Legal Theory Blog |
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 All the theory that fits! Home 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. RSS Links for Legal Theory Blog --Lawrence B. 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Part I: The Three Step Argument Part II: Stare Decisis and the Ratchet Part III: Precedent and Principle Fear and Loathing in New Haven A Neoformalist Manifesto Understanding the Confirmation Wars: The Role of Political Ideology and Judicial Philosophy Breaking the Deadlock: Reflections on the Confirmation Wars Going Nuclear: The Constitutionality of Recess Appointments to Article III Courts Archives 09/01/2002 - 09/30/2002 01/01/2003 - 01/31/2003 02/01/2003 - 02/28/2003 03/01/2003 - 03/31/2003 04/01/2003 - 04/30/2003 05/01/2003 - 05/31/2003 06/01/2003 - 06/30/2003 07/01/2003 - 07/31/2003 08/01/2003 - 08/31/2003 09/01/2003 - 09/30/2003 10/01/2003 - 10/31/2003 11/01/2003 - 11/30/2003 12/01/2003 - 12/31/2003 01/01/2004 - 01/31/2004 02/01/2004 - 02/29/2004 03/01/2004 - 03/31/2004 04/01/2004 - 04/30/2004 05/01/2004 - 05/31/2004 06/01/2004 - 06/30/2004 07/01/2004 - 07/31/2004 08/01/2004 - 08/31/2004 09/01/2004 - 09/30/2004 10/01/2004 - 10/31/2004 11/01/2004 - 11/30/2004 12/01/2004 - 12/31/2004 01/01/2005 - 01/31/2005 02/01/2005 - 02/28/2005 03/01/2005 - 03/31/2005 04/01/2005 - 04/30/2005 05/01/2005 - 05/31/2005 06/01/2005 - 06/30/2005 07/01/2005 - 07/31/2005 08/01/2005 - 08/31/2005 09/01/2005 - 09/30/2005 10/01/2005 - 10/31/2005 11/01/2005 - 11/30/2005 12/01/2005 - 12/31/2005 01/01/2006 - 01/31/2006 02/01/2006 - 02/28/2006 03/01/2006 - 03/31/2006 04/01/2006 - 04/30/2006 05/01/2006 - 05/31/2006 06/01/2006 - 06/30/2006 07/01/2006 - 07/31/2006 Blogosphere New: --PrawfsBlog (Group BLog) --Balkinization (Jack Balkin) --Crescat Sententia (Group Blog) --Crooked Timber (Group Blog) --De Novo (Group Blog) --Desert Landscapes (Group Blog) --Discourse.Net (Michael Froomkin) --Displacement of Concepts (Group Blog) --Election Law (Rick Hasen) --Freedom to Tinker (Ed Felten) --The Garden of Forking Paths --How Appealing (Howard Bashman) --Instapundit (Glenn Reynolds) --Is That Legal? 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Journals Specializing in Legal Philosophy --American Journal of Jurisprudence --The Journal of Philosophy, Science, and Law --Law and Philosophy --Law and Social Inquiry --Legal Theory --Oxford Journal of Legal Studies Legal Theory Resources on the Web Entries from the Stanford Encyclopedia of Philosophy +Austin, John +justice, distributive +justice, as a virtue +legal philosophy, economic analysis of law +legal reasoning, interpretation and coherence +legal rights +liberalism +libertarianism +naturalism in legal philosophy +nature of law +nature of law, legal positivism +nature of law, pure theory of law +republicanism From the Oxford Handbook of Jurisprudence +Natural Law Theory: The Modern Tradition From the Oxford Handbook of Legal Studies +Law as an Autonomous Discipline From the Examined Life A Critical Introduction to Liberalism Papers & Articles +Virtue Jurisprudence Organizations +American Political Science Association(APSA) +American Society for Political and Legal Philosophy (ASPLP) +Association of American Law Schools(AALS) +Internationale Vereinigung fur Rechts und Sozialphilosophie(IVR) +Law and Society Association +Midwest Political Science Association (MPSA) My Postal Address Lawrence B. Solum University of Illinois College of Law 504 East Pennsylvania Ave Champaign, IL 61820 USA 
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Friday, December 31, 2004
Hasen on Thomas for Chief Rick Hasen has posted Why I Don't Expect There to Be a Chief Justice Thomas on Election Law Blog. Hasen has two arguments:
Legal Theory Books of 2004 Among the new books that came to the attention of the Legal Theory Bookworm in 2004, the following were especially interesting:
Downloads of the Year Among the many articles and papers mentioned on Legal Theory Blog in 2004, here are a few that are especially recommended:
Thursday, December 30, 2004
LoPucki & Weyrauch on Legal Strategy Lynn M. LoPucki and Walter O. Weyrauch (University of California, Los Angeles - School of Law and University of Florida, Levin College of Law) have posted A Theory of Legal Strategy (Duke Law Journal, Vol. 49, No. 6, April 2000) on SSRN. Here is the abstract:
Goldman on Internet Trademark Law Eric Goldman (Marquette University - Law School) has posted Deregulating Relevancy in Internet Trademark Law (Emory Law Journal, Vol. 54, 2005). Here is the abstract:
Wednesday, December 29, 2004
New on Law & Politics Book Review
COMPARATIVE CONSTITUTIONALISM AND GOOD GOVERNANCE IN THE COMMONWEALTH: AN EASTERN AND SOUTHERN AFRICAN PERSPECTIVE, by Johan Hatchard, Muna Ndulo, and Peter Slinn. Cambridge: Cambridge University Press, 2004. 388pp. Hardback. £65.00 / $120.00. ISBN: 0-521-58464-7. Reviewed by James B. Kelly. A CRITICAL INTRODUCTION TO LAW, THIRD EDITION, by Wade Mansell, Belinda Meteyard and Alan Thomson. London: Cavendish Publishing, 2004. 224pp. Paper £18.95 / $38.00. ISBN: 1-85941-892-9. Reviewed by Trish Oberweis. BUILDING THE UK'S NEW SUPREME COURT: NATIONAL AND COMPARATIVE PERSPECTIVES, by Andrew Le Sueur (ed). New York, N.Y.: Oxford University Press, 2004. 376pp. Hardback. £50.00 / $90.00. ISBN 0-19-926462-7. Reviewed by Carla Thorson. LAW AND EMPLOYMENT: LESSONS FROM LATIN AMERICA AND THE CARIBBEAN, by James J. Heckman and Carmen Pagés (eds). Chicago: University of Chicago Press, 2004. 475pp. Cloth $95.00. ISBN: 0-226-32282-3. Reviewed by Matthew M. Taylor. Book Announcement: Soames on Reference & Description
Klick on Salvation as Solution to Free Rider Problems Jonathan Klick (Florida State University - College of Law) has posted Salvation as a Selective Incentive (International Review of Law and Economics, Forthcoming) on SSRN. Here is the abstract:
Tuesday, December 28, 2004
Onwuachi-Willig on Justice Thomas & Racial Identity Angela Onwuachi-Willig (University of California, Davis - School of Law) has posted Just Another Brother on the SCT?: What Justice Clarence Thomas Teaches Us About the Influence of Racial Identity (Iowa Law Review, Vol. 90, 2005) on SSRN. Here is the abstract:
Bellia on Federal Common Law & State Courts Anthony J. Bellia Jr. (Notre Dame Law School) has posted State Courts and the Making of Federal Common Law (University of Pennsylvania Law Review, Vol. 153, 2005) on SSRN. Here is the abstract:
Monday, December 27, 2004
Posner on Morality and Public Policy Richard Posner is guest blogging over at the Leiter Reports. He has a post entitled Faith-Based Morality and Public Policy. Here's a taste:
Second, as Rawls's thought evolved, he eventually came to what he called the "wide view" of public reason. Here is how he expressed the crucial feature of the wide view:
Johnson on Race Kevin Johnson (UC Davis) has posted Roll Over Beethoven: 'A Critical Examination of Recent Writing about Race' (Texas Law Review, Vol. 82, No. 717, 2004) on SSRN. Here is the abstract:
De Soysa, Bailey, & Neumayer on Democracy, Institutional Design, and Economic Sustainability Indra De Soysa , Jennifer Bailey and Eric Neumayer (Norwegian University of Science and Technology , Norwegian University of Science and Technology - General and London School of Economics - Department of Geography and Environment) have posted Free to Squander? Democracy, Institutional Design, and Economic Sustainability, 1975-2000 on SSRN. Here is the abstract:
Brown Reviews Feelings and Emotions On Metapsychology, Sam Brown reviews an anthology entitled Feelings and Emotions: The Amsterdam Symposium by Antony S.R. Manstead, Nico H. Frijda and Agneta Fischer, Cambridge University Press, 2004. Here is a taste:
Sunday, December 26, 2004
Legal Theory Lexicon: Speech Acts
Legal theorists are interested in speech act theory for a variety of reasons, but one of the most important is that speech act theory helps to explain the way that the law uses language. Statutes, holdings, and constitutional provisions aren't like "the cat is on the mat." That is, a statute does not tell us how the world is in the same way that a declaratory sentence does. Legal language is full of speech acts. This entry in the Legal Theory Lexicon provides a rough and ready introduction to speech act theory pitched at law students (especially first-year law students) with an interest in legal theory. Sentences, Propositions, Meaning, and Truth There are lots of ways we could start, but let's begin with a simple sentence. "The sidebar of legal theory blog contains a link to Balkinization." What does this sentence mean? One answer to that question is pretty straightforward. There is an object in the world (the sidebar of legal theory blog) and that object includes another, "a link to Balkinization." Simple declarative sentences like this have truth values (or are "truth-apt"). In this case, the sentence is true, because the sidebar to Legal Theory Blog actually does have a link to Balkinization. There is a temptation to think that all sentences are like simple declarative sentences in that (1) the meaning of the sentence can be cashed out by the way it refers to the actual world, and (2) if the sentence is meaningful (i.e. it succeeds in referring), then the sentence has a truth value. O.K., that was a lot to swallow, but what does it have to do with "speech acts"? Now, take this expression in English: "Please add my blog to your blogroll." Does this sentence refer to anything? Well, it does include elements that refer, e.g. "my blog" and "your blogroll." But this sentence doesn't assert that my blog is on your blogroll. It may imply that my blog currently is not on your blogroll, but that implicit assertion doesn't exhaust its meaning. The sentence "Please add my blog to your blogroll" is a request. By uttering (or posting) these words, I am making a request. If you do add my blog to your blogroll, the request will succeed. If you don't, the request will have failed. Although the request can succeed or fail, it would be strange indeed to say that "Please add my blog to your blogroll" is either true or false. Requests are not truth-apt; they do not bear truth values. Are there any other types of expressions that are similar to requests? Once we start looking, we will discover lots and lots. Orders, questions, offers, acceptances, warnings, invitations, greetings, welcomes, thank yous--all of these are types of expressions that do not seem to refer or to have truth values. What do these expressions mean then, if they don't refer? When I gave an order, I perform an action--the act of ordering X to do Y. When I make an offer, I perform an action--the act of creating a legally effective option for the offeree to form a legally binding contract by accepting the offer. When I extend an invitation to a party, I perform an action--the act of inviting person P to event E. Speech act theory begins with the idea that language can be used to perform actions. Form and Function We might be tempted to think that we can tell the difference between sentences that describe the world and expressions that perform actions simply by their form. So we might be tempted to say, "Sentences of the form X is Y express propositions that refer," whereas sentences of the form, "I hereby do X" perform a speech act. But language is much messier than this. Take the sentence, "This room is a pig sty." In some contexts, this sentence might be referential. If one were taking a tour of an animal husbandry research facility, the sentence "This room is a pig sty" might express a true proposition about the function of a particular room. But if the same words were used by a parent, in an annoyed tone, and directed to a teenage child, the real meaning of the expression might be, "Clean up your room!" Certain forms are characteristically associated with propositions that refer and others with the performance of speech acts, but the question of meaning depends on the context of utterance. Utterance, Locution, Illocution, Perlocution With the basic idea of a speech act under out belts, we can now introduce a useful set of terminological distinctions: A Typology of Speech Acts One of the tasks of speech act theory has been to develop typologies of speech acts. Here is one typology developed by Bach and Hamish: Speech Act Theory and Legal Theory How can legal theorists use speech act theory? We could start by noting the important role that speech acts play in the law. Laws themselves might be seen as speech acts--as types of commands or authorizations. In contract law, issues of contract formation frequently turn on questions whether particular utterances were speech acts of particular types. Was this utterance an offer? Was that statement an acceptance? In a very general way, speech act theory is helpful simply because it allows us to understand legal phenomena from a new angle. Speech act theory may also be helpful in resolving particular sorts of doctrinal puzzles. For example, in the theory of the freedom of speech, one might be puzzled about the unprotected status of certain expressions. Oral contracts are speech. Threats are speech. An order from a Mafia boss to a hitman is speech. But no one thinks that these instances of speech raise serious questions under the First Amendment. Why not? One possible answer to this question could begin with "marketplace of ideas" theory of free speech famously associated with Justice Holmes--a theory that emphasizes the role of freedom of speech in facilitating the emergence of truth from the unrestricted public debate and discussion. Directive speech acts, such as orders, do not make truth claims, and hence might be entirely outside the freedom of speech. But constantive speech acts, such as affirming, conjecturing, or disagreeing, do make speech claims and hence would raise free speech issues on the marketplace of ideas theory. Of course, one paragraph does not a theory of the freedom of speech make--for more on this, see my Freedom of Communicative Action. Here is another example. The hearsay rule is notoriously difficult to conceptualize precisely, because the canonical formulation, that hearsay is "an out-of-court declaration introduced for the truth of the matter asserted," is not transparent. Speech act theory may perform a clarifying function. The phrase "out of court declaration" may be clarified by reference to the categories of speech acts: out-of-court declarations are constantive speech acts. Other categories of speech acts, e.g. directives, commisives, and acknowledgements, are not declarations. Moreover, the phrase "for the truth of the matter asserted" may be illuminated by distinguishing propositional contents which may bear truth values, on the one hand, and illocutionary force and perlocutionary effects on the others. The hearsay rule is usually not violated if an out-of-court declaration is introduced for the purpose of demonstrating its illocutionary force. For example, a third party can testify to the making of an oral contract for the purpose of showing that the action--making the contract--was performed. If you are interested in acquiring a very basic knowledge of speech act theory, I recommend that you start with Austin's marvelous How to Do Things with Words. Although many of Austin's particular points have been criticized or superceded by subsequent work, this is a marvelous book--concise, illuminating, and a model of ordinary language philosophy at its best. More advanced readings are included in the bibliography below. Links Saturday, December 25, 2004
Legal Theory Bookworm The Legal Theory Bookworm recommends On The Rule of Law: History, Politics, Theory by Brian Z. Tamanaha. Here's a brief description:
Download of the Week The Download of the Week is Minimalism at War by Cass R. Sunstein. Here is the abstract:
Friday, December 24, 2004
Two Papers by Rawls Online Two well-known papers by John Rawls, Two Concepts of Rules and Justice as Fairness are now available online at HIST-ANALYTIC. I suspect most readers of LTB are familiar with these papers, at least by reputation. If not, these two papers are among the most important in modern political and moral philosophy. Very highly recommended. Confirmation Wars Department: Bush to Resubmit 20 Nominees The Los Angeles Times reports:
Lipshaw on Rational Choice Modelling of Judicial Decision Making In reply to Mialon, Rubin, & Schrag on Judicial Hierarchies & Judicial Preferences & A Comment on Rational Choice Modelling of Judicial Decision Making (posted yesterday), Jeff Lipshaw writes:
Thursday, December 23, 2004
Mialon, Rubin, & Schrag on Judicial Hierarchies & Judicial Preferences & A Comment on Rational Choice Modelling of Judicial Decision Making
The Abstract
This should come as no surprise. When judges decide cases they are engaged in a complex practical activity that responds to differential and imperfect information as well as individuated motivations and abilities. We don't expect rational choice models to predict individual behavior in detail in particular choice situations: try asking an economist to predict what you will do tomorrow! Assumptions & Reactions Back to the paper! Mialon, Rubin, & Schrag make a number of assumptions--as good modellers must. Assumptions must be simple in order to get robust models off the ground, but some of their assumptions weren't so much "simple" as "simply wrong." Here is an example or two:
However, as argued in this paper, lower level courts provide less protection to rules, and more to individuals, than do higher level courts. At any given time, lower courts would prefermore individual oriented rulings than they are allowed by the higher courts. Thus, if a higher court changes rulings to allow more attention to individuals (as did the Supreme Court after the Great Depression), then lower courts will gladly adopt these rulings. On the other hand, if the higher court has moved in the other direction, announcing more emphasis on rules (perhaps the situation that now obtains in the courts, with many Reagan-Bush judges in the Supreme Court), then we would expect the lower level courts to resist moving to this new level. Thus, for example, it should take longer to reverse the movement away from freedom of contract than it took to implement the movement in the first place. Even as speculative possibility, however, this account is highly contestable. Consider the following points: Wednesday, December 22, 2004
Westen on Consent Peter K. Westen (University of Michigan Law School) has posted Some Common Confusions About Consent in Rape Cases (Ohio State Journal of Criminal Law, Vol. 2, No. 1, pp. 332-359, Fall 2004) on SSRN. Here is the abstract:
Lerner & Tirole on the Economics of Information Sharing Josh Lerner and Jean Tirole (Harvard University - Finance Unit and University of Toulouse I - GREMAQ) have posted The Economics of Technology Sharing: Open Source and Beyond on SSRN. Here is the abstract:
Hay & Spier on Manufacturer Liability for Other-Caused Harms Bruce L. Hay and Kathryn E. Spier (Harvard Law School and Northwestern University - Kellogg School of Management) have posted Manufacturer Liability for Harms Caused by Consumers to Others on SSRN. Here is the abstract:
Tuesday, December 21, 2004
Downward Spirals Department Courtesy of Howard Bashman, I came across Supreme battle looms for Rehnquist successor by Andrew Miga in the Boston Herald. Here is a snippet:
Purdy on Ecosystem Management Bruce Pardy (Queen's University (Canada) - Faculty of Law) has posted Changing Nature: The Myth of the Inevitability of Ecosystem Management (Pace Environmental Law Review, Vol. 20, Summer 2003) on SSRN. Here is the abstract:
Khanna on Corporate Crimes Legislation Vikramaditya S. Khanna (University of Michigan at Ann Arbor - Law School) has posted Politics and Corporate Crime Legislation (Regulation, Vol. 27, No. 1, pp.30-35, Spring 2004) on SSRN. Here is the abstract:
Conference Announcement: Value Inquiry
Monday, December 20, 2004
Conference Announcement: Honoring and Examining the Work of Susan Moller Okin
Sunstein on Minalism at War Cass R. Sunstein (University of Chicago Law School) has posted Minimalism at War (Supreme Court Review, Forthcoming) on SSRN. Here is the abstract:
Dogan & Lemley on Merchandising Rights Stacey L. Dogan and Mark A. Lemley (Northeastern University School of Law and Stanford Law School) have posted The Merchandising Right: Fragile Theory or Fait Accompli? on SSRN. Here is the abstract:
Robinson & Cahill on the Model Penal Code Paul H. Robinson and Michael T. Cahill (University of Pennsylvania Law School and Brooklyn Law School) have posted Can a Model Penal Code Second Save the States from Themselves? (Ohio State Journal of Criminal Law, Vol. 1, No. 169, 2003) on SSRN. Here is the abstract:
Sunday, December 19, 2004
Legal Theory Lexicon: Causation
Cause-in-Fact & Legal Cause Let’s put the most important distinction on the table right away. Contemporary legal theory and judicial practice assume that there is a distinction between legal cause on the one hand and cause-in-fact on the other. What does that mean? That’s a huge question, of course, but we can state one conclusion straight away: that X is a cause-in-fact of Y does not entail that X is a legal cause of Y. Less obviously, that X is a legal cause of Y does not entail that X is a cause-in-fact of Y. The various ways that cause-in-fact and legal cause can come apart leads many to the conclusion that legal cause simply has nothing to do with causation, but this turns out to be an exaggeration. I know this all sounds very airy. So let’s get down to brass tacks! Cause-in-Fact What do we mean when we say that X is a cause-in-fact of Y? Many law students learn that the answer to this question is but-for causation. If it is the case that but for X, Y would not have occurred, then X is a but-for cause of Y and hence X is a cause-in-fact of Y. This simple story works most of the time, and as a rough and ready rule of thumb, it isn’t half bad. But it turns out that if you try to use but-for causation as a hard and fast rule for determining whether X is the cause of Y, you will run into trouble, sooner or later. In torts and criminal law, but-for causation runs into trouble somewhere in the midst of the first-year course. In a sense, the point of this Lexicon post is to provide a set of tools that for understanding the troubles that overreliance on but-for causation can cause. Necessary and Sufficient Causes The first item in the causation toolkit is the distinction between necessary and sufficient cause. The basic ideas are simple and familiar. X is a necessary cause of Y, if Y would not have occurred without X. Ben’s running the red light is a necessary cause of the damage to Alice’s car, just in case the damage would not have occurred without Ben’s having run the light. The idea of "necessary cause" is the same idea expressed by the phrase "but-for cause." X is a sufficient cause of Y, if Y would have occurred so long as X occurred. Alice’s shooting Ben through the heart is a sufficient cause of Ben’s death, just in case the shot thru the head by itself would have caused Ben’s death. This is true, even though Ben would have died anyway, because Cynthia shot him through the head at the same time Alice shot him through the heart. The Role of Counterfactuals The notions of necessary and sufficient causation are familiar to almost everyone. We use these ideas all the time in everyday life. But the very familiarity of these concepts creates a temptation to take them for granted. There is an important feature of these ideas that our day-to-day use of them does not make explicit. Both necessary and sufficient causation are counterfactual concepts. What does that mean? “Counterfactual” is simply the fancy name for “what if” thinking. What if Ben had stopped at the red light? Would the damage to Alice’s car still have occurred? What if the Ben had gotten immediate medical attention? Would the shot through the head still have killed him? Every statement regarding a necessary or sufficient cause can be interpreted as making a counterfactual (“what if”) claim. What-if reasoning is itself familiar and ordinary. When we say, Ben’s running the red light was a necessary cause of the damage to Alice’s car, we are claiming that if the world had been different and Ben had not run the red light, then Alice’s car would not have been damaged. We imagine what the world would have been like if Ben had stopped at the red light, and Alice had proceeded through the intersection without being struck by Ben’s car. Counterfactual reasoning can get more complicated that this, but for our purposes we can use everyday what-if reasoning as our model of role of counterfactuals in necessary and sufficient causation. Overdetermination Once we’ve gotten the notions of necessary and sufficient causes, we can move on to the idea of overdetermination. An effect is overdetermined if it has more than one sufficient cause. Take the case of Alice shooting Ben through the heart. We have postulated that the bullet passing through the heart was a sufficient cause of Ben’s death, but it may not have been a necessary cause. Suppose that Alice was a member of a firing squad, and that at the exact same moment that Alice’s bullet passed through Ben’s heart, another Bullet, fired by Cynthia, passed through Ben’s cerebral cortex and that this would have resulted in Ben’s death, even if Alice’s had not fired or her bullet had missed. Ben’s death now results from two sufficient causes, but neither Alice’s shot nor Cynthia’s shot was necessary. If Alice had not fired, Cynthia’s shot would have killed Ben. If Cynthia had not fired, Alice’s shot would have killed Ben. Overdetermination is important, because it undermines the idea that but-for causation tells us everything we need to know about cause-in-fact. We might say that both Alice and Cynthia’s shooting caused Ben’s death or we might say they were both partial causes of Ben’s death, but we would not be likely to say that neither Alice nor Cynthia’s shot was the cause. The firing squad example was described as a case of simultaneous overdetermination—both sufficient causes occurred at the same time. What if Cynthia shot a few seconds before Alice and Ben died before Alice’s shot pierced his heart? In that case, Cynthia’s shot would have preempted the causal role of Alice’s shot. If Cynthia had missed, then Alice’s shot would have killed Ben. This kind of case is sometimes called preemptive causation. Coincidence Overdetermination poses one kind of problem for but-for causation, coincidence poses another a different sort of difficulty. Suppose the driver of a trolley is speeding. As a result the trolley is in just wrong place and time and a tree falls, injuring a passenger. If trolley had gone just a little faster or just a little slower, the tree would have missed the trolley and the injury would not have occurred. Given these circumstances, speeding was a but-for cause (a necessary cause) of the tree injuring the passenger. So what? Coincidence is no problem for cause-in-fact, but it does pose a problem for the legal system. Intuitions vary, but lots of folks are inclined to believe that one should not be legally responsible for harms that one causes as a result of coincidences. Coincidence is related to a variety of other problems with but-for causation. Take our example of Ben running the stoplight and hitting Alice’s car. Running the stoplight was one but-for cause of this accident, but there are many others. For example, Alice’s being in the intersection was also a but-for cause. And how did Alice come to be in the intersection at just the time when Ben was running the red light? If her alarm clock hadn’t gone off, she would have slept in and arrived in the intersection long after Ben, so her alarm clock’s ringing was another but-for cause. And you know how the story goes from here. As we trace the chain of but-for causes back and out, we discover that thousands and millions and billions of actions and events are but-for causes of the accident. Legal Cause What do we about the problems with problems created by but-for cause? One way that the law responds is with the idea of legal cause or proximate cause. In this post, we cannot hope to achieve a deep understanding of legal cause, but we can get a start. Here are some of the ideas that help me to understand legal cause. First, there is a terminological issue: causation may be confused with responsibility. “Legal cause” is only partially about cause. We start with the idea of cause-in-fact (understood in light of the distinction between necessary sufficient cause). This idea of cause seems, on the surface, to fit into the structure of various legal doctrines. So we imagine that if a defendant breaches a duty of care and causes a harm, then defendant is legally responsible for the harm. This works for lots of cases, but then we start thinking about other cases like overdetermination and coincidence. “Legal cause” is the way that we adjust our ideas about legal responsibility to overcome the counterintuitive results that would follow from a simple reliance on but-for causation. In other words, “legal cause” may be a misnomer. It might be clearer if we used the phrase “legal responsibility” (or some other phrase) to describe the ways in which we adjust the law. Second, legal cause is frequently associated with the idea of foreseeability. For example, in coincidence cases, the harm (the tree injuring the passenger) is not a foreseeable consequence of the wrongful act (driving the trolley at an excessive speed). If the purpose of the law is deterrence, then no good purpose may be served by assigning legal responsibility in cases where the effect is unforeseeable. Third, legal cause is sometimes associated with the idea of proximity in time and space. Of course, the phrase “proximate cause” emphasizes this connection. We usually don’t want to hold defendants responsible for the remote and attenuated effects of their actions. We frequently do want to hold defendants responsible for the immediate and direct effects of their actions. “Proximity” seems to capture this point, but an overemphasis on proximity in time and space leads to other problems. Some immediate consequences do not give rise to legal responsibility: the trolley driver may have started speeding just seconds before the tree fell. Some causal chains that extend for long distances over great durations do give rise to legal responsibility: Osama bin Laden’s responsibility for 9/11 would not be vitiated by the fact that he set events in motions years in advance and thousands of miles away. Probability Our investigation of causality so far has elided an important set of issues—the connections between causation and probability. These connections are far too large a topic for this post, but even a superficial analysis requires that we consider two perspectives--ex ante and ex post. Ex post questions about causation arise in a variety of contexts, but for the legal system, a crucial context is provided by litigation and especially trial. In many cases, there is no doubt about causation. When Ben’s car speeds through the red light and hits Alice’s car, we don’t have much doubt about what caused the damage. But in many types of cases, causation will be in doubt. Did the chemical cause cancer? Was the desk job the cause of the back injury? Sometimes the evidence will answer these questions with certainty (or perhaps, with something that is so close to certainty that we treat it as certainty for legal and practical purposes). But in other cases, the evidence will leave us with a sense that that the defendant’s action is more or less likely to have caused the harm to the defendant. Such probabilities may be expressed either qualitatively or quantitatively. That is, we might say that it is “highly likely” that X caused Y or we might say that there is a 50% chance (p = .5) that X caused Y. Ex ante issues of causation also arise for the law. For example, the legal system may be required to assign a value to a risk of harm that has not yet been realized. David has been exposed to asbestos, but may or may not develop cancer. In this case, probabilities refer to the likelihood of future events. Decision theory and mathematics have elaborate formal machinery for representing and calculating probabilities. In this short post, we cannot even scratch this surface, but there are two or three bits of notation that every legal theorist should know:
--The symbol “|” is frequently used to represent conditional probabilities. Suppose we want to represent the probability that X will occur given that Y has occurred, we can use this notation: p(X|Y). So we could represent the sentence, “The probability of Cancer given Exposure to Asbestos is ten percent,” as p(C|EA)=0.1. Once we have the distinction between types and tokens in place, we can define individual causation as a causal relationship between a token (e.g. a token event) and another token (e.g. a token action). And we can define systematic causation as a causal relationship between a type (e.g. a type of event) and another type (e.g. a type of action). Science studies causal relationships between types; trials frequently involve questions about the causation of one token by another. This leads to another important point: the question whether an individual harm was caused by an individual action will sometimes depend on the question whether a systematic causal relationship exists; for example, the question whether this factory’s release of a chemical caused an individual case of cancer may require a jury to resolve a “scientific” question about systematic causation. Conclusion Even though this is a long entry by the standards of the Legal Theory Lexicon it is a very compressed and incomplete treatment of the concept of causation. Given the way legal education is organized (around doctrinal fields like torts, criminal law, and evidence), most law students never get a truly comprehensive introduction to causation. Torts may introduce the distinction between cause-in-fact and legal cause; criminal law, problems of overdetermination; and evidence, the relationship between probability and causation. If this post accomplishes anything of value, I hope that it serves as warning—causation is a deep and broad topic about which there is much to learn. Bibliography
Causation (Oxford Readings in Philosophy) (Ernest Sosa & Michael Tooley eds. 1993). A fine collection of essays, with contributions by J.L Mackie, Michael Scriven, Jaegwon Kim, G.E.M. Anscombe, G.H. von Wright, C.J. Ducasse, Wesley C. Salmon, David Lewis, Paul Horwich, Jonathan Bennett, Ernest Sosa, and Michael Tooley. Saturday, December 18, 2004
Legal Theory Bookworm The Legal Theory Bookworm recommends Law's Quandary by my colleague, Steven D. Smith. Here's the review from Michael Perry (Emory) on Amazon.com:
Download of the Week The Download of the Week is John Hart Ely and the Problem of Gerrymandering: The Lion in Winter by Pam Karlan. Here is the abstract:
Friday, December 17, 2004
Solum on Procedural Justice Lawrence Solum (University of San Diego, School of Law) has posted Procedural Justice on SSRN. Here is the abstract:
Hasen on the San Diego Mayoral Election Election Law superblogger Rick Hasen has a post & op/ed on the San Diego Mayoral election. Here's a taste:
More on Natural Law, Public Reason, & Justice Thomas Over at jonrowe.blogspot.com, Jon Rowe has a post entitled Just how “Religious” is the Declaration of Independence?. Here's a taste:
Over at Ciceronian Review, check out Natural Law (And No Thomas). Here is a snippet:
My original post was Natural Law, Public Reason, and the Constitution. Interview with Sen Check out this interview with Amartya Sen (my favorite economist!). And by the way, this link courtesy of the marvelous political theory daily review. The Virtue of Courage Frequent surfers know that I have a keen and deep interest in the virtues. I highly recommend this very short piece by George Kateb entitled Courage as a virtue. Hatch Replies to Gerhardt & Chemerisnky Orren Hatch replies to an op/ed by Michael Gerhardt & Erwin Chemerinsky in a letter to the L.A. Times yesterday. Here is a snippet:
Eliaz,Offerman, & Schotter on Right to Chose Auctions Kfir Eliaz , Theo Offerman and Andrew Schotter (New York University - Department of Economics , University of Amsterdam - Faculty of Economics & Econometrics (FEE) and New York University - Department of Economics) have posted Creating Competition Out of Thin Air: Market Thickening and Right-to-Choose Auctions. Here is the abstract:
Graham Reviews Frankfurt George Graham reviews Harry Frankfurt's The Reasons of Love (The Reasons of Love) on Metapscyhology. Here's a taste:
Conference Announcement: Impact of Direct Democracy
Thursday, December 16, 2004
Sandefur on Public Reason Timothy Sandefur responds to my post entitled Natural Law, Public Reason, and the Constitution at Freespace. The gist of his argument is that a Rawlsian ideal of public reason would limit public officials to the status quo. Here's how Sandefur puts it:
Baude on the Next Chief Will Baude has a very nice piece about the selection of the next Chief Justice of the United States Supreme Court on the New Republic Online. Here is a taste:
Steve Smith Has Questions About Justice Thomas & Natural Law with an Updated Post Script Steve Smith (my colleague at USD & an eminent scholar of law and religion) wrote in response to my post entitled Natural Law, Public Reason, and the Constitution:
2. Is it the current consensus that when Justice Douglas, writing for the Court in Zorach v. Clauson, famously said that "we are a religious people whose institutions presuppose a Supreme Being," was he (a) just plain wrong, or (b) saying something he should not have said as a Justice and for the Court, or (c) both?
Update: Post Script Steve Smith replies:
Further Update: Rick Garnett offers some additional thoughts over at Mirror of Justice. Here is a taste:
Conference Announcement: Biomedicine within the Limits of Human Existence
Conference Announcement: 5th International Conference of the Friedrich Nietzsche Society
A Classic by Kang Jerry Kang (University of California, Los Angeles - School of Law) has posted his Cyber-race (Harvard Law Review, Vol. 113, p. 1131, 2000) on SSRN. Here is the abstract:
Lemley et al. on Divided Patent Infringement Claims Mark A. Lemley , David W. O'Brien , Ryan M. Kent , Ashok Ramani and Robert Van Nest ( Stanford Law School , Zagorin, O'Brien & Graham, LLP , Keker & Van Nest LLP , Keker & Van Nest LLP and Keker & Van Nest LLP) have posted Divided Infringement Claims on SSRN. Here is the abstract:
Burk & Lemley on Quantum Patent Mechanics Dan L. Burk and Mark A. Lemley (University of Minnesota Law School and Stanford Law School) have posted Quantum Patent Mechanics on SSRN. Here is the abstract:
Wednesday, December 15, 2004
Natural Law, Public Reason, and the Constitution Responding to an editorial by Thomas Krannawitter, Kevin Drum comments on this idea, which Krannawitter attributes to Thomas:
He is wrong to assume this. It's quite possible to take the view that the best interpretation of the Constitution is one that which comports with natural law, and that the Framers' understandings are defective, because the Framers supported a wide variety of practices that are inconsistent with natural justice. Similarly, it's entirely possible to believe in natural law and in the idea that the application of moral principles must change with changing circumstances, and hence, that the best interpretation of the Constitution must also change accordingly. Finally, it's possible to be a legal realist about the mechanics of judging-- that is, that judicial decision is inevitably influenced by surrounding historical, political, and social conditions, and that judges are sensitive to underlying facts rather to abstract doctrinal formulas-- and still believe that the best interpretation of the Constitution is one which conforms to one's notion of what natural law requires. That is a deeply interesting question. I think the best theoretical framework for handling that question is provided by the theory of public reason offered by the late John Rawls. In an early formulation, Rawls explained what he has called the "idea of free public reason":
Second, the limits imposed by Rawls' ideal of public reason do not apply to all actions by the state or even to all coercive uses of state power. Rather, his ideal is limited to what he calls "the constitutional essentials" and "questions of basic justice." Thus, the scope of the freedom of speech and qualifications for the franchise would be subject to the Rawlsian ideal, but the details of tax legislation and the regulation of pollution control would not. Third, Rawls' ideal of public reason applies to citizens and public officials when they engage in political advocacy in a public forum; it also governs the decisions that officials make and the votes that citizens cast in elections. The ideal does not apply to personal reflection and deliberation about political questions; by implication it could not apply to such reflection or deliberation about questions that are not political in nature. How is the idea of public reason relevant the question whether a Supreme Court Justice ought to present religious reasons in the way that Krannawitter lauds and Drum condemns? One answer to this question might begin with Rawls's observation that judicial reasoning, for example the reasoning of the Supreme Court, exemplifies public reason. It would be unusual to see a Supreme Court justice rely on a particular religion or on a deep philosophical view about the meaning of life or the ultimate nature of the good. There are exceptions, however. One of the most infamous Supreme Court opinions in the contemporary period is Chief Justice Burger's concurring opinion in Bowers v. Hardwick, the case that was recently overruled in Lawrence v. Texas. Burger argued that criminalization of homosexual conduct was constitutionally permissible, because the prohibition on such conduct was rooted in Judeo-Christian morality. Arguably this argument exceeded the bounds of public reason, because the United States is a pluralist society in which there are many citizens outside of the Judeo-Christian tradition, including, for example, Buddhists, adherents of Native American religions, and nonbelievers. But Justice Thomas's opinions for the Court are not like Burger's opinion in Hardwick. In this regard, it is important to remember that Justice Thomas's opinion in Lawrence v. Texas was not an echo of Justice Berger's opinion in Hardwick. Here is what Justice Thomas actually wrote:
Notwithstanding this, I recognize that as a member of this Court I am not empowered to help petitioners and others similarly situated. My duty, rather, is to "decide cases 'agreeably to the Constitution and laws of the United States.' " Id., at 530, 85 S.Ct. 1678. And, just like Justice Stewart, I "can find [neither in the Bill of Rights nor any other part of the *606 Constitution a] general right of privacy," ibid., or as the Court terms it today, the "liberty of the person both in its spatial and more transcendent dimensions," ante, at 2475. U.S.,2003.
Karlan on Ely & Gerrymandering Pamela S. Karlan (Stanford Law School) has posted John Hart Ely and the Problem of Gerrymandering: The Lion in Winter on SSRN. Here is the abstract:
Sullivan & Karlan on Ely Kathleen M. Sullivan and Pamela S. Karlan (Stanford Law School and Stanford Law School) have posted The Elysian Fields of the Law on SSRN. Here is the abstract:
Kreitner on Fear of Contract Roy Kreitner (Tel Aviv University - Buchmann Faculty of Law) has posted Fear of Contract (Wisconsin Law Review, 2004) on SSRN. Here is the abstract:
Garvey on Commuting Death Sentences Stephen P. Garvey has posted Is it Wrong to Commute Death Row? Retribution, Atonement and Mercy (North Carolina Law Review, Vol. 82) on SSRN. Here is the abstract:
Two by Hirose Here are two new papers by Iwao Hirose:
Tuesday, December 14, 2004
An Appreciation Brian Leiter has reported news that is just a few days old, that Dan Rodriguez--the Dean at the University of San Diego School of Law--has resigned. Brian wrote:
Welcome to the Blogosphere . . . . . . to Ken Anderson (American University) whose blog is entitled Kenneth Anderson's Law of War and Just War Theory Blog! Ken is an old friend from the philosophy department at UCLA and Harvard Law School! Check it out! Cornell on Originalism Saul Cornell (History, Ohio State University) sent a very thoughtful email that responds to the Legal Theory Lexicon entry on Originalism:
Conference Announcement: Aggregation and Numbers
Call for Papers: Gender, the Body, and Objectification
Monday, December 13, 2004
Visiting Fellowships at the Oxford Centre for Ethics & Philosophy of Law
Conference Announcement: Character & Imagination
Call for Papers: Joint Session
Sunday, December 12, 2004
Legal Theory Lexicon: Originalism
The Originalist Revival No one scholar or judge can deserves credit for originalism as a movement in constitutional theory and practice, but in my opinion one of the crucial events in the originalist revival was the publication of Raoul Berger's book, Government by Judiciary in 1977 by Harvard University Press. As you can guess from the title, Berger's book was very critical of the Warren court (and its aftermath in the 70s). One of the key responses to Berger was the publication of The Misconceived Quest for the Original Understanding by Paul Brest in 1980. Brest's article initiated an intense theoretical debate over the merits of originalism that continues today. At various points in time, both sides have claimed the upper hand, but at the level of theory, the case for originalism has always been contested. Originalism is not an ivory tower theory. It has had a profound influence on the practice of constitutional interpretation and the political contest over the shape of the federal judiciary. President Reagan's nomination of Robert Bork (an avowed originalist) was one key moment--with his defeat by the democrats seen as a political rejection of originalism. The current Supreme Court has at least three members who seem strongly influenced by originalist constitutional theory--Chief Justice William Rehnquist and Associate Justices Antonin Scalia and Clarence Thomas. The final chapter of the originalism debate in legal theory has yet to be written--and perhaps it never will be. But one last set of developments is particularly important. In the 70s and early 80s, originalism was strongly associated with conservative judicial politics and conservative legal scholars. But in the late 1980s and in the 1990s, this began to change. Two developments were key. First, Bruce Ackerman's work on constitutional history suggested the availability of "left originalism" that maintained the commitment to the constitutional will of "We the People" but argued that the constitution included a New Deal constitutional moment that legitimated the legacy of the Warren Court--We the People: Foundations, published in 1991. Second, Randy Barnett (along with Richard Epstein, the leading figure in libertarian legal theory) embraced originalism in an influential article entitled An Originalism for Nonoriginalists. Ackerman and Barnett represent two trends in originalist thinking: (1) the political orientation of originalism has broadened from conservatives to liberals and libertarians, and (2) the theoretical structure of originalism has morphed and diversified from the early emphasis on "the original intentions of the framers." After the publication of Paul Brest's Misconceived Quest one heard talk that originalism was dead as a serious intellectual movement. These days one is more likely to hear pronouncements that "we are all originalists, now." Original Intentions Early originalists emphasized something called the original intentions of the framers. Even in the early days, there were disputes about what this phrase meant. Of course, there were debates about whether the framers (a collective body) had any intentions at all. And there were questions about what counted as "intentions," e.g. expectations, plans, hopes, fears, and so forth. But the most important early debate concerned levels of generality. The intentions of the framers of a given constitutional provision can be formulated as abstract and general principles or as particular expectations with respect to various anticipated applications of the provision. Most theorists will assent to this point, which flows naturally from the ordinary usage and conceptual grammar of the concept of intention. The difficulty comes because the different formulations of intention can lead to different results in any given particular case. For example, the intention behind the equal protection clause might be formulated at a relatively high level of generality--leading to the conclusion that segregation is unconstitutional--or at a very particular level--in which case the fact that the Reconstruction Congress segregated the District of Columbia schools might be thought to support the "separate but equal" principle of Plessy v. Ferguson. Perhaps the most rigorous defender of the original intentions version of originalism has been Richard Kay in a series of very careful articles. Yet another challenge to original-intent originalism was posed by Jefferson Powell's famous article, The Original Understanding of Original Intent, published in 1985. Powell argued that the framers themselves did not embrace an original intention theory of constitutional interpretation. Of course, this does not settle the theoretical question. The framers, after all, could have been wrong on this point. But Powell's critique was very powerful for those who insisted that constitutional interpretation must always return to origins. A certain kind of original-intent theory was self-defeating if Powell's historical analysis was correct. Moreover, some of the reasons that Powell identified for the framers' resistance to originalism were quite powerful. Especially important was the idea that "secret intentions" or "hidden agendas" had no legitimate role to play in constitutional meaning. In the end, however, Powell's article actually had the effect of turning originalism in a new direction--from original intention to original meaning. Original Meaning The original-meaning version of originalism emphasizes the meaning that the Constitution (or its amendments) would have had to the relevant audience at the time of its adoptions. How would the Constitution of 1789 have been understood by an ordinary adult citizen at the time it was adopted? Of course, the same sources that are relevant to original intent are relevant to original meaning. So, for example, the debates at the Constitutional Convention in Philadelphia may shed light on the question how the Constitution produced by the Convention would have been understood by those who did not participate in the secret deliberations of the drafters. But for original-meaning originalists, other sources become of paramount importance. The ratification debates and Federalist Papers can be supplemented by evidence of ordinary usage and by the constructions placed on the Constitution by the political branches and the states in the early years after its adoption. The turn to original meaning made originalism a stronger theory and vitiated many of the powerful objections that had been made against original-intentions originalism. The concept of original meaning originalism in its modern incarnation has been attributed to Justice Scalia, who is reported to have introduced the idea in a series of lectures in the 1980s; his essay, Originalism, The Lesser Evil, published in 1989, focuses on "original understanding" rather than "original intent." The idea has also been traced to a brief mention in Robert Bork's The Tempting of America, but Bork did not develop the idea extensively. Original-meaning originalism was develped more extensively by Justice Scalia in his opening essay in A Matter of Interpretation. Although the distinction between original meaning and original intent can be found in a variety of early contemporary sources including an article by Robert Clinton in 1987, the systematic development of original-meaning originalism is a relatively recent phenomenon. Original meaning originalism receives its most comprehensive explication and defense in Randy E. Barnett's new book, Restoring the Lost Constitution: The Presumption of Liberty--a systematic development of the original meaning approach and critique of the original intention theory. Regime Theory Yet another important twist in originalist theory is emphasized by the work of Bruce Ackerman: a twist that I shall call "regime theory." The foundation for regime theory is the simple observation that the Constitution of the United States was adopted in several pieces--the Constitution of 1789 was supplemented by a variety of amendments. And of these amendments, the three reconstruction amendments (the 13th, 14th, and 15th) are of especial importance--because of the significant structural transformation they work in the relationship between the powers of the national government and the powers of the states. Interpreting the whole Constitution requires an understanding of the relationship between the provisions of 1789 and those adopted during Reconstruction. Some regime theorists argue that the interaction between these two constitutional regimes has the implication that provisions adopted in 1789 take on a new meaning and significance after the Reconstruction Amendments were adopted. Ackerman's own version of regime theory includes a fascinating and important challenge for originalists of all stripes. Ackerman emphasized the fact that both the Constitution of 1789 and the Reconstruction Amendments were adopted through processes that were extralegal under the legal standards the prevailed at the time. The Articles of Confederation required unanimous consent of all the states for constitutional amendments and for complicated reasons, it seems likely that the Reconstruction Amendments were of dubious legality if strictly judged by the requirements set forth for amendments in Article V. Ackerman's conclusion was that the Constitution derives its legitimacy, not from the legal formalities, but from "We the People," when mobilized in extraordinary periods of constitutional politics. Perhaps the most controversial conclusion that Ackerman reaches is that the New Deal involved another such constitutional moment, in which "We the People" authorized President Roosevelt to act as an extraordinary Tribune, empowered to alter the constitutional framework through a series of transformative appointments. If one accepts this view, then one might begin to ask questions about the "original meaning" of the New Deal--a kind of originalism that would surely not be embraced by the conservative proponents of originalism in the 70s and early 80s. Originalism and Precedent Whither originalism? Given the ups and downs of originalism over the past three decades, making long-term predictions seems perilous indeed. But I will make one prediction about the future of originalism. We are already beginning to see originalists coming to grips with the relationship between original meaning and precedent--both in the narrow sense of Supreme Court decisions and the broader sense of the settled practices of the political branches of government and the states. Already, originalists of various stripes are beginning to debate the role of precedent in an originalist constitutional jurisprudence. Given the conferences and papers that are already in the works, I think that I can confidently predict that the debate over originalism and stare decisis will be the next big thing in the roller-coaster ride of originalist constitutional theory. Bibliography This very selective bibliography includes some of the articles that have been influential in the ongoing debates over originalism. Saturday, December 11, 2004
Legal Theory Bookworm The Legal Theory Bookworm recommends The Blackwell Guide To The Philosophy Of Law And Legal Theory (Blackwell page here) by Martin P. Golding, William A. Edmundson. Here are three blurbs:
Download of the Week The Download of the Week is Shopping for Law in the Coasean Market by Marcus Cole. Here is the abstract:
Friday, December 10, 2004
Friday Calendar
Camp & Vincent on Internet Governance Models L. Jean Camp and Charles Vincent (Harvard University - John F. Kennedy School of Government and Harvard University - John F. Kennedy School of Government) have posted Setting Standards: Looking to the Internet for Models of Governance on SSRN. Here is the abstract:
Basu & Emerson on the Law & Economics of Rent Control Kaushik Basu and Patrick Munro Emerson (Cornell University - Department of Economics and University of Colorado at Denver - Department of Economics) have posted The Economics and Law of Rent Control on SSRN. Here is the abstract:
Weida on Martial Law Jason Collins Weida (University of Connecticut - School of Law) has posted A Republic of Emergencies: Martial Law in American Jurisprudence (Connecticut Law Review, Vol. 36, 2004) on SSRN. Here is the abstract:
Bybee on Legal Realism & Hypocrisy Keith J. Bybee (The Maxwell School, Syracuse Univeristy) has posted Legal Realism, Common Courtesy, and Hypocrisy (Law, Culture, and the Humanities, Forthcoming) on SSRN. Here is the abstract:
Thursday, December 09, 2004
Thursday Calendar
Yale Legal Theory Workshop: Elizabeth Warren, Harvard (Law) "The Over-Consumption Myth and the Other Tales of Economics, Law and Morality". Stanford Law & Economics: Steven Shavell (Harvard Law School), “The Law as a Remedy for the Problem of Contractual Holdup ”. University of Michigan, Law & Economics: Oren Bar-Gill, Society of Fellows, Harvard, Pricing Legal Options: A Behavioral Perspective. Boston University, School of Law: Bob Bone. George Mason University, School of Law: Dan Lin, GMU Department of Economics Ph.D. Candidate, Asset Specificity and the Organization of the Television Industry. Oxford Public International Law Discussion Group: Sir Michael Wood KCMG, The Security Council and the Use of Force (though not Iraq 2003). Princeton Public Law Colloquium: Michael Willrich, Brandeis University, Socializing Justice: The Urban Origins of Legal Progressivism. Law & Politics Book Review
THAT EMINENT TRIBUNAL: JUDICIAL SUPREMACY AND THE CONSTITUTION, by Christopher Wolfe (ed). Princeton, NJ: Princeton University Press, 2004. 256pp. Cloth $55.00 / £35.95. ISBN: 0-691-11667-9. Paper. $19.95 / £12.95. ISBN: 0-691-11667-9. Reviewed by Kenneth Ward. SELVES, PERSONS, INDIVIDUALS: PHILOSOPHICAL PERSPECTIVES ON WOMEN AND LEGAL OBLIGATIONS, by Janice Richardson. Aldershot: Ashgate, 2004. 169pp. Cloth. $79.95 / £45.00. ISBN: 075462398X. Reviewed by Catherine Lane West-Newman. Smith on Mapping the Law Stephen A. Smith (McGill University - Faculty of Law) has posted A Map of the Common Law? (Canadian Business Law Journal, Vol. 40, pp. 364-383, 2004) on SSRN. Here is the abstract:
Wednesday, December 08, 2004
Richards on Data Privacy Neil Richards (Washington University) has posted Reconciling Data Privacy and the First Amendment on SSRN. Here is the abstract:
Cole on the Coasean Market for Law G. Marcus Cole (Stanford Law School) has posted Shopping for Law in the Coasean Market (NYU Journal of Law and Liberty, Vol. 1, Forthcoming) on SSRN. Here is the abstract:
Farber on Models of Legal Change Daniel A. Farber (University of California, Berkeley - School of Law (Boalt Hall)) has posted Earthquakes and Tremors in Statutory Interpretation: An Empirical Study of the Dynamics of Interpretation (Minnesota Law Review, 2004) on SSRN. Here is the abstract:
Gross on Stability Oren Gross (University of Minnesota Law School) has posted Stability and Flexibility: A Dicey Business (GLOBAL ANTI-TERRORISM LAW AND POLICY (Victor Ramraj, Michael Hor, and Kent Roach eds. Cambridge University Press, 2005)) on SSRN. Here is the abstract:
Morrison on Barnett Trevor W. Morrison (Cornell University - School of Law) has posted Lamenting Lochner's Loss: Randy Barnett's Case for a Libertarian Constitution (Cornell Law Review, Vol. 90, March 2005) on SSRN. Here is the abstract:
Tuesday, December 07, 2004
Nobis on Truth in Ethics and Epistemology Nathan Nobis has posted Truth in Ethics and Epistemology: A Defense of Normative Realism. Here is a taste:
Monday, December 06, 2004
Monday Calendar
New York University, School of Law: Marcel Kahan, Federalism and State Competition. Calsamiglia on Equality of Opportunity C. Calsamiglia has posted Decentralizing equality of opportunity. Here is a taste:
Sunday, December 05, 2004
Legal Theory Calendar
New York University, School of Law: Marcel Kahan, Federalism and State Competition.
University of Michigan, Law & Economics: Keith Hylton, Boston University, Church and State: An Economic Analysis Vanderbilt School of Law: Pauline Kim, Washington University, "Constructing Legal Disputes: A Look at Workplace Drug Testing"
Legal Theory Lexicon: Transparency
Transparency and Democratic Process Why should the processes of democratic decisionmaking be transparent? There are so many different answers to this question that one hardly knows where to begin, but we might start by distinguishing between answers that rely on consequentialist reasoning and those that appeal to ideas about rights, fairness, or legitimacy. The consequentialist case for transparency in government usually rests on the idea that opaque processes are likely to facilitate corruption or capture. Corruption is more likely because secret decisionmaking facilitates rent-seeking (soliciting bribes) by public officials; transparency processes make bribery more difficult and increase the likelihood that it will be exposed. "Capture" is the term used to describe domination of a regulatory process by the interests who are supposed to be regulated. When lawmaking (or administrative rulemaking) is done in secret, there is a greater likelihood that the information flow will be one sided. The Bush Administration's energy policy provides a good example of debates over the pros and cons of transparency in government. The administration developed its energy policy through non-transparent procedures. Vice-President Cheney met in private with a variety of interest groups, and the records of the meetings were not made available to the public. Critics charged that this secrecy allowed oil and coal interests to dominate the decision-making process to the detriment of the public interest. The administration defended the process, arguing that public processes would have inhibited free and frank discussion of the issues by the various interest groups. Whether or not this argument was correct in this particular context, it illustrates an important point. Transparency in government comes at a price. Transparent processes may be inefficient--what can be done in private in minutes may take hours in public. Transparent processes may also distort decision-making, forcing political actors to pander to public opinion at the expense of good policy. The case for transparency in government need not rest on consequences. It might also be argued that transparent government is required by the rights of citizens to meaningfully participate in democratic self-government. If public officials conduct business in private, then it becomes more difficult for citizens to make meaningful decisions at the ballot box. Transparency in the Market and the Boardroom The case for transparent markets is simple. Efficiency requires information. Efficient pricing, for example, requires that buyers know what they are buyng and sellers know what they are selling. "Buying a pig in a poke" is simply a colorful way of expressing the idea that a nontransparent transaction has occurred. Transparency is especially important in capital markets Securities regulation in the United States rests on the assumption that mandatory disclosure of accurate financial information will lead to investor confidence and facilitate efficient financial markets. Without transparency each investor would face either uncertainty or enormous information acquisition costs. Efficient capital markets produce enormous benefits, because they enable resources to be allocated to their highest and best use. Finally, transparency in corporate governance aims to prevent management from appropriating wealth owned by stockholders. There are, however, situations in which transparency is inconsistent with efficient markets. Trade secret law, for example, aims at the opposite of transparency. The theory is that the ability to keep secrets creates an incentive to develop new ideas, inventions, and processes; disclosure would allow competitors to appropriate the new idea without compensation, and hence would reduce the incentives for the creation of new knowledge. Similarly, corporations are not required to disclose business strategies and tactics. Transparent Judicial Procedures Civil litigation and criminal trials provide a final context in which transparency is an important value. When we think about the transparency of judicial procedures, there are two different groups for whom the process may be transparent or opaque. The first group is comprised of litigants (plaintiffs/defendants in civil litigation and defendants in criminal litigation). The second group consists of the public at large. Most legal systems place a higher value on transparency to participants than on transparency to the public. While it is not unusual for a hearing to be closed to the public, it is very unusual for a judicial proceeding to exclude the parties themselves. But there are important exceptions to this rule. Deliberations by both judges and juries are usually opaque. Thus, even the defendant in a criminal case is not allowed to observe the deliberations of the jury. A similar rule applies to judicial deliberations. For example, the conferences of an appellate court (e.g. the United States Supreme Court) are conducted in the strictest secrecy, as are the communications between among judges and between judges and their clerks. In these contexts, the thought is that open deliberations would actually distort the decision making process, leading to worse rather than better decisions. Conclusion Concern with process is ubiquitous in legal theory, and processes can be transparent or opaque. As a law student, you might begin to ask yourself about the effect of legal rules on transparency. Does this rule make the process more transparent or more opaque. When you encounter rules that render processes opaque, always ask why? Saturday, December 04, 2004
Legal Theory Bookworm The Legal Theory Bookworm recommends Morals by Agreement by David Gauthier. Here's a description:
Download of the Week The Download of the Week is Group Judgments: Deliberation, Statistical Means, and Information Markets by Cass R. Sunstein. Here is the abstract:
Friday, December 03, 2004
Kang on Race & Prejudice Jerry Kang (University of California, Los Angeles - School of Law) has posted Trojan Horses of Race (Harvard Law Review, March 2005) on SSRN. Here is the abstract:
Friday Calendar
UCLA School of Law: David A. Sklansky, UCLA School OF law & Stephen C. Yeazell, UCLA School of Law, "Comparative Law Without Leaving Home: What Civil Procedure Can Teach Criminal Procedure, and Vice Versa" Thursday, December 02, 2004
Cohen on Commodification I. Glenn Cohen (U.S. Department of Justice, Civil Section, Appellate Staff) has posted The Price of Everything, the Value of Nothing: Reframing the Commodification Debate on SSRN. Here is the abstract:
Conference Announcement: Free Speech in Wartime On Sunday, January 16, & Monday, January 17, 2005, at Rutgers-Camden School of Law, there will be a conference entitled "Free Speech in Wartime" on Geoff Stone's book, Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism. Follow this link for details. Thursday Calendar
Yale Legal Theory Workshop: Elizabeth Warren, Harvard (Law) "The Over-Consumption Myth and the Other Tales of Economics, Law and Morality". Stanford Law & Economics: Steven Shavell (Harvard Law School), “The Law as a Remedy for the Problem of Contractual Holdup ”. University of Michigan, Law & Economics: Oren Bar-Gill, Society of Fellows, Harvard, Pricing Legal Options: A Behavioral Perspective. Boston University, School of Law: Bob Bone. George Mason University, School of Law: Dan Lin, GMU Department of Economics Ph.D. Candidate, Asset Specificity and the Organization of the Television Industry. Oxford Public International Law Discussion Group: Sir Michael Wood KCMG, The Security Council and the Use of Force (though not Iraq 2003). Princeton Public Law Colloquium: Michael Willrich, Brandeis University, Socializing Justice: The Urban Origins of Legal Progressivism. Wednesday, December 01, 2004
Brown on Utilitarian Welfarism Check out The Arbitrariness of Utilitarian Welfarism by Chris Brown over at Desert Landscapes. Here's a taste:
Balkin's Hypo Jack Balkin has a very nice hypo re Ashcroft v. Raich:
Vladeck on Empirical Measurements in Judicial Selection David Vladeck (Georgetown University Law Center) has posted Keeping Score: The Utility of Empirical Measurements in Judicial Selection (Florida State University Law Review, Vol. 32, 2005) on SSRN. Here is the abstract:
Lowenstein on a Perfect Storm in Equity Markets Louis Lowenstein (Columbia Law School) has posted A Perfect Storm: Changing a Culture on SSRN. Here is the abstract:
Geis on Hadley v. Baxendale George S. Geis (University of Alabama - School of Law) has posted Empirically Assessing Hadley v. Baxendale (Florida State University Law Review, Forthcoming) on SSRN. Here is the abstract:
McEvoy & Conway on the Politics of the Past Kieron McEvoy and Heather Conway (Queen's University Belfast - School of Law and Queen's University Belfast - School of Law) have posted The Dead, the Law, and the Politics of the Past (Journal of Law and Society, Vol. 31, pp. 539-562, December 2004) on SSRN. Here is the abstract:
Ferrari on Bobbio Vincenzo Ferrari (Università degli Studi di Milano - Facolta' di Giurisprudenza) has posted The Firm Subtleties of a Philosopher in 'Everlasting Doubt': Remembering Norberto Bobbio (Journal of Law and Society, Vol. 31, pp. 578-591, December 2004) on SSRN. Here is the abstract:
Hunt on Marx & Foucault in Bed Alan J. Hunt (Carleton University - Department of Law) has posted Getting Marx and Foucault into Bed Together (Journal of Law and Society, Vol. 31, pp. 592-609, December 2004) on SSRN. Here is the abstract:
Abel on Collective Action in a Law Firm Richard L Abel (University of California, Los Angeles - School of Law) has posted Varieties of Social Discipline: Collective Action in a Law Firm (Journal of Law and Society, Vol. 31, pp. 610-624, December 2004) on SSRN. No abstract is available. Gier on Hindu Virtue Ethics Nick Gier has posted Hindu Virtue Ethics. Here is a taste:
Sunstein on Group Judgments Cass R. Sunstein (University of Chicago Law School) has posted Group Judgments: Deliberation, Statistical Means, and Information Markets (New York University Law Review, Forthcoming) on SSRN. Here is the abstract:
Wednesday Calendar
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. |