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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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Sunday, October 31, 2004
 
Legal Theory Calendar--Updated
    Monday, November 1 Tuesday, November 2
      Oxford Jurisprudence Discussion Group: Amir Fuchs, Welfare between Equality and Responsibility.
      University of Chicago Law & Economics: Alex Stein, Professor of Law, Benjamin N. Cardozo School of Law, Yeshiva University, Overenforcement.
      Oxford Intellectual Property Research Centre: Andreas Panagopoulos, INTELLECTUAL PROPERTY IN THE NEW MILLENNIUM: The Effects of Firm Size in Reaching an Out-of-court Settlement.
    Wednesday, November 3
      Northwestern, Law & Economics: Chris Sanchirico, University of Pennsylvania, "Evidence, Procedure, and the Upside of Cognitive Error". NYU Legal History: Walter Walsh, University of Washington School of Law.
      Oxford Centre for Criminology: Pat O’Malley, The Uncertain Promise of Risk.
    Thursday, November 4
      UCLA Legal Theory: Benjamin C. Zipursky, Fordham, BMW v. Gore and the Double Aspect Problem in the Theory of Punitive Damages.
      Boston University, School of Law: Ward Farnsworth, "Signatures of Ideology: The Case of the Supreme Court's Criminal Docket".
      Florida State University, School of Law: Kathyrn Zeiler, Georgetown University Law Center, "Common Law Disclosure Duties and the Sin of Omission: Testing the Meta-theories."
      Loyola Marymount, Loyola Law School: Sharon Dolovich, Professor of Law, UCLA Law School, “Punishment and Profit: The Case Against Private Prisons”.
      Oxford Public International Law Discussion Group: Salem Chalabi, Prosecuting Saddam Hussein: The Iraqi Special Tribunal for War Crimes.
      University of Michigan Law & Economics: Daryl Levinson, New York, Empire-Building Government in Constitutional Law.
    Friday, November 5


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


Saturday, October 30, 2004
 
Legal Theory Bookworm The Legal Theory Bookworm recommends A Dictionary of Legal Theory by Brian Bix. I've just been browsing through Bix's marvelous volume--a real treat! Here's a brief description:
    Modern legal theory contains a wide range of approaches and topics: from economic analysis of law to feminist legal theory to traditional analytical legal philosophy to a range of theories about justice. This healthy variety of jurisprudential work has created a problem: students and theorists working in one tradition may have difficulty understanding the concepts and terminology of a different tradition. This book works to make terminology and ways of thinking accessible. This dictionary covers topics from 'the autonomy of law' to the 'will theory of rights', from 'autopoiesis' to 'wealth maximization', and from 'John Austin' to 'Ludwig Wittgenstein'. The most important concepts and ideas are presented in a simple dictionary format. There are also many longer entries, where the initial definition gives an accessible explanation, but the entry goes on to give more detailed information about the history of an idea and the debates currently surrounding it.
A must!


 
Download of the Week The Download of the Week is The End of Empire: Dworkin and Jurisprudence in the 21st Century by Brian Leiter. Here is a taste from his blog post on the paper:
    Notwithstanding the majestic sweep and ambition of [Dworkin's] jurisprudential corpus, my conclusion—which I’ve come to only gradually over the last decade of reading, writing, talking and teaching about problems in legal philosophy—is that in legal philosophy, Dworkin now deserves to go the way of Skinner in psychology or Derrida in literary theory, that is, the way of figures whose work, at one time, was a stimulus to new research, but who, in the end, led—or, in Dworkin’s case, tried to lead—their field down a deeply wrong-headed path. The only good news in the story about Dworkin’s impact on law and philosophy is that most of the field declined to follow the Dworkinian path—something, interestingly, that those not working in legal philosophy generally do not know. Given the limited amount of time I have today—not to mention the amount of alcohol my audience has already consumed—I’m going to support this polemical thesis with just two kinds of considerations. First, in most of the areas that have made law and philosophy an intellectually vibrant area in recent decades, Dworkin’s work has been largely irrelevant. Second, in the areas where Dworkin has had an impact—namely, the development of his own theory of law and adjudication—his views are, I am afraid, implausible, badly argued for, and largely without philosophical merit. The first point shall be easier to establish this evening than the second, needless to say. I take them up in turn.
Download it while its hot!


Friday, October 29, 2004
 
Friday Calendar


 
Conference Announcement: 28th International Wittgenstein Symposium
    28th International Wittgenstein Symposium 7. - 13. August 2005 Kirchberg / Wechsel, Austria General Topic: Time and History Sections: 1. Wittgenstein; 2. Philosophy of Time; 3. Time and History; 4. Time and Natural Sciences; 5. Time in the Social and Cultural Sciences; 6. Temporal Logics Workshops: The arrow of time: Chaos and Entropy Einstein and Schlick on Space and Time Organizer: Austrian Ludwig Wittgenstein Society Scientific Direction: Friedrich STADLER (University of Vienna, Institute „Wiener Kreis“) Michael STÖLTZNER (University of Bielefeld) List of Speakers includes: Peter Aichelburg (Vienna), Milos Arsenijevic (Beograd), Jacques Bouveresse (Paris), Jeremy Butterfield (Oxford), John Campbell (Berkeley), Paul Davies (Sydney), Graciela DEPIERRIS (Stanford), Günther Dux (Freiburg i.Br.), John Earman (Pittsburgh), Jan FAYE (Kopenhagen), Georg Franck (Vienna), Sergio Galvan (Milano), Michael Friedman (Stanford), Gerhard GRÖSSING (Vienna), Kelly Hamilton (Saint Mary’s), Jaakko Hintikka (Boston), Allan Janik (Innsbruck), Robin Le Poidevin (Leeds), Gabriele Mras (Vienna), Albert Müller (Vienna), Karl MÜLLER (Vienna), Thomas Müller (Bonn), Wolfgang MÜLLER-FUNK (Vienna), Herta Nagl-DOCEKAL (Vienna), Lutz Niethammer (Jena), Nathan Oaklander (Michigan at Flint), J.C. NYIRI (Budapest), Constanze Peres (Dresden), John PERRY (Stanford), Huw Price (Sydney), Mike Sandbothe (Berlin), Katia Saporiti (Zurich), Peter Schöttler (Paris/Berlin), Richard Schrodt (Vienna), Joachim Schulte (Bielefeld), Peter SIMONS (Leeds), Christian Steininger (Salzburg), Michael Tooley (Boulder), Stephen Toulmin (Los Angeles), Jos Uffink (Utrecht), Johan van Benthem (Amsterdam/Stanford), Peter Weibel (Karlsruhe), Hans-Jüergen WENDEL (Rostock), Markus Werning (Düsseldorf), Henrik ZINKERNAGEL (Granada). Call for Papers: For an application form plus guidelines for papers (deadline: 30 April 2005) please contact: The Austrian Ludwig Wittgenstein Society, Markt 63, A-2880 Kirchberg am Wechsel, Austria, Phone and Fax: +43 2641 2557. The conference languages are English and German. Accepted papers will be published before the start of the symposium. For further information consult: http://www.alws.at


 
Jacob on Aristotle on Justice as a Virtue Bernard E. Jacob (Hofstra University - School of Law) has posted Aristotle and the Graces:
    This paper is a reading of Aristotle's book on justice (Book V of the Ethics) as what he says it is, a study of the disposition or inclination towards doing just (or unjust) acts. In that light, the content of Aristotle's famous treatments of distributive and corrective justice are only incidental, for their true role is as clues to a meaningful picture of the Just and the Unjust person. Aristotle's treatment of Being Just as a specific virtue is the most detailed treatment he offers of any moral virtue. Being Just as distributive justice emerges as a commitment to the equal treatment of all citizens, but to an equality tempered by always contentious considerations of merited reward. Being Just as corrective justice is a commitment to protecting and repairing the sphere of each person's dignity and opportunity from damaging and sometimes malicious interactions. But more is required. For Being Just means overcoming the disordered and misdirected desire that both Aristotle and Plato call "pleonexia", wanting - tyrant-like - more-of-and-more-than. If that is overcome by re-directed libido, the virtuous will then have to integrate more subtle elements if they are to achieve an inclination to this tempered, but real equality. These elements are two. One is present only implicitly, the passion Aristotle calls nemesis, a demand that the world – and justice within the world – must never permit an evil person to go unpunished or a good one, to suffer harm. That passion cannot be admitted, but at best can only be temporarily stilled. The second impediment arises from the dynamic of human communities that are made up of diverse and actively striving individuals: such citizens, haunted by suspicion grounded in their own pleonexia, demand that the community be one of laws. That creates a true dilemma, for in Aristotle's estimation, no set of rules can cabin any virtue. The Rule of Law is in tension with the particularity of justice in real life, and that tension is ultimately only bearable through the invention of equity, the trusted deviation from the law to preserve the law. In making this abstract I have had to leave untouched the subject matter of the first and two last chapters, but in my paper I do treat these. More importantly, I also show how all political community and the inclination to seek to be a Just Person rests on a gracious act of reciprocal commitment.


Thursday, October 28, 2004
 
Dougherty on First Amendment Defenses to the Rights of Publicity Claims F. Jay Dougherty (Loyola Marymount) has posted All the World's Not a Stooge: The 'Transformativeness' Test for Analyzing a First Amendment Defense to a Right of Publicity Claim Against Distribution of a Work of Art (Columbia Journal of Law & the Arts, Vol. 27, No. 1, 2003) on SSRN. Here is the abstract:
    This article reviews the case law in which claims of violation of the right of publicity have been brought against expressive works, leading up to the California Supreme Court's decision in Comedy III v. Saderup. It then reviews the Saderup decision and the transformativeness test elaborated by that court to resolve conflicts between freedom of expression and the right of publicity. The article then critiques the transformativeness test. First, it considers distinctions between copyright law and the right of publicity that suggest that application of this part of copyright's fair use law to right of publicity claims inadequately protects speech. Second, it considers the transformativeness test from the perspective of First Amendment jurisprudence, particularly contrasting balancing approaches versus categorical approaches. It concludes that applications of right of publicity claims against expressive works portraying real people should be subject to strict scrutiny and that neither the right of publicity itself as applied to such works, nor the transformativeness test, should survive strict scrutiny. Finally, the article suggests that categorically excluding right of publicity claims against the exploitation of copies of images of real people not used for advertising or in connection with unrelated products would better serve First Amendment interests. Short of such a categorical limitation, the article argues that, to limit chilling effects, the transformativeness test should be liberally applied and should incorporate procedural approaches favoring early resolution of claims.


 
Solove on the Digital Person Daniel J. Solove (George Washington University Law School) has posted The Digital Person: Technology and Privacy in the Information Age (Daniel Solove, THE DIGITAL PERSON: TECHNOLOGY AND PRIVACY IN THE INFORMATION Age, NYU Press, 2004) on SSRN. Here is the abstract:
    THE DIGITAL PERSON: TECHNOLOGY AND PRIVACY IN THE INFORMATION AGE (ISBN: 0814798462) (NYU Press 2004) explores the social, political, and legal implications of the collection and use of personal information in computer databases. In the Information Age, our lives are documented in digital dossiers maintained by hundreds (perhaps thousands) of businesses and government agencies. These dossiers are composed of bits of our personal information, which when assembled together begin to paint a portrait of our personalities. The dossiers are increasingly used to make decisions about our lives - whether we get a loan, a mortgage, a license, or a job; whether we are investigated or arrested; and whether we are permitted to fly on an airplane. Digital dossiers impact many aspects of our lives. For example, they increase our vulnerability to identity theft, a serious crime that has been escalating at an alarming rate. Moreover, since September 11th, the government has been tapping into vast stores of information collected by businesses and using it to profile people for criminal or terrorist activity. Do these developments pose a problem? Is it possible to protect privacy in a society where information flows so freely and proliferates so rapidly? THE DIGITAL PERSON seeks to answer these questions. This book explores the problem from all angles - how businesses gather personal information in massive databases; how the government increasingly provides this data to businesses through public records; and how the government is gathering personal data from businesses for its own uses. THE DIGITAL PERSON not only explores these problems, but also provides a compelling account of how we can respond to them. Using a wide variety of sources, including history, philosophy, and literature, Solove sets forth a new understanding of privacy, one that is appropriate for the new challenges of the Information Age. Solove recommends how the law can be reformed to simultaneously protect our privacy and allow us to enjoy the benefits of our increasingly digital world. The table of contents and Chapter 1 are available for download.


 
LoPucki on the Death of Liability Lynn M. LoPucki (University of California, Los Angeles - School of Law) has posted The Death of Liability (Yale Law Journal, October 1996) on SSRN. Here is the abstract:
    Based on systems/strategic analysis, this paper predicts the complete failure of legal liability system. Liability is the system by which injured persons recover money damages from those who injure them. The system operates through the entry and enforcement of judgments by the courts. The paper argues that the system is vulnerable to defeat by a variety of judgment proofing techniques which can be categorized as secured debt strategies, ownership strategies, exemption strategies, and foreign haven strategies. Computerization has recently brought about dramatic reductions in the costs of pursuing these strategies, making them cost effective for more potential defendants. As use spreads, the cultural and political barriers to judgment proofing will decline, leading to wider use of the techniques and ultimately to system failure. The paper examines a variety of strategies by which the system might respond, including shareholder unlimited liability, involuntary creditor priority, asset provider liability, enterprise liability, mandatory insurance, and financial responsibility laws. The paper concludes that judgment- proofing strategists will be able to overcome all of them.


 
Post on Naturalism and Normativity John Post has uploaded Naturalism, Reduction and Normativity: Pressing from Below:
    Normativity reducible to facts? Some philosophers might see this as a reduction to absurdity of Papineau’s reductionism. Others, however, might see it as a welcome consequence, however unintended. His reductionist method, if taken to heart, would appear to disarm the crucial arguments against naturalist realism about the normativity in question. This would greatly improve the prospects of a positive account, in naturalist-realist terms, of an important kind of normativity some think is objectively in the world — the primitive normativity involved in a biological adaptation’s being “for,” or designed to do this or that. Such normativity is the target of this paper, though the discussion will have implications for moral normativity as well. Not that moral normativity can somehow be inferred from the normativity involved in selectional properties; far from it. Nonetheless, by “pressing from below” on this primitive normativity, we may learn something about the higher-level moral normativity, as we shall see.


 
Thursday Calendar
    Boston University, School of Law: Anthony Sebok (Brooklyn), "Deterrence or Disgorgement? Reading Ciraolo After Campbell"
    Loyola Marymount University, Loyola Law School: Vikram Amar, Professor of Law, University of California, Hastings College of the Law, “The Cheney Case and the Unresolved Lingering Questions About Executive Privilege and the Odd Office of the Vice Presidency”
    Florida State University, School of Law: Robin Craig, University of Indiana-Indianapolis, "The Stevens-Scalia Principle: Statutory Conversations and the Strict Plain Meaning Approach."
    UCLA Legal Theory: Heather K. Gerken, Harvard, "Second-Order Dissent"
    Hofstra School of Law: Edward Stein, Cardozo Law School, "Past and Present Proposed Amendements to the Constitution Regarding Marriage."
    Oxford Public International Law Discussion Group: Professor Malcolm Evans OBE, Recent Approaches to Torture in English Law.
    Stanford Law & Economics: Mark Geistfeld (New York University Law School) “Economic Analysis in a Rights-Based Conception of Tort Law
    University of Michigan Law & Economics: Mitu Gulati, Georgetown, What Drives Changes in Boilerplate Contracts
    Saint Louis University, School of Law: Stacey Dogan, The Merchandising Right: Fragile Theory or Fait Accompli?


Wednesday, October 27, 2004
 
Wednesday Calendar


 
New from Law & Politics Book Review
    THE PERMANENT INTERNATIONAL CRIMINAL COURT: LEGAL AND POLICY ISSUES, by Dominic McGoldrick, Peter Rowe, and Eric Donnelly (eds). Oxford and Portland, OR: Hart Publishing, Studies in International Law, 2004. 514pp. Paper £35.00 / $70.00. ISBN: 1-84113-281-0. Reviewed by Lynn M. Maurer.
    RULE OF LAW: THE JURISPRUDENCE OF LIBERTY IN THE SEVENTEENTH AND EIGHTEENTH CENTURIES, by John Phillip Reid. DeKalb, Illinois: Northern Illinois University Press, 2004. 160pp. Cloth $32.00. ISBN: 0-87580-327-X. Reviewed by Craig Hanyan.
    THE POLITICS OF RIGHTS, 2ND EDITION: LAWYERS, PUBLIC POLICY, AND POLITICAL CHANGE, by Stuart Scheingold (Foreword by Malcolm Feeley). Ann Arbor: University of Michigan Press, 2004. 280pp. Cloth $22.95. ISBN: 0-472-03005-1. Reviewed by Jeffrey R. Dudas.
    THE UNITY OF PUBLIC LAW, by David Dyzenhaus (ed). Oxford and Portland Oregon: Hart Publishing, 2004. 520pp. Hardback. £45.00 / $90.00. ISBN: 1-84113-434-1. Reviewed by Upendra Baxi.
    THE HUMAN RIGHTS OF PERSONS WITH INTELLECTUAL DISABILITIES, by Stanley S. Herr, Lawrence O. Gostin, and Harold Hongju Koh (eds). New York and Oxford: Oxford University Press, 2003. 578pp. Paperback. $49.95 / £35.00. ISBN: 0199264511. Hardback. $175.00 / £100.00. ISBN: 0198267797. Reviewed by Dr Susan C. Breau.
    AN AMERICAN TRAVESTY: LEGAL RESPONSES TO ADOLESCENT SEX OFFENDING, by Franklin E. Zimring. Chicago: University of Chicago Press, 2004. 216pp. Cloth. $29.00. ISBN: 0-226-98357-9. Reviewed by Mark Chaffin.


Tuesday, October 26, 2004
 
Boettke on Hayek & Market Socialism Check out Hayek and Market Socialism: Science, Ideology, and Public Policy by Peter J. Boettke over at mises.org.


 
Leiter on Dworkin Brian Leiter's keynote address (from the inaugural conference of the Rutgers Institute for Law and Philosophy last May) is finally available at SSRN. You must read this--even if you disagree with Leiter! The title is The End of Empire: Dworkin and Jurisprudence in the 21st Century. Here is a taste from his blog post on the paper:
    Notwithstanding the majestic sweep and ambition of [Dworkin's] jurisprudential corpus, my conclusion—which I’ve come to only gradually over the last decade of reading, writing, talking and teaching about problems in legal philosophy—is that in legal philosophy, Dworkin now deserves to go the way of Skinner in psychology or Derrida in literary theory, that is, the way of figures whose work, at one time, was a stimulus to new research, but who, in the end, led—or, in Dworkin’s case, tried to lead—their field down a deeply wrong-headed path. The only good news in the story about Dworkin’s impact on law and philosophy is that most of the field declined to follow the Dworkinian path—something, interestingly, that those not working in legal philosophy generally do not know. Given the limited amount of time I have today—not to mention the amount of alcohol my audience has already consumed—I’m going to support this polemical thesis with just two kinds of considerations. First, in most of the areas that have made law and philosophy an intellectually vibrant area in recent decades, Dworkin’s work has been largely irrelevant. Second, in the areas where Dworkin has had an impact—namely, the development of his own theory of law and adjudication—his views are, I am afraid, implausible, badly argued for, and largely without philosophical merit. The first point shall be easier to establish this evening than the second, needless to say. I take them up in turn.
Download it while its HOT HOT HOT!!!


 
Gilreath on the Technicolor Constitution Shannon D. Gilreath (Wake Forest University - School of Law) has posted The Technicolor Constitution: Popular Constitutionalism, Ethical Norms, and Legal Pedagogy (Texas Journal on Civil Liberties & Civil Rights, Vol. 9, No. 22, 2003) on SSRN. Here is the abstract:
    In order to educate lawyers effectively, legal education must orient legal principles within the greater purpose of the law: to serve as the vehicle for a society striving to realize democratic ideals. Too often, however, students are not asked to examine the variant shades of the Constitution; they are not asked to question the efficacy of court decisions. They are not asked to concentrate on what the law "should be" as well as what the law "is." The role of lawyers as policymakers and guardians of democratic values has for too long been virtually ignored in the law school curriculum. Consequently, the aim of this essay is to support my opinion, with particular reference to law school pedagogy, that popular consideration of the Constitution as a tool for social betterment should be more highly valued and encouraged. The essay is an effort to put law in historical context, tracking episodes in American constitutional history in which the people were more protective of constitutional liberty than the courts were disposed to be - episodes in which the people shaped the content of a constitutional norm and the courts followed. Inquiry and challenge proved in these instances what law schools often fail to assert with authority: The Constitution is a document of the popular conscience. The essay concludes with some observations concerning the proper place of "popular" constitutional theory in constitutional education.


 
Tuesday Calendar


Monday, October 25, 2004
 
Weekend Update On Saturday, the Download of the Week was Humanitarian Intervention as a Perfect Duty. A Kantian Argument by Carla Bagnoli and the Legal Theory Bookworm recommended Facts, Values, and Norms: Essays toward a Morality of Consequence by Peter Railton. Sunday's Legal Theory Lexicon entry was on Utilitarianism. And the Legal Theory Calendar previews this weeks talks and conferences.


 
Monday Calendar
    University of San Diego School of Law: Viva Moffat (University of Denver), Mutant Copyrights and Backdoor Patents: The Problem of Overlapping Intellectual Property Protection.
    At Stanford's Center for Internet and Socienty (CIS), Eugene Volok presents Crime-Facilitating Speech.
    Columbia Law & Economics: Professor Jennifer Arlen, New York University, School of Law, "Contracting Over Malpractice Liability".
    Hofstra, School of Law: Jennifer Gordon, Fordham Law School, “The Best Labor Law in America: The United Farm Workers, the Agricultural Labor Relations Act, and Reflections on the Reform of the NLRA.”
    Oxford Moral Philosophy Seminar: Robert Audi, Notre Dame.
    New York University, School of Law: Mark Tushnet (Visiting from Georgetown), Our Perfect Constitution.
    UCLA School of Law: Sam Thompson, UCLA School of Law, "How Will the Tax Policies of Bush & Kerry Affect Economic Growth?"


 
Berman on Blakely Check out Doug Berman's new paper, "Conceptualizing Blakely."


 
Conference Announcement: Moral Particularism at Canterbury
    ****MORAL PARTICULARISM**** Venue: Canterbury Business School (On the University of Kent Main Campus) DATE: Wednesday December 1st, 2004 from 9:30 - 6:00 Registration: £20 including Buffet Lunch (There are 12 subsidised places at £10 for graduate students courtesy of The Analysis Trust on a first come, first served basis.) Print off and mail in the registration form at: http://www.logical-operator.com/particularism.html 9:30 - 10:15 'Particularism and Default Reasons' Dr Simon Kirchin (Kent) 10:15 - 10:30 Respondent: Professor Richard Norman (Kent) 10:30 - 11:00 Discussion 11:00 - 11:30 Coffee 11:30 - 12:15 'First: Principles' Dr Roger Crisp (St. Anne's Oxford) 12:15 - 12:30 Respondent: Dr Edward Harcourt (Kent) 12:30 - 1:00 Discussion 1:00 - 2:30 Lunch 2:30 - 3:15 'Generalism and Reasons for Action' Dr Michael Ridge (Edinburgh) 3:15 - 3:30 Respondent: Dr Alan Thomas (Kent) 3:30 - 4:00 Discussion 4:00 - 4:30 Coffee 4:30 - 5:15 KEYNOTE ADDRESS: 'Defending the Right' Professor Jonathan Dancy (Reading) 5:15 - 5:30 Respondent: Dr Simon Kirchin (Kent) 5:30 - 6:00 Discussion Conference Dinner at "The Goods Shed" Restaurant, 7:00 p.m.


 
Epstein versus Levinson Over at Legal Affairs, Richard Epstein & Sandy Levinson debate Should Colorado split its electoral votes?.


Sunday, October 24, 2004
 
Legal Theory Calendar
    Monday, October 25
      University of San Diego School of Law: Viva Moffat (University of Denver), Mutant Copyrights and Backdoor Patents: The Problem of Overlapping Intellectual Property Protection.
      At Stanford's Center for Internet and Socienty (CIS), Eugene Volok presents Crime-Facilitating Speech.
      Columbia Law & Economics: Professor Jennifer Arlen, New York University, School of Law, "Contracting Over Malpractice Liability".
      Hofstra, School of Law: Jennifer Gordon, Fordham Law School, “The Best Labor Law in America: The United Farm Workers, the Agricultural Labor Relations Act, and Reflections on the Reform of the NLRA.”
      Oxford Moral Philosophy Seminar: Robert Audi, Notre Dame.
      New York University, School of Law: Mark Tushnet (Visiting from Georgetown), Our Perfect Constitution.
      UCLA School of Law: Sam Thompson, UCLA School of Law, "How Will the Tax Policies of Bush & Kerry Affect Economic Growth?"
    Tuesday, October 26 Wednesday, October 27 Thursday, October 28
      Boston University, School of Law: Anthony Sebok (Brooklyn), "Deterrence or Disgorgement? Reading Ciraolo After Campbell"
      Loyola Marymount University, Loyola Law School: Vikram Amar, Professor of Law, University of California, Hastings College of the Law, “The Cheney Case and the Unresolved Lingering Questions About Executive Privilege and the Odd Office of the Vice Presidency”
      Florida State University, School of Law: Robin Craig, University of Indiana-Indianapolis, "The Stevens-Scalia Principle: Statutory Conversations and the Strict Plain Meaning Approach."
      UCLA Legal Theory: Heather K. Gerken, Harvard, "Second-Order Dissent"
      Hofstra School of Law: Edward Stein, Cardozo Law School, "Past and Present Proposed Amendements to the Constitution Regarding Marriage."
      Oxford Public International Law Discussion Group: Professor Malcolm Evans OBE, Recent Approaches to Torture in English Law.
      Stanford Law & Economics: Mark Geistfeld (New York University Law School) “Economic Analysis in a Rights-Based Conception of Tort Law
      University of Michigan Law & Economics: Mitu Gulati, Georgetown, What Drives Changes in Boilerplate Contracts
      Saint Louis University, School of Law: Stacey Dogan, The Merchandising Right: Fragile Theory or Fait Accompli?
    Friday, October 29


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


Saturday, October 23, 2004
 
Legal Theory Bookworm The Legal Theory Bookworm recommends Facts, Values, and Norms: Essays toward a Morality of Consequence by Peter Railton. Here a blurb:
    In our everyday lives we struggle with the notions of why we do what we do and the need to assign values to our actions. Somehow, it seems possible through experience and life to gain knowledge and understanding of such matters. Yet once we start delving deeper into the concepts that underwrite these domains of thought and actions, we face a philosophical disappointment. In contrast to the world of facts, values and morality seem insecure, uncomfortably situated, easily influenced by illusion or ideology. How can we apply this same objectivity and accuracy to the spheres of value and morality? In the essays included in this collection, Peter Railton shows how a fairly sober, naturalistically informed view of the world might nonetheless incorporate objective values and moral knowledge. This book will be of interest to professionals and students working in philosophy and ethics.
Railton is one of the best philosophers working in metaethics--very highly recommended.


 
Download of the Week The Download of the Week is Humanitarian Intervention as a Perfect Duty. A Kantian Argument by Carla Bagnoli. Here is a taste:
    Conclusion: I have attempted to show that in constructing a moral case for humanitarian intervention based on the defense of human rights, we are bound to recognize it as a duty rather than permission, and as a perfect duty rather than an imperfect one—a duty that proceeds from respect for humanity rather than from charity. This qualification implies that the gross violation of human rights calls for intervention and that a state that grossly violates the human rights of its citizens is outlaw and has no right not to be interfered with. To qualify humanitarian intervention as a strict duty does not settle the issue of proper authority, but it encourages us to rethink the ground of proper authority and the institutionalization of moral responsibility. My conviction is that when human rights are at stake, the whole international community must respond, and only an international organization can have the proper authority to do that. How exactly to design such an international institution is something that falls well beyond the scope of competence of a moral philosopher; so I should leave the matter at this point.
Download it while its hot!


Friday, October 22, 2004
 
Bibas on Fisher on Plea Bargaining Stephanos Bibas (University of Iowa - College of Law) has posted Pleas' Progress (Michigan Law Review, Vol. 102, 2004) on SSRN. Here is the Abstract:
    George Fisher's new book, Plea Bargaining's Triumph, reviews the rise of plea bargaining in Middlesex County, Massachusetts, compares it with the history of plea bargaining elsewhere, and applies the lessons of history to critique current criminal procedure. In particular, Fisher criticizes the U.S. Sentencing Guidelines for tilting the balance of power toward prosecutors. Academics have already written many histories of plea bargaining, but this one is different, because Fisher brings an ex-prosecutor's perspective to bear. He adds an important dimension to the history of plea bargaining precisely because he looks at it with a prosecutor's eye. Instead of resting on broader social explanations of plea bargaining, Fisher emphasizes the caseloads, incentives, and powers of judges and prosecutors. His prosecutor's eye sees the actors' powers and incentives from a rational-actor perspective that purely academic historians often miss. He rehabilitates the role of caseload pressure in explaining bargaining's rise and explains how the explosion of civil cases encouraged judges to lighten their workloads by bargaining away their criminal cases. The lesson of Fisher's history is that plea bargaining has triumphed because it has endeared itself to the actors with real power: judges, prosecutors, defense lawyers, and defendants all like it. Thus, plea bargaining is here to stay. Rather than writing more articles that treat jury trials as the norm, we should focus on making bargaining fairer. The way to do that is to check and balance prosecutors' charging and sentencing power, to create a true balance of bargaining power.


 
Yeazell on Brown & the Silent Litigation Revolution Stephen C. Yeazell (University of California, Los Angeles - School of Law) has posted Brown, The Civil Rights Movement, and the Silent Litigation Revolution (Vanderbilt Law Review, 2004) on SSRN. Here is the abstract:
    Brown v. Board of Education had two collateral effects on the legal profession. First, it created a new set of professional heroes - plaintiffs' lawyers pursuing social reform through litigation. Second, it began the gradual deregulation of the bar, particularly the plaintiffs' bar. Both changes reached well beyond the original civil rights arena and both continue to shape the legal profession and the economics of civil litigation.


 
Hasen Replies Richard L. Hasen (Loyola Marymount) has posted The Supreme Court and Election Law: A Reply to Three Commentators (Journal of Legislation, Vol. 31, January 2005) on SSRN. Here is the abstract:
    The Journal of Legislation and Notre Dame Law School invited three distinguished scholars to comment on my recent book, The Supreme Court and Election Law: Judging Equality from Baker v. Carr to Bush v. Gore (NYU Press 2003), and have kindly given me this chance to reply. After a brief summary of the main points of my book, I focus on what I consider to be the central critical claim of each commentator Professor John Nagle gently suggests that election law itself may not be a coherent field of study, noting that much election law jurisprudence appears to turn on matters of appearance over that of substance. Professor Luis Fuentes-Rohwer agrees with much of my analysis, but argues that I do not go far enough - suggesting that the logical end-point of my argument is for the Supreme Court to extricate itself from the political thicket entirely. Professor Guy-Uriel E. Charles argues that my distinction between core and contested equality rights eliminates any purpose for judicial review and is too difficult to put into practice. In this Reply, I defend my approach. Professor Nagle is right that the Court often strays from the right path when it decides election law cases on appearances alone, but he fails to recognize how conceiving of election law synthetically informs Court decisionmaking on issues such as the justiciability of partisan gerrymandering claims. Professor Fuentes-Rohwer's general suggestion of Court exit from the political thicket has much to commend it in the abstract, but he fails to evaluate my proposal as a second best approach, particularly compared to the main alternative floating around election law circles today, the structuralist approach that focuses on appropriate political competition. Finally, Professor Charles puts his finger on the most difficult aspect of my book, and I welcome his decision to take my proposed distinction between core and contested equality claims seriously.


 
Burke on the Rhetoric of the Endangered Species Act Marcilynn A Burke (University of Houston - Law Center) has posted Klamath Farmers and Cappuccino Cowboys: The Rhetoric of the Endangered Species Act and Why it (Still) Matters (Duke Environmental Law & Policy Forum, Vol. 14, p. 441, 2004) on SSRN. Here is the abstract:
    This Article traces and analyzes the negative, lasting impact of political rhetoric on the Endangered Species Act. The discourse surrounding the Act is consistent in its themes, assumptions, and images, and it is seductively powerful. Taking the form of stories and slogans or catchphrases, this rhetoric paints a picture of imbalance, pitting humans and their prosperity against endangered species and their protection. The political rhetoric has spurred a reform movement to solve the problems that the stories portray. In this way, it influences proposed legislation, regulations, and day-to-day operations of the Executive Branch. Yet, the solutions to these "problems" are ill-advised for several reasons. First, they seek to address problems that do not exist. The stories are misleading; important facts and contexts are omitted. Moreover, they seek to create a new property entitlement for a select segment of the public while at the same time undermining the values that undergird the Endangered Species Act. And because much of the change occurs within the agency's day-to-day routine, it escapes public scrutiny, not being subject to Congressional debate or notice and comment rulemaking procedures. Thus, it is important to recognize the deflection of the issues, to challenge the rhetoric, and ultimately to develop alternative, expanded narratives that reflect the values of the broader public with respect to species protection.


 
Book Announcement
    Wayward Contracts The Crisis of Political Obligation in England, 1640-1674 Victoria Kahn To read the entire book description and a sample chapter, please visit: http://www.pupress.princeton.edu/titles/7893.html Why did the language of contract become the dominant metaphor for the relationship between subject and sovereign in mid-seventeenth-century England? In Wayward Contracts, Victoria Kahn takes issue with the usual explanation for the emergence of contract theory in terms of the origins of liberalism, with its notions of autonomy, liberty, and equality before the law. 0-691-11773-X Cloth $49.50 US and £32.50 392 pages. 6 x 9.


 
Mikos on Congress's Shadow & Enforcement of State Law Robert A. Mikos (University of California, Davis - School of Law) has posted Enforcing State Law in Congress's Shadow on SSRN. Here is the abstract:
    This article examines an important yet overlooked form of federal regulation implicating efficiency and fairness concerns—congressional statutes that impose federal sanctions on individuals convicted of state crimes. These sanctions may profoundly influence state criminal proceedings, but the scholarly literature has all but ignored their effects. The article demonstrates that by raising the stakes involved in state cases, federal sanctions may cause defendants to contest state charges more vigorously, thereby producing one of two unintended consequences. First, the sanctions may make it more costly for state prosecutors to enforce state laws. Second, due to resource constraints or dislike of the federal sanctions, state prosecutors may circumvent them by manipulating charging decisions. But in the process, state prosecutors may have to reduce state sanctions as well, thereby undermining deterrence and the fair application of both state and federal law. The article theorizes that the severity of the sanctions and the emphasis they place upon state outcomes, among other factors, determine how much the sanctions will distort state proceedings. The article then substantiates the theory with five in-depth case studies of federal sanctions: deporting criminal aliens, barring domestic abusers from possessing firearms, and disqualifying drug offenders from receiving federal welfare, public housing, and student financial aid. It suggests ways Congress, states, and the Judiciary might respond to ameliorate the concerns raised herein. It concludes by demonstrating that the analytical framework can be applied more broadly to sanctions imposed and determinations made by any party, including a private citizen.


 
The Role of Folk Psychology Joshua Knobe (Princeton) has posted The Concept of Intentional Action: A Case Study in the Uses of Folk Psychology:
    It is widely believed that the primary function of folk psychology lies in the prediction, explanation and control of behavior. A question arises, however, as to whether folk psychology has also been shaped in fundamental ways by the various other roles it plays in people’s lives. Here I approach that question by considering one particular aspect of folk psychology — the distinction between intentional and unintentional behaviors. The aim is to determine whether this distinction is best understood as a tool used in prediction, explanation and control or whether it has been shaped in fundamental ways by some other aspect of its use.


 
Friday Calendar


Thursday, October 21, 2004
 
Event Announcement: Volokh at Stanford
    The Center for Internet and Socienty (CIS) and The Stanford Law and Technology Association (SLATA) Lunchtime Speaker Series Present: Crime-Facilitating Speech with Eugene Volokh Monday October 25, 2004 12:30 - 1:30 p.m. Room 180 Free and Open to all! Lunch Served Paladin Press publishes a contract murder manual. A Web site operator is sued for linking to copyrighted material, or describing an algorithm for breaking copy protection. A Web page operator is prosecuted for posting bombmaking information. A computer programmer is sued or prosecuted for publicizing holes in a security system. A political activist group is sued for publishing the names and addresses of abortion providers, boycott violators, or police officers. The government issues a secret subpoena under the Patriot Act. All these cases, and many more, turn out to be special cases of a general problem: How should First Amendment law treat "crime-facilitating speech," defined as (1) any communication that, (2) intentionally or not, (3) conveys information that (4) makes it easier or safer for some listeners or readers to (a) commit crimes, torts, acts of war, or suicide, or (b) to get away with committing such acts? Surprisingly, scholars have not focused much on these broad questions, and the Supreme Court has never squarely confronted them either in their general form or in their specific applications. This talk, based on an article that will be published early next year in the Stanford Law Review, will discuss the issue, and suggest which proposals for dealing with it seem promising and which seem inadequate. The article can be found here: http://cyberlaw.stanford.edu/events/archives/eugene_volokh.shtml About the Speaker: Eugene Volokh is visiting at Stanford Law School from UCLA, where he teaches free speech law, copyright law, the law of government and religion, and a seminar on firearms regulation policy. Before coming to UCLA, he clerked for Justice Sandra Day O'Connor on the U.S. Supreme Court and for Judge Alex Kozinski on the U.S. Court of Appeals for the Ninth Circuit. Volokh also worked for 12 years as a computer programmer, and is still partner in a small software company which sells HP 3000 software that he wrote. He is the author of nearly 50 law review articles and over 70 op-eds on a wide range of topics, but mostly on First Amendment law, and of textbooks on the First Amendment and on Academic Legal Writing. He is the founder and coauthor of The Volokh Conspiracy, a Weblog that gets about 10,000 unique visitors per weekday.


 
Thursday Calendar
    Boston University, School of Law: Mike Meurer.
    Oxford Public International Law Discussion Group: Chris Sidoti, The Implementation of International Human Rights Standards.
    Oxford Financial Law Discussion Group: Colin Mayer, The Evolution of Law and Finance in Germany and the UK.


 
Welcome to the Blogosphere . . . . . . to Political Arguments, a blog that focuses on political theory. Alfredo Perez writes:
    We are mostly political theory grad students, but one of [us] is working on constitutional issues and there are also a couple of law students too. Legal Theory Blog readers might be interested.
Check it out!


 
Call for Papers: The First Decade of Cyberspace Law
    CALL FOR PAPERS THE TENTH ANNIVERSARY OF CYBERSECURITIES LAW - LOOKING AT THE NEXT DECADE The University of Toledo College of Law Cybersecurities Law Institute and the Stranahan National Issues Forum are sponsoring a conference on April 8, 2005 to mark the 10th anniversary of cybersecurities law. The year 1995 can be seen as the birthday of cybersecurities law. In that year the SEC issued its first Release on use of electronic media for delivery of documents to investors. Also in that year, the phase-in of mandatory EDGAR filing by registrants was almost complete. TOPICS: At this conference, participants will look at what we can expect in the next decade. The Conference will focus on the full range of securities law issues that have been impacted by Internet technology. These include, but are not limited to: - delivery of SEC disclosure documents online; - online market manipulation and securities fraud; - the Internet in corporate governance; - restructuring of securities markets in an electronic age; - the role of securities intermediaries in an electronic age; - the EDGAR system; - informal corporate disclosures online; - online shareholder voting and annual meetings; - restructuring of the 1933 Act offering process to accommodate Internet offers; - impact of the Internet on the investment banking industry; - the mutual fund industry in an online environment; - broker-dealers online and their regulation; - the fixed income market in an electronic age; - Sarbanes-Oxley and the Internet; - the impact of the Internet on SEC rulemaking procedures; - blue sky laws in an electronic age; - jurisdictional issues in a world with the Web; - privacy for online investors; - e-mail and instant messaging in the securities industry; - regulating online investment advice; - the First Amendment and cybersecurities regulation; - tender offers and proxy fights online. Papers presented at the Conference on April 8 will be published in the University of Toledo Law Review. Papers will be due in final form for publication on July 1, 2005. We seek papers from legal scholars, scholars in the related fields (such as economics and business), government officials, and from members of industry involved in cybersecurities developments. New scholars writing for the first time in this field, as well as established scholars, are encouraged to submit proposals. The conference will be held at the University of Toledo College of Law on April 8, 2005. All transportation and hotel expenses will be paid for those who are chosen to present papers. PAPER SUBMISSIONS: Proposals should consist of a statement of up to 300 words describing your topic. Also please include your name, address, phone number, e-mail address and a brief resume. Proposals will be accepted on a rolling basis. Send proposals to: CONTACT: Prof. Howard Friedman preferably by e-mail at: Email: MAILTO:howard.friedman@utoledo.edu Or by mail: Postal: University of Toledo College of Law 2801 W. Bancroft St. Toledo, OH 43606 If you have questions, pleas contact: CONTACT: Prof. Friedman Email: MAILTO:howard.friedman@utoledo.edu Tel: (419) 530-2911


 
Conference Announcement: Corporate Misbehavior & Social Psychology
    CONFERENCE ANNOUNCEMENT CORPORATE MISBEHAVIOR BY ELITE DECISION-MAKERS: PERSPECTIVES FROM LAW AND SOCIAL PSYCHOLOGY Brooklyn Law School Friday, November 12, 2004 Sponsored By: Brooklyn Law School Center for the Study of Law, Language and Cognition The Alfred P. Sloan Foundation The principal purpose of the conference is to explore ways in which corporate misconduct and scandals result not from the presence of a few "bad apples" among corporate executives and directors, but from systematic and predictable aspects of group behavior and corporate organization. To achieve this purpose, the conference brings together prominent social psychologists and organizational and management specialists to present and to discuss their research findings and theories of group behavior. Corporate law scholars will then, as discussants, comment upon the implications of these findings and research for policy making regarding the regulation of corporations and their governance. The goal of this conference is to find solutions to misconduct of elite corporate decision makers and to stimulate and promote interactions and research between social psychologists and organizational theorists, on the one hand, and corporate scholars, on the other. The conference will thus conclude with a general discussion of avenues of collaboration and joint research for the future. REGISTRATION/FURTHER INFORMATION: Admission is free, but registration is required. To register for the conference, go to: http://www.brooklaw.edu/centers/cognition TOPICS AND SPEAKERS: Corporate Scandals as Problems of Group Behavior Moderator: James Fanto, Brooklyn Law School John M. Darley, Princeton University Linda Trevino and Guoli Chen, Pennsylvania State University Discussant: Daniel Greenwood, University of Utah Corporate Scandals as Problems of Group Identity Moderator: Dana Brakman Reiser, Brooklyn Law School Michael Hogg, University of Queensland and University of California, Santa Barbara Rakesh Khurana and Katharina Pick, Harvard University Discussant: Margaret Blair, Vanderbilt University Possibilities of Reform Moderator: Norman Poser, Brooklyn Law School Dolly Chugh, Mahzarin R. Banaji, and Max H. Bazerman, Harvard University Tom Tyler, New York University Lawrence Mitchell, George Washington University Discussant: Lynne Dallas, University of San Diego Discussion: An Agenda for Future Research? Moderators: James Fanto and Lawrence Solan, Brooklyn Law School


Wednesday, October 20, 2004
 
Wednesday Calendar
    Loyola Marymount, Loyola Law School: Marcy Peek, Assistant Professor of Law, Whittier Law School, “Beyond Contract: Utilizing Restitution to Reach Shadow Offenders & Safeguard Information Privacy”
    Oxford Centre for Criminology: Kathleen Daly, Restorative Justice and Sexual Assault.
    NYU Legal History: Maribel Morey, NYU Law School.


Tuesday, October 19, 2004
 
Stanford Encyclopedia of Philosophy: Game Theory and Ethics Be sure to check out Game Theory and Ethics, a new entry in the Stanford Encyclopedia of Philosophy by Bruno Verbeek and Christopher Morris. Here is a taste:
    Game theory is the systematic study of interdependent rational choice. It may be used to explain, to predict, and to evaluate human behavior in contexts where the outcome of action depends on what several agents choose to do and where their choices depend on what others choose to do. Game theory consequently is relevant to ethics, and it is used in moral and political philosophy in a variety of ways. We shall concentrate on the influence and use of game theory in ethics and those parts of political theory involving norms or principles of justice, ignoring questions about political and legal institutions on the one hand and questions about issues dealing with moral virtues on the other. One can distinguish three distinctive kinds of inquiries in the literature. The first we shall call functionalist: game theory is used to identify the function of morality. It is used to describe the problem(s) that would occur in the absence of morality, and inferences about the remedial or ameliorative function of morality are drawn from this description. The second approach, contractarianism, uses game theory (especially bargaining theory) to formalize social contract theory. This older tradition understands political institutions or norms to be justified to the extent that rational agents would agree to them under suitable conditions. Bargaining theory has been used to establish, first, that there will be agreement in such conditions and, secondly, to predict the outcome of this bargaining process. Third and finally, game theory, especially evolutionary game theory, is used to “recover” many traditional moral norms or practices. In what follows, we shall consider each of these approaches and the results and problems they have encountered. We shall start with some historical background.


 
Bagnoli on Humanitarian Intervention as a Perfect Duty Carla Bagnoli has uploaded Humanitarian Intervention as a Perfect Duty. A Kantian Argument (Nomos, forthcoming). Here is a taste:
    Conclusion: I have attempted to show that in constructing a moral case for humanitarian intervention based on the defense of human rights, we are bound to recognize it as a duty rather than permission, and as a perfect duty rather than an imperfect one—a duty that proceeds from respect for humanity rather than from charity. This qualification implies that the gross violation of human rights calls for intervention and that a state that grossly violates the human rights of its citizens is outlaw and has no right not to be interfered with. To qualify humanitarian intervention as a strict duty does not settle the issue of proper authority, but it encourages us to rethink the ground of proper authority and the institutionalization of moral responsibility. My conviction is that when human rights are at stake, the whole international community must respond, and only an international organization can have the proper authority to do that. How exactly to design such an international institution is something that falls well beyond the scope of competence of a moral philosopher; so I should leave the matter at this point.


 
Welcome to the Blogosphere . . . . . . to AntitrustProf Blog edited by Shubha Ghosh (Buffalo).


 
Tuesday Calendar


Monday, October 18, 2004
 
Weekend Update On Saturday, the Download of the Week was Lochner's Legacy for Modern Federalism: Pierce County v. Guillen as a Case Study by Lynn Baker, and the Legal Theory Bookworm recommended Ethics and the A Priori : Selected Essays on Moral Psychology and Meta-Ethics by Michael Smith. On Sunday, the Legal Theory Lexicon topic was Game Theory & the Prisoner's Dilemma. As usual, the Legal Theory Calendar lists this week's talks, events, and conferences.


 
Conference Announcement: Copyright & Privacy
    CONFERENCE AT JMLS - NOVEMBER 18th, 2004 COPYRIGHT & PRIVACY: COLLISION OR COEXISTENCE? THE STANDARD CLUB CHICAGO, ILLINOIS 8:50 am INTRO – Vice Dean John Corkery & Prof. Howard Knopf PART I – THROUGH THE COPYRIGHT LENS 9:00 am to 10:50 am THE RECORDING INDUSTRY LAWSUITS – METHODS OF OBTAINING DISCLOSURE AND RESULTS Matt Oppenheim – Jenner & Block LLP – Counsel for RIAA Sarah Deutsch - VP Legal - Verizon Rod Dorman - Hennigan, Bennett & Dorman LLP - Counsel for KaZaA Prof. Hugh Hansen - Fordham Prof. John Palfrey – Harvard Prof. Michael Geist – University of Ottawa Commentator: Ralph Oman Moderator: Vice Dean John Corkery Q & A This panel will examine the recent litigation by the recording industry against P2P users in the U.S.A. and Canada. How are users’ identities being obtained? Is the process working well enough or too well? What are the technical, evidentiary, procedural, privacy, policy and substantive copyright issues at play? Part II - THOUGH THE TECHNOLOGY LENS 11:05 am – 12:00 pm TECHNOLOGY & PRIVACY GENERALLY – IP Issues and Beyond Fred Von Lohmann – EFF Prof. Doris Long – JMLS Prof. Michael Geist Commentator: Prof. Leslie Reis Moderator: Prof. David Sorkin Q & A How is new technology impacting on the more general question of privacy in cyberspace? Is the original notion of an expectation of anonymity on the Interment still viable? Can technology pierce though the expectation of privacy, even without judicial interference? Do individuals need protection from such technology? Is there technology available to protect the individual? Should these technological tools be regulated? Should the law differentiate between various types of alleged “illegal” behavior, e.g. IP infringement, defamation, possession of pornography, terrorism? LUNCH Hon. Marybeth Peters – Register of Copyrights Ms. Peters will provide a post-election report on the legislative agenda in Washington and the current policy role of the United States Copyright Office. PART III – THROUGH THE PRIVACY LENS 2:00 pm – 2:45 pm a. Prof. Julie Cohen – Georgetown b. Prof. Peter Swire – Ohio State Commentator: Prof. David Sorkin Moderator: Prof. Leslie Reis Q & A What legal tools do privacy advocates have available to defend an individual’s right to privacy? How far does this right go? How should these rights be defended – or if necessary – curtailed? What is the role of Government, of the practising bar, and of academics? PART IV – THROUGH THE WIDE ANGLE LENS – IS “ALTERNATIVE COMPENSATION” AN ALTERNATIVE? 2:45 pm – 3:45 pm a. Prof. William W. Fisher (Harvard) b. Prof. Tony Reese (Visiting Stanford) c. Prof. Howard Knopf (JMLS) Commentator: Prof. Hugh Hansen Moderator: Associate Dean Bill Mock (JMLS) Q & A Some have proposed “alternative compensation schemes” as a means of compensating copyright owners and creators for P2P activity while avoiding litigation. Some have proposed a streamlined dispute resolution system that would allow for enforcement in a manner analogous to the URDP model. Others question whether private copying should necessarily be viewed as illegal and whether any alternative compensation scheme is viable. PART V - THROUGH THE POLITICAL LENS 4:00 pm – 5:30 pm THE POLITICS OF PRIVACY and P2P d. Mitch Glazier – RIAA e. Chris Hoofnagle – EPIC f. Declan McCullagh – journalist and commentator g. Fred Von Lohmann - EFF h. Ralph Oman – Dechert LLP Commentators: Prof. William W. Fisher (Harvard) Prof. Howard Knopf (JMLS) Moderator: Associate Dean Gerry Berendt (JMLS)Q & A Veteran beltway players will discuss the politics of P2P and Privacy. How far can or should Congress go? Can the U.S.A. export its values or its laws in this area? Are content owners in a losing Luddite struggle? What is the role of litigator, lobbyists and legislators in this war? 5:30 PM RECEPTION


 
McLure at Standford's CIS Today
    The Center for Internet and Socienty (CIS) and The Stanford Law and Technology Association (SLATA) Lunchtime Speaker Series Present: Sales Taxes and Electronic Commerce: Not Quite Out of the Swamp with Charles E. McLure, Jr. Senior Fellow Hoover Institution Stanford University Monday October 18, 2004 12:30 - 1:30 p.m. Room 180 Free and Open to all! Lunch Served Mr. McClure's presentation will address the following issues/questions: How would a rational sales tax be structured? How would electronic commerce be taxed in a rational system? How do state sales taxes depart from the rational model? How is electronic commerce taxed? How could sales taxes be rationalized? What would this imply for taxation of electronic commerce? What about arguments that electronic commerce should be exempt? What has happened over the past few years? NTA Project Advisory Commission on Electronic Commerce Simplified Sales Tax Project (SSTP) How much simplification would the SSTP produce? What complexity would remain? How is the European Union handling these issues? About the Speaker Charles E. McLure, Jr. is a Senior Fellow at the Hoover Institution at Stanford University. Prior to joining the Hoover Institution he was Vice President of the National Bureau of Economic Research (1977-81) and Cline Professor of economics at Rice University (1965-77). As Deputy Assistant Secretary of the Treasury for Tax Analysis from 1983 to 1985, McLure was responsible for developing the Treasury Department's proposals to President Ronald Reagan that became the basis of the Tax Reform Act of 1986, the most comprehensive reform of the income tax since its introduction in 1913. He was also Staff Director of the Working Group on Worldwide Unitary Taxation appointed by Treasury Secretary Donald Regan at Reagan's request. He received the Treasury Department's Exceptional Service Award in 1985. A specialist in the economics of taxation, McLure has written extensively on federal tax reform, intergovernmental fiscal relations, the value added tax and other forms of consumption-based taxation, relief from double taxation of corporate dividends, state corporate income taxes, taxation of natural resources, and taxation in developing countries. His current research focuses on taxation of electronic commerce and tax competition. McLure has served as a Senior Economist on the staff of the President's Council of Economic Advisers, as a consultant to various agencies of the U.S. government, and an adviser to several international organizations, including the World Bank, the United Nations, the International Monetary Fund, and the InterAmerican Development Bank. The countries where he has been an adviser include Argentina, Bolivia, Brazil, Bulgaria, Canada, Chile, Colombia, Egypt, Guatemala, Indonesia, Jamaica, Kazakhstan, Kenya, Malawi, Malaysia, Mexico, New Zealand, Panama, Russia, South Africa, Trinidad and Tobago, Turkey, Ukraine, and Venezuela. He was recently a member of the OECD's Technical Advisory Group on taxation of Business Profits. Books McLure has written include: Fiscal Transition in Kazakhstan (with Jorge Martinez and Sally Wallace, 1999); The Taxation of Income from Business and Capital in Colombia (co-authored, 1990); The Value Added Tax: Key to Deficit Reduction (1987); Economic Perspectives on State Taxation of Multijurisdictional Corporations (1986); and Must Corporate Income Be Taxed Twice? (1979). McLure has edited: State Corporation Income Tax: Issues in Worldwide Unitary Taxation, Fiscal Federalism and the Taxation of Natural Resources (with Peter Mieszkowski) Tax Assignment in Federal Countries, and World Tax Reform (with Michael Boskin) McLure has also published numerous articles in economic journals and law reviews. A native of Van Horn, Texas, McLure resides with his wife Patsy in Los Altos, California. He degrees in economics from the University of Kansas (B.A., 1962) and Princeton (M.A., 1964; Ph.D., 1966). more: http://cyberlaw.stanford.edu/events/archives/charles_mclure.shtml


 
The Boston Globe on the Left Critique of Judicial Review In the Boston Globe, Drake Bennett has a story entitled A really restrained judiciary: Attacking judicial activism isn't just for conservatives anymore. Here is a taste:
    [T]hese days, judicial restraint itself is hardly a radical -- or indeed a conservative -- idea. Many of the scholars today who argue that the Supreme Court's wings should be clipped are unapologetic liberals like Yale Law School's Bruce Ackerman and Akhil Reed Amar and the University of Virginia's Michael Klarman. Few would find much to praise in Scalia's reading of the Constitution or many of the decisions he draws from it, but they all share his stated mistrust of the court's power and reach. They believe, as Stanford Law School dean Larry Kramer has written, that "The Founding generation understood, in a way our generation seems to have forgotten, that judicial review must be contained or we lose the essence of self-government." What is radical, though, is the position a few of these jurists have taken: challenging the idea of judicial review itself.


 
Monday Calendar
    Lewis & Clark Law School: Kimberly Krawiec (UNC School of Law, visiting Georgetown), Common Law Disclosure Duties and the Sin of Omission: Testing the “Meta-theories”
    Hofstra, School of Law: Denise Morgan, New York Law School, “The New Parity Debate: Congress and Rights of Belonging”
    Oxford Centre for Socio-Legal Studies: Barbara Harris-White, Socio-Legal Approaches to Law and Development: De and Re- Regulating Business in Rural W. Bengal: Capitalism under the Left Front.
    UCLA School of Law: Eve Darian Smith, UC Santa Barbara – Anthropology, "Great White Hunter: Schwarzenegger & California's Laws and Politics on Indian Gaming"


 
Call for Papers: Sources of Slavery
    CALL FOR PAPERS Colloquium: Sources of Slavery 19th-20th November 2004 at Tieteiden talo, Helsinki, Finland Organisers: Finnish UNESCO ASPnet and University of Helsinki Department of Ethics and Social Philosophy in cooperation with the organisers of Unesco's Philosophy Day, the international philosophy teachers' association AIIPh Baltic Sea Net, The Finnish Association for Teachers of Philosophy and Philosophy of Life, and Societas Philosophica Fennica. The colloquium is part of Unesco's International Philosophy Day in Finland and United Nation's International Year to Commemorate the Struggle against Slavery and its Abolition. The keynote speaker of the colloquium is Professor Timo Airaksinen. In the program there will be ten minutes for presentation of each paper and time for discussion thereafter. Abstracts should be sent to emilia.lehtinen@oph.fi by 8th November. The colloquium is open for public, but for organisational reasons, the participants are asked to inform the organisers of their participation by 8th November by e-mail: emilia.lehtinen@oph.fi Preliminary program of the colloquium Friday 19th November 13.30 Opening of the colloquium and prize giving ceremony for the Philosophical Essay Event Presentation of the essays by the students 14.15 Juha Savolainen: A Definition of Slavery Eero Salmenkivi: A Slave as a Hero in Plato's Meno 15.15 Timo Airaksinen: Philosophy and / or Philosophers of Slavery Discussion 16.30 Coffee break 17.00 Paper presentations 18.30 End of the first day 19.30 I.Kant -billiard tournament Saturday 20th November 10.15 Leo Luks: Slavery of Technology in Our Time 10.45 Miika Kabata: Wage Slavery 11.15 12.00 Coffee 12.30 Approaching Slavery in Education / Teaching International Philosophy Olympiads, AIPPh 14.00 Closing


 
Conference Announcement: Particularism at Bled
    An invitation to the conference on Particularism at the lake Bled, Slovenia, EU, June 13th-17th, 2005. Jonathan Dancy, the main proponent of moral particularism, has confirmed his participation at the conference. So a symposium on his work, including his just published book Ethics Without Principles (Oxford University Press, 2004) is one obvious topics; review of particularist criticism and the promise of positive particularism are another. An additional aim of this conference is assessing the prospect of extending particularist approach to other areas, such as aesthetics, epistemology and even metaphysics. The conference is organized by a team consisting of Matjaz Potrc of the University of Ljubljana, Nenad Miscevic of the University of Maribor, Danilo Suster of the University of Maribor and Mylan Engel of the Northern Illinois University. The conference is officially included in the program of the activities of the Slovenian Society for Analytic Philosophy. A special issue of Acta Analytica will publish (selected) papers from the conference. All events take place in Hotel Kompas, Cankarjeva 2, Bled, Slovenia. Those interested to participate should send the title of their contribution with a longer abstract (1000-1500 words) till November 1st, 2004. They will receive the notice of acceptance by December 1st, 2004. contact: vojko.strahovnik@kiss.si, matjaz.potrc@guest.arnes.si Further details may be found at the conference web page: http://www.daf-drustvo.si/bled.html Bled conferences do not possess any financial means. Participants should obtain the funding for their visit from their institutions. However there are inexpensive means to obtain lodging at Bled and to reach Slovenia or its surrounding by Ryanair, EasyJet and by similar companies. For more information about this, please consult Bled and Slovenia tourist information. Some general background information on Bled conferences Philosophical conferences at Bled (Slovenia) were initiated, on the suggestion by John Biro, as a continuation of the IUC - Dubrovnik postgraduate course in philosophy (Epistemology and Cognitive Science). But they gradually started a life of their own, with the help of Eugene Mills. 164 active participants have so far taken part in the conferences. The first conference, in the summer of 1993, was focused on Connectionism and Philosophy of Mind. It was followed by conferences on Ethics and Political Philosophy (1994), Metaphysics (1995), Truth (1996), Modality (1997), Vagueness (1998), Epistemology (1999), Philosophical Analysis (2000), Metaphysics (2001), Rationality (2002), Ethics (2003) and Contextualism (2004). Particularism is the title and topic of the 2005 Bled conference. The lake Bled, Slovenia, is a beautiful Alpine resort, with possibilities of hiking, swimming, rowing, spa, golf and others. The accessibility: you fly to Ljubljana Brnik airport, or you drive from Austria or Italy. More information at Bled and Slovenia tourist information.


Sunday, October 17, 2004
 
Legal Theory Calendar
    Monday, October 18
      Lewis & Clark Law School: Kimberly Krawiec (UNC School of Law, visiting Georgetown), Common Law Disclosure Duties and the Sin of Omission: Testing the “Meta-theories”
      Hofstra, School of Law: Denise Morgan, New York Law School, “The New Parity Debate: Congress and Rights of Belonging”
      Oxford Centre for Socio-Legal Studies: Barbara Harris-White, Socio-Legal Approaches to Law and Development: De and Re- Regulating Business in Rural W. Bengal: Capitalism under the Left Front.
      UCLA School of Law: Eve Darian Smith, UC Santa Barbara – Anthropology, "Great White Hunter: Schwarzenegger & California's Laws and Politics on Indian Gaming"
    Tuesday, October 19 Wednesday, October 20
      Loyola Marymount, Loyola Law School: Marcy Peek, Assistant Professor of Law, Whittier Law School, “Beyond Contract: Utilizing Restitution to Reach Shadow Offenders & Safeguard Information Privacy”
      Oxford Centre for Criminology: Kathleen Daly, Restorative Justice and Sexual Assault.
      NYU Legal History: Maribel Morey, NYU Law School.
    Thursday, October 21
      Boston University, School of Law: Mike Meurer.
      Oxford Public International Law Discussion Group: Chris Sidoti, The Implementation of International Human Rights Standards.
      Oxford Financial Law Discussion Group: Colin Mayer, The Evolution of Law and Finance in Germany and the UK.
      Organised by: Thursday 21 October 2004 at 12:00 – 2pm Speaker: Prof
    Friday, October 22


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

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


Saturday, October 16, 2004
 
Legal Theory Bookworm This week, I am recommending some state of the art metaethics, Ethics and the A Priori : Selected Essays on Moral Psychology and Meta-Ethics by Michael Smith. (Cambirdge University Press page is here.) Here's a blurb:
    Over the last fifteen years, Michael Smith has written a series of seminal essays about the nature of belief and desire, the status of normative judgment, and the relevance of the views we take on both these topics to the accounts we give of our nature as free and responsible agents. This long awaited collection comprises some of the most influential of Smith's essays. Among the topics covered are: the Humean theory of motivating reasons, the nature of normative reasons, Williams and Korsgaard on internal and external reasons, the nature of self-control, weakness of will, compulsion, freedom, responsibility, the analysis of our rational capacities, moral realism, the dispositional theory of value, the supervenience of the normative on the non-normative, the error theory, rationalist treatments of moral judgment, the practicality requirement on moral judgment and non-cognivist. This collection will be of interest to students in philosophy and psychology.
Highly recommended!


 
Download of the Week The Download of the Week is Lochner's Legacy for Modern Federalism: Pierce County v. Guillen as a Case Study by Lynn Baker of the University of Texas. Here is a taste:
    Pierce County v. Guillen was perhaps the least eagerly awaited1 and least noticed of the Rehnquist Court’s federalism decisions.2 In Guillen, a unanimous Court in January 2003 upheld on Commerce Clause grounds a federal law that protects information “compiled or collected” by states and localities in connection with various federal highway safety programs from being discovered or admitted into evidence in state or federal trials.3 At one level, the lack of interest in the case was not surprising. Unlike the highprofile federalism cases of the past decade, Guillen did not involve a statute regulating violence against women,4 guns,5 religious freedom,6 or the treatment of the disabled. Instead, it concerned a complex and little-known statute on a topic of little interest to the public or most interest groups. It arrived at the Court not from the lower federal courts, but from the Washington Supreme Court. And the U.S. Supreme Court disposed of the case in a mere fifteen-page, unanimous opinion, released ten short weeks after oral argument in the case. Notwithstanding the Court’s own apparent assessment that Guillen was “a modest little case with much to be modest about,” Guillen may in fact be one of the most significant and potentially revealing of the Rehnquist Court’s federalism decisions. Guillen was the first case in which any court had struck down a federal statute as exceeding Congress’s spending power under the doctrine set forth in South Dakota v. Dole. The case therefore offered the U.S. Supreme Court -- or, at least the “States Rights’ Five” – an opportunity that it will not likely soon again have to significantly narrow the one remaining, and potentially eviscerative, “loophole” that existing spending doctrine provides to the Rehnquist Court’s important project of restoring a meaningful balance between the state and federal spheres.
Download it while its hot!


Friday, October 15, 2004
 
Law on Ideology & Publication Decisions David S. Law (University of San Diego School of Law) has posted Strategic Judicial Lawmaking: An Empirical Investigation of Ideology and Publication on the U.S. Court of Appeals for the Ninth Circuit (University of Cincinnati Law Review, Vol. 73, June 2005) on SSRN. Here is the abstract:
    Previous studies have demonstrated that, in a number of contexts, federal appeals court judges divide along ideological lines when deciding cases upon the merits. To date, however, researchers have failed to find evidence that circuit judges take advantage of selective publication rules to further their ideological preferences - for example, by voting more ideologically in published cases that have precedential effect than in unpublished cases that lack binding effect upon future panels. This article evaluates the possibility that judges engage in strategic judicial lawmaking by voting more ideologically in published cases than in unpublished cases. To test this hypothesis, all asylum cases decided by the Ninth Circuit over a ten-year period were coded for analysis, and Markov Chain-Monte Carlo methods were used to estimate the extent to which publication increased the likelihood that each judge in the data set would vote in favor of asylum. A number of Democratic appointees proved significantly more likely to vote in favor of asylum in published cases. No such pattern emerged with respect to Republican appointees. This study also confirms earlier findings that Democratic and Republican appointees divide along ideological lines to a significant extent in both published and unpublished cases. The extent of the ideological voting behavior observed in unpublished cases calls into question the validity of much research on judicial behavior, insofar as such research continues to rely exclusively upon the analysis of published opinions and ignores unpublished opinions for reasons of convenience.


 
Scheffler on the Value of Equality Samuel Scheffler has uploaded Choice, Circumstance, and the Value of Equality. Here is a taste:
    In this article, I will distinguish between two different roles that the principle of responsibility may be asked to play in egalitarian arguments. The first role is more limited and defensive. The second is more ambitious and affirmative. I will argue that, although the principle can legitimately play the first role, it cannot play the second. Yet it is the second role that is central to the project of developing a responsibility-based conception of egalitarian justice. If my arguments are correct, that project is misconceived. The attempt to develop a responsibility-based conception of justice should not be the focus of egalitarian political philosophy.


 
Friday Calendar


Thursday, October 14, 2004
 
Bascuas on Material Witness Detentions Ricardo J. Bascuas (University of Miami - School of Law) has posted The Unconstitutionality of 'Hold Until Cleared': Reexamining Material Witness Detentions in the Wake of the September 11th Dragnet (Vanderbilt Law Review, April 2005). Here is the abstract:
    Since the terrorist attacks of September 11, 2001, federal agents and prosecutors have sought and obtained the detention of dozens of individuals as so-called material witnesses. Though charged with no crime, these people have been subjected to long and oppressive incarcerations. Nearly all have been released after the government was satisfied they had no terrorist ties. Despite the outrage that the government's tactic has inspired, legal commentators and the federal courts have uniformly but mistakenly presumed that the constitutionality of detaining witnesses has long been established. Laboring under the misapprehension that the incarceration of witnesses has long been held constitutional, commentators have been constrained merely to echo the mainstream media's complaint that DOJ is abusing the material witness statute. This Article explores the root of the fallacy that incarcerating material witnesses has been deemed constitutional since the 18th century. Much of the blame for this is attributable to United States v. Bacon, a 1971 Ninth Circuit case whose precedential force continues to this day to deprive anyone labeled a material witness of the Fourth Amendment's protection. The Article examines the few federal court decisions ruling on the legality of detaining material witnesses in connection with the September 11th investigation and the authorities on which they rely. These cases carelessly misread and misapply Supreme Court decisions that, rather than supporting the incarceration of witnesses, make clear that the practice has never been approved and is at best of dubious constitutionality. Indeed, imprisoning individuals without evidence of their involvement in criminal activity is necessarily unreasonable under the Fourth Amendment.


 
Keren on Gender and the Parole Evidence Rule Hila Keren (University of California, Berkeley - Center for the Study of Law and Society) has posted Textual Harassment: A New Historicist Reappraisal of the Parol Evidence With Gender in Mind (American University Journal of Gender, Social Policy & the Law, Vol. 13, No. 2, 2004) on SSRN. Here is the abstract:
    This year marks the four hundredth anniversary of the Parol Evidence Rule, the rule that dictates that the interpretation of a written contract should be determined solely according to its text and not influenced by prior contradictory external information. This article uses the occasion to offer a fresh interdisciplinary view of the Rule. The analysis presents a unique contribution to the heated debate regarding the desired levels of formalism and textualism in present-day contract law, by using New-Historicist tools. Unexplored aspects of the roots of the Rule are illuminated through an in-depth investigation of the first case of the contractual Parol Evidence Rule, the Countess of Rutland's Case (1604). To examine this Case, the article suggests the use of Legal New Historicism - researching both human and non-human actors who played a role in this Case, and re-narrating the story of Isabel, the Countess of Rutland. This method reveals, for example, rare maps and romantic stories which lead to a critical look at the Rule's total exclusion of context and helps to expose its gendered nature. The article further presents a close reading of the most influential paragraph in Sir Edward Coke's report of the Case. Coke's words and phrasing, it is proposed, should not be read as incidental choice of language, but rather as carefully planned and, as such, reflective of the dominant values of the legal culture within which they were written. It is further argued that the choice to exclude the context is far from a mere omission. De facto it can be seen as actively creating and then taking into account a manufactured context - one that does not exist and is deeply patriarchal. An exploration of the political and cultural contexts of Coke's report explains the possible motives for establishing the Rule and phrasing it in such manner. It is argued that the Case played an active role in Coke's efforts to strengthen the diminishing status of the Common Law, in the face of increasing threats, as a component of a marketing project aimed at improving the Common Law's image without significantly changing its content. Along the way the first Case is paired with an almost-twin contemporary case, which resulted from a Hollywood scandal, Clark v. Hannah-Clark (2003). Based upon the juxtaposition of this new legal narrative of Nicolette (Hannah-Clark) with the older story of Isabel (the Countess of Rutland), it is concluded that the flaws and biases underlying the Rule remain acute and call for a serious reconsideration of its justification. In this way the article offers an original and, hopefully, useful argument against excessive formalist textualism in present-day contract law.


 
Neta on Peacocke on Reason Over at Notre Dame Philosophical Reviews, Ram Neta has a Review of Christopher Peacocke's The Realm of Reason. Here is a taste:
    In this book, Peacocke attempts to provide a philosophical foundation for the enterprise of discovering the correct epistemological norms. He assumes that the enterprise is viable – that is, he assumes that there are discoverable norms that determine, for any given propositional content p, the conditions under which someone is entitled to p. He seems also to assume that some such principles have already been discovered, at least to some approximation. The aim of his book is not primarily to discover more such principles, but rather to explain the truth of the principles that have already (at least to some approximation) been discovered, and to propose a plan for explaining the truth of whatever further principles will eventually be discovered. Peacocke is not primarily interested in stating the correct function from propositional contents to conditions of entitlement; rather, he’s interested in explaining what makes it the case that a particular function is the correct one. This is the question to which rationalism constitutes one possible answer.


 
Sedgwick on Pippin on Hegel Over at Notre Dame Philosophical Reviews, Sally Sedgwick has a Review of Robert B. Pippin's Hegel on Ethics and Politics Here is a taste:
    This volume collects under a single cover eleven post-war essays by German philosophers on Hegel’s social and political philosophy. With the exception of the contribution of Friedrich Fulda, which is a much-shortened version of his 1963 monograph, each of the essays has been previously published. Nicolas Walker has produced the translations for this volume. The collection is published as part of the Cambridge University Press series “The German Philosophical Tradition.” A blurb on the front piece announces that the aim of the series is to make available to the Anglo-American philosophical community “important recent work by German philosophers on major figures in the German philosophical tradition.” The editors have selected essays of top quality, some of which have had considerable impact on Hegel studies in Germany. They are, in general, quite technical – not suitable either for a general audience or for beginners in the subject. Some of the papers (by Fulda and Henrich, for instance) are pretty dense and heavy (dare I say “Germanic”?). But even those that try the reader’s patience are well worth careful study. I admit to being daunted by the task of trying to convey in so few words the interest of each of these essays. All I can do here is indicate something of their content and occasionally draw attention to strengths and weaknesses.


 
Feser on Nozick Edward Feser has a new paper entitled On Nozick. Here is a description of the paper from the Independent Review:
    On Nozick, Edward Feser’s excellent new primer on Anarchy, State, and Utopia (1974), puts Nozick’s classic of political philosophy in historical perspective and relates it to other libertarian rights theories. Although it glosses over several nuances of Nozick’s theory and occasionally fails to state when a point is Feser’s own, these imperfections pale before the book’s virtues—its accuracy, insightfulness, and uncommonly sympathetic (but not uncritical) enthusiasm for Nozick’s enterprise.


 
Thursday Calendar
    University of San Diego, School of Law: Shaun Martin & Frank Partnoy, Encumbered Shares.
    Stanford Law & Economics: Allen Ferrell (Harvard Law School), “Mandated Disclosure and Stock Returns: Evidence from the Over-the-Counter Market
    University of Michigan, Law & Economics: John de Figueiredo, MIT & Princeton Paying for Politics.
    Boston University, School of Law: Jill Fisch (Fordham), "Cause for Concern: Loss Causation and the Analyst Scandal."
    Florida State University, School of Law: Benjamin Zipursky, Fordham University Law School. Topic: "BMW v. Gore: In praise of a New Chestnut."


 
Two by Hurley Two new papers by Susan Hurley:
    Bypassing Conscious Control: Media Violence, Imitation, and Freedom of Speech (Forthcoming in Does Consciousness Cause Behavior? An Investigation of the Nature of Volition, ed. S. Pockett, W. Banks, and S. Gallagher, MIT Press). Here is a taste from near the start:
      Why does it matter whether and how individuals consciously control their behavior? It matters for many reasons. Here I focus on concerns about social influences of which agents are typically unaware on aggressive behavior. First, I survey research about the influence of viewing media violence on aggressive behavior. The consensus among researchers is that there is indeed a robust causal influence here. Second, I explain why, in the context of work in cognitive science and neuroscience on imitation, this influence is not surprising. Indeed, it would have been surprising if aggressive behavior had been immune from general imitative influences. Imitation is a topic of intense contemporary scientific interest and of great importance for understanding what is distinctive about human minds. Recent advances in understanding imitation and related processes shed light on the mechanisms and functions that may underlie the influence of media violence on aggressive behavior. Human beings have a tendency to imitate and assimilate observed or represented behavior, which operates at various levels and is often automatic and unconscious. Automatic imitative influences of which individuals are unaware can compromise their autonomy. Third, I consider how this bears on the liberal principle of freedom of speech. This principle goes beyond the general liberal principle of freedom of action so long as action does not harm others; speech is given additional, special protection from interference, even when it does harm others. Why? Answers often invoke autonomy. In particular, speech is often assumed to engage autonomous deliberative processes in hearers by which they consciously control their responses to speech. Social influences that bypass autonomy are implicitly assumed to be negligible. But what if they aren’t? Empirical work on imitation is relevant to both the likely effects of speech and to the character of the processes by which its effects are brought about.
    Choice and Incentive Inequality (forthcoming in Festschrift for Gerald Cohen, ed. Christine Sypnowich, forthcoming OUP 2005). Here is a morsel from near the end:
      In my view, the choice exemption is not the right way to give responsibility a role in justice. That is, we should not use responsible choice as a way of answering the question of what goods distributive justice is concerned with the distribution of. Moreover, I think it is only when we set aside the choice exemption that we can get issues about the relationships among choice, incentives and inequality into clear focus. However, responsibility still has important roles to play in justice, in the absence of a choice exemption. In particular, responsibility for results, or lack thereof, generates expectations that psychologically and evaluatively more basic than conclusions about desert or entitlement. Such expectations function among other things as parameters on possible collective levels of incentive seeking against which a maximin principle of justice operates (JLK, ch. 8, 9, 10). I am often asked to give a simple statement of my own positive views, so I will take the opportunity to do so here somewhat gratuitously, by way of conclusion. On the ‘what’ question, my own view is a form of perfectionism. Justice is concerned with a list of objective goods, including health and education, and including also autonomy, which presupposes responsibility (although responsibility is not sufficient for autonomy). Since autonomy has central role as a good (in the way I explain in Natural Reasons, ch. 15), my perfectionism is a liberal perfectionism. On the ‘how’ question: I have given an argument for a maximin principle, and speculated about the close formal relationships between priority and sufficiency principles (JLK, ch. 10). My preferred position lies in the space between priority and sufficiency views.


 
Conference Announcement: Virtue Epistemology
    Virtue Epistemology Stirling Management Centre University of Stirling 19th-21st November, 2004 *Provisional Programme Now Available on Conference Webpage* 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: www.philosophy.stir.ac.uk/events/VirtueConfHome.html This event is generously sponsored by The Philosophical Quarterly. The proceedings of the invited papers at 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: www.philosophy.stir.ac.uk/events/SPCFellows.html 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: www.philosophy.stir.ac.uk/deparment/KM&VProject.htm Main Speakers & Commentators Guy Axtell (Nevada) 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) There will also be Open Sessions, featuring papers by such figures as Wayne Riggs (Oklahoma), Tim Chappell (Dundee), Ward Jones (Rhodes, South Africa), Mark Nelson (Leeds), Bob Lockie (Luton), and Stephen Grimm (Notre Dame). Furthermore, we have a number of invited chairs in attendance, including Lars-Bo Gundersen (Aarhus, Denmark), Jessica Brown (Bristol), Patrick Greenough (St. Andrews), Peter Baumann (Aberdeen), Martijn Blaauw (Aarhus, Denmark), and Finn Spicer (Bristol). 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 Saturday 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 dinner. 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 that is open to all, whether registered for the conference or not - for more details see the conference webpage). This will cost £25 per head, which includes wine and transportation costs between the Philosophy Department and the restaurant. For further information about the conference, including details about how to register, go to: www.philosophy.stir.ac.uk/events/VirtueConfHome.html Alternatively, you can contact either of the conference organisers, Dr. Michael Brady (m.s.brady@stir.ac.uk) and Dr. Duncan Pritchard (d.h.pritchard@stir.ac.uk).


Wednesday, October 13, 2004
 
Wenger on Causation & Reparations Kaimipono Wenger (Cravath, Swaine & Moore LLP) has posted Causation and Attenuation in the Slavery Reparations Debate on SSRN. Here is the abstract:
    Recent cases and media comments illustrate the difficulty reparations advocates have in showing causation. Criticisms of reparations have focused on the attenuated nature of the harm, suggesting that modern claimants are not connected to slaves, that modern payers are not connected to slave owners, and that modern disadvantages cannot be connected to slavery. This Article examines attenuation concerns and finds that they come in three related but distinct varieties: Victim attenuation, wrongdoer attenuation, and act attenuation. These three components, defined in this Article, show themselves in a number of interrelated legal and moral arguments. They have important strategic consequences, and operate together to create a formidable obstacle for reparations. This Article then discusses how ideas on causation from the mass tort context can address legal problems of attenuation in reparations. Mass tort cases have developed novel methods of showing causation, such as statistical evidence, and these tools can be used in the reparations context. By using the tools of mass torts, it is possible for reparations advocates to show causation.


 
Kersch on the Globalized Judicary Kenneth Kersch (Princeton University - Department of Politics) has posted The Globalized Judiciary and the Rule of Law (The Good Society, Fall 2004) on SSRN. Here is the abstract:
    This paper argues, that, while not new in the strictest sense, the contemporary transnational turn in American law reflected in the U.S. Supreme Court's citation to foreign agreements, practices, and opinions in its recent affirmative action cases is distinctive in being part of a broad-ranging, highly politicized, reformist, intellectual movement. That movement, which is defined by its diverse commitments to a particular form of universal morality and foreign policy integration, in a turn that is novel, is currently striving to alter the domestic policies and constitutional understanding of the United States through the construction of a transnational, professionalized, global judiciary. The efforts to reform domestic policy through the construction of a quasi-autonomous, globalized judiciary, I contend, raises series rule of law problems within an American constitutional tradition premised on a theory of popular sovereignty. World events and popular constitutional resistance, however, may ultimately halt this trend.


 
Meyer on Emotion in Justice Judgments Christopher Meyer (Michigan State University - The Eli Broad College of Business and The Eli Broad Graduate School of Management) has posted On the Operation of Emotion in Justice Judgments: There's More Than Unfairness to Injustice on SSRN. Here is the abstract:
    The concept of justice has been an important one for some time in the literature. The idea that fairness and unfairness drives behavior is widely held and accepted in the field. I proposed that a two-factor view of justice will mediate the relationship between an emotion and a behavior. This view contends that the emotion is the proximal outcome of an event and that the perception of justice hinges on this emotion.


 
Taipale on Security, Privacy, and Technology K. A. Taipale (Center for Advanced Studies in Science and Technology Policy) has posted Technology, Security and Privacy: The Fear of Frankenstein, the Myth of Privacy and the Lessons of King Ludd (Yale Journal of Law and Technology, Vol. 7, December 2004) on SSRN. Here is the abstract:
    This article suggests that the current public debate that pits security and privacy as dichotomous rivals to be traded one for another in a zero-sum game is based on a general misunderstanding and apprehension of technology on the one hand and a mythology of privacy that conflates secrecy with autonomy on the other. Further, political strategies premised on outlawing particular technologies or techniques or seeking to constrain technology through laws alone are second-best - and ultimately futile - strategies that will result in little security and brittle privacy protection. This article argues that civil liberties can best be protected by employing value sensitive technology development strategies in conjunction with policy implementations, not by opposing technological developments or seeking to control the use of particular technologies or techniques after the fact through law alone. This paper examines technologies of identification, data aggregation and analysis (including data mining), and collection currently being considered for use in the context of domestic security and argues that value sensitive development strategies that take privacy concerns into account during design and development can build in technical features - including rule-based processing, selective revelation, and strong credential and audit - that can enable existing legal control mechanisms and related procedures for the protection of civil liberties and due process to function.


 
Wednesday Calendar
    Cardozo Law School: Brian Leiter, Texas (law/phil), The Hermeneutics of Suspicion: Recovering Marx, Nietzsche and Freud.
    NYU Legal History: Jed Shugerman, NYU Golieb Fellow.
    Northwestern Law & Economics: Laura Beny, University of Michigan, "Do Insider Trading Laws Matter?"
    Oxford Public International Law Discussion Group: Vaughan Lowe, The Advisory Opinion of the International Court of Justice on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory.


Tuesday, October 12, 2004
 
Jacobson on Spinoza on Authority Arthur J. Jacobson (Cardozo Law School) has posted Law Without Authority: Sources of the Welfare State in Spinoza's Tractatus Theologico-Politicus (Cardozo Law Review) on SSRN. Here is the abstract:
    In his Tractatus Theologico-Politicus (1670), Spinoza mounts an attack on authority in all its forms, including the authority of law and the state. Because authority in all its forms is a product of the imagination, obligation can never be justified. The subjects of Spinoza's commonwealth have no duties, only rights. Spinoza replaces the authority of the commonwealth with the welfare of subjects as the sign and the source of the commonwealth's flourishing. Spinoza was thus the first to propose that the only way for commonwealths to maintain the illusion of authority is by attending to the welfare of their citizens.


 
Tuesday Calendar
    Vanderbilt Law School: John Goldberg, "The Constitutional Status of Tort Law."
    University of Texas, School of Law: Chantal Thomas, "On Constitutional Democracy and Globalization, with Special Attention to International Trade Agreements."
    UCLA Civil Justice Workshop: Michele Landis Dauber, Stanford Law School, "The War of 1812, September 11th, and the Politics of Compensation."


 
Call for Papers: The Joint Session
    CALL FOR PAPERS 2005 JOINT SESSION OF THE MIND ASSOCIATION AND THE ARISTOTELIAN SOCIETY UNIVERSITY OF MANCHESTER, 8-11 JULY INVITED SPEAKERS Inaugural Address - Simon Blackburn Symposia: Alan Richardson and Thomas Uebel Derek Matravers and Jerrold Levinson Samuel Scheffler and Véronique Munoz-Dardé Stewart Shapiro and Patrick Greenough Jennifer Hornsby and Jason Stanley Marilyn Adams and Richard Cross OPEN SESSIONS A number of parallel sessions on Saturday and Sunday afternoons will be available for the presentation of papers not previously published. There will be a considerable number of these sessions available, allowing room for many submissions to be included. The intention is to accommodate as many papers as time and space in the programme will allow. Each presentation should last no more than 20 minutes, so that a further 10-15 minutes may be allowed for discussion. Presented papers should aim to introduce material involving recent research. There are no restrictions on the areas of philosophy which papers may address. Philosophers whose papers are included in this part of the programme must be or become subscribing members of one of the organising societies. Those wishing to make a presentation should submit by e-mail attachment a copy of their paper (no more than 2000 words), together with a 250-word abstract, to Dr. Anthony Hatzimoysis (Anthony.Hatzimoysis@man.ac.uk) by 1st March 2005. Decisions on whether papers have been accepted will be made by the end of April 2005. Papers accepted for the Open Sessions will not be published in the Supplementary Volume of the Aristotelian Society (unlike papers invited for the plenary programme of the conference); and expenses will not be paid. POSTGRADUATE SESSIONS Two parallel sessions on the Saturday afternoon will be devoted to short presentations by graduate students (or those who have recently obtained a postgraduate degree). Each student should speak for 20 minutes, allowing 10 minutes for discussion. Students wishing to participate should send their paper, preferably by attachment in Word 95 or higher, otherwise in two hard copies, by 1st March 2005 to: Mr. A. W. Price, Department of Philosophy, Birkbeck College, Malet Street, London, WC1E 7HX. Email: a.price@bbk.ac.uk The paper should be about 2000 words but no more than 2500 words, including notes and bibliography, and should begin with a brief abstract. It should be typewritten in 12-point text, single-spaced throughout (i.e. including references and quotations), on one side of white A4 paper. All pages should be numbered and have margins of 1 inch or more. Papers containing symbols liable to distortion in transmission should be submitted as hard copies; otherwise soft copy is welcome. Please ensure that there are no self-identifying references in the text. Submissions should be accompanied by a separate page containing the title of the paper, the name of the author, institution and status, and email and postal addresses. Authors are advised to consult supervisors about what may be suitable for presentation to a largely professional audience. Given the tight word-limit, they are advised to give as much space as they can to the statement of their own ideas. The papers will be sent to referees, and a maximum of eight will be selected by the Joint Committee for presentation at the Joint Session. The programme will be settled in May 2005. The selected authors will have their conference fee and accommodation expenses (but not their travel costs) paid by the Mind Association and the Aristotelian Society. Some papers may subsequently be considered for publication in the Proceedings of the Aristotelian Society. Nobody should submit a paper for both the Postgraduate and the Open Sessions, and only one paper may be submitted per individual. However, graduate students whose submission for the Postgraduate Sessions is unsuccessful may subsequently be advised that their paper has been accepted for the Open Sessions. Conference costs, however, will not be paid by the organisers. Georgia Testa Executive Secretary The Aristotelian Society Room 260 Senate House Malet Street London WC1E 7HU


Monday, October 11, 2004
 
Three by Pettit Philip Pettit (Princeton, Politics) has three new papers up on SSRN:
    The Way Philosophy Matters to Politics
      The paper sets out a conception of philosophy as critical reflection on received opinion; looks at different conceptions of human agents and relationships, different views of social formations like the people and the state, and conflicting stories about the connection between the good and the right; and considers the implications of those rival views for politics.
    Rawl's Political Ontology
      The background thesis is that an implicit ontology of the people and the relation between the people and the state often shapes how we think in normative terms about politics. The paper attempts to defend that thesis in relation to Rawls. The argument is that the rejection of an image of the people as a group agent connects with his objection to utilitarianism, and the rejection of an image of the people as a mere aggregate connects with his objection to libertarianism. Rawls, it is argued, holds by an in-between picture and it is this that explains many of his most distinctive commitments.
    Liberty and Leviathan
      Hobbes persuaded later, if not immediate, successors that it is only the exercise of a power of interference that reduces people's freedom, not its (unexercised) existence - not even its existence in an arbitrary, unchecked form. And equally he persuaded them that the exercise of a power of interference always reduces freedom in the same way, whether it occur in a republican democracy, purportedly on a "non-arbitrary" basis, or under an dictatorial, arbitrary regime. But those propositions were defended in Hobbes's case on a very different basis from any that would have appealed to successors. That claim is documented on the basis of a distinction in Hobbes's work between freedom as non-commitment, of which freedom as non-obligation is the principal variety, and freedom as non-obstruction.
Pettit is one of the very best. Highly recommended.


 
Flaherty on Foreign Relations Law Martin S. Flaherty (Fordham Law School) has posted The Future and Past of U.S. Foreign Relations Law (Law and Contemporary Problems, Vol. 67, 2004) on SSRN. Here is the abstract:
    This article looks ahead toward the increasing prominence of foreign relations law issues in U.S. constitutional jurisprudence while also considering recent backward-looking, historicist efforts to provide answers to such issues as they arise. It therefore first reviews recent case law that has resulted in light of globalization and U.S. foreign policy initiatives, including the "war on terrorism." Among these include Hamdi v. Rumsfeld, Sosa v. Alvarez-Machain, and Lawrence v. Texas. It also surveys the often historically-based answers put forward by the so-called "new foreign affairs law" school, which generally argue for a greater emphasis on national sovereignty than the prevailing foreign relations law "orthodoxy" as set for in the Restatement (Third). Next, the article focuses on the historical accounts on which many of these "new" foreign affairs solutions are built, and exposes these as fundamentally inconsistent with the general scholarly narrative of the era as well as with the specific historical sources bearing upon foreign affairs. The underbrush cleared, the article then considers Justice Jackson's effective reliance on evolving constitutional custom in Youngstown as the counterintuitive path along which the history of the Founding points foreign relations to follow.


 
Simon on Rolling Rule Regimes William H. Simon (Stanford Law School) has posted Toyota Jurisprudence: Legal Theory and Rolling Rule Regimes on SSRN. Here is the abstract:
    The engineering ideas associated with the Toyota Production System form a model of social organization that departs from bedrock assumptions of mainstream legal thought in both its rights-and-principles and law-and-economics variants. In contrast to mainstream thought, the Toyota system (1) emphasizes the goals of learning and innovation (rather than of dispute resolution and the vindication of established norms and preferences), (2) combines the normative explicitness associated with formal rules with the continuous adjustment to particularity associated with informal norms (no dialectic of rules and standards), (3) treats normative decisionmaking in hard cases as presumptively collective and interdisciplinary (rather than the heroic labor of a solitary professional), (4) fosters a style of reasoning that is intentionally destabilizing of settled practices (rather than harmonizing or optimizing), and (5) attempts to bracket or sublimate issues of individual and retrospective fairness. The Toyota perspective is potentially important to lawyers because it is an exceptionally elaborated version of ideas that have, with varying degrees of coherence and articulateness, influenced some emergent legal regimes. The paper traces Toyota themes in recent American developments in health and safety regulation and in the delivery of social services.


 
Slobogin on the Civilization of the Criminal Law Christopher Slobogin (University of Florida, Levin College of Law) has posted The Civilization of the Criminal Law (Vanderbilt Law Review, Spring 2005) on SSRN. Here is the abstract:
    This article explores the jurisprudential and practical feasibility of a "preventive" regime of criminal justice. More specifically, it examines an updated version of the type of government intervention espoused four decades ago by thinkers such as Barbara Wooton, Sheldon Glueck, and Karl Menninger. These individuals, the first a criminologist, the latter two mental health professionals, envisioned a system that is triggered by an antisocial act but that pays no attention to desert or even to general deterrence. Rather, the sole goal of the system they proposed is individual prevention through assessments of dangerousness and the provision of treatment designed to reduce it. The ultimate objective of this article is to present a defense of a prevention system as a replacement for - rather than (as with sexual predator statutes)an addition to - our current criminal justice system. Such a defense of a purely preventive regime has been rare in the legal literature since the 1960s, when just deserts philosophy became popular and preventive approaches fell into disrepute. Since then, a number of conceptual and empirical advances have made the issue even more complex. The case for a preventive regime nonetheless deserves serious consideration in the twenty-first century, as an increasing number of jurisdictions adopt harsh determinate sentencing based on desert principles, and in the wake of the American Law Institute's recent announcement that its planned revision of the Model Penal Code will foresake the original Code's focus on reform of prisoners and instead endorse a just deserts approach to sentencing. The first part of the article looks at jurisprudential objections to a prevention regime, which all center on its perceived failure to do "justice." It contends that such a regime would neither slight human dignity nor undermine the general deterrence and character-shaping goals of the criminal law. The second part examines concerns about the feasability of a preventive system, including questions about the accuracy of predictions, the efficacy of treatment, and the costs of a reform-oriented justice system. It concludes that these concerns are overstated, and in any event are less serious than the practical problems that afflict the punishment model. The third part describes one further reason for favoring prevention over traditional punishment: a preventive regime is much better at assimilating the proliferation of scientific findings that call into question humans' ability to control their actions, which is the central premise of a punishment system based on desert. The view taken in this article is exploratory, however. For a number of reasons, legal and sociological, one might be ambivalent about instituting a full-blown preventive regime, at least in the immediate future. Accordingly, the conclusion to the article suggests a transitional compromise, which maintains culpability as the threshold for government intervention, and reserves application of the preventive model for disposition, in what amounts to a modern version of indeterminate sentencing.


 
Ginsburg on Public Availability and Copyright Jane C. Ginsburg (Columbia Law School) has posted The (New?) Right of Making Available to the Public (INTELLECTUAL PROPERTY IN THE NEW MILLENNIUM, ESSAYS IN HONOUR OF WILLIAM R. CORNISH, David Vaver, Lionel Bently, eds., pp. 234-47, Cambridge University Press, 2004) on SSRN. Here is the abstract:
    The Berne Convention 1971 Paris Act covered the right of communication to the public incompletely and imperfectly through a tangle of occasionally redundant or self-contradictory provisions on "public performance;" "communication to the public," "public communication," "broadcasting," and other forms of transmission. Worse, the scope of rights depended on the nature of the work, with musical and dramatic works receiving the broadest protection, and images the least; literary works, especially those adapted into cinematographic works, lying somewhere in between. The 1996 WIPO Copyright Treaty rationalized and synthesized protection by establishing full coverage of the communication right for all protected works of authorship. The WCT also introduced a new designation, the "right of making available to the public." This right corresponds to much communication of works over the Internet, whose users "access these works from a place and at a time individually chosen by them" (WCT art. 8). As the drafters of the WCT (and its companion "Internet treaty" the WIPO Performers' and Phonograms Treaty, arts. 10 and 14) sought to modernize the Berne Convention to address new exploitations by means of new technologies, one might infer that the "right of making available" is something new and different, not previously within the Berne Convention minimum rights protected. If so, then Berne Convention members who have not yet ratified the WCT are not obliged to enforce foreign Berne Union authors' rights of making available (unless that country's own authors enjoy such a right, in which case the principle of national treatment would require extending the same protection to Unionist authors). The WCT has entered into force, but many Berne Member States have yet to ratify the treaty. As a result, the determination whether the "right of making available" is a substantive enlargement of Berne Convention rights, rather than a reaffirmation of the scope of the rights already mandated by Berne, carries practical consequences. Another practical consequence of the characterization of the "making available" right concerns its amenability to compulsory licensing. To the extent the right was comprehended within the Berne Convention art. 11bis broadcasting and retransmissions rights, Member States may subject it to compulsory licensing. Were the right either outside the Berne Convention altogether, or included only within the "communication to the public" rights set out in other articles of the Berne Convention, then Member States must treat the making available right as an exclusive right.


 
Dorf on the oherentist Case for Representation Reinforcement Michael C. Dorf (Columbia Law School) has posted Putting the Democracy in Democracy and Distrust: The Coherentist Case for Representation Reinforcement on SSRN. Here is the abstract:
    Nearly a quarter of a century after its publication, Democracy and Distrust remains the single most perceptive justificatory account of the work of the Warren Court and modern constitutional law more broadly. Yet, the continuing influence of John Hart Ely's process theory of American constitutional law may seem surprising, given that the account has been incisively criticized as both too limited and too sweeping. Beginning with Laurence Tribe's Puzzling Persistence of Process-Based Constitutional Theories and culminating in the work of Ronald Dworkin and others, critics have argued that the representation-reinforcing approach to interpreting the Constitution is no less laden with controversial value judgments than other, more openly substantive methods, and that therefore, judicial review ought not to be restricted in the way that Ely thought it should be. From the other side, those that Ely called interpretivists have invoked (more or less) the same set of arguments as a basis for concluding that the Constitution's open-ended provisions should be given neither substantive nor procedural content apart from what is narrowly entailed by the original understanding of its framers and ratifiers. In light of these mirroring critiques, what accounts for the staying power of Democracy and Distrust? The answer, to which Ely himself points in the opening pages of the book, is the popularity of democracy. We have as a society from the beginning, he writes, and now almost instinctively, accepted the notion that a representative democracy must be our form of government. By making more-or-less-majoritarian democracy the centerpiece of his account of judicial review, Ely trades on this deeply rooted instinct. Throughout Democracy and Distrust, he invokes "the basic democratic theory of our government" as the standard against which an approach to judicial review should be measured.


 
Nolan on Comparative Governmental Liability Donal Nolan (University of Oxford - Faculty of Law) has posted Suing the State: Governmental Liability in Comparative Perspective (Modern Law Review, Vol. 67, No. 5, pp. 844-860, September 2004) on SSRN. No abstract available.


 
Lichtman Blogs on Self Help Doug Lichtman of the University of Chicago's Law School is guest blogging on Crescat Sententia. His posts will be on the topic of self help, and here is an excerpt from Self Help: Getting Started, the first in the series:
    Copyright law is most obviously being reshaped by self-help technologies. At the moment, powerful new tools for content duplication and distribution are challenging the meaning of copyright protection by facilitating massive unauthorized dissemination online. But, tomorrow, advances in encryption technology could easily reverse that trend, empowering authors to control their works to a degree far beyond that which copyright law itself would traditionally recognize. Trademark law similarly sits in the precarious shadow of changing self-help technologies. The most notable examples here are search engines like Google and Yahoo! that today arrogate to themselves what was once the work of the law: namely, matching particular words and symbols to particular sellers and products. Even the First Amendment must continually acknowledge new mechanisms for listener self-help. Twice in the last seven years, the Supreme Court struck down federal Internet indecency statutes on the ground that the government had failed to show that one or another self-help filtering technology was not an equally effective—and hence constitutionally preferred—response.
Don't miss this!


 
Justice Thomas's Jurisprudence The Washington Post has a story on Justice Thomas's jurisprudence. Here is a taste:
    As Thomas sees it, a majority of his colleagues are too often bent on interpreting the laws according to the currents of modern times. Rather than tinkering, Thomas would end affirmative action, allow widespread use of school vouchers and eliminate "majority-minority" election districts in almost every circumstance.


 
Monday Calendar
    Columbia University, Law & Economics: Professor Christine Jolls, Harvard University Law School, "Debiasing Through Law," Co-author Cass R. Sunstein.
    University of Texas, School of Law: Eric Talley, USC Law School, "Corporate Governance, Executive Compensation and Securities Litigation."
    Loyola Marymount University, Loyola Law School: Larry Zelenak , Professor of Law, Duke Law School, "Framing the Distributional Effects of the Bush Tax Cuts."
    New York University, School of Law: Frank Upham, Law and Judges in Chinese Rural Society.
    Oxford Centre for Socio-Legal Studies: Patrick McAuslan, Socio-Legal Approaches to Law and Development: In the Beginning was the Law...An Intellectual Odyssey.
    UCLA School of Law: Steve Oney, Author, “And the Dead Shall Rise: The Murder of Mary Phagan and the Lynching of Leo Frank.”
    UCLA Legal History: Michael Klarman, Virginia, Brown and Lawrence.


Sunday, October 10, 2004
 
Legal Theory Calendar
    Monday, October 11
      Columbia University, Law & Economics: Professor Christine Jolls, Harvard University Law School, "Debiasing Through Law," Co-author Cass R. Sunstein.
      University of Texas, School of Law: Eric Talley, USC Law School, "Corporate Governance, Executive Compensation and Securities Litigation."
      Loyola Marymount University, Loyola Law School: Larry Zelenak , Professor of Law, Duke Law School, "Framing the Distributional Effects of the Bush Tax Cuts."
      New York University, School of Law: Frank Upham, Law and Judges in Chinese Rural Society.
      Oxford Centre for Socio-Legal Studies: Patrick McAuslan, Socio-Legal Approaches to Law and Development: In the Beginning was the Law...An Intellectual Odyssey.
      UCLA School of Law: Steve Oney, Author, “And the Dead Shall Rise: The Murder of Mary Phagan and the Lynching of Leo Frank.”
      UCLA Legal History: Michael Klarman, Virginia, Brown and Lawrence.
    Tuesday, October 12
      Vanderbilt Law School: John Goldberg, "The Constitutional Status of Tort Law."
      University of Texas, School of Law: Chantal Thomas, "On Constitutional Democracy and Globalization, with Special Attention to International Trade Agreements."
      UCLA Civil Justice Workshop: Michele Landis Dauber, Stanford Law School, "The War of 1812, September 11th, and the Politics of Compensation."
    Wednesday,October 13
      Cardozo Law School: Brian Leiter, Texas (law/phil), The Hermeneutics of Suspicion: Recovering Marx, Nietzsche and Freud.
      NYU Legal History: Jed Shugerman, NYU Golieb Fellow.
      Northwestern Law & Economics: Laura Beny, University of Michigan, "Do Insider Trading Laws Matter?"
      Oxford Public International Law Discussion Group: Vaughan Lowe, The Advisory Opinion of the International Court of Justice on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory.
    Thursday, October 14
      University of San Diego, School of Law: Shaun Martin & Frank Partnoy, Encumbered Shares.
      Stanford Law & Economics: Allen Ferrell (Harvard Law School), “Mandated Disclosure and Stock Returns: Evidence from the Over-the-Counter Market
      University of Michigan, Law & Economics: John de Figueiredo, MIT & Princeton Paying for Politics. Boston University, School of Law: Jill Fisch (Fordham), "Cause for Concern: Loss Causation and the Analyst Scandal."
      Florida State University, School of Law: Benjamin Zipursky, Fordham University Law School. Topic: "BMW v. Gore: In praise of a New Chestnut."
    Friday, October 15


 
Jacques Derrida Jacques Derrida, the French philosopher lionized by literary theorists and students of culture, has passed away. I've added a few more links & moved this post to the top of the blog.
Links:


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


Saturday, October 09, 2004
 
Legal Theory Bookworm When I was a law student, Dick Fallon was a brand new member of the Harvard Law School faculty. So it is with special pleasure that I recomment The Dynamic Constitution : An Introduction to American Constitutional Law by by Richard H. Fallon as the choice of the Legal Theory Bookworm. Here is a short description:
    In this book, Harvard law professor Richard H. Fallon introduces non-lawyers to the workings of American Constitutional Law. He writes with clarity and vigor about leading constitutional doctrines and issues, including the freedom of speech, the freedom of religion, the guarantee of equal protection, rights to fair procedures, and rights to privacy and sexual autonomy. Along the way, Fallon describes many of the fascinating cases and personalities that have shaped constitutional law. He shows how historical, cultural, and other factors have influenced constitutional adjudication, making clear the dynamic nature of the Constitution. For both the courts and the American people, Fallon argues, the Constitution must serve as a dynamic document that adapts to the changing conditions inherent in human affairs. Fallon goes on to defend dynamic constitutionalism by confronting head on the concerns that some critics have raised.


 
Download of the Week The Download of the Week is The Original Meaning of the Recess Appointments Clause by Michael Rappaport. Here's the abstract:
    This article addresses the proper interpretation of the Recess Appointments Clause. Under the existing interpretation of the Clause, the President has extremely broad authority to make recess appointments. Indeed, the authority is so vast that in my view the principal constraint on the President's recess appointment power is not a legal limitation, but the negative political backlash that extensive use of the power might provoke. I argue, however, that the original meaning of the Recess Appointment Clause actually confers quite limited power on the President and would not permit most of the recess appointments that are currently made. For example, under my view, President Bush's recess appointments of Charles Pickering and William Pryor would not have been constitutional and a President would have difficulty recess appointing a Supreme Court justice who experiences opposition in the Senate. The language of the Recess Appointments Clause provides that "The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session." My article makes two basic claims about the original meaning of the Clause. First, I argue that the Clause permits recess appointments only when an office becomes vacant during a recess and when the recess appointment is made during that recess. Thus, if an office was vacant while Congress was in session - either because the vacancy arose during a session or a vacancy that arose during a recess continued into the session - the President could not fill that office with a recess appointment. The prevailing interpretation of the Clause, however, permits the President to make recess appointments so long as the recess appointment is made during a recess, whether or not the vacancy existed when Congress was in session. Thus, the President can always make a recess appointment for any office so long as he waits until there is a recess to do so. The second claim in the article involves the original meaning of the term "recess." I argue that the Constitution permits recess appointments only during an intersession recess - the (typically long) recess between the two one-year sessions of a Congress - and does not permit recess appointments during intrasession recesses - the (typically shorter) recesses taken during a session. Under my view, the President would be able to make recess appointments only during the one intersession recess each year. The existing interpretation, however, allows the President to make recess appointments on average seven times a year, including for intrasession recesses as short as 10 days (and perhaps even shorter). Obviously, the existing interpretation provides the President with greater recess appointment authority than does the original meaning.


Friday, October 08, 2004
 
New from Law and Politics Book Reviews
    UNLAWFUL AND UNWELCOME: SEXUAL HARASSMENT IN THE AMERICAN WORKPLACE, by Raymond F. Gregory. Ithaca, NY: Cornell University Press, 2004. 272 pp. Cloth $45.00. ISBN: 0-8014-4250-8. Paper $19.95. ISBN 0-8014-8927-x. Reviewed by Paul Weizer.
    HARD LESSONS: REFLECTIONS ON GOVERNANCE AND CRIME CONTROL IN LATE MODERNITY, by Richard Hil and Gordon Tait (eds). Burlington, VT: Ashgate Publishing Ltd., 2004. 214pp. Cloth £50.00 / $89.95 ISBN: 0-75462216-9. Reviewed by Priscilla H.M. Zotti.
    MAKING POLICY, MAKING LAW: AN INTERBRANCH PERSPECTIVE, by Mark C. Miller and Jeb Barnes (eds). Washington, D.C.: Georgetown University Press, 2004. 256pp. Paper $26.95. ISBN: 1-58901-025-6. Reviewed by Richard A. Brisbin, Jr.
    COLONIAL JUSTICE: JUSTICE, MORALITY AND CRIME IN THE NIAGARA DISTRICT, 1791-1849, by David Murray. Toronto: University of Toronto Press, 2003. 297pp. Cloth CDN$55.00 / US$55.00 / £35.00. ISBN: 0-8020-3749-6. Paper CDN$27.95 / US$27.95 / £18.00. ISBN 0-8020-8688-8. Reviewed by Bradley C. Canon.
    THE DARK SIDES OF VIRTUE: REASSESSING INTERNATIONAL HUMANITARIANISM, by David Kennedy. Princeton: Princeton University Press, 2004. 400pp. Cloth $29.95 / £18.95. ISBN 0-691-11686-5. Reviewed by Donald W. Jackson.


 
Friday Calendar
    University of Texas, Law & Philosophy Program: Connie Rosati (Philosophy, University of California, Davis).
    University of Texas, School of Law: Gillian Lester, UCLA, In Defense of Paid Family Leave.
    Georgetown, Law & Economics: Susan Rose-Ackerman, Yale Law School, "Bilateral Investment Treaties and Foreign Direct Investment."
    UCLA School of Law: David Hyman, University of Illinois College of Law, "How Kind are Strangers? An Empirical Perspective on the Duty to Rescue."
    University of Buffalo, School of Law: Henry Schlegel, UB Law, “Law and Economic Change Since World War I,” Commentator: William Greiner, UB Law.
    Tulane University, Center for Ethics and Public Affairs: Eric Mack, Tulane, "The Instability of Contractualism: Scanlon as Natural Rights Theorist".
    Update :Lewis & Clark School of Law: Markman v. Westview Instruments: Lessons from a Decade of Experience.” Participants include Mark Lemley (Stanford), Dan Burk (Minn.), Chris Cotropia (Tulane), Tim Holbrook (Chi-Kent), Mike Meurer (BU) and Jay Thomas (Georgetown).


 
Meeting Announcement: Midsouth Philosophy Conference
    CALL FOR PAPERS MIDSOUTH PHILOSOPHY CONFERENCE and Undergraduate Philosophy Conference The University of Memphis February 18-19, 2005 The twenty-ninth annual Midsouth Philosophy Conference is scheduled for Friday afternoon and Saturday, February 18-19, at The University of Memphis. Papers in any area are welcome. There will be a $20 registration fee, payable at the conference. Papers must not exceed a length of 3000 words. Include the following nine items: (1) a word count - 3000 words maximum! (2) the author's name (3) academic status (professor, unaffiliated, graduate student) (4) institutional affiliation (if any) (5) mailing address (6) email address (7) telephone number (8) the paper's title (9) an abstract - 100 words maximum! Submissions which do not include all nine items will not be considered. No more than one submission by the same author will be considered. Email a copy of your paper, as an attachment, in Rich Text Format (RTF) or Adobe Portable Document Format (PDF) to midsouth@lclark.edu - also, paste a copy in the body of the email (in case the attachment is unreadable). Please title your paper as follows: YourLastName_YourFirstName.rtf - for example, Locke_John.rtf Papers must be received by JANUARY 7. Papers will be reviewed by a committee. Notification of acceptance will be made via email in late January. Submissions whose authors cannot be contacted through email will be rejected. Each paper will have a commentator. Those interested in commenting should send a note to midsouth@lclark.edu by January 15 of availability and areas of interest. Persons whose papers are accepted will be expected to serve as commentators if asked. http://www.lclark.edu/~midsouth/MPC.html The Midsouth Philosophy Conference is underwritten by the Department of Philosophy and the Center for the Humanities of the University of Memphis.


Thursday, October 07, 2004
 
Rappaport on the Original Meaning of the Recess Appointments Clause
    I highly recommend a new paper by Mike Rappaport on the original meaning of the recess appointments clause. Mike just put up a post about the paper on The Right Coast. Here's an excerpt from his post:
      Although President Bush has made a deal with the Senate Democrats not to recess appoint any additional judges this year, the issue is still quite important. The constitutionality of his recess appointments is now being considered by the federal courts. Moreover, after the election, the issue is likely to arise again, whether Bush or Kerry wins. If Bush wins, he will either face a Democrat Senate minority who is willing to filibuster his nominees or, should the Democrats retake the Senate, a Senate majority who will not confirm his nominees. If Kerry wins, a similar situation will result: a Republican majority who will refuse to confirm his nominees or a Republic minority who will filibuster them. I have just finished a draft of a paper that examines the Recess Appointments Clause from an originalist perspective. My conclusions will be quite surprising for many of those who support the President’s recess appointments. I argue that the original meaning of the Recess Appointments Clause is quite narrow, and would not permit many of the recess appointments made by President Bush and by other Presidents during this century. I reach this conclusion, even though I believe that the Recess Appointments Clause does not forbid the President from recess appointing Article III judges.
    This is, so far as I know, the best scholarship done on this important topic from an originalist perspective--and I know this literature fairly well Download it while its hot!


 
Conference Announcement: Does File Sharing Hurt Record Sales?: An Economic Inquiry
    Does File Sharing Hurt Record Sales?: An Economic Inquiry Perhaps no current issue in intellectual property policy generates as much debate as the real effects of the rising use of internet-based, peer-to-peer systems (P2P) that allow users to easily transfer ('share') digital files -- most especially music. Does P2P spell the end of the music industry as we know it? Or does this new model of distribution foretell a resurgence for a troubled industry? This symposium brings together the top economic minds working on this question, to present their -- often opposed -- current research. This discussion will offer important insights into one of the major digital policy questions of our time. Co-Sponsors: Penn Program in Intellectual Property and Technology Law Institute for Law & Economics Penn Intellectual Propery Interest Group Time & Place: October 8 2004 (Friday) 2:00 to 5:30 PM Penn Law School: Silverman Hall, Room 240A Presenters: Felix Oberholzer, Harvard Business School Joel Waldfogel, Wharton School of Business, University of Pennsylvania Alejandro Zentner, University of Chicago Commentators: Gideon Parchomovsky, Penn Law R. Polk Wagner, Penn Law Schedule of Events: 2:00 - Welcome 2:00-2:50 - Piracy on the High C’s: Music Downloading, Sales Displacement, and Social Welfare in a Sample of College Students Joel Waldfogel, University of Pennsylvania (Wharton) 2:50-3:00 - Break 3:00-3:50 - The Effect of File Sharing on Record Sales: An Empirical Analysis Felix Oberholzer, Harvard Business School 3:50-4:00 - Break 4:00-4:50 - Measuring the Effect of Music Downloads on Music Sales, Alejandro Zentner, University of Chicago 4:50-5:30 - Panel Discussion & Conversation


 
Conference Announcement & Call for Papers: Nanotechnology: Ethical & Legal Issues
    CALL FOR PAPERS NANOTECHNOLOGY: ETHICAL AND LEGAL ISSUES A Conference Sponsored by NSTS at the University of South Carolina 2-6 MARCH 2005 Developments in nanotechnology provide the basis for a convergence of the physical and life sciences, including biomedicine, information technology, and cognitive science. Emerging technologies include highly functional molecular systems, alternative manufacturing processes, molecular computing, brain/machine interfaces, tissue engineering, and recombinant genetic alterations of viral, plant, and animal systems. Virtually all areas of human life may be transformed, and these transformations will likely involve both great benefit and great risk. In this conference we explore the ethical and legal issues raised by nanotechnology and the larger convergence of technologies, including reflections on: - toxicity of nanoparticles - environmental sustainability & remediation - human/machine interfaces - human enhancements - convergence of NBIC - privacy and security - legal and ethical theories for nano - government regulation - scientific integrity and liberty - tech transfer, patenting and insurance liability - military use of nanotechnology - nanomedicine - the nano-divide - international and developing world needs Confirmed speakers include - Mihail Roco, Senior Advisor of the National Science Foundation - Vicki Colvin, Director of CBEN at Rice University We expect an international audience, and invite papers and posters from speakers in all areas of research related to the conference topic. Please submit an abstract of 200-500 words. Deadline is 1 December 2004; we would appreciate earlier emails from those interested in submitting abstracts so we can plan the size of the conference. Send inquiries and abstracts by email attachment in Word, Rich Text Format, or pdf to: George Khushf, Ph.D. Department of Philosophy University of South Carolina Columbia, SC 29208, USA KHUSHFG@GWM.SC.EDU TEL: (803) 777-7371. The conference is supported in part by a NIRT grant from the National Science Foundation.


 
Job Announcement: Princeton University Center for Human Values
    Please see below an advertisement for an Assistant Professorship to be shared between the University Center for Human Values and the home discipline of the successful applicant. The Center would be interested in appointing someone from any of a wide range of areas, provided that that person's work connects with questions of an ethical or broadly normative kind. Disciplines from which applications are welcome include Classics, Economics, History, Law, Literary Studies, Philosophy, Politics, Psychology, Religious studies, and Sociology. The Faculty of the Center are Kwame Anthony Appiah (Philosophy and Comparative Literature), Christopher Eisgruber (Law and Public Affairs), Stephen Macedo (Politics), Josh Ober (Classics), Philip Pettit (Politics and Philosophy) and Peter Singer (Bioethics). Further details on the Center are available on www.princeton.edu/values. Assistant Professorship University Center for Human Values Princeton University The University Center for Human Values supports teaching, research and discussion of ethics and human values throughout the curriculum and across the disciplines at Princeton University. Established in 1990 through the generosity of Laurance S. Rockefeller, the Center is directed by Professor Stephen Macedo. With seminar and lecture courses, public lectures and symposia, a publication series and the scholarly work of its faculty and visiting fellows, the Center fosters ongoing inquiry into important ethical issues in private and public life. The University Center for Human Values invites applicants for a tenure-track assistant professorship. Applicants may represent any home discipline, with scholarship and teaching devoted explicitly and in significant measure to ethical and normative issues. Assistant Professors will be appointed in a department on the recommendation of its senior faculty, and in the University Center on the recommendation of its Executive Committee. Assistant Professors will devote half time to teaching and other activities sponsored by the University Center and half time to a department (some teaching may consist of jointly sponsored courses). The Ph.D. and evidence of teaching excellence and scholarly promise are required. Applicants should send a letter of interest, curriculum vitae, a short writing sample (one article or one dissertation chapter), and 3 letters of reference. For full consideration, applications are due by October 15, 2004, but will be considered until the position is filled. Send application materials to: Assistant Professorship Search Committee (please specify "Assistant Professorship") University Center for Human Values 304 Louis Marx Hall, Princeton University Princeton, NJ 08544, USA Princeton University is an Equal Employment Opportunity, Affirmative Action Employer. For more information about applying to Princeton and how to self-identify, please link to http://web.princeton.edu/sites/dof/ApplicantsInfo.htm


 
Conference Announcement: Law Enforcement & National Security in the Information Age
    The World Policy Institute at the New School and the Center for Advanced Studies in Science and Technology Policy present: LAW ENFORCEMENT AND NATIONAL SECURITY IN THE INFORMATION AGE: TECHNOLOGY, SECURITY, AND PRIVACY IN THE 'WAR ON TERROR' A panel discussion with: Barry Steinhardt, Director of the Technology and Liberty Program, ACLU Eben Moglen, Professor of Law, Columbia University Paul Rosenzweig, Senior Legal Fellow, Heritage Foundation, and Heather Mac Donald, Olin Fellow, Manhattan Institute, and Contributing Editor, City Journal Moderated by Kim Taipale, Executive Director, Center for Advanced Studies, and Director of the Global Information Society Project at the World Policy Institute To be held on October 14, 2004, at 6:00-7:30 p.m. in the Swayduck Auditorium, First Floor, 65 Fifth Avenue (between East 13th and 14th Streets), New York, NY. Admission is free. RSVP 212-229-5808 ext. 101 or email to reserve seating. Visit http://www.dialnsa.edu/ for a live webcast and online discussion. Event announcement, speakers bios, and links to background material available online at http://www.global-info-society.org/PLENSIA/panel-101404.htm. About this program : Security and liberty are not dichotomous rivals to be traded one for the other; rather, they are dual obligations of civil society each to be maximized within the constraints imposed by the other. How can these dual obligations of collective security and individual freedom, including privacy, best be achieved given current developments in information technologies and the threat of international terrorism? The panelists will offer their views on these and related issues. This panel discussion is the first in a series of public forums to be held as part of the Global Information Society Project’s Program on Law Enforcement and National Security in the Information Age. About the Global Information Society Project (www.global-info-society.org): The Global Information Society Project is a collaborative research project between the World Policy Institute and the Center for Advanced Studies in Science and Technology Policy focused on information, communication and technology policy and related issues, especially as such policy impacts on the development of civil society, international relations, world trade, economic development, and national and global security. About the Program on Law Enforcement and National Security in the Information Age (www.plensia.org): New information technologies have the potential to significantly change how information is collected, shared and analyzed by law enforcement and national security agencies in response to certain perceived threats posed by transnational terrorism, international organized crime, cross-border criminal gangs, and cybercrime. These technologies can enable remote observation or transaction monitoring (surveillance and identification), easy access to distributed data (information sharing), and efficiencies in processing and analysis (automated data and traffic analysis and data mining). Such developments, however, are challenging to political and legal systems, and social expectations, that are at least partially based on protecting certain civil liberties and individual freedoms by maintaining privacy through the “practical obscurity” of inefficient information access technologies and procedures. On the one hand there is a need to "connect the dots" through improved information sharing and analysis to provide for collective security and on the other hand the notion of individual liberty in free society is at least partially built on keeping the power to "connect the dots" out of the control of government agencies by maintaining or imposing inefficiencies through a system of checks and balances, due process and technical constraints. The Global Information Society Project’s Program on Law Enforcement and National Security in the Information Age seeks to examine these issues and to influence national and international decision makers at every level in both the public and private sectors by providing a forum for sound, objective analysis and discourse. In particular, the Program seeks to identify, examine, and articulate the key issues that lie at the intersection of technologically enabled change and existing practices in law enforcement and national security by presenting a series of public panel discussions, publishing articles in leading journals, and otherwise informing the public debate. The Program provides a non-partisan, independant forum for all viewpoints and is dedicated to working towards solutions that promote individual freedom, democracy and civil liberties while encouraging and protecting global and national security. About the World Policy Institute (www.worldpolicy.org): The World Policy Institute at New School University is a research and education policy center that seeks innovative solutions to critical problems facing the United States and the world. WPI has been a source of informed policy leadership for close to 40 years and is renowned for its cutting-edge analysis on managing the global market economy, constructing a workable system for collective security, and fostering civil society. About the Center for Advanced Studies (www.advancedstudies.org): The Center for Advanced Studies in Science and Technology Policy is a private, non-partisan research and advisory organization focused on information, technology, and national security policy and related issues. FOR MORE INFORMATION: Visit the Global Information Society Web Site at http://www.global-info-society.org/ or email info AT global-info-society DOT org


 
Conference Reminder: The 2004 Election: What Does it Mean for Campaigns and Governance?
    October 8, 2004. The USC-Caltech Center for the Study of Law and Politics and the Initiative and Referendum Institute at USC have organized a conference called "The 2004 Election: What Does it Mean for Campaigns and Governance?" Held at the USC Law School on the eve of the election, the conference will bring leading scholars in law, political cience, economics, and public communication together with people working in politics and campaigns to discuss major trends that are evident in the November election and that will shape politics into the next decades. The conference will include a keynote address delivered by Senator Bob Graham of Florida during lunch. The day-long conference will consist of four panels on the following topics: Campaigns under BCRA; Political Communication, the Media, and the Internet; the Role of Initiatives and Referendums in the Election; and Polarized Voters and Politics. Each panel will be a mix of scholars and political commentators (including Vice-Chair Ellen Weintraub of the Federal Election Commission), and we anticipate a lively discussion among the panelists and the audience. IThe schedule of the conference at this webpage:
    http://lawweb.usc.edu/cslp/conferences/Election_04/election_04.html
    Schedule:
      Friday, October 8; USC Law School Room 1 Keynote Address: Senator Bob Graham (D-FL), to be given at lunch Panels The First Campaign under BCRA's Rules Ellen Weintraub, Vice-Chair of the Federal Election Commission D. Bruce La Pierre, Professor of Law, Washington University -- St. Louis; Counsel for Respondents in Nixon v. Shrink Missouri Government PAC David Magleby, Distinguished Professor of Political Science, BYU; Director, Center for the Study of Elections and Democracy Spencer Overton, Associate Professor of Law, George Washington University Law School Moderator: Elizabeth Garrett, Professor of Law, USC; Director, USC-Caltech Center for the Study of Law and Politics The Initiative and Referendum Process Garry South, political consultant; former Senior Political Advisor to Governor Gray Davis (D-CA) and the presidential campaign of Sen. Joseph Lieberman (D-CT) Tracy Gordon, Research Fellow, Public Policy Institute of California John Matsusaka, Professor of Business and Law, USC; President, Initiative and Referendum Institute at USC Daniel Smith, Associate Professor of Political Science, University of Florida Moderator: M. Dane Waters, Founder and Chairman of the Board, Initiative and Referendum Institute at USC Polarized Voters and Politics Mickey Edwards, Lecturer of Public and International Affairs, Woodrow Wilson School, Princeton University; former Member of the U.S. House of Representatives (R-OK) R. Michael Alvarez, Professor of Political Science, Caltech; Associate Director, USC-Caltech Center for the Study of Law and Politics Gary Jacobson, Professor of Political Science, University of California--San Diego Janelle Wong, Assistant Professor of Political Science, USC Moderator: Ann Crigler, Professor of Political Science, USC; Director, Jesse M. Unruh Institute of Politics Political Communications, the Media and the Internet David Brock, President and CEO, Media Matters for America John Fund, Editorial Board of the Wall Street Journal Thomas Hollihan, Professor and Associate Dean for Academic Affairs, Annenberg School for Communication, USC Vincent Price, Steven H. Chaffee Professor of Communication and Political Science, University of Pennsylvania Moderator: D. Roderick Kiewiet, Professor of Political Science, Caltech Concluding Cocktail Party and Watch Party for the First Presidential Debate
    For additional information, contact: Elizabeth Garrett Professor of Law, University of Southern California Law School egarrett@law.usc.edu Director, USC-Caltech Center for the Study of Law and Politics http://lawweb.usc.edu/cslp/ Board of Directors, Initiative and Referendum Institute at USC http://iri.usc.edu/ 699 Exposition Blvd. Los Angeles, CA 90089


 
Thursday Calendar
    University of Pennsylvania, Instiute for Law & Philosophy: Professor Dennis Patterson, Rutgers Camden Law School, Dworkin on the Semantics of Legal and Political Concepts.
    Harvard University, Philosophy Colloquium: Samuel Scheffler, University of California at Berkeley, Is the Basic Structure Basic?
    Princeton University, Political Philosophy Colloquium: Nadia Urbinati, Columbia, The Power of Judgment and Democratic Representation.
    U.C. Berkeley, General Aspects of Law Seminar: Richard Pildes (NYU) The Constitutionalization of Democratic Politics.
    University of San Diego, School of Law: Ed Larson (University of Georgia).
    Boston University, Faculty Workshop: Keith Hylton, Church and State: An Economic Analysis, with Yulia Rodionova.
    University of Michigan, Law & Economics: Margaret Jane Radin, Stanford & Michigan, Regulation by Contract, Regulation by Machine and Regime Change in Intellectual Property: Superseding the Law of the State with the "Law" of the Firm.
    Vanderbilt University, Legal Theory Workshop: Howard Erichson, Seton Hall Law School, A Typology of Aggregate Settlements.
    Florida State University, School of Law: Bill Buzbee, Emory University School of Law. Topic: "Westway and the Challenges of Regulatory Fragmentation."


 
Cook & Ludwig on the Social Costs of Gun Ownership Philip J. Cook and Jens Ludwig (Duke University - Terry Sanford Institute of Public Policy and Georgetown University - Public Policy Institute (GPPI)) have posted The Social Costs of Gun Ownership on SSRN. Here is the abstract:
    This paper provides new estimates of the effect of household gun prevalence on homicide rates, and infers the marginal external cost of handgun ownership. The estimates utilize a superior proxy for gun prevalence, the percentage of suicides committed with a gun, which we validate. Using county- and state-level panels for 20 years, we estimate the elasticity of homicide with respect to gun prevalence as between +.1 and +.3. All of the effect of gun prevalence is on gun homicide rates. Under certain reasonable assumptions, the average annual marginal social cost of household gun ownership is in the range $100 to $600.


Wednesday, October 06, 2004
 
Magliocca on the Legal Tender Cases Gerard N Magliocca (Indiana University Purdue University Indianapolis (IUPUI)) has posted Rethinking Implied Power: Lost Lessons from the Legal Tender Cases on SSRN. Here is the abstract:
    This Article challenges the conventional reading of McCulloch v. Maryland and shows that the operative standard on the scope of enumerated authority actually comes from the three Legal Tender Cases decided after the Civil War. In the first case, Hepburn v. Griswold, the Court held that paper money was unconstitutional because that exercise of implied power touched, though did not violate, textual prohibitions on governmental power without a sufficient justification. A year later in Knox v. Lee, the Court reversed field and held that the same paper money was a valid use of implied power as a wartime exigency. The last member of the trio, Juilliard v. Greenman, upheld the use of greenbacks in peacetime by declaring that the entire issue was a political question. Despite their dramatic differences, all three of these opinions expressly relied on McCulloch and each could credibly claim that it was the best reading of Marshall's work. In the decades since the Legal Tender Cases came down, the Court has used each of these three models without settling any particular approach. The Article explores the implications of each of these approaches and then seeks to apply those lessons to the current Court's cases addressing the limitations on Congress's power under the Commerce Clause and Section 5 of the Fourteenth Amendment.


 
Tsai on Sacred Visions of Law Robert L. Tsai (University of Oregon - School of Law) has posted Sacred Visions of Law (Iowa Law Review, Vol. 90, 2005) on SSRN. Here is the abstract:
    Around the time of the Bicentennial Celebration of the U.S. Constitution's framing, Professor Sanford Levinson called upon Americans to renew our "constitutional faith." This article answers the call by examining how two legal symbols - Marbury v. Madison and Brown v. Board of Education - have been used by jurists over the years to tend the American community of faith. Blending constitutional theory and the study of religious form, this article argues that the decisions have become increasingly linked in the legal imagination even as they have come to signify very different sacred visions of law. One might think that Marbury, whose facts are unknown to the average American, has spawned an insulated message for legal insiders, while Brown, whose central holding is known by most citizens, acts as a unifying force in judicial thought. In fact, the opposite is true. Serving jurists as a talisman of judicial might, Marbury evokes a popular legal-cultural myth of the reluctant lawgiver, as well as an entrenched juricentric belief in law. Despite its rehabilitation for ordinary Americans, in the minds of jurists, Brown, now a generation removed from its date of decision, has come to signify social strife and the closing of the judicial mind. Ultimately, neither symbol, as it is understood today, offers a particularly inspiring ideal of justice or the judicial power. But what has grown grotesque can be shorn at its roots, and what has withered may yet be nursed back to vigor.


 
Wednesday Calendar


Tuesday, October 05, 2004
 
Fennell on Options Lee Anne Fennell (University of Illinois College of Law) has posted Revealing Options (Harvard Law Review, Vol. 118, March 2005) on SSRN. Here is the abstract:
    Legal scholars are beginning to explore how the options template, borrowed from finance, can be applied to legal problems outside the realm of finance. This article uses the options framework to add a new, intermediate entitlement form to the property rule/liability rule schema pioneered by Guido Calabresi and Douglas Melamed. Building on a fascinating but underused literature on self-assessed valuation mechanisms, I propose an entitlement form that would require entitlement-holders to create options for others (or their own future selves). These entitlements subject to self-made options or ESSMOs are capable of powerfully and elegantly addressing one of the most intractable problems in property theory - unknown subjective valuations. By requiring a party to package her subjective valuation in the form of an option - that is, a revealing option - the ESSMO dodges the primary problems associated with property rules and liability rules while harnessing advantages of each. Like a liability rule, the ESSMO extends to other parties the right to engage in a unilateral purchase of the entitlement at an established price. Like a property rule, the ESSMO gives the entitlement holder control over the transfer price, thus protecting her idiosyncratic subjective value in the entitlement. Unlike a property rule, however, the ESSMO makes the entitlement-holder's stated valuation binding throughout an option period, and incorporates other features designed to elicit honest valuations. The real payoff of this approach comes in complex, dynamic, multi-party commons settings. Extending my earlier work on commons and anticommons problems, I show how the ESSMO can transform environmental controls, land conservation, and aesthetic controls in private neighborhoods. I also illustrate how revealing options can address intertemporal collective action problems in institutions, as well as in individuals (such as the smoker who wishes to quit).
I always profit from reading Fennell's work. Highly recommended.


 
Depoorter & Vanneste on Anticommons Pricing Ben Depoorter & Sven Vanneste (Ghent University School of Law - Center for Advanced Studies in Law and Economics, George Mason University - School of Law and Universiteit Gent) have posted Putting Humpty Dumpty Back Together: Pricing in Anticommons Property Arrangements on SSRN. Here is the abstract:
    Recently, a new theory has drawn considerable attention in the literature on common property. A number of scholars have pointed to the danger of excessive propertization in the context of what are termed anticommons property regimes. Although this theory has found its way into numerous legal and economic applications, the empirical and cognitive foundations of the theory of fragmentation remain unexplored. Based on experimental data, this Article conducts an investigation intmo the social and personal processes involved in the anticommons. The results confirm the theoretical proposition that anticommons deadweight losses increase with the degree of complementarity between individual parts and with the degree of fragmentation. Our study also provides three novel insights into the problem of fragmentation. First, the data illustrates that individual right holders base their reservation price on a proportion of the expected surplus of the bundler-purchaser, disregarding the objective value of the resource. Second, the experiments suggest that uncertainty amplifies the anticommons pricing effect. Individual right holders ignore the expected value of the purchaser's project, and instead focus on the upper range of profitability and surplus. Willingness to accept is anchored onto a proportion of the maximum profitability, rather than a proportion of the expected benefits of the project. Finally, throughout the experiment reservation prices seem to be consistently lower in cases where there exists large uncertainty within the range of positive outcomes, relative to scenarios where there is relative certainty regarding a positive outcome but which includes the possibility of a (modest) negative outcome. Subjects seem to emphasize the relative low probability of success over the possibility of a negative outcome.


 
Tuesday Calendar


Monday, October 04, 2004
 
Weekend Wrapup On Saturday, the Legal Theory Bookworm recommended Nicola Lacey's new biography of H.L.A. Hart and the Download of the Week was Evidence, Procedure, and the Upside of Cognitive Error by Chris William Sanchirico. On Sunday, the Legal Theory Lexicon topic was Holdings and the Legal Theory Calendar previewed this weeks talks, workshops, and conferences.


 
Seidman on Sovereign Immunity Guy I Seidman (Interdisciplinary Center Herzliyah - Radzyner School of Law) has posted The Origins of Accountability: Everything I know about the Sovereigns' Immunity, I learned from King Henry III (Saint Louis University Law Journal, Vol. 49, No. 2, Winter 2004/2005) on SSRN. Here is the abstract:
    The arcticle examines the Anglo-American origins of government accountability. American critics of sovereign immunity argue that the doctrine is an outdated relic of English monarchism of the dark ages and wholly inappropriate to American democracy. This is an inaccurate description. As early as the 13th century English law developed a host of legal doctrines that contained royal excesses and held the government legally accountable. Further developments occurred during the 17th century struggle between the King and Parliament. These substantive limits on government authority were familiar to the Founding Fathers in the crucial years when they were constructing the American republic through their knowledge of Blackstone's Commentaries. While it is true that there were limits on the ability to sue the King, this was not because the people thought the King was above the law or had Divine Rights. Moreover, several legal mechanisms held the King and government ministers accountable. In the 13th century the Barons forced King John and his successors to sign Magna Carta. Furthermore, Parliament controlled royal spending and targeted royal agents through impeachment and the doctrine of ministerial responsibility. These doctrines were later used by Parliament in its successful struggle against the Stuarts and helped establish a governmental regime accountable to the people.


 
Three by Pauwelyn Joost Pauwelyn (Duke University School of Law) has posted three papers on SSRN:
    How to Win a WTO Dispute Based on Non-WTO Law? Questions of Jurisdiction and Merits:
      The recognition that public international law, including non-WTO treaties, has a role to play in the WTO has gained momentum. However, what does it mean in practice for litigants before a WTO panel? Is one just paying lip service to other non-WTO treaties to enhance the legitimacy of the WTO or can a WTO member actually win or loose a dispute by pleading this other law? That is the question examined in this essay. Put differently, can the defendant before a WTO panel successfully fence off a WTO complaint based on other treaties or rulings from other courts or tribunals? Two types of cases are discussed: First, cases where non-WTO law may lead a panel to decline jurisdiction; Second, cases where non-WTO law may effectively justify, on the merits, what would otherwise be a breach of the WTO treaty.
    Going Global or Regional or Both? Dispute Settlement in the Southern African
      This paper examines the potential for overlap between the Southern African Development Community (SADC) dispute settlement mechanism on trade and other international dispute settlement regimes. Can one and the same dispute between SADC members fall under the jurisdiction of both the SADC mechanism on trade and the jurisdiction of another international court or tribunal? The paper answers this question in the affirmative and sums up other fora that may overlap with the SADC mechanism. It then identifies the different factors that may influence SADC members to bring a dispute to either SADC or another international forum. The paper focuses, in particular, on the relative advantages and disadvantages of bringing a complaint to the WTO as compared to SADC. Next a comparative analysis is provided, setting out how the problem of overlapping fora has been addressed in other international regimes. The concluding part of the paper offers concrete proposals to amend Annex VI on SADC dispute settlement so as to (i) avoid the duplication of dispute settlement proceedings; and (ii) steer parties to the forum that is, according to a decision to be made by SADC members, best suited to resolve a particular dispute (be it the SADC mechanism or another mechanism). It is hoped that the paper’s analysis is not only useful for the SADC-WTO interface, but also for problems of overlap confronted in other regional fora, be it NAFTA, the EU, MERCOSUR, ASEAN or the ANDEAN Community and in the increasing number of bilateral free trade negotiations currently under negotiation.
    A Typology of Multilateral Treaty Obligations: Are WTO Obligations Bilateral or Collective in Nature?
      The recognition that public international law, including non-WTO treaties, has a role to play in the WTO has gained momentum. However, what does it mean in practice for litigants before a WTO panel? Is one just paying lip service to other non-WTO treaties to enhance the legitimacy of the WTO or can a WTO member actually win or loose a dispute by pleading this other law? That is the question examined in this essay. Put differently, can the defendant before a WTO panel successfully fence off a WTO complaint based on other treaties or rulings from other courts or tribunals? Two types of cases are discussed: First, cases where non-WTO law may lead a panel to decline jurisdiction; Second, cases where non-WTO law may effectively justify, on the merits, what would otherwise be a breach of the WTO treaty.


 
Mialon on the Economics of the Fifth Amendment Hugo M. Mialon (Emory University, Department of Economics) has posted An Economic Theory of the Fifth Amendment on SSRN. Here is the abstract:
    The Fifth Amendment's due process clause requires the prosecution to share evidence with the defense, and its right to silence blocks the jury from drawing an adverse inference from the defendant's silence during trial. I examine the effect of the right to silence and the disclosure requirement on conviction rates and social welfare in an economic model of criminal trials. Many policy-relevant results emerge. The right to silence can only improve welfare if juries discriminate unduly against defendants. With the right to silence, mandatory disclosure always increases welfare. Mandatory disclosure always reduces the welfare-efficiency of the right to silence. The right to silence combined with mandatory disclosure is more likely to increase welfare than is the right to silence alone. The most efficient mechanism is either mandatory disclosure alone or mandatory disclosure combined with the right to silence.


 
Monday Calendar
    New York University, School of Law: Sam Issacharoff ( Visiting from Columbia), Collateral Damage: The Endangered Center in American Politics.
    Princeton University, Program on Public Law: Annelise Riles, Cornell University, School of Law.
    UCLA School of Law: Manny Klausner, REASON MAGAZINE, "Litigating Racial Preferences After Grutter & Gratz."


Sunday, October 03, 2004
 
Legal Theory Calendar
    Monday, October 4
      New York University, School of Law: Sam Issacharoff ( Visiting from Columbia), Collateral Damage: The Endangered Center in American Politics.
      Princeton University, Program on Public Law: Annelise Riles, Cornell University, School of Law.
      UCLA School of Law: Manny Klausner, REASON MAGAZINE, "Litigating Racial Preferences After Grutter & Gratz."
    Tuesday, October 5 Wednesday, October 6 Thursday, October 7
      University of Pennsylvania, Instiute for Law & Philosophy: Professor Dennis Patterson, Rutgers Camden Law School, Dworkin on the Semantics of Legal and Political Concepts.
      Harvard University, Philosophy Colloquium: Samuel Scheffler, University of California at Berkeley, Is the Basic Structure Basic?
      Princeton University, Political Philosophy Colloquium: Nadia Urbinati, Columbia, The Power of Judgment and Democratic Representation.
      U.C. Berkeley, General Aspects of Law Seminar: Richard Pildes (NYU) The Constitutionalization of Democratic Politics.
      University of San Diego, School of Law: Ed Larson (University of Georgia).
      Boston University, Faculty Workshop: Keith Hylton, Church and State: An Economic Analysis, with Yulia Rodionova.
      University of Michigan, Law & Economics: Margaret Jane Radin, Stanford & Michigan, Regulation by Contract, Regulation by Machine and Regime Change in Intellectual Property: Superseding the Law of the State with the "Law" of the Firm.
      Vanderbilt University, Legal Theory Workshop: Howard Erichson, Seton Hall Law School, A Typology of Aggregate Settlements.
      Florida State University, School of Law: Bill Buzbee, Emory University School of Law. Topic: "Westway and the Challenges of Regulatory Fragmentation."
    Friday, October 8
      University of Texas, Law & Philosophy Program: Connie Rosati (Philosophy, University of California, Davis).
      University of Texas, School of Law: Gillian Lester, UCLA, In Defense of Paid Family Leave.
      Georgetown, Law & Economics: Susan Rose-Ackerman, Yale Law School, "Bilateral Investment Treaties and Foreign Direct Investment."
      UCLA School of Law: David Hyman, University of Illinois College of Law, "How Kind are Strangers? An Empirical Perspective on the Duty to Rescue."
      University of Buffalo, School of Law: Henry Schlegel, UB Law, “Law and Economic Change Since World War I,” Commentator: William Greiner, UB Law.
      Tulane University, Center for Ethics and Public Affairs: Eric Mack, Tulane, "The Instability of Contractualism: Scanlon as Natural Rights Theorist".
      Update :Lewis & Clark School of Law: Markman v. Westview Instruments: Lessons from a Decade of Experience.” Participants include Mark Lemley (Stanford), Dan Burk (Minn.), Chris Cotropia (Tulane), Tim Holbrook (Chi-Kent), Mike Meurer (BU) and Jay Thomas (Georgetown).


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


Saturday, October 02, 2004
 
Legal Theory Bookworm The Legal Theory Bookworm recommends A Life of H. L. A. Hart: The Nightmare and the Noble Dream by Nicola Lacey. (The Oxford University Press page is here.) Here's a short description:
    To generations of lawyers, H. L. A. Hart is known as the twentieth century s greatest legal philosopher. Whilst his scholarship revolutionized the study of law, as a social commentator he gave intellectual impetus to the liberalizing of society in the 1960s. But behind his public success, Hart struggled with demons. His Jewish background, ambivalent sexuality, and unconventional marriage all fuelled his psychological complexity; allegations of espionage, though immediately quashed, nearly destroyed him. Nicola Lacey s biography explores the forces that shaped an extraordinary life.
And John Gardner recent posted the following comments about Lacey's life of Hart on his homepage:
    Nicola Lacey's much-anticipated biography of H.L.A. Hart has been published by OUP. Lacey knew Hart well, as a friend of his family, and of course she has a close professional familiarity with his work. It's an excellent book, more intellectually sophisticated than Ignatieff's Isaiah and more touching than Bailey's Iris. I mention these two comparators because Lacey's book also captures more vividly than the other two the modernist optimism and public-spiritedness of the era and social milieu to which all three figures belonged. It always distresses me that so many left-leaning academics today are, unlike Lacey, so chippy and ignorant about this mid-twentieth-century intellectual elite, who between them (and with their brilliant friends in other branches of public life) contributed so much to the brief ascendancy of progressive politics from 1945 to 1979. I remember Hart saying sadly, around 1990, that he couldn't see who, after Thatcherism, was going to provide the Labour Party with an intellectual backbone to rival what Keith Joseph and his ilk had given the Tories. He objected to a left-liberal name that I mentioned: 'But he isn't a socialist!' How he must be spinning in his grave - not only no socialists, but few intellects, and no backbones.
Lacey's book is available from UK sources, but has not yet been released in the U.S. Highly recommeneded.


 
Download of the Week The Download of the Week is Evidence, Procedure, and the Upside of Cognitive Error by Chris William Sanchirico. Here is the abstract:
    Humans are imperfect information processors, a fact almost universally bemoaned in legal scholarship. But when it comes to how the legal system itself processes information, cognitive limitations are largely good news. Evidentiary procedure—inclusive of trial, discovery, and investigation—relies heavily on the fact that human mental capacity is limited. Such limits are crucial to separating sincere from insincere testimony. Moreover, notes and other “cognitive artifacts” that individuals make to compensate for their limited cognitive ability are an important source of evidence. This article’s primary objective is to elucidate the extent to which cognitive imperfection is beneficial rather than detrimental to evidentiary process and thus to law as a whole. Secondarily, the article discusses how the law of evidentiary process tilts the playing field of litigation in a manner that exacerbates the cognitive limitations of the potentially insincere and offsets the limitations of competing participants.
Download it while its hot!


Friday, October 01, 2004
 
Friday Calendar
    University of San Diego's Institute for Law and Philosophy: Roundtable on Law and Morality.
    Georgetown Law and Economics: Kevin Davis, New York University School of Law, The Demand for Immutable Contracts: Another Look at the Law and Economics of Contract Modifications.


 
Picker on the Must-Carry Solution to Windows Bundling Randal C. Picker (University of Chicago Law School) has posted Unbundling Scope-of-Permission Goods: When Should We Invest in Reducing Entry Barriers? (University of Chicago Law Review, 2005) on SSRN. Here is the abstract:
    Scope-of-permission goods are goods of arbitrary scope, where consumption of the good is non-rivalrous, where users can be excluded from consuming the good - through market organization, technology or law - and where increments to the good can be added to the good, once they are created, at zero marginal cost. Scope-of-permission goods naturally include pay TV, computer software, copyrighted works and licenses from collective right collectives such as ASCAP and BMI. These goods have been at the heart of some of our most difficult cases in antitrust law and competition policy. This includes the extended antitrust litigation over the blanket licenses for the use of copyrighted works issued by ASCAP and BMI. It also includes the Windows operating system, especially as it has grown over time with the addition of Internet Explorer and the Windows Media Player. In the ASCAP cases and in the U.S. and EU antitrust actions against Microsoft, the core question is to what extent do we want to re-scope a scope-of-permission could so as to foster entry. In the recent revision of the 40-year old consent decrees in ASCAP, we have once again pushed ASCAP to offer meaningfully smaller licenses - a required subtraction of scope - with the hope that we would create entry in collective rights organizations. The U.S. and EU have taken different paths in their actions against Microsoft. Both focus on the scope of the rights given to end-users in Windows. The U.S. has chosen to limit the visibility of the Windows Media Player by allowing computer sellers to hide visible means of access to WMP. WMP remains present to rise up if invoked by a savvy consumer or by a third-party. In contrast, the European Commission has required Microsoft to engage in mandatory versioning, requiring Microsoft to offer computer sellers versions of Windows with and without WMP. The U.S. remedy intrudes less directly into product design, the EU remedy does a better job of preserving competition in media players by limiting the reach advantage that Microsoft has by being able to tie and distribute WMP with Windows. But we had a better alternative available, one that was rejected by both the U.S. and the EU. Imposing a must-carry obligation - requiring Microsoft to distribute other media players if it chose to distribute WMP with Windows - would have neutralized Microsoft's ability to tie WMP to Windows, while avoiding concerns about fragmenting the programming infrastructure available to third parties. This would have created the possibility of strong competition, akin to the facilities-based competition we have sought to create in U.S. telecommunications. At least for software, we should think that there are strong asymmetries between subtraction and addition remedies. Subtracting disrupts the natural flow of product development and leaves the software producer with the difficult task of unscrambling the software code. It also creates the risk of fragmenting the programming base available to third parties. Subtraction may be sensible when the underlying goods are more distinct - when we can separate Bach from the Beatles - but in the Microsoft cases, instead of subtracting scope, as we did in ASCAP and the U.S. and EU have done in Microsoft, we should have expanded the scope of Windows by imposing a must-carry remedy.


 
Mialon & Mialon on the Economics of the Fourth Amendment Hugo M. Mialon and Sue H. Mialon (Emory University, Department of Economics and Emory University - Department of Economics) have posted The Economics of the Fourth Amendment: Crime, Search, and Anti-Utopia on SSRN. Here is the abstract:
    We develop a strategic model of crime and punishment. We then give the Fourth Amendment formal expression in terms of the model, and analyze its effect on equilibrium elements of social welfare. In one parameter range, the Fourth Amendment actually increases police search, and has an ambiguous effect on wrongful searches. But in the other intermediate range, it reduces police search and wrongful searches. In both ranges, it increases crime but reduces wrongful convictions. Moreover, a strong Fourth Amendment and strict police accountability are jointly sufficient for ongoing progress in search technology to ultimately lead to an extreme parameter range where the stable equilibrium is Utopian, in the sense that the police never search without probable cause and most citizens do not commit crime.


 
Jahn & Prufer on the Internet Backbone Market Eric Jahn and Jens Prüfer (University of Frankfurt - Economics and Business Administration Area and University of Frankfurt) have posted Transit versus (Paid) Peering: Interconnection and Competition in the Internet Backbone Market on SSRN. Here is the abstract:
    We examine the strategic interaction between interconnection and competition in the Internet backbone market. Networks asymmetric in size choose among different interconnection regimes, IP-Transit, Bill-and-Keep Peering, and Paid Peering, and compete for end-users. We show that sufficiently symmetric networks enter a Peering agreement while otherwise use an intermediary network for exchanging traffic. This is structurally in line with considerations of a non-US policy maker. In contrast, US policy makers prefer Peerings among relatively asymmetric networks.