Legal Theory Blog

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

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Tuesday, November 30, 2004
Tuesday Calendar
    Oxford Jurisprudence Discussion Group: Stephen Guest, Integrity, Equality, and Justice.
    Northwestern Employment Law: Christina Rodriguez, New York University Law School, "Language and Participation"
    University of Chicago, Law & Economics: Mark J. Roe, Professor of Law, Harvard Law School, Delaware's Politics.
    Oxford Intellectual Property Research Centre: Dr. Mira T. Sundara Rajan, INTELLECTUAL PROPERTY IN THE NEW MILLENNIUM: Copyright and Creative Freedom: Are Moral Rights the Future of Copyright Law?
    Vanderbilt School of Law: Michael Vandenbergh, "Order without Social Norms: How Personal Norm Activation can Protect the Environment".

Monday, November 29, 2004
Ashcroft v. Raich
    Introduction When I wrote these words, I was sitting in the chamber of the Supreme Court of the United States. The last time I was in this room, I was sitting on the bench in the chair usually occupied by Chief Justice Rehnquist—that’s another story altogether. On this occasion, Rehnquist’s chair was empty, but he will participate in the decision of the case heard today--Ashcroft v. Raich.
    Background The issue in Raich focuses on medical use of cannabis, authorized by a voter initiative in the State of California but prohibited by federal law. In particular, the issue is whether the federal government may prohibit the possession of home-grown, intrastate, noncommercial cannabis, the use and possession of which has been authorized by state law.
    In a sense, this case has its roots in the New Deal era. In 1937, the United States Supreme Court began to expand Congress’s legislative power in the famous case of Jones & Laughlin Steel (the case involving the so-called “switch in time that saved nine”). A few years later, the Court decided Wickard v. Filburn, in which a federal limitation of wheat production was upheld as applied to a Mr. Filburn’s use of wheat on his own farm. The rationale of that case was that the general class of all wheat grown and consumed on farms on interstate commerce would be substantial, and therefore, Congress could regulate the wheat even though it was never sold in interstate commerce. In the 1950s through the 1980s, the conventional wisdom was that the Supreme Court had removed virtually all limits on Congress’s power under the Commerce Clause of the Constitution. So long as there was a “rational basis” or even a “conceivable rational basis” for Congress’s action, it would be within Congress’s legislative power. It was therefore a shock when the Supreme Court decided two cases in the 1990s that struck down federal statutes on the grounds that they were outside of Congress’s power to regulate interstate commerce.
    The first of these two cases was Lopez, in which the Supreme Court struck down the Gun Free School Zones Act, a federal statute that prohibited the possession of a gun within 1000 feet of a school. The second case was Morrison, in which the Court struck down the Violence Against Women Act. These cases limited Wickard v. Filburn to regulations that involve “economic activity,” a category that the Court has never precisely defined but which seems to apply to actions that are part of a process that leads to sale or barter.
    The lower courts have recently begun to apply Lopez and Morrison in “as applied” challenges to other federal statutes. Examples include: (1) a home-assembled machine gun, (2) home-made child pornography, and (3) home-grown state authorized medical cannabis. Ashcroft v. Raich gives the Supreme Court an opportunity to clarify the meaning of Lopez and Morrison and potentially, an opportunity to further limit Congress’s power or to modify its two “new federalism” decisions in a way that would make them toothless. Raich is potentially a very important case, but it also could be decided on very narrow grounds.
    The Justices Enter The chamber is hushed as the Justices begin to enter, beginning with Justice O’Connor. Justice Stevens waits a few moments and then speaks, announcing that the Court will take motions of admission to the Supreme Court Bar. This quaint ritual is completed with dispatch, and Justice Stevens calls Paul Clement, the Acting Solicitor General of the United States to the podium.
    Caveat The following notes on the oral argument are only notes. In some cases, I was unable to transcribe a question or answer. In almost every case, my notes use some phrases from the actual exchange, but also substitute my own words to convey the “sense” of what I heard as I understood it.
    Petitioner’s Argument Paul Clement has the demeanor of a quiet and thoughtful man—an appellate lawyer’s appellate lawyer, if you catch my drift. He begins with by arguing that “Congress has comprehensively regulated drugs through the Controlled Substances Act.” No sooner does he begin, than Justice O’Connor interrupts:
      O’Connor: But do not our decisions in Lopez and Morrison dictate concerns in this context?
      Clement: But those decisions preserved this Court’s Darby and Wickard decisions, which validate the statute here.
      O’Connor: But this substance was not in national market or in any intrastate market, unlike the activity at issue in those cases.
      Clement: It would be optimistic to believe that there will be no diversion to the national market.
      O’Connor: But shouldn’t we assume that California will enforce its law against the sale or transportation of marijuana for nonmedical purposes?
      Clement: Marijuana is a fungible product and there is a national market in this drug.
      O’Connor: Suppose there was a finding by the District Court that there was no diversion from the medical market to the illegal market?
      Clement: That would be irrelevant.
      O’Connor: But what would happen in my hypo?
      Clement: This Court in a series of cases has made it clear that it is not the conduct of the individual plaintiff, but the class of activities that Congress has chosen to regulate that is relevant.
    At this point, Justice Scalia joins the fray:
      Scalia: But isn’t it the case that Congress doesn’t want interstate commerce in marijuana? How does this regulation serve that end?
      Clement: Since the Lottery Case, it has been clear that Congress has the authority to ban a contraband from interstate commerce.
      Scalia: But that is not the same rationale as Wickard. You rely on Wickard to prohibit marijuana in order to reduce demand for the interstate market.
      Clement: The reality is that there is a 10.5 billion dollar market for marijuana.
      Scalia: Suppose hypothetically, there was no diversion
      Clement: The problems are parallel.
    And now Justice Kennedy joins in:
      Kennedy: What about the Perez case in which Congress banned loan sharking?
    And Justice Ginsburg quickly follows:
      Ginsburg: This not commercial activity, is it?
      Clement: This is economic activity, but not commercial activity. It is like the production of wheat.
    And Justice Souter now has a question:
      Souter: We can’t generalize from these plaintiffs, can we? Other medical users may purchase their cannabis from the illegal market?
      O’Connor: Wasn’t the wheat in Filburn in the interstate market? Not all of it was consumed on the farm.
      Clement: The wheat was consumed on the farm.
      O’Connor: But wasn’t other wheat from this same farm used in interstate commerce?
      Clement: The disposition of the particular wheat at issue in Filburn was not certain, but the case involved wheat consumed by the farmer as his own bread.
      Justice Kennedy: Is this a harder or easier case than Filburn, given that the substance here is illegal?
      Clement: Easier, because Congress can prohibit contraband. Marijuana is fungible, and Congress could conclude that any island of lawful possession is a threat to regulation of the contraband. Moreover, the legitimate use has been made available to patients in the form of a THC pill, Marinol.
      Ginsburg: But on this record, isn’t their evidence that the pill does not work. Would the patients have any defense if they were criminally prosecuted?
      Clement: The Oakland Cannabis Buyers Club case, as we read it and some members of this Court may disagree, rejects a medical necessity defense. But there is a deeper flaw in Respondent’s position: there is a mismatch between the California law and the argument that this conduct does not involve interstate commerce. California provides a defense even to those who purchase marijuana from the illegal interstate market.
    Justice Stevens now joins in.
      Stevens: What class of activities is at issue here? Are you saying that there can never be an as applied challenge?
      Clement: Yes, under the commerce clause, there can be no as applied challenge.
    This was a hugely significant exchange. If there is no such thing as an as-applied challenge under the Commerce Clause, then the government wins. But this position seems radically implausible. In Wickard v. Filburn itself the Supreme Court analyzed the challenge “as applied” to Mr. Filburn’s conduct.
      O’Connor: In Morrison didn’t we say that the Commerce Clause does not reach noneconomic activity that only affects commerce through a “but for” causal chain?
      Clement: In Morrison, the activity was noneconomic.
      O’Connor: Isn’t this activity noneconomic, because the marijuana here was grown for personal use?
      Clement: But Wickard v. Filburn is indistinguishable.
      Justice Kennedy: If we rule for the plaintiff’s wouldn’t the price for marijuana go down?
      Clement: Yes, the price would go down. Congress is trying to increase the price for marijuana by creating a black market. Marinal provides a safe version of THC, and that provides a hook for the application of Congress’s Commerce Clause power. The statute trumps the individual physician’s determination that raw marijuana is medically necessary. The federal regulations do not allow doctors to make such a determination.
      Stevens: Can we ignore a district court finding that marijuana is medically beneficial?
      Clement: It depends. If the context is review of the scheduling decision, then the medical evidence would be relevant. The FDA has no inherent hostility to THC; it has rescheduled marinol from the schedule 2 to schedule 3.
      Ginsburg: Have there been any challenges to marijuana’s position on schedule one?
      Clement: Yes. Efforts have been made. The Institute of Medicine Study made it clear that smoked raw marijuna has no future as a legitimate phramaceutical. Rather, we would take the raw material and synthesize the medically beneficial ingredients. This is because smoking marijuana is harmful.
      Souter: If the Respondent’s argument suceeds then we would have the question whether recreational use would be covered by our ruling. In deciding what the appropriate subclass might be, can’t we take into account the health benefits of medical marijuana?
      Clement: It would not be a good idea for the courts to second guess Congress.
    Respondent’s Argument Clement’s argument ended with his reservation of time for rebuttal. The oralist for the Respondent is Randy Barnett—familiar to many readers of Legal Theory Blog as a member of the Volokh Conspiracy and a distinguished constitutional law scholar. Barnett begins:
      Barnett: May it please the Court, I have two points. The first point is that the activity involved here is wholly intrastate and noneconomic in nature. The second point is that regulation of this activity is not essential to a broader regulatory scheme.
      Kennedy: But isn’t simple possession part of the market.
      Barnett: It depends on the facts. Posession of marijuana for sale or after purchase is part of the market, but possession of home grown marijuana for personal medical use is not.
      Kennedy: But isn’t marijuana fungible?
      Barnett: Fungibility is at issue in this case, but the fungibility of marijuana does not speak to the question whether possession of marijuana for personal medical use is economic activity.
    Justice Scalia jumps in:
      Scalia: What about the Endangered Species Act? Can Congress reach possession of a individual member of an endangered species if there is no economic activity.
      Barnett: That might be essential to a broader regularoty scheme, but in this case the medical use of marijuana is isolated by state law from the interstate market.
      Scalia: What is the basis for narrowing the category of activity in that way?
      Barnett: The State of California has narrowed the class of activity by authorizing only medical cannabis.
      Scalia: But isn’t it true that among the users of medical cannabis are whole communes with lots of people in them smoking marijuana.
    Justice Breyer now gets in:
      Breyer: I haven’t been able to understand why it would be that Congress has no power when the state acts. Why would state regulation limit federal power?
      Barnett: The federal government can only reach noneconomic activity if the state’s authorization of that activity would undermine a broader scheme for the regulation of interstate commerce. The state statute isolates medical cannabis from the larger recreational market.
      Breyer: What if a state were to authorize use of cocaine or heroin or genetically modified tomatoes that Congress believed were harmful to health?
      Barnett: Congress could reach such noneconomic activity if it were essential to a broader regulatory scheme.
      Breyer: So you are asking us to compare the state and federal schemes and to determine whether the it is essential to the federal scheme in light of what the state scheme does. That sounds difficult for this court to do. The government is arguing in this case that large numbers of consumers will use medical marijuana, and hence that lower prices will undermine the federal scheme. We won’t know what effect the state law will have on the federal scheme. Won’t that be a mess?
      Barnett: There are two points in your question. (1) whether numbers of medical users will be large, and (2) whether it will be possible to identify medical users and hence distinguish them from recreational users. On the first point, the numbers are very small. The government quotes the National Organization for Marijuana Laws for their figure of 100,000. We quote the official government figures showing the number is insignificant. These people are taken out of the illegal market by the California law.
      Breyer: But isn’t the effect for Congress to decide?
      Barnett: There is a threshold issue. If this is noneconomic activity, then it can only regulated if essential to a broader regulatory scheme.
      Kennedy: But isn’t this just like baking bread or washing dishes, which our cases show is an economic activity?
      Barnett: Those can be economic activities if they are part of a commercial enterprise, but the government’s position leads to the conclusion that washing dishes at home is economic.
      Souter: Assume there are 100,000 users, under the California statute, can’t they buy it on the street? The statute does not differentiate between possession of homegrown and street-bought marijuana.
      Barnett: But medical users have every incentive not buy marijuana on the street. They can be prosecuted for buying it on the street.
      Souter: Couldn’t it be the case that millions of medical users would be buying marijuana on the street?
    The next exchange, between Barnett and Ginsburg, explored a particularly interesting issue.
      Ginsburg: If we rule for you, why wouldn’t our ruling cover someone in a neighboring state who grew their own marijuana for medical use even though the state had not authorized it?
      Barnett: There are two differen answers to this question. First, assuming this Court does not create an “essential to a broader regulatory scheme” exception to Lopez and Morrison, then your ruling would reach noneconomic medical use in states that have not authorized medical cannabis use. Second, if you do recognize the “essential to a broader regulatory scheme” exception, then the question is whether the lack of authorization makes a difference. California, for example, will issue ID cards that will help to isolate medical use from the interstate market.
      Ginsburg: But there are no ID cards now.
      Barnett: But the Court should trust the state to take those measures necessary so that the state authorization serves its intended purpose.
    And the next exchange, between Barnett and Justice Breyere was also very interesting.
      Breyer: Now I think I understand your position. You are arguing that if the activity is noneconomic, then Congress can only reach it under the “essential to a broader regulatory scheme” exception. But then doesn’t the Morrison case go my way, on the theory that the regulations challenged there were essential to a broader scheme.
      Barnett: That’s why the “essential to a broader regulatory scheme” exception must be interpreted narrowly—so that it is consistent with Morrison.
    Justice Breyer clearly grasps the Respondent’s theory, but because he dissented in Morrison, he does not accept its underlying premises.
      Breyer: But isn’t the connection to the market closer than in Morrison?
      Barnett: But here, unlike Lopez where the gun was from interestate commerce, the marijuana is wholly intrastate.
    In the next exchange, Barnett and Scalia disagree over the meaning of Wickard v. Filburn.
      Scalia: If there had been an interstate connection in Lopez, wouldn’t we come out there other way?
      Barnett: But here there is no interestate connection.
      Scalia: That sounds like Wickard v. Filburn, where the family was eating the wheat they grew on their own farm.
      Barnett: If the only activity relating to wheat on the Filburn farm was eating it at the family dinner table, the case would never have been brought.
      Scalia: Isn’t that exactly what Wickard v. Filburn was about? I don’t think you’ve characterized that case fairly.
      Barnett: The phrase “home consumed” in context meant consumed on the farm, by feeding to livestock, etc.
      Breyer: But wasn’t homegrown and consumed wheat still regulated, irrespective of the particular use? The question was whether it “exerted substantial economic effect”.
      Barnett: At that time, the Court was using the narrower definition of “commerce” that Justice Thomas has argued for. What we would call it today is “economic activity.” Filburn was engaged in economic action as part of a commercial farming enterprise.
      Scalia: So why isn’t this economic activity?
      Barnett: In Wickard v. Filburn the wheat was grown as part of a commercial enterprise and fed to livestock sold on the market.
      Stevens: What is your view on the effect of the state law on the interstate market? Increase prices, no effect on prices, or decrease in prices?
      Barnett: Can I choose trivial reduction of price?
      Stevens: If you reduce demand, then you will reduce prices? Wouldn’t it increase prices?
      Barnett: No, if you reduce demand, you reduce price.
      Stevens: Are you sure?
      Barnett: Yes.
      Souter: Suppose that 100,000 people are in chemotherapy in California. Then couldn’t there be 100,000 users of medical marijuana?
      Barnett: There could be.
      Souter: If there are 34 million people in California, then there could be 100,000 people in chemotherapy.
      Barnett: It is important to remember that the law confines medical cannabis use to the people who are sick and have a physicians recommendation. Wickard v. Filburn’s aggregation principle does not apply if the activity involved is noneconomic.
      Souter: But isn’t the argument that it is economic activity if it has a sizeable effect on the market?
      Barnett: No. The effect on the market is only relevant if it is market activity.
      Souter: But in Lopez wasn’t the effect on the market much more remote than the effect involved in this case?
      Barnett: The point is that economic activity and personal liberty are two different categories.
      Souter: That is not a very realistic premise.
      Barnett: The premise is that it is possible to differentiate economic activity from personal activity. Prostitution is economic activity, and there may be some cross substitution effects between prostitution and sex within marriage, but that does not make sex within marriage economic activity. You look at the nature of the activity to determine whether or not it is economic.
      Breyer: If marijuana is medically helpful, can’t your clients go to the FDA and get it rescheduled. Then if the FDA rules against them, they can go to court and the FDA ruling can be reviewed for abuse of discretion. And if there is no abuse of discretion, then wouldn’t I believe as a judge and an individual that it is doubtful there is a medical benefit? Is medicine by regulation better than medicine by referendum?
      RB: I would simply ask you to read the account of obstruction of research in the amicus brief and the Institute for Medicine report cited by both us and the government. It is true that marijuana is smoked, but that is because it saves the lives of some sick people.
      Kennedy: Are prescriptions limited to cases where marijuana is life saving?
      Barnett: It is limited to a list of illnesses.
      Ginsburg: I have procedural question. You’ve asked for an injunction against criminal prosecutions. Isn’t there an equitable principle against enjoining criminal prosecutions?
      Barnett: We’ve also asked for an injunction against the seizure of marijuana, which has occurred in this case. Such seizures put the supply at jeopordy.
    Petitioner’s Rebuttal Clement then proceeded to a short rebuttal, which was not interrupted by the Court.
      Clement: Respondent wishes the Court to believe that medical cannabis is hermetically sealed, but the state law is not designed to limit the class of authorized activity to the intrastate noncommercial marijuana. We have cited the NORML figure which indicates that there are 100,000 users. The Respondent’s brief indicates that .5% of the poplulation uses medical marijuana; that translates into 170,000 users. As to what conditions are covered, the last item on the list includes any other condition that gives rise to chronic and serious harm to physical or mental health. That is a very broad definition. In real world cases, the defense provided by the California law was made available to a defendant who had 19 ounces of marijuana and a scale. That case was allowed to go a jury. In a Santa Cruz case, a 250 person cooperative claimed the benefit of the law. The line between the illegal market and authorized medical use is not practical.
    And with that oral argument came to a close.
    Impressions Both oralists did very well. And both sides have weaknesses in their theories. Here are some specific points:
    • The government’s position on the line between economic and noneconomic activity is very weak. Cross substitution of demand is a very reasonable conception of the economic for the purposes of the academic study of economics, but it is just plain silly as an interpretation of Lopez and Morrison. The Respondent’s position in oral argument—that economic activity must be part of a process leading to sale or barter—is much stronger. Under the government’s theory, virtually all human activity is economic, including the very activity at issue in Lopez and Morrison.
    • The government’s positon on as applied challenges is also problematic. Essentially, the government seems to argue that the only permissible challenges under the Commerce Clause are facial challenges. The consequence is that the class of activity regulated is all of the activity reached by the statue. If that position is accepted by the Court, then the government wins in Ashcroft v. Raich, but the implication would be that Congress could reach any conceivable activity simply by including the regulation of that activity within a statute that also reached interestate commerce. That position might have been accepted before Lopez and Morrison, but it cannot be accepted today unless the Supreme Court wants to limit or overrule its “New Federalism” cases.
    • The government made a very strong case for the idea that it will be hard to draw a line between medical and nonmedical uses. The examples given at the very end of Clement’s rebuttal were especially effective.
    • The respondents were remarkably effective in the way they handled the “parade of horribles,” e.g. the possibility that a ruling for them could lead to an inability to regulate intrastate heroin, endangered species, etc. Their key move was to show that such regulations could be validated if the Court does adopt the “essential to a broader regulatory scheme” exception that was suggested in Lopez.
    • The respondents were very strong on the economic/noneconomic distinction. Barnett’s prostitution/marriage example was especially compelling. Only Justice Souter seemed outwardly unconvinced by this line of argument.
    • The respondents were very strong on the theory of the “essential to a broader remedial scheme” exception. Many of the justices seemed to accept that Congress only had power if the government could show that the regulation of intrastate, noneconomic, state-authorized medical cannabis was essential to regulation of the interstate recreational markiet.
    Bottom Lines So how will Ashcroft v. Raich come out? I don’t know. I got a sense that O’Connor, Ginsburg, and perhaps Stevens were quite sympathetic to the respondents. Based on his questions, Justice Kennedy seemed quite favorable to the government. One would guess that Justice Thomas will be the hardest member of the Court for the government to win. One might also guess that it will be hard for the petititoners to win Souter or Bryer, who both are very skeptical of Lopez and Morrison. Justice Rehnquist is hard to call. We didn’t hear from him. One suspects he is both pro-federalism/state power and pro-federal regulation of drugs. One can imagine this case coming out 5-4 either way. Before argument, I would have said it could be 9-0 either way, but if I allow myself the dangerous pleasure of reading the tea leaves, I now think that is unlikely.

Monday Calendar
    Columbia Legal Theory Workshop: Jeffrey Stout of Princeton University, "The Spirit of Democracy".
    NYU School of Law: Avishai Margalit (Visiting from The Hebrew University of Jerusalem) Human Dignity between Kitsch and Deification.
    Oxford Moral Philosophy Seminar: Serena Olsaretti, Cambridge.
    UCLA School of Law: Carol Bruch, UC Davis Law School, "Lawlessness in California's Family Courts".

Book Announcement: Covenants without Swords
    Covenants without Swords: Idealist Liberalism and the Spirit of Empire by Jeanne Morefield To read the entire book description and a sample chapter, please visit: Covenants without Swords examines an enduring tension within liberal theory: that between many liberals' professed commitment to universal equality on the one hand, and their historic support for the politics of hierarchy and empire on the other. It does so by examining the work of two extremely influential British liberals and internationalists, Gilbert Murray and Alfred Zimmern. 0-691-11992-9 Cloth $39.50 US and £26.95 280 pages. 6 x 9.

Sunday, November 28, 2004
Legal Theory Calendar
    Monday, November 29
      Columbia Legal Theory Workshop: Jeffrey Stout of Princeton University, "The Spirit of Democracy".
      NYU School of Law: Avishai Margalit (Visiting from The Hebrew University of Jerusalem) Human Dignity between Kitsch and Deification.
      Oxford Moral Philosophy Seminar: Serena Olsaretti, Cambridge.
      UCLA School of Law: Carol Bruch, UC Davis Law School, "Lawlessness in California's Family Courts".
    Tuesday, November 30
      Oxford Jurisprudence Discussion Group: Stephen Guest, Integrity, Equality, and Justice.
      Northwestern Employment Law: Christina Rodriguez, New York University Law School, "Language and Participation"
      University of Chicago, Law & Economics: Mark J. Roe, Professor of Law, Harvard Law School, Delaware's Politics.
      Oxford Intellectual Property Research Centre: Dr. Mira T. Sundara Rajan, INTELLECTUAL PROPERTY IN THE NEW MILLENNIUM: Copyright and Creative Freedom: Are Moral Rights the Future of Copyright Law?
      Vanderbilt School of Law: Michael Vandenbergh, "Order without Social Norms: How Personal Norm Activation can Protect the Environment".
    Wednesday, December 1
      Florida State University, School of Law: Sanja Kutnjak Ivkovich, Florida State University School of Criminology, "A Comparative Perspective on the Police Code of Silence."
      Oxford Centre for Criminology: James L. Nolan, Problem-Solving Courts: a Comparative Study of a Legal Transplant.
      Oxford Institute of European and Comparative Law in conjunction with Comparative Law Discussion Group: Professor Jacques du Plessis, Duress and Undue Influence in Mixed Legal Systems and the Principles of European Contract Law.
      Oxford Public International Law Discussion Group in conjunction with Financial Law Discussion Group: Lee Buchheit, The Role of the Official Sector in Sovereign Debt Workouts: the Case of Iraq.
      NYU Legal History: William Novak, Visiting Professor, NYU School of Law.
      Oxford Comparative Law Discussion Group in conjunction with Private and Commercial Law Discussion Group: Professor Jacques du Plessis, Duress and Undue Influence in Mixed Legal Systems and the Principles of European Contract Law.
    Thursday, December 2. Friday, December 3

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

Saturday, November 27, 2004
Legal Theory Bookworm This week the Legal Theory Bookworm recommends A New World Order by Anne-Marie Slaughter. Here is a brief description:
    Breaking new ground in international relations theory, Slaughter urges readers to lose their "conceptual blind spot" and see how the world really works. Scholars, pundits and policymakers, she writes, have traditionally seen nations as "unitary"—that is, as single entities that "articulate and pursue a single national interest." In fact, she says, we would do better to focus on government networks, both horizontal and vertical. Horizontal networks link counterpart national officials across borders, such as police investigators or financial regulators. Vertical networks are relationships between a nation's officials and some supranational organization to which they have ceded authority, such as the European Court of Justice. Networks, she says, are the solution to the "globalization paradox": The world needs global governance to combat problems that jump borders, like crime and environmental degradation, and yet most people fear—rightly, Slaughter implies—the idea of a centralized, all-powerful world government. The book both describes the here and now and plots a course for the future: Strengthening existing networks and developing new ones "could create a genuine global rule of law without centralized global institutions." The author, who is the dean of the Woodrow Wilson School of Public and International Affairs at Princeton as well as president of the American Society of International Law, is steeped in these issues and offers genuinely original thinking. Written in dense academic language, this book will not pick up many casual readers, but it will likely attain instant textbook status and generate much discussion about foreign policy and whether, as Slaughter believes, the U.S. should welcome such networks in a globalized world.
I take special pleasure in recommeding Slaughter's very fine book!

Download of the Week This week, the Download of the Week is Moral Positivism by Roger Crisp. Here is a taste from early in the paper:
    Philosophical ethics is like the philosophy of religion or jurisprudence, in that it emerges out of a set of social practices with their own particular place in our lives. Without religion or law, there would be no philosophy of religion or jurisprudence; and without morality, there would be no ethics. Nearly every human society that we know of has possessed some form of morality or other – what I shall call a ‘positive morality’:
      Positive Morality: An internalized set of cognitive and conative states, socially engendered and including beliefs, desires, and feelings, which leads its possessor among other things to (a) view certain actions as wrong (that is, forbidden by morality) and hence to be avoided, (b) feel guilt and/or shame as a result of performing such actions, and (c) blame others who perform such actions. Note that this definition is intended to capture the ‘core’ of positive morality as we understand it. We might imagine a set of action-guiding states consisting only in beliefs about ideals, and involving as sanctions only ‘carrots’ rather than ‘sticks’ – what Hume calls in the conclusion to his Enquiry ‘the peaceful reflection on one’s own conduct’, for example, and praise rather than blame. Our own positive morality of course contains such elements, but for the purposes of my discussion I shall take them as inessential. A positive morality may lack them, and on their own they are too distant from our conception of a morality to be thought of as essential. The central elements of a positive morality are attributions of wrongness, and the sanctions of guilt, shame, and blame.
    Those familiar with the philosophy of law will already have guessed that I chose the name ‘positive morality’ advisedly, to correlate with the term ‘positive law’ as used to refer to those laws that have been created within some legal system or other, as opposed to ‘natural law’, which is not created by human beings and is independent of legal systems understood in positive terms.8 For I now want to claim that there are important analogies between positive law and positive morality.
Highly recommended! Download it while its hot!

Friday, November 26, 2004
Law & Politics Book Review
    THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW, by Larry D. Kramer. New York: Oxford University Press, 2004. 363pp. Hardback. $29.95 / £19.99. ISBN: 0-19-516918-2. Reviewed by John Michael Eden & John Paul Ryan.
    RESTORING THE LOST CONSTITUTION: THE PRESUMPTION OF LIBERTY, by Randy E. Barnett. Princeton, New Jersey: Princeton University Press, 2003. 360pp. Cloth. $32.50 / £21.50. ISBN: 0-691-11585-0. Reviewed by Ronald Kahn.
    OVERCOMING APARTHEID: CAN TRUTH RECONCILE A DIVIDED NATION? by James L. Gibson. New York: Russell Sage Foundation, 2004. 467pp. Hardcover. $47.50. ISBN: 0-87154-312-5. Reviewed by Ayo Ogundele.
    PERILOUS TIMES: FREE SPEECH IN WARTIME FROM THE SEDITION ACT OF 1798 TO THE WAR ON TERRORISM, by Geoffrey R. Stone. New York: W. W. Norton & Company, 2004. 800 pp. Cloth $35.00. ISBN: 0-393-05880-8. Reviewed by Brian Pinaire.
    DEVIANT KNOWLEDGE: CRIMINOLOGY, POLITICS AND POLICY, by Reece Walters. Portland, OR: Willan Publishing, 2003. 256pp. Paperback. £18.99 / US $29.50. ISBN 1-84392-029-8. Hardback. £40.00 / US $59.95. ISBN 1-84392-030-1. Reviewed by Lisa L. Miller.
    THE MOTHER OF ALL CRIMES: HUMAN RIGHTS, CRIMINALIZATION AND THE CHILD BORN ALIVE, by Emma Cave. Burlington, VT: Ashgate Publishing Co., 2004. 172pp. Hardback. $84.95 / £47.50 ISBN 0-7546-2366-1. Reviewed by Rhonda L. Callaway.
    LIMITING ARBITRARY POWER: THE VAGUENESS DOCTRINE IN CANADIAN CONSTITUTIONAL LAW, by Marc Ribeiro. Vancouver: UBC Press, 2004. 256pp. Hardcover. $85.00. ISBN: 0-7748-1050-5. Paper $29.95. ISBN: 0-7748-1051-3. Reviewed by Matthew Hennigar.
    KNOWLEDGE POWER: INTELLECTUAL PROPERTY, INFORMATION & PRIVACY, by Renée Marlin-Bennett. Boulder and London: Lynne Rienner Publishers, 2004. 274 pp. Paperback. £16.50 / $23.50. ISBN: 1-58826-281-2. Hardcover. £45.95 / $59.95. ISBN:1-58826-256-1. Reviewed by Debora Halbert.
    JUDICIAL REVIEW AND COMPLIANCE WITH ADMINISTRATIVE LAW, by Simon Halliday. Oxford and Portland, Oregon: Hart Publishing, 2004. 188 pp. Hardcover $50.00 / £25.00 ISBN: 1-84113-265-9. Reviewed by Eli Paul Mazur.

Thursday, November 25, 2004
Call for Papers: Emotions, Others, and the Self
    CALL FOR PAPERS EMOTIONS, OTHERS AND THE SELF August 25-27, 2005 Åbo Akademi University, Turku/Åbo, Finland. The research group "Emotions and Understanding" at the Department of Philosophy, Åbo Akademi University, Turku/Åbo, Finland, invites papers for an international conference on the theme "Emotions, others and the self", 25-27 August, 2005. THE THEME OF THE CONFERENCE In recent years academic interest in emotions has increased in different fields such as psychology, cognitive science, education, and philosophy. In philosophy emotions are now considered to be important from many different angles, in moral philosophy as well as in philosophy of mind, philosophy of psychology, social and political philosophy, etc. The focus of philosophical discussions of emotions has often been on whether emotions are merely feelings or whether they involve rational thinking. These discussions tend to concentrate on how emotions concern us as individuals. Rather than discussing emotions as a matter of individual experience or as a matter of rational belief, the theme of this conference is to bring out the various roles emotions have from the perspective of a life shared with other people. Themes that may be discussed from an interpersonal perspective are: Emotions and moral concern; Emotions and personal relations; How do we understand other people's emotions?; Emotions from a feminist perspective; Emotions and the body; The other as a condition for emotional maturity and growth; Emotions, health and madness; Emotions and self-understanding; Interpersonal emotions such as love, envy, hate, jealousy, anger, sorrow, shame, guilt etc. Also other workshop themes may come up depending on the abstracts that are submitted. The plenary speakers of the conference include: Lilli Alanen, (Uppsala University), author of Descartes' Concept of Mind. John Canfield, (University of Toronto), author of The Looking Glass Self, an examination of self-awareness. Leila Haaparanta, (University of Tampere). Phil Hutchinson, (Manchester Metropolitan University). Camilla Kronqvist, (Åbo Akademi). Brian Parkinson, (Christchurch College, Oxford) author of Ideas and Realities of Emotion and Emotion in Social Relations: Cultural, Group and Interpersonal Processes. Robert C. Roberts, (Baylor University, Texas), author of Emotions: An Essay in Aid of Moral Psychology. Robert C. Solomon, (University of Texas at Austin), author of The Passions and About Love: Reinventing Romance for our Time. CALL FOR PAPERS We hereby invite workshop contributions which address questions related to the theme of the conference. Each workshop session will be 45 minutes (20 minutes for presentation, 25 minutes for discussion).We plan to make the plenary papers and the workshop abstracts available in advance on the conference website. Please submit a 500 word abstract of the paper you wish to present by email to: preferably as a Word document or in RTF format. DEADLINE for abstracts is 15 April 2005! Accepted authors will be notified by 15 May 2005. We also warmly welcome participants who do not wish to give a paper. The conference fee will be 20 EUR. For undergraduate students the conference is free of charge. The optional conference dinner will cost around 25 EUR extra. More information will be found at: ORGANIZERS The conference is organized by the "Emotions and Understanding" research project at the Department of Philosophy, Åbo Akademi University, Turku/Åbo, Finland and financed by the Academy of Finland. More information about our project can be found at The members of the organizing committee are Ylva Gustafsson, Lars Hertzberg, Tom Kettunen, Camilla Kronqvist and Michael McEachrane. CONTACT INFORMATION Tom Kettunen Department of Philosophy at Åbo Akademi University Fabriksgatan 2 FIN-20 500 Åbo Finland email: tel. +358 2 215 3611

Conference Announcement: Intentionality, Deliberation and Autonomy
    “Intentionality, Deliberation and Autonomy – The Action-Theoretic Basis of Practical Philosophy” March 11-13, 2005 – Certosa di Pontignano – Siena – Italy PUBLIC ANNOUNCEMENT THE CONFERENCE: March 11-13, 2005 an international conference "Intentionality, Deliberation and Autonomy – The Action-Theoretic Basis of Practical Philosophy" will be held at the University of Siena (Italy) (or more precisely: in the university's conference centre Certosa di Pontignano in the countryside of Siena). AIM OF THE CONFERENCE: A central philosophical presupposition leading to this conference is that philosophy of action at least in part should provide important underpinnings for the rest of practical philosophy. It should e.g. explain what desires and explanatory reasons consist in and what their content is, which then would be an important basis for normative theories of practical reason and practical rationality. Or it should explicate what intentionality and attributability consist in for providing the basis for moral, legal etc. theories of responsibility. Or it should find out the basis of autonomy and contribute to normative theories of autonomy; etc. In the last decades action theory sometimes has lost sight of this practical orientation. The aim of the conference is to strengthen the relation to practical philosophy in philosophy of action and to support and promote those approaches, developments and theories that might be able to provide important foundations for practical philosophy. SPEAKERS AND PAPERS: Papers will be presented by (papers' titles are only provisional):
      Robert Audi (University of Notre Dame, USA): The Grounds and Structure of Reasons. Michael Bratman (Stanford University, USA): Anchors for Deliberation. Eddy Carli (Università di Padova, Italy): Do Practical Syllogisms Systemize Practical Reasoning? Carl Ginet (Cornell University, USA): An Action Can Be Both Uncaused and Up to the Agent. Geert Keil (Humboldt Universität Berlin, Germany): What Do Deviant Causal Chains Deviate From? Christoph Lumer (Università di Siena, Italy): Practical Reasons Empirically. Hugh McCann (Texas A&M University, USA): The Will and the Good. Alfred Mele (Florida State University, USA): Free Will: Action Theory Meets Neuroscience. Carlos Moya (Universidad de Valencia, Spain): Belief and Moral Responsibility. Sandro Nannini (Università di Siena, Italy): Action Theory and Cognitive Turn. Michael Quante (Universität Duisburg-Essen, Germany): Autonomy for real people. Neil Roughley (Universität Konstanz, Germany): Unwrapping the Package Deal: Why Intention's Specificity is no Foundation for Double Effect. Gottfried Seebass (Universität Konstanz, Germany): Forming the Will Freely. Michael Smith (University of Princeton, USA): Diachronic Self-Control. Thomas Spitzley (Universität Duisburg, Germany): Autonomy and Weakness of the Will. Ralf Stoecker (Universität Bielefeld, Germany): Responsibility and Action – a second look at ascriptivism.
    ORGANIZATION AND SPONSORING: The conference is organized by Christoph Lumer (e-mail: and Sandro Nannini (e-mail: (both University of Siena). Sponsoring by the Fritz Thyssen Stiftung is gratefully acknowledged. PARTICIPATION: The conference shall be more or less open for "passive" participants, available space permitting. The cost of three days accommodation and full board in the Certosa di Pontignano is about 160-190 Euros (single person) and about 280 Euros (two persons in double room), respectively; attendance itself will be without charge. Those interested in participation may contact Mrs. Fancesca Ghiselli (e-mail: FURTHER INFORMATION: Further information about the conference is available on the conference's website:

Wednesday, November 24, 2004
Wednesday Calendar
    Florida State University, School of Law: David Driesen, Syracuse University, "Cost-Benefit Analysis as a Neutral Principle."
    Lewis & Clark Law School: John Parry (University of Pittsburgh School of Law) (visiting L & C), 'Just for Fun': Understanding Torture and Understanding Abu Ghraib.
    Northwestern University, Law & Economics: Deborah Lucas, Kellogg School of Management "Understanding and Controlling PBGC's Risk Exposure"
    Oxford Moral Philosophy Seminar: Robert Sugden, East Anglia.

Tuesday, November 23, 2004
Rodriguez on Straw Polls Daniel B. Rodriguez (University of San Diego School of Law) has posted Straw Polls (Journal of Contemporary Legal Issues, Vol. 12, p. 791, 2002) on SSRN. Here is the abstract:
    A key measure of the democratic quality of a political community is how its members vote. The design and implementation of voting arrangements can illuminate the nature, purposes, and even potential of a community of citizens. Voting is, at the very least, used to sort out and implement preferences. Voting processes help in sorting out winners from losers and thereby provide a presumptively fair method for the implementation of public policy. At the same time, voting in a democratic policy is a coercive act. Voters are not merely expressing preferences; they are acting in order to transform their preferences into policy. How ought we to think about this coercive aspect of voting? The subject of my essay is one narrow aspect of this larger puzzle, that is, the consideration of a particular voting device - the straw poll - and its potential impact upon democratic decision-making. The puzzle of voting as a democratic method of deciding in political communities that interests me here is this: How much difference does it make, and ought it to make, whether voters who make their views known in a particular decision-making episode know of the preferences of others? And from a practical political standpoint, the interdependence of decision-makers' preferences is a ubiquitous feature of politics, affecting logrolling, negotiations, and various aspects of political strategy. My basic normative claim is that to the extent that a political community ought to value the preferences, thoughts, and ideas of others, it ought to reflect upon community members' preferences before finally deciding. In discussions of participatory democracy, this other-regardingness is usually dealt with by some sort of deliberation. Another way - more mechanical, but more realistic as a component of a decision-making process - is through the mechanism of a straw poll.
Download it while its hot!

Farmer & Pecorino on Settlement Failure Amy Farmer and Paul Pecorino (University of Arkansas at Fayetteville - Department of Economics and University of Alabama - Department of Economics, Finance and Legal Studies) have posted Preferences, Information and Settlement Failure on SSRN. Here is the abstract:
    Asymmetric information on preferences is a potentially important explanation of bargaining failure. Preferences are not directly observable and information about preferences may be difficult to credibly establish to a bargaining partner. Unobserved preferences which may be relevant for pretrial bargaining include the degree of risk aversion, the degree of litigiousness, and a taste for fairness. These contrast with fact based explanations such as asymmetric information on the probability of a finding for the plaintiff at trial or on the extent of the plaintiff's damages. In this paper, we show that there is an important difference between informational asymmetries which are fact based and those which are preference based. In particular, with a fact based asymmetry, the standard bargaining model predicts trials regardless of whether the uninformed party or the informed party makes the offer. By contrast, under the preference based explanation, disputes are only predicted in the model in which the uninformed party makes the offer. We illustrate this point in a simple model of pretrial bargaining.

Tuesday Calendar

Monday, November 22, 2004
Monday Calendar

Bell on Just Compensation Abraham Bell (Bar Ilan University - Faculty of Law) has posted Not Just Compensation on SSRN. Here is the abstract:
    This Article develops a contributory negligence rule for takings compensation under which property owners will not be awarded compensation where they overdevelop their property. I propose that a contributory negligence standard be implemented by soliciting homeowner self-assessments that would serve as the basis of both the magnitude of the award of takings compensation and of the decision as to whether property development has been contributorily negligent. By analogy with economic models of tort law, I show that compensation policy must create bilateral incentives that, on the one hand, deter government decisionmaking on the basis of fiscal illusion, and, on the other hand, discourage property owner behavior on the basis of moral hazard. To be coherent, this compensation policy must have a clear manner of determining the baseline value of property, and it must avoid strategic timing that creates condemnation blight.

Drassinower on Originality in Canada Abraham Drassinower (University of Toronto - Faculty of Law) has posted Sweat of the Brow, Creativity and Authorship: On Originality in Canadian Copyright Law (University of Ottawa Law & Technology Journal, Vol. 105, No. 1 & 2, 2003-2004) on SSRN. Here is the abstract:
    The paper offers a theoretical analysis of the tension between "sweat of the brow" and "creativity" approaches to the "originality" requirement in recent Canadian copyright jurisprudence. The paper formulates that tension as one between two different and incompatible versions of the very meaning and purpose of copyright law. On the one hand, the "sweat of the brow" approach reflects a "misappropriation" model of copyright law, for which fairness to the author as labourer is the central and animating concern. On the other hand, the "creativity" approach reflects a "public interest" model of copyright law, for which the production and dissemination of authorial works in the name of the public interest is the central and animating concern. In that context, the paper reveals the neglected influence of a third vision of copyright law: the "authorship" model. On that basis, the paper shows that, because it is not framed in terms of the traditional opposition between author and public, the authorship model offers a vision of copyright law for which respect for authorship is consistent with the public domain. In so doing, the paper engages themes fundamental to the Supreme Court of Canada's recent landmark decision in CCH Canadian Ltd. V. Law Society of Upper Canada.

Event Announcement: Engemann at Stanford's CIS
    The Center for Internet and Socienty (CIS) and the Stanford Law and Technology Association (SLATA) Lunchtime Speaker Series Present: Free Software in the public sector - on the political economy of code with Christoph Engemann CIS Fellow Monday November 22, 2004 12:30 - 1:30 p.m. Room 180 Free and Open to all! Lunch Served The public sector has become a major driver in the adaption of Free Software solutions. The decisions of the municipalities of Munich and Paris to migrate from Microsoft to Linux are only the most visible examples, while many other government entities worldwide silently follow suit. Some countries even have banned the use of proprietary software within their administrations. The development as such remains fiercely contended, with proprietary software vendors claiming that their solutions can deliver the same or better quality and security as Free Software at a competitive price point. In his presentation Christoph will give an overview of the recent development in this field and will develop a normative argument why liberal-democratic societies are obliged to adopt Free Software in the public sector. Learn more about Christoph at his blog--

Sunday, November 21, 2004
Legal Theory Calendar
    Monday, November 22 Tuesday, November 23 Wednesday, November 24
      Florida State University, School of Law: David Driesen, Syracuse University, "Cost-Benefit Analysis as a Neutral Principle."
      Lewis & Clark Law School: John Parry (University of Pittsburgh School of Law) (visiting L & C), 'Just for Fun': Understanding Torture and Understanding Abu Ghraib.
      Northwestern University, Law & Economics: Deborah Lucas, Kellogg School of Management "Understanding and Controlling PBGC's Risk Exposure"
      Oxford Moral Philosophy Seminar: Robert Sugden, East Anglia.

Legal Theory Lexicon: Conduct Rules and Decision Rules The target audience of Legal Theory Lexicon is law students, especially first year law students, with an interest in legal theory. Here is a very short entry to provide a very brief break from studying:
    Substantive rules of law (such as the rules of torts, contract, and property) are usually assumed to be addressed to two audiences. As conduct rules, the substantive law is addressed to everyone (citizens, officials, and noncitizens). Thus, property law tells us who has dominion over which resources. If this land is mine, then the law communicates the message that I can use my land and exclude others from its use. These very same legal rules also serve as decision rules, they tell courts how to resolve disputes. We usually assume that the content of the conduct rules are the decision rules are identical, but this need not be the case. Professor Meir Dan-Cohen of U.C. Berkeley proposed a very famous thought experiment. He asked us to imagine acoustic separation between ordinary citizens, who would only "hear" the conduct rules, and officials (such as judges), to whom the decision rules would be addressed. This leads naturally to the following thought: should decision rules and conduct rules have the same content or should they differ. And if they differ, how could the law prevent acoustic leakage, e.g. prevent ordinary citizens from learning about the content of the decision rules?
    Example? Here's a pretty clear example. Suppose that we have a conduct rule that says, "Ignorance of the law is no excuse." This might be a good conduct rule, because we want citizens to inform themselves about the content of the law, and we certainly don't want citizens deliberately insulating themselves from knowledge of the law in order to create a defense if they charged with its violation. But at the same time, we might prefer that ignorance of the law would serve as an excuse, at least some of the time, when it comes to actually convicting and punishing defendants. Punishment is expensive and injurious, and sometimes no really good purpose will be served by punishing someone who is reasonably ignorant of the law's content.
    But how can we excuse ignorance of the law without altering the conduct rule?One way to accomplish this goal would involve some obfuscation by judges. Opinions might state boldly: "Ignorance of the law is no excuse," while simultaneously excusing ignorant defendants on the ground that "knowledge of the legal status of the intentional content is part of the mental state that is an element of the crime." The first formulation is easily accessible to ordinary folks; the second is couched in language that may be opaque except to those trained in the law.

Saturday, November 20, 2004
Legal Theory Bookworm The Legal Theory Bookworm recommends Taking the Constitution Away from the Courts by Mark Tushnet. Here's a brief description:
    Here a leading scholar in constitutional law, Mark Tushnet, challenges hallowed American traditions of judicial review and judicial supremacy, which allow U.S. judges to invalidate "unconstitutional" governmental actions. Many people, particularly liberals, have "warm and fuzzy" feelings about judicial review. They are nervous about what might happen to unprotected constitutional provisions in the chaotic worlds of practical politics and everyday life. By examining a wide range of situations involving constitutional rights, Tushnet vigorously encourages us all to take responsibility for protecting our liberties. Guarding them is not the preserve of judges, he maintains, but a commitment of the citizenry to define itself as "We the People of the United States." The Constitution belongs to us collectively, as we act in political dialogue with each other--whether in the street, in the voting booth, or in the legislature as representatives of others. Tushnet urges that we create a "populist" constitutional law in which judicial declarations deserve no special consideration. But he warns that in so doing we must pursue reasonable interpretations of the "thin Constitution"--the fundamental American principles embodied in the Declaration of Independence and the Preamble to the Constitution. A populist Constitution, he maintains, will be more effective than a document exclusively protected by the courts. Tushnet believes, for example, that the serious problems of the communist scare of the 1950s were aggravated when Senator Joseph McCarthy's opponents were lulled into inaction, believing that the judicial branch would step in and declare McCarthy's actions unconstitutional. Instead of fulfilling the expectations, the Court allowed McCarthy to continue his crusade until it was ended. Tushnet points out that in this context and in many others, errors occurred because of the existence of judicial review: neither the People nor their representatives felt empowered to enforce the Constitution because they mistakenly counted on the courts to do so. Tushnet's clarion call for a new kind of constitutional law will be essential reading for constitutional law experts, political scientists, and others interested in how and if the freedoms of the American Republic can survive into the twenty-first century.

Download of the Week The Download of the Week is Popular Constitutionalism and the Rule of Recognition: Whose Practices Ground U.S. Law? by Matthew Adler. Here is the abstract:
    The law within each legal system is a function of the practices of some social group. In short, law is a kind of socially grounded norm. H.L.A Hart famously developed this view in his book, "The Concept of Law," by arguing that law derives from a social rule, the so-called rule of recognition. But the proposition that social facts play a foundational role in producing law is a point of consensus for all modern jurisprudents in the Anglo-American tradition: not just Hart and his followers in the positivist school, most prominently Joseph Raz and Jules Coleman, but also the anti-positivist Ronald Dworkin, who argues that law necessarily synthesizes moral considerations with social facts. But which group's practices ground each legal system? In particular, which group's practices undergird U.S. law? Positivists since Hart have universally pointed to either officials or judges as the recognitional community (my term): the group whose rules, conventions, cooperative activities, or practices in some other sense are the social facts from which the law of a given legal system derives. So Hart and all other positivists would identify either U.S. officials or U.S. judges as the recognitional community for U.S. law. This Article grapples with the tension between the positivist's official- or judge-centered account of the recognitional community and the popular constitutionalism now so widely defended by constitutional scholars such as Larry Kramer, Robert Post, Reva Siegel, Mark Tushnet, Jeremy Waldron, and many others. Surely the popular constitutionalist would want to claim that U.S. citizens, not judges or officials, are the recognitional community for U.S. law. I term this position deep popular constitutionalism. Indeed, it turns out that Dworkin's account of law, in its ambition to generate associative moral obligations for the citizenry as a whole, implies deep popular constitutionalism. Here there is a disagreement, hitherto unnoticed, between Dworkin and the positivists. My solution to this disagreement - to the debate between deep popular constitutionalists and deep official or judicial supremacists - is to dissolve it by providing a group-relative account of law. Social norms, such as norms of dress or eating, are clearly group-relative. A particular dressing or eating behavior may be socially appropriate relative to one group's norms, yet socially inappropriate relative to another's. This Article extends the group-relative view from social norms to law itself, with a particular focus on U.S. law and constitutionalism. Part I surveys the jurisprudential literature. It shows how Hart and successor positivists identify the rule of recognition as a social practice engaged in by officials or some subset of officials (judges), rather than citizens generally, and argues that Dworkin by contrast sees the citizenry as a whole as his-recognitional community. Parts II and III defend a group-relative account of law. Part II argues, with reference to the U.S. experience, that multiple groups can simultaneously instantiate the kind of social fact that undergirds law, be it a convention, a social norm, a shared cooperative activity (SCA), or something else. At many points in U.S. constitutional history, multiple official or citizen groups, defined along departmental, partisan, regional, state-federal, religious, or other lines, have accepted competing rules of recognition for U.S. law. Part III argues that law functions, primarily, as either an explanatory or a normative construct, and that insisting on a single recognitional community for each legal system would be arbitrary, both for explanatory purposes and for normative purposes. Part IV considers the many implications of the group-relative account for U.S. constitutional theory - in particular, for popular constitutionalism.
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Friday, November 19, 2004
Friday Calendar

Hamdani & Klement on Class Defense Assaf Hamdani and Alon Klement (Faculty of Law, Bar Ilan University and Interdisciplinary Center Herzliyah - Radzyner School of Law) have posted The Class Defense (California Law Review, Vol. 93, 2005) on SSRN. Here is the abstract:
    Lawmakers, courts, and legal scholars have long recognized that consolidating the claims of dispersed plantiffs with similar grievances may promote justice and efficiency. In this Article, we argue that justice and efficiency also mandate that similarly positioned defendants be provided with an adequate procedure for consolidating their claims. We explore the circumstances under which costly litigation and collective action problems will prevent dispersed defendants with plausibly valid defense claims from confronting plaintiffs in court and analyze the troubling fairness and deterrence implications of such failure. We then demonstrate that aggregated claims will rectify the imbalance between the common plaintiff and defendants. To achieve defendant consolidation, we propose to implement what we label as the class defense device. We outline the novel features that will make the class defense both effective and fair - i.e., that will provide class attorneys with proper incentives, adequately protect the due process rights of absentee defendants, and keep to a minimum the omnipresent risk of collusion. Finally, we show that the class defense procedure affords would-be defendants greater protection than its alternatives. Specifically, we demonstrate that the class defense is a superior framework for resolving many disputes - such as lawsuits against credit card and cable companies - that currently take the form of class actions.

Thursday, November 18, 2004
Thursday Calendar

Lipshaw on Illusions of Intention Jeffrey M. Lipshaw (Indiana University School of Law - Indianapolis) has posted The Bewitchment of Intelligence: Language and Ex Post Illusions of Intention on SSRN. Here is the abstract:
    Lawyers who negotiate and litigate over complex deals have an intuitive notion of the value of what they do in connection with the contract. The arguments around technical contract language often are a lawyers' game; in most cases, what is clear would have been clear on a handshake; and what is tightly negotiated bears only a random relationship to the areas of future dispute. If they happen to have drafted tight and clear language around the particular matter in dispute, it is as much luck as foresight. Thereafter complex agreements can have binding effect for years, but most of the relationship transpires without explicit reference to the contract. The problem to which much of contract interpretation scholarship is directed arises only when there is a significant disagreement not resolvable by non-legal means. If the contract is not sufficiently clear on the subject so the parties agree on the outcome, or a court has an easy case, how do courts go about filling gaps that the parties simply did not address, or providing meaning in the present circumstance to words that do not unambiguously resolve the problem? I want to suggest an answer I believe is intuitive to practitioners but may be provocative in the academy. The search for an illusive ex ante mutually intended meaning is a waste of time, as is worry about the ancillary problem of opportunism. The creation of the complex contract and its later interpretation in a difficult case of ambiguity are distinct events. If there is mutual intention at the time of a dispute over terms capable of a truly difficult case of disambiguation, it will be apparent at the time of the application of those terms to the relevant circumstance, but in that instance there will be no dispute and no jurisprudence. But, in that case, there is no going back to a mutually intended meaning as of the time the contract was made. Whether one acts opportunistically is a function of extra-legal morals and norms, and not controllable by language that turns out to be colorably disputable, if the parties choose to dispute it. The proper focus of courts, therefore, is a pragmatic resolution of disputes, and not a search for mutual intention.

Koelman on P2P Kamiel J. Koelman (Free University of Amsterdam - Computer/Law Institute) has posted P2P Music Distribution: a Burden or a Blessing? on SSRN. Here is the abstract:
    Traditions and habits shaped the music business. In the online environment, new players, some of them are peer-to-peer system providers, are entering the arena and struggling to obtain a position in the value chain. They may displace other actors who currently play a major role. The law - in particular copyright law - determines to a large extent whether they will succeed. In this paper, the question is addressed whether the law should support record companies in their efforts to remain the key intermediaries in the music industry. Additionally, different legislative approaches are discussed which might ensure that artists are rewarded for p2p distribution and that competition may evolve in the area of online music distribution.

Wednesday, November 17, 2004
Conference Announcement:
    CONFERENCE ON DIRECT DEMOCRACY Sponsored by the USC-Caltech Center for the Study of Law and Politics, Initiative and Referendum Institute, the Center for the Study of Democracy at UC-Irvine, and the Southern California Law Review January 14-15, 2005 Presenters: SATURDAY, JANUARY 15 (Papers to be published in the Southern California Law Review ) Clayton Gillette , New York University Law School Discussants: Jan Brueckner, University of Illinois, College of Business William Fischel, Dartmouth College, Department of Economics Richard Hasen , Loyola Law School "Rethinking the Unconstitutionality of Contribution and Expenditure Limits in Ballot Measure Campaigns" Discussants: John de Figueiredo, Princeton University, Woodrow Wilson School Bernard Grofman, University of California, Irvine, Political Science Dept. Mathew McCubbins , University of California, San Diego, Political Science Department Discussants: Elizabeth Garrett, University of Southern California Law School Daniel Rodriguez, University of San Diego Law School Nathaniel Persily , University of Pennsylvania Law School, and Melissa Cully Anderson , University of California, Berkeley, Political Science Department Discussants: Jonathan Katz, Caltech, Division of the Humanities and Social Science Nolan McCarty, Princeton University, Woodrow Wilson School Thomas Stratmann , George Mason University, Department of Economics Discussants: Bruce Cain, University of California, Berkeley, Political Science Department Daniel Ortiz, University of Virginia Law School

Rodriguez and Weingast on the Positive Political Theory of Legislative History Daniel B. Rodriguez and Barry R. Weingast (University of San Diego School of Law and Stanford University - The Hoover Institution on War, Revolution and Peace) have posted The Positive Political Theory of Legislative History: New Perspectives on the 1964 Civil Rights Act and its Interpretation (University of Pennsylvania Law Review, Vol. 151, 2003) on SSRN. Here is the abstract:
    A central issue in the contemporary debate about how statutes ought to be interpreted is the proper role of legislative history. The use of legislative history in statutory interpretation is often seen as problematic, in part because the legislative process, involving many different legislators with different points of view, provides contradictory information about a statute's meaning. Scholars of very different normative stripes - including textualists, purposivists, and those who eschew reliance on legislators' will altogether - raise questions about the historical reconstruction of legislative intent. Indeed, a common conclusion in the literature on statutory interpretation is that legislative history can be used to rationalize any point of view, leading some to conclude that it is useless to the enterprise of statutory interpretation. In this Article, we revisit this enduring conversation about the proper place, if any, of legislative history in statutory interpretation. Our perspective is distinct from traditional arguments in that it relies on a different underlying theoretical foundation and, significantly, a positive political theory of statute creation. This theory, in turn, provides both a theory of legislative rhetoric and of statutory interpretation. We apply our approach to reading legislative history to the passage and interpretation of the Civil Rights Act of 1964. Part I of this Article presents our positive political theory of legislative decision making, on which our characterization of coalitional strategies and statute making is based. In Part II, we analyze a set of critical events in the legislative history of the Civil Rights Act of 1964. We next consider, in Part III, how courts, in pursuing expansionary constructions in the early years following the Act's passage, relied on the legislative history produced by ardent supporters of the Act. Lastly, in Part IV, we suggest how our approach to interpreting legislative history helps shed light on the politics of civil rights, on theories of legislation and statutory interpretation, and on the patterns of modern American politics and social policy. Our objective, in the end, is to draw from our approach, and from a revisionist view of the Civil Rights Act, lessons of general applicability for the interpretation of the legislative history of statutes. This project, then, presages further analytical work on the puzzles of legislation and its interpretation.
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Hasen on the Unconstitutionality of Contribution and Expenditure Limits in Ballot Measure Campaigns Richard L. Hasen (Loyola Law School (Los Angeles)) has posted Rethinking the Unconstitutionality of Contribution and Expenditure Limits in Ballot Measure Campaigns (Southern California Law Review, Vol. 78, No. 4, May 2005) on SSRN. Here is the abstract:
    Supreme Court precedent dating back to the 1970s and 1980s precludes state and local jurisdictions from limiting financial contributions to committees formed to support or oppose ballot measures or from barring corporate expenditures in ballot measure campaigns. These precedents emerged from the Supreme Court at a time of its greatest hostility to campaign finance regulation, when it viewed such laws as impermissibly impinging on the rights of free speech and association guaranteed by the First Amendment. These precedents are ripe for reexamination in light of the Supreme Court's new-found deference to campaign finance regulation, culminating in 2003's McConnell v. Federal Election Commission, a case upholding the major provisions of the Bipartisan Campaign Reform Act of 2002. This Article considers three potential ballot measure campaign finance regulations and their likelihood of passing constitutional muster under the more recent precedents: a law limiting contributions to ballot measure committees controlled by officeholders; a law limiting contributions to all ballot measure committees; and a law limiting expenditures in ballot measure campaigns by corporations and labor unions. Although all three proposed laws pretty clearly would have been struck down by the Supreme Court in earlier decades, they have a surprisingly good chance of passing muster today. One (obvious) purpose of this Article is to consider constitutional questions over ballot measure limits that courts inevitably will confront in coming years. But a second and equally important purpose is to use this analysis to consider the role that evidence plays in the Court's campaign finance jurisprudence. The Court's demand for evidence in campaign finance cases is shifting and imprecise. In fact, evidentiary analysis appears often to be a proxy for a determination on the merits made more on faith than evidence. In the final part of this Article, I consider the appropriate role that evidence should play in campaign finance cases. I argue that a more precise and transparent evidentiary inquiry into the connection between the goals of campaign finance laws and the means of achieving them will assist fair-minded judges in the inevitable constitutional balancing. I argue decidedly against the role that evidence currently plays in Supreme Court analysis of campaign finance cases as well as against Professor Pildes's alternative proposed "motive" test for judging campaign finance constitutional challenges.

Lee on Race & Deadly Force Cynthia Lee (The George Washington University Law School) has posted 'But I Thought He Had a Gun' - Race and Police Use of Deadly Force (Hastings Race and Poverty Law Journal, 2004) on SSRN. Here is the abstract:
    It is undisputed that Blacks are disproportionately represented among the victims of police shootings. In a comprehensive review of the literature on police use of deadly force, James Fyfe reports that every study that has examined this issue [has] found that blacks are represented disproportionately among those at the wrong end of police guns. Although Blacks represent approximately 13 percent of the population in the United States, in parts of the country they constitute 60 to 85 percent of the victims of police shootings. On average, Blacks are more than six times as likely as Whites to be shot by police, and in large cities are killed by police at least three times more often than Whites. Latinos (or Hispanics) are about twice as likely as Whites, but only half as likely as Blacks, to be shot and killed by police. There is a noticeable lack of data regarding police use of force against other non-Black minorities, such as Asian Americans, Arab Americans, South Asians and Native Americans. However, reports by Amnesty International and Human Rights Watch suggest that, in relation to their representation in society at large, these other minorities are also disproportionately on the receiving end of police force. While widespread consensus exists that racial minorities are disproportionately represented as victims of police shootings, the reason for this disproportion is hotly disputed. Most people who have an opinion on the subject fall within one of two camps which John Goldkamp, in his study of race and police shootings, calls Belief Perspective I and Belief Perspective II. Proponents of Belief Perspective I believe racism on the part of police officers and police departments results in one trigger finger for racial minorities and another for Whites. According to this view, police officers intentionally single out racial minorities for harsher treatment. Proponents of Belief Perspective II, in contrast, contend that race does not influence the average police officer's decision to use force. According to this perspective, Blacks and other non-Whites are disproportionately represented as victims of police shootings because they disproportionately commit armed robberies, carry firearms, and engage in behavior that police officers are likely to find threatening, such as resisting arrest. The problem with Goldkamp's two belief perspectives theory is that it frames the problem in all-or-nothing terms. Either police officers are bigots who intentionally target racial minorities (Belief Perspective I) or they are completely unbiased and color-blind (Belief Perspective II). The truth more likely lies somewhere between these two extremes. In this essay, I offer a third way to explain the disparate treatment respective segments of the population experience at the hands of police officers - an explanation that accommodates both the lived experiences of persons of color and the belief that police officers use force more often against persons of color because such individuals appear to be more threatening to the officer. Borrowing from Charles Lawrence's theory of unconscious racism, I suggest that racial stereotypes operate at a subconscious level to influence the police officer's decision to use deadly force. The police officer may not consciously decide to use deadly force because of the suspect's race, but the suspect's race nonetheless influences the officer. Racial stereotypes thus may alter the officer's perception of danger, threat, and resistance to authority. A simple question, Officer, why am I being stopped? may be perceived as behavior challenging the officer's authority when asked by someone who is Black. Police officers may also see danger more readily when dealing with a person of color. Just as racial and ethnic stereotypes influence private citizens' decisions to use force in self-defense, such stereotypes can also influence police officers' decisions to use force. I review recent social science studies which provide support for my theory and provide examples of how racial stereotypes can affect perception through actual cases. Finally, I suggest a race-switching jury instruction as a means to help de-bias juror decision making.

Ayres, Rowat & Zakariya on Two Stage Voting Rules Ian Ayres , Colin Rowat and Nasser Zakariya (Yale Law School , University of Birmingham - Department of Economics and Harvard University) have posted Optimal Two Stage Committee Voting Rules on SSRN. Here is the abstract:
    We study option management by committee. Analysis is illustrated by tenure decisions. Our innovations are two-fold: we treat the committee's problem as one of social choice, not of information aggregation; and we endogenise the outside option: rejecting a candidate at either the probationary or tenure stage return the committee to a candidate pool. For committees with N members, we find three key results: (1) a candidate's fate depends only on the behaviour of two 'weather-vane' committee members - generalised median voters; (2) enthusiastic assessments by one of these weather-vanes may harm a candidate's chances by increasing others' thresholds for hiring him; and (3) sunk time costs may lead voters who opposed hiring a candidate to favour tenuring him, even after a poor probationary performance. We also characterise the optimal voting rule when N=2. A patient or perceptive committee does best with a (weak) majority at the hiring stage and unanimity at the tenure stage. An impatient or imperceptive committee does best under a double (weak) majority rule. If particularly impatient or imperceptive, this rule implies that any hire is automatically tenured. Perversely, the performance of a patient, imperceptive committee improves as its perceptiveness further declines.

White on the Social Minimum Stuart White has a new entry titled Social Minimum on the Stanford Encyclopaedia of Philosophy. Here is a taste:
    ‘People should not be allowed to starve in the streets.’ ‘No one should be denied access to a decent minimum of health-care.’ ‘Every citizen should be able to meet his or her basic needs.’ These statements all express a widespread view that a political community should seek to ensure that its members are all able to enjoy at least a minimally decent standard of living. They assert the importance of what is often called the social minimum. However, the exact nature of the social minimum, the considerations that support it, and, indeed, its basic justifiability, are all matters of intense philosophical controversy. The aim here is to provide a guide through the terrain of these controversies. This is done in three stages. Firstly, in section 1, we look more closely at the question, ‘What is a social minimum?’ This section introduces a number of basic distinctions that will serve to clarify the discussion. We define a ‘social minimum’ as that bundle of resources which suffices in the circumstances of a given society to enable someone to lead a minimally decent life. We define a ‘social minimum policy regime’ as a set of policies and institutions that serve to secure reasonable access to this social minimum for all members of the society. As part of the task of clarification in this section, we review some of the main philosophical issues posed by these definitions. In particular, how are we to understand the notion of a ‘minimally decent life’? In section 2, we then consider the question, ‘Why a social minimum?’ Specifically, we outline a range of influential theories of social justice, and we consider in each case whether and how the theory in question might lend support to the enactment of a social minimum (that is, to the establishment of a social minimum policy regime). The theories considered include utilitarianism, libertarianism, left-libertarianism, egalitarian liberalism, and what we shall term democratic theories of social justice. In section 3, we then turn specifically to the critics of enactment, posing the question ‘What can be said against enactment of a social minimum?’ We consider three sets of objections that appeal respectively to the values of individual freedom, fairness, and legitimacy. The objections are helpful in thinking about the form the social minimum should take and about the political procedures surrounding its enactment. We investigate whether any of these objections offers a convincing reason against enactment of a social minimum. Section 4 offers a brief conclusion to our discussion.

Wednesday Calendar

Tuesday, November 16, 2004
Call for Papers: Election Law in the 2004 Election
    CALL FOR PAPERS: “ELECTION LAW IN THE 2004 ELECTION” Election Law Journal, a quarterly, peer reviewed publication edited by Daniel H. Lowenstein and Richard L. Hasen, will publish a special symposium issue in 2005 on the topic “Election Law in the 2004 Election.” Topics to be addressed may include—but are not limited to—the following: HAVA-related analysis, particularly of provisional ballots and voter identification rules; campaign finance law, including the role of the McCain-Feingold law, the rise of “527” organizations, and issues related to the public financing of presidential elections; ballot access, including the Nader litigation; the Electoral College; voting technology controversies; and the role of redistricting in the 2004 election. Articles need not be limited to the 2004 election, but should address issues that in one way or another were raised by or affected that election. Articles may be oriented toward policy or law. Empirical studies bearing on pertinent issues are also welcome. Manuscripts should be submitted via e-mail to and by June 30, 2005. We also encourage authors to submit a proposal or abstract to the editors at these e-mail addresses by January 31, 2005. Preference will be given to articles for which we receive a proposal or abstract. Potential authors should also feel free to submit queries in advance of submitting their proposals, abstracts, or manuscripts for review. Articles should be accessible and of interest to government officials, practicing lawyers, journalists, academics from various disciplines including law, political science, public policy, history, and economics, and others with an interest in electoral institutions, law, and administration. Articles should be written in a cogent style, appropriate to the reader groups identified above. Documentation should be provided to the extent necessary, but otherwise articles should not be heavily footnoted. Published articles ordinarily will not exceed 20,000 words, and articles of 15,000 words or less are preferred. We do not require a particular style for references. You may use law school “Blue Book” style, the style manual of the American Political Science Association, or any other style understandable to readers from a variety of professions and disciplinary backgrounds that contains necessary bibliographic information. If the manuscript contains self-identifying references, a redacted version should be sent to facilitate anonymous review. For authors submitting electronically, title pages with author information should be sent as a separate file. More information about the journal is available at its website.

Fon, Parisi, & Depoorter on Litigation, Path Dependence, and Legal Change Vincy Fon, Francesco Parisi, and Ben Depoorter (George Washington University - Department of Economics , George Mason University School of Law , Ghent University School of Law - Center for Advanced Studies in Law and Economics and George Mason University - School of Law) have posted Litigation, Judicial Path-Dependence, and Legal Change (European Journal of Law and Economics, Forthcoming) on SSRN. Here is the abstract:
    In this paper we consider the role that litigation and case selection play in the process of legal change. We examine the effect of judicial path dependence on the consolidation of liability rules and legal remedies, paying special attention to litigation between parties with different stakes. In the presence of asymmetric stakes, judicial path dependence may lead to consolidation or contraction of legal rules. We study the consequence of private litigation decisions on the contraction or consolidation of legal rules under various litigation and judicial environments. We also consider the relevance of the degree of asymmetry in the litigation stakes, the existence and nature of positive litigation costs, and the weight of past precedents on the ongoing process of legal evolution.

Tuesday Calendar
    Oxford Philosophy: The 2004 Gareth Evans Memorial Lecture: Professor Tim Scanlon (Harvard)'Means and Ends'.
    Oxford Legal Theory Workshop: Grégoire Webber, Legal Lawlessness and the Rule of Law.
    University of Chicago, Law & Economics: Brigitte Madrian, Boettner Associate Professor in Financial Gerontology; Associate Professor of Business and Public Policy, The Wharton School, University of Pennsylvania, Employer Stock Holdings in 401(k) Plans: Have Employees Learned the Lessons of Enron?.
    Oxford Intellectual Property Research Centre, Dr Christine Macleod, INTELLECTUAL PROPERTY IN THE NEW MILLENNIUM: No Patent System, No Industrial Revolution?.
    Vanderbilt University, School of Law: Greg Mitchell, Florida State University, "Rational and Irrational Impulses".

Monday, November 15, 2004
Haque on Lawrence v. Texas Adil Ahmad Haque (Yale University - Law School) has posted Lawrence v. Texas and the Limits of the Criminal Law on SSRN. Here is the abstract:
    This article looks to the Supreme Court's proportionality jurisprudence under the Eighth Amendment to substantiate four claims. The first claim is that the Lawrence Court was correct to hold that the enforcement of popular morality as such does not constitute a legitimate state interest in the context of criminal punishment. The second claim is that even if Lawrence is read to apply only rational basis scrutiny to laws regulating sexual intimacy, the Court has provided techniques by which to dismiss minimal and speculative harms as rationalizations for criminalization and punishment. The third claim of the article is that the Eighth Amendment provides an independent source of substantive limitations on the scope of the criminal law, alongside and in support of liberty and privacy concerns. The fourth claim is that important constitutional values, including the viability of proportionality review itself, would be compromised by endorsement of the enforcement of popular morality as an acceptable goal of punishment independent of retributive and consequentialist principles. To support these claims the article offers an original interpretation and application of the Court's Eighth Amendment cases, engages with objections to that line of cases by Justice Antonin Scalia, and refutes new and seemingly compelling arguments in favor of legal moralism emerging from the expressive theory of criminal law.

Call for Papers: Electronic Voting
    The John Marshall Law School’s Center for Information Technology and Privacy Law’s Journal of Computer & Information Law is soliciting articles on electronic voting. On October 1, 2004, the Center sponsored a day-long symposium entitled “Election 2004: Is e-voting ready for prime time?” that explored the legal and technical aspects of electronic voting. A list of speakers and topics is available at As a result of the symposium the Journal will publish an issue devoted exclusively to e-voting. The deadline for submission is December 1, 2004. The John Marshall Law School Journal for Computer and Information is an international law review dedicated to current issues in information technology and privacy law. The Journal prefers submissions sent as an e-mail attachment to Please include a current resume or curriculum vitae. If you have any questions or comments, please contact: J. Brian Beckman, Solicitation Editor, the John Marshall Law School, Journal for Computer and Information Law, 315 S. Plymouth Ct., Chicago IL 60604, 312.987.2354,

Book Announcement: Ford on Racial Culture
    Racial Culture: A Critique Richard T. Ford To read the entire book description and a sample chapter, please visit: What is black culture? Does it have an essence? What do we lose and gain by assuming that it does, and by building our laws accordingly? This bold and provocative book questions the common presumption of political multiculturalism that social categories such as race, ethnicity, gender, and sexuality are defined by distinctive cultural practices. 0-691-11960-0 Cloth $27.95 US and £17.95 248 pages. 6 x 9.

Monday Calendar

Sunday, November 14, 2004
Legal Theory Calendar

Legal Theory Lexicon: Consent
    Introduction Most law students begin realize that consent is a powerful legal and moral concept early in the first year of law school. A physical blow to the person is a battery—unless the blow was landed in a boxing match, in which case consent turns the battery into something that is legally permissible and not actionable, even if it results in serious harm. Intercourse without consent is the very serious crime of rape; intercourse with consent is quite something else.
    The basic legal structure is easy to grant. But what is consent? Why does it have the legal and moral force that it does? When is it valid and when is it invalid?
    This entry in the Legal Theory Lexicon is about the idea of consent in legal contexts involving interpersonal (but not political) relationships. The entry will explore what consent is and why consent is important, both legally and morally. Our investigation will also explore the conditions under which consent might be said to be “invalid,” e.g. in cases where consent was obtained through deception, coercision, or in which the consenting person lacked capacity to give consent. As always, the Legal Theory Lexicon is aimed at law students, especially first-year law students, with an interest in legal theory.
    The Ontology of Consent What is consent? We all know about paradigm cases of consent and its absence. Consent is clear present when someone says “I consent” and really means it. Consent is absent when someone says, “I object” and really means it. But the ability to distinguish clear cases of consent and its absence is not sufficinet for a theory of consent.
    In general, there are two families of theories about the nature of consent. One theory is that consent is a mental state—either an affective state such as desire or a volitional state such as choice. The second theory is that consent is a performative—a speech act in which one person agrees to something by communicating with another person (or persons). Each of these two approaches to consent requires some additional explanation.
      Consent as a Mental State The first possibility is that consent is a mental state. But what kind of mental state? Is a consent a willing, a wish, a desire, a choice, a preference, or something else? We can investigate two possibilities:
        Consent as an Affective Mental State One possibility is that when Alice consents to be kissed by Ben, her consent consists in a certain attitude towards the kiss. For example, if Alice wants (or desires) Ben to Kiss her, then we might be tempted to say that Alice has consented to the Kiss. Another candidate for the relevant affective mental state might be preference. We might say that Alice consents to Ben’s kiss if Alice prefers Ben’s kissing her to the alternative.
        Consent as a Volitional Mental State There is another possibility. It might be that consent is not attitude but a decision, choice, or willing. Thus, we might say that Alice consents to Ben’s kiss if Alice had chosen that Ben kiss her.
        Affective mental states like desires or preferences are not identical to volitional mental states like choosings or decisions. To want something is different than to having chosen to do it. Of course, there may be a close relationship between affective and volitional states. For example, you might believe that when you have an all-things-considered desire to be kissed, then the choice—the choosing to be kissed—follows more or less automatically. These are deep waters that we can elide for the purposes of this bare-boned introduction to the idea of consent.
      Consent as a Performative Most American jurisdictions define legal consent as a mental state, but it is not clear that our ordinary language conception of consent can be reduced to a mental state. Consent is both a noun and an intransitive verb. Thus, we say things like, “I consent” or “He consented to having his name put forward in nomination.” When used in this way consent seems to be some kind of action, accomplished through communication.
      Consent could be a performative--a communicative act in which the speaker communicates permission for or agreement to a course of action.
    So which is it? Is consent a mental state or a communicative action? This is not the sorty of question that can be resolved by a Legal Theory Lexicon entry. My opinion is that the performative theory best captures the ordinary language conception of consent. One reason I think so is that the idea of secret consent—which would be a perfectly alright if consent is a mental state—doesn’t seem to comport with our usual way of talking about consent. “I consented to the operation, but I didn’t tell anyone”—sounds quite odd to my ear. The law goes both ways, however, and most jurisdictions use a mental state conception of consent for the purposes of defining “legal consent.”
    The Moral and Legal Force of Consent Assuming we knew what consent is, we can ask the further question, “What legal and moral effect does consent have and why?
      The Moral and Legal Significance of Consent Sometimes it is said that consent works moral magic. What does that mean? The idea is that consent has a tranformative moral power: consent can tranform a wrongful action into a rightful action. Batteries are both morally wrong and and subject to legal sanctions (both criminal and civil), but consent somehow drains the punch of its moral and legal offense. Taking my property with the intent of permanently depriving me of use and enjoyment is theft, but taking my property with consent is simply accepting a gift.
      Why Does Consent Have Moral and Legal Force Once we recognize that consent does have some kind of transformative moral and legal force, the next question we might ask is why? There are lots of way to approach the question why consent has moral force. For example, we might approach the question from the perspectives of the major families of moral theories. Let’s give that a whirl.
        Autonomy and Consent Some moral theories make “autonomy” a central moral idea. Of course, autonomy isn’t easy to describe—especially in a sentence or so. We might say that the core idea of autonomy is self-direction or self control. An autonomous person is one who directs her own life, and not someone whose life is controlled by others. Of course, we can’t all do whatever we would like without running the risk of interfering with each other. Hence, from the idea of autonomy, we might derive the idea of moral rights and duties that create for each individual a sphere of autonomous action, in which each individual can direct her own life without interfering with the like freedom of others to do the same. The moral force of consent comes naturally if one accepts autonomy as a central moral value. Consent allows others to enter one’s sphere of autonomy. So long a consent is freely given, consented-to rights violations seem perfectly consistent with the idea that rights protect a sphere of individual choice.
        Utility and Consent Can utilitarians account for the moral force of consent? Of course, for a utilitarian, consent really can’t be said to be “moral magic.” For utilitarians, the bottom line question is whether a particular state of affairs involves greater utility than the alternatives. So, on the surface, it might seem like consent is not, per se, morally relevant. Consent is just a fact; only good and bad consequences are morally significant.
        But it is more complicated than that. There are many possible forms of utilitarianism, and one dimension of variation concerns the various conceptions of utility. One important form of utilitarianism holds that there utility consists in the satisfaction of preferences. Suppose that one also believed that consent was the mental state of preferring the consented-to action to the alternatives. If no third parties were affected (and assuming that consent was freely given on the basis of adequate information), then the consented-to activity would maximize utility. So for at least some utilitarains, consent would be presumptive evidence that the consented-to action would maximize utility and hence be the morally best action.
        Virtue and Consent Consent will also be relevant to aretaic (or virtue-based) moral theories. One of the virtues is justice, and humans with this virtue will not violate the rights of others without their consent. Virtue ethics differs from deontological and utilitarian theories in part because virtue ethics denies that there is any decision procedure for ethics. That is, a virtue ethicist is unlikely to believe that consent can work “moral magic,” but instead is likely to believe that the moral salience of consent is contextual—depending on the particular circumstances of the case. Virtue ethics is also likely to ask the question whether the person given the consent is a virtuous agent. Humans without the virtues are likely to give consent when they shouldn’t—when, for examploe, the consented-to action might actually cause unjustified harm to the fortunes or capacities of the consenting agent. In such circumstances, virtue ethics might deny that consent works moral magic. A virtuous agent might regard herself as obligated not to take advantage of consent—despite the fact that the consent was freely given by an agent who meets the legal standard of competence in circumstances without coercion or deception.
    Valid and Invalid Consent We have one more important topic to consider. Consent may be invalid. Let’s explore three kinds of reasons for concluding that consent is invalid, and hence that consent does not transform the legal or moral situation: (1) deception, (2) coercion, and (3) incapacity.
      Deception Consent obtained by deception may be invalid, either morally or legally or both. For example, if Alice consents to Ben’s kiss, because Ben tells Alice that he likes her very much, but Ben in fact does not like Alice at all, then Alice’s consent may not be morally valid. Because Ben obtained Alice’s consent by deception, Ben is not morally authorized to kiss Alice. In this case, however, the law would not consider Alice’s consent to be legally invalid. Although Ben may be morally wrong if he kisses Alice, he will not have committeed the crime of sexual assault or the tort of battery. Legally, this kind of deception is not sufficient to invalidate Alice’s consent.
      Outright fraud—intentionally making false statements about something materially relevant to the decision at hand—is the most obvious form of deception. But deception may involve nondisclosue as well as lying. If Ben fails to disclose to Alice that Ben is married, then Alice’s consent may not be morally transformative—although once again, the law will still treat Alice’s consent as legally valid.
      Coercion Consent may also be invalid because it is coerced. For example, if Alice consents to Ben’s kiss because Ben has threatened to harm her if she does, then her consent is invalid. And this is true, both morally and legally. Because consent was coerced, Ben should not kiss Alice and if he does, he will have acted tortiously and perhaps criminally as well.
      One problem with coercion is distinguishing threats from offerss and warnings. Consent is not invalidated because it is induced by an offer or warning, but it will be invalidated if induced by a threat. How do we differentiate threats from offers and warnings. One strategy is to specify a baseline of legal and/or moral entitlement. We call a communication promising an action in exhange for consent a threat, if the action would move the party below the baseline of entitlements. We call a communication promising an action in exchange for consent, if the action would move the consenting party above the baseline of moral and/or legal entitlements. So if Ben promises Alice that he will let her choose the movie in exchange for a kiss, that is an offer. If he promises to force Alice to watch a movie she doesn’t like if she doesn’t consent to a kiss, that is a threat.
      Warnings are neither offers nor threats. Warnings predict consequences outside the control of the party seeking consent. If Ben predicts to Alice that she will feel silly if she doesn’t consent to a kiss, then he has warned her of a consequence, but he has neither made a threat nor an offer.
      Incapacity Consent requires capacity. For example, children cannot consent to sexual relations as a matter of law—hence, consent is no defence to a charge of statutory rape. On the other hand, children can consent to lots of things, including rough play such as wrestling. Other examples of incapacity include mental illness, profound developmental disability, or severe intoxication. If Ben consents to Alice’s taking Ben’s new Mini Cooper on a two-week road trip while Ben is completely blotto (and Alice knows this), then his consent may be invalid and hence Ben may be legally entitled to demand that Alice return his car.
    Conclusion Consent is one of those ideas that cuts across courses and theoretical approaches. We’ve barely scratched the surface of consent, but I hope that this post has provided a very basic introduction to some of the key concepts.

Saturday, November 13, 2004
Legal Theory Bookworm The Legal Theory Bookworm recommends The Logic of Consent: The Diversity and Deceptiveness of Consent As a Defense to Criminal Conduct by Peter Westen. Here is brief description:
    The Logic of Consent analyzes the varied nature of consent arguments in criminal law and examines the confusions that commonly arise from the failure of legislatures, courts and commentators to understand them. Peter Westen skillfully argues that the conceptual aspect accounts for a significant number of the difficulties that legislatures, courts and scholars have with consent in criminal cases; he observes that consent masquerades as a single kind of event when, in reality, it refers to diverse and sometimes mutually exclusive kinds of events. Specifically, consent is used in law to refer to three pairs of contrasting kinds of events: factual versus legal, attitudinal versus expressive, and prescriptive versus imputed. While Westen takes no position on whether the substance of existing defenses of consent in criminal law ought to be enlarged or reduced in scope, he examines each of these contrasting events and analyzes the normative confusions they produce.
I just spent two days at the Roundtable on Consent discussing the issues raised by Westen and by Alan Wertheimer's Consent to Sexual Relations (previously recommended by the Legal Theory Bookworm). Westen's book is analytically precise and wonderfully illuminating. Highly recommended!

Download of the Week The Download of the Week is The ALI Principles and Agreements: Seeking a Balance Between Status and Contract by Brian Bix (University of Minnesota Law School). Here is the abstract:
    Chapter 7 of the American Law Institute's Principles of the Law of Family Dissolution discusses agreements: premarital agreements, marital agreements, and separation agreements. This article (written for an October 2004 Harvard University conference on the ALI Principles) offers an overview of the approach of the ALI Principles, comparing its recommendations to current law. The ALI Principles consistently seeks a balance between advancing the autonomy interests of the parties and protecting vulnerable parties who might be harmed by enforcement. While one might argue for shifting the balance somewhat more towards the enforcement of agreements, the primary focus of the article is on the aspects of the debate that the ALI Principles discusses too briefly, or does not discuss at all: for example, arguments for treating marital agreements differently from premarital agreements; and arguments for the special treatments of religious premarital agreements (Ketubahs and Mahrs), private covenant marriage agreements, and reconciliation agreements.
Download it while its hot!

Friday, November 12, 2004
Friday Calendar
    University of Texas, Law & Philosophy Program: Conference on "Methodology in Legal Philosophy" with papers by Liam Murphy (Law & Philosophy, New York University), Nicos Stavropoulos (University Lecturer in Legal Theory, Oxford University), and Benjamin Zipursky (Law, Fordham University).
    UCLA School of Law, Jay Koehler, Univiversity of Texas School of Business, "Selection Bias at Trial".
    Austrailian National University: Conference on Intellectual Property & Farmers Rights.
    Georgetown Law & Economics: Ken Dau-Schmidt, Indiana University School of Law, "Gender and the Legal Profession: The Michigan Alumni Data Set 1967-2000".
    Loyola Marymount, Loyola Law School: James Gathii, Professor of Law, Albany Law School, “The Sanctity of Sovereign Loan Contracts and Its Origins in Enforcement Litigation”.
    Oxford Globalisation & Sustainable Development Law Group: Dr. Duncan French, International Law on Sustainable Development: The Foundations.

Camp on Digital Identity L. Jean Camp (Harvard University - John F. Kennedy School of Government) has posted Identity in Digital Government on SSRN. Here is the abstract:
    Identity and identifiers are tightly linked when both are confirmed on paper. In a world of paper, verified pseudonyms and conditional anonymity are impossibilities. Assumptions based on the paper identity system lead to flawed decisions in modern uses of failure-prone identifiers. In this paper I begin by arguing that the use of the word, "identity", masks important social and technical complexities in developing digital identifiers. I describe how identity functions in a paper realm. I use the case of a traffic stop to illustrate how assertions of identity can increase rather than mitigate risks when the distinctions between identification, attribute verification and identity are confused. I conclude that misuses of identifiers are decreasing, not increasing, security.

Krawiec and Zeiler on Disclosure Duties Kimberly D. Krawiec and Kathryn Zeiler (University of North Carolina School of Law and Georgetown University - Law Center) have posted Common Law Disclosure Duties and The Sin of Omission: Testing the Meta-theories on SSRN. Here is the abstract:
    Since ancient times, legal scholars have explored the vexing question of when and what a contracting party must disclose to her counterparty, even in the absence of explicit misleading statements. This fascination has culminated in a set of claims regarding which factors drive courts to impose disclosure duties on informed parties. Most of these claims are based on analysis of a small number of non-randomly selected cases and have not been tested systematically. This article represents the first attempt to systematically test a number of these claims using data coded from 466 case decisions spanning over a wide array of jurisdictions and covering over 200 years. The results are mixed. In some cases it appears that conventional wisdom is correct. For example, our data support the claim that courts are more likely to require disclosure of latent, as opposed to patent, defects. In addition, courts are more likely to require full disclosure between parties in a fiduciary or confidential relationship. On the other hand, our results cast doubt on much of the conventional wisdom regarding the law of fraudulent silence. Indeed, our results challenge ten of the most prominent theories that have been asserted to explain when courts will require disclosure. We find that courts are no more likely to impose disclosure duties when the information is casually acquired as opposed to deliberately acquired and that unequal access to information by the contracting parties is not a significant factor that drives courts to require disclosure. We do find, however, that when these two factors are present simultaneously courts are significantly more likely to force disclosure. Perhaps most interestingly, although it is generally understood that courts have become more likely to impose disclosure duties over time, we find that courts actually have become less likely to require disclosure over time.

Gey & Rossi on Measuring Judicial Performance Steven G. Gey and Jim Rossi (Florida State University - College of Law and Florida State University - College of Law) have posted Empirical Measures of Judicial Performance: An Introduction to the Symposium on SSRN. Here is the abstract:
    Inspired by the burgeoning empirical literature on the judiciary, the editors of the Florida State University Law Review have solicited some papers from leading scholars and federal courts of appeals judges, asking them to address the topic of empirical measures of judicial performance. The papers in this "Symposium on Empirical Measures of Judicial Performance" address empirical measures of judicial performance from a variety of methodological perspectives, but as this Foreword suggests, they can roughly be organized around three basic themes. First, many of the papers critique the empirical enterprise itself and especially the tournament strategy for evaluating judges, although these papers also raise important issues for future empirical study of judges. Second, many of the papers in the Symposium propose new ways of operationalizing the empirical study of judicial performance or present fresh new empirical evidence about judges and courts. Third, some of the papers focus on the behavioral and institutional implications or empirical studies of judges and courts. As the papers in the Symposium would indicate, the empirical tournament has inspired some important advances in the discourse about measurement of performance in the context of the judiciary and its relevance to the selection of judges and the judicial process. While efforts to measure judicial performance empirically simultaneously revives many old controversies and presents new issues, its debates will be certain to continue as long as we have data, judges, and courts.

Thursday, November 11, 2004
Hunter & Lastowka on Copyright Policy Dan Hunter (University of Pennsylvania - The Wharton School) & Greg Lastowka (Rutgers, The State University of New Jersey - School of Law-Camden) have posted Amateur-to-Amateur on SSRN. Here is the abstract:
    Copyright, it is commonly said, matters in society because it encourages the production of socially beneficial, culturally significant expressive content. However our focus on copyright's recent history blinds us to the social information practices which have always existed. In this article, we examine these social information practices, and query copyright's role within them. We posit a functional model of what is necessary for creative content to move from creator to user. These are the functions dealing with creation, selection, production, dissemination, promotion, sale, and use of expressive content. We demonstrate how centralized commercial control of information content has been the driving force behind copyright's expansion. However, all of the functions that copyright industries used to control are undergoing revolutionary decentralization and disintermediation. Different aspects of information technology, notably the digitization of information, widespread computer ownership, the rise of the Internet, and the development of social software, threaten the viability and desirability of centralized control over every one of the content functions. These functions are increasingly being performed by individuals and disorganized, distributed groups. This raises an issue for copyright as the main regulatory force in information practices, because copyright assumes a central control structure that no longer applies to creative content. We examine the normative implications of this shift for our information policy in this new post-copyright era. Most notably we conclude that copyright law needs to be adjusted in order to recognize the opportunity and desirability of decentralized content, and the expanded marketplace of ideas it promises.

Mitchell on Libertarian Paternalism Gregory Mitchell (Florida State University College of Law and Vanderbilt University - School of Law) has posted Libertarian Paternalism Is an Oxymoron (Northwestern University Law Review, Vol. 99, No. 3, 2005) on SSRN. Here is the abstract:
    This essay considers the concept of libertarian paternalism recently advanced by Sunstein and Thaler and argues that, on close inspection, this attempt to reconcile the traditionally opposed concepts of libertarianism and paternalism fails to succeed. Most significantly, Sunstein and Thaler neglect alternative approaches to dealing with irrational choice behavior that are more consistent with libertarian principles and that make choice-framing paternalism evitable, they would subjugate the liberty of irrational individuals to a central planner's paternalistic welfare judgments, and they fail to deal with the redistributive consequences of libertarian paternalism. Libertarian paternalism, as currently formulated, is not designed to liberate individuals from their irrational tendencies but to capitalize on irrational tendencies to move citizens in directions that the paternalistic planner deems best. Libertarian paternalism does leave rational persons a way out of the central planner's paternalism, but often the exit will not be costless, as the paternalistic costs of trying to improve the welfare of irrational persons are shifted to the rational persons. While fidelity to libertarian principles leaves little room for the government to regulate irrational behavior, there are some forms of irrationality regulation more congenial to libertarian principles than Sunstein and Thaler's version of libertarian paternalism, examples of which are discussed here.

Cockfield on Law & Technology Theory Arthur J. Cockfield (Queen's University (Canada) - Faculty of Law) has posted Towards a Law and Technology Theory (Manitoba Law Journal, Vol. 30, p. 383, 2004) on SSRN. Here is the abstract:
    This Article seeks to begin a discussion on the development of legal analysis that broadly considers the interplay between law and technology. Part I provides background on the need for the development of this theory, which could draw from and inform traditional legal scholarship that studies discrete areas of technology law like intellectual property law. Part II scrutinizes cases and policy decisions within three non-traditional areas of technology law - contracts, tax, and privacy - to show how legal analysis in light of technological change can be broken down into two broad categories: (1) a 'liberal' approach that is more sensitive to the ways that technological change affects interests, while often seeking legal solutions that are less deferential to legal precedents and traditional doctrine; and (2) a 'conservative' approach that relies more on traditional doctrinal analysis and precedents. Part III elaborates on general principles of analysis that can be drawn from the liberal approach, which: (a) recognizes that the interplay between law and technology is complex and interactive; (b) requires flexible legal solutions when it is determined that technological developments are undermining interests ("law is technology"); (c) recognizes that the direct regulation of technology provides opportunities to indirectly regulate behaviour to promote optimal social policy ("technology is law"). In summary, the liberal approach scrutinizes whether, given current or anticipated technological settings, a legal rule will promote the attainment of policy objectives ("is the legal rule scientific?"). Part IV offers tentative observations on the ways that a law and technology theory can provide insight into the whole law by revealing that, for instance, during times of technological change the entire law adapts by becoming a more flexible and forward-looking system. A downside of this transformation is that the liberal approach destabilizes the law by undermining the usefulness of precedents, making it more difficult for lawyers to predict the outcome of cases for their clients.

Thursday Calendar
    Stanford Law & Economics: Carl Shapiro (Haas School of Business, University of California, Berkeley) and Mark Lemley (Stanford Law School), “Probabilistic Patents”.
    Yale Legal Theory Workshop: John Hanson, Harvard (Law).
    Boston University, School of Law: Jay Wexler, "Environmental Law and the Judicial Role".
    George Mason, School of Law: Michelle Boardman, GMU School of Law, Insurance Clause as Statute.
    Oxford Society for Law and Religion: Dr Lucy Vickers, Law and Religion Seminars: 'Religious Discrimination in the Workplace: tolerating the intolerant?
    Oxford Financial Law Discussion Group: David Doble, Adventures In Risk Finance: A Contemporary Overview.
    University of Michigan, Law & Economics: Henry Hansmann, Yale, Legal Entities, Asset Partitioning, and the Evolution of Organizations.
    University of Pennsylvania, Tax Policy Workshop: Larry Zelenak (Duke), The Sometimes-Taxation of the Returns to Risk-Bearing Under a Progressive Income Tax.

Wednesday, November 10, 2004
Conference Announcement: Rational Legitimization of Political Norms
    Conference Announcement "On the Rational Legitimization of Political Norms under Conditions of Cultural Pluralism and Cultural Changes" International Conference Department of Philosophy, SFB 485 'norm and symbol' and 'Philosophy, Probability, and Modeling' research group, University of Konstanz, Konstanz (Germany 10-11 December 2004 Organizer: Jörg Kühnelt ( Website (including program and abstracts): Main speakers: Christopher Morris (Philosophy, University of Maryland) Philip Pettit (Philosophy, Princeton University) Russell Hardin (Politics, New York University) Matthias Kaufmann (Philosophy, University of Halle) Michael Baurmann (Sociology, University of Duesseldorf) Reinhard Zintl (Politics, University of Bamberg) Wilfried Hinsch (Philosophy, University of Saarland) Aim of the conference: States can use their legal coercive power to motivate their citizens to obey political norms. However, existing states do not necessarily have a foundation in basic moral or cultural values to legitimize these norms. The project of a rational justification of political norms tries to legitimate norms only by reference to the benefit maximizing behaviour of individuals and some basic and universal interests. Therefore it appears to be interesting especially for pluralistic or multicultural societies. Within the conference several suggestions for a rational legitimization will be discussed. The conference focuses on the empirical conditions that are relevant for a rational legitimization. Examples for these empirical conditions are assumptions about the behaviour of individuals and the functioning of certain possible societies. Therefore they appear to be relevant for the conditions and possibilities of an advantageous and stable state. Several scholars from sociology, politics and philosophy are invited to discuss the critiques and the potential of possible modifications of a rational justification of political norms. Participation: Seats are limited. Please send an email to if you would like to participate as a guest. Informal deadline is 25.11.2004. We expect places to fill up quickly. There is no conference fee, but if you would like to eat at the conference, you have to expect costs around 17 Euros a day. (Conference dinner will be additional 35 Euros) Further information: Konstanz, Department of Philosophy: or conference website:

Call for Papers: FEAST
    Call for Submissions The Association for Feminist Ethics And Social Theory (FEAST) invites submissions for the Fall 2005 conference, to take place October 20th-23rd, 2005, in Clearwater Beach, Florida. Keynote speakers: Bat-Ami Bar On, Alison Jaggar and Maria Lugones. Submission deadline: February 18th, 2005. Submissions must include a paper with a 3,000 word limit and an abstract of 100-250 words. An exact word count of the paper must be provided at the top left-hand corner of the first page of the paper. No paper that omits the word count will be considered, nor will any paper over the 3,000 word limit. Proposals for panels must include abstracts and papers-with word count-for each panelist. Proposals for presentations other than papers (e.g. workshops, discussions, etc.) must include detailed descriptions demonstrating that the ideas are as developed as they would be in a paper. Theoretical papers on all topics within the areas of feminist ethics and social theory are welcome. The program committee aims to create a conference with a diverse group of presenters and a diversity of philosophical topics and styles. ---- We especially invite submissions for the following special panels: The "Difficult Conversations" workshop is held as a lunch-time event at each FEAST conference. In 2001, the conversation was about how racism has affected participant's lives, and in 2003, there was a conversation between disabled women and women who care for persons with disabilities. The 2005 topic is open; submissions should describe the proposed topic and workshop format, and should name the facilitator and list presenters. In this past year, Susan Moller Okin and Gloria Anzaldua, both important feminist theorists, died. FEAST 2005 will honor each of them with panels on their work. We invite submissions of individual papers to be fit into one of these panels, and/or we invite proposals to organize and facilitate one of the panels (such a proposal should include abstracts, but not necessarily full papers, from each presenter, or a description of an alternative panel format such as a roundtable discussion and a list of presenters). ------ FEAST strongly encourages members of groups that are underrepresented in both the discipline of philosophy and at feminist philosophy conferences to send submissions. All submissions will be anonymously reviewed. For more information on FEAST or to see the program from the 2001 and 2003 conferences, go to: . Papers and abstracts must include no identifying information; on a separate page, please state: Name Institutional affiliation Surface mail address Email address Phone number Send four copies of submissions (abstracts and papers), postmarked by February 18th, 2005, to: Lisa Tessman, FEAST 2005 Program Committee Chair, Philosophy Department, Binghamton University, Binghamton, NY 13902-6000. Submissions will not be accepted by email or FAX. Questions may be directed to Lisa Tessman: . The FEAST program committee: Lisa Tessman (chair) Lynne Arnault Louise Collins Bonnie Mann Jim Nelson Shelley Tremain Margaret Walker

Netanel on Copyright & the First Amendment Neil W. Netanel (University of California, Los Angeles - School of Law) has posted Copyright and the First Amendment; What Edlred Misses - and Portends (Neil Weinstock Netanel, COPYRIGHT AND FREE SPEECH: COMPARATIVE AND INTERNATIONAL ANALYSES, Oxford University Press, 2005) on SSRN. Here is the abstract:
    This chapter, to be published as part of an anthology about copyright and free speech in the U.S., U.K. and Continental Europe, critically assesses the First Amendment portion of the U.S. Supreme Court's decision in Eldred v. Ashcroft. In rejecting Eldred's challenge to the Copyright Term Extension Act, the Court held that when "Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary." In so holding, the Court put to rest the D.C. Circuit's sweeping suggestion that "copyrights are categorically immune from challenges under the First Amendment." But the Court largely (although not entirely) closed the door to First Amendment challenges to "traditional" copyright, thus perpetuating courts' persistent and anomalous refusal to apply to copyright the First Amendment scrutiny regularly applied to other speech burdening private rights. No less disappointing than the Court's holding is its reasoning. Eldred shows remarkably little understanding of, or appreciation for, the First Amendment values at stake in copyright's burdening of speech. And the majority's opinion gives further credence to lower court justifications for exonerating copyright from First Amendment review, some of them no less doctrinally and logically unsound than the broad statement that copyrights are categorically immune from First Amendment challenge. Yet, despite the Court's abjuration of First Amendment scrutiny for traditional copyright, the decision leaves room for the First Amendment both to inform copyright jurisprudence and oversee some Copyright Act amendments. Most broadly, in rejecting (or at least qualifying) copyright's categorical immunity, the Court explicitly recognized that, in principle, copyright does implicate the First Amendment. And, in that vein, the Court then suggested some specific ways in which the First Amendment might yet circumscribe copyright holder prerogatives. These include First Amendment scrutiny of Copyright Act amendments, such as the anticircumvention provisions of the Digital Millennium Copyright Act, that do alter copyright's traditional contours. In addition, the Court suggested that copyright's internal free speech safeguards, including the fair use privilege and idea/expression dichotomy, should be broadly construed to accommodate First Amendment concerns. Courts are understandably disinclined to adopt rules that would require them to entertain First Amendment defenses to individual copyright infringement actions. But taking Eldred as a starting point, I suggest some ways in which courts could bring the First Amendment to bear on copyright doctrine by implementing specific and tightly-focused substantive and remedial rules and evidentiary presumptions designed to protect free speech without requiring a case-by-case adjudication of First Amendment principles.

Talisse on Liberal Legitimacy Robert Talisse (Vanderbilt) has posted Pluralism and Liberal Legitimacy. Here's a taste:
    That social pluralism frustrates the aspirations of comprehensive liberal theory is clear. If there are no fundamental premises that all rational humans share, or can be rationally persuaded to share, then there is no raw material from which a universally acceptable philosophical account of liberalism can be constructed. Similarly, where the citizens of a given society are deeply divided at fundamental levels, there can be no single philosophical argument for a liberal polity that can command the assent of all rational citizens. Liberalism affirms the individual’s liberty to pursue “his own good in his own way” (Mill 1859, 17), and the liberal theorist aspires to provide a philosophical account that will establish the universal legitimacy of the liberal political order. To be successful, such an account must appeal to premises that can in principle win the assent of all. Yet social pluralism entails in part that that there are no such premises. Thus the theoretical aspirations of liberal theory are in conflict with the content of liberal politics; liberal theory is inconsistent with the social pluralism that is the result of liberal practice. Liberalism generates a politics that renders its own requirements for legitimacy unsatisfiable. Hence the paradox of liberal justification. Recognizing this paradox, contemporary liberal theorists have turned to social

Duncan on Dignity Craig Duncan (Glasgow) has posted Craig Duncan, Democratic Liberalism: The Politics of Dignity. Here's a taste:
    Let us begin by exploring the idea of dignity. Consider a thought experiment described by the American philosopher William James. In a discussion of utopian political visions, James poses the following question:
      If the hypothesis were offered us of a world in which [various thinkers'] utopias should be all outdone, and millions kept permanently happy on the one simple condition that a certain lost soul on the far-off edge of things should lead a life of lonely torture, what except a specifical and independent sort of emotion can it be which would make us immediately feel, even though an impulse arose within us to clutch at the happiness so offered, how hideous a thing would be its enjoyment when deliberately accepted as the fruit of such a bargain?
    I suggest that the “emotion” to which James refers is surely none other than that of respect, namely, respect for the dignity of that “certain lost soul” whose torture would guarantee the happiness of millions. The power of this idea of dignity is apparent from the size of the benefit—unimaginable happiness—that is foregone in its name.

Samaha on Litigant Sensitivity & the First Amendment Adam Samaha (University of Chicago - Law School) has posted Litigant Sensitivity in First Amendment Law (Northwestern University Law Review, Vol. 98, p. 1291, 2004) on SSRN. Here is the abstract:
    Do First Amendment claimants matter to First Amendment law? Much Supreme Court decision-making indicates that they do not. Doctrines like overbreadth and prior restraint, as well as opposition to content- and sect-based discrimination, can be operated without paying much or any attention to the litigant raising the First Amendment objection. The Court's focus is often on the form of a government rule, the justification for regulation, and the connection between the two. Yet there is a "litigant sensitive" component to First Amendment law, one that openly calls for judicial evaluation of individual claimant conduct. It is difficult to find in recent Supreme Court decisions, but other sources confirm that litigant sensitivity survives. Is it worth preserving? To answer, this Article examines extreme models for First Amendment law. It concludes that a radically litigant sensitive model - one that always evaluates claimant conduct but never government conduct - is untenable, but a radically litigant insensitive model - one that never evaluates claimant conduct - might be available. Sensibly resolving First Amendment claims requires courts to know something about the government's conduct, but judicial assessment of claimant conduct is problematic. For example, it adds complexity to adjudication, it could entail intolerable risks of error and bias, and it might distract us from the kind of categorical thinking that provides better insight into the consequences of a judicial decision. A mixed model that includes a measure of litigant sensitivity is nevertheless desirable. To understand its forms and functions, the Article constructs a typology of litigant sensitivity within current law. The analysis closes by critically assessing the options and endorsing a mixed model. Simplicity is just one value in doctrinal and institutional design. In addition, error risks and controversial value judgments arise across analytical structures. The advantage of categorical thinking, moreover, does not erase the virtues of litigant sensitivity. It is only good reason for caution. And a mixed model affords greater flexibility in resolving disputes in ways that can enhance liberty and identify illegitimate government conduct, without honoring every private claim. Although there are many versions of radical insensitivity, too, the ability to consider claimant conduct sometimes adds a valuable dimension to judicial analysis.

Yoo on Foreign Legal Precedents John C. Yoo (University of California at Berkeley School of Law) has posted Peeking Abroad?: The Supreme Court's Use of Foreign Precedents in Constitutional Cases (University of Hawaii Law Review, 2004) on SSRN. Here is the abstract:
    This essay criticizes the Supreme Court's use of foreign legal precedents in constitutional cases. If these citations are no more than ornamental, or are no more than good ideas from another jurisdiction, then there is little about which to be concerned. If reliance on foreign precedents represents a more significant trend, however, several difficulties arise. First, if foreign courts are receiving deference, then they may well be exercising federal authority outside the bounds of our Constitution. Second, reliance on such decisions breaks the relationship between the people and their government as expressed in the Constitution, because foreign courts are interpreting a different document within a different constitutional and political context. Third, to the extent use of these precedents has focused on European decisions, it is unclear whether the United States should seek to coordinate its constitutional solutions to problems with those of Europe. Europe has suffered from serious political instability over the last two centuries brought about by sometimes extreme political ideologies, and since World War II has enjoyed a different tradeoff between rights and security thanks to an American security guarantee.

Thursday Calendar
    Stanford Law & Economics: Carl Shapiro (Haas School of Business, University of California, Berkeley) and Mark Lemley (Stanford Law School), “Probabilistic Patents”.
    Yale Legal Theory Workshop: John Hanson, Harvard (Law).
    Boston University, School of Law: Jay Wexler, "Environmental Law and the Judicial Role".
    George Mason, School of Law: Michelle Boardman, GMU School of Law, Insurance Clause as Statute.
    Oxford Society for Law and Religion: Dr Lucy Vickers, Law and Religion Seminars: 'Religious Discrimination in the Workplace: tolerating the intolerant?
    Oxford Financial Law Discussion Group: David Doble, Adventures In Risk Finance: A Contemporary Overview.
    University of Michigan, Law & Economics: Henry Hansmann, Yale, Legal Entities, Asset Partitioning, and the Evolution of Organizations.

Tuesday, November 09, 2004
Filibustering a Supreme Court Nominee Michael Rappaport has an interesting post, arguing that it is politically infeasible for Democrats to filibuster a Supreme Court nominee. Here's a taste:
    filibuster is only possible if 40 Democratic Senators are willing to support it, but this is much less likely than it was for Court of Appeal nominees for several reasons. First, the general public does not like partisan delaying tactics that impair the operation of the government. While the Courts of Appeals functioned perfectly well with vacancies, the Supreme Court is widely regarded as not being fully functional without 9 sitting justices. As a result, a filibuster that prevents the Senate from voting on a nominee is much more likely to be seen, like a filibuster that would deprive the government of funds to operate, as a harmful partisan act. Moreover, the Republicans will be able to continually remind the country of the Democrats’ delaying tactics. They can repeatedly require votes on cloture, forcing the Democrats to take heat on the issue over and over again.
Go to the Right Coast for the rest!

Gardner & Rossi on the New State Constitutionalism James A. Gardner and Jim Rossi (State University of New York - University at Buffalo School of Law and Florida State University - College of Law) have posted The New Frontier of State Constitutionalism (William & Mary Law Review, 2005) on SSRN. Here is the abstract:
    In the past decade, a new frontier of constitutional discourse has begun to emerge, adding a fresh perspective to state constitutional law. Instead of treating states as jurisdictional islands in a sea under reign of the federal government, this new approach sees states as co-equals among themselves and between them and the federal government in a collective enterprise of democratic self-governance. This Symposium, organized around the theme of Dual Enforcement of Constitutional Norms, provides the occasion for leading scholars on state constitutional law to take a fresh look at their subject by adopting a vantage point outside of the individualized jurisdictional context. Instead, the Symposium invited participants to consider directly whether state and federal constitutional law are separate and distinct systems of law, each with its own doctrines, traditions, and dominant norms, or whether state and federal constitutional law may profitably be understood as complementary features of a shared project of elaborating and enforcing shared constitutional norms. The Articles in this issue lie along what we hope will prove to be a new frontier that moves courts and scholars closer to a sustainable interpretive theory of state constitutions, shedding important light on the role of state courts, while also addressing the federal judicial role in a system of dual enforcement.

Jones on the Evolution of Irrationality Owen D. Jones (Vanderbilt University - School of Law & Department of Biological Sciences) has posted The Evolution of Irrationality (Jurimetrics, Vol 41, p. 289, 2001) on SSRN. Here is the abstract:
    The place of the rational actor model in the analysis of individual and social behavior relevant to law remains unresolved. In recent years, scholars have sought frameworks to explain: a) disjunctions between seemingly rational behavior and seemingly irrational behavior; b) the origins of and influences on law-relevant preferences, and c) the nonrandom development of norms. This Article explains two components of an evolutionary framework that, building from accessible insights of behavioral biology, can encompass all three. The components are: "time-shifted rationality" and "the law of law's leverage."

Tuesday Calendar
    Oxford Jurisprudence Discussion Group: Amir Fuchs, Welfare between Equality and Responsibility.
    University of Texas, School of Law: Richard Markovits, UT School of Law, "Liberalism and the Common Law of Torts".
    Oxford Intellectual Property Research Centre: Dr Anne Wyatt, INTELLECTUAL PROPERTY IN THE NEW MILLENNIUM: Evaluating IPO Incentives and Prospects Using Prospectus and IP Data.
    Vanderbilt Law: Nancy King, "Tracking Waivers of the Right to Review"

Curry & Mongrain's Economic Analysis of "Morality Laws" Philip A Curry and Steeve Mongrain (Simon Fraser University and Simon Fraser University - Department of Economics) have psoted What You Don't See Can't Hurt You: An Economic Analysis of Morality Laws on SSRN. Here is the abstract:
    This paper provides an efficiency explanation for laws regulating sex, drugs and gambling. The argument is motivated by the observation that the design of these laws often promotes discretion by the people engaging in such activities. We propose that morality laws can be best explained by considering the proscribed activities to impose a negative externality on others when the activity is observed. In such a case, efficiency requires discretion on behalf of the individual who engages in such activities. Since discretion is often difficult to regulate, the activities are instead proscribed thereby giving individuals incentive to hide their actions from others. In addition, since some level of activity is efficient, the optimal sanctions are not maximal. Finally, the result that these activities are banned outright but with small penalties is shown to be generic.

Monday, November 08, 2004
Lash on the Ninth Amendment: Updated with Comments by Lash Kurt T. Lash (Loyola Marymount University, Loyola Law School) has posted new versions of two important papers:
    The Lost Jurisprudence of the Ninth Amendment (Texas Law Review, Vol. 83, February 2005):
      It is widely assumed that the Ninth Amendment languished in constitutional obscurity until it was resurrected in Griswold v. Connecticut by Justice Arthur Goldberg. In fact, the Ninth Amendment played a significant role in some of the most important constitutional disputes in our nation's history, including the scope of exclusive versus concurrent federal power, the authority of the federal government to regulate slavery, the constitutionality of the New Deal, and the legitimacy and scope of incorporation of the Bill of Rights into the Fourteenth Amendment. The second of two articles addressing the Lost History of the Ninth Amendment, The Lost Jurisprudence takes a comprehensive look at the Ninth Amendment jurisprudence which flourished from the early nineteenth to the mid-twentieth century. Long assumed never to have received significant attention from the Supreme Court, in fact the first discussion and application of the Ninth Amendment was by none other than Justice Joseph Story himself. In a passage unnoticed since the nineteenth century, Justice Story interpreted and applied the Ninth Amendment precisely the way James Madison and the state ratifying conventions intended; as a rule of construction preserving the retained right of local self-government. Ignored by the framers of the Fourteenth Amendment, the Ninth Amendment and its attendant rule of construction were deployed by courts throughout the nineteenth century to limit the interpretation of federal powers and rights. Ubiquitously paired with the Tenth Amendment, the Ninth suffered the same fate as the Tenth at the time of the New Deal, when both were rendered mere truisms in the face of expansive constructions of federal power. By 1965, the Ninth was assumed to exist in a doctrinal and historical vacuum, an assumption that no one has questioned until now.
    The Lost Original Meaning of the Ninth Amendment (Texas Law Review, Vol. 83, No. 2, December 2004):
      This article presents previously unrecognized evidence regarding the original meaning of the Ninth Amendment. Obscured by the contemporary assumption that the Ninth Amendment is about rights while the Tenth Amendment is about powers, the historical roots of the Ninth Amendment can be found in the state ratification convention demands for a constitutional amendment prohibiting the constructive enlargement of federal power. James Madison's initial draft of the Ninth Amendment expressly adopted the language suggested by the state conventions and he insisted the final draft expressed the same rule of construction desired by the states. In an episode previously unnoticed by scholars, the altered language of the final draft of the Ninth Amendment prompted Virginia Governor Edmund Randolph to bring to a halt his state's efforts to ratify the Bill of Rights due to his concern that the Ninth no longer reflected the demands of the state conventions. Anti-Federalists used Randolph's concerns to delay Virginia's, and thus the Country's, ratification of the Bill of Rights for two years. While ratification remained pending in Virginia, Madison delivered a major speech in the House of Representatives explaining that the origins and meaning of the Ninth Amendment in fact were rooted in the proposals of the state conventions, and that the Ninth itself guarded against a latitude of interpretation to the injury of the states. That speech, given in opposition to the chartering of national bank, was but one of many occasions in Madison's long career in which he would object to latitudinarian constructions of the Constitution - constructions that he believed were forbidden by the rule provided in the Constitution itself, the Ninth Amendment.
    These are revised versions of Lash's very interesting work on the the Ninth. Highly recommended.
    Kurt Lash writes:
      In addition to incorporating a number of helpful comments and suggestions, the articles now include analysis of early constitutional treatise writers like St. George Tucker, John Taylor, William Rawle, James Kent and Joseph Story. I also have added yet another previously undiscovered supreme court opinion which relies on the Ninth Amendment. Finally, the new drafts explain why Justice Chase's opinion in Calder was originally understood to express an extreme states rights reading of the constitution, and why Joseph Story entitled his chapter on the Ninth Amendment, "Non-Enumerated Powers" (and not Non-Enumerated Rights). In sum, in the months since writing the initial drafts, I have found even more evidence that the Ninth Amendment originally was understood to express a federalism-based rule of construction preserving the retained right of the people to local self-government. I have been invited to give a short presentation on both articles at the Federalist Society's Annual Faculty Conference in San Francisco this coming Jan 7, and I look forward to meeting readers of your site at that time.

Welcome to the Blogosphere . . . . . . to ContractsProf Blog by Frank Snyder.

Monday Calendar
    Columbia Law & Economics: David A. Weisbach, The University of Chicago, The Law School, "The (Non) Taxation of Risk".
    UCLA School of Law: Fred Tung, Loyola Law School, “Explaining the Internal Affairs Doctrine”.
    New York University, School of Law: William Novak (Visiting from Chicago).
    Oxford Centre for Socio-Legal Studies: Laure-Hélène Piron, Socio-Legal Approaches to Law and Development: Donors’ Approaches to Justice Sector Reform.

Bix on Status & Contract in Family Law Brian Bix (University of Minnesota Law School) has posted The ALI Principles and Agreements: Seeking a Balance Between Status and Contract. Here is the abstract:
    Chapter 7 of the American Law Institute's Principles of the Law of Family Dissolution discusses agreements: premarital agreements, marital agreements, and separation agreements. This article (written for an October 2004 Harvard University conference on the ALI Principles) offers an overview of the approach of the ALI Principles, comparing its recommendations to current law. The ALI Principles consistently seeks a balance between advancing the autonomy interests of the parties and protecting vulnerable parties who might be harmed by enforcement. While one might argue for shifting the balance somewhat more towards the enforcement of agreements, the primary focus of the article is on the aspects of the debate that the ALI Principles discusses too briefly, or does not discuss at all: for example, arguments for treating marital agreements differently from premarital agreements; and arguments for the special treatments of religious premarital agreements (Ketubahs and Mahrs), private covenant marriage agreements, and reconciliation agreements.
I always learn from Bix!

Vermeule on Interpretation Adrian Vermeule (University of Chicago Law School) has posted Three Strategies of Interpretation (San Diego Law Review, 2005) on SSRN. Here is the abstract:
    We may distinguish three styles or strategies of decisionmaking. Under a maximizing approach, the decisionmaker chooses the action whose consequences are best for the case at hand (defining "best" according to some value the decisionmaker holds). Where decisionmakers choose the action that is best relative to constraints, accounting for the direct costs and opportunity costs of decisionmaking, we may call the approach optimizing rather than maximizing. Whereas the maximizer focuses only on the case at hand, the optimizer acts so as to maximize value over an array of cases. In contrast to both approaches, satisficing permits any decision whose results in the case at hand are good enough - although satisficing, like optimizing, may itself represent an indirect strategy of maximization. In this brief essay, I apply these distinctions to legal interpretation. Many approaches to the interpretation of statutes and the Constitution are maximizing approaches that attempt to produce as much as possible of some value the interpreter holds – for example, fidelity to legislative intent or original understandings. Optimizing approaches to interpretation condemn maximizing interpretation as a simpleminded approach that neglects the costs of decisionmaking and the costs of interpretive error. An alternative to both maximizing and optimizing approaches is a satisficing style of interpretation, in which interpreters eschew the search for the very best interpretation (even within constraints), instead selecting an interpretation that is good enough, in light of whatever value theory the interpreter holds.
    I criticize the maximizing style of interpretation and praise its two competitors. Both the optimizing and satisficing perspectives help to justify some controversial principles of statutory and constitutional interpretation, such as the rule barring resort to legislative history where statutes have a plain meaning, and clause-bound (as opposed to broadly holistic or "intratextualist") interpretation of statutes and the Constitution. Although maximizing interpretation is untenable, neither the optimizing approach nor the satisficing approach is globally best; each is an attractive decision-procedure in some contexts. Where the interpretive stakes are either very low or very high, satisficing is reasonable (whether or not rational in some stronger sense), while optimizing is best suited to medium-stakes decisions.

Legal Theory Calendar
    Monday, November 8
      Columbia Law & Economics: David A. Weisbach, The University of Chicago, The Law School, "The (Non) Taxation of Risk".
      UCLA School of Law: Fred Tung, Loyola Law School, “Explaining the Internal Affairs Doctrine”.
      New York University, School of Law: William Novak (Visiting from Chicago).
      Oxford Centre for Socio-Legal Studies: Laure-Hélène Piron, Socio-Legal Approaches to Law and Development: Donors’ Approaches to Justice Sector Reform.
    Tuesday, November 9
      Oxford Jurisprudence Discussion Group: Amir Fuchs, Welfare between Equality and Responsibility.
      University of Texas, School of Law: Richard Markovits, UT School of Law, "Liberalism and the Common Law of Torts".
      Oxford Intellectual Property Research Centre: Dr Anne Wyatt, INTELLECTUAL PROPERTY IN THE NEW MILLENNIUM: Evaluating IPO Incentives and Prospects Using Prospectus and IP Data.
      Vanderbilt Law: Nancy King, "Tracking Waivers of the Right to Review"
    Wednesday, November 10
      Florida State University, School of Law: Dan Tarlock, Chicago-Kent College of Law (visiting at Florida State University), "The Story of the Calvert Cliffs Case.".
      NYU Legal History: Dalia Tsuk, George Washington University Law School.
    Thursday, November 11
      Stanford Law & Economics: Carl Shapiro (Haas School of Business, University of California, Berkeley) and Mark Lemley (Stanford Law School), “Probabilistic Patents”.
      Yale Legal Theory Workshop: John Hanson, Harvard (Law).
      Boston University, School of Law: Jay Wexler, "Environmental Law and the Judicial Role".
      George Mason, School of Law: Michelle Boardman, GMU School of Law, Insurance Clause as Statute.
      Oxford Society for Law and Religion: Dr Lucy Vickers, Law and Religion Seminars: 'Religious Discrimination in the Workplace: tolerating the intolerant?
      Oxford Financial Law Discussion Group: David Doble, Adventures In Risk Finance: A Contemporary Overview.
      University of Michigan, Law & Economics: Henry Hansmann, Yale, Legal Entities, Asset Partitioning, and the Evolution of Organizations.
    Friday, November 12
      University of Texas, Law & Philosophy Program: Conference on "Methodology in Legal Philosophy" with papers by Liam Murphy (Law & Philosophy, New York University), Nicos Stavropoulos (University Lecturer in Legal Theory, Oxford University), and Benjamin Zipursky (Law, Fordham University).
      UCLA School of Law, Jay Koehler, Univiversity of Texas School of Business, "Selection Bias at Trial".
      Austrailian National University: Conference on Intellectual Property & Farmers Rights.
      Georgetown Law & Economics: Ken Dau-Schmidt, Indiana University School of Law, "Gender and the Legal Profession: The Michigan Alumni Data Set 1967-2000".
      Loyola Marymount, Loyola Law School: James Gathii, Professor of Law, Albany Law School, “The Sanctity of Sovereign Loan Contracts and Its Origins in Enforcement Litigation”.
      Oxford Globalisation & Sustainable Development Law Group: Dr. Duncan French, International Law on Sustainable Development: The Foundations.

Sunday, November 07, 2004
Legal Theory Lexicon: Second Best
    Introduction The post provides a very basic introduction to the idea of "second best" for law students (especially first-year law students) with an interest in legal theory. The term "second best" originated in a famous 1956 article by Lipsey and Lancaster (see bibliography), and it was originally used as a technical economic concept. Despite its technical origins, the idea behind the second best is very general: sometimes the ideal solution to a problem (or "optimal policy option") is infeasible. The best should not be the enemy of the good; so, when the first-best policy option is unavailable, then normative legal theorists should consider second-best solutions. In this post, we will take a hard look at the idea of the second best, beginning with a statement of the intuitive idea and then looking at the more formal idea of the second best in its original economic context.
    The Intuitive Idea The intuition behind the idea of the second best is simple. We would like to have the best possible legal system. But sometimes the best legal policies are not in the cards; that is, the best policy may be impractical. Why? In legal theory, one common reason that we cannot adopt the best policy is politics. Given the political forces that operate, the best campaign finance system may be pie in the sky. So we ask the question, of those systems that might be politically feasible, which is the "second best"?
    Although I've introduced the intuitive idea by talking about "political feasibility," the idea of the second best is more general than that. First-best solutions may be unavailable because of a variety of constraints, of which politics is only one. The intuitive idea of the second best is a bit broader and less technical than the way economists define "second best," so let's turn to that now.
    The Second Best in Economics Let's move from the intuitive idea of the second best to the origins of that idea in economic theory. The very general idea of the economic theory of the second best can be expressed as follows:
      Assume a system with multiple variables. Take the most desirable state the whole system could assume and the associated values that all of the variables must assume to produce this state: call this condition, the first-best state of the system and call the associated values of the variables, the first-best values. Now assume that one variable will not (or cannot) assume the value necessary for the first-best state of the whole system: call this the constrained variable. Holding the constrained variable constant, consider the most desirable state the whole system could then assume and the associated values that all the nonconstrained variables must assume to produce this state: call this the second-best state of the system. There are systems in which achieving the second-best state will require that at least one variable other than the constrained variable must assume a value other than the first-best value: call these value(s) the second-best value(s).
    And here is the way that Lipsey and Lancaster formulated the idea:
      [I]f there is introduced into a general equilibrium system a constraint which prevents the attainment of one of the Paretian conditions, the other Paretian conditions, though still attainable, are in general, not desirable.
    (If "Paretian" is unfamiliar to you, either ignore that term or click here.) Lipsey and Lancaster are making a normative (but technical( argument. They assert that if one variable is constrained and cannot assume its first-best value, then "in general" other variables should not assume their first-best values. The "in general" qualification is important. Lipsey and Steiner didn't and couldn't show that it is always (or necessarily) the case that constraint of one variable affects the most desirable value for other variables. Rather, their proof shows that this is possible. In the real world, whether nonconstrained variable should depart from their first-best variables depends entirely on the facts. In fact, if a policymaker lacks certain information about the second-best variables, it may turn out that the real world policy that will produce the best result is to try to move the constrained variable as close as possible to its optimal state, leaving the second-best variables in their first-best states. The possibility was called the "third best" by Ng (see bibliography below).
    One or two additional points are necessary to complete the technical story.
      First, the definition that I just gave assumes that only one variable is constrained. But there is no reason to limit the theory of the second best in this way, more than one variable may be constrained. In fact, in theory every variable could be constrained: in this limiting case, the second-best state would be the only possible state of the system.
      Second, the second best is usually understood as relative to a constrained variable. We could use the phrase "second best" to refer to the second-best state the system could assume if all the variables were unconstrained, but this is not the way that Lipsey and Lancaster used that phrase.
      Third, there is an important difference between the way economists understand "second best" and the way the same phrase is understood by noneconomists. What was interesting and powerful about Lipsey and Lancaster's proof is that it produced the counterintuitive result that sometimes when one variable is constrained, the best policy choice will involve moving other variables away from their first-best values.
      Although technically, the definition of second best need not be limited to that special situation, that is the interesting result, and the use of the theory of the second best in economics may be limited to the special case. Outside of economics, however, the phrase "second best" tends to be used in a much looser sense.
    The important thing is not the terminology, but the ideas. To be clear, however, it is useful to explain what you mean by second best!
    The Second Best and Nonideal Theory The idea of the second best that is used by economists is analogous to a distinction made famous by the political philosopher, John Rawls. Rawls distinguished between two ways of approaching political philosophy, ideal and nonideal theory. In ideal theory, we assume compliance with the normative requirements of our theory. Rawls used the phrase "well-ordered society" to refer to the situation that obtains in ideal theory. In a society that is well ordered by Rawls's principles of justice, citizens actually would be guaranteed a fully adequate scheme of basic liberties and the basic structure would actually work to the advantage of the least well off group in society. In nonideal theory, we relax the assumption that the society is well ordered by the principles of justice. Can you make that very abstract description more concrete? Yes, here is a really good example. In a society that is well-ordered by Rawls's principles of justice, we might assume that if there are local governmental units, they will comply with the restraints imposed by the freedom of speech. But in the real world, local governments might be more susceptible to political pressure to suppress unpopular speech than would be the central government (i.e. the national government in Washington, D.C., in the case of the United States). So, in the real world of nonideal theory, we might be very considered with constraining the jurisdiction and powers of local governments; whereas, this issue may not even arise in the case of ideal theory.
    Pinpointing the Constrained Variable The notion of the second best and the related idea of nonideal theory get tossed around quite a lot in legal theory, but sometimes these terms are used carelessly or without precision. Whenever you hear or read the term "second best," ask yourself the question, "Which variable is constrained, and why is it constrained?" Because the "second best" is second best relative to a constrained variable, use of the concept of the second best doesn't mean anything unless and until the constrained variable is specified. Moreover, it is sometimes very important to know why the constrained variable is constrained. This is because it is easy to construct an argument for a second-best policy option that uses a double standard with respect to whether variables should be considered to be constrained. Here is a simple example:
      Suppose our problem is racial justice with respect to the distribution of income and resources. Someone might make the case for reparations (a one time payment of a compensatory amount to descendents of the former slaves) on the ground that reparations are the second-best solution. The first-best solution would be a just economic order in which market mechanisms operate in a nondiscriminatory fashion to allocate income and wealth according to just criteria. (For this purpose, we don't need to specify what the just criteria are.) But the first-best solution is unavailable, because a just economic order is politically infeasible. Therefore, we ought to support reparations, which is the second-best policy.
    So far, so good. But notice that there is a hidden assumption in this argument. The argument assumes that reparations are politically feasible. If this assumption is incorrect (which it may well be as an empirical matter), then it follows that the argument for reparations as the preferred second-best solution is fallacious. Of course, one can deploy double standards with respect to which variables are constrained (or which options are infeasible) so long as the double standard is made clear. But when the double standard is concealed and the argument is made in the context of policy evaluation, then we have either an innocent mistake or an attempt at manipulation.
    The Feasible Choice Set Another way of approaching the general problem revealed by the theory of the second best is via the notion of the feasible choice set. Take all of the possible legal policy options with respect to a particular legal problem. Then lay out a set of well-defined criteria for feasibility. Apply the criteria to the set, sorting the options into the feasible choice set and the infeasible choice set. Practical policy discussion will usually be limited to the options within the feasible choice set, but legal theory is not limited to the practical. Frequently we can learn something important by considering options that are outside the feasible choice set. For example, a rule of strict liability might turn out to be the optimal rule of tort law. It could also turn out that strict liability regimes are politically infeasible--perhaps because the fault-based social norms are very strongly held. But that fact should not preclude legal theorists from examining the merits of strict liability regimes. Not only may such an examination be of intrinsic interest, but the insights gleaned from such an examination may well assist in the evaluation of the options that are within the feasible choice set.
    The Bottom Line The notion of the second best, the distinction between ideal and nonideal theory, and the idea of the feasible choice set, are all essential tools for a legal theorist. As a first year student, you are likely to encounter these ideas in classroom discussion or in law review articles assigned as ancillary reading. The trick to mastering these concepts and using them effectively is to identify the constrained variable (or the nonideal conditions). Once you've done that, you can move to the next step, which is the question, "What criteria are used to identify the constrained variables?" And if you can answer that question, you are now in a position to respond in an intelligent and sophisticated way to applications of the theory of the second best!
    Bibliography & Links

Saturday, November 06, 2004
Legal Theory Bookworm The Legal Theory Bookworm recommends The Idea of Private Law by Ernest J. Weinrib. If you are relatively new to legal theory, you may not have read Weinrib, who offers a distinctive and intriguing theory of private law. Weinrib is really a must if you are interested in contemporary tort theory. Here is a description:
    Private law is a familiar and pervasive phenomenon. It applies our deepest intuitions about personal responsibility and justice to the property we own and use, to the injuries we inflict or avoid, and to the contracts which we make or break. The Idea of Private Law offers a new way of understanding this phenomenon. Rejecting the functionalism popular among legal scholars, Ernest Weinrib advances the provocative idea that private law is an autonomous and noninstrumental moral practice, with its own structure and rationality. Weinrib draws on Kant and Aristotle to set out a formalist approach to private law that repudiates the identification of law with politics or economics. Weinrib argues that private law is to be understood not as a mechanism for promoting efficiency but as a juridical enterprise in which coherent public reason elaborates the norms implicit in the parties' interaction. The book combines philosophical exposition and legal analysis, and pays special attention to issues of tort law. Private law, Weinrib tells us, embodies a special morality that links the doer and the sufferer of harm. Weinrib elucidates the standpoint internal to this morality, in opposition to functionalists, who view private law as an instrument in the service of external and independently justifiable goals. After establishing the inadequacy of functionalist approaches, Weinrib traces the implications of the formalism he proposes for our ideas of the structure, coherence, and normative grounding of private law. Furthermore, the author shows how this formalism manifests itself in the leading doctrines of private law liability. Finally, he describes the public but nonpolitical role of the courts in articulating the special morality of private law.
And here are some excerpts from the reviews:
    Ernest Weinrib's new book deserves our highest attention. No one who thinks seiously about the nature of private law can afford to ignore this work. In addition to providing a compelling account of the nature of private law, this book puts into serious question the leading contemporary accounts of the nature of law. In short, this is a book from which any student of law will learn much...No account of private law can be complete without addressing Weinrib's position. --Dennis Patterson , Modern Law Review The Idea of Private Law is Weinrib's first monograph presentation of his quarter century of writing in legal philosophy. This presents his version of legal formalism....Plausible reactivation of classical positions in philosophy and jurisprudence is enough to recommend the work, even had not its contemporaneity to concerns before our legislatures... and to colloquy with all other legal philosophy of note today...done so. --C. B. Gray, Review of Metaphysics Clearly and elegantly written. The debate that Weinrib engages is important and Weinrib's own position in the debate should be heard. He makes a significant contribution by arguing the importance of understanding tort law by reference to its own internal structure. --George P. Fletcher, School of Law, Columbia University The Idea of Private Law presents a position about tort law which in my view is essential, and develops that position in a way that is both powerful and eloquent. Weinrib stands out among those who have analyzed tort law from a justice perspective. This is a brave and distinguished book. --Gary T. Schwartz, University of California, Los Angeles
Follow this link to the Harvard University Press page for the book.

Download of the Week The Download of the Week is Preference, Deliberation and Satisfaction by Philip N. Pettit, Princeton University - Department of Politics. Here is the abstract:
    What is preference? And how does preference formation relate to deliberation? The paper offers an account of preference in the first section, deliberation in the second, and then attempts to show how the two relate. The main idea is that while deliberation leads us towards the option for which we have the strongest preference, that does not mean that we are generally focussed on how options promise to satisfy our preferences. The option we come to prefer is preferred most strongly because it proves in deliberation to have the strongest support, not the other way around.
I am always wowed by Pettit. If you aren't reading his papers yet, then start with this one. The topic of the paper should be of especial interet to legal theorists, because of the important role of welfarism (or preference-satisfaction utilitarianism) in normative law and economics. Pettit's paper suggests that preferences cannot play the role that some versions of welfarism would seem to require. Download it while its hot!

Book Announcement: Knowledge, Nature, and the Good
    Knowledge, Nature, and the Good: Essays on Ancient Philosophy John M. Cooper To read the entire book description and a sample chapter, please visit: Knowledge, Nature, and the Good brings together some of John Cooper's most important works on ancient philosophy. In thirteen chapters that represent an ideal companion to the author's influential Reason and Emotion, Cooper addresses a wide range of topics and periods--from Hippocratic medical theory and Plato's epistemology and moral philosophy, to Aristotle's physics and metaphysics, academic scepticism, and the cosmology, moral psychology, and ethical theory of the ancient Stoics. 0-691-11724-1 Paper $27.95 US and £17.95 0-691-11723-3 Cloth $65.00 US and £41.95 400 pages. 6 x 9.

Book Announcement: Liberal Languages
    Liberal Languages: Ideological Imaginations and Twentieth-Century Progressive Thought Michael Freeden To read the entire book description and the introduction, please visit: Liberal Languages reinterprets twentieth-century liberalism as a complex set of discourses relating not only to liberty but also to welfare and community. Written by one of the world's leading experts on liberalism and ideological theory, it uses new methods of analyzing ideologies, as well as historical case studies, to present liberalism as a flexible and rich tradition whose influence has extended beyond its conventional boundaries. 0-691-11678-4 Paper $19.95 US and £12.95 0-691-11677-6 Cloth $55.00 US and £35.95 280 pages. 6 x 9.

New on Law & Politics Book Review
    RECLAIMING THE AMERICAN REVOLUTION: THE KENTUCKY AND VIRGINIA RESOLUTIONS AND THEIR LEGACY, by William J. Watkins, Jr. New York: Palgrave MacMillan, 2004. 264pp. Hardback. $39.95. ISBN: 1403963037. Reviewed by Mitchell McNaylor.
    HOW TO PLEASE THE COURT: A MOOT COURT HANDBOOK, by Paul I. Weizer (ed.). New York: Peter Lang, 2004. 200pp. Paperback. $19.95. ISBN: 0-8204-6949-1. Reviewed by Clifford Angell Bates, Jr.
    DEFINING AMERICA THROUGH IMMIGRATION POLICY, by Bill Ong Hing. Philadelphia: Temple University Press, 2004. 336pp. Cloth. $71.50. ISBN: 1592132324. Paper. $27.95. ISBN: 1592132332. THE "HUDDLED MASSES" MYTH: IMMIGRATION AND CIVIL RIGHTS, by Kevin R. Johnson. Philadelphia: Temple University Press, 2003. 264pp. Cloth. $59.50. ISBN 1-59213-205-7. Paper. $19.95. ISBN 1-59213-206-5. Reviewed by Audrey Kobayashi.
    ROUGH JUSTICE: LYNCHING AND AMERICAN SOCIETY, 1874-1947, by Michael J. Pfeifer. Chicago: University of Illinois Press, 2004. 272pp. Cloth. $35.00. ISBN 0-252-02917-8. Reviewed by Dr. Christopher Malone.
    THE VINSON COURT: JUSTICES, RULINGS AND LEGACY, by Michal R. Belknap. Santa Barbara, CA: ABC-CLIO, 2004. 333pp. Cloth. $65.00. ISBN: 1-57607-21-0. Reviewed by Caryl Lynn Segal.
    SUCCESS WITHOUT VICTORY: LOST LEGAL BATTLES AND THE LONG ROAD TO JUSTICE IN AMERICA, by Jules Lobel. New York: New York University Press, 2003. 336pp. Hardcover. $34.00. ISBN: 0814751121. Reviewed by Charles R. Epp.
    RIGHTS, DEMOCRACY, AND FULFILLMENT IN THE ERA OF IDENTITY POLITICS: PRINCIPLED COMPROMISES IN A COMPROMISED WORLD, by David Ingram. Rowman & Littlefield, 2004. 280pp. Paper. $27.95. ISBN: 0742533484. Cloth. $75.00. ISBN:0742533476. Reviewed by Catherine Dauvergne.
    LEGAL REFORM IN KOREA, by Tom Ginsburg (ed). Abingdon, U.K. & New York , NY: Routledge Curzon, 2004. 248 pp. Hardback. £60.00 / $115.00. ISBN 0-415-34100-0. Reviewed by David Gurnham.
    UN-MAKING LAW: THE CONSERVATIVE CAMPAIGN TO ROLL BACK THE COMMON LAW, by Jay M. Feinman. Boston, MA: Beacon Press, 2004. 240pp. Hardcover. $26.00. ISBN 0-8070-4426-1. Reviewed by Daniel Levin.
    GENDER, CRIME AND CRIMINAL JUSTICE (2nd ed), by Sandra Walklate. Willan Publishing, 2004. 240pp. Paperback. £17.99 / $29.50. ISBN 1-84392-068-9. Reviewed by Mary W. Atwell.

Friday, November 05, 2004
Friday Calendar

Thursday, November 04, 2004
Gardner on Lacey on Hart John Gardner has an important review of Nicola Lacey's new biography of H.L.A. Hart. Here is a taste:
    Nicola Lacey’s much-anticipated biography of H.L.A. Hart, Professor of Jurisprudence at Oxford from 1952 to 1968, is a stunning achievement of both story-telling and scholarship. The biography is authorized in the sense that Lacey, a longstanding friend of the Hart family who was on good terms with Hart himself, has had the family’s blessing and support in writing it. She has therefore enjoyed generous access to Hart’s personal papers and family memories as well as those of many of his friends, colleagues and students. But the biography is not authorized in the sense of having been screened in advance of publication by the family or any other guardians of the great man’s memory. This delicate mode of accountability turns out to have been well-suited to the task. The result is a sympathetic and sensitive account of a man who was plagued by serious self-doubt in many areas of his very full and varied life. Hart’s torments, many of them spelled out in his letters and diaries, sometimes make for uncomfortable reading, but Lacey has not sanitized their causes to spare the feelings of the living. And yet she has tackled even the most painful parts of Hart’s story with an enviably humane and affectionate touch, which extends out beyond Hart himself to many of the other characters in the book. Hart’s own warmth, even towards his rivals in love, never mind his rivals in jurisprudence, is made real by the similar disposition of his biographer. Likewise Hart’s mischievous and piquant sense of humour, with which Lacey wittily conspires.
    As well as this personal rapport with her subject, Lacey brings to the book her redoutable professional competence as a legal theorist. She has a subtle and lively appreciation of Hart’s intellectual aims and achievements, a world away from the sterile rendition found in many student textbooks.
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Thursday Calendar
    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.

Call for Papers: Hume & His Critics
    Hume and His Critics: A Conference on the Scottish Enlightenment Baylor University April 14-16, 2005 Karl Ameriks University of Notre Dame Gordon Graham University of Aberdeen James Van Cleve Brown University, University of Southern California The Baylor University Department of Philosophy is pleased to announce "Hume and His Critics: A conference on the Scottish Enlightenment", to be held April 14-16, 2005 in honor of Elmer H. Duncan. The program committee invites submissions of 300-500 word abstracts of papers on topics related to the work of any philosopher from the period that has come to be known as the Scottish Enlightenment. The conference planners intend for the final conference program to reflect the diversity of thought represented in the period; therefore, we will consider papers on a wide variety of figures and areas of philosophical thought. Proposals for panel discussions or book sessions are also welcome. Final papers should be around 30 minutes reading length. Notification of acceptance will be mailed by February 15, 2005. Electronic submissions in Microsoft Word format are welcome and encouraged. Abstracts should include name, affiliation, mailing address, and e-mail address (if available). Abstracts should be mailed to: Hume and His Critics Baylor University Department of Philosophy One Bear Place #97273 Waco, TX 76798-7273 Electronic submissions should be sent to: Deadline for submissions: January 3, 2005. Please see the conference web site for up-to-date information: Sponsored by the Baylor University Department of Philosophy, Offices of the Vice Provost for Research and Dean of the College of Arts & Sciences at Baylor University, and the Reid Society.

Wednesday, November 03, 2004
Book Announcement: Innovation and Its Discontents

Wednesday Calendar
    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.

Tuesday, November 02, 2004
Tuesday Calendar
    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.

Monday, November 01, 2004
Monday Calendar

Pettit on Preferences Philip N. Pettit, Princeton University - Department of Politics, has posted Preference, Deliberation and Satisfaction on SSRN. Here is the abstract:
    What is preference? And how does preference formation relate to deliberation? The paper offers an account of preference in the first section, deliberation in the second, and then attempts to show how the two relate. The main idea is that while deliberation leads us towards the option for which we have the strongest preference, that does not mean that we are generally focussed on how options promise to satisfy our preferences. The option we come to prefer is preferred most strongly because it proves in deliberation to have the strongest support, not the other way around.

Law on Strategic Judicial Law Making 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.

Welcome to the Blogosphere . . . . . . to White Collar Crime Prof Blog edited by Peter J. Henning (Wayne State) & Ellen S. Podgor (Georgia State).

Conference Announcement: Logic and Law at King's College, London
    Logic and Law 6th Augustus De Morgan Workshop King's College London 15th - 18th November 2004 The Sixth De Morgan Workshop, to take place in November 2004 is on Logic and Law. There are strong connections and common themes in logic an din law. Legal reasoning in which temporal and psychological considerations play an indispensable role. Recent developments in the logics of agents and AI brought logic to a stage where it can be of serious service to the law on the technical as well as the conceptual level. The concepts of common interest are these: Proof Evidence Probability Relevance Precedent Presumption Plausibility Abduction Fallacies We are therefore organising this conference bringing law professors and logicians in areas connected with law together to show how close logic and law are, and hope to initiate interest in the proposed research programme. All the major areas involved are represented by the following speakers, all of whom are world-famous researchers: Prof. M. Baaz (TU, Wien) Prof. John Woods (UBC, Canada) Prof. Alan Norrie (King's College, London) Prof. Ian Dennis (University College London) Prof. Michel Parigot (Univ Paris VII, France) Prof. Michael Thaler (University of Salzburg) Dr. Trevor Bench-Capon (University of Liverpool) Prof. Lars Lindahl (Lund University) Prof. Jan Odelstad (Gavle University) Prof. Lev Beklemishev (University of Utrecht and Steklov Maths Institute) Prof. Andrew Irvine (UBC, Canada) The attendance fee is £15 sterling (£10 for students). If you would like to attend please contact Jane Spurr. The workshop will take place in the Great Hall, King's College, Strand, London. Monday 15th November 09.00-10.00 Registration 10.00-11.30 John Woods and Dov Gabbay: Logic and Law: Crossing the lines of discipline 11.30-13.00 Alan Norrie: "From criminal law to legal tehory: the mysterious case of the reasonable glue sniffer" 14.00-15.30 Ian Dennis: "Jury and character assessment" 16.00-17.30 Michel Parigot: "Trials of loic in law" 19.00- Conference Dinner Tuesday 16th November 09.30-11.00 Matthias Baaz: "General introduction to logic and law" 11.30-13.00 Michael Thaler: "Problems of philosophy of logic - problems of philosophy of law. More than a resemblance?" 14.00-15.30 Trevor Bench-Capon: "Modelling persuasive argument" 16.00-17.30 Lars Lindahl and Jan Odelstad: "Concpet formation in normative systems I: Intermediate concepts" Wednesday 17th November 09.30-11.00 Lars Lindahl and Jan Odelstad: "Concpet formation in normative systems II: Further developments"" 11.30-13.00 Lev Beklemishev: "On the idea of formalisation in logic and law" 14.00-15.30 Andrew Irvine: "Formalising the rule of law" 16.00-17.30 Panel Discussion: Parigot/Baaz/Gabbay Accommodation: London is quite expensive for accommodation, but the following alternatives are at the lower end of the price range: City of London Youth Hostel £20.50 under 18 / £24.60 over 18 per night bed and breakfast. Hotel Strand Continental 143 Strand, London WC2R 1JA Tel. +44 20 7836 4880. Fax. +44 20 7379 6105. Single room £32, Double room £40, Family room £50, Twin room £45, Triple room £55. Prices include breakfast. This hotel is for those who favour convenience (it is right next to King's College) and cuisine (it contains the authentic India Club restaurant) over comfort. Cosmo Bedford House Hotel 27 Bloomsbury Square, London WC1 2QA Tel. +44 20 7636 4661. Fax. +44 20 7636 0577. Email: Single room £38, Double room £50. Tavistock Hotel Tavistock Square, London, WC1H 9EU Tel. +44 20 7636 8383. Reservations: +44 20 7278 7871/2/3 Single room £61, Double room £82. Food: King's College has a basic canteen in the student's union building. The India Club (143 Strand) serves authentic Indian cuisine. There is a Thai restaurant and a Pizza Express in the same row of buildings. Sarastro Restaurant - 126 Drury Lane - Turkish Food - early evening 'tenor menu' £10