theory--e.g., whether gay couples should have a constitutional right to marry or whether tort law should replace the negligence standard with strict liability. In debates about what the law ought to be, two kinds of questions can arise. There are first order questions, e.g. the conventional arguments of principle or policy for and against particular legal rules. These first order questions involve issues of political morality; that is, normative legal theory involves first-order questions of normative ethics. Sometimes, however, a different sort of issue arises. Second order questions might include the following: "What do statements about what the law should be mean?" or "Are the propositions of normative legal theory objective?" These second order questions of normative legal theory are a subclass of the more general class of second order questions of moral and ethical theory. This is the domain of metaethics.
    "Metaethics" may should rather esoteric, but, in fact, metaethical argumentation is very common, both in ordinary life and in legal theory. Perhaps the most familiar example is the use of moral relativism (or similar positions) in normative argumentation. When one party in an argument asserts something like, "Homosexuality is morally wrong," the reply might be, "No, it isn't. You are mistaken," but another common (perhaps more common) reply is, "That's just a value judgment." The implication is that moral judgments are relative or subjective or just an expression of emotional reactions.
    Metaethics is a very big topic, and even a cursory introduction is the subject of a whole course or monograph, but some very basic ideas and terminology can be introduced in a blog post. As always, the Legal Theory Lexicon is aimed at law students (especially first year law students) with an interest in legal theory.
    Metaethical Questions Metaethics includes a variety of topics, and one good way to get a basic grasp on the field is to simply list some of the questions that are encompassed by (legal)metaethics:
    • What is the meaning of moral language? Do statements about what the law ought to be state facts or do they do something else?
    • Are there moral facts or moral properties? More particularly, are there normative legal facts? If so, then can they be reduced to nonmoral properties or are they somehow different from nonmoral properties?
    • Can we have knowledge (justified true beliefs) about what the law ought to be? If we can, how is such knowledge possible?
    • What is the motivational role of moral propositions? Assuming there are moral facts, does the fact that X ought to be the law in any way provide a motive for making X the law?
    • Are statements about what the law should be objective? If not, are they relative to the norms of some social group? Or subjective? Or meaningless?
    Let's explore one or two of these concepts.
    Cognitivism and Noncognitivism One of the most important debates in metaethics (from the point of view of normative legal theory) is the debate between cognitivism and noncognitivism. Very roughly, cognitivism is the position that moral statements (such as "There ought to be a constitutional right to privacy.") express beliefs that can be true or false. (Beliefs are "cognitive" states, hence the name "cognitivism.") Noncognitivism denies this and asserts that moral statements express noncognitive states, such as emotions or desires. Noncognitive states (emotions, desires) cannot be true or false.
    I think the best way to get a handle on this debate is to take a brief look at a very simple version of noncognitivism. A noncognitivist might assert that when some says that X is morally wrong, they are simply expressing an attitude of disapproval towards X. That is, "X is wrong" means "Boo X." When someone says "X is morally good," they are expressing an attitude of moral approval towards X. The Boo-Hooray theory is a crude version of emotivism--the theory that moral statements express emotions, associated with A.J. Ayer. As I'm sure you've already guessed, contemporary noncognitivists have theories that are more sophisticated than Ayer's; examples of such contemporary noncognitivist theories include Allan Gibbard's norm expressivism and Simon Blackburn's quasi realism.
    Cognitivsts assert that moral propositions express beliefs that have cognitive content and hence can be true or false (or at least correct or incorrect). The cognitivist landscape is complex. Some cognitivist theories hold that our moral beliefs track natural properties in the world; others cognitivist theories hold that our moral beliefs are about nonnatural properties: G.E. Moore had a theory like this. Still other cognitivists believe that moral statements can be true or false, but deny that they are about any states of affairs (natural or nonnatural).
    A simple example of a naturalist cognitivist theory might be the following: a utilitarian might believe that statements about the rightness or wrongness of actions are about natural states of the world, e.g. the natural properties of pleasure and pain: when I say, action X is right, I mean, X will produce the greatest balance of pleasure over pain as compared the alternative courses of action. In Legal Theory Lexicon 014: Fact and Value, we explored G.E. Moore's "open question" argument against naturalist forms of cognitivism.
    It goes without saying that debates over cognitivism and noncognitivism are much richer and complex than the simplified ideas that we've just explored, but the core idea--the distinction between cognitivism and noncognitivism--is accessible and hugely important.
    Moral Psychology Another important set of questions in metaethics concerns the relationship between moral judgments and motivation. Suppose one makes a moral judgment that X is morally obligatory. Does it follow that one is motivated to do X? Or can one believe that X is morally required with no motivation to do X? Lot's of folks find it very plausible to think that if one affirms "X is morally obligatory," then one has got to have a motive to do X. "Internalism" is the view that there is some internal or conceptual connection between moral judgments and motivation. "Externalism" is the view that the connection between moral judgment and motivation is external or contingent.
    For some forms of noncognitivism, the question whether there is an internal connection between moral judgment and motivation isn't much of a question. If moral statements simply express motivations (to take the easiest case), then it follows that the sentence X is morally obligatory would turn out just to mean, "I am motivated to do X." It will get more complicated for other forms of noncognitivism, but in general and vastly oversimplified terms, if morality is about desire or emotion and if desires or emotions motivate, then moral judgments are closely connected with motivations.
    But for cognitivists, things are not so easy. Let's take our utilitarian naturalist cognitivist as an example. I know that if I stop working on my blog and start working for Oxfam, I can produce better consequences. If internalism were true, this would give me a motive to stop working on the blog. Assuming that Hume was right and motives are desires plus beliefs, at the very least, I ought to feel some sort of tug (or other motivating state) pulling in the direction of working for Oxfam. But I don't, in fact, feel such a tug. One way to square these facts (assuming they were true) with cognitivism is to deny that there is an internal connection between moral judgments and motivations. Thus, I might think that some external sanction or internalized norm must be added to the moral judgment in order to produce motivating force.
    Conclusion Normative legal theory necessarily implicates metaethics. Most normative legal theorists explicitly or implicitly assert that their positions are true (or at least correct) and that inconsistent positions are false (or incorrect). That means that most normative legal theories rest on metaethical assumptions. That doesn't mean that you need to be an expert in metaethics to be a good normative legal theorist, but it sure helps to know the very general outlines of the terrain!
    • Alexander Miller, An Introduction to Contemporary Metaethics (2003). This is a sophisticated introductory text that outlines classic and contemporary positions in metaethical debates.
    • A.J. Ayer, On the Analysis of Moral Judgments in Freedom and Morality and Other Essays (1984).
    • Simon Blackburn, Essays in Quasi-Realism (1993).
    • Allan Gibbard, Wise Choices, Apt Feelings (1990).
    • G.E. Moore, Principia Ethica (1903).

Saturday, June 19, 2004
Legal Theory Bookworm This week, the Legal Theory Bookworm recommends Arguing About War by Michael Walzer. Here is a description of a timely book, by the most the most important thinker on just war theory:
    Walzer (Just and Unjust Wars) collects previously published pieces from the last 15 years that dramatize and discuss the ethical dilemmas of military intervention in emergency situations, after terrorism and during foreign civil wars. Walzer's consideration of pros and cons can be so theoretically oriented that it is difficult to tell where he stands precisely, but it is clear that he believes officers must require risk-taking in battle and soldiers should undertake it. He does not have anything good to say about pacifists and works to refute arguments on the left claiming that the terrorism originating in the developing world should be thought of differently than that originating elsewhere. Rwanda's ethnic cleansing, the Gulf War and Kosovo's bloody move toward independence all serve as case studies, often as facts on the ground were developing or before they developed; writing before the Iraq War, Walzer weighs military occupation in Iraq against the possibility of a better political regime and follows that with a provocative, counterintuitive argument that France, in particular, but also Germany and Russia, bear a heavy responsibility for the United States' decision to preemptively attack. Events are outpacing some of Walzer's deliberations, but his case studies put the issues at stake in relief, regardless of whether one accepts his conclusions.

Download of the Week This week, the Download of the Week is Burning Down the House (and Senate): A Presentment Requirement for Legislative Subpoenas Under the Orders, Resolutions, and Votes Clause by Gary Lawson. Here is the abstract:
    The Constitution's Orders, Resolutions, and Votes Clause, U.S. Const. art. I, § 7, cl. 3, requires presentment to the President of every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) . . . before the Same shall take Effect. The conventional wisdom, bred more than 200 years ago by James Madison, holds that this clause simply prevents Congress from evading the presentment requirement for bills in Article I, section 7, clause 2 by labelling legislative action something other than a bill. Seth Tillman, however, argues in a forthcoming article that the clause imposes a presentment requirement on single-house action taken pursuant to prior bicameral authorization. See Seth Barrett Tillman, A Textualist Defense of Article I, Section 7, Clause 3: Why Hollingsworth v. Virginia Was Rightly Decided, and Why INS v. Chadha Was Wrongly Decided, Mr. Tillman is likely correct, but he does not clearly identify the classes of single-house action to which this provision might refer. I elaborate on Mr. Tillman's important work by arguing that the most significant, and perhaps the only, single-house actions subject to this clause are the issuance of legislative subpoenas. Neither house of Congress has an enumerated power to issue such subpoenas, but bicameral authorization for their issuance could come from legislation under the Sweeping Clause of Article I, Section 8, clause 18. On this understanding, the Orders, Resolutions, and Votes Clause then requires each subpoena to be presented to the President for signature or veto before the Same shall take Effect. This presentment requirement for subpoenas makes sense as a matter of both text and structure.
Download it while its hot!

New European Constitution A deal has been reached on a new Constitution for the European Union--subject, of course, to ratification. The BBC story is here. More detailed information can be found here. And the draft, before this weekend's modifications, can be found here (pdf).

SSRN Top Recent Downloads The Social Science Research Network compiles lists of top ten downloads by subject matter. (Click on the category name for the full list of the top ten papers by number of downloads in the past 60 days.) Here are categories and selected papers of interest to legal theorists:

Friday, June 18, 2004
Vanneste, Van Hiel, Parisi & Depoorter on Commons & Anticommons Sven Vanneste , Alain Van Hiel , Francesco Parisi and Ben Depoorter (Universiteit Gent , Universiteit Gent , George Mason University School of Law and Yale University - Law School) have posted From 'Tragedy' to 'Disaster': Welfare Effects of Commons and Anticommons Dilemmas on SSRN. Here is the abstract:
    Recently, a new concept, the anticommons dilemma, has been introduced in economic literature. In an anticommons property regime, multiple co-owners have the right to exclude one another from benefiting from a common resource. The economic literature has unveiled symmetry between commons and anticommons problems. Our experimental results reveal an interesting asymmetry. Anticommons situations generate greater opportunistic behavior than an equivalent commons dilemma (Study 1), and anticommons dilemmas yield a greater risk for underuse compared to commons dilemmas (Study 2). It was therefore concluded that anticommons might be considered as having even more severe and problematic consequences than the commons dilemma.

Vischer on the Ethical Formation of Lawyers Robert K. Vischer (St. John's University School of Law) has posted Catholic Social Thought and the Ethical Formation of Lawyers: A Call for Community (Journal of Catholic Social Thought, Forthcoming) on SSRN. Here is the abstract:
    In our system of professional regulation, where all lawyers in a state receive ethical guidance almost exclusively from state-level sources, it appears that lawyers have entrusted functions to the higher collectivity that are more properly shared with subordinate communities. Specifically, faith communities of lawyers have foregone any sustained or significant formative role in the professional ethics of their members. Such communities are uniquely situated and equipped to shape members' professional lives in ways that the ABA does not even purport to address. Catholic lawyers especially should be inclined to supplement the Model Rules' baseline requirements with a communal life that engages in an organic, interactive and intellectual process of mutual moral influence. This article traces the interplay of Catholic social teaching and governing conceptions of legal ethics, and explores the tensions that arise between a formative role for the faith community and the traditional presumptions of the profession.

Yoo on Architectural Censorship Christopher S. Yoo (Vanderbilt University - School of Law) has posted Architectural Censorship and the FCC on SSRN. Here is the abstract:
    Most First Amendment analyses of U.S. media policy have focused predominantly on "behavioral" regulation, which either prohibits the transmission of disfavored content (such as indecent programming) or mandates the dissemination of preferred content (such as children's educational programming and political speech). In so doing, commentators have largely overlooked how program content is also affected by "structural" regulation, which focuses primarily on increasing the economic competitiveness the media industries. In this symposium contribution, Professor Christopher Yoo employs economic analysis to demonstrate how structural regulation represents a form of "architectural censorship" that has the unintended consequence of reducing the quantity, quality, and diversity of media content. The specific examples analyzed include: (1) efforts to foster and preserve free television and radio, (2) rate regulation of cable television, (3) horizontal restrictions on the number of outlets one entity can own in a local market, and (4) regulations limiting vertical integration in television and radio. Unfortunately, current First Amendment doctrine effectively immunizes architectural censorship from meaningful constitutional scrutiny. As a result, Congress and the FCC must bear the primary responsibility for safeguarding free speech values against these dangers.

Fox on Relational Contract Theory & Democracy James W. Fox Jr. (Stetson University - College of Law) has posted Relational Contract Theory and Democratic Citizenship (Case Western Reserve Law Review, Vol. 54, No. 1, pp. 1-67, Fall 2003) on SSRN. Here is the abstract:
    In this article I engage Relational Contract Theory ("RTC"), with a focus on the theory of Ian Macneil. I argue that while RTC is a valuable approach to contract and contract law, it has an impoverished approach to the role of the democratic state in contract law. I then contend that by mining some political theories which parallel RTC, particularly the work of Michael Walzer and David Miller, we can construct a relational approach to contract law that credits the democratic state with a significant role in contract law. Such an approach, I argue, provides a more compelling theoretical justification for integrating democratic and dignity-based rights and protections, such as protections against gender and racial discrimination, into contract law. Moreover, a Walzerian approach allows us to view contract law and contract generally as one aspect, or "sphere", of an integrated democratic pluralism and so enables challenges to the colonization of all activities by contract and contract ideology. Ultimately it is the hope of this article to reinvigorate discussions of the role of contract and contract law in democratic society. Along the way I also explore, among other things, the strong links between contract and democracy during the American Reconstruction period, modern issues such as consumer form contracting and unconscionability, and the problem of anormativity in relational contract and other "norms"-oriented theories.

Harel on Palestinian Return Alon Harel (Hebrew University of Jerusalem - Felt Center for Legal Studies) has posted Whose Home is It? Reflections on the Palestinian Interest in Return (Theoretical Inquiries in Law, Forthcoming) on SSRN. Here is the abstract:
    This paper investigates whether Palestinians have an interest in return rather than a mere interest in settling within the territory of a state that provides them with civil rights and economic opportunities. The paper establishes the following three claims. First, Palestinians have some interests in return to Palestine-Israel. Second, many of these interests can be satisfied (at least to some extent) by establishing an independent Palestinian state within part of historical Palestine. Third, some of these interests are similar to the interests that may justify an analogous right of return for Jews to the same land.

Bradford on Compliance with the Laws of War William C. Bradford (Indiana University School of Law) has posted In the Minds of Men: A Theory of Compliance with the Laws of War on SSRN. Here is the abstract:
    Whether, and, if so, why states elect to comply with international law are now the most central questions within the international legal academy. A skein of theories has been woven over the last decade to explain and predict state compliance, and a number of factors, including, inter alia, a desire to generate reciprocity, an interest in reducing transaction costs, normative commitments, domestic considerations, the degree of domestic incorporation of international legal regimes, reputational concerns, and fear of punishment, are purported to be causally linked. However, as the study of international legal compliance ["ILC"] has matured, intramural divisions have been compounded by suspicions that many states are prone to accept only those legal obligations that do not significantly impose real constraints. A high level of compliance with a given regime may simply reflect the failure to require states to undertake anything more than "modest departures from what they would have done in the absence of an agreement." Many treaties may in fact be mere codifications of the lowest common denominator achievable across an array of states none of whom have internalized norms obligating conduct contrary to their independent preferences, and thus a high rate of observed compliance is not necessarily an objective indicator of a normative commitment to cooperate. By the same token, certain agreements that impose significant constraints may meet with relatively low levels of compliance without sabotaging the norms states-parties seek to advance. In short, the development of compliance theories requires that causal relationships between the normative fabric from which international legal obligations are woven and state behavior be clearly traced. However, complicating resolution of the debate between champions of the causal significance of international law and those who view law as epiphenomenal to state practice is the relative paucity of empirical studies testing general propositions regarding relationships between rules and behaviors. Although all theories in the social sciences are indirect, presumptive, and obliquely and incompletely corroborated at best, the field that has organized around the concept of international legal compliance is undernourished with insights from other disciplines: the few studies that describe patterns of compliance without tracing these relationships and establishing their effectiveness are insufficiently rigorous and too under-specified to offer many useful insights. Moreover, insufficient rigor is not all that bedevils the field of ILC: the tacit assumption central to the discipline of international law that regards international relations as uniformly susceptible to legal regulation may well be false. A hierarchy of issue-areas orders the international legal system, and patterns of cooperation have been far easier to generate and sustain in respect to "low politics," generally understood as economic, cultural, and social issues, than in questions of "high politics," defined narrowly as matters of war and peace. Because empirical evidence suggests that the obligations most breached are those trenching in questions of high politics, the ultimate test of whether international law matters may well be whether it can be crafted to regulate the muscular aspects of international life. If international relations are inevitably little more than a Hobbesian state of nature, and if war is inescapably the negation of the rule of law, then international law is and will always be epiphenomenal. If, on the other hand, states can be induced to comply with meaningful normative limitations on their conduct even in issue-areas that implicate their sovereignty, the long-deferred dream of a functioning civil society is no longer fanciful. Thus, if the laws of war, or international humanitarian law ["IHL"], are the soft underbelly of global legalization, developing a theory that explains and predicts IHL compliance and suggests ways in which it can be re-engineered to enhance its effectiveness is of great moment to the broader venture of making international law matter. Regrettably, however, the field of ILC is still a primitive science, and our ability to explain and predict the effectiveness of IHL is even more protean. While its relative youth accounts for some of this theoretical underdevelopment, and the desire to retain parsimony for still more, the inability to explain and predict IHL compliance is primarily the result of a failure to properly specify the variables most closely associated with compliance decisions. Simply put, the international legal academy has failed to render a coherent body of testable hypotheses that permit empirical investigation across a range of issue-areas, and thus IHL compliance remains an idiopathic phenomenon. To be sure, international law and international relations theorists have catalogued and described patterns of compliance. However, no ILC scholar has offered anything like the list of nomothetic propositions that one expects from a theory. The discipline must recognize that states are an abstraction utterly lacking in the capacity to exercise a choice between alternatives and that those who would answer the question, "Why do states choose to comply with or violate IHL?," must first ask and answer the prior, yet much more impenetrable, question: "Why do the individuals who exercise decisional authority commit their states to comply with or violate IHL?" Simply put, states do not make decisions; people do. Any theory of IHL compliance that aspires to sufficient determinacy to guide practitioners and scholars alike must account for the individual level of analysis and in particular the microfoundations of personality that frame decisions and yield variation across the range of decisionmakers, in its elaboration, testing, and refinement. Accordingly, Part I of this Article briefly surveys and critiques existing pretheories of ILC generally and particularly with respect to IHL. Part II presents an alternative theory that draws from the insights of personality theory to trace the causal processes whereby the personalities of individual decisionmakers associate with decisions to comply with or violate obligations arising under the IHL regime governing the resort to anticipatory self-defense ["ASD"]. Part III surveys historical data to heuristically test the proffered theory, and Part IV, followed by a Conclusion, anticipates criticisms and proposes directions for further research.

Repetti on Taxing Wealth James R. Repetti (Boston College - Law School) has posted Democracy, Taxes, and Wealth (New York University Law Review, Vol. 76, pp. 825-873, June 2001) on SSRN. Here is the abstract:
    This article demonstrates why wealth concentration matters and why the tax system should be used to help control wealth concentration. It shows that wealth concentration appears to be related to slow economic growth because of the lack of opportunities. It also shows that wealth concentration adversely affects the democratic process. It argues that because inheritances represent approximately fifty percent of wealth, wealth transfers should be taxed so long as the tax provides benefits that outweigh any assoiated harms. Using the current estate tax as a case study, the article concludes that a wealth transfer tax raises significant revenues and helps curb upward spiralling wealth concentration. Moreover, contrary to what has commonly been asserted, empirical studies generally show that the tax does not discourage savings.

Bartow on Collective Action by Invenotrs Ann Bartow (University of South Carolina - School of Law) has posted Inventors of the World, Unite! A Call for Collective Action by Employee-inventors (Santa Clara Law Review, Vol. 37, p. 673, 1997) on SSRN. Here is the abstract:
    While technological innovation is often lauded as the cornerstone of the American economy into the next century, and both governmental and private observers ponder with fascination and some trepidation the ability of U.S. companies to reach and sustain high levels of innovative productivity, very little attention is paid to actual inventors. This article is one effort to draw attention to the importance of employee-inventors, the people who conceive and develop the inventions that American corporations rely on for growth and profitability. Though it is universally accepted that skills gained by an employee in the course of his employment belong to him alone, when a patentable invention results from the diligent application of these skills, most employee-inventors are completely deprived of all ownership rights and privileges. The role of employee-inventors within their employing entities and within society is unique. An inventive individual with specialized scientific training who toils in a research facility performs a very different social and economic function than an assembly line or service worker, educated or not, who rotely performs the same small repertoire of tasks. While the assembly line or service worker can be expected to produce a predictable amount of goods or services within a given time frame, and with a value that can be accurately estimated, even brilliant and diligent labor by a properly equipped and well supported inventor offers no assurance of a profitable or even useful outcome, regardless of the amount of money or time invested. A corporation cannot just build a laboratory, stock it with equipment, hire individuals proficient in the applicable technology and expect patentable inventions to be methodically produced. Because an employer of potential inventors, typically a large corporation, assumes the financial risk that investments in research and development will not generate a positive return, the employer expects to reap the full rewards of any profitable invention. One of the ways such an inventor employer typically seeks to accomplish this goal is by requiring all potential inventors (and, increasingly, all but the most marginal employees) on its payroll to sign pre-invention assignment agreements as a condition of employment. These agreements require signatory employees to assign to the employer all rights to inventions conceived by the employee while at work, or in subject matters related to work, or while using any resources of the employer. Because employee-inventors may themselves invest extraordinary amounts of time, education, training, intellect, energy, and waking and sleeping thought to the innovative and usually complex ideas they originate and reduce to practice, and because such employee-inventors may not be able to secure any employment in their areas of expertise unless they sign pre-invention assignment agreements, such agreements are unfair to innovators. It is unjust that an employer reaps all of the rewards of a valuable patent as the payoff for the resources it devotes to an invention, but an employee-inventor who has also made a substantial investment in the inventive process - potentially at a level of personal sacrifice disproportionately greater than any financial or opportunity cost risk assumed by the employer - is usually precluded by a pre-invention assignment agreement from profiting from the fruits of his or her labor in a manner commensurate with, or even proportional to, the value and utility of an invention, and may not benefit from her invention at all. Employee-inventors are often rewarded for innovations with group censure and the loss of their jobs. Thus, the patent laws of the United States, which are intended to foster innovation, are premised on the now false assumption that inventors own, and therefore benefit from, the patents obtained on their inventions. In fact, the monopoly incentive completely sidesteps inventors, who have no incentive to innovate if they can find a better job doing something else. This article first reviews the disincentives to innovate confronting the typical employee-inventor, who is forced to assign all of the rights to any patentable invention she develops to her employer without compensation. Next, it considers mechanisms for eliminating (or at least minimizing) these disincentives suggested by other scholars, the implementation of which require either new legislation or changes in judicial interpretation, or sometimes both. Finally, this article proposes a unique solution for solving the disincentive problem: Rather than waiting for Congressional or Judicial action, as neither is likely imminent, inventors should organize and act collectively, by refusing to sign any pre-invention assignment agreements in the future, by revoking pre-invention assignment agreements currently in effect (either through negotiations with the companies they work for, or by changing jobs and refusing to sign such agreements with new employers), and by retaining ownership of their patented inventions to exploit or license themselves, or with the assistance of a patent collective organized by and for inventors.

Thiel on Probability Models of Proof Stuart E. Thiel (DePaul University) has posted Probability Models of Juridical Proof: It's Time to Kick Bayes Out on His Posterior on SSRN. Here is the abstract:
    The application of probability theory to the study of juridical proof has long been dominated by the Bayesian decision paradigm. I argue that the classical hypothesis-test paradigm is unambiguously better-adapted to the task, for several reasons. The fact-finder's Bayesian "prior" is poorly defined or undefined and unreliable in close cases; the associated "posterior" discards information as to the precision of the estimate of the likelihood ratio, to no apparent advantage; and the Bayesian model is vulnerable to well-known "proof paradoxes" that unnecessarily weaken the effort to model the fact-finding process mathematically. The single strongest argument to prefer Bayes is that the legal system values erroneous trial outcomes for Plaintiff and those for Defendant as equally bad. In this article, I demonstrate that the classical model suffers none of the enumerated weaknesses of the Bayesian model, and that there are many reasons to doubt the Bayesians’ postulated loss function. I argue, instead, that the legal system values not trial outcomes but rather litigation outcomes (i.e. from the filing of the lawsuit to the collection of any judgment) evenly. Finally, I propose an alternative approach to modeling the process of juridical proof, based in the theory of linear regression and its attractive properties for efficient prediction of the truth of the elements of Plaintiff's claim.

Bellia on Sureillance Law Patricia L. Bellia (Notre Dame Law School) has posted Surveillance Law Through Cyberlaw's Lens (George Washington Law Review, Vol. 72, 2004) on SSRN. Here is the abstract:
    The continuing controversy over the surveillance-related provisions of the USA Patriot Act highlights the depth of Americans' concern about internet privacy. Although calls to limit the government's surveillance powers strike a chord with the public, the legal framework governing surveillance activities is highly technical and poorly understood. The Patriot Act's sunset date provides Congress with an opportunity to revisit that framework. This Article seeks to contribute to the debate over the appropriate scope of internet surveillance in two ways. First, the Article explores the intricacies of the constitutional and statutory frameworks governing electronic surveillance, and particularly surveillance to acquire electronic evidence. Such an exploration should not only clarify many of the poorly understood aspects of the surveillance framework, but also provide guidance on how surveillance law reforms should proceed. Second, this Article takes initial steps toward reconceptualizing internet surveillance law. Surveillance law is viewed as a narrow and specialized field at the outer boundaries of the domain of criminal procedure. Just as electronic surveillance generally is not a central focus of criminal procedure courses, internet surveillance law is rarely given significant treatment within internet law or "cyberlaw" courses. At most, such courses tend to focus on the significant cases illuminating the relationship between the Fourth Amendment's protection against warrantless searches and technological developments that enhance the government's surveillance powers. Within the growing body of internet law scholarship, too, surveillance issues take a back seat to copyright, trademark, and free speech matters. The marginalization of internet surveillance law is unfortunate in two respects: first, surveillance law issues can provide a rich illustration of some of the major themes that emerge in internet law scholarship; and second, internet law scholarship can illuminate and provide an organizing normative structure to some of the policy dilemmas Congress faces in updating surveillance law.

Henderson on the Judicial Links Doctrine William D. Henderson (Indiana University School of Law - Bloomington) has posted Reconciling the Juridical Links Doctrine with the Federal Rules of Civil Procedure and Article III (University of Chicago Law Review, Vol. 67, p. 1347, 2000) on SSRN. Here is the abstract:
    Over the past three decades, the juridical link and concerted action exceptions have evolved from dicta in the Ninth Circuit's decision in La Mar to an amorphous and undertheorized body of case law that has dangerously merged procedural and jurisdictional issues. Drawing on the principles of class action jurisprudence set forth by the Supreme Court in Amchem and Ortiz, lower courts should consider the issues of class certification and Rule 20(a) joinder before turning to the issue of standing under Article III. Under this approach, courts would not be able to reconcile much of the juridical links case law with the requirements of Rule 23(b)(2) and Rule 20(a). However, for a narrow category of cases involving 23(b)(3) defendant classes, courts could employ the exceptions to serve the two policy objectives underlying the class action device: judicial economy and private law enforcement. In summary, courts should not view the juridical links doctrine as a joinder device, but as a test for ensuring Rule 23(a)(3) typicality for a plaintiff serving as class representative in a multiple defendant class action.

Thursday, June 17, 2004
Hamilton on Thomas's Newdow Opinion In her Findlaw column on Newdow, Marci Hamilton has this to say about Justice Tomas's concurring opinion:
    The Fourteenth Amendment, which applies to the states, has been read by courts to "incorporate" certain Bill of Rights guarantees that otherwise would apply only to the federal government. In Thomas's view, the First Amendment's Establishment Clause should not be incorporated. He contends that the Clause was included in the Bill of Rights only because the States feared that the federal government would establish a religion - and that this type of federal overreaching, therefore, is all that the Clause prevents. The history at the time of the framing is otherwise, however. The first draft of the First Amendment by James Madison applied to both state and federal government. Only politics - not principle -- forced it to be limited to the [federal government]. And indeed, Madison himself firmly believed that State-established religion was an evil. Indeed, he was a member of a minority religion in the state of Virginia, where there was a longstanding established church against which he fought vigorously.
I am not quite sure whether I understand the crucial move--only politics, not principle, forced the first amendment to be limited to the federal government. First, it may have been politics that forced Madison to limit the First Amendment to the states, but that does not entail that those who pressured Madison were not acting out of principle. And in fact, they were acting from principle (as much as any political actors do). Second, whether the limitation of the First Amendment to the federal government was based on politics or principle is not even clearly relevant to its meaning. Politics and not principle surely explains a great deal of the Constitution. Are we free to ignore the constitution's provision that each state shall have equal representation in the Senate because if it was based on politics and not principle? Read Hamilton's column, which has much to say about the other opinions in Newdow.

Thursday Calendar
    At Florida State, Charlene Luke, FSU College of Law, presents The Investor Control Doctrine: A Model for Limiting Tax-Advantaged Investment Transactions.

Gordon & Sylvester on Deconstructing Development Ruth E. Gordon and Jon H. Sylvester (Villanova University - School of Law and Golden State University - Law) have posted Deconstructing Development (Wisconsin International Law Journal, Forthcoming) on SSRN. Here is the abstract:
    Whether it is being praised or excoriated, defended or condemned, the concept of development shapes and dominates our thinking about the Third World. Indeed development has evolved into an essentially incontestable paradigm with such a hold on our collective imaginations, that it is almost impossible to think around or beyond it. This article, however, interrogates development to its very core, demonstrating that although it is presented as something that is universal, natural and inevitable, in truth it is part of the Western political and cultural imagination. Moreover, the interlocking ideological assumptions that support this paradigm are inherently hierarchical and by definition privilege certain societies, cultures and institutions while disparaging others. This critique traces how development began, how it has evolved and expanded in theory and practice over the last fifty years, and the evolution and influence of the institutions that determine its content. It also considers the implicit ideology that underpins development, as well as how and why it has come to feel almost inevitable and natural despite its short and disappointing history. While no new meta-narrative is posed, we nonetheless turn to imagining a world that does not demand that people ‘develop’ into something other than what they are.

Smith on Nuisance Henry E. Smith (Yale Law School) has posted Exclusion and Property Rules in the Law of Nuisance (Virginia Law Review, Vol. 90, No. 4, 2004) on SSRN. Here is the abstract:
    This Article offers a theory of nuisance law based on information costs. Like trespass, much of the law of nuisance relies on a strategy of exclusion in which rights are defined using low-cost signals like boundary crossings that are only indirectly tied to particular uses. Nuisance law also supplements and finetunes this "Blackstonian" package of entitlements by means of a governance strategy, which relies on signals more directly tailored to particular uses. The information-cost advantage of strategies close to the exclusion end of the spectrum helps explain why, despite repeated class for more balancing, nuisance law focuses on who caused invasions of whose land. Also consistent with an exclusion strategy are the staying power of traditional nonreciprocal notions of causation and the virtual nonexistence in nuisance of "Rule 4" liability rules, under which plaintiffs would be permitted to invoke the law to force the polluter either to abate or shut down upon payment of the polluter's "damages." Applying Hohfeldian analysis, the Article shows that the common law gives polluters at most a privilege to pollute and that Rule 4 does not refine the basic exclusion regime but rather undermines it. The general question becomes when to soften exclusion with governance and the Article concludes by arguing that, in situations such as oil and gas fields and Boomer-style pollution cases with numerous victims, only small judicial governance-style safety valves are necessary, especially if legislative and administrative solutions are forthcoming. More generally, the information-cost theory of nuisance brings the utilitarian and corrective justice approaches to nuisance closer together. Nuisance law is not a mess or mystery but does contain within it the inflection point between exclusion and governance.

Jinks on POW Status Derek Jinks (Arizona State University College of Law) has posted The Declining Significance of POW Status (Harvard International Law Journal, Vol. 45, 2004) on SSRN. Here is the abstract:
    What is the significance of prisoner-of-war status? Drawing on the substance, universal acceptance, broad-based institutionalization, and enforcement machinery of the Geneva Convention for the Protection of Prisoners of War, conventional wisdom maintains that denial of POW status to combatants has drastic protective (and policy) consequences. Contrary to this conventional wisdom, this Article argues that denial of POW status carries few protective or policy consequences and that the gap in protection is closing. The only persistent gaps are that: (1) POWs are assimilated into the legal regime governing the armed forces of the detaining state; and (2) POWs enjoy combatant immunity. The scope and significance of these gaps are, however, also diminishing - from both a protection and policy perspective. I also argue that this emerging protective parity has important implications for humanitarian law and policy: (1) it clarifies and consolidates debates about coverage gaps in the Geneva law; (2) it recasts debates about the proper procedure for determining status in humanitarian law (procedurally, POW status might be understood only as an affirmative defense to any prosecution for simple participation in hostilities); and (3) it underscores the escalating inefficiencies of approaches that calibrate treatment based on complex status determinations (and, in doing so, provides an explanation of why some states - including the U.S. - expressly incorporate elements of protective parity into their military policy). Finally, I offer a preliminary normative defense of protective parity - emphasizing whether it can be reconciled with the principle of distinction.

Knoll on the History of Regulatory Arbitrage Michael S. Knoll (University of Pennsylvania - School of Law) has posted The Ancient Roots of Modern Financial Innovation: The Early History of Regulatory Arbitrage on SSRN. Here is the abstract:
    Recent years has seen an explosion of financial innovation. Much of this innovation seeks to exploit inconsistencies in the regulatory environment, and one of the most popular techniques for doing so uses put-call parity. Nonetheless, regulatory arbitrage using put-call parity is not a new phenomenon, as is frequently suggested. This Essay traces the use of put-call parity to avoid the usury prohibition back to Ancient Israel. It also describes the important role that put-call parity played in developing the equity of redemption, the defining characteristic of a modern mortgage, in Medieval England. In addition, this Essay describes how Muslims living in the West are using mortgage substitutes based on put-call parity to avoid Islam's prohibition on paying interest.

Rosen on Exporting the Constitution Mark D. Rosen (Chicago-Kent College of Law) has posted Exporting the Constitution (Emory Law Journal, Vol. 53, p. 171, 2004) on SSRN. Here is the abstract:
    If a foreign government enacts a law that would be unconstitutional if passed in the United States, can a foreign judgment based on that law be enforced in an American court? For example, can an American court enforce an English judgment based on English defamation law, which is more pro-plaintiff than the First Amendment permits American law to be? The same issue was presented by recent litigation involving Yahoo!, where a federal district court considered whether it could enforce a French judgment based on a French law that regulated hate speech more broadly than the First American allows American polities to regulate. American courts to date uniformly have concluded that enforcing such foreign judgments would be unconstitutional. This Article argues that these courts' analysis is mistaken: While such a foreign judgment may well be "un-American" insofar as it comes from a non-American polity and reflects political values that diverge from American constitutional law, neither the foreign judgment itself, nor its enforcement by an American court, is unconstitutional. The Article shows that the American courts' analyses are based on a misunderstanding of post-Shelley v. Kraemer jurisprudence. The Article also explains why a legal requirement that foreign judgments be enforced does not qualify as a "generally applicable" legal rule that would trigger constitutional scrutiny. The American courts' mistaken constitutional analysis has begotten pernicious consequences. The illusion of unconstitutionality has obscured the fact that whether un-American judgments are to be enforced must be decided on the basis of policy. The courts' constitutional confusion also has hidden the fact that the more political branches of government are best institutionally suited on purely functional grounds to making such value-laden judgments. As a doctrinal matter, the courts' erroneous analysis threatens to wrongly narrow the scope of the President's power to pursue an executive agreement or to negotiate an enforcement treaty with other countries, thereby depriving the President and Congress of powers in respect of foreign affairs that are constitutionally theirs to exercise. Finally, the courts' faulty constitutional conclusion has led to a wholly American-centered analysis that categorically disregards a range of considerations that, on virtually any normative theory, are relevant to deciding whether un-American judgments should be enforced. (A companion piece explores in detail the policy considerations that appropriately determine whether un-American judgments should be enforced, see Should "Un-American" Foreign Judgments be Enforced?, 88 Minnesota Law Review 783 (2004)). This is a particularly opportune time to correct the constitutional misperceptions concerning un-American judgments because the United States is in the process of negotiating an international treaty dealing with the enforcement of foreign judgments. It is important that American negotiators not be constrained by illusions of constitutional limitations when they attend to their task of forging a multilateral treaty.

Baldwin on Punitive Regulation Robert Baldwin (London School of Economics) has posted The New Punitive Regulation (Modern Law Review, Vol. 67, pp. 351-383, May 2004) on SSRN. Here is the abstract:
    There is now some evidence of a potential drift towards 'punitive' approaches to regulation in which greater emphasis is placed on criminal sanctions. This new enthusiasm for punishment can be seen in government policy, legislation and some regulators' public stances. There is evidence, however, that companies (even top ones) deal with punitive regulatory risks in a confused manner and that even when they do act rationally, this may not lead to compliance. One response to punitive approaches and their limitations is to move towards greater reliance on stimulating the self-regulatory capacities of corporations. Such stimulation, however, has to be carried out with an awareness of the dangers of self-regulation - notably that it may lead to controls that lack legitimacy, prove unfair and are exclusive and inefficient.

Morgan on the Effect of Insurance on Tort Law Jonathan Morgan (University of Cambridge - Faculty of Law) has posted Tort, Insurance and Incoherence (Modern Law Review, Vol. 67, pp. 384-401, May 2004) on SSRN. Here is the abstract:
    Some commentators have doubted whether, as is generally believed, liability insurance has had a significant expansionary effect on the law of tort. This article contends that the common assumption is, indeed, correct, and the crucial influence of insurance is clearly seen in the recent cases of Vowles v Evans and Gwilliam v West Herts NHS Trust. Once this has been acknowledged, the consequent radical incoherence in the basis of tort law needs to be confronted. The argument here is that only through faithful adherence to principles of individual responsibility and corrective justice, inherent as these are within the structure of tort law, can we hope to preserve coherence in the law of tort.

Tadros & Tierney on the Presumption of Innocence Victor Tadros and Stephen Tierney (University of Edinburgh and University of Edinburgh - Faculty of Law) have posted The Presumption of Innocence and the Human Rights Act (Modern Law Review, Vol. 67, pp. 402-434, May 2004) on SSRN. Here is the abstract:
    There has recently been a proliferation of case law dealing with potential inroads into the presumption of innocence in the criminal law of England and Wales, in the light of article 6(2) of the European Convention on Human Rights. This article is concerned with the nature of the presumption of innocence. It considers two central issues. The first is how the courts should address the question of when the presumption of innocence is interfered with. The second is the extent to which interference with the presumption of innocence may be justified on the grounds of proportionality. It is argued that the courts have not developed the appropriate concepts and principles properly to address these questions.

Nimtz Defends Kripke/Putnam Christian Nimtz has posted Two-Dimensionalism and Natural Kind Terms. Here is a taste:
    Kripke and Putnam have convinced most philosophers that we cannot do metaphysics of nature by analysing the senses of natural kind terms – simply because natural kind terms do not have senses. Neo-descrip­tivists, especially Frank Jackson and David Chalmers, believe that this view is mistaken. Merging classical descriptivism with a Kaplan-inspired two-dimen­sional framework, neo-descrip­tivists devise a semantics for natural kind terms that assigns natural kind terms so-called ‘primary intensions’. Since primary intensions are senses by other names, Jackson and Chalmers conclude that we can and should do metaphysics of nature by analysing the natural kind concepts competent speakers possess. I argue that neo-descriptivism does not provide a suitable basis for doing this kind of metaphysics. I first of all give a detailed account of the neo-descrip­tivist semantics and deflate the intuitive support neo-descriptivists try to draw from their case of the XYZ-world. I then present three arguments – the Argument from Ignorance, the Argument from Conceptual Analysis, and the Argument from Laziness. Taken together, these arguments undermine the neo-descriptivist analysis of natural kind terms. I conclude that natural kind terms do not have senses, that we cannot do metaphysics of nature by analysing the senses of our kind terms, and that the Kripke-Putnam account still provides the best semantics for natural kind terms we have.

Heller & Dagan on Conflicts in Property Hanoch Dagan and Michael A. Heller have posted Conflicts in Property on SSRN. Here is the abstract:
    Property concerns conflicts - both conflicts between individuals and conflicts of interest. Conflicts between individuals have long been the paradigmatic property focus. According to this view, property debates circle around issues of autonomy and productive competition. But this is an impoverished view. In this Article, we shift attention to conflicts of interest. By helping people manage conflicts of interest, a well-governed property system balances interdependence with autonomy and productive cooperation with productive competition. We identify three mechanisms woven throughout property law that help manage conflicts of interest: (1) internalization of externalities; (2) democratization of management; and (3) de-escalation of transactions. We show that property law predictably selects among these mechanisms depending on the ratio of economic to social benefits that people seek from a group resource. When economic concerns predominate, property law typically uses contribution-based allocations of rights and responsibilities mediated by formal, foreground procedures; while at the social end of the spectrum we tend to see more egalitarian substantive rules operating in an informal, background safety net.

Dagan on Restitution Hanoch Dagan has posted Restitution and Slavery on SSRN. Here is the abstract:
    This Article claims that the very theories that best illuminate law's ordinary treatment of claims for restitution for wrongful enrichment and of cases of legal transition also help address some difficult challenges faced by the recent restitutionary reparation claims for wrongful enslavement. It advances six propositions. First, that because restitution for wrongful enrichment can vindicate plaintiffs' autonomy interests, rather than merely their lost utility, allowing claims for wrongful enslavement need not commodify the horrors of slavery. Second, that in order for wrongful enslavement claims to vindicate autonomy, the applicable measure of recovery should include the perpetrators' ill-gotten gains, rather than (merely) the slaves' lost wages. Third, that where restitution vindicates autonomy, allocating responsibility between defendants is unnecessary, because in such cases each is liable to disgorge its ill-gotten gains. Fourth, that because the question of whether descendants of slaves should have standing in pursuing restitution is, at its core, a concern of transforming the ancestors' inalienable right to control their labor into money, standing should be allowed if the descendants' claim is understood as a vindication of the infringement of their ancestors' rights which continuously and directly devastates their own dignity. Fifth, that the restitutionary defense of bona fides purchaser for value can be understood as an alternative, and indeed superior, doctrinal tool to that of limitations in dealing with the difficulty of intergenerational justice entailed by the attempt to redress historic wrongs. Sixth, that past legality (even constitutionality) of slavery need not bar restitutionary claims for wrongful enslavement because legal transition rules at times impose - and indeed should impose - some of the burden of our moral progress on beneficiaries of our past immorality.

Portmore on the Deficiency of Moral Theories Douglas Portmore has posted Why Most Moral Theories are Deficient. Here is a taste:
    In this paper, I present an argument that poses the following dilemma for any moral theory: either reject one or more of our most firmly held moral convictions or accept that non-moral reasons can counterbalance moral reasons and thereby affect the moral permissibility of our actions. Furthermore, I argue that, given this dilemma, we should conclude that most, if not all, of the moral theories currently on offer are deficient in that they either fail to comport with our considered moral judgements or fail to provide us with the requisite account of non-moral reasons and how they affect the permissibility of our actions. I conclude the paper both by suggesting that we take a new approach to normative ethics and by taking the first step in this new direction.

Wednesday, June 16, 2004
Lawson on Presentment Gary S. Lawson has uploaded Burning Down the House (and Senate): A Presentment Requirement for Legislative Subpoenas Under the Orders, Resolutions, and Votes Clause (83 Texas L. Rev., forthcoming Spring 2005) to SSRN. Here is the abstract:
    The Constitution's Orders, Resolutions, and Votes Clause, U.S. Const. art. I, § 7, cl. 3, requires presentment to the President of every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) . . . before the Same shall take Effect. The conventional wisdom, bred more than 200 years ago by James Madison, holds that this clause simply prevents Congress from evading the presentment requirement for bills in Article I, section 7, clause 2 by labelling legislative action something other than a bill. Seth Tillman, however, argues in a forthcoming article that the clause imposes a presentment requirement on single-house action taken pursuant to prior bicameral authorization. See Seth Barrett Tillman, A Textualist Defense of Article I, Section 7, Clause 3: Why Hollingsworth v. Virginia Was Rightly Decided, and Why INS v. Chadha Was Wrongly Decided, Mr. Tillman is likely correct, but he does not clearly identify the classes of single-house action to which this provision might refer. I elaborate on Mr. Tillman's important work by arguing that the most significant, and perhaps the only, single-house actions subject to this clause are the issuance of legislative subpoenas. Neither house of Congress has an enumerated power to issue such subpoenas, but bicameral authorization for their issuance could come from legislation under the Sweeping Clause of Article I, Section 8, clause 18. On this understanding, the Orders, Resolutions, and Votes Clause then requires each subpoena to be presented to the President for signature or veto before the Same shall take Effect. This presentment requirement for subpoenas makes sense as a matter of both text and structure.
Tillman's work is very interesting and important, as is Lawson's extension (and response). Download both papers, while they're hot!

Law and Politics Book Review Several new reviews have gone up on the fabulous Law and Politics Book Review:
  • THE ESSENTIAL CONCEPT OF LAW, by James T. McHugh. New York: Peter Lang Publishing, 2002. 176 pp. Paper $22.95 / ?24.20 /£16.00 ISBN: 0-8204-6180-6. Reviewed by Verity Smith.
  • THINKING ABOUT CRIME: SENSE AND SENSIBILITY IN AMERICAN PENAL CULTURE, by Michael Tonry. New York: Oxford University Press, 2004. 278 pp. Hardback. $28.00 £17.95. IBSN: 0-19-514101-6. Reviewed by Cassia Spohn.
  • COMPLICITY: ETHICS AND LAW FOR A COLLECTIVE AGE, by Christopher Kutz. Cambridge University Press, 2000. 344pp. Hardback. $70.00. £45.00. ISBN: 0521594529. Reviewed by Emmanuel Melissaris.
  • COPS, TEACHERS, COUNSELORS: STORIES FROM THE FRONT LINES OF PUBLIC SERVICE, by Steven Maynard-Moody and Michael Musheno. Ann Arbor: University of Michigan Press, 2003. 216pp. Paperback. $25.00. ISBN: 0-472-06832-6. Cloth. $70.00. ISBN: 0-472-09832-2. Reviewed by Anne L. Schneider.
  • UNEASY ALCHEMY: CITIZENS AND EXPERTS IN LOUISIANA'S CHEMICAL CORRIDOR DISPUTE, by Barbara L. Allen. Cambridge: The MIT Press, 2003. 224 pp. $55.00/£35.95. Cloth. ISBN 0-262-01203-0. Paper $22.00/£14.95. ISBN: 0-262-51134-7. Reviewed by Susan Gluck Mezey.
  • THE QUALITY OF FREEDOM, by Matthew H. Kramer. Oxford: Oxford University Press, 2003. 494 pp. Hardback $45.00. £30.00 ISBN 0-19-924756-0. Reviewed by J. Mitchell Pickerill.
  • FIFTY YEARS OF THE SUPREME COURT OF INDIA: ITS GRASP AND REACH, by S. K. Verma and Kusum Kumar (eds.). New Delhi: Oxford University Press, 2003. 850pp. Paperback. INR 595. £17.95 $35.00. ISBN: 0195662555. Reviewed by Gary Jeffrey Jacobsohn.

Conference Announcement: Historical Perspectives on Wrongdoing and Evil
    The School of Philosophy, University of Leeds presents A Research Workshop on Historical Perspectives on Wrongdoing and Evil. Tuesday 6th July 2004 In Room G36, Baines Wing, University of Leeds Registration 10.30 to 11.00 11.15-12.45 Dr. Seiriol Morgan, University of Leeds "The Missing Formal Proof of Humanity's Radical Evil in Kant's Religion" 12.45-2.00 Lunch 2.00-3.30 Dr. Catherine Osborne, University of East Anglia "Human mistakes and theological errors in Augustine's confessions" 3.30-4.00 Tea 4.00-5.30 Professor Jean Porter, University of Notre Dame "Moral ignorance, wrongdoing and sin" All Welcome Registration fee £5, to include lunch. If you wish to attend, could you please contact Dr. Chris Megone, School of Philosophy, University of Leeds, Leeds LS2 9JT, or Please make cheques payable to The University of Leeds.

Tuesday, June 15, 2004
Welcome to the Blogosphere . . . to Pea Soup (A blog dedicated to philosophy, ethics, and academia).
And also to Desert Landscapes, another philosophy blog.

Standing and Legal Formalism Over at De Novo, Nick Morgan asks an interesting question:
    The question I’m finally arriving at in this post is whether manipulating doctrine to avoid constitutional questions is, to legal formalists or other anti-realists, just as contemptible as reaching a desired result on the merits by manipulating doctrine.
Nick's question raises many others. One question concerns how legal formalists should approach standing doctrine as a matter of constitutional interpretation. Another question would focus on the relative evil of ducking a question or deciding it on nonformal grounds. Read Nick's post!

Stuart Hampshire The British philosopher Stuart Hampshire had died. Here is an excerpt from the Telegraph obituary:
    Inspired by his study of the philosophy of Spinoza, Hampshire developed a description of the conditions necessary for human action, suggesting that human freedom can best be understood by examining the distinction between the declaration of what one intends to do and a prediction of what one is likely to do given one's genetic and social conditioning.
Link courtesy of Chris Bertram of Crooked Timber.

Tuesday Calendar
    At the Oxford Jurisprudence Discussion Group, John O’Dowd presents The Justice of Adjudication and Social Justice.
    At Oxford's Ockam Society, Danie Star (St Anne's)presents Virtue after Virtue Ethics.

Newdow Wayne Eastman has a nice post entitled Judicial politics and the Pledge over at Eastmania. Here is a taste:
    Three justices (Rehnquist, O’Connor, and Thomas) criticized the majority’s holding on standing and contended that “under God” should be upheld as constitutional.
    One justice (Scalia) recused himself from participating in the case based on remarks in a speech in which he opposed Dr. Newdow’s claim.
    Both the Stevens and Rehnquist opinions used language that implicitly criticized the other side for being inconsistent with its professed beliefs. In upholding the standing objection, the liberal Stevens quoted a 1983 opinion by conservative Robert Bork on the importance of standing considerations. In criticizing the majority’s standing holding, the conservative Rehnquist described the majority as acting in an ad hoc way, “like the proverbial excursion ticket—good for this day only,” using language mirroring liberal criticism of the Court’s conservative opinion in the 2000 Bush v. Gore case.
And for more on Newdow, check out Balkin. And here is a fine post by Greg Goelzhauser!

Edelman Makes a Modest Proposal Paul H. Edelman (Vanderbilt University School of Law) has postedLaw Clerks, Law Reviews, and Some Modest Proposals (Green Bag, Forthcoming) on SSRN. Here is the abstract:
    Every fall many law students become embroiled in two distinct, yet remarkably similar, markets: the law clerk market and the law review article market. While there has been considerable ink spilled about each market separately, there has never been a discussion of the similarities of the two and the lessons to be learned by the comparison. This short essay begins to fill this much needed gap in the legal literature.

Monday, June 14, 2004
Legal Theory Calendar
    Tuesday, June 15
      At the Oxford Jurisprudence Discussion Group, John O’Dowd presents The Justice of Adjudication and Social Justice.
      At Oxford's Ockam Society, Danie Star (St Anne's)presents Virtue after Virtue Ethics.
    Thursday, June 17
      At Florida State, Charlene Luke, FSU College of Law, presents The Investor Control Doctrine: A Model for Limiting Tax-Advantaged Investment Transactions.
    Friday, June 18
      Today, there is a conference entitled Homeland Security and Civil Liberties" cohosted by the U.S. Army War College and Penn Law School.
      The Australian and New Zealand Society of International Law meets today through the 20th at the Australian National University in Canberra.

Sunday, June 13, 2004
Legal Theory Lexicon: Functional Explanation in Legal Theory
    Introduction In a prior installment of the Legal Theory Lexicon, we explored the difference between Positive and Normative Legal Theories. Positive legal theory attempts to explain and predict legal behavior, especially the content of legal rules. Normative legal theory makes claims about what those rules should be. This week's post is about an important and familiar concept in positive legal theory--the idea of a functional explanation.
    Why do legal rules have the form and content that they do, in fact, have? One answer to this question is based on the idea that the function of a rule can be part of a causal explanation of the content of the rule. Why does corporations law limit the liability of stockholders? One kind of answer to that question might begin: "That rule is the way it is, because it serves the interest of the capitalist class." In other words, the content of the rule is explained (causally) by the function the rule serves.
    The Idea of a Functionalist Explanation Functionalist explanations are familiar to almost everyone, because of the important role they play in evolutionary biology. When we try to explain why an organism has a particular trait--why male peacock's have their feathers or why the elephants have trunks--we appeal to the function that the trait serves. Male peacock's have colorful feathers because that trait serves to attract female peacock's and hence serves a reproductive function. Elephants have trunks, because they enable elephants to eat and drink more efficiently.
    In biology, functionalist explanations are scientifically valid, because we understand the causal mechanism whereby function plays a causal role. That causal mechanism is evolution, of course, and we have a very good explanation for how evolution works in the form of genetics. DNA (plus a lot of other stuff) provides the precise causal mechanism by which evolution operates.
    Functionalist Explanation in the Social Sciences Functionalist explanations are not limited to biology. Sociologists frequently explain social behavior on the basis of the social function that the behavior serves. Why does this group do a "rain dance"? Because the rain dance ritual serves to create social cohesion in times of stress. There is, however, a significance difference between functionalist explanation in biology and functionalist explanation in the social sciences. In biology, functionalist explanations are underwritten by a well-confirmed theory of the causal mechanism by which evolution functions. In social science, the causal mechanisms are murkier. What causal law explains how the social cohesion function of rain dances leads to their perpetuation across generations? Without an answer to questions like this, we have at least prima facie reason to be suspicious of functionalist explanations in the social sciences. This suspicion is enhanced because functionalist explanations can easily become nonfalsifiabile. In the case of biology, because evolutionary theory is well confirmed, we more or less know in advance that a functionalist explanation has got to be right--the question is which functionalist explanation is correct. In the case of social science, there is no well-confirmed general theory of social evolution, so it isn't necessarily the case that there is always a true functionalist explanation for any given social behavior.
    Functionalist Explanations in Legal Theory And that brings us to law. Functionalist explanations are frequently invoked in positive legal theory. That is, when we ask the question, "Why does the law have such and such content?", the answer frequently is, "Because such and such a rule functions in thus and so way." Here are some examples:
      Marxist Explanations of Law--Marxist social theory relies heavily on functionalist explanation in general, and so it is not surprising that many Marxist explanations of law are functionalist in nature. "The law is such and such, because that rule serves the interest of the capitalist class." "Feudal law governing rights in land gave way to modern property law with free alienability, because that change was required by the transition from the feudal mode of production to the capitalist mode of production."
      Legal Evolution Functionalist explanations are also implicit in any claim that the law evolves (where "evolves" is meant in a technical sense and is not a mere synonym for "changes"). The idea that legal systems evolve is very common, but there is not general theory of legal evolution that has the well-confirmed status of the corresponding theory of biological evolution. Be on the watch for claims about legal evolution; such claims frequently are not well thought out and almost always lack empirical support.
      Efficiency Another example of functionalist explanation in legal theory is the claim that the common law rules are efficient. "Why did the common law adopt the Learned Hand formula as the standard for negligence?" "Because that is the efficient standard." Sometimes these claims are accompanied by an account of the mechanism by which a common law system moves towards efficient legal rules. For example, it might be argued that inefficient legal rules will be subject to continuous litigation pressure; whereas efficient legal rules, once adopted, tend to facilitate settlement of disputes.
    Microfoundations When you are thinking about particular functionalist explanations in positive legal theory, it is particularly helpful to ask the question whether the explanation has "microfoundations." That is, does the functionalist explanation for a particular legal rule (or change in legal rules) incorporate a specific account of the causal mechanism by which the function caused the rule or change. It is always possible that a particular functionalist explanation is true, even if microfoundations cannot be provided, but the absence of causal mechanisms is a reason to be suspicious.
    For a very lucid explanation of the role of microfoundations in social science, I highly recommend Jon Elster's brilliant book Making Sense of Marx.
    Conclusion Let me conclude with a very short diatribe. Legal theorists need a basic understanding of positive legal theory. (I hope this is obvious to everyone!) That means that legal academics should, at a minimum, have a working familiarity with the general concepts of the methodology and theory of the social sciences, including basic ideas about the role of functionalist explanations. But almost no law schools (even the elite ones that train most academics) offer courses in the methodology of positive legal theory! That's bad. Real bad.

Saturday, June 12, 2004
Legal Theory Bookworm This week the Legal Theory Bookworm recommends The Second Bill of Rights by Cass Sunstein. Here are two descriptions:
    Publishers Weekly:
      While it doesn't succeed in making Franklin Roosevelt into a constitutional innovator, this disheveled book does bring into focus FDR's forgotten effort to address domestic "security," as WWII neared its climax. Roosevelt's inaugural address of January 11, 1944, asked Congress to adopt a "second Bill of Rights": guarantees of work, adequate housing and income, medical care and education, among others—promises designed to extend the New Deal (and thwart the appeal of communism). The indefatigable Sunstein (Why Societies Need Dissent, etc.) sketches Roosevelt's domestic policies and the logistics of the inaugural address (included in full in an appendix), then debates the never-adopted bill's merits, historically as its ideas kicked around in the post WWII-era, and as it might be taken up today. He tends to be scanty on the bill's potential budgetary toll and on the responsibility for one's own welfare that FDR thought the bill's beneficiaries ought to bear. Sunstein roams widely over legal history and precedent, but is focused and clear in showing how FDR sowed the seeds of the Universal Declaration of Human Rights (in whose 1948 drafting Eleanor Roosevelt played a crucial role) and energetic in discussing this proposal's further possible legacy.
    Publisher's Description:
      The Second Bill of Rights brings back from obscurity the greatest speech of the greatest president of the twentieth century, to issue a stirring call for much-needed rights that were never enacted. In 1944, Franklin Delano Roosevelt gave a State of the Union Address that was arguably the greatest political speech of the twentieth century. The speech began what Cass R. Sunstein calls the Second American Revolution by giving form and specificity, for the first time, to the concept of human economic rights. Many of the great legislative achievements of the past sixty years stem from Roosevelt's proposal for a Second Bill of Rights. Yet these rights have never been written into the Constitution, and they remain the subject of passionate debate. In recent years they have even lost ground. Using FDR's speech as a launching point, Sunstein examines the "legal realist" school of thought, which decisively refuted the idea of laissez-faire economics; describes how Roosevelt gradually developed the idea of a Second Bill of Rights; and asks why the Second Bill, which was almost enacted under the Warren Court, has never attained the constitutional status FDR sought for it. The reason, Sunstein maintains, is not anything unique to American culture or temperament but a particular historical accident: the election of Richard Nixon as President in 1968. This is an ambitious, sweeping book that argues for a new vision of FDR, of constitutional history, and of our current political scene. The Second Bill of Rights is an integral part of the American tradition and the starting point for contemporary political reform.

Download of the Week This week the Download of the Week is SCO What? Rhetoric, Law, and the Future of F/OSS Production by David McGowan (University of Minnesota Law School). Here is the abstract:
    Using litigation between The SCO Group and IBM as an example, this essay relates the rhetoric that drives open-source software as a social movement to legal issues open-source production faces. The essay argues that social movement rhetoric creates noise that makes legal issues more difficult to understand and resolve. The tension between social movement noise and legal signal may become more acute and more important as F/OSS projects continue to make inroads in commercial space, where IP litigation is a way of life. The community's reaction to the SCO/IBM litigation suggests it needs to adapt community expectations and production procedures to this environment. The essay concludes with thoughts on issues the F/OSS community may wish to consider in connection with drafting version 3 of the General Public License. These issues include: What is the GPL?; whose GPL is it?; and how many GPL's are there? Each question has a seemingly obvious answer which, on consideration, presents interesting legal issues.
Highly recommended! Download it while its hot!

O'Connor on Statutory Interpretation Gary O'Connor (of the nifty Statutory Construction Zone is the author of Restatement (First) of Statutory Interpretation, which is now available on LEXIS and Westlaw and in PAPER at 7 NYU Journal of Legislation & Public Policy 333. Click on the title for the SSRN version!

SSRN Top Recent Downloads The Social Science Research Network compiles lists of top ten downloads by subject matter. (Click on the category name for the full list of the top ten papers by number of downloads in the past 60 days.) Here are categories and selected papers of interest to legal theorists:

Friday, June 11, 2004
Dana on Adequacy of Representation David A. Dana (Northwestern University Law School) has posted 'Adequacy of Representation' in Time (Or Why the Result in Stephenson is Correct) on SSRN. Here is the abstract:
    This essay sketches a Rawlsian defense of allowing subsequent challenges to class action settlements, as in the Stephenson agent orange case and the Homeside bank boston case. My normative claim is that the Rawlsian original position is a helpful way of thinking about what a fair distribution among class members entails that is, we should ask whether a settlement conceivably could have been agreed to by class members standing behind a veil of ignorance as to what their particular position or place within the class would be beyond the veil. Subsequent challenges to settlements should be permitted where no reasonable class member standing behind the veil of ignorance, employing maximin decisionmaking, would have consented to the settlement. I also argue that proposed reforms in the manner by which judges approve class action settlements, while perhaps sensible, will not eliminate the problem of inadequate representation, and that the availability of such subsequent challenges based on inadequacy of representation will not appreciably reduce the settlement rate in class actions or otherwise destroy the class action as a dispute resolution mechanism.

iCon: The Constitution Of the United States on your iPod Get it from the American Constitution Society.

Conference Announcement: Israeli Law & Economics Association The Israeli Law & Economics Association meets on Tuesday, June 15. Here is the website.

Friday Calendar
    At Oxford's Philosophical Society, J. David Velleman (University of Michigan) presents What Good is a Will?

Eleventh Circuit Declines Consideration of Challenge to Pryor's Recess Appointment Here is the story on
    he 11th U.S. Circuit Court of Appeals on Thursday rejected an attempt by Sen. Edward M. Kennedy to keep Judge William H. Pryor Jr. from participating in cases that will be argued before the full court next week. Chief Judge J.L. Edmondson ended a 24-hour flurry of legal maneuvering with a three-paragraph order for the court, declaring that the Massachusetts Democrat's argument -- that President Bush unconstitutionally placed Pryor on the court -- arrived too late for the court to consider.

Foley on Election Law Ed Foley (Ohio State) has posted The 'Major Purpose' Test: Distinguishing Between Election-Focused and Issue-Focused Groups (Northern Kentucky Law Review, Vol. 31, 2004)on SSRN. Here is the abstract:
    This essay addresses a constitutional question unresolved by McConnell v. FEC, a question crucial to the current controversy over the regulation of non-party interest groups. The question is whether it is permissible to limit the contributions that non-party groups receive from individual donors to a specified amount - for example, $5000 per donor per year - when any electioneering activities undertaken by the group are conducted independently from the activities of political parties and their candidates. Drawing on the foundational precedent of Buckley v. Valeo, this essay argues that the answer to this constitutional question should turn on whether the non-party group is either election-focused or issue-focused in the predominant portion of its activities.
I always profit from Ned's work!

Entry Level Hiring (Update #31, Last Updated on June 11, 66 schools reporting) Well, I find myself unable to resist those who would like to be added to the list, so I am posting another update, adding three entry-level hires to the last official version.
Here are some interesting numbers:
    JD Institution Yale leads with 20, Harvard has 18 and Stanford (10) is close behind. Chicago has 6. Berkeley has 5. Columbia, Michigan, Penn, Georgetown, and Virginia have 4 each. Howard and Texas are next with 3 each.
      Arizona-1 Australian National University-1 Boston College-1 Boston University-1 Columbia-4 Cornell-1 Chicago-6 Fordham-1 George Mason-1 George Washington-1 Georgetown-4 Georgia-1 Harvard-18 Hebrew-2 Howard-3 Kansas-2 Michigan-4 National Law School of India-1 North Carolina-1 Northwestern-1 NYU-1 Penn-4 Stanford-10 U of Arizona-1 UC Berkeley-5 UC Davis-1 UCLA-1 Tel Aviv-2 Texas-3 Toronto-1 Tulane-2 Vanderbilt-1 Virginia-4 William & Mary-1 Wisconsin-1 Yale-20
    Here is the same data in a pie chart (which may take a moment or two to display):
    If the chart were a clock, Yale would cover the span from 12:00 to approximately 2:30, with Harvard, Stanford and the rest following clockwise. The last group of 24 other schools occupies the span from about 9:10 to 12:00. If the Pie Chart does not display, try this link: Here is the breakdown by geographical region:
    And try this link if the chart does not display: PhD Discipline Philosophy leads with five placements, with Political Science (including Government, Political Theory, etc.) just behind with 4 placements. There must be more economics PhDs in the pool, but perhaps the economists realize that it is rational to be a free rider, gleaning the information submitted by others, but not submitting information yourself.
      Economics-1 English-1 History-2 Jurisprudence & Social Policy (Berkeley Program)-1 Middle Eastern Studies-1 Philosophy-6 Political Science-4 Psychology-2
And here are the hires by school in alphabetical order:
      Amanda Frost (JD Harvard)
    Arizona State
      Yariv Brauner (JD Hebrew University & JSD NYU)
      Adam Chodorow (JD Virginia & LLM NYU)
      Linda Demaine (JD Arizona & PhD Psychology Arizona State)
      Aaron Fellmeth (JD Yale)
      Sandeep Gopalan (JD National Law School of India & DPhil Law Oxford)
      Orde Kittrie (JD Michigan)
    Boston College
      Mary-Rose Papandrea (J.D. Chicago)
    California Western
      Michael Yu (JD Columbia & LLM NYU)
      John Hall (JD Stanford & DPhil History Oxford)
      Donald Kochan (JD Cornell)
      Francine Lipman (JD UC Davis & LLM NYU)
      Daniel Hamilton (JD George Washington & Phd History Harvard)
      Michael Scodro (JD Yale Law)
      Carolyn Shapiro (JD Chicago JD)
      Alex Raskolnikov (JD Yale)
      Robert Hockett (JD Kansas & MA Oxford; JSD Yale)
      Bernadette Meyler (JD Stanford & PhD English UC Irvine)
      David Franklin (JD Chicago)
      Jedediah Purdy (J.D. Yale)
      Neil Siegel (JD & PhD Berkeley)
      Kimberly Jenkins (JD Harvard)
      Michael Kang (JD Chicago & PhD Government Harvard)
      Julie Seaman (JD Harvard)
    Florida International University
      Jose M. Gabilondo (JD Berkeley)
      Heather Lauren Hughes (JD Harvard)
      Andre L. Smith (JD Howard & LLM Georgetown)
      Carlton Mark Waterhouse (JD Howard & PhD Social Ethics Emory)
    Florida State
      Amitai Aviram (JD Tel Aviv & JSD Chicago)
      Curtis Bridgeman (JD & PhD Philosophy Vanderbilt)
      Jonathan Klick (JD & PhD Economics George Mason)
      Robin Lenhardt (JD Harvard)
    George Mason
      Michelle Boardman (JD Chicago)
    George Washington
      Steve Charnowitz (J.D. Yale)
      Amanda Tyler (J.D. Harvard)
      John Mikhail (JD Stanford & PhD Philosophy Cornell)
      Ethan Yale (JD Tulane & LLM NYU)
      Hofstra: Michael Siebecker (JD Columbia & PhD Political Theory (expected) Columbia)
    Indiana, Bloomington
      Kevin Collins (JD Stanford)
    Loyola Marymount University
      Robin Kar (JD Yale & PhD Philosophy Michigan)
      Lauren Willis (JD Stanford)
    Loyola University (Chicago)
      Sacha M. Coupet (J.D., University of Pennsylvania; Ph.D., University of Michigan)
      Stephanie M. Stern ( JD Yale)
      Jason J. Czarnezki (J.D. Chicago)
      Scott A. Moss (J.D. Harvard)
    Michigan State
      Adam Candeub (J.D. Penn)
      Noga Morag-Levine (LL.B. Hebrew; Ph.D. Jurisprudence and Social Policy, UC Berkeley)
      Kristin Hickman (JD Northwestern)
      David Stras (JD & MBA Kansas)
    New York University
      Cristina Rodriguez (JD Yale)
      Tonja Jacobi (JD Australian National University & PhD Political Science (Expected) Stanford)
      Jide Nzelibe (JD Yale)
    Notre Dame
      No entry level hire this year.
    Ohio State
      Garry Jenkins (JD Harvard)
    Rutgers, Camden
      Greg Lastowka (JD Virginia)
      John Oberdiek (JD & PhD Philosophy Penn)
    Seton Hall
      Gaia Bernstein (JD Boston University & JSD (expected) NYU)
      Frank Pasquale (JD Yale & MPhil Oxford Politics)
      Paul Horwitz (LL.B. Toronto & LL.M. Columbia)
    St. Louis University
      Fred Bloom (JD Stanford)
      Nicole Porter (JD Michigan)
    Southern Methodist
      Jenia Iontcheva (JD Yale).
      Alison Morantz (JD Yale & PhD Economcis Harvard)
      Christopher Gibson (JD Berkeley)
      Aviva Abramovsky (JD Penn)
      Terry Turnipseed (JD & LLM Georgetown)
      Craig Green
      David Hoffman (JD Harvard)
      Duncan Hollis (JD Boston College)
    Texas Wesleyan
      Neal Newman (JD Howard)
      Aric Short (JD Texas)
    University of California at Berkeley
      Anne Joseph (JD Yale, Ph.D Harvard in Political Economics and Government)
    University of California at Davis
      Michelle Alexander (JD Stanford)
      Jennifer Chacon (JD Yale)
      Carlton Larson (JD Yale)
      Donna Shestowsky (JD Stanford & PhD Psychology Stanford)
    University of California at Los Angeles
      Russell Robinson (JD Harvard)
      Noah Zatz (JD Yale)
    University of Chicago
      Adam Cox (JD Michigan)
      Adam Samaha (JD Harvard)
    University of Cincinnati
      Adam Steinman (JD Yale)
    University of Colorado
      Nestor Davidson (JD Columbia)
      Clare Huntington (JD Columbia)
    University of Connecticut
      Alexandra Lahav (JD Harvard)
    University of Georgia
      Kevin Jon Heller (JD Stanford)
      Erica Hashimoto (J.D. Georgetown)
    University of Kansas
      Elizabeth Weeks (JD Georgia)
    University of Kentucky
      Mark Kightlinger (JD & Ph.D., Philosophy, Yale)
    University of Nevada Las Vegas
      Tuan Samahon (JD Georgetown)
    University of Miami
      Mario L. Barnes (JD Berkeley)
    University of Michigan
      Alicia Davis Evans (JD Yale & MBA Harvard)
    University of Nebraska
      Richard Moberly (JD Harvard)
    University of North Carolina
      Richard Myers (North Carolina)
    University of Oklahoma
      Mary Sue Backus (JD William and Mary)
    University of San Diego
      Adam Kolber (JD Stanford)
      David Law (JD Harvard & PhD Political Science Stanford)
      Lisa Ramsey (JD UCLA)
    University of South Carolina
      Josie Brown (JD Harvard)
      Josh Eagle (JD Georgetown)
      Joel Samuels (JD Michigan)
    University of Tennessee
      Jeffrey Hirsch (JD NYU)
    University of Texas
      Oren Bracha (JD Tel Aviv & SJD Harvard)
    University of Washington
      Kristin Stilt (JD Texas & PhD Middle Eastern Studies Harvard)
      Tiffany Graham (JD Virginia)
    Wake Forest
      No entry level hire this year.
    Washington & Lee
      Montre Underwood (JD Tulane)
      Melissa Waters (JD Yale)
    Western New England
      William Childs (JD Texas)
    Widener, Harriburg
      Ben Barros (JD Fordham)
      Michael Dimino (J.D. Harvard)
    William & Mary
      Eric Chason (JD Virginia)
      Nancy Combs (JD Berkeley)
      Erin Ryan (JD Harvard)
    William Mitchell
      Alexandra Klass (JD University of Wisconsin)
      John Radsan (JD Harvard)
I should probably stop saying that this is the final version of the list. If you have new information, I will do another update--perhaps at the end of the Summer.
And JD students are also hired in other disciplines. For example, Wharton Legal Studies reports that they have hired Kevin Werbach (JD Harvard).
Note: This list is for entry-level hires only. I have arbitrarily grouped first degrees in law as JDs, even though many non-US law schools award the LLB as the first law degree. Several readers have asked that I collect data on subject-matter areas, but my judgment is that this data is both too soft to be reliable and too difficult to collect. My thanks to everyone who has contributed information!

Thursday, June 10, 2004
Caron Reports Paul Caron has a report on the Critical Tax Conference over at TaxProf Blog.

Impact Rankings for Law Reviews The Library at Washington & Lee's School of Law maintains a very interesting web page which provides rankings for law reviews based on citations. The cite now has an impact ranking, that ranks journals by cites per article (as opposed to the total number of cites for the journal). Here is the top twenty ranked by impact:
    1__Supreme Court Review__________________15.88
    2__Columbia Law Review___________________11.39
    2__Yale Law Journal______________________11.39
    4__Stanford Law Review___________________10.85
    5__Cornell Law Review____________________10.55
    6__Harvard Law Review____________________10.49
    7__Northwestern University Law Review_____9.99
    8__California Law Review__________________9.84
    9__New York University Law Review_________9.74
    10_Virginia Law Review____________________9.65
    11_Georgetown Law Journal_________________9.63
    12_University of Pennsylvania Law Review__9.43
    13_UCLA Law Review________________________9.20
    14_Harvard C.R.-C.L. Law Review___________9.12
    15_University of Chicago Law Review_______8.62
    16_Minnesota Law Review___________________8.59
    17_Duke Law Journal_______________________8.43
    18_Vanderbilt Law Review__________________7.69
    19_Texas Law Review_______________________7.53
    20_Southern California Law Review_________6.98
The methodology is explained here. Journal presitige is arguably better measured by total number of cites, but the Impact ranking is interesting. Unfortunately, the survey ranks by mean and not by median; because one or two very heavily cited articles can make a big difference to the mean, the median would be a very useful statistic.

Thursday Calendar
    At Florida State, Greg Mitchell, FSU College of Law, presents Unconfounding Intuitions about Corrective and Distributive Justice.

Camera on the Costs of Sovereignty K. A. D. Camara (Harvard University - Harvard Law School) has posted Costs of Sovereignty on SSRN. Here is the abstract:
    I demonstrate that criteria for assessing private international law other than the degree to which it advances state interests are inconsistent with a normatively appealing duty that I call consistency or fidelity to law. I then explore the choices faced by a legal decision maker who has adopted this criterion. Every claim to regulatory authority - to sovereignty - over conduct over which other states are also interested in exercising regulatory authority must be justified by demonstrating that the benefits in terms of advancement of domestic objectives outweigh the costs, in the same terms, likely to be imposed by other states in order to deter such claims to sovereignty. I call these latter costs of sovereignty and identify five categories of them. An important consequence of variation in states' abilities to accept and impose costs of sovereignty is that a private international law uniform across states will generally not be consistent with my normative framework. To demonstrate the operation of my normative framework, I explore four paradigmatic tradeoffs between costs and benefits of sovereignty: four positions along a scale of sovereignty; and, more concretely, I apply my framework to the case of regulating conduct on the Internet. Finally I discuss a series of connections and extensions, including positive claims; the situation of a federal or international legal decision maker; the notions of private, camouflaged and sticky sovereignty, and the need for private international law technology; and the relation of my approach to issues in corporate law and the theory of the firm.

Hunt on Bribery Jennifer Hunt (McGill University - Department of Economics} has posted Trust and Bribery: The Role of the Quid Pro Quo and the Link with Crime on SSRN. Here is the abstract:
    I study data on bribes actually paid by individuals to public officials, viewing the results through a theoretical lens that considers the implications of trust networks. A bond of trust may permit an implicit quid pro quo to substitute for a bribe, which reduces corruption. Appropriate networks are more easily established in small towns, by long-term residents of areas with many other long-term residents, and by individuals in regions with many residents their own age. I confirm that the prevalence of bribery is lower under these circumstances, using the International Crime Victim Surveys. I also find that older people, who have had time to develop a network, bribe less. These results highlight the uphill nature of the battle against corruption faced by policy-makers in rapidly urbanizing countries with high fertility. I show that victims of (other) crimes bribe all types of public officials more than non-victims, and argue that both their victimization and bribery stem from a distrustful environment.

Book Announcement: Politics & Vision by Sheldon Wolin
    Princeton University Press announces:
      The Expanded Edition of Politics and Vision: Continuity and Innovation in Western Political Thought By Sheldon S. Wolin
    To read a sample chapter, please visit: This is a significantly expanded edition of one of the greatest works of modern political theory. Sheldon Wolin's Politics and Vision inspired and instructed two generations of political theorists after its appearance in 1960. This new edition retains intact the original ten chapters about political thinkers from Plato to Mill, and adds seven chapters about theorists from Marx and Nietzsche to Rawls and the postmodernists. The new chapters, which show how thinkers have grappled with the immense possibilities and dangers of modern power, are themselves a major theoretical statement. They culminate in Wolin's remarkable argument that the United States has invented a new political form, "inverted totalitarianism," in which economic rather than political power is dangerously dominant. In this new edition, the book that helped to define political theory in the late twentieth century should energize, enlighten, and provoke generations of scholars to come. To read the entire book description, go to: 0-691-11977-5 Cloth $39.95 US and L26.95 968 pages. 6 x 9.

Wednesday, June 09, 2004
Priester on Structuring Sentencing Benjamin J. Priester (Florida State University - College of Law) has posted Structuring Sentencing: Apprendi, The Offense of Conviction, and the Limitied Role of Constitutional Law on SSRN. Here is the abstract:
    The paper analyzes the recent line of United States Supreme Court cases that has called into question the constitutionality of highly controversial contemporary sentencing laws such as mandatory minimum sentences and the Federal Sentencing Guidelines. A narrow majority in Apprendi v. New Jersey (2000) and a plurality in Harris v. United States (2002) evaluated these sentencing laws under the Jury Trial guarantee of the Sixth Amendment and, at least for the time being, approved of their constitutionality. The paper demonstrates that the Court's interpretive struggle in these cases results from too narrow a focus on the Sixth Amendment and the allocation of responsibility between the trial jury and the sentencing judge. The paper argues that the constitutionality of these sentencing laws must be evaluated from a broader perspective: the separation of powers in constitutional criminal procedure. Rather than an issue of constitutional interpretation involving solely the Jury Trial guarantee, the validity of sentencing laws implicates the full range of the Constitution's provisions governing criminal procedure and their allocation of power to legislatures and prosecutors in addition to juries and judges. From this structural constitutional argument, the paper defends the constitutionality of most sentencing laws on the grounds that the separation of powers in criminal procedure imposes only a narrow restriction on legislative power to design statutory schemes by which convicted offenders are sentenced: a requirement that provisions that determine or enhance the defendant's maximum punishment be enacted, charged, and proven as part of the defendant's offense of conviction. Other sentencing laws, including mandatory minimums and the Guidelines, do not alter the defendant's maximum punishment when they are used to determine the defendant's particular sentence. Such laws therefore may be applied by the sentencing judge, rather than being found beyond a reasonable doubt by a trial jury, without violating the Constitution.

Berkowitz & Wittes on the Election Decision Peter Berkowitz and Benjamin Wittes (George Mason University - School of Law and Washington Post) have posted The Lawfulness of the Election Decision: A Reply to Professor Tribe (Villanova Law Review, Vol. 49, No. 3, 2004) on SSRN. Here is the abstract:
    By demonstrating the unreasonableness of Laurence Tribe's extended critique of Bush v. Gore, we bring into focus the reasonableness of the Supreme Court's decision. Contrary to Tribe's analysis of the "political question doctrine," we show that the Constitution did not "command the Court" to stay out of the election controversy and leave it for resolution by Florida and ultimately, if necessary, by Congress. We demonstrate that the Court's per curiam holding that the Florida recount violated the Equal Protection Clause of the 14th Amendment by impermissibly weighting citizens' votes differently is much closer to the Court's vote dilution jurisprudence than Tribe officially allows (but which he also eventually surreptitiously concedes), and that despite the surface differences that Tribe stresses, the Court's decision can be seen as a reasonable application or extension of its vote dilution precedents. We go on to show that when properly analyzed, the Florida Supreme Court's opinions, by departing substantially from the election code enacted by the Florida legislature and in place on November 7, 2000, can reasonably be seen, as Chief Justice Rehnquist's concurring opinion would have held, as violating Article II, section 1, of the Constitution which required the Florida court to apply and not rewrite Florida's election code. Then we identify three potentially lawful approaches to a resolution of the controversy other than the Court's and conclude that all present both advantages and disadvantages in relation to the Court's actual handling of the case. We conclude that the Court's decision in Bush v. Gore, while far from perfect and in some respects doctrinally incomplete, is less remarkable for these imperfections-given the difficult circumstances under which it was produced-than for its lawfulness and overall sufficiency.

Bartow on IP & Domestic Relations Ann Bartow (University of South Carolina - School of Law) has posted Intellectual Property and Domestic Relations: Issues to Consider When There Is an Artist, Author, Inventor, or Celebrity in the House (Family Law Quarterly, Vol. 35, p. 383, Fall 2001) on SSRN. Here is the abstract:
    This article articulates some of the special issues raised by intellectual property in the context of family-law-oriented concerns. It also necessarily explores the characteristics and properties of personal intellectual property in a broader sense. What follows is an overview of the special issues and concerns intellectual property might present in the context of divorce, estate planning, or probate. Please keep one important caveat in mind: Intellectual property has become a very dynamic area of the law. Governing federal patent, copyright, and trademark statutes are extensively amended with astounding frequency. Right of publicity and trade secret law are also constantly evolving. Legislative proposals that would significantly alter certain aspects of intellectual property law are constantly proposed and may be adopted by Congress (or by individual states) at any time. In addition, courts play a large role in delineating the scope of intellectual property protections, and the judiciary, through its role as adjudicator of intellectual property disputes, has (and will continue to have) a profound effect on the continually shifting landscape of rights, obligations, and privileges associated with intellectual property.

Levinson on Empire Building Daryl J. Levinson (New York University - School of Law) has posted Empire-Building Government in Constitutional Law (Harvard Law Review, Vol. 118, 2004) on SSRN. Here is the abstract:
    Fear and loathing of big and growing government has been a persistent theme in American political and constitutional discourse since the Founding. A correspondingly enduring and pervasive assumption in constitutional law and theory is that government officials are empire-builders, "imperialistically" or "avariciously" intent upon maximizing the power or wealth of their offices and institutions. Thus, discussions of federalism often start from the premise that an imperialistic national government will seek to expand the policy space it controls at the expense of state governments, while equally imperialistic state governments, if afforded sufficient channels of influence, will compete for power and defend their own turf. Similarly, the law and theory of constitutional separation of powers presume that an imperialistic legislative branch of the federal government will seek to aggrandize its power at the expense of the executive, and vice-versa. Courts and constitutional theorists believe that one of the primary virtues (or vices) of federalism is that it fosters avaricious competition among state and local governments for tax base. Theorists and designers of constitutional remedies likewise take for granted that governments will be discouraged from taking property or violating constitutional or statutory rights by the requirement that they pay monetary compensation to the victims - because the loss of dollars will "hurt" avaricious governments. In these, and other, contexts, consequentialist analyses of constitutional rules and structures start from the premise of government empire-building. This article questions the theoretical basis for believing that government predictably seeks to build empire of either the imperialistic or avaricious variety. Government institutions do not have empire-building interests, or any other kind of interests, apart from the interests of the officials who comprise them. It is far from clear that officials derive significant self-interested benefits from increasing the jurisdiction or budget of their institutions. Even if they did, however, in a minimally functional democracy, the self-interest of these officials is usually subordinated to - or, more accurately, aligned with - the constituent preferences. And the policy preferences of politically efficacious constituencies will not correlate in any systematic way with the size or wealth of government institutions. In a nutshell, predictions of government empire-building rest on the implausible assumption that government officials serve the interests of the institutions in which they are situated more than their own self-interest or the interests of their constituents. This is simply not how democratic governments work.

New on Law & Politics Book Review The following reviews are just up on Law and Politics Book Review:

Tuesday, June 08, 2004
Tuesday Calendar

McGowan on Open Source David McGowan (University of Minnesota Law School) has posted SCO What? Rhetoric, Law, and the Future of F/OSS Production. Here is the abstract:
    Using litigation between The SCO Group and IBM as an example, this essay relates the rhetoric that drives open-source software as a social movement to legal issues open-source production faces. The essay argues that social movement rhetoric creates noise that makes legal issues more difficult to understand and resolve. The tension between social movement noise and legal signal may become more acute and more important as F/OSS projects continue to make inroads in commercial space, where IP litigation is a way of life. The community's reaction to the SCO/IBM litigation suggests it needs to adapt community expectations and production procedures to this environment. The essay concludes with thoughts on issues the F/OSS community may wish to consider in connection with drafting version 3 of the General Public License. These issues include: What is the GPL?; whose GPL is it?; and how many GPL's are there? Each question has a seemingly obvious answer which, on consideration, presents interesting legal issues.

Brown on Consequentialism Campbell Brown has uploaded Consequentialise This Traditionally, moral theories have been divided into two broad camps: on the one hand, there are consequentialist theories, such as utilitarianism; and, on the other, there are nonconsequentialist theories, such as Kantianism. More recently, though, this distinction has come under threat. A growing current of thought has it that every moral theory may fairly be regarded as a form of consequentialism . If this is correct, then consequentialism appears quite empty; it has no substantive content. If every moral theory is just another form consequentialism, then consequentialism in no way constrains our judgements of right and wrong. In this paper I argue for the unorthodox position: consequentialism is indeed empty. More specifically, I outline a broad consequentialist framework, dubbed Generalised Consequentialism , which may accommodate every conceivable view on the rightness of actions. Moreover, I show that the framework provides a natural way in which to accommodate views that, on their face, appear incompatible with consequentialism. The key here is that the framework allows various kinds of relative goodness.

Hirose Defends Telic Egalitarianism Iwao Hirose has uploaded On levelling down: in defence of Telic Egalitarianism. Here is a taste:
    In this paper, I shall attempt to defend a version of Telic Egalitarianism from the [levelling down] Objection. I shall show what I call Weighted Egalitarianism is not subject to the Objection, and hence that the Objection does not undermine Weighted Egalitarianism. Nonetheless, I shall argue that the Objection has two positive messages for Telic Egalitarianism.

Harcourt on Collective Responsibility and Unconstitutional Searches Bernard E. Harcourt has posted Unconstitutional Police Searches and Collective Responsibility on SSRN. Here is the abstract:
    Jon Gould and Stephen Mastrofski document astonishingly high rates of unconstitutional police searches in their forthcoming article "Suspect Searches: Assessing Police Behavior Under the U.S. Constitution" to be published in Criminology & Public Policy (2004). By their conservative estimate, 30 percent of the 115 police searches they studied violated the Fourth Amendment. The vast majority of the unconstitutional searches were invisible to the courts, having resulted in no arrest, charge, or citation. Focusing exclusively on stop-and-frisk searches, an even higher proportion - 46 percent - were unconstitutional. Moreover, 84 percent of the searches involved African-American suspects. The new study paints a troubling picture of police practices and raises a number of difficult questions about discretionary policing. The findings have a disturbingly familiar ring to them, and are likely to ignite policy debates that will also, in all probability, have a familiar ring to them as well. The debates have been rehearsed in a number of policing controversies - including stop-and-frisk policing on New York City streets, racial profiling on the nation's highways, and drug-courier profiling at airports and borders. The positions in our public policy debates are familiar - if anything, a bit too familiar. In this essay, I reframe the debates by focusing on one particularly troubling cavity search described in the research. I raise questions about our ethical obligations as social scientists and I focus specifically on the "dirty hands" dilemma. In the process, I explore our own responsibility as observers, as social scientists, as commentators, as policy makers, and as public citizens. I probe our own participation in these unpleasant and unconstitutional police searches.

Rosen on Tailoring Constitutional Principles Mark D. Rosen has posted The Surprisingly Strong Case for Tailoring Constitutional Principles on SSRN. Here is the abstract:
    Many constitutional principles apply to more than one level of government. This is true not only of Bill of Rights guarantees that have been incorporated against the States, but of many constitutional principles whose source lies outside of the Bill of Rights. The conventional wisdom is that such multi-level constitutional principles apply identically to all levels of government. The Article's thesis is that this One-Size-Fits-All approach is problematic because the different levels of government - federal, state, and local - sometimes are sufficiently different that a given constitutional principle may apply differently to each level. This Article critically examines an alternative approach to One-Size-Fits-All that it dubs Tailoring. Tailoring refers to the possibility, though not the requirement, that a constitutional provision may apply differently to different levels of government. Tailoring thus would permit a situation where the federal government could regulate in ways unavailable to the sub-federal polities as a matter of constitutional law. Conversely, states or localities other times might be permitted to regulate in ways that the federal government could not. Though Tailoring might sound completely outlandish, the Article shows that more than a dozen Justices over the past century (including four who currently sit on the Court) have advocated that particular constitutional principle be tailored and that several discrete areas of contemporary constitutional law are best understood as examples of Tailoring. In the end, the Article concludes that the One-Size-Fits-All approach that is reflected in contemporary doctrine should be softened from a categorical requirement to a rebuttable presumption. Sensitivity to what level of government is acting - the conceptual core of Tailoring - is critical because the different levels of government are sufficiently dissimilar that a particular limitation as applied to one may have very different repercussions when applied to another. The Article identifies five respects in which the different levels of government systematically differ. Whether any or all of the differences justifies Tailoring a given constitutional principle ultimately turns on what is best characterized as pre-constitutional, political commitments. Interestingly, however, a broad array of competing approaches to ordering social life that often generates conflicting policy prescriptions - including public choice theory, law and economics, Robert Nozick's political philosophy, Ely's process theory, multi-culturalist theorists Will Kymlicka and Charles Taylor, and Rawlsian political thought - finds one or more of these distinctions sufficient to support Tailoring. The fact that many competing methodologies converge on the conclusion that Tailoring sometimes might be desirable counsels that constitutional doctrine should be responsive to potential differences among the various levels of government.

Levy on Cognitive Science & Morality Neil Levy has uploaded Cognitive Science Challenges to Morality. Here is a taste:
    In this paper, I want to examine one variety of this threat: the apparent threat to morality which some have seen posed by recent developments in what I shall call, for the sake of a convenient shorthand, cognitive science (here understood to encompass neuroscience, psychology and human evolutionary theory). I shall sketch three particular challenges, each developed separately, and each motivated by different concerns, yet each posing a similar problem for morality: each might be taken to show that our moral beliefs and judgments are unreliable, because produced by mechanisms that do not track genuine moral features of the world. Each therefore apparently shows that morality, or a particular part of it, is a systematic and shared illusion. I shall then attempt to outline some arguments and strategies with which we might attempt to counter these threats, some aimed at particular challenges, and some more general. Different meta-ethical views, I shall claim, find the challenges posed by cognitive science more or less difficult to see off; though some strategies are available to proponents of all views, the most powerful and promising is reserved for moral constructivism. The challenge from cognitive science therefore gives us one more compelling reason to favor one or another version of constructivism.

Two By Balkin Jack M. Balkin (Yale) has two new papers on SSRN:
    Virtual Liberty: Freedom to Design and Freedom to Play in Virtual Worlds:
      Regulation of virtual worlds has become an important issue in cyberspace law as more and more people spend increasing amounts of their lives in these spaces. This essay discusses the basic questions of freedom and regulation in virtual environments. There are three kinds of freedom in virtual worlds. The first is the freedom of the players to participate in the virtual world through their in-game representations, or avatars. This is the freedom to play. The second is the freedom of the game designer to plan, construct, and maintain the virtual world. This is the freedom to design. A third is collective right of the designers and players to build and enchance the game space together. This is the freedom to design together. These rights overlap in important respects with the constitutional rights of freedom of speech, expression and association. Virtually all activity in virtual worlds must begin as some form of expression, and therefore virtually all forms of legally redressable injury in virtual worlds will be some form of communications tort. However, the law of the First Amendment, as it currently exists, does not adequately protect many important features of the rights to design and play. Many virtual spaces are rapidly becoming sites of real world and virtual world commerce. In the future game designers will likely attempt to invoke the First Amendment to avoid regulation of their business practices. However, game designers will lose First Amendment protection to the extent that they encourage real-world commodification of virtual items. The article concludes by discussing different models of regulation of virtual worlds, including the model of consumer protection, the virtual world as company town, and virtual worlds as places of public accommodation.
    What Brown Teaches Us About Constitutional Theory:
      This essay, written for the 50th anniversary of Brown v. Board of Education, explains the key lessons of Brown for constitutional theory. Ironically, Brown has comparatively little to teach us about which normative constitutional theory is best, because almost every contemporary normative constitutional theory takes the correctness of Brown as a starting point. Rather Brown's key lessons concern positive constitutional theory - the study of how constitutional development and constitutional change occur over time. Courts, and particularly the U.S. Supreme Court, tend, over time, to reflect the views of national political majorities and national political elites. Constitutional doctrine changes gradually in response to political mobilizations and countermobilizations; minority rights gain constitutional protection as minorities become sufficiently important players in national coalitions and can appeal to the interests, and values, and self-conception of majorities, but minority rights will gain protection only to the extent that they do not interfere too greatly with the developing interests of majorities. Although Supreme Court decisionmaking tends to reflect these larger institutional influences, it is largely uninfluenced by normative constitutional theories about the proper way to interpret the Constitution. In fact, there is little reason to believe that the product of Supreme Court decisionmaking could regularly correspond to the outcome of any particular normative constitutional theory. This suggests that one important function of normative constitutional theory may not be giving advice to judges but rather offering professional legitimation for the work of the Supreme Court.

Keating on Rawls & Tort Gregory C. Keating (USC) has uploaded Rawlsian Fairness and Regime Choice in the Law of Accidents to SSRN. Here is the abstract:
    Early in the 1970's George Fletcher wrote a remarkable article -Fairness and Utility in Tort Theory - connecting distinctively Rawlsian ideas of fairness with reciprocity of risk imposition. Fletcher argued that nonreciprocity of risk both characterized realms of strict liability in tort and justified those realms, whereas reciprocity of risk characterized realms of tort law which were governed by negligence liability, and appropriately so. This article argues (1) against Fletcher's identification of fairness in the choice of an accident law regime with the presence or absence of reciprocity of risk, and (2) in favor of focusing on the fair distribution of the costs of accidental injury across those who benefit from the imposition of the underlying risks. Put differently, this paper argues that Rawlsian ideas support a powerful general case for preferring strict enterprise liability to negligence liability. Under the characteristic circumstances of modern life - where risk is the byproduct not of discrete acts but of organized activities - enterprise liability distributes the burdens of risky but mutually beneficial activity more fairly than negligence liability does.

Monday, June 07, 2004
Weekend Update On Saturday, the regular review of SSRN's top downloads was joined by the Download of the Week (Global Legal Pluralism and Electronic Democracy by Oren Perez) and the Legal Theory Bookworm's recommendation of Constitutional Construction: Divided Powers and Constitutional Meaning by Keith Whittington. On Sunday, the Legal Theory Calendar previewed this week's talks and events. The Legal Theory Lexicon entry was on primary and secondary rules.

Monday Calendar
    At Oxford's Moral Philosophy Seminar, Ruth Chang (Rutgers) presents Ruth Chang (Rutgers) presents All Things Considered.

New from Law and Politics Book Review Three new reviews have just gone up:

Book Announcement: The Hand of Compassion
    The Hand of Compassion Portraits of Moral Choice during the Holocaust Kristen Renwick Monroe To read a sample chapter, please visit: Through moving interviews with five ordinary people who rescued Jews during the Holocaust, Kristen Monroe casts new light on questions at the heart of ethics: Why do people risk their lives for strangers, and what drives such moral choice? Monroe's analysis points not to traditional explanations--such as religion or reason--but to identity. The rescuers' perceptions of themselves in relation to others made their extraordinary acts spontaneous and left the rescuers no choice but to act. To turn away Jews was, for them, literally unimaginable. In the words of one German Czech rescuer, "The hand of compassion was faster than the calculus of reason." To read the entire book description, go to: 0-691-11863-9 Cloth $29.95 US and L19.95 392 pages. 10 halftones. 6 x 9.

Call for Papers: Ars Disputandi
    Ars Disputandi: The Online Journal for Philosophy of Religion Publisher: Roquade Electronic Publishing Services for Scientists Ars Disputandi is the first online journal for the philosophy of religion. It publishes refereed articles, literature surveys and discussion notes, as well as book reviews and bibliographies. Unlike traditional journals, it will not appear in issues; papers that are accepted will be immediately published online. AD does not aim to be a rival to established philosophy of religion paper journals, but to provide a forum for the exchange of ideas and arguments. AD is concerned to promote research and discussion of issues in the philosophy of religion by providing for the fast publication of contributions to ongoing debates. The electronic format of AD does away with several limitations of traditional publishing. Articles may include hyperlinks, full-colour photos and audio-visual material relevant to the content. ISSN: 1566-5399 Editor email: Publisher email: Current Issue: Volume 3 (2003) Date: 25 Feb 2004

Call for Papers: Interdisciplinarity in the Social Sciences
    The GJSS first annual workshop on Interdisciplinarity in the Social Sciences (24th and 25th September 2004) announces a Call for Papers:
      Unification and pluralism in social science? First GJSS Workshop on Interdisciplinarity in the Social Sciences
    The Graduate Journal of Social Science announces a call for papers for its first workshop on interdisciplinarity , to be held on September 24th and 25th 2004 at the London School of Economics and Political Science. This two-day workshop aims to investigate the question of unification in the social sciences and its relation to interdisciplinary research. We aim for contributors from a variety of disciplinary backgrounds and research approaches. Keynote speakers who have confirmed their participation are Max Steuer and Peter Abell, LSE, and Hans Radder, Free University Amsterdam. Arguments and reflections based on case studies from interdisciplinary research are especially welcome, even if more theoretical papers are also sought for. We encourage submission of papers proposing reflections on at least one of the following set of questions:
      What does it mean to unify the social sciences (from the methodological, epistemological and/or ontological perspective)? How, if at all, can unification be achieved? Is it possible and/or desirable to unify the social sciences? Would unification encourage interdisciplinary research (for instance, by making it easier to forge connections among disciplines)? Or does interdisciplinary research require pluralism among the social sciences?
    In order to present a paper at the workshop, an abstract of no more than 300 words should be sent to: by 30th June. Successful applicants will be notified by mid-July. For further information check the GJSS website at or write to Sabina Leonelli GJSS Managing Editor

Legal Theory Calendar
    Monday, June 7
      At Oxford's Moral Philosophy Seminar, Ruth Chang (Rutgers) presents Ruth Chang (Rutgers) presents All Things Considered.
    Tuesday, June 8 Thursday, June 10
      At Florida State, Greg Mitchell, FSU College of Law, presents Unconfounding Intuitions about Corrective and Distributive Justice.
    Friday, June 11
      At Oxford's Philosophical Society, J. David Velleman (University of Michigan) presents What Good is a Will?

Legal Theory Lexicon: Primary and Secondary Rules
    Introduction Most law students begin to notice that there is a fundamental difference between the kinds of legal rules that come up in torts & criminal law, on the one hand, and the sorts of legal rules that arise in contracts, on the other. The rules of criminal law seem to define standards of conduct; they are about what you can and cannot do, or more precisely, rules that forbid certain conduct and then attach punishments for disobedience. The rules of contract law are different. It's true that contract remedies do provide sanctions (or prices) for breaking contracts, but most of contract law is about making contracts. In criminal law (and torts), the state makes up the rules of conduct. In contract law, the contracting parties are empowered to create their own rules of conduct.
    Once you've seen this distinction, you might then become interested in what legal theorists have to say about it. One of the most important views of this distinction was advanced by the great legal philosopher H.L.A. Hart, who classified the rules of tort and criminal law as "primary rules," and the rules of contract law as "secondary rules." This post is an introduction to the Hart's distinction between primary and secondary rules. As always, the Legal Theory Lexicon is aimed at law students, especially first-year law students, with an interest in legal theory.
    The Distinction Between Primary and Secondary Rules Hart's basic idea is quite simple. Primary rules are rules of conduct; they tell you what your are legally obligated to do (or refrain from) and what consequences attach to obedience or disobedience. Thus, the criminal law rules that prohibit theft, forbid certain conduct and provide for penalties for violating the prohibition. Technically, the class of secondary rules includes everything except primary rules. For example, secondary rules are legal rules that allow for the creation, extinction, and alteration of secondary rules; secondary rules are power-conferring rules. Thus, contract law empowers individuals and firms to make contracts; contracts themselves are usually collections of primary rules.
    More precisely, primary rules are rules that govern conduct, and secondary rules are rules that do not. Thus, the distinction between primary and secondary rules is just a bit different than the difference between duty-imposing and power-conferring rules: duty-imposing rules impose duties, whereas power-conferring rules confer power. This leaves open the possibility that some rules can regulate other rules, but do so by imposing duties. For example, a secondary rule might impose a duty to legislate in a certain way or a prohibition on certain kinds of rule creation.
    Some more examples may help:
      Examples of Primary Rules
      • Criminal prohibitions.
      • Tort rules.
      • The individual right to freedom of speech.
      • The provisions of contracts that define the primary obligations of the parties.
      • The environmental law rule that forbids discharge of toxic substances in rivers and streams.
      Examples of Secondary Rules
      • Contract law rules that enable parties to form contracts.
      • The rules that allow testators to create a will.
      • The constitutional rules that confer legislative powers on Congress.
      • The statute that authorizes the Supreme Court to promulgate rules of practice and procedure for the federal courts.
    The Practical Importance of Secondary Rules One of the really nifty things about Hart's introduction of the distinction between primary and secondary rules was his account as to why secondary rules are important. We can certainly imagine a system in which there were primary rules, but no secondary rules. This would be a system of customary law. Certain actions would be required; others would be taboo. But there would be no mechanism by which the set of obligations could be changed. Of course, customary law need not be completely static. It is is possible that customs might gradually change over time, but this process would require a change in social norms. It could not be legislated. Secondary rules enable relatively more rapid legal change at a lower cost. Moreover, secondary rules enable individuals to create customized primary rules that govern their private relationships or privately owned resources.
    Conclusion The distinction between primary rules of conduct and other, secondary rules is a crucial member of the legal theorist's toolbox. My own experience has been that I use this distinction to understand legal problems and arguments, but that it rarely plays a direct role in my own work. Primary and secondary rules are everywhere, and you need to understand the differenced between them, but you don't necessarily need to use the distinction when you construct normative legal arguments.
    One more thing. The place to go for a really thorough understanding of the distinction between primary and secondary rules is H.L.A. Hart's magnificent book, The Concept of Law--in my opinion, the most important work of legal theory in the twentieth century.

Sunday, June 06, 2004
Schwartz & Treanor on Eldred & Lochner Update: I posted this last week with a bad link. Thanks for alerting me to the problem & here is the post again, with the link fixed.
Paul M. Schwartz and William Michael Treanor (Brooklyn Law School and Fordham University School of Law) have posted Eldred and Lochner: Copyright Term Extension and Intellectual Property as Constitutional Property (Yale Law Journal, Vol. 112, p. 2331, 2004) on SSRN. Here is the abstract:
    Since the ratification of the constitution, intellectual property law in the United States has always been, in part, constitutional law. Among the enumerated powers that Article I of the Constitution vests in Congress is the power to create certain intellectual property rights. To a remarkable extent, scholars who have examined the Constitution's Copyright Clause have reached a common position. With striking unanimity, these scholars have called for aggressive judicial review of the constitutionality of congressional legislation in this area. The champions of this position - we refer to them as the IP Restrictors - represent a remarkable array of constitutional and intellectual property scholars. In this terms's Eldred v. Aschroft, leading IP Restrictor Lawrence Lessig, representing petitioner Eric Eldred, sought to convince the Supreme Court that the IP Restrictors' view of the Copyright Clause was the correct one. By a vote of 7-2, the Supreme Court rejected Eldred's claim and upheld the statute. But while the Court rejected the IP Restrictors' vision, it did not offer a satisfactory competing conception of the Copyright Clause and how the courts should construe it. Critically, even though the standard of review was of central significance, the Court applied a deferential form of rational basis scrutiny without explaining why this was the appropriate standard. This paper develops the case for deferential review of congressional legislation in the area of intellectual property and, at a deeper level, offers a new paradigm for understanding the Copyright Clause. We propose that from the vantage point of constitutional law, intellectual property should be treated as a form of constitutional property. Deference to congressional judgments is warranted because congressional legislation affecting intellectual property is analytically similar to congressional legislation affecting other forms of property. Courts subject congressional legislation affecting traditional forms of property to deferential review because of concerns about institutional competence and respect for majoritarian decisionmaking. These two concerns in conjunction with proper regard for holistic constitutional interpretation should also lead courts to deferential review of congressional legislation affecting intellectual property. In developing our position, we draw on constitutional history and, in particular, the lessons of Lochner v. New York. In defense of their vision of the Constitution, the IP Restrictors and the dissenters in Eldred make claims about the original understanding that, to an astonishing extent, echo those made by proponents of Lochner-era jurisprudence. We argue, however, that these claims fail for two reasons. First, the IP Restrictors and the dissenters disregard the limited scope of judicial review at the time of the Founding. Additionally, the IP Restrictors and dissenters disregard the range of views among the Founders about monopolies.

Legal Theory Bookworm This week the Legal Theory Bookworm recommends Constitutional Construction: Divided Powers and Constitutional Meaning by Keith E. Whittington (Princeton). Here are excerpts from two reviews:
    Craig Ducat, Law and Politics Book Review, October 1999
      Few political disputes can be settled by recourse to the specific text of the Constitution, so forms of constitutional elaboration are necessary. Constitutional interpretation is what courts do; constitutional construction is what the elected branches do . . . and the results are readily acknowledged as properly influenced by external factors such as political principle, social interests, or partisan considerations. A fine example of institutional analysis . . . displays a fine feel for political nuance and sensitivity to institutional subtlety . . . shows that is possible to do exceptional political analysis without it becoming legalistic scholarship . . . exceptionally well written. Whittington's book demonstrates that political science profits handsomely from history. Political science without history isn't very good political science. And history without political science often amounts to little more than storytelling. The quality of this book's history is every bit as good as the quality of its political science.
    Peter Jay, Washington Times, August 8, 1999
      Mr. Whittington sees the Constitution not as an immutable legal document but as something more fluid and more mysterious, a powerful and authoritative force which constantly influences political outcomes while itself being subject to politics. Battles over constitutional construction are of course political battles and as Mr. Whittington notes, they aren't often dignified. But messy or not, they play an important role in the way our government evolves, and Mr. Whittington has interesting things to say about the way these conflicts play out. In these as in most major disputes about constitutional meaning, the text of the written constitution itself is confusing or ambiguous. Mr. Whittington's book is a readable and scholarly study of the way our democracy has dealt with this lack of clarity and made constitutional construction part of the political process.
Whittington is one of the very best!

Download of the Week This week, the Download of the Week is Global Legal Pluralism and Electronic Democracy by Oren Perez (Bar-Ilan University, Faculty of Law). Here is the abstract:
    Transnational regimes are becoming an important factor in the organization of life around the globe. International institutions such as the World Trade Organization, the International Criminal Court and the Internet Corporation for Assigned Names have taken a leading role in the governance of various fields such as global trade, humanitarian law, and the Internet. There is a wide gap however, between the increasing power of these transnational players and their democratic commitment. Indeed, this democratic deficit is putting at risk the legitimacy of these regimes. This democratic gap calls for the creation of institutional mechanisms that will allow the global public to participate in a meaningful way in the creation and implementation of global norms. Achieving this goal requires the development of inclusive and non-hierarchical decision-making structures, which could break the confines of the current nationalistic order, and offer the public direct access to processes of global norm-production. This paper focuses on the possible contribution that the Internet can make, and is making, to the development of such novel decision-making structures. In particular, it examines whether the Internet can offer ways to incorporate the public more meaningfully into the infrastructure of global legal regimes. The capacity of the Internet to short-cut barriers of space and time, makes it, at least prima facie, the ideal medium for transnational deliberation. Indeed, this has been shown, somewhat ironically, by the fact that the Internet has played a major role in facilitating the protests against various global regimes. Protestors have used the Internet extensively, both to publicize their critique and, more instrumentally, to coordinate their actions. Websites such as Protest.Net,, and have turned into 'hubs' of political communication. All of these websites include details of upcoming protests, action alerts, and links to other protest websites. The extensive political usage of the Net has even led some commentators to assert that the Internet could revolutionize the face of global politics. However, despite the impressive growth of civic protest over the Internet, the use of the Web to include the public in transnational governance processes appears to be very limited. The question remains, therefore, whether the Internet has indeed the capacity to foster more inclusive structures of global law-making. The paper addresses this question in three stages. First, the traditional conception of transnational governance is reviewed and its weaknesses for understanding and addressing the issues raised by the emerging system of global law are identified. A more contemporary interpretation of international regime formation is then presented that requires a democratic and truly global decision-making forum. Second, the role of the Internet as a means of realizing such ambitions is explored, using the idea of politics as a problem of 'collective action'. The discussion presents a simple game-theoretic model to illustrate the capacity of the Internet to facilitate the emergence of viable transnational communities. In the third and final section, three case studies are presented showing how some international regimes are currently attempting to utilize the Internet to facilitate a more democratic mode of operation. The focus here is on the World Trade Organization, the International Organization for Standardization and the Internet Corporation for Assigned Names and Numbers.

SSRN Top Recent Downloads The Social Science Research Network compiles lists of top ten downloads by subject matter. (Click on the category name for the full list of the top ten papers by number of downloads in the past 60 days.) Here are categories and selected papers of interest to legal theorists:

Friday, June 04, 2004
Friday Calendar
    At the University of London, today and tomorrow, Scanlon & the Contractualist Picture of Morality.

Kalscheur on the Relationship betweeen Civil and Moral Law Gregory A. Kalscheur (Boston College - Law School) has posted John Paul II, John Courtney Murray, and the Relationship Between Civil Law and Moral Law: A Constructive Proposal for Contemporary American Pluralism (Journal of Catholic Social Thought, Summer 2004) on SSRN. Here is the abstract:
    In his 1995 encyclical, Evangelium Vitae, Pope John Paul II outlined a jurisprudential vision which includes the doctrine on the necessary conformity of civil law with moral law. The Pope's jurisprudential reflections prompt the question I consider in this Article: How should we understand the doctrine on the necessary conformity of civil law with moral law in a religiously pluralistic democratic society like that of the United States today? My objective is to articulate a vision of the relationship between moral values and civil law that is grounded in the tradition of Catholic social thought and that can allow the church to contribute credibly and effectively to public discourse regarding the law and public policy in our religiously pluralistic democratic society. After outlining the understanding of the relationship between law and morality that John Paul II articulates in Evangelium Vitae, I discuss the understanding of the differentiated relationship of law and morality developed in the work of John Courtney Murray, S.J. Finally, complementing Murray's views with insights gleaned from a number of contemporary voices in Catholic social thought, I propose six axioms that ought to inform our vision of the appropriate relationship between religious values, the objective moral order, and civil law and public discourse in the context of twenty-first century American pluralism.

Kang on Judicial Impartiality John M. Kang (Western Kentucky University - Department of Political Science) has posted John Locke's Political Plan, or, There's No Such Thing as Judicial Impartiality (And It's a Good Thing, Too) (Vermont Law Review, Vol. 29, No. 1, January 2005) on SSRN. Here is the abstract:
    While the need for impartial judges in a liberal society seems rather undeniable, there is a question that attends the idea of them whose answer isn't so clear for liberalism. If we expect judges to be impartial, must they also relinquish or subordinate their partiality? Intuitively, the answer might seem to be a resounding yes. For we would be appalled at the judge who purports to be impartial but secretly decides the case on the seductive wink of a party's lawyer, its implications for the local Democratic or Republican parties, or some other self-indulgent reason. On the other hand, the insistence that judges be impartial is fraught with theoretical difficulties: what would a "completely" impartial judge look like, and precisely what judgments would qualify as impartial for starkly normative issues like abortion or school prayer? I shall argue in this essay that instead of juxtaposing impartiality against partiality, it is better to clarify the ways in which the latter can be harnessed to underwrite the former. I develop my thesis in the following manner. I demonstrate some flaws with impartiality as conventionally understood by examining the American Bar Association's Model Code of Judicial Conduct, the paradigm by which legislators craft their rules for assessing judges' purported impartiality. I show that the Code presents to judges an ambivalent and potentially unstable set of instructions: at times, it daringly insists that judges embrace impartiality for its own sake, and other times, it guardedly admonishes judges to be sensitive to appearance and hence hide their partiality. The former instruction, I'll argue, suffers from some fatal problems while the latter, although rather limp and ambiguous in its ABA Code form, can be worked up into an attractive theory via the older and more rewarding account of judicial impartiality by John Locke. Contrary to some other liberals, Locke did not position impartiality's exclusive antithesis in its intuitive opposite of partiality. Instead, I suggest, he also juxtaposed it against absolute or arbitrary power. That substitution, I argue, permits us to explore the political uses of impartiality without being encumbered by needlessly difficult and perhaps ultimately unanswerable questions about its ontological character.

Thursday, June 03, 2004
Wednesday Calendar
    At the Institute for Advanced Studies at the Hebrew University of Jerusalem, today and tomorrow, there is a conference on Democracy and Pluralism.

O'Neill on Tort Law from a South & East Asian Perspective Timothy J. O'Neill (Southwestern University, Texas) has posted Through a Glass Darkly: Western Tort Law From a South and East Asian Perspective on SSRN. Here is the abstract:
    Both India and the People's Republic of China have inherited sophisticated systems of tort law, yet both prefer to rely upon criminal law or administrative remedies to resolve disputes involving industrial actions and personal injuries. The usual explanations for their unwillingness to encourage tort litigation are helpful but insufficient. Economics, the lack of a genuine "rule of law" legal regime, the alleged greater efficiencies of the alternatives to tort law, the absence of sustaining liberal democratic traditions, cultural explanations, and bureaucratic politics do not completely explain the dearth of tort law. Elite antipathy to the kind of individual self-help and personal empowerment prompted by tort litigation is the missing part of the puzzle.

Deakin & Konzelmann on Enron Simon Deakin and Suzanne J. Konzelmann (University of Cambridge - ESRC Centre for Business Research and University of Cambridge) have posted Learning from Enron (Corporate Governance: An International Review, Vol. 12, No. 2, pp. 134-142, April 2004) on SSRN. Here is the abstract:
    This paper argues that the Enron affair has been misunderstood as a failure of monitoring, with adverse consequences for the drafting of the Sarbanes-Oxley Act and the Higgs report. Where Enron's board failed was in misunderstanding the risks which were inherent in the company's business plan and failing to implement an effective system of internal control. Enron demonstrates the limits of the monitoring board and points the way to a stewardship model in which the board takes responsibility for ensuring the sustainability of the company's assets over time.

Verchick on Normative Rules for Agency Interpretation Robert R.M. Verchick (University of Missouri at Kansas City - School of Law)has posted Toward Normative Rules for Agency Interpretation: Defining Jurisdiction under the Clean Water Act (Alabama Law Review) on SSRN. Here is the abstract:
    Wetlands advocates, from environmentalists to duck hunters, dodged a bullet last year when the Bush Administration dropped plans to narrow its jurisdiction over streams and wetlands. The decision marked a key chapter in a story that began in 2001, when the Supreme Court invalidated part of the Migratory Bird Rule, a regulation that for many years had supported federal protection over some intrastate wetlands. The Court’s broad rejection of this narrow rule sent federal jurisdiction under the Clean Water Act into a tailspin. The decision opened debates about tributaries and intermittent streams in the Southwest. It also appeared to narrow jurisdiction under several other environmental laws involving other media. Virtually all of the legal scholarship examining this jurisdictional issue approaches the it as a judge would. This Article charts a different course. My purpose is to offer a normative model for federal agencies, themselves, in interpreting their authority under the CWA and under the Constitution. The normative role of agency interpretation (as opposed to a judicially permissible role) is surprisingly under-examined . To my knowledge, no law review article has significantly addressed norms of agency interpretation in an exclusively environmental context. Yet the topic is extremely important. Part I of this Article proposes a set of normative guidelines for agencies to follow when interpreting statutes. Parts II and III apply these interpretive guidelines to the Bush Administration’s efforts to define federal jurisdiction under the CWA after SWANCC. These parts conclude that the EPA and the Army Corps have, so far, produced mixed results. From the proposed normative perspective, their handling of the rulemaking process resulted in a correct outcome, but for incorrect reasons. The agencies’ handling of its internal guidelines, which remains in effect, produced an incorrect outcome, based on incorrect reasoning. Those guidelines, if not modified, will seriously threaten wetlands protection.

Chang on Hacking Jason Chang (Harvard University) has posted Computer Hacking: Making the Case for a National Reporting Requirement on SSRN. Here is the abstract:
    The incidences of computer hacking have increased dramatically over the years. Indeed, the current federal laws, including the Computer Fraud and Abuse Act, have done very little to deter potential computer hackers. This article finds that only a small percentage of computer hackers are ever caught and prosecuted. The biggest problem is that most victimized companies regrettably choose to hide the problem from the public due in part to negative publicity concerns. As a result, this article proposes that a mandatory reporting requirement imposed by Congress, which forces companies to disclose intrusions, will be salient to the problem of computer hacking in several regards. First, individuals who are affected by the intrusions will receive advance warning that their personal information was stolen by hackers. This will allow these affected individuals to take precautions in securing their identities. Secondly, the mandatory reportings will assist law enforcement in investigating and prosecuting a greater percentage of computer hackers. As more prosecutions of computer hackers are publicized, this should reduce the future incidences of computer hackings. Moreover, on July 1, 2003, California became the first state to enact a reporting requirement for computer hackings. This could provoke other states to pass similar reporting requirements. Because computer hacking is a national (and international) problem, Congress needs to consider enacting a reporting requirement before an untenable piecemeal state-by-state solution occurs.

Bebchuk on Contractual Freedom in Corporate Law Lucian Arye Bebchuk (Harvard Law School) has posted The Debate on Contractual Freedom in Corporate Law (Columbia Law Review, Vol. 89, pp. 1395-1415, 1989) on SSRN. Here is the abstract:
    The subject of this symposium issue - based on a conference sponsored by the Columbia Law School Center for Law and Economic Studies - is contractual freedom in corporate law. The resulting debate can be usefully divided, in my view, into two debates: one concerning contractual freedom in the charter amendment stage, and one concerning contractual freedom at the initial charter. Accordingly, Part II discusses and evaluates the debate on opting out by charter amendment, and Part III does the same for the initial charter stage. In discussing contractual freedom in corporate law, both deregulators, and the first critics of their position, focused on opting out in the initial charter - the natural context for thinking about contractual freedom. THE DEBATE ON CONTRACTUAL FREEDOM AT THE INITIAL CHARTER STAGE Also, Kornhauser discusses the possibility that some shareholder-manager arrangements have externalities with respect to bondholders. If the chosen arrangement is going to be mandatory, then efficiency would be indeed served by the officials' choosing A. Because opting out of the chosen arrangement will not be possible, the officials must assume that this arrangement will govern even if the alternative arrangement is actually the efficient one. Clearly, when a corporate law issue is to be governed by a mandatory rule, the quality of that rule - and thus the selection of the institution making that rule - is of greater significance.

Kelly on the War on Jurisdiction Claire Kelly (Brooklyn Law School) has posted The War on Jurisdiction: Troubling Questions about Executive Order 13303 (Arizona Law Review, Forthcoming) on SSRN. Here is the abstract:
    On May 22, 2003 President Bush issued Executive Order 13303, Protecting the Development Fund for Iraq and Certain Other Property in Which Iraq Has an Interest. Although the Order masquerades as a simple blocking order meant to insulate the property of a foreign sovereign, it goes much further than the typical blocking order, and its validity is questionable. The Order appears to extend perpetual judicial immunity to oil companies doing business in Iraq. It precludes a class of claims against private companies without providing an alternative forum for those claims. Although potential plaintiffs may in theory seek to establish liability against an oil company, they are perpetually precluded from enforcing any successful judgment without first obtaining permission of the government (i.e., a license). It is unclear how the Supreme Court would treat this Order if it were challenged. This Essay argues that the Order is deeply troubling and it should likely be invalidated under the current analytical framework set forth in Dames & Moore v. Regan, 453 U.S. 654 (1981). This Essay argues that the President lacks inherent power to issue the Order and has no explicit or implicit authorization from Congress. The attempt to cut off meaningful access to the courts for claims against private parties, without permission of Congress, and without establishing an alternative forum, is without authority. Further, even if the President were authorized to issue the Order, the Order goes too far. The failure of the President to provide for an alternative forum results in an impermissible modification of federal jurisdiction and raises the possibility of an unconstitutional taking. The terms of this Executive Order go too far and should be struck down.

Spiwak on the Telecom Act Lawrence J. Spiwak Phoenix Center for Advanced Legal & Economic Public Policy Studies) has posted Remembering What the Fight is About on SSRN. Here is the abstract:
    This essay argues that the core purpose of the Telecommunications Act of 1996 was never fundamentally about the deregulation of incumbents or to encourage incumbent investments per se (although certainly an intended eventual consequence) but, as the Supreme Court observed, to "reorganize markets by rendering regulated utilities' monopolies vulnerable to interlopers." As such,the author argues that if new capital is ever going to start to reflow to the telecoms CLEC industry, then it is high time for policymakers to return to first priciples and to refocus the debate back onto the still unresolved goal of the 1996 Act: how do we make entry economically attractive so as to allow us to "reorganize" the market so that we can move from by "one" (monopoly) to a market characterized by "many" (competition)?

Wednesday, June 02, 2004
Wednesday Calendar
    At the Institute for Advanced Studies at the Hebrew University of Jerusalem, today and tomorrow, there is a conference on Democracy and Pluralism. Here is today's schedule:
      09:30-11:00 David Heyd (The Hebrew University) Is Toleration a Political Virtue? Commentator: George Fletcher (Columbia University) 11:00-11:30 coffee break 11:30-13:00 Stephen Macedo (Princeton University) Diversity, Reciprocity and Justice Commentator: Jeff Spinner-Halev (University of Nebraska) 13:00-14:30 lunch at Beit Belgia 14:30-16:00 Andrei Marmor (University of Southern California) Democracy and Authority Commentator: David Estlund (Brown University) 16:00-16:30 coffee break 16:30-18:00 Lior Barshack (Inter-Disciplinary Center, Herzliya) Constituent Power as Body: Outline of a Constitutional Theology Commentator: Therese Bjorkholm (Uppsala University Law School) 18:00-19:30 Elizabeth Garrett (University of Southern California) Conditions for Framework Legislation Commentator: Omri Yadlin (Tel Aviv University)

Book Announcement: Politics and Vision: Continuity and Innovation in Western Political Thought by Sheldon Wolin
    Princeton University Press has announced:
      Politics and Vision: Continuity and Innovation in Western Political Thought by Sheldon Wolin
    To read a sample chapter, please visit: This is a significantly expanded edition of one of the greatest works of modern political theory. Sheldon Wolin's Politics and Vision inspired and instructed two generations of political theorists after its appearance in 1960. This new edition retains intact the original ten chapters about political thinkers from Plato to Mill, and adds seven chapters about theorists from Marx and Nietzsche to Rawls and the postmodernists. The new chapters, which show how thinkers have grappled with the immense possibilities and dangers of modern power, are themselves a major theoretical statement. They culminate in Wolin's remarkable argument that the United States has invented a new political form, "inverted totalitarianism," in which economic rather than political power is dangerously dominant. In this new edition, the book that helped to define political theory in the late twentieth century should energize, enlighten, and provoke generations of scholars to come. To read the entire book description, go to: 0-691-11977-5 Cloth $45.00 US and L26.95 968 pages. 6 x 9.

Good Advice from Heidi Bond I was very very impressed with Heidi Bond's two recent posts with advice (more or less) for first-year law students: What to get from your classes and Reading a law school case (for the first time). If you have found legal theory blog because you will be starting law school in the fall, print out Heidi's posts and reread them when your classes start.

Odlyzko on Internet Architecture Andrew Odlyzko has posted Pricing and Architecture of the Internet. Here is a taste:
    With telecommunications in a slump, the search is on for ways to re-invigorate this key industry. The main problems are clearly economic much more than technological, and many of the proposed remedies would lead to new architectures for the Internet that would provide for greater control by carriers. They would drastically reduce the role of the end-to-end principle, the main foundation for the success of the Internet, in which functionality resides at the edges of the network. In communications, the general trend has been towards decreasing price discrimination and simpler pricing. The history of transportation presents a different picture. It is conceivable that telecommunications might break with its historical record and follow the example of transportation. It is therefore of interest to examine the evolution of pricing and quality differentiation in transportation.

Davidov on Triangular Employment Relationships Guy Davidov (University of Haifa - Faculty of Law) has posted Joint Employer Status in Triangular Employment Relationships on SSRN. Here is the abstract:
    The article focuses on the question of who should be considered the legal employer in triangular employment relationships. It is argued that outsourcing of employer responsibilities to temporary work agencies is illegitimate with regard to long-term employees and must be curtailed. It is further argued that even in the case of short-term ("traditional") employment through agencies, there is reason to place some employer responsibilities with the user firm, since the characteristics of employment that put workers in need of protection can be found, to some extent, in both of the worker’s relationships. The suggested solution, which draws from European as well as North-American models (with some modifications), supports regulations directed at preventing agency employment abuse, but at the same time would place employer responsibilities with both agency and user firm, jointly and severally, from the first day of employment.

Tuesday, June 01, 2004
New Reviews from the Law and Politics Book Review Several new reviews are just up on the Law and Politics Book Review of the Law and Courts Section of the American Political Science Association. Here are the links:
  • CRIME, TRUTH AND JUSTICE: OFFICIAL INQUIRY, DISCOURSE, KNOWLEDGE, by George Gilligan and John Pratt (Eds.). Portland: Willan Publishing, 2004. 272pp. Hardcover. $55.00. £35.00. ISBN: 1-84392-027-1. Reviewed by William J. Vizzard.
  • DIFFERENTIAL TREATMENT IN INTERNATIONAL ENVIRONMENTAL LAW, by Philippe Cullet. Brookfield, VT: Ashgate Publishing Co., 2003. 224pp. Hardback. $99.95. £55.00. ISBN 0-7546-2314-9. Reviewed by Maxwell O. Chibundu.
  • THE CULTURAL DEFENSE, by Alison Dundes Renteln. New York: Oxford University Press, 2004. 416pp. Hardback. $45.00. £35.00. ISBN: 0195154029. Reviewed by Mary W. Atwell.
  • JUDGING THE JUDGES, JUDGING OURSELVES: TRUTH, RECONCILIATION AND THE APARTHEID LEGAL ORDER, by David Dyzenhaus. Oxford: Hart Publishing, 2003. 216pp. Paper $24.00. £12.99. ISBN: 1-84113-403-1. Reviewed by Peter d'Errico.
  • WRITE TO DEATH: NEWS FRAMING OF THE RIGHT-TO-DIE CONFLICT, FROM QUINLAN'S COMA TO KEVORKIAN'S CONVICTION, by Elizabeth Atwood Gailey. Westport, CN: Praeger, 2003. 200pp. Hardcover. $39.95. ISBN: 0275977137. Reviewed by Raymond A. Whiting.
  • THE CREATION OF AMERICAN COMMON LAW, 1850-1880: TECHNOLOGY, POLITICS, AND THE CONSTRUCTION OF CITIZENSHIP, by Howard Schweber. New York: Cambridge University Press, 2004. 304pp. Cloth, $60.00. £45.00. ISBN: 0521824621. Reviewed by George Thomas.

Conference Reminder: Scanlon & the Contractualist Picture of Morality on this Friday and Saturday at the University of London
    Places remain. +-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+ FRI 4 & SAT 5 JUNE 2004, SENATE HOUSE REASONABLE QUESTIONING: SCANLON AND THE CONTRACTUALIST PICTURE OF MORALITY rare opportunity to engage with this author! +-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+ 9.15 (for 9.30 A.M.) TO 6.30 P.M. and 11.00 A.M. TO 5.30 P.M. with the generous support of MIND Association and British Academy Full Programme FRIDAY 9.15 - 9.30 REGISTRATION 9.30 - 11.00 David OWENS (Sheffield) Promising Respondent: Richard PARKHILL (UCL) Coffee break 11.30 - 1.00 Veronique MUNOZ-DARDE (UCL) The Limits of Claims and Social Goods Respondent: Hallvard LILLEHAMMER (Cambridge) Lunch (own arrangements) 2.30 - 4.30 Thomas SCANLON (Harvard) Blame Respondent: Mike MARTIN (UCL) Coffee break 5.00 - 6.30 Stephen EVERSON (York) A Unified Moral Terrain? Respondent: Christian PILLER (York) SATURDAY 11.00 - 12.30 Andrew WILLIAMS (Reading) Contractualism and Responsibility Martin O'NEILL (Harvard) Lunch (own arrangements) 2.00 - 3.30 Frances KAMM (Harvard) Further Reflections on What we Owe to each Other Respondent: Mike OTSUKA (UCL) Coffee break 4.00 - 5.30 Jimmy LENMAN (Sheffield) Scanlon's Normative Realism Respondent: Mark Eli KALDERON (UCL) __________________________________________________________________ TWO DAY FEES SCHEDULE (please settle on first day) £10/£20/£25/£30 Email registration at MEMBERS- CONCESSIONS (Students, Retired, Unwaged) £10 STANDARD £20 (including London Faculty) NON-MEMBERS- CONCESSIONS (Students, Retired, Unwaged) £25 STANDARD £30 MEMBERS Individual Philosophy Programme Subscribers OR Current Staff and Students of the Philosophy Departments at the following Universities University of London (Birkbeck, Heythrop, Kings, LSE, UCL, IoE); APU; Birmingham; Bristol; Cambridge Hertfordshire; Keele; Kent; Manchester Middlesex; Nottingham; Open; Oxford; Reading Southampton; Surrey; Sussex; UEA; Warwick; York Cheques (on day) payable to "UNIVERSITY OF LONDON"

Tuesday Calendar
    At Oxford's Jurisprudence Discussion Group, James E. Petts presents An Empirical Theory of Value. Here is a taste:
      The nature of, and the connexion, if any, between the right and the good has been one of the most enduring debates among philosophers over the centuries, partly because such a debate is inevitably important1, and partly because of the great mysteriousness that seems to envelop the topic: the question, “why are some things good and bad; right and wrong?” seems to many as illusive as, “why is there something rather than nothing?”, or, “what is consciousness?”. Few, it seems, have difficulty in disagreeing with David Hume’s remark that,
        “...the distinction of vice and virtue is not founded merely on the relations of objects, nor is perceived by reason.”
      In a similar vein, many, no doubt, would concur with Moore when he wrote,
        “[The good] cannot be defined, and that is all that I have to say about it”.
      Theories about the good and the right have been almost as diverse as is human imagination, and include (amongst, no doubt, many others) those that fasten the concepts to the notion of the will of an omnipotent creator-god; those that argue that what is right to do is whatever people feel like doing; those who suggest that a “reflective equilibrium” of people’s beliefs about justice determine the right, and that the good follows from that; those that postulate that the greatest happiness of the greatest number is of ultimate good, and that the right thing to do is maximise it; and those who deny the existence of both concepts entirely, claiming that they are both illusory.
      Despite the apparent shroud of mystery, however, I will argue that Hume was wrong to claim that the nature of vice and virtue, in other words, value, cannot be discovered by reasoning; that value is a contingent fact of existence, dependant on the prior existence of life, and that, far from being mysterious or non-existent, value is a concept whose nature and application can be arrived at by sound, empirical reasoning.

Downward Spirals Department Over at (The Providence Journal), there is an editorial entitled Judicial-selection truce. Here is a taste:
    [F]or members of either party to intensely politicize the judiciary undermines the integrity of the courts. Of course, the judicial-nomination process has always included plenty of politics and ideology, but this has gotten far worse in recent years, further polarizing a government that should be working toward common ends.

Congressional Oversight of the Judiciary? Tony Mauro has a story entitled Rehnquist's Olive Branch Too Late? on Here is a taste:
    "Judges have wandered," said [Representative Tom] Feeney. "When they try to achieve social justice or the 'right result' in their rulings instead of what the Constitution and the statutes dictate, then I am going to raise serious questions. I take my oath to uphold the Constitution just as seriously as the judges do." Feeney's admonition coupled with similarly strong language recently from House Judiciary Committee Chairman F. James Sensenbrenner, R-Wis., make it clear that Rehnquist's action was about more than the recent ethics controversy over Justice Antonin Scalia's January duck-hunting trip with Vice President -- and Supreme Court litigant -- Dick Cheney. The pivotal event that triggered Rehnquist's move got far fewer headlines than the duck hunt, and it took place on March 16. That is when Sensenbrenner delivered a searing speech behind closed doors at the Supreme Court to the Judicial Conference, the policy-making body of the judiciary. Instead of the usual blandishments offered by outsiders who address the conference, Sensenbrenner went down a list of recent judicial ethics missteps. One of the judges involved was in the audience. Sensenbrenner said the judiciary's handling of ethics complaints raised "profound questions with respect to whether the judiciary should continue to enjoy delegated authority to investigate and discipline itself." Sensenbrenner also defended the right of Congress to oversee the judiciary. "Federal judges in a democracy may be scrutinized and may even be unfairly criticized," Sensenbrenner said according to the text of his speech, released afterward. According to one judge in attendance, Sensenbrenner's speech was greeted with "stunned silence" by the judges. Another said, "We're not used to being dressed down on our own turf like that."
Read the whole story!

Fleurbaey on Economic Justice Marc Fleurbaey has posted Economics and Economic Justice on the Stanford Encylopedia of Philosophy. Here is a taste:
    Distributive justice is often considered not to belong to the scope of economics, but there is actually an important literature in economics that addresses normative issues in social and economic justice. A variety of economic theories and approaches provide many insights in these matters. Presented below are the theory of inequality and poverty measurement, welfare economics, the theory of social choice, the theory of bargaining and of cooperative games, and the theory of fair allocation. There has been a good deal of cross-fertilization between these different branches of normative economics and philosophical theories of justice, and many examples of such mutual influences are exhibited in this article.

Braddon-Mitchell on Act Consequentialism David Braddon-Mitchell has posted Freedom and Binding Consequentialism. Here is a taste:
    The paper proposes a new version of direct act consequentialism that will provide the same evaluations of the rightness of acts as indirect disposition, motive or character consequentialism, thus reconciling the coherence of direct consequentialism with the plausible results in cases of indirect consequentialism. This is achieved by seeing that adopting certain kinds of moral dispositions causally constrains our future acts, so that the maximizing acts ruled out by the disposition can no longer be chosen. Thus when we act we do the best we can, which is all that is required for rightness according to act consequentialism.

West Reviews Abromeit's Reader on Marcuse Daved West has posted a Review of John Abromeit's Herbert Marcuse: A Critical Reader on Notre Dame Philosophical Reviews. Here is a taste:
    This book offers a timely collection of readings about a thinker whose reputation has, paradoxically, suffered as much from success as from any flaws in his work. Marcuse’s status as iconic intellectual of the New Left and sixties radicals has served him badly. The New Left’s disintegration after 1968 was associated with seismic shifts in the politically engaged intellectual world. The subsequent ascendancy of poststructuralism and postmodernism is best understood as the outcome of a complex process of disillusionment with a Marxist tradition damaged by its association with failed revolution in the capitalist ’West’ and a series of moral and political debacles in the ’actually existing socialist’ countries of the ’East’ (Hungary, Czechoslovakia, Poland, the Chinese cultural revolution) before the terminal Götterdämmerung after 1989. The decline of Marxism and rise of postmodernism have together undermined some of the foundations of Marcuse’s thought and popularity. He has been damned as the proponent of a ’totalising’ political project of Hegelian and Marxist heritage. An allegedly naïve liberationist politics relied on his uncritically biological and ’essentialist’ reading of Freudian instinct theory. At the same time, Marcuse’s lack of faith in the proletariat and others symptoms of Western-Marxist revisionism have denied him any sanctuary in the remaining redoubts of the Marxist intelligentsia. Needless to say, the hostility of orthodox liberal academia towards an intellectual whose ideas helped to inspire a generation of student radicals and activists was not in doubt.

Knox on the North American Agreements on Labor and the Environment John H. Knox (Pennsylvania State University - The Dickinson School of Law) has posted Separated at Birth: The North American Agreements on Labor and the Environment (Loyola of Los Angeles International and Comparative Law Review, Vol. 26, 2004) on SSRN. Here is the abstract:
    The North American Agreement on Labor Cooperation and the North American Agreement on Environmental Cooperation are similar in many ways, from the concerns that led to their creation to the criticisms leveled against them. They are usually seen as bookends to the North American Free Trade Agreement, addressing parallel problems through virtually identical insitutions, the Commission for Labor Cooperation (CLC) and the Commission for Environmental Cooperation (CEC). But the agreements are less similar than they first appear. Despite their common origins, they reflect fundamentally different approaches to international organization. On the surface, both reflect the traditional Westphalian view of international law, which assigns states, represented by their national governments, responsibility for creating and implementing law on the international plane. Both modify the Westphalian model slightly by focusing on issues of domestic governance that were traditionally considered outside international purview. But only the environmental agreement goes decisively beyond Westphalia by providing roles for nongovernmental actors in the enforcement and further elaboration of its obligations. This Article locates the agreements along the path international law is taking away from Westphalia. It then compares the records of the agreements' compliance mechanisms, which represent three milestones along that path, ranging from pure state-to-state dispute resolution to a post-Westphalian citizen submissions procedure. The experience of the first ten years with these mechanisms provides empirical support for the idea that traditional compliance procedures are less effective than post-Westphalian procedures at promoting compliance with environmental and labor norms. The Article concludes by urging labor and environmental advocates to recognize this lesson. In particular, it suggests that they should stop pursuing the chimera of government-triggered sanctions as a way to obtain labor and environmental goals in trade agreements. Instead, they would do better to work to incorporate opportunities for non-governmental actors to participate at the international level in the creation, implementation, and enforcement of labor and environmental standards.

Nissenbaum on Privacy Helen Nissenbaum (New York University) has posted Privacy as Contextual Integrity (Washington Law Review, Vol. 79, No. 1, 2004) on SSRN. Here is the abstract:
    The practices of public surveillance, which include the monitoring of individuals in public through a variety of media (e.g., video, data, online), are among the least understood and controversial challenges to privacy in an age of information technologies. The fragmentary nature of privacy policy in the United States reflects not only the oppositional pulls of diverse vested interests, but also the ambivalence of unsettled intuitions on mundane phenomena such as shopper cards, closed-circuit television, and biometrics. This Article, which extends earlier work on the problem of privacy in public, explains why some of the prominent theoretical approaches to privacy, which were developed over time to meet traditional privacy challenges, yield unsatisfactory conclusions in the case of public surveillance. It posits a new construct, "contextual integrity," as an alternative benchmark for privacy, to capture the nature of challenges posed by information technologies. Contextual integrity ties adequate protection for privacy to norms of specific contexts, demanding that information gathering and dissemination be appropriate to that context and obey the governing norms of distribution within it. Building on the idea of "spheres of justice," developed by political philosopher Michael Walzer, this Article argues that public surveillance violates a right to privacy because it violates contextual integrity; as such, it constitutes injustice and even tyranny.

Yang on the NAFTA Environmental Side Agreement Tseming Yang (Vermont Law School) has posted The Effectiveness of the NAFTA Environmental Side Agreement's Citizen Submission Process: A Case Study of the Metales y Derivados Matter on SSRN. Here is the abstract:
    Among the most visible features of the North American Agreement for Environmental Cooperation, commonly referred to as the NAFTA Environmental Side Agreement, has been its citizen submission process. The submissions process allows private individuals to trigger an official international investigation into a NAFTA government's failure to effectively enforce its environmental laws. It remains one of the most advanced institutional mechanisms aimed at addressing international environmental issues related to trade liberalization. Some commentators have been optimistic about its usefulness. However, an examination of one of the more recently published factual records, the Metales y Derivados matter, paints a more mixed picture. Metales y Derivados is a former battery and lead waste recycling facility located in Tijuana, Mexico that was abandoned by its U.S. owner. For years, the poor and working-class neighboring community complained about pervasive environmental violations by the facility. When Mexican environmental officials finally instituted criminal enforcement proceedings, the owner fled across the border to the U.S. rather than face charges in Mexico. Left behind were thousands of tons of wastes and contaminated soil containing lead and other heavy metals. To this day, years after the facility was first abandoned and after the publication of a factual record detailing the enforcement failures of the Mexican government, little has changed. The piles of lead slag and barrels and sacks of waste still sit at the plant, and the toxic waste remains uncontrolled. This article examines the Metales matter as a case study of the effectiveness of the citizen submission process and the implications for environmental governance more broadly. The first part of the article outlines the events that led to the filing of the citizen submission, the handling of the submission by the CEC, and the aftermath. Part two examines claims of success and failures of the process, especially with respect to promoting transparency and accountability. My conclusion is that while the case can be seen as a success in promoting openness and increasing public knowledge about governmental processes, it must, at present, also be considered a failure in bringing about substantive environmental improvements, enhancing enforcement activities, and improving public participation in environmental governance. The third part of the article locates the reasons for the Metales failures at three levels: failures of 1) international governance, 2) national regulation, and 3) market and social mechanisms. The failures are rooted in the nature of international organizations, including the difficulty of enforcing the international obligations under the NAAEC, the political economy of the border region, and the failure of social institutions and markets. The fourth and final part addresses the lessons for improving environmental governance at the border and the effectiveness of the citizen submissions process. In particular, the articles suggests a set of reforms to the submissions process that will make it more autonomous from control by the Council and the NAAEC parties. To address substantive issues of environmental governance, especially political accountability, at the border, the article proposes the creation of a binational border environmental quality district with a commission that is directly elected and accountable to border residents. Ultimately, Metales is not only a cautionary tale about the effectiveness of the citizen submission process. Understanding its implications also yields broader insights into the role of civil society involvement in efforts to monitor and enforce state compliance with international environmental agreements as well as the relevance of North-South equity and environmental justice issues.