Legal Theory Blog

All the theory that fits!


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

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Saturday, July 30, 2005
Legal Theory Bookworm The Legal Theory Bookworm recommends The Puzzle of Judicial Behavior by Lawrence Baum. Here is a blurb:
    From local trial courts to the United States Supreme Court, judges' decisions affect the fates of individual litigants and the fate of the nation as a whole. Scholars have long discussed and debated explanations of judicial behavior. This book examines the major issues in the debates over how best to understand judicial behavior and assesses what we actually know about how judges decide cases. It concludes that we are far from understanding why judges choose the positions they take in court. Lawrence Baum considers three issues in examining judicial behavior. First, the author considers the balance between the judges' interest in the outcome of particular cases and their interest in other goals such as personal popularity and lighter workloads. Second, Baum considers the relative importance of good law and good policy as bases for judges' choices. Finally Baum looks at the extent to which judges act strategically, choosing their own positions after taking into account the positions that their fellow judges and other policy makers might adopt. Baum argues that the evidence on each of these issues is inconclusive and that there remains considerable room for debate about the sources of judges' decisions. Baum concludes that this lack of resolution is not the result of weaknesses in the scholarship but from the difficulty in explaining human behavior. He makes a plea for diversity in research. This book will be of interest to political scientists and scholars in law and courts as well as attorneys who are interested in understanding judges as decision makers and who want to understand what we can learn from scholarly research about judicial behavior.

Download of the Week The Download of the Week is Exclusionary Amenities in Residential Communities by Lior Strahilevitz. Here is the abstract:
    This essay identifies an important mechanism by which segregation arises in new residential developments. The Fair Housing Act and other antidiscrimination laws closely regulate real estate sales, advertising, and "racial steering." As a result of these laws and other factors, purchasers of homes often lack accurate information about the likely demographic makeup of a new neighborhood or condominium building. Yet these laws have not eroded the incentives for housing consumers to obtain this data. This essay argues that developers can circumvent fair housing laws by embedding costly, demographically polarizing amenities within a new development and recording covenants mandating that all homeowners pay for those amenities. Its central claim is that developers will select common amenities not only on the basis of which amenities are inherently welfare-maximizing for the residents, but also on the basis of which amenities most effectively deter "undesirable" residents from purchasing homes in the development. The essay dubs this approach the "exclusionary amenities strategy" and shows how it causes sorting and focal point mechanisms to act in concert, thereby engendering substantial residential homogeneity. The inability to exclude functions as an inducement to spend. During the 1990s, the United States experienced a boom in the construction of residential developments built around costly golf courses. This occurred at a time when golf participation functioned as a noticeably better proxy for race than income, wealth, or virtually any other characteristic. Curiously, substantial numbers of Americans who purchased homes in mandatory-membership golf communities played no golf. This essay offers circumstantial evidence suggesting that by purchasing homes in these communities, homeowners may simply have been paying a premium for residential racial homogeneity. They essay then identifies a number of other examples where developers, or even municipalities, appear to be pursuing an exclusionary amenities strategy. It also identifies instances in which the use of exclusionary amenities may further neutral, or even laudable, objectives. The essay then notes the possibility of inclusionary amenities, and shows how a few developers, common interest communities, and municipalities have used these amenities to achieve greater residential heterogeneity than would otherwise have been possible. It concludes by evaluating the law's current stance of leaving exclusionary amenities largely unregulated, and examines various strategies for curbing the use of exclusionary amenities to achieve racial homogeneity.

Friday, July 29, 2005
Andrus on Wikis, Blogs, and Intelligence D. Calvin Andrus (Central Intelligence Agency) has posted The Wiki and the Blog: Toward a Complex Adaptive Intelligence Community on SSRN. Here is the abstract:
    US policy-makers, war-fighters, and law-enforcers now operate in a real-time worldwide decision and implementation environment. The rapidly changing circumstances in which they operate take on lives of their own, which are difficult or impossible to anticipate or predict. The only way to meet the continuously unpredictable challenges ahead of us is to match them with continuously unpredictable changes of our own. We must transform the Intelligence Community into a community that dynamically reinvents itself by continuously learning and adapting as the national security environment changes. Recent theoretical developments in the philosophy of science that matured in the 1990's, collectively known as Complexity Theory, suggest changes the community should make to meet this challenge. These changes include allowing our officers more autonomy in the context of improved tradecraft and information sharing. In addition, several new technologies will facilitate this transformation. Two examples are self-organizing knowledge websites, known as Wikis, and information sharing websites known as Blogs. Allowing Intelligence Officers and our non-intelligence National Security colleagues access to these technologies on SIPRNet, will provide a critical mass to begin the transformation.

Baron on Baker v. State Charles Hillel Baron (Boston College - Law School) has posted Baker v. State and the Promise of the New Judicial Federalism (Boston College Law Review, Vol. 43, pp. 125-158, 2001) on SSRN. Here is the abstract:
    In Baker v. State, the Supreme Court of Vermont ruled that the state constitution's Common Benefits Clause prohibits the exclusion of same-sex couples from the benefits and protections of marriage. Baker has been praised by constitutional scholars as a prototypical example of the New Judicial Federalism. The authors agree, asserting that the decision sets a standard for constitutional discourse by dint of the manner in which each of the opinions connects and responds to the others, pulls together arguments from other state and federal constitutional authorities, and provides a clear basis for subsequent development of constitutional principle. This Article explores the ways the Vermont justices employed doctrinal threads from these authorities, analyzes and critiques perceived shortcomings in the reasoning of each opinion, and then addresses the important contribution that independent state constitutional jurisprudence can make to constitutional discourse. The Article further encourages law schools to implement curricular changes that will expose students to state constitutional law.

Langer on Managerial Juding in International Criminal Courts Maximo Langer (University of California, Los Angeles - School of Law) has posted The Rise of Managerial Judging in International Criminal Law (American Journal of Comparative Law, Vol. 53, January 2006) on SSRN. Here is the abstract:
    What do the procedure of the International Criminal Tribunal for the former Yugoslavia (hereinafter ICTY or the Tribunal) and U.S. civil procedure have in common? Dissected with theoretical tools from comparative law, these two types of procedure reveal similar skeletons. In each, judges abandoned their roles as uninformed, passive umpires to become active managers and mediators of cases with the goal of expediting the docket. Understanding this change enables us to escape from sterile debates about the triumph or defeat of adversarial or inquisitorial models. Instead, we can focus on what really matters: 1) how elements of a procedural system relate to each other; 2) how legal culture impacts procedure, and 3) how procedural systems change over time. As its main claim, this article demonstrates that the managerial judging system explains the current procedure of this international tribunal. Scholars articulated this system in order to describe similar developments in U.S. civil procedure. The managerial judging system conceives procedure as a device that the court, with the parties’ assistance, wields to expedite process. Unlike the passive and uninformed court of the adversarial system, the managerial court gets information about the case very early in the process in order to actively pressure the parties to reach factual and legal agreements and accelerate their pre-trial investigations and trial cases. But unlike the court of the inquisitorial system that actively investigates the truth, the managerial court is active to make sure that the parties do not delay proceedings. In order to explain how ICTY procedure has adopted a managerial judging system, this article starts by describing the adversarial and inquisitorial systems of common and civil law. Legal actors brought to the Tribunal the cultural conceptions of criminal procedure prevailing in their domestic jurisdictions. The initial predominance of common law actors partly explains why ICTY originally adopted an adversarial system. Practical needs of the Tribunal to expedite the docket - rather than the predominance of common or civil law actors - have driven the later move of the Tribunal from the adversarial to the managerial judging model. By explaining how the managerial judging model best captures the current procedure of ICTY, this article puts this procedure in a completely new light. Up to now, there have been two competing characterizations of ICTY procedure, both unsatisfactory. The first views ICTY's procedure as sui generis, without parallel in any national jurisdiction. This article will challenge this characterization by showing that the managerial judging system typifies both U.S. civil procedure and ICTY criminal procedure. According to the second position, ICTY's procedure is a hybrid between adversarial and inquisitorial conceptions of the criminal process. One problem with this position is that there are many potential hybrids or combinations between the adversarial and inquisitorial systems. If our analysis stops here - as other commentators' analyses have - then merely characterizing a procedure as a hybrid between the adversarial and inquisitorial systems tells us little about it. By offering the managerial judging system as the best description of ICTY procedure, this article aims to correct that shortcoming.

Lenard & Rubin on Data Security-Breach Notification Requirements Thomas M. Lenard and Paul H. Rubin (Progress & Freedom Foundation - General and Emory University School of Law) have posted An Economic Analysis of Notification Requirements for Data Security Breaches on SSRN. Here is the abstract:
    In this paper, we examine the costs and benefits of laws requiring businesses to notify consumers if their private data is compromised, such as the law in California and other state and federal laws recently passed or proposed. Identity theft and related frauds do not seem to be increasing in recent years, and may be decreasing. A 2004 Survey finds virtually identical results to a survey in 2003, and industry reports find no increase. This may be because credit card companies have increasingly sophisticated detection methods to prevent fraud. In addition, there are strong industry incentives to maintain security. Firms bear almost all of the cost of fraud, and firms suffering such fraud exhibit large stock losses in event studies. The cost to individuals of all sorts of identity theft, weighted by frequency and adjusting for time costs, are about $1000 for actual victims. Most identity theft (at least 70%) is based on data obtained offline, not online. The probability of a victim whose data is compromised actually being victimized is about 2%, so the maximum savings from notice is only $20. For various reasons (including time to receive notice and likely action if notice is received) the actual benefits are more likely to be about $10. The costs of notice include actions such as fraud alerts which consumers may take which are likely to be more costly than the benefits. New credit cards cost between $10 and $20. Even though online commerce is safer than offline commerce, consumers receiving notice may decide to do business offline, thus increasing their risk. Firms may also react strongly to minimize reputation losses; this may have perverse effects, as when it becomes more expensive for new businesses to obtain data about potential customers. Thus, any laws mandating notice should be limited. Finally, state laws that have already passed differ in significant ways, but since this is at least a national market, notice will probably be the same in all states. This means that the most restrictive set of state laws will overall govern in all states. This is an argument for federal preemption in this issue.

Goodrich Goes Postal Peter Goodrich (Yeshiva University - Cardozo Law School) has posted The Posthumous Life of the Postal Rule Requiem and Revival of Adams v. Lindsell (FEMINIST PERSPECTIVES ON CONTRACT LAW, London: Glasshouse Press, 2005) on SSRN. Here is the abstract:
    This article authoritatively resolves the mystery of the mailbox rule. Using historical sources from several jurisdictions the author argues that the origin of the postal rule derives from early cases of breach of promise to marry. The offeree was favored and protected because the offeree was a woman. When the roots of the doctrine were lost, the principle that the fiction expressed was also forgotten. The future of assumptions relating to the time of formation of agreement are then reviewed.

Klick & Stratman on Senior Prescription-Drug Price Sensitivity Jonathan Klick and Thomas Stratmann (Florida State University College of Law and George Mason University, Buchanan Center Political Economy) have posted How Sensitive Are Seniors to the Price of Prescription Drugs? on SSRN. Here is the abstract:
    This study estimates the demand curve for prescription drugs among elderly Medicare beneficiaries. In contrast to previous work, the current analysis uses a measure of price rather than insurance status as the key explanatory variable to test for seniors' sensitivity to prescription drug price changes. The estimates show that a one percentage point increase in the coinsurance rate implies a 1.01 percent decrease in the number of prescriptions filled and a 0.69 percent decrease in total drug expenditures. This finding indicates that seniors are far more responsive to prescription drug price changes than suggested by studies that examine younger individuals or those that do not control for self-selection into supplemental insurance plans.

Thursday, July 28, 2005
Bartow on Women & Secondary Copyright Liability Ann Bartow (University of South Carolina - School of Law) has posted Women in the Web of Secondary Copyright Liability and Internet Filtering. Here is the abstract:
    This Essay suggests possible explanations for why there is not very much legal scholarship devoted to gender issues on the Internet; and it asserts that there is a powerful need for Internet legal theorists and activists to pay substantially more attention to the gender-based differences in communicative style and substance that have been imported from real space to cyberspace. Information portals, such as libraries and web logs, are "gendered" in ways that may not be facially apparent. Women are creating and experiencing social solidarity online in ways that male scholars and commentators do not seem to either recognize or deem important. Internet specific content restrictions for the purposes of "protecting copyrights" and "protecting children" jeopardize online freedoms for women in diverse ways, and sometimes for different reasons than they do for men. Disparities in the ways women and men use, experience and communicate over the Internet need to be recognized, studied, and accommodated by those who would theorize cyberspace law and advocate directions for its evolution.
I always learn from Bartow's work.

Goodrich on Satirical Legal Studies Peter Goodrich (Yeshiva University - Cardozo Law School) has posted Satirical Legal Studies: From the Legists to the Lizard (Michigan Law Review, Vol. 103, p. 307, 2004) on SSRN. Here is the abstract:
    This comprehensive and witty study invents the category of satirical legal studies and traces it from the medieval legists to the contemporary lucubrations of legal scholars. Irreverent, scholarly, irascible and irrefragable this article wields an unparalleled panoply of sources and doctrines to prove that satirical legal studies represents the most persuasive form of jurisprudential analysis.

Klick & Stratmann on Diabetes Treatment & Moral Hazard Jonathan Klick and Thomas Stratmann (Florida State University College of Law and George Mason University, Buchanan Center Political Economy) have posted Diabetes Treatments and Moral Hazard on SSRN. Here is the abstract:
    In the face of rising diabetes rates, many states passed laws requiring health insurance plans to cover medical treatments for the disease. Although supporters of the mandates expect them to improve the health of diabetics, they have the potential to generate a moral hazard to the extent that medical treatments might displace individual behavioral improvements. Another possibility is that the mandates do little to improve insurance coverage for most individuals, as previous research on benefit mandates has suggested that often mandates duplicate what plans already cover. To examine the effects of these mandates, we employ a triple differences methodology comparing the change in the gap in body mass index (BMI) between diabetics and non-diabetics in mandate and non-mandate states. We find that mandates do generate a moral hazard problem with diabetics exhibiting higher BMIs after the adoption of these mandates.

Lee on a European SEC Ruben Lee (Oxford Finance Group) has posted Politics and the Creation of a European SEC: The Optimal UK Strategy - Constructive Inconsistency on SSRN. Here is the abstract:
    This paper analyses the factors influencing whether a European Securities and Exchange Commission (ESEC) will be created and confirms the primary role that politics will play in its establishment. In the face of growing support for an ESEC, the paper recommends a strategy the UK should adopt towards the creation of such an institution. It is proposed that the UK adopt a three-pronged approach. First, the UK must, as it currently does, support the Lamfalussy Process in the hope that it works. Second, the UK must determine what criteria need to be assessed in order to evaluate whether the Lamfalussy Process together with the Financial Services Action Plan are in fact harming UK interests, and then make such an evaluation. Finally, if political support for an ESEC becomes unstoppable, the UK should negotiate for the creation of an appropriately structured ESEC - even though its backing for the Lamfalussy Process should logically preclude its support for any type of ESEC. A key attribute of the recommended strategy is thus that it is inconsistent. This is not, however, thought a problem. On the contrary, given that the creation of an ESEC is the stuff of politics and thus that a political response is called for, and given that other key participants’ policies on the creation of an ESEC are themselves inconsistent, the strategy proposed is argued as being not only constructive, but indeed rational.

Call for Papers:
    Call for Papers Practical Reason and Moral Motivation Helsinki Research Project in Theoretical Ethics Workshop on Moral Judgment and Moral Psychology Helsinki, Finland, December 13th-14th, 2005 Invited speakers:
      Simon Blackburn (University of Cambridge) Jonathan Dancy (The University of Reading and The University of Texas at Austin)
    Questions about the nature of moral judgment have always been at the center of metaethical debates between various cognitivist and non-cognitivist theories. While much of the classic debate turned on the status of moral judgments as linguistic expressions – are they truth-apt and perhaps literally true, or not? Are there corresponding facts in the world? – in recent years the popularity of minimalism about truth and facts has threatened to trivialize the issue. Perhaps because of that, it has become common to focus on the psychological states that those utterances express. The basic questions then become: Do moral judgments in this psychological sense consist in beliefs, desires, or perhaps some more complex attitudes? How do they hook up to motivation and action? This new focus has led to the development of sophisticated theories of the psychological role of moral judgment (and its close cousin reasons judgment). We look forward to reading quality papers on issues including but not limited to the following:
      How do moral utterances convey the psychological states they express – as a matter of their truth conditions, by means of conversational or conventional implicature, or some other means?
      Whether moral judgments consist in cognitive or non-cognitive states, what is the content of those states?
      What explains their connection to motivation?
      What is the essential difference between beliefs and desires?
      Are moral judgments judgments about reasons?
      What is it to act on reasons?
      How do reasons function in the explanation of action?
      What is the relationship between reasons and rationality?
      What kind of authority do moral and reasons judgments have for the agent and why?
      Does rationality demand that one is motivated accordingly? What is the relationship vbetween autonomy and acting on such judgments?
      Is the focus on the psychological a good way to put the basic questions of metaethics? Can it shed new light on classic problems, such as the Frege-Geach challenge and the alleged queerness of moral properties?
    Papers should be between 3000 and 4000 words in length. Since this is a workshop, we put special emphasis on new ideas and new developments of old themes in the selection process. Graduate students are encouraged to submit. Each paper will be allotted a full hour to provide ample time for comments and discussion. Drafts of papers with all identifying information on a separate cover sheet should be submitted no later than September 15th 2005 to Antti Kauppinen( PDF, Word and RTF formats are preferred. Those who wish to submit a hard copy instead (though we recommend electronic submission) can mail their paper and cover sheet to Antti Kauppinen, Department of Social and Moral Philosophy, P.O. Box 9, 00014 University of Helsinki, Finland. We aim to announce the list of accepted papers within two weeks of the deadline. The final conference program will be posted by mid-October on our website The workshop is organized by the Academy of Finland research project Practical Reason and Moral Motivation, directed by professor Timo Airaksinen.

Conference Announcement: Pain and Death: Politics, Aesthetics and Legalities at Canberra
    Pain and Death: Politics, Aesthetics and Legalities 8-10 December 2005 Canberra, Australia A conference and associated exhibits and performances, Centre for Cross-cultural Research, The Australian National University, Convener: Carolyn Strange The so-called war on terror and its representations have ignited interest in pain and death across a wide range of disciplines, including criminology, political science, law, history, literature, sociology, anthropology, cultural studies, psychology, linguistics, journalism and philosophy. At the same time artists working in the visual arts, as well as music, poetry, dance, and theatre have taken up the issue of state violence with renewed vigour. Fertile dialogue among and between artists, activists and scholars is the aim of this gathering. State-inflicted and state-sanctioned violence involves practices that are justified and contested on legal and political grounds. Yet it also raises a question of aesthetics: how/can officially-authorized violence be represented? Scholars, artists and activists working on the politics and legalities of state violence, and those exploring and producing representations of officially-sanctioned pain and death are invited to submit an abstract. Confirmed Keynote Performers: Owens Wiwa, human rights activist; Javier Moscoso, philosopher; Jonathan Lamb, literary scholar Invited Speakers: Joanna Bourke, Hilary Charlesworth, Betty Churcher, Costas Douzinas, Mark Finnane INSTRUCTIONS FOR ABSTRACT SUBMISSION: Please submit an abstract of no more than 300 words, outlining your proposed topic, your approach, and the forms/media in which you intend to present your work. Include a brief (two-page) c.v., outlining your affiliation and your key publications, exhibits, and/or performances. Send your abstract (preferably in WORD or PDF) to: Or mail it to: Carolyn Strange, Centre for Cross-cultural Research, Australian National University, Canberra, ACT, Australia, 0200 ABSTRACT SUBMISSION DEADLINE: 1 August 2005 FOR MORE INFORMATION:

Wednesday, July 27, 2005
Romana on Sarbox Roberta Romano (Yale Law School) has posted The Sarbanes-Oxley Act and the Making of Quack Corporate Governance (Yale Law Journal, June 2005) on SSRN. Here is the abstract:
    This Article provides an evaluation of the substantive corporate governance mandates of the Sarbanes-Oxley Act (SOX) of 2002 that is informed by the relevant empirical accounting and finance literature, and of the political dynamics that produced the mandates. The empirical literature provides a metric for evaluating whether specific provisions can be most accurately characterized as efficacious reforms or as quack corporate governance. The learning of the literature, much of which was available when Congress was debating the bill, is that SOX's corporate governance provisions were ill conceived. The political environment explains why Congress would enact legislation with such mismatched means and ends. SOX was enacted as emergency legislation amid a free-falling stock market and media frenzy over corporate scandals shortly before midterm congressional elections. The governance provisions, introduced toward the end of the legislative process in the Senate, were not a focus of any considered attention. Their inclusion stemmed from the interaction between election-year politics and the Senate Banking Committee chairman's response to the suggestions of policy entrepreneurs. The scholarly literature at odds with those individuals' recommendations was not brought to Congress's attention (and was ignored on the rare occasions that it was referenced). The pattern of congressional decisionmaking in SOX is not, however, unique. Much of the expansion of federal regulation of financial markets has occurred after significant market turmoil. The Article concludes that SOX's corporate governance provisions should be stripped of their mandatory force and rendered optional. To mitigate future policy blunders on the scale of SOX, it also suggests that emergency or crisis-mode legislation provide for reevaluation at a later date when more deliberative reflection is possible.

Baron on Law & Literature Jane B. Baron (Temple University School of Law) has posted The Rhetoric of Law and Literature (Cardozo Law Review, Vol. 26, p. 2273, 2005) on SSRN. Here is the abstract:
    This short piece, prepared for a symposium revisiting Richard Weisberg's 'The Failure of the Word', focuses on the structure of claims that are often made about law's relationship to literature. These claims purport to contrast literature, portrayed as textured, nuanced, and emotionally resonant, with law, portrayed as a dessicated, abstract world composed mainly of rules. Rhetorically, this contrast constructs and entrenches a highly contestable definition of law's boundaries even as it purports to describe them. Worse, by assuming that law is an independent space mostly bounded by rules, and that literature is a separate and contrasting space, the strategy suggests a rather impoverished view of interdisciplinarity. In this view, interdisciplinary work is work that crosses borders; if what is inside the realm of literature were already inside law, there would be nothing interdisciplinarity could accomplish. Although Weisberg inverts the usual rhetoric of opposition, and instead draws parallels between law and literature, his work is nonetheless reminiscent of that part of law/literature rhetoric that associates almost everything worth having - emotions, sensitivity to context, respect for variety and otherness in human nature - outside of law, while associating law itself with abstraction, cerebration, blindness, and moral indifference. Despite this problem, I argue, Weisberg's project exemplifies one of the more admirable ambitions of the law/literature enterprise, the ambition to make lawyers and judges explicitly aware of, and accountable for, the ethical dimensions of their conduct. Whether right or wrong, Weisberg's infamous analysis of Billy Budd suggests that moral values inhere in the law itself and therefore do not have to be hijacked from a separate domain located "outside" of law.

Harcourt on on Prediction and Punishing Bernard E. Harcourt (University of Chicago - Law School) has posted Against Prediction: Sentencing, Policing, and Punishing in an Actuarial Age on SSRN. Here is the abstract:
    The actuarial - i.e. the use of statistical rather than clinical methods to predict past, present or future criminal behavior in order to determine a criminal justice outcome - now permeates the criminal law and its enforcement. With the single exception of racial profiling against African-Americans and Hispanics, most people view the turn to statistics as efficient, rational, and wealth-maximizing. The fact is, law enforcement agencies can detect more crime with the same resources if they investigate citizens who are at greater risk of criminal offending; and sentencing bodies can reduce crime if they incapacitate citizens who are more likely to recidivate in the future. Most people believe that the use of reliable actuarial methods in criminal justice represents progress. No one, naturally, is in favor of incorrect stereotypes and erroneous predictions; but, to most people, it makes sense to decide who to search based on reliable predictions of criminal behavior, or to impose punishment based on reliable estimates of reoffending. This article challenges our common sense. It sets forth three compelling reasons why we should be skeptical about - rather than embrace - the new actuarial paradigm. First, the reliance on predictions of future offending may be counterproductive to the primary goal of law enforcement, namely fighting crime. Though this may seem counterintuitive, it is, surprisingly, correct: the use of prediction may increase the overall amount of the targeted crime depending on the relative responsiveness of the targets (in comparison to the responsiveness of non-targeted citizens) to the changed level of law enforcement. The overall impact on crime depends on how the members of the different groups react to changes in the level of enforcement: if the profiled persons are less responsive, then the overall amount of profiled crime in society will likely increase. Second, the reliance on probabilistic methods produces a distortion of the carceral population. It creates a dissymmetry between the distribution of actual offenders and of persons who have contact with the criminal justice system through arrest, conviction, incarceration, or other forms of supervision and punishment. It produces a disproportionate rate of correctional contacts among members of the profiled group in relation to their representation in the offending population. This, in turn, compounds the difficulty of many members of targeted groups to obtain employment, pursue educational opportunities, or lead normal family lives. It represents a significant social cost that is often overlooked in the crime and punishment calculus. Third, the proliferation of actuarial methods has begun to bias our conception of just punishment. The perceived success of predictive instruments renders more appealing theories of punishment that function with prediction. It renders more natural theories of selective incapacitation and sentencing enhancements for citizens who are at greater risk of future dangerousness. In sum, it reshapes the way we think about just punishment. Yet the development of these actuarial devices are fortuitous advances in technical knowledge from disciplines such as sociology, psychology, and police studies that have no normative stake in the direction of our criminal laws and punishments. These technological advances represent, in this sense, exogenous shocks to our legal system. And this raises very troubling questions about what theory of just punishment we would independently embrace and how it is, exactly, that we have allowed technical knowledge, somewhat arbitrarily, to dictate the path of justice. Instead of embracing the actuarial turn in criminal law, we should be skeptical. The baseline presumption should favor randomization, which is, in fact, the only way to achieve a carceral population that reflects the offending population. Randomness in the policing context is simple: law enforcement could use a lottery system for IRS audits, random selection for airport screening, or numerical sequencing for consensual car searches on the highway. In the sentencing area, randomness means something quite different, but no less straightforward: it means imposing a sentence based on a proper metric and then avoiding the effect of prediction by eliminating parole or other devices that are prediction-based. Randomness does not mean drawing names out of a hat in deciding who to parole or how long to sentence. It means, instead, eliminating the effect of prediction. In criminal law and enforcement, the presumption should be against prediction. Actuarial methods should only be employed when it can be demonstrated to our satisfaction that they will promote the primary interest of law enforcement without imposing undue burden or distorting our conceptions of just punishment. Barring that, criminal law enforcement and correctional institutions should be blind to prediction.
Highly recommended!

Garoupa on Optimal Enforcement Technology Nuno Garoupa (New University of Lisbon - Faculdade de Economia) has posted On the Optimal Choice of Enforcement Technology: An Efficiency Explanation of the ECHR. Here is the abstract:
    This paper develops an economic analysis of enforcement technology choice and privacy rights. We provide an efficiency explanation for the Human Rights Act 1998 adopted by the UK. Our model suggests that an enforcement technology with privacy rights generates more offences (deterrence is diluted) and exhibits a reduced quality of convictions (in terms of false negatives and false positives), but could be welfare enhancing if the individual cost of being investigated is reasonably high. We also show that the choice of enforcement technology is related to the level of harm caused by crime, and it is likely that an enforcement technology with privacy rights will be welfare diminishing for extremely harmful crimes.

Daughety & Reinganum on Quality Signaling Andrew F. Daughety and Jennifer F. Reinganum (Vanderbilt University - Department of Economics and Vanderbilt University - Department of Economics) have posted Imperfect Competition and Quality Signaling on SSRN. Here is the abstract:
    We examine the interplay of imperfect competition and incomplete information in the context of price competition among firms producing horizontally- and vertically-differentiated substitute products. We find that incomplete information about vertical quality (e.g., consumer satisfaction), which is signaled via price, softens price competition, and that imperfect competition can reduce the degree to which firms may distort their prices to signal their types (relative to what a monopolist would do). We show that low-quality firms always prefer playing the incomplete information game to the full-information analog: their prices are higher and so are their profits. Moreover, for "high-value" markets, if the proportion of high-quality firms is high enough, high-quality firms also prefer incomplete information to full information. We find conditions such that an increase in the loss to consumers associated with consuming the low-quality product may perversely benefit low-quality firms. We discuss the implications of our analysis for recent tort reform proposals, incentives for the diffusion of general innovation to product-specific improvements, and licensing in markets with uncertain quality.

Tuesday, July 26, 2005
Garnett on Conversations With Catholicism Richard W. Garnett (Notre Dame Law School) has posted American Conversations With(in) Catholicism (Michigan Law Review, Vol. 102, p. 1191, May 2004) on SSRN. Here is the abstract:
    John T. McGreevy's Catholicism and American Freedom tells the story of how America or, more particularly, American liberalism has reacted and responded to Catholic claims about the nature and purpose of freedom. It also addresses how these claims were, in turn, shaped by Catholicism's own interactions with, internal conversations about, and adjustment to American liberalism. As McGreevy shows, for many people and for many years, the Roman Catholic Church served as a foil for American values and ideals and vice versa. Indeed, it is no exaggeration to say that American liberalism has often defined and constructed itself precisely in opposition to its image of Catholicism. At the same time, Catholic institutions, practice, and belief developed in response to American and liberal challenges, and American Catholics have oscillated uneasily between sectarianism, segregation, and counter-culture, on the one hand, and engagement, accommodation, and assimilation, on the other. McGreevy's account enriches our studies and conversations not only about church-state relations, but also and more broadly about education, citizenship, and loyalty. His history could improve present-day academic debates about the nature and role of public reason and the place of religious argument and expression in public life, and more generally he takes us to the heart of perennial questions about the prerogatives of the liberal state, the scope and content of religious obligations, and even the nature and end of the human person.

Lyons on Double Effect in Constitutional Law Edward C. Lyons (Ave Maria School of Law) has posted In Incognito: The Principle of Double Effect in American Constitutional Law (Florida Law Review, Vol. 57, No. 3, pp. 469-563, 2005) on SSRN. Here is the abstract:
    In Vacco v. Quill, 521 U.S. 793 (1997), the Supreme Court for the first time in American case law explicitly applied the principle of double effect to reject an equal protection claim to physician-assisted suicide. Double effect, traced historically to Thomas Aquinas, proposes that under certain circumstances it is permissible unintentionally to cause foreseen "evil" effects that would not be permissible to cause intentionally. The court rejected the constitutional claim on the basis of a distinction marked out by the principle, i.e., between directly intending the death of a terminally ill patient as opposed to merely foreseeing that death as a consequence of medical treatment. The Court held that the distinction "comports with fundamental legal principles of causation and intent." Id. at 802. Critics allege that the principle itself is intrinsically flawed and that, in any event, its employment in Vacco is without legal precedent. I argue in response to contemporary objections that double effect is a valid principle of ethical reflection (Part I); claims to the contrary notwithstanding, double effect analysis is a pervasive, albeit generally unacknowledged principle employed regularly in American case law (Part II); and drawing on the preceding two sections, Vacco's application of the principle of double effect is appropriate (Part III). My conclusion is that "[o]peration of some form of the principle, by whatever name, is inevitable. In an imperfect world where duties and interests collide, the possibility of choices of action foreseen to have both good and evil consequences cannot be avoided. In rare circumstances, ethics and the law require that a person refrain from acting altogether. More often, however, they provide that a determination of whether an actor may pursue a good effect although knowing it will or may unintentionally cause an harmful effect requires a more complex analysis - a double effect analysis."

Monday, July 25, 2005
McCaffery on Hybrid Income & Consumption Taxes Edward J. McCaffery (University of Southern California - Law School) has posted Good Hybrids/Bad Hybrids (Tax Notes, June 27, pp. 1699-1709, June 2005) on SSRN. Here is the abstract:
    Hybrid income-consumption taxes seek to tax some but not all savings, the treatment of savings being the principal difference between an income and a consumption tax. Some hybrids, however, simply move the tax system towards a prepaid consumption or wage tax; others, by allowing arbitrage, risk making all taxation voluntary. A consistent, progressive postpaid consumption tax, in contrast, gets matters just right, by design: it allows ordinary savings, for times of retirement or medical or educational needs, to lower the burden of taxation, while falling on the yield to savings when it is used to elevate lifestyles. It is, in short, a good hybrid.

Strahilevitz on Exclusionary Amenities Lior Strahilevitz (University of Chicago Law School) has posted Exclusionary Amenities in Residential Communities on SSRN. Here is the abstract:
    This essay identifies an important mechanism by which segregation arises in new residential developments. The Fair Housing Act and other antidiscrimination laws closely regulate real estate sales, advertising, and "racial steering." As a result of these laws and other factors, purchasers of homes often lack accurate information about the likely demographic makeup of a new neighborhood or condominium building. Yet these laws have not eroded the incentives for housing consumers to obtain this data. This essay argues that developers can circumvent fair housing laws by embedding costly, demographically polarizing amenities within a new development and recording covenants mandating that all homeowners pay for those amenities. Its central claim is that developers will select common amenities not only on the basis of which amenities are inherently welfare-maximizing for the residents, but also on the basis of which amenities most effectively deter "undesirable" residents from purchasing homes in the development. The essay dubs this approach the "exclusionary amenities strategy" and shows how it causes sorting and focal point mechanisms to act in concert, thereby engendering substantial residential homogeneity. The inability to exclude functions as an inducement to spend. During the 1990s, the United States experienced a boom in the construction of residential developments built around costly golf courses. This occurred at a time when golf participation functioned as a noticeably better proxy for race than income, wealth, or virtually any other characteristic. Curiously, substantial numbers of Americans who purchased homes in mandatory-membership golf communities played no golf. This essay offers circumstantial evidence suggesting that by purchasing homes in these communities, homeowners may simply have been paying a premium for residential racial homogeneity. They essay then identifies a number of other examples where developers, or even municipalities, appear to be pursuing an exclusionary amenities strategy. It also identifies instances in which the use of exclusionary amenities may further neutral, or even laudable, objectives. The essay then notes the possibility of inclusionary amenities, and shows how a few developers, common interest communities, and municipalities have used these amenities to achieve greater residential heterogeneity than would otherwise have been possible. It concludes by evaluating the law's current stance of leaving exclusionary amenities largely unregulated, and examines various strategies for curbing the use of exclusionary amenities to achieve racial homogeneity.

Bragues on Rorty George Bragues (University of Guelph-Humber) has posted Richard Rorty's Postmodern Case for Liberal Democracy: A Critique (Humanitas, Forthcoming) on SSRN. Here is the abstract:
    Liberal democracy, the combination of a representative polity and a market economy, was originally founded on the belief in moral absolutes - that is, on the idea that human beings intrinsically bear rights of freedom and equality against the state. Today, the existence of moral absolutes is widely rejected in what Jean-Francois Lyotard has called the postmodern condition. With no objective foundation to readily draw upon, advocates of liberal democracy are left with the challenge of mounting a compelling defence of that regime. Richard Rorty, one of America's most prominent philosophers, responds to this challenge by supporting liberal democracy on explicitly postmodern grounds. Rather than proving its superiority, Rorty merely aims to persuade his readers of liberal democracy's appeal. We conclude that Rorty's case fails. He goes too far in abandoning the socially useful ideals of rationality and objectivity, leaving us with a way of thinking that just does not square with our everyday experience of the world. He ends up with an overly politicized conception of philosophy, one which unashamedly descends into the most blatant partisanship. Rorty, too, ignores the growing evidence in favor of a partially fixed human nature, gives too much credence to social democratic economics, while vainly trying to ennoble the self-absorption that liberal democracy inevitably encourages and tolerates by passing it off under the exalted guise of self-creation.

Armour on Who Should Make Corporate Law John Armour (Faculty of Law, University of Cambridge) has posted Who Should Make Corporate Law? EC Legislation versus Regulatory Competition (Current Legal Problems, Vol. 48, 2005) on SSRN. Here is the abstract:
    This paper makes a case for the future development of European corporate law through regulatory competition rather than EC legislation. It is for the first time becoming legally possible for firms within the EU to select the national company law that they wish to govern their activities. A significant number of firms can be expected to exercise this freedom, and national legislatures can be expected to respond by seeking to make their company laws more attractive to firms. Whilst the UK is likely to be the single most successful jurisdiction in attracting firms, the presence of different models of corporate governance within Europe make it quite possible that competition will result in specialisation rather than convergence, and that no Member State will come to dominate as Delaware has done in the US. Procedural safeguards in the legal framework will direct the selection of laws which increase social welfare, as opposed simply to the welfare of those making the choice. Given that European legislators cannot be sure of the ‘optimal’ model for company law, the future of European company law-making would better be left with Member States than take the form of harmonized legislation.

Saturday, July 23, 2005
Legal Theory Bookworm The Legal Theory Bookworm recommends Justice in Plainclothes by Lawrence G. Sager. Here is a blurb:
    In this important book, Lawrence Sager, a leading constitutional theorist, offers a lucid understanding and compelling defense of American constitutional practice. Sager treats judges as active partners in the enterprise of securing the fundamentals of political justice, and sees the process of constitutional adjudication as a promising and distinctly democratic addition to that enterprise. But his embrace of the constitutional judiciary is not unqualified. Judges in Sager's view should and do stop short of enforcing the whole of the Constitution; and the Supreme Court should welcome rather than condemn the efforts of Congress to pick up the slack. Among the surprising fruit of this justice-seeking account of American constitutional practice are a persuasive case for the constitutional right to secure a materially decent life and sympathy for the obduracy of the Constitution to amendment. No book can end debate in this conceptually tumultuous area; but Justice in Plainclothes is likely to help shape the ongoing debate for years to come.

Dowload of the Week The Download of the Week is Legal Realism as Theory of Law by Michael Steven Green. Here is the abstract:
    Most philosophers of law, following H.L.A. Hart, believe that the legal realists' rule-skepticism is not a coherent theory of law. Even Brian Leiter, who seeks to defend the realists against Hart, agrees that rule-skepticism fails as a theory of law. Indeed, an essential part of Leiter's rehabilitation of the realists is his argument that they did not mean to offer a theory of law at all. This article is a defense of the realists' rule-skepticism as a theory of law. The heart of my argument is that their rule-skepticism was actually an attack, common among philosophical anarchists, on the ability of the law to provide citizens (and particularly judges adjudicating cases) with objective reasons for obedience. Seen in this light, the realists' seemingly absurd claims that legal rules do not exist start making a good deal of sense.
And let me also give you a paragraph or two from deep in the article:
    The reason that the realists did not reintroduce legal obligation when adopting a normative perspective on the law is that they were committed to a second argument against legal rules, an argument with strong similarities to Dworkin’s critique of Hart. As we have seen, the realists agreed with Hart that the law depends upon social facts concerning official practices. Like Dworkin, however,the realists thought that the only available objective reasons forconformity to these practices are moral. Dworkin’s response is toadopt a type of natural law theory in which officials’ legal obligationsare a form of moral obligation. But natural law theory can succeed only if there is a moral duty to obey every valid law, something the realists rejected. They understood the law “as a means to social ends and not as an end in itself.” Disobedience might be morally justified: “Gone is the ancient assumption that law is because law is; there has come since, and remains, the inquiry into the purpose of what courts are doing, the criticism in terms of searching out purposes and criticizing means. Here value-judgments reenter the picture, and should.” The realists did not merely believe that citizens have no moral duty to obey every valid law, they also believed that judges have no moral duty to enforce every valid law. This means that the facts concerning official practice that make something valid law must not be intrinsically morally salient for a judge. Since a promise to enforce the law is a fact that creates a prima facie moral duty, the realists must have thought that the facts concerning official practice do not necessarily involve promises on the part of participants. It is possible to become a judge without having promised, in either an express or implied fashion, to enforce all valid law.
I am far from sure that I agree with Green's claims, but I really liked this article--which deals with issues that go to the heart of the most important controversies in contemporary legal theory. Highly recommended!
Another Highly Recommended for Law's Aim in Law's Empire by John Gardner.

Rappaport Quibbles with a Quibble Mike Rappaport replies to my post criticizing a recent Wall Street Journal article.

Friday, July 22, 2005
Green on Legal Realism Michael Steven Green (George Mason University - School of Law) has posted Legal Realism as Theory of Law (William & Mary Law Review, Vol. 46, pp. 1915-2000, 2005) on SSRN. Here is the abstract:
    Most philosophers of law, following H.L.A. Hart, believe that the legal realists' rule-skepticism is not a coherent theory of law. Even Brian Leiter, who seeks to defend the realists against Hart, agrees that rule-skepticism fails as a theory of law. Indeed, an essential part of Leiter's rehabilitation of the realists is his argument that they did not mean to offer a theory of law at all. This article is a defense of the realists' rule-skepticism as a theory of law. The heart of my argument is that their rule-skepticism was actually an attack, common among philosophical anarchists, on the ability of the law to provide citizens (and particularly judges adjudicating cases) with objective reasons for obedience. Seen in this light, the realists' seemingly absurd claims that legal rules do not exist start making a good deal of sense.

Bernstein on Bolling David E. Bernstein (George Mason University - School of Law) has posted Bolling, Equal Protection, Due Process, and Lochnerphobia on SSRN. Here is the abstract:
    In Brown v. Board of Education, the United States Supreme Court invalidated state and local school segregation laws as a violation of the Fourteenth Amendment's Equal Protection Clause. That same day, in Bolling v. Sharpe, the Court held unconstitutional de jure segregation in Washington, D.C.'s public schools under the Fifth Amendment's Due Process Clause. Fifty years after it was decided, Bolling remains one of the Warren Court's most controversial decisions. The controversy reflects the widespread belief that the outcome in Bolling reflected the Justices' political preferences and was not a sound interpretation of the Due Process Clause. The Bolling Court stands accused of inventing the idea that due process includes a guarantee of equal protection equivalent to that of the Fourteenth Amendment's Equal Protection Clause. A careful analysis of Bolling v. Sharpe, however, reveals some surprises. First, the almost universal portrayal of Bolling as an opinion relying on an equal protection component of the Fifth Amendment's Due Process Clause is incorrect. In fact, Bolling was a substantive due process opinion with roots in Lochner era cases such as Buchanan v. Warley, Meyer v. Nebraska, and Pierce v. Society of Sisters. The Court, however, chose to rely explicitly only on Buchanan because the other cases were too closely associated with Lochner. Another surprise is that the proposition that Bolling has come to stand for, that the Fifth Amendment prohibits discrimination by the Federal Government, was not simply made up by the Supreme Court, but has a basis in longstanding precedent. Finally, Bolling is an important example of the distorting effect of Lochnerphobia on Supreme Court jurisprudence. Bolling would have been a much stronger opinion had it been willing to explicitly rely on Lochner era precedents such as Meyer, and to employ a more explicitly Lochnerian view of the Due Process Clause.

Perez on Institutionalizing Inconsistency Oren Perez (Bar-Ilan University, Faculty of Law) has posted The Institutionalization of Inconsistency: From Fluid Concepts to Random Walk (PARADOXES AND INCONSISTENCIES IN LAW, O. Perez and G. Teubner, eds., Oxford: Hart Publishing, 2005/6) on SSRN. Here is the abstract:
    Law plays a critical role in the management of modern societies. The leading status of the law depends, I argue, on its being perceived as a fair arbiter. In pluralistic societies this deep societal expectation presents the law with an irresolvable dilemma, reflecting competing conceptions of fairness. First, the law is expected to be consistent. Consistency requires avoiding incongruity or contradiction between legal rules, legal concepts, and legal practices. Underlying this requirement is the intuitive perception that incoherent law-making can be a source of real injustice. Denying or frustrating this expectation is seen as unjust. In pluralistic societies fairness takes on, however, an additional meaning; for the law to be conceived as fair it is expected also to develop 'pluralistic sensitivities'. This expectation reflects the social complexity of pluralistic societies. Pluralistic societies are torn by deep disagreements over questions of politics and morality; they are overburdened by conflicting definitions of the good or virtuous life (or society). The concept of pluralistic sensitivity requires the law to respect the cultural idiosyncrasies of the different communities and discourses comprising the society in which it operates. These two visions of fairness are, I will argue, incongruent. They are incongruent because the law does not have at its disposal some meta-principle, which can be invoked to resolve any possible social dilemma while satisfying the requirements of both coherence and pluralistic sensitivity. Particularistic sensitivity may thus, at least in some cases, require the law to follow an inconsistent path. The law is faced then with a deep paradoxical challenge: for it to be considered a 'fair' arbiter it must be simultaneously consistent and inconsistent. This challenge involves self-contradiction, because it is driven by internal and conflicting prescriptions. How can the law sustain these conflicting demands or expectations without risking its status as fair arbiter? The law, I argue, has institutionalized the paradox, incorporating it into 'normal' legal practice. This institutionalization was attained through the invocation of 'fluid' or 'vague' concepts and doctrines, such as equality, reasonableness, and the principles governing the practice of constitutional balancing. The use of vague concepts has offered the law a way to keep the paradox at bay, signalling that it can maintain its coherence despite the intense pluralism of its environment. The paper explores the institutional mechanisms which were utilized by the law to manage the paradox of coherence. The paper begins with an exploration of the structure and systemic role of legal vagueness. It decodes the way in which vagueness is used to handle the paradox, and explores the limits of this strategy as a mechanism for deparadoxification (using the precautionary principle as a case study). I argue that, while vagueness provides certain stability to the legal system, it may fall apart in times of pluralistic stress. The paper sketches two scenarios in which this process could unfold. The apparent fragility of vagueness as a strategy for handling the paradox justifies looking into alternative strategies. The paper proceeds to explore such an alternative strategy: 'randomization'. Randomness seems to offer a potential resolution to the paradox - a decision-making mechanism that enables the law to satisfy the requirements of both coherence and pluralistic sensitivity. However, a closer inspection reveals that randomization is a precarious strategy, whose capacity to resolve the paradox of coherence is highly restricted. Ultimately, I argue, there is no escape from the paradox of fairness, as neither vagueness nor randomization provides a definite resolution for the dilemma underlying it. It seems that we have no choice but to deal directly with the bare paradoxicality of modern law. The final section of the paper explores the consequences of this conclusion.

Lobel & Lowenstein on Symbolism in Foreign Policy & International Law Jules Lobel and George Loewenstein (University of Pittsburgh School of Law and Carnegie Mellon University - Department of Social and Decision Sciences) have posted Emote Control: the Substitution of Symbol for Substance in Foreign Policy and International Law (Chicago Kent Law Review, Vol. 80, July 2005) on SSRN. Here is the abstract:
    Historical perspectives, as well as recent work in psychology, converge on the conclusion that human behavior is the product of two or more qualitatively different neural processes that operate according to different principles and often clash with one another. We describe a specific 'dual process' perspective that distinguishes between "deliberative" and emote control of behavior. We use this framework to shed light on a wide range of legal issues involving foreign policy, terrorism, and international law that are difficult to make sense of in terms of the traditional rational choice perspective. We argue that in these areas, the powerful influence of emotions not only on the general public, but on politicians and judicial decision makers, leads to a substitution of symbol for substance that can be seen at two different levels: (1) in the types of situations and stimuli that drive people to action (namely vivid symbols rather than rational arguments), and (2) in the types of actions that people take - specifically symbolic actions that are superficially satisfying as opposed to more substantive actions that are less immediately satisfying but actually more likely to produce desired long-term results.

Thursday, July 21, 2005
Quibbles There is a generally quite good article on the front page of today's Wall Street Journal entitled In Re Judge Roberts: Question Of 'Originalism' Looms Large by Jess Bravin, but I have a theoretical quibble or two:
    Quibble One: It's Original Meaning, Not Original Intent Here's the lead paragraph:
      When George W. Bush ran for president in 2000, he said his favorite Supreme Court justices were Antonin Scalia and Clarence Thomas. Those jurists argue that many modern legal precedents -- including the 1973 Roe v. Wade decision that recognized abortion rights -- improperly disregard the original intent of the Constitution's authors.
    When will the media (and many law professors for that matter) catch on to the fact that today's originalists are focused on "original public meaning" and not the "original intentions of the framers." In the popular media, this mistake is understandable--but not in an article that is purportedly about originalism.
    Quibble Two: Everyone Interprets "In Light of Evolving Standrads of Decency" Here is the passage:
      But there is a deeper and more complex argument that has been raging for years among legal scholars that the Roberts nomination now brings to center stage: whether constitutional provisions should be interpreted in light of "the evolving standards of decency that mark the progress of a maturing society," as the late Chief Justice Earl Warren wrote in a 1958 opinion on punishing military deserters.
    I suppose we get the meaning, but this is a terribly imprecise way of formulating the issue. Everyone interprets the constitution "in light of evolving standards"--there's now ay of avoiding that. The question is whether those evolving standards trump the constitutional text or change its meaning.
    Quibble Three: Examples Must be Explained Here is the passage:
      Under the living-Constitution banner, the Supreme Court has in recent decades concluded that Americans have "privacy rights," even though the document doesn't explicitly say so. The court derived from those rights the Roe decision on abortion, as well as other rulings ending government restrictions on contraception and, more recently, homosexual sodomy. The Warren Court and its followers used evolving interpretations to limit libel suits by public figures and curb execution of juveniles and the mentally retarded.
    This is really quite awful. Most originalists agree that you can't get privacy out of the due process clause, but many originalists believe that other provisions of the constitution--the Ninth Amendment & the Privileges and Immunities Clause--do support a conception of liberty that would be functionally equivalent to an impliled right to privacy. New York Times v. Sullivan may or may not be consistent with the original understanding of the freedom of speech, but Justice Brennan's opinion actually employed quite a bit of originalist methodology. You can't really have an informed discussion tossing off examples like this with no explanations.
End of diatribe.

Leib on Contract Types and Contract Theories Ethan Leib has posted On Collaboration, Organizations, and Conciliation in the General Theory of Contract on SSRN. Here is the absract:
    This short piece exposes a central shortcoming of all general theories of contract that purport to be comprehensive and descriptive: they tend to exclude whole types of contracts to make their theories fit. As the essay explains, there are contracts between individuals (Type (1)), between organizations (Type (3)), and between individuals and organizations (Type (2)). By carefully analyzing Daniel Markovits’s recent attempt at a contract theory in his Contract and Collaboration, 113 YALE L.J. 1417 (2004), as well as looking at Schwartz and Scott’s recent effort in Contract Theory and the Limits of Contract Law, 113 YALE L.J. 541 (2003), I am able to expose how contract theorists ignore various Types of contracts to their theories’ detriment. At the conclusion, I suggest how Types of contracts are relevant to contract theory construction—and how a focus on Types can point to a resolution of some of the ongoing debates in contract theory.

Choper on the Political Question Doctrine Jesse H. Choper (University of California, Berkeley - School of Law (Boalt Hall)) has posted The Political Question Doctrine: Suggested Criteria (Duke Law Journal, Forthcoming) on SSRN. Here is the abstract:
    Whether there should be a political question doctrine and, if so, how it should be implemented continue to be contentious and controversial issues, both within and outside the Court. This Article urges that the Justices should reformulate the detailed definition that they have utilized (at least formally) since 1962, and adopt four criteria to be applied in future cases. The least disputed - textual commitment - is the initial factor listed in Baker v. Carr. The other three are based on functional considerations rather than constitutional language or original understanding. The first of these - structural issues: federalism and separation of powers - has been advanced and developed at length in my earlier work. It is based on a comparative advantage of the political process over the Court in sound constitutional decisionmaking respecting the relevant issues, as well as the trustworthiness respecting fundamental values of the national legislative/executive branches in doing so. The remaining two criteria involve removing questions of individual rights from the judiciary's realm, something that would (and should) occur very infrequently. The manageable standards test recognizes that there may be constitutional provisions for which the Court lacks the capacity to develop clear and coherent principles. The generalized grievance guide is similar in many ways to structural issues in that it is also grounded in matters of comparative advantage and trustworthiness of results.

Sany on the Separation Barrier Cases Yuval Shany (Law School, College of Management Academic Studies) has posted Capacities and Inadequacies: A Look at the Two Separation Barrier Cases (Israel Law Review, Vol. 38, pp. 230-246, 2005) on SSRN. Here is the abstract:
    Comparison between the two decisions of the International Court of Justice and the Israeli Supreme Court on the legality of Israel's West Bank controversial separation barrier illustrates some of the inherent differences between national and international legal proceedings. The note critically assesses these differences and advocates a more comity based framework of cooperation between national and international courts. Specifically, the note argues that the fact-gathering and fact-analysis process demonstrated in the Hague Advisory Opinion is problematic, as were the Court's refusal to show any deference to the Israeli authorities and empathy towards the Israeli public. These deficiencies reduce the persuasiveness of the Opinion and render its acceptance by Israel less likely. At the same time, the failure of the Israeli Supreme Court to address the link between the route of the barrier and the alleged illegality of the settlement detracts from the normative value of the judgment and highlight the political constrains in which domestic courts operate. As a result, resort to a comity-based framework in which the national and international courts strive to draw upon each other's institutional advantages in the fields of fact-finding, compliance-pull and international law expertise would have been beneficial.

Sedley on the Future of Human Rights Stephen Sedley (The Royal Courts of Justice - England and Wales) has posted The Rocks or the Open Sea: Where is the Human Rights Act Heading? (Journal of Law and Society, Vol. 32, No. 1, pp. 3-17, March 2005) on SSRN. Here is the abstract:
    This essay attempts a broad appraisal of how the Human Rights Act 1998 has been interpreted and applied by the courts of England and Wales since it came into force in October 2000. These are early days, but its provisional conclusion is that the Act, despite some judicial hesitancy, is proving viable and, at least in some respects, beneficial.

Roberts Won't "Bork" Himself in Public I've been reviewing John Robert's opinions and other legal writings since the nomination was announced. There are some clues to his views about legal theory--more on that in the weeks to come--but I already have one firm prediction: Roberts won't "Bork" himself in public. Robert Bork's public persona--his character and manner of self-presentation--were shaped by his academic career. The academic life shapes character and behavior in ways that have the potential for both good and ill. Serious academics are encouraged to "spout off"--to express their opinions and ideas. Law professors are used to an environment of intellectual inequality--the paradigm teaching experience is Socratic dialogue in a first-year classroom. "Bork" has become a verb--we talk about someone getting "Borked," referring to the intense and partisan atmosphere of his confirmation process. But I should like to suggest that Bork "Borked" himself--that he said far too much about ideas that were appropriate for the seminar room but out-of-place in the hearing room. But John Roberts is no Robert Bork. His temperment and personal style have been shaped by the experience of high-level legal practice, including the exacting crucible of Supreme Court advocacy. That experience encourages humility, self-restraint, and caution about the expression of ideas. Do not expect John Roberts to be goaded into expressing dogmatic opinions about particular issues or high constitutional theory. Do not expect Roberts to articulate controversial views about originalism or any other "ism." In other words, do not expect John Roberts to "Bork" himself. Of course, there are others who will attempt to "Bork" John Roberts--to draw controversial and political contentious implications from his writings and opinions. But if we set aside the controversial positions, he took in written briefs--as we should, it is already becoming clear that it will be very difficult to "Bork" Roberts on the basis of his judicial opinions or articles. What John Roberts has written in his own voice reflects the character shaped by his life as a lawyer. Roberts hasn't "Borked" himself yet. Don't expect it to happen soon.

Ethics of Blogging Survey Some months ago, I participated in a survey on the ethics of blogging. You can view the results here. Here is a taste from the analysis, which focuses in part on the distinction between "personal" and "non-personal" bloggers:
    Although a few blogging ethics codes for have been proposed by scholars (Blood, 2002; Dube, 2003; Kuhn, 2005), this is the first study to examine whether bloggers themselves see a need for a blogging ethics code. A code is only as useful as the number of people who would adhere to it. Our findings show that both personal and non-personal bloggers are quite ambivalent as to whether a blogging code of ethics is needed. As most non-personal bloggers take a journalistic approach in their writing (Kuhn, 2005), it seems reasonable to expect them to see a need for a blogging ethics code (akin to that of journalism ethics code) when compared with personal bloggers. However, our findings revealed no significant difference between personal and non-personal bloggers’ agreement on the need for a blogging ethics code. A plausible reason is that blogging is an activity that is “almost exclusively a part-time voluntary solipsistic enterprise” with virtually no income generated from blogging for the vast majority of people (Drezner and Farrell, 2004, p. 4). In fact, it is estimated that no more than two dozen individuals in the US earn their living from blogging (Drezner and Farrell, 2004). For everyone else, blogging is just a hobby, so it seems unlikely that many people will have developed a sense of responsibility and a system of ethics comparable to journalists and other communication professionals.

Update: And check out this post by Larry Ribstein.

Wednesday, July 20, 2005
Fellowship Announcement
    Deadline for application for 2005-2006 CIS Non-Residential Fellows is August 20, 2005. Stanford Law School's Center for Internet and Society Non-Residential Fellows work independently and with CIS staff and faculty on projects related to CIS' mission. These non-supported fellowships allow practitioners to benefit from synergies with Stanford Law School in their scholarly research. Non-Residential Fellows are encouraged to make their work available through CIS and to present their work at the CIS Speaker Series. This fellowship is particularly appropriate for individuals who are interested in studying a cyberlaw issue or working on a cyberlaw project that is outside the scope of their usual work and who would benefit from the affiliation with and support of Stanford CIS. apply here: The Center for Internet and Society (CIS) is a public interest technology law and policy program at Stanford Law School and a part of Law, Science and Technology Program at Stanford Law School. The CIS brings together scholars, academics, legislators, students, programmers, security researchers, and scientists to study the interaction of new technologies and the law and to examine how the synergy between the two can either promote or harm public goods like free speech, privacy, public commons, diversity, and scientific inquiry. The CIS strives as well to improve both technology and law, encouraging decision makers to design both as a means to further democratic values. CIS provides law students and the general public with educational resources and analyses of policy issues arising at the intersection of law, technology and the public interest. CIS and the Cyberlaw Clinic provide legal representation to clients in matters that raise issues involving civil rights and technology. CIS also sponsors a range of public events including a speakers series, conferences and workshops. More about CIS:

Barnett on Roberts Check out Randy Barnett's Who is John Roberts? Who knows? as the Conspiracy. Here's a taste:
    But what sort of Justice will Judge Roberts make? I have no idea. I have never met him, so all I have to go on is his public record--a record of enormous accomplishment. But so far as I know, we know nothing about what he stands for apart from the fact that he is undoubtedly politically conservative. Is he an originalist? We don't know. Is he a majoritarian conservative like Robert Bork? We don't know. Would he find any limits on the enumerated powers of Congress? We don't know. Would he have ruled with the majority in Kelo? We don't know. What is important is not that we don't know, but why we don't know any of this or anything else about the sort of justice that John Roberts will be, other than a very smart one. I am not concerned with his policy preferences, which I assume, from all accounts, are generally conservative, but with how he thinks a Supreme Court justice should go about interpreting a written constitution. In his distinguished career, he has somehow managed not to give a speech or write an article that reveals the core of his judicial philosophy. As a result, we simply have no idea what to expect from him other than "well-crafted" opinions, and are unlikely to find out. Perhaps some previously expressed view will emerge from the confirmation process. If so, I very much look forward to reading it.
And here is a link to a big PDF file of his confirmation for the DC Circuit. I've been reading every Roberts opinion. I'm currently about 1/2 way through the three-hundred plus cases he's participated in. So far, I must say that it isn't very interesting!

Lipshaw on the Duty Not to Enforce a Promise The always interesting Jeff Lipshaw has posted Freedom, Compulsion, Compliance and Mystery: Reflections on the Duty Not to Enforce a Promise on SSRN. Here is the abstract:
    In this essay, I suggest the difference between the law of consensual relationships (i.e., contracts) and the morality of those relationships is one of compulsion and freedom. In the former, we find ourselves being compelled by, or compliant with, a rule some distance removed from the basic norm; in the latter we find ourselves in touch, constantly and sometimes in the face of more visceral obligatory rules, with a far deeper and more fundamental (transcendental) sense of fairness. Moral decisions are the ones made without any threat of compulsion from the law. The clearest example in commercial relationship of a moral decision unfettered by the positive law is the promisee's choice not to enforce an otherwise legally binding contract. As a matter of logic, if not practice, a court cannot impose a duty to do so, either as a matter of positive law theory or natural law theory that contends law is not law unless it rests on a deep structure of values like fairness or justice or liberty. Nevertheless, that sense of obligation on the part of the promisee is regularly sensed and even acted upon in commercial relationships, and its source is the will of the autonomous agent who has not traded freedom for compulsion or compliance.
I read an early draft of this challening & deep essay. Recommended!

Farrelly on Left-Libertarianism Colin Farrelly has posted Should the Left Embrace Left-Libertarianism on SSRN. Here is a taste:
    Many distinct and varied political theories have been advanced in recent years by political philosophers on the left. From appeals to a hypothetical social contract (Rawls, 1971, 1993) and the ideal of a deliberative democracy (Gutmann and Thompson 1996, 2004; Ackerman and Fishkin 2004; Dryzek 2000), to an emphasis on identity (Appiah 2004; Phillips 1995; Young 1990) and multiculturalism (Kymlicka 1989, 1995; Parekh 2000), political philosophers have adopted a vast array of theoretical perspectives for diagnosing the ills of contemporary capitalist societies and they offer a plethora of different prescriptions for remedying these injustices. One position that some on the left (Steiner, 1994; Van Parijs 1995; Otsuka 2003; Vallentyne and Steiner 2000a and2000b), find attractive is left-libertarianism. “Left-libertarian theories of justice hold that agents are full self-owners and that natural resources are owned in some egalitarian manner” (Vallentyne and Steiner, 2000b; 1). Debates concerning the viability of leftlibertarianism as a political ideology are beginning to gain momentum. Barbara Fried (2004, 2005) argues that one of the pillars of left-libertarianism- self-ownership- is an indeterminate concept and that left-libertarianism is indistinguishable from liberal egalitarianism. Mathias Risse (2004) argues that left-libertarianism is incoherent. Left libertarians have retorted (Vallentyne, Steiner and Otsuka, 2005) by arguing that their theory is coherent, determinate and relevant. For the most part, the central focus on of these spirited debates has been on the philosophical underpinnings of left-libertarianism rather than on its practical prescriptions.

Guiora on Counter-Terrorism & the Rule of Law Amos N. Guiora (Case Western Reserve University School of Law) has posted Counter-terrorism and the Rule of Law on SSRN. Here is the abstract:
    This paper examines the difference between administrative law measures in counter-terrorism (deportations, house demolitions and administrative detentions) and the criminal law in developing a counter-terrorism strategy. Furthermore, the article analyzes a number of critical issues related to counter-terrorism including indefinite detention, judicial review, self-defense, torture and the status of terrorists.

Tuesday, July 19, 2005
Debate on Judicial Review in Dissent Check this out! It begins with:Followed by:And:And concludes with:Great stuff!

Burgess-Jackson on Fish Keith Burgess-Jackson takes Stanley Fish to task for failing to acknowledge the distinction between "speakers meaning" and "sentence meaning". Here's a taste:
    Stanley Fish knows just enough philosophy to be dangerous. Here is his op-ed column from today's New York Times. Early in his column, Fish writes:
      Textualists insist that what an interpreter seeks to establish is the meaning of the text as it exists apart from anyone's intention. According to Justice [Antonin] Scalia, it is what is "said," not what is "meant," that is "the object of our inquiry." The problem is that there is no such object.
    Philosophers distinguish between speaker's meaning (i.e., what is meant or intended) and sentence meaning (i.e., what is said). See here. The former is private and subjective, the latter public and objective. Suppose my child is twisting the cat's tail, making the cat cry. I say, "I'm sure the cat enjoys having its tail twisted." What I said is that I'm sure the cat enjoys having its tail twisted. What I meant is roughly the opposite of this: that the cat doesn't enjoy having its tail twisted. Sarcasm and irony are possible because, and only because, speaker's meaning and sentence meaning can come apart. They don't always come apart, but they can.
Very well down & spot on! The distinction between speaker's meaning and sentence meaning is usually attributed to Paul Grice--whose work I deeply admire and have been profoundly influence by. Here is a link to a short piece on Grice. I highly recommend his book, Studies in the Way of Words, published by Harvard University Press in 1989.
Update: See also Mike Rappaport's post here and this post by Jim Lindgren.

John G. Roberts, Jr. . . . is reportedly President Bush's nominee. Here is his out-of-date bio from Westlaw:
    He graduated from Harvard College, summa cum laude, in 1976, and received his law degree, magna cum laude, in 1979 from the Harvard Law School, where he was managing editor of the Harvard Law Review. Following graduation he clerked for Judge Henry J. Friendly of the United States Court of Appeals for the Second Circuit, and the following year for then-Associate Justice William H. Rehnquist.Following his clerkship experience, Mr. Roberts served as Special Assistant to United States Attorney General William French Smith. In that capacity he handled a broad range of constitutional and law enforcement issues for the Attorney General, dealing with state and local officials and representatives of foreign governments, as well as general counsel throughout the federal government. In 1982 President Reagan appointed Mr. Roberts to the White House Staff as Associate Counsel to the President, a position in which he served until joining Hogan & Hartson L.L.P. in 1986. Mr. Roberts' responsibilities as Associate Counsel to the President included counseling on the President's constitutional powers and responsibilities, as well as other legal issues affecting the executive branch.At Hogan & Hartson, Mr. Roberts developed a civil litigation practice, with an emphasis on appellate matters. He personally argued before the United States Supreme Court and the lower federal courts, participating in a wide variety of matters on behalf of corporate clients, trade associations, governments, and individuals.Mr. Roberts left the firm in 1989 to accept appointment as Principal Deputy Solicitor General of the United States, a position in which he served until returning to the firm in 1993. In that capacity he personally argued before the Supreme Court and the federal courts of appeals on behalf of the United States, and participated in formulating the litigation position of the government and determining when the government would appeal adverse decisions. Mr. Roberts had general substantive responsibility within the Office of the Solicitor General for cases arising from the Civil and Civil Rights Divisions of the Justice Department, as well as from a variety of independent agencies, including the FDIC, RTC, Federal Reserve Board, EEOC, FCC, SEC, CFTC, and SBA. He also participated in the judicial selection process.Mr. Roberts has presented oral argument before the Supreme Court in more than thirty cases, covering the full range of the Court's jurisdiction, including admiralty, antitrust, arbitration, environmental law, First Amendment, health care law, Indian law, bankruptcy, tax, regulation of financial institutions, administrative law, labor law, federal jurisdiction and procedure, interstate commerce, civil rights, and criminal law.Mr. Roberts is a member of the American Law Institute and the American Academy of Appellate Lawyers, and has also received the Edmund J. Randolph Award for outstanding service to the Department of Justice. He is a member of the Bars of the District of Columbia, the United States Supreme Court, and various federal courts of appeals.

Streumer Reviews Audi On Notre Dame Philosophical Reviews, Bart Streumer, Fitzwilliam College, Cambridge University, reviews Robert Audi, The Good in the Right: A Theory of Intuition and Intrinsic Value. Here is a taste:
    Like many good books, Robert Audi's book The Good in the Right is based on a simple idea. The idea is that the following two things can both be true of a proposition p: (1) p is self-evident. (2) p can be inferred from other propositions. Like many good ideas, this idea is not new. For example, Russell already noted that, if arithmetic can be deduced from logic, (1) and (2) are both true of the simple propositions of arithmetic. What is new, however, is Audi's application of the idea to ethics. This enables him to defend an ethical theory that is a surprising combination of intuitionism and Kantianism.

Link for Gardner's Paper My apologies for omitting the link to John Gardner's paper. (Scroll down for an excerpt.) Here's the link: Law's Aim in Law's Empire.

"International Justice" Entry Posted on the Stanford Encyclopedia of Philosophy Michael Plake has posted International Justice on the Stanford Encyclopaedia of Philosophy. Here is a taste:
    International justice has only recently become a serious topic within political philosophy. Philosophers have, of course, long debated certain moral aspects of international politics; the morality of warfare and international relations has always been a central focus of political ethics. It is only in the past thirty years, however, that a sustained effort has been made to develop ethical analyses of international politics drawing upon the traditional concerns of domestic justice. Topics such as rights, constitutionalism, toleration, and—perhaps most importantly—the distribution of scarce resources have now been placed at the forefront of discussions of international ethics. In this, philosophers have begun the project of extending their domestic analyses of justice into the international arena.

Davenport Review Religion and the Liberal Polity On Notre Dame Philosophical Reviews, John J. Davenport, Fordham University, reviews Religion and the Liberal Polity, Terence Cuneo, ed., Religion and the Liberal Polity, University of Notre Dame Press, 2005, 280pp, $22.00 (pbk), ISBN 0268022895. Here is a taste:
    Religion and the Liberal Polity is a collection of innovative essays from a highly distinguished group of authors resulting from a PEW Trust seminar with Nicholas Wolterstorff. The book is similar in quality to an earlier collection edited by Paul Weithman in 1997. Most of the essays are successful in finding new angles on their chosen topics, including the question of whether it is right for citizens and officials in democratic societies to use religious beliefs as bases for political choices or cite religious reasons in political advocacy. This question has become familiar in political philosophy and democratic theory since the 1990s, when an imposing list of religious thinkers -- from Weithman and Wolterstorff to Philip Quinn, Chris Eberle, Kent Greenawalt and several others -- challenged secular-reason requirements defended by John Rawls and Robert Audi. These critics were motivated both by (1) the conviction that secularist political theory is cutting itself off from powerful strands of liberal religious conscience that helped abolish slavery and win civil rights, and (2) that contemporary liberal theory is undermining democracy by restricting it to inadequate epistemic sources of justification.

Monday, July 18, 2005
Guiora on Targeted Killing Amos N. Guiora (Case Western Reserve University School of Law) has posted Targeted Killing as Active Self-Defense (Case Western Reserve Journal of International Law, Vol. 36, p. 319, 2004) on SSRN. Here is the abstract:
    The paper argues that targeted killing is a legitimate form of active self-defense in the context of anticipatory self-defense. If the decision to target a particular individual is based on reliable and corroborated intelligence information and on the premise that no alternatives exist (the individual for operational reasons may not be arrested) and the individual to be targeted is a significant terrorist whose death will impact upon the terrorist organization then the decision is legal. In addition, the article calls for a revamping of international law reflecting the reality that traditional warfare between states has been replaced by armed conflict between states and non-state actors, some state supported, others not.

Gardner on Law's Aim John Gardner (Oxford) has posted Law's Aim in Law's Empire. Gardner is deep, interesting, sophisticated, and works from a perspective that is very much his own. Here is a taste from the introduction of the paper:
    Does law have a purpose or point? Surely it does. The trickier questions are these: Does law have a unifying purpose or point? Does law have a distinctive purpose or point? Many think that, inasmuch as law has a unifying purpose – such as ‘the guidance of conduct’ – it is not a distinctive purpose. It is a purpose shared by many things that are not law. And inasmuch as law has more distinctive purposes – such as ‘being the final public arbiter of disputes’ or ‘monopolizing the use of force’ – they are not unifying. Each such purpose is the purpose of some law but not of all law. H.L.A. Hart’s book The Concept of Law is perhaps the best-known defence of this conjunction of views.1 Although he accepts that law has purposes, Hart advances a non-purposive (and indeed non-functional2) account of what legal norms have in common that distinguishes them from other norms.
    Ronald Dworkin belongs to a long tradition of writers who hold, by contrast, that law has some purpose that is both unifying and distinctive. His book Law’s Empire is an unusual contribution to this tradition in that it stands for the view that law must have a unifying-and-distinctive purpose, but it does not commit itself to a final view on what this purpose is.3 In chapter 3 of Law’s Empire, Dworkin provisionally attributes a purpose to law in order to ‘organize[ ] further argument about law’s character’.4 Even if he has this purpose wrong, he argues, some unifying-and-distinctive purpose for law must be relied upon if arguments about the nature of law are to get off the ground. We need ‘a statement of the central concept of [our] institution that will allow [us] to see our arguments … as arguments over rival conceptions of that concept.’5 To furnish such a ‘conceptual statement’6 in the case of law, he says, we must find ‘the most abstract and fundamental point of legal practice’.7 For law is an ‘interpretive enterprise’8 and this means that those who are interested in finding out what (else) is true about law have to begin by taking an ‘interpretive attitude’ to their subject. This in turn means starting from the assumption that law ‘has some point’ that sets it apart and brings it together it as the particular interpretive enterprise that it is.
Highly recommended! A must download--while its hot!

Saturday, July 16, 2005
Legal Theory Bookworm The Legal Theory Bookworm recommends Laws of Fear : Beyond the Precautionary Principle (The Seeley Lectures) by Cass R. Sunstein. Here is the exuberant blurg:
    This book is about the complex relationship between fear, danger, and the law. Cass Sunstein argues that the precautionary principle is incoherent and potentially paralyzing, as risks exist on all sides of social situations and there is no 'general' precautionary principle as such. His insight into The Laws of Fear represents a major statement for the contemporary world from one of the most influential political and legal theorists writing today.

Download of the Week The Download of the Week is Is There an American Jurisprudence? by Brian Leiter. Here is the abstract:
    This is a review essay discussing Neil Duxbury's book PATTERNS OF AMERICAN JURISPRUDENCE (Oxford University Press, 1995), taking issue, in particular, with Professor Duxbury's misunderstandings of (1) American Legal Realism, (2) Critical Legal Studies, and (3) the relationship between economic analysis of law and Legal Realism. The essay also addresses the question whether it is fruitful to think of jurisprudential movements in terms of their geographic boundaries.

Friday, July 15, 2005
Guiora on Torture Amos N. Guiora (Case Western Reserve University School of Law) has posted The Unholy Trinity: Intelligence, Interrogation and Torture on SSRN. Here is the abstract:
    The paper argues that torture is legally and morally wrong and operationally not effective. In analyzing the Bybee memo, the paper argues that the atmosphere created by the Bush Administration contributed to the violations of human rights in Guantanamo Bay, Abu Ghraib, Bagram and other detention centers. Furthermore the article identifies three different forms of torture: 1) interrogation based (what some refer to as the ticking bomb); 2) sadistic or evil (the events in Abu Ghraib, as an example); 3) functional (a new leader demonstrating that there is a new sheriff in town). The paper argues that while harsh interrogation are legal and may be used, torture is both illegal and immoral.

Kerr on Search & Seizure Orin S. Kerr (The George Washington University Law School) has posted Search and Seizure: Past, Present, and Future (OXFORD ENCYCLOPEDIA OF LEGAL HISTORY, 2006) on SSRN. Here is the abstract:
    This is an encyclopedia entry on search and seizure law for the forthcoming Oxford Encyclopedia of Legal History. It reviews the origins of the Fourth Amendment, the early years of the Fourth Amendment, the evolution of the Fourth Amendment, the existing function and doctrine of the Fourth Amendment, and discusses the possible future of Fourth Amendment law. I. Colonial Experience and the Enactment of the Fourth Amendment II. The Fourth Amendment Before the Prohibition Era III. The Prohibition Era to 1961 IV. The Criminal Procedure Revolution of the 1960s V. The Modern Function and Framework of Fourth Amendment Doctrine VI. The Future of the Fourth Amendment Bibliography

Leiter on "American Jurisprudence" Brian Leiter (University of Texas at Austin - School of Law & Department of Philosophy) has posted Is There an American Jurisprudence? (Oxford Journal of Legal Studies, Vol. 17, pp. 367-387, Summer 1997) on SSRN. Here is the abstract:
    This is a review essay discussing Neil Duxbury's book PATTERNS OF AMERICAN JURISPRUDENCE (Oxford University Press, 1995), taking issue, in particular, with Professor Duxbury's misunderstandings of (1) American Legal Realism, (2) Critical Legal Studies, and (3) the relationship between economic analysis of law and Legal Realism. The essay also addresses the question whether it is fruitful to think of jurisprudential movements in terms of their geographic boundaries.

Thursday, July 14, 2005
Stack on the Statutory President Kevin M. Stack (Yeshiva University - Benjamin N Cardozo School of Law) has posted The Statutory President (Iowa Law Review, Vol. 90, No. 539, 2005) on SSRN. Here is the abstract:
    American public law has no answer to the question of how a court should evaluate the president's assertion of statutory authority. This Article aims to develop an answer by making two arguments. First, the same framework of judicial review should apply to claims of statutory authority made by the president and federal administrative agencies. This argument rejects the position that the president's constitutional powers should shape the question of statutory interpretation presented when the president claims that a statute authorizes his actions. Once statutory review is separated from consideration of the president's constitutional powers, the courts should insist, as they do for agencies, that the president's actions be justified by an identifiable statutory authorization. The statutory president, I suggest, is subject to administrative law. Second, within the framework of judicial review applicable to agencies, the president's claims of statutory authority should receive deference under the rule of Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. The president's accountability, visibility, and the transparency of presidential orders provide strong grounds for applying Chevron deference to the president's assertions of statutory authority. This theory thus emphasizes the role of Congress in defining the boundaries of presidential power, while according deference to the president's interpretations of ambiguities within those boundaries. In this way, it aims to structure the judicial role to demand that political accountability be the basis for political power.

Guiora on Counter-terrorism Amos N. Guiora (Case Western Reserve University School of Law) has posted Counter-terrorism and the Rule of Law on SSRN. Here is the abstract:
    This paper examines the difference between administrative law measures in counter-terrorism (deportations, house demolitions and administrative detentions) and the criminal law in developing a counter-terrorism strategy. Furthermore, the article analyzes a number of critical issues related to counter-terrorism including indefinite detention, judicial review, self-defense, torture and the status of terrorists.

Arbatskaya & Mialon on Two-Activity Contests Maria N. Arbatskaya and Hugo M. Mialon (Emory University and Emory University - Department of Economics) have posted Two-Activity Contests on SSRN. Here is the abstract:
    In many real-world contests, players can influence their chances of winning through two or more activities or arms. In this paper, we analyze the equilibrium properties of a two-player two-armed contest, and compare them to those of a standard two-player one-armed contest. Several interesting results arise. For example, in the case of symmetric players, we find that rent dissipation doubles when the second arm is introduced. In general, if neither player is more than twice as efficient as the other with the second arm, more rent is dissipated in the two-armed contest than in the one-armed contest. We also derive conditions under which total effort with the first arm decreases when the second arm is allowed into play, and under which both players would agree not to use their second arm.

Blair on Team Production Margaret M. Blair (Vanderbilt University - School of Law) has posted Institutionalists, Neoclassicals, and Team Production (British Journal of Industrial Relations, Forthcoming) on SSRN. Here is the abstract:
    Although for most of the twentieth century, mainstream neoclassical economists treated labor inputs into production as if they consisted of small, identical units that could be added to or subtracted from the production process to achieve efficiency, some institutionalists continued to study the messy historical and case-specific facts of how workers are hired, managed, and compensated. For decades, such economists have been marginalized within the discipline. But in the last few decades, a few ideas have come out of the stylized logic of neoclassical reasoning that seem destined to lead to a renewed interest among mainstream economists in the work of institutionalists. This essay briefly summarizes and reviews those ideas.

Wednesday, July 13, 2005
Benbchuk on Shareholder Power Lucian Arye Bebchuk (Harvard Law School) has posted The Case for Increasing Shareholder Power (Harvard Law Review, Vol. 118, pp. 833-917, 2005) on SSRN. Here is the abstract:
    This paper reconsiders the basic allocation of power between boards and shareholders in publicly traded companies with dispersed ownership. U.S. corporate law has long precluded shareholders from initiating any changes in the company's basic governance arrangements. My analysis and empirical evidence indicate that shareholders' existing power to replace directors is insufficient to secure the adoption of value-increasing governance arrangements that management disfavors. (Among other things, I provide evidence on the substantial incidence of boards' electing not to follow shareholder resolutions that obtain majority support.) The paper puts forward an alternative regime that would allow shareholders to initiate and adopt rules-of-the-game decisions to change the company's charter or state of incorporation. Providing shareholders with such power would eliminate the distortions that have thus far afflicted the evolution of corporate governance arrangements, and it would operate over time to improve all such arrangements. Furthermore, I argue that, as part of their power to amend governance arrangements, shareholders should be able to adopt provisions that would give them subsequently a specified power to intervene in additional corporate decisions. Power to intervene in game-ending decisions (to merge, sell all assets, or dissolve) could address management's bias in favor of the company's continued existence. Power to intervene in scaling-down decisions (to make cash or in-kind distributions) could address management's tendency to retain excessive funds and engage in empire-building. Shareholders' ability to adopt, when necessary, provisions that give themselves a specified additional power to intervene could thus produce benefits in many companies. A regime with shareholder power to intervene, I show, would address governance problems that have long troubled legal scholars and financial economists. These benefits would result largely from inducing management to act in shareholder interests without shareholders having to exercise their power to intervene. I also discuss how such a regime could best be designed to address concerns that supporters of management insulation could raise; for example, shareholder-initiated changes in governance arrangements could be adopted only if they enjoy shareholder support in two consecutive annual meetings. Finally, examining a wide range of possible objections, I conclude that they do not provide a good basis for opposing the proposed increase in shareholder power.

Mialon & Mialon on the Effects of the Fourth Amendment Hugo M. Mialon and Sue H. Mialon (Emory University, Department of Economics and Emory University - Department of Economics) have posted The Effects of the Fourth Amendment: A Strategic Model of Crime and Search on SSRN. Here is the abstract:
    The Fourth Amendment requires police to have probable cause before searching people or their property in criminal investigations. In practice, it is enforced through the exclusionary rule: if police search without probable cause, any evidence found in the search may be excluded from court. We analyze the effects of this rule on equilibrium elements of social welfare in a strategic model of crime and search. The rule always increases crime. But it has two opposing effects on police searches. It directly reduces them by reducing the chances that they lead to successful conviction, but it also indirectly increases them by increasing crime. If the indirect effect dominates, the rule actually increases searches, and has an ambiguous effect on wrongful searches. If the direct effect dominates, it reduces searches and wrongful searches. In contrast, direct police accountability for wrongful searches unambiguously reduces searches and wrongful searches.

Witte on Rights in the Western Tradition John Witte Jr. (Emory University - School of Law) has posted Rights in the Western Tradition (THE ENCYCLOPEDIA OF CHRISTIANITY, (Grand Rapids/Leiden: Wm. B. Eerdmans Publishing Company/E.J. Brill), Vol. 4) on SSRN. Here is the abstract:
    This Article provides a brief analysis of the main stages of Western theories of rights and liberties: (1) classic Roman views of objective and subjective rights and liberties; (2) medieval Catholic views of rights and liberties rooted in natural law and corporate charters; (3) early modern Protestant views of rights and liberties rooted in biblical commands and natural orders; (4) modern Enlightenments views grounded in human nature and social contracts, and reflected in constitutional texts and cases; and (5) the proliferation and diversification of universal rights talk in the aftermath of World War II.

Jacobi & Tiller on Legal Doctrine & Political Control Tonja Jacobi and Emerson H. Tiller (Northwestern University - School of Law and Northwestern University - School of Law) have posted Legal Doctrine and Political Control on SSRN. Here is the abstract:
    Much of American legal discourse is driven by concern over how judges should follow or create legal doctrines - decision-making rules established or endorsed by higher courts that stipulate, with varying degrees of specificity, outcomes that should follow from underlying fact patterns. In this Article, we model legal doctrine as an instrument of political control by higher courts over lower courts and the case outcomes they produce. Working out of a Law and Positive Political Theory framework, we focus on the amount of judicial political control exercised in the choice between creating determinate (highly specified) and indeterminate (weakly specified) doctrines within a hierarchy of courts. The model assumes that the creators of legal doctrine - higher courts - are policy seeking actors who, within the limitations of professionalism and public legitimacy, manipulate the structure of legal doctrine to maximize political-ideological policy objectives. The key determinants of doctrinal choice in our model are (1) the amount of political-ideological alignment between lower and higher courts, (2) the inherent control characteristics of doctrines themselves, and (3) how the choice of doctrines maps on to preferred litigant successes.

Tuesday, July 12, 2005
Morantz on Regulatory Devolution Alison D. Morantz (Stanford Law School) has posted Has Regulatory Devolution Injured American Workers? A Comparison of State and Federal Enforcement of Construction Safety Regulations on SSRN. Here is the abstract:
    Although the issue of regulatory devolution has received much scholarly scrutiny, rigorous empirical studies of its effects on important policy outcomes are scarce. This paper explores the effects of partial regulatory devolution in the occupational safety arena by exploiting a unique historical anomaly whereby some states have enforced protective labor regulations enforced in other jurisdictions by the Occupational Safety and Health Administration. Analyzing data from the construction industry, this article contains several important findings. State inspectors apparently are more lax than OSHA officials, typically imposing lower fines per violation and having less measurable impact on inspected firms' regulatory compliance. Moreover, controlling for various other factors that may affect reported injuries, the estimated frequency of construction injuries is approximately ten percent higher with state enforcement. These findings call into question whether state enforcement is truly "at least as effective" as federal enforcement, as required under Section 18 of the OSH Act.

Madoff on Undue Influence Ray D. Madoff (Boston College - Law School) has posted Unmasking Undue Influence (Minnesota Law Review, Vol. 81, pp. 571-629, 1997) on SSRN. Here is the abstract:
    The substantial passage of wealth that occurs upon death in the United States each year brings into focus the tension between the belief that people should be able to dispose of their wealth as they wish and society's interest in maintaining social stability. Nowhere is this tension more apparent than in the doctrine of undue influence. The dominant paradigm presents the undue influence doctrine as providing a double benefit of protecting freedom of testation as well as preventing overreaching by others. In this Article, the author challenges the dominant paradigm by demonstrating how the undue influence doctrine denies freedom of testation for people who deviate from judicially imposed testamentary norms - in particular, the norm that people should provide for their families. Part I looks at how case law, treatises and other authoritative sources describe undue influence as a doctrine that protects testamentary freedom. Part II studies the dominant paradigm more closely by looking at the application of the doctrine to a specific undue influence case. Part III explores the paradox of the undue influence doctrine. The doctrine purports to protect freedom of testation, yet, as Kaufmann illustrates, the standards for undue influence can be met even when the will reflects the wishes of the testator. Part IV tests this new paradigm of the undue influence doctrine as a family protection doctrine by looking at how the existence or nonexistence of other provisions protecting the family against disinheritance affects the operation of the doctrine. Part V concludes by exploring whether the undue influence doctrine can be justified once it is understood in terms of family protection, rather than as a doctrine committed to preserving freedom of testation.

Stark on Divorce Reform & the Protection of Children Barbara Stark (Hofstra University - School of Law) has posted Rhetoric, Divorce and International Human Rights: The Limits of Divorce Reform for the Protection of Children (Louisiana Law Review Louisiana Law Review, 2005) on SSRN. Here is the abstract:
    This paper, written for a Symposium, identifies and challenges three premises contained in the Symposium's title, "Divorce Reform for the Protection of Children". First, it tacitly assumes that divorce reform can protect 'children' in general, rather than a relatively small, and quite demographically distinct, population of children in particular. Second, it assumes that divorce itself poses a danger to these children. Third, it assumes that the law should step in to avert, or at least manage that danger. This paper interrogates each of these propositions. My project may strike some as painfully obvious. Of course there are bigger, broader threats to American children, but this conference is not about the top five threats to American children; it is about divorce. Surely we can make divorce less difficult and less painful for children and surely that is worth doing. There is an impressive assembly of brainpower in this Symposium devoted to precisely that. But my thesis here is that first, there are built-in costs and built-in limits to this particular approach. Second, both can be constructively addressed by re-situating the discussion of the protection of children in the broader rhetorical framework of human rights law.

Wirth on Third World Environmental Advocacy David A. Wirth (Boston College - Law School) has posted Legitimacy, Accountability, and Partnership: A Model for Advocacy on Third World Environmental Issues (Yale Law Journal, Vol. 100, pp. 2645-2666, 1991) on SSRN. Here is the abstract:
    To date, there has been little effort to define the characteristics of responsible environmental reform efforts by private citizens and organizations in the United States on foreign environmental problems, such as the quality of foreign aid. Moreover, there have been virtually no attempts to identify a principled role for American lawyers in Third World environmental issues. This Essay will respond to these lacunae by articulating a new approach to advocacy based on a partnership model. In Part I, this Essay identifies the need for American public interest advocates to establish partnerships with directly affected groups on Third World environmental issues. Next, Part II examines another case study of partnership advocacy by nongovernmental organizations in Sri Lanka and the United States. Elaborating on this specific experience, Part III of this Essay evaluates the general benefits and responsibilities of the partnership relationship. After articulating the limitations of partnership advocacy, Part IV then proposes an extension of that model that focuses on establishing formal international adjudicatory mechanisms to provide remedies to those members of the public injured by decisions of international institutions.

Monday, July 11, 2005
Recommnending One Book for Prospective Law Students? Which single book would you recommend for prospective law students is the question posed over at the Conglomorate by Gordon Smith--prompted by this list provided by Harvard. Larry Ribstein answers with R.H. Coase, The Firm, the Market and the Law--a great choice. What legal theory book would I recommend? The answer is easy--H.L.A. Hart's The Concept of Law--but it isn't an easy read.

Nussim on Mechanisms for Redistribution Jacob Nussim (Bar-Ilan University, Faculty of Law) has posted Redistribution Mechanisms on SSRN. Here is the abstract:
    Many legal scholars believe that equity concerns should be taken into consideration in designing legal rules. Kaplow and Shavell (1994) seriously challenged this approach. This paper revisits their double distortion claim, presenting two main arguments. The first questions the ex-ante framework for evaluating redistribution, which implies that society pays attention to the ex-post (actual) rather than the expected redistribution only, in which case, Kaplow and Shavell's ex-ante framework would be inappropriate. Secondly, it is shown that in principle tort rules can easily be designed to circumvent double distortion effects. Thus, the tort system is not inherently less efficient than the tax-transfer system for accomplishing redistribution. The paper generally concludes that although there are often no good reasons for redistribution within the legal system, theoretically it is not an inferior distribution mechanism.
This is a fascinating paper. The key move is to point out that a 1% chance of receiving $10,000 is not equivalent to a 100% chance of receiving $100 from the point of view of most theories of distributive justice (one of the points of which is to eliminate the effects of "luck" on distributions of wealth and income). So, Nussim argues, a true efficiency comparison would require comparing a tax that resulted in the same pattern of paynments as redistributive tort system. But if the payments were exactly the same (e.g. same payers, same payees, same amounts), then the two systems would be equivalent. So far, so good. But I would draw exactly the opposite conclusion. Because tax and transfer can eliminate the role of luck, and a tort-based, accident triggered system cannot, the tax and transfer system is superior--from the point of view of distributive justice--to the tort based system. Recommended.

Witte on Adams & Public Religion John Witte Jr. (Emory University - School of Law) has posted One Public Religion, Many Private Religions: John Adams and the 1780 Massachusetts Constitution (THE FOUNDERS ON GOD AND GOVERNMENT, Daniel L. Dreisbach, Mark D. Hall, and Jeffry R. Morrison, eds., pp. 23-52, Lanham, MD: Rowman & Littlefield, 2004) on SSRN. Here is the abstract:
    John Adams is gaining new respect today both for his political shrewdness and his religious wisdom. Both these talents were on full display in the 1780 Massachusetts Constitution that Adams largely crafted. Striking a via media between defenders of the traditional Congregationalist establishment and religious dissenters, Adams' constitution established one public religion but granted freedom to all peaceable private religions. This juxtaposition reflected Adams' political and religious philosophy. Every state and society, he believed, had to establish by law some common values and beliefs to undergird and support the plurality of private religions that it embraced. The notion that a state and society could remain neutral and purged of any public religion was, for Adams, a philosophical fiction. Absent a commonly adopted set of values and beliefs, politicians would invariably hold out their private convictions as public ones. But every state and society also had to respect and protect a plurality of forms of religious exercise and association. The notion that a state could coerce all persons into adherence and adherents to a single established religion alone was, for Adams, equally a philosophical fiction. Persons would make their own private judgments in matter of faith and conscience, even if they pretended to conformity.

Sunday, July 10, 2005
Legal Theory Lexicon: Distributive Justice
    Introduction Distributive justice is one of the central topics of political philosophy and plays a key role in contemporary debates about normative legal theory. Should contract law take distributive consequences into account? Should tort law aim at "risk spreading"? Should the Equal Protection Clause of the United States Constitution be read as guarantee of the equal distribution of rights or resources? In order to answer these and similar questions, we need to have some account of distributive justice? What makes the distribution of liberties, income, and wealth fair? Should the law aim at equality? And if it should, what sort of equality?
    This entry in the Legal Theory Lexicon will provide a brief introduction to distributive justice. As always, the Lexicon is aimed at law students (especially first-year law students) with an interest in legal theory.
    Context A prior entry in the Lexicon provided a brief overview of the idea of Justice. (Legal Theory Lexicon 018: Justice) In that entry, we divided the general topic of justice into four parts: (1) distributive justice, (2) corrective justice, (3) political justice, and (4) procedural justice. Corrective justice is concerned with the righting of wrongs: so, in criminal law, we might be concerned with punishing crimes, and in tort law, we could focus on the rectification of wrongfully inflicted harms. Political justice is concerned with issues such as voting rights, democracy, legitimacy, and authority. Procedural justice addresses questions about the fairness of civil and criminal proceedings. Our topic today is distributive justice. As a rough and ready starting point, let's say that distributive justice addresses questions about the distribution or allocation of liberties, wealth, and income. As we shall see, one of the major debates about distributive justice will call this rough and ready starting point into question, because "liberties, wealth, and income" may be the wrong target for theories of distributive justce. But let's put that concern aside for now.
    Rawls's Theory of Distributive Justice: Justice as Fairness Discussions of distributive justice usually start with the work of John Rawls--the most influential political philosopher of the 20th century. It really isn't possible to do justice to Rawls's theory in a paragraph or two, but I'm going to try.
    Let's start with the historical roots of Rawls's theory. Rawls saw his theory as an extension of the social contract tradition--associated with Thomas Hobbes, John Locke, and Jean-Jacques Rousseau. Traditional social contract theory posits a state of nature--in which there is no government--and then asks what would be the content of a social contract--an agreement to enter civil society. If we assume that the state of nature and the social contract are hypothetical (not actual), we can then ask the question: is an agreement reached in the state of nature fair? The answer to this question might be, "No, a social contract reached in the state of nature would not be fair, because it would favor those who are advantaged by the conditions of the state of nature, e.g. the strong, the smart, and the powerful." Rawls attempted to correct that problem with classical social contract theory by positing what he called the "original position." In the original position, the parties are to agree on principles of justice to govern the basic structure of society. Unlike the state of nature, however, the original position includes a "veil of ignorance," which prevents the parties from knowing the specific characteristics of those whom they represent.
    Rawls argues that the parties to the original position would choose two principles of distributive justice:
      1. The Equal Liberty Principle: Each person has an equal claim to a fully adequate scheme of equal basic rights and liberties, which scheme is compatible with the same scheme for all; and in this scheme the equal political liberties, and only those liberties, are to be guaranteed their fair value.
      2. The Difference Principle: Social and economic inequalities are to satisfy two conditions: (a) They are to be attached to positions and offices open to all under conditions of fair equality of opportunity; and (b), they are to be to the greatest benefit of the least advantaged members of society.
    The first principle has priority over the second in cases of conflict.
    In this very short introduction, we won't try to recreate the reasoning that would lead the parties to the original position to adopt the two principles. The basic idea of Rawls's argument is that the parties behind the veil of ignorance would have to take into account the possibility that they represent the least fortunate members of society. To protect the interest of those who are worst off, they would first make sure that everyone's basic rights--liberty of conscience, freedom of speech, due process--were protected: that is the role of the equal liberty principle. Then, the parties in the original position would attempt to make sure that wealth and income (and other basic goods) were were distributed so as to make the worst-off members of society as well off as they could be made: that is the role of the difference principle.

    Rival Approaches to Distributive Justice What are the alternatives to justice as fairness? Let's take a quick look at four rivals to Justice as Fairness: (1) utilitarianism, (2) egalitarianism (or "strict equality"), (3) desert, and (4) libertarianism.
      Utilitarianism Classical utilitarianism suggests that we should maximize the sum total of utility--Jeremy Bentham's slogan was "the greatest good for the greatest number." For classical utilitarians, the distribution of goods and resources doesn't matter in and of itself. What matters is how much good can be produced, not how it is distributed. This does not mean, however, that utilitarians do not care about the distribution of wealth and income. For example, a utilitarian might argue that wealth and income have "diminishing marginal utility." That is, the first $1000 of income is very important--it allows you to buy essentials like food and shelter. But the difference between $100,000 and $101,000 may be very minor--it allows you to buy a nicer car. Therefore, the utilitarian might argue that egalitarian distributions of resources will tend to increase total welfare--unless there is some countervailing reason such as increased incentives to produce useful goods and services that might result from unequal distributions of wealth and income.
      Utilitarians are frequently criticized on the ground that they lack a princpled objection to gross inequalities. Suppose, for example, that the total welfare of society could be improved by enslaving a small group. If this were the case, then utilitarians would be committed to the consequence that such slavery is "just" or "good," but this seems counter intuitive. Utilitarians can reply to this point in many ways, but one argument is that, in fact, slavery does not increase total utility, but actually is quite harmful. Critics are likely to say that this may usually be the case, but that utilitarianism falters on the exceptional cases where gross inequalities lead to net welfare gains. Of course, the argument can be extended by both sides, but you get the general idea.
      Utilitarians are likely to object to Rawls's second principle--the difference principle--on the ground that it requires that we pay a huge penalty in total welfare to produce a small benefit for those who are least advantaged. For example, suppose that the average income could be increased by $10,000 per year if the income of the worst-off group were decreased by $10 per year. Utilitarians argue that it is wrong to deprive a large group of a very substantial amount of income in order to preserve a small amount of income for a small group. Once again, the arguments will go back and forth, but you can see how the issue is framed.
      Egalitarianism Another rival of justice as fairness is "strict egalitarianism." The difference principle permits inequalities of wealth and income if those inequalities benefit the worst-off group in society. For example, it it could be shown that private ownership of capital was required to produced economic growth that benefits even the poorest members of society, the difference principle might allow Bill Gates to accumulate billions of dollars while the poorest members of society subsisted on a tiny fraction of that. Strict egalitarians maintain that distributive justice requires that each person recieve the same share--even if the consequence is that everyone (including the worst-off) gets less than they could if inequalities were permitted.
      Desert Yet another view of distributive justice would link distributive shares with desert or deservingness. In a very broad sense, one might say that all theories of distributive justice are desert-based. Egalitarian theories simply say that everyone deserves the same share. Fair enough! But I want to focus on a special kind of desert-based theory--one that focuses on merit or effort or some other quality as the basis for desert. For example, one might believe that wealth and income ought to be distributed in proportion to social contribution. If I work hard and create valuable goods or services, then I deserve a greater share of wealth and income, as compared with someone who makes a lessor contribution.
      This kind of desert-based theory is quite different from justice as fairness, utilitarianism, or egalitarianism. This difference could be expressed in one of two ways. We might say that these other theories have a different conception of desert: for example, egalitarians may believe that each person is equally deserve of resources. Or we might say that the other theories deny the relevance of deserve; for example, egalitarians may believe that contribution-based desert is morally irrelevant.
      Libertarianism Libertarianism represents another approach to distributive justice. On the one hand, libertarians are likely to endorse some version of what Rawls called the equal liberty principle. That is, libertarians are likely to believe that each individual should have an equal right to basic liberties (or autonomy). On the other hand, most libertarians reject that the idea that there should be any principles that govern the distribution of resources. For libertarians, the distribution of wealth and income flows from the free choices made by individuals. That might result in relatively equal distribution of wealth and income, or it might result in massive inequalities. For the libertarian what matters is whether the transactions or transfers are themselves just. If I freely choose to sell you Whiteacre, and I gamble away the proceeds while you grow rich, then the resulting inequality is just because it result from voluntary transactions.
      In a sense, then, libertarians reject the idea of "distributive justice" as applied to the distribution of wealth and income. At the same time, however, libertarians tend to be strict egalitarians when it comes to the distribution of basic liberty rights, because most libertarians believe that the basic liberties (freedom of conscience, self-ownership) cannot themselves be alienated.
    The Equality-of-What Debate One of the most interesting debates in contemporary political philosphy has been a debate among egalitarians about the proper subject of equality. Suppose you are an egalitarian. You believe that each person should recieve an equal share of whatever is truly valuable. The question is: what is it that should be divided equally?
    One possibility is "wealth and income." That is, we might believe that each person should be entitled to the same annual income. That answer becomes problematic, however, because different persons have different needs. Suppose that strict equality of income would produce a share of $20,000 per person per year. You are young and in good health, and can do quite well on that sum. I am elderly and in poor health; $20,000 per year will not even pay for the medical care necessary to sustain my life.
    Here is another possibility. We might aim for equality of "welfare." Of course, we would need to define welfare, and that's a tough job. Let's assume that welfare is a subjective state, produced by the satisfaction of preferences. Equality of welfare might require substantial disparities in the distribution of resources. Those who are ill or developmentally disable might require a larger share of resources to produce an equal share of welfare. Even that might be problematic. For example, those with really severe needs might require enormous resources--the possibility of very expensive high technology medicine has hightlighted this possibility.
    There is, however, another problem with equality of welfare. Suppose that you have simple tastes, and I have expensive tastes. You are happy with a modest house, simple food, and vacationing in the countryside. For me to achieve the same welfare level, I need a personal Gourmet chef, the finest wines and caviar, a mansion, and vacations at the Ritz in Paris. It seems quite odd to say that distributive justice requires that I get more resources than you, simply because my tastes are more expensive than yours.
    I think you can alreay see how interesting and exciting the equality-of-what debate can be. Let me just mention some additional moves, and then stop. Another step would be to introduce the idea of equal opportunity. Thus, we might decide that it is not "equality of welfare" but "equality of opportunity for welfare" that should be the criterion for distributive justice. Another important theory, associated with the economist Amartya Sen focuses on the "capacities for valuable functionings" as the subject of equality.
    Conclusion This is another Lexicon entry that is both too long and too short. Too long because it is a bit much to swallow in one quick read, but too short because the topic of distributive justice requires many multiples of the words devoted to it here--for even a short treatment. Nonetheless, I hope I have provided enough of an introduction to get you thinking!
    I've included a short bibliography and some links to other resources on the Internet! Bibliography
      Ackerman, Bruce, Social Justice in the Liberal State (1980)
      Joh Locke, Two Treatises of Government Student edition (Cambridge Texts in the History of Political Thought) (1988)
      Robert Nozick, Anarchy, State, & Utopia (1974)
      John Rawls, Justice as Fairness: A Restatemetn (2001)
      John Rawls, A Theory of Justice (1971)
      Jean-Jacques Rousseau,'The Social Contract' and Other Later Political Writings (Cambridge Texts in the History of Political Thought) (1997)

More Blogger Blocking David Law (University of San Diego) writes from Shanghai, China that Blogspot is blocked there! This on top of my discovery about the Ramada in Green River, Utah. Horrors! I am happy to report that Lincoln, Nebraska is still blog friendly!

Legal Theory Bookworm The Legal Theory Bookworm recommends two classic one-volume histories of the common law:If you have a deep interest in any field of common law, these books belong in your library. Plucknett is the classic, but Baker is the more recent and scholarly book.

Download of the Week The Download of the Week is The Jeffersonian Treaty Clause by Gary Lawson and Guy I. Seidman. Here is the abstract:
    The Treaty Clause of the federal Constitution declares that the President "shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur." The consensus of doctrine, history, and scholarship, exemplified by the holding in Missouri v. Holland, 252 U.S. 416 (1920), is that the Treaty Clause affirmatively grants to the President and Senate a free-standing, quasi-legislative power that contains no internal constitutional limitations. Thomas Jefferson notably disagreed. Jefferson viewed the treaty power as a purely implementational power that could only be used to effectuate other federal powers. From the standpoint of original meaning, Jefferson was right. In this article, we defend a Jeffersonian conception of the Treaty Clause. The Treaty Clause grants no power to the President that he or she does not otherwise possess by virtue of the "executive Power" vested by the first sentence of Article II (though it does grant power to the Senate). Moreover, the Treaty Clause is subject to substantial, albeit subtle, constitutional limitations on its exercise: analogously to the so-called Necessary and Proper Clause, treaties can only be used to carry into effect other federal powers through necessary (reasonably tailored) and proper (proportionate and rights-regarding) means. The crux of our argument is structural. The Treaty Clause is located in Article II. All of the powers granted to the President in Article II stem from the Vesting Clause of that Article. The subsequent provisions in Article II such as the Treaty Clause, notwithstanding their occasional grammatical formulations as seeming grants of power, merely clarify, qualify, and/or limit that basic power grant. Once the Treaty Clause is understood as a clarification and qualification on an otherwise-granted "executive Power," its implementational character follows directly. Executive power by its nature is generally implementational and therefore can only effectuate other federal powers, even without textual specification to that effect. Similarly, executive power is by its nature subject to the principle of reasonableness, which requires exercises of delegated implementational power to be measured, proportionate, and rights-regarding, even without textual specification. The nature of the treaty power as an aspect of the Article II executive power serves as an implicit "necessary and proper" limitation on the exercise of the power. We defend this position through textual, structural, consequentialist, and epistemological arguments.
Highly recommended!

Friday, July 08, 2005
What Does Ramada Have Against Blogging My apologies for the late postings today. I was in Green River, Utah, this morning at a "Ramada Limited," chosen in part for its wireless Internet access. When I tried to post this morning, I discovered that Ramada has blocking software installed which blocks access to Blogger, the back end for Legal Theory Blog! Is it Ramada? Is it Utah? Is the heightened terrorism alert? Enquiring minds want to know!

Coquillette on Professionalism Daniel Coquillette (Boston College - Law School) has posted Professionalism: The Deep Theory (North Carolina Law Review, Vol. 72, pp. 1271-1277, 1994) on SSRN. Here is the abstract:
    Can our personal ethics and our professional ethics be in opposition? Our professional identity as lawyers is at the center of our personal morality. The legal profession is in crisis because we have lost sight of the deep theory of professionalism. This article focuses on our ultimate motivation for obeying rules, concentrating on three common categories: goal-based, rights-based, and duty-based theories. By examining these theories, the article argues that lawyers must turn away from the modern trend of goal instrumentalism and refocus legal practice on its humanistic roots.

Wells on Pragmatism Catharine P. Wells (Boston College - Law School) has posted Why Pragmatism Works for Me (Southern California Law Review University of Southern California Law Review, Vol. 74, pp. 347-360, 2000) on SSRN. Here is the abstract:
    In this Article the author explores the growth of her interest in pragmatic legal theory. Pragmatism is often portrayed as a kind of black hole in the philosophical universe. It is defined not by the weight of its theories but instead by the counterweight of its anti-theoretical teachings. Whatever the reason, pragmatism's lack of adherents has resulted in a number of misconceptions about its limitations. Among them are: (1) Pragmatism is banal in the sense that it only tells us to continue with our common sense practices (2) Pragmatism is relativistic in that it reduces everything to viewpoint and perspective and (3) Pragmatism undermines our idealism and does not help us to lead morally better lives. One reason why these misunderstandings develop is that there are many different forms of pragmatism. But, the author argues, the deeper reason is that pragmatism - like the theories it endorses - must be read in the context of the practices that generate it and the goals it serves. Therefore, rather than pick apart the arguments and counterarguments among the various positions, the author chooses to share her experience with pragmatism and the meaning it has acquired in her life.

Barnhizer on Sustainability David Barnhizer (Cleveland State University - Cleveland-Marshall College of Law) has posted Operational versus Rhetorical Sustainability: Conflicting Goals, Values and Functions (Cleveland-Marshall College of Law Legal Studies Research Paper Series) on SSRN. Here is the abstract:
    The ideal of sustainability - what I am calling "rhetorical sustainability" - as introduced in the 1987 report of the Brundtland Commission and institutionalized in the form of Agenda 21 at the 1992 Rio Earth Summit is a false and counterproductive ideal. It stands for the impossible proposition that we are almost god-like, capable of perceiving, integrating, monitoring, organizing and controlling our world on levels that are considerably beyond human capability. Even if we somehow developed the capacity to master the complexity we will never have the willingness to do so. Nor would we really want to if we understood the centralized power structures, enormous national and transnational bureaucracies, and inevitable use of unrelenting power and force that would be required to compel the recalcitrant "malingerers" who resisted the imposition of such a political system. Rhetorical sustainability is a utopian vision of the perfect that truly is the enemy of the possible and the good. On paper we can always sketch detailed and elegant pipedreams that appear to have the ability to do what we claim we desire "if only" everyone would come together and behave in the way laid out in the "blueprint." One lesson learned from the French Enlightenment's failure to accurately comprehend the quality and limits of human nature is that the "if only" is a utopian vision we will never achieve. It represents an inaccurate conception of human nature, including how we act and will continue to act. The argument introduced here is that rhetorical sustainability ignores the fact that nothing humans create is "sustainable." Entropy grinds down on all of us and erodes, undermines and alters every system or institution we create, sometimes for the better and frequently for the worse. In the face of inevitable non-sustainability we need to focus on strategies aimed at adaptation and the buffering of unacceptably harsh consequences for those affected by change. The reality of ordinary human nature and the intensity of our self-centered motivation obstruct our ability to invent new institutions of the kind required to achieve rhetorical sustainability. The answer is that we need to embrace change while retaining as much of the positive virtues as possible throughout the repeated cycles of transformation. In part the problem is a function of the combination of scale, of the cyclical dynamism that is part of any human system, of energy loss and the ultimate emergence of dominant self-interest in all human power structures. There is an irremediable disconnection between individual decision-makers, the consequences of their actions, and their ability to bring about desired consequences on a scale that matters in terms of "fixing" a critical situation or taking advantage of positive opportunities. But our failure is also a problem of our naturally limited intellectual and emotional capacity, the inevitable tendency to act in one's self-interest, and the formal and informal system of rewards and sanctions that come with different kinds of behavior. I will address such considerations toward the end of the paper by using a series of case studies and examples and by focusing on the ideas of strategic "small wins" and identifying and manipulating points of maximum leverage. This approach attempts to better understand how we can increase the likelihood of achieving productive solutions on the scale of the possible rather than be content with dreaming grand unachievable visions that blind us to the fact of our profound limitations.

Markell on Citizen Submissions to the North American Commission for Environmental Cooperation David L. Markell (Florida State University - College of Law) has posted Governance of International Institutions: A Review of the North American Commission for Environmental Cooperation's Citizen Submissions (North Carolina Journal of International Law and Commercial Regulation, Vol. 30, p. 759, 2005) on SSRN. Here is the abstract:
    The number of international institutions has increased dramatically in recent years. This is true in the arena of environmental protection, among others. One of the important issues associated with the creation of these institutions involves the allocation of responsibility for their management and implementation. Specifically, a central question involves the roles that non-State actors play in the operation of such institutions. Some commentators suggest that the roles of such actors in international governance has expanded in recent years. The allocation of authority for the implementation of international regimes is obviously of considerable importance as we experiment with new forms of global governance. This article reviews this allocation of authority or jurisdictional boundaries question through a review of the structure and experience of a relatively new international institution, the North American Commission for Environmental Conservation (CEC). The CEC has been termed a brave experiment in institution-building. Among other things, the CEC: 1) is the first international organization created to address the environmental aspects of economic integration; 2) has innovative tools and almost unlimited jurisdiction to address regional environmental problems; and 3) provides unprecedented opportunities for participation by civil society at the international level. The CEC's citizen submissions process, an aspect of the CEC that has been called its most innovative and substantial mechanism for fostering transparency and public participation, is the particular focus of this article. Based on its review of the experience of the CEC, with particular attention to the issue of jurisdictional boundaries, the article offers some thoughts concerning the possible future of the citizen submissions process, including the possibility that particular actions by the State actors may undermine the credibility of the process and the interest of non-governmental organizations in continuing to use it. The article also identifies some of the issues the CEC experience raises for regional and global governance more generally.

Thursday, July 07, 2005
Johnsen on Judicial Selection Dawn E. Johnsen (Indiana University School of Law, Bloomington) has posted Should Ideology Matter in Selecting Federal Judges?: Ground Rules for the Debate (Cardozo Law Review, Vol. 26, No. 2, 2005) on SSRN. Here is the abstract:
    A recurring constitutional controversy of great practical and political importance concerns the criteria Presidents and Senators should use in selecting federal judges. Particularly contentious is the relevance of what sometimes is described as a prospective judge's ideology, or alternatively, judicial philosophy and views on substantive questions of law. This essay seeks to promote principled and productive discussion by proposing five ground rules to govern debate by all participants regarding appropriate judicial selection criteria. Because the continued controversy does not simply reflect principled disagreement on the merits, progress may be encouraged by focusing on deficiencies in current public discourse, including by discouraging debate that ignores history and reality, uses misleading language, poses false choices, misconstrues judicial independence, or is otherwise unprincipled and partisan. This essay was published as part of a 2005 symposium on Jurocracy and Distrust: Reconsidering the Federal Judicial Appointments Process.
I was at the conference where Johnsen delivered this fine paper. Highly recommended!
My own paper from the conference is: Judicial Selection: Ideology versus Character.

Kahan & Bramen on Cultural Cognition Dan M. Kahan and Donald Braman (Yale Law School and Yale University - Law School) have posted Cultural Cognition and Public Policy on SSRN. Here is the abstract:
    People disagree about the empirical dimensions of various public policy issues. It's not surprising that people have different beliefs about the deterrent effect of the death penalty, the impact of handgun ownership on crime, the significance of global warming, the public health consequences of promiscuous sex, etc. The mystery concerns the origins of such disagreement. Were either the indeterminacy of scientific evidence or the uneven dissemination of convincing data responsible, we would expect divergent beliefs on such issues to be distributed almost randomly across the population, and beliefs about seemingly unrelated questions (whether, say, the death penalty deters and whether global warming is a serious threat) to be relatively independent of one another. But this is not the case: factual disagreement is highly polarized across distinct social groups - ethnic, religious, racial, regional, and ideological. Moreover, factual beliefs highly correlate across discrete and disparate issues. What explains these patterns? The answer, we will argue, is the phenomenon of cultural cognition. We discuss original empirical evidence to show that individuals form factual beliefs that reflect and reinforce competing cultural orientations - hierarchic and egalitarian, individualistic and communitarian. We also identify the social and psychological mechanisms through which these orientations shape factual beliefs. And we discuss the implications of this phenomenon for enlightened democratic decisionmaking.

Lawson & Seidman on the Treaty Clause Gary Lawson and Guy I. Seidman (Boston University School of Law and Interdisciplinary Center Herzliyah - Radzyner School of Law) have posted The Jeffersonian Treaty Clause (University of Illinois Law Review, 2006) Here is the abstract:
    The Treaty Clause of the federal Constitution declares that the President "shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur." The consensus of doctrine, history, and scholarship, exemplified by the holding in Missouri v. Holland, 252 U.S. 416 (1920), is that the Treaty Clause affirmatively grants to the President and Senate a free-standing, quasi-legislative power that contains no internal constitutional limitations. Thomas Jefferson notably disagreed. Jefferson viewed the treaty power as a purely implementational power that could only be used to effectuate other federal powers. From the standpoint of original meaning, Jefferson was right. In this article, we defend a Jeffersonian conception of the Treaty Clause. The Treaty Clause grants no power to the President that he or she does not otherwise possess by virtue of the "executive Power" vested by the first sentence of Article II (though it does grant power to the Senate). Moreover, the Treaty Clause is subject to substantial, albeit subtle, constitutional limitations on its exercise: analogously to the so-called Necessary and Proper Clause, treaties can only be used to carry into effect other federal powers through necessary (reasonably tailored) and proper (proportionate and rights-regarding) means. The crux of our argument is structural. The Treaty Clause is located in Article II. All of the powers granted to the President in Article II stem from the Vesting Clause of that Article. The subsequent provisions in Article II such as the Treaty Clause, notwithstanding their occasional grammatical formulations as seeming grants of power, merely clarify, qualify, and/or limit that basic power grant. Once the Treaty Clause is understood as a clarification and qualification on an otherwise-granted "executive Power," its implementational character follows directly. Executive power by its nature is generally implementational and therefore can only effectuate other federal powers, even without textual specification to that effect. Similarly, executive power is by its nature subject to the principle of reasonableness, which requires exercises of delegated implementational power to be measured, proportionate, and rights-regarding, even without textual specification. The nature of the treaty power as an aspect of the Article II executive power serves as an implicit "necessary and proper" limitation on the exercise of the power. We defend this position through textual, structural, consequentialist, and epistemological arguments.
Seidman & Lawson are co-authors of an impressive body of work! I look foward to this!

Schuck on Protecting Religious Diversity Peter H. Schuck (Yale Law School) has posted Protecting Diversity: Religion (Chapter 7) (Peter Schuck, DIVERSITY IN AMERICA: KEEPING GOVERNMENT AT A SAFE DISTANCE, Harvard University Press, 2003) on SSRN. Here is the abstract:
    In this chapter, I discuss two problems. First, how does the law decide which religious practices are so deviant and offensive to American society's secular values that they cannot be tolerated? Here, I argue that the law can narrow this conflict between secular and sacred norms by somewhat greater deference to unconventional religious practices. Second, under what conditions can government exploit religious diversity to more effectively pursue secular public goals. Here, I consider two issues - faith-based social service providers, and school choice plans allowing families to use public funds for religious schools - and propose criteria for such programs that can maximize their diversity-value while protecting other social commitments.

Wednesday, July 06, 2005
Rappaport Replies to Balkin on the Supermajoritarian Case for Originalism Check out Mike Rappaport's reply to Balkin. Here's a taste:
    While Jack’s arguments are interesting, I must disagree with them. Our supermajoritarian argument for originalism does not allow such freewheeling interpretation, but instead imposes significant constraints on judges. Under our supermajoritarian approach, one looks to the meaning that the people in the enactment process expected to apply. That meaning is determined by the interpretive rules that the framers’ generation expected to apply to the Constitution – interpretive rules that largely looked to the intent of a provision as expressed in the text. (Actually, the argument here is more complicated, but let me skip over these complications.) It is those rules, not some philosophical conception of meaning, that applies, and those rules would not grant judges the kind of discretion Balkin contemplates.

Rosenkranz on Rules? of Statutory Interpretation Nicholas Quinn Rosenkranz (Georgetown University Law Center) has posted Federal Rules of Statutory Interpretation (Harvard Law Review, Vol. 115, p. 2085, 2002) on SSRN. Here is the abstract:
    Federal statutes do not come with instructions, but maybe they should. For as long as there have been statutes, lawyers and laymen have puzzled over their inevitable ambiguities. Gradually, case by case, courts have developed assorted tools of interpretation. Scholars, meanwhile, have conceived esoteric theories of how best to resolve statutory ambiguity. And the doctrine and the scholarship have become elaborate and sophisticated. But the very richness of this intellectual landscape has resulted in unpredictability and confusion. As theories and judges have multiplied, it has become ever more difficult to predict which judge will apply which theory to which case. And after centuries of judicial and scholarly effort, there is still no generally accepted theory of statutory interpretation. The central, unquestioned premise in this field is that the judiciary is the proper branch to design and implement tools of statutory interpretation. Scholars have unreflectively assumed as much, which is why, almost uniformly, they have implicitly aimed their work at the courts. This Article challenges that assumption. It asks whether Congress can and should help select the tools for interpreting federal statutes. The constitutional question turns out to be as important as the answer, because it adds a vital and neglected dimension to the debate about statutory interpretation. To ask whether Congress may codify a particular interpretive method is precisely to ask whether the Constitution requires the method that is to be displaced. This inquiry proves essential in locating statutory interpretation under the constitutional firmament. This Article concludes that Congress has constitutional power to codify some tools of statutory interpretation. Congress has used this power in the past, but only sporadically and unselfconsciously, at the periphery of the United States Code. The power itself is vast, however, and could transform the landscape of statutory interpretation. Because this power has received minimal systematic analysis, there is extraordinary potential for imprudent or unconstitutional overreaching. But used wisely, congressional power to legislate interpretive strategies may improve legislative-judicial communication and thus bring our legal system closer to its democratic ideal. This article therefore advocates codifying certain interpretive tools and techniques. And it suggests that the best form of codification would be as a set of federal rules: the Federal Rules of Statutory Interpretation.

Lawson, Ferguson, and Montero on Mathews & Penn Central Gary Lawson , Katharine Ferguson and Guillermo A. Montero (Boston University School of Law , Boston University and Government of the United States of America - Environment and Natural Resource) have posted Oh Lord, Please Don't Let Me Be Misunderstood!: Rediscovering the Mathews v. Eldridge and Penn Central Frameworks (Notre Dame Law Review, Vol. 81, 2005) on SSRN. Here is the abstract:
    Mathews v. Eldridge, which addresses the procedures that must be provided for deprivations of life, liberty, or property under the Due Process Clauses, and Penn Central Transportation Co. v. City of New York, which guides inquiry into when governmental regulations rise to the level of takings of property that require just compensation, are decisions with near-canonical status. Mathews and Penn Central have some noteworthy parallels. Each decision is widely regarded as prescribing a three-factor test for resolving questions that arise under its respective domain. Each decision is almost universally decried as unworkable, incomplete, subjective, and incapable of consistent application. And each decision is, we think, largely misunderstood. In this article, we demonstrate that neither the Mathews nor Penn Central decisions actually set forth tests - much less three-factor tests - for resolving issues. Rather, each decision had the far more modest, but nonetheless important, goal of providing a common language for lawyers and judges to employ when conducting inquiries about constitutional procedures or regulatory takings, both of which are doctrinally oriented around a search for basic fairness. The decisions do no more, and no less, than to provide a framework within which issues of fairness can be explored and discussed through the formal, stylized channels of an adversarial legal system. We show that the so-called Mathews test was not the creation of the Supreme Court; it was constructed by the Solicitor General’s office, and endorsed by the AFL-CIO as amicus for Eldridge, as a way of focusing attention on key features of procedural fairness that had specific relevance to the facts in Mathews. The Penn Central Court similarly gave no indication that it was prescribing any kind of decision-making methodology, and it identified only two basic factors - the impact on property owners and the character of the governmental action - that bore on the regulatory takings inquiry. Subsequent decisions and commentators have often treated these frameworks as actual vehicles for decision-making, but that is neither sensible nor faithful to the frameworks' original conceptions. Once Mathews and Penn Central are properly understood as vehicles for shaping dialogue about fundamental fairness, they make a good measure of jurisprudential sense, especially if the Penn Central framework in particular is reconstructed to conform more closely to its original model. Accordingly, we propose some modest clarifications to the Penn Central framework that better allow it to serve its true conversation-shaping function.

Sullivan on Disparate Impact Charles A. Sullivan (Seton Hall University - School of Law) has posted Disparate Impact: Looking Past the Desert Palace Mirage (William & Mary Law Review) on SSRN. Here is the abstract:
    The state of employment discrimination can be easily summarized. In the courts, plaintiffs are losing almost all of the cases they file, except in a few areas such as sexual harassment. In the law reviews, scholars find discrimination more pervasive than ever -- but only when they define “discrimination” contrary to the intuitions of judges and juries. In terms of doctrine, the Supreme Court may be dismantling formal proof structures for individual disparate cases treatment in favor of a “sufficient evidence” test, but the result will be to accord judges and juries, who believe discrimination is largely a thing of the past, as much freedom as under prior doctrine to find against plaintiffs. In short, employment discrimination is in a crisis. That crisis is, ironically, manifested most dramatically by the new wave of bias scholarship. Speaking of “cognitive bias” and workplace dynamics and cultures, scholars argue that discrimination is both more pervasive and less conscious today than was the case when Title VII was enacted in 1964. While this may well be true, the proposals of these scholars to modify disparate treatment law to deal with this phenomenon are not justified by the unsatisfactory history of that paradigm. This article details the failings of disparate treatment, concluding that there is no likelihood that the Supreme Court’s 2003 decision in Desert Palace, Inc. v. Costa, whatever its effect on formal proof structures, will result in more verdicts for victims of discrimination. The same judges whose summary judgments and judgments as a matter of law have for years reflected profound skepticism about the prevalence of discrimination in the workplace will continue to keep the gates, and juries will also continue to be reluctant to find violations because of common perceptions that discrimination is largely a thing of the past. Although it may seem counterintuitive, this Article argues for expanded use of disparate impact as a tool to address both old- and new-fashioned discrimination and develops the justifications and mechanisms for so doing. While a more robust use of disparate impact forfeits the moral high ground that validates the core disparate treatment prohibition, this Article argues that those heights have already been eroded by cognitive bias. Further, since disparate impact functions not an absolute prohibition but rather as a means of balancing adverse effect against business justifications, it is a more attractive avenue for a conservative judiciary to address present-day “subtle discrimination” than radically expanding the disparate treatment model. The article explains why, notwithstanding shortcomings and limitations, disparate impact is the avenue more likely to yield substantial success in future discrimination cases, and, in fact, align the law more closely with the science.

Mayto9n the 527 Myth William Ty Mayton (Emory University - School of Law) has posted The Myth of 527 Organizations on SSRN. Here is the abstract:
    527 organizations have been and continue to be an expedient medium for regulation of political activities. 527's have had a bad press, being commonly depicted as tax exempt havens through which big money may flow - outside of ordinary strictures such as those of the Federal Elections Campaign Act - into political campaigns. Thus regulation, such as that of the 2000 Act . . . to require 527 organizations to disclose their political activities or The 527 Reform Act of 2005 now pending in Congress, is seen as necessary. Regulation of this sort falls on speech ordinarily subject to constitutional protection. However, inasmuch as a tax exemption is a public subsidy, Congress, it is thought, may here regulate free of ordinary First Amendment constraints, according to the axiom that Congress has no duty to subsidize speech. These suppositions respecting 527's are, however, misleading to false. 527 organizations are associations subject to taxation under Sec. 527 of the Internal Revenue Code. This section was enacted in 1975 not to exempt these associations from taxation but to identify and tax their income, which income usually consists of interest earned on deposited funds (dues and contributions). Dues and contributions themselves were not taxed, not because they were exempted from taxation but because these items - consistent with history, practice, and economic theory - are not income. Thus, 527's are not tax-exempt organizations, they do not feed at the public trough, and they should not be removed from ordinary First Amendment protection according to the axiom that Congress has no duty to subsidize speech. Also, 527's are not exempt from ordinary regulation, as that of FECA. Numbers of them are subject to FECA and routinely comply with its disclosure requirements. On they other hand, a number of 527's are not subject to FECA, not because they are 527's but rather because of First-Amendment driven limits (respecting issue advocacy and political committees) to the coverage of that Act. The First Amendment, then, is the loophole, not 527's. In the end, 527 is a neutral tax classification and a 527 organization is simply an association involved in electoral politics, local, state, or federal, that has over $100 in interest income on deposited funds. This includes smallish organizations, earnestly involved in advocacy of various sorts, from local school bonds to conservation issues. These 527's are not of the secret slush fund model offered for 527-based regulation. They are of the civic-minded, civic-building model that ordinarily enjoys First Amendment protection.

Tuesday, July 05, 2005
Rosenkranz on the Treaty Power Nicholas Quinn Rosenkranz (Georgetown University Law Center) has posted Executing the Treaty Power (Harvard Law Review, Vol. 118, p. 1867, 2005) on SSRN. Here is the abstract:
    The canonical Missouri v. Holland holds that Congress has power to enact legislation to implement a treaty, even if it would lack the power to enact the same legislation absent the treaty. It holds, in other words, that the legislative power may be increased by treaty. This proposition is of enormous theoretical importance, because it is in deep tension with the fundamental constitutional principle of enumerated legislative powers. It is also of great and increasing practical importance, because it lies at the intersection of the two most dramatic trends in American law: the explosion of the United States's commitments under international law on matters of distinctly local concern, and the new willingness of the Supreme Court to police the limits of the enumerated powers of Congress. These two trends, in combination, are creating an increasing gap between what Congress is called upon to do by treaty and what it otherwise has enumerated power to do. It is this widening gap that implicates Missouri v. Holland. This Article endeavors to prove that Missouri v. Holland is wrongly decided. It shows, first, that Justice Holmes misunderstood the relationship between the Treaty Clause and the Necessary and Proper Clause. Second, it demonstrates that the standard historical defense of Missouri v. Holland is based on a false premise. It concludes, based on constitutional text, history, and structure, as well as an examination of public choice and practical consequences, that Missouri v. Holland is wrong - treaties cannot increase the legislative power of Congress. Whether or not this Article definitively resolves this issue, however, it should, at a minimum, serve to launch a new debate in the constitutional law of foreign affairs: what is the scope of Congress's power to legislate pursuant to treaty?

Rossi on Regulatory Bargaining Jim Rossi (Florida State University - College of Law) has posted Regulatory Bargaining and Public Law (Jim Rossi, REGULATORY BARGAINING AND PUBLIC LAW, Cambridge University Press, 2005) on SSRN. Here is the abstract:
    In REGULATORY BARGAINING AND PUBLIC LAW (Cambridge University Press 2005; 274 pp.; ISBN 0521838924), Professor Rossi explores the implications of a bargaining perspective for institutional governance and public law in deregulated industries, such as electric power and telecommunications. Leading media accounts blame deregulated markets for failures in competitive restructuring policies, as with the California electricity deregulation fiasco. However, Professor Rossi argues that governmental institutions, often influenced by private stakeholders, share blame for the defects in deregulated markets. Among the issues address in this book are consumer service obligations, constitutional takings jurisprudence, the filed rate doctrine, the dormant commerce clause, state action immunity from antitrust enforcement, and federalism disputes. Professor Rossi's book warns against a 'deference trap' leading courts to passive roles in conflicts involving political institutions, such as regulatory agencies and states. To address such concerns, Professor Rossi's book suggests a unified set of default rules to guide courts in the United States and elsewhere as they address the complex issues that will come before them in a deregulatory environment. The first part of the book explores the minimal role that judicial intervention played for much of the twentieth century in public utility industries and how deregulation presents new opportunities and challenges for public law. The second part of the book explores the role of public law in a deregulatory environment, focusing on the positive and negative influences it creates for the behavior of private stakeholders and public institutions in a bargaining-focused political process.
You can also download The Scope of Regulatory Bargaining. I'm a big fan of Rossi's work!

Beale on the AMT Linda M. Beale (University of Illinois College of Law) has posted Congress Fiddles While Middle America Burns: Amending the AMT (and Regular Tax) (Florida Tax Review, Vol. 6, No. 9, 2004) on SSRN. Here is the abstract:
    Several features of the budgetary context and the interaction of the alternative minimum tax (AMT) and the regular tax system suggest that the AMT will increasingly reach into the pool of ordinary taxpayers over the next few years. Taxpayers with incomes of less than $100,000 may in fact constitute the majority of AMT payers. The increase in taxpayers subject to the AMT over time creates a quandary - the longer Congress waits to reform the AMT, the more it will cost to do so, as the AMT becomes an increasingly important source of revenues. Many commentators have nonetheless called for outright repeal of the AMT. This article, however, urges that the appropriate response to these challenges should be AMT reform, not repeal. The article first explores the economic context in which any AMT changes must be considered, including the substantial tax cuts enacted from 2001-2003 and the related economic environment of rapid growth in both federal deficits and the federal debt burden, increasing income inequality, and the increasing number of consumption-base features in the income tax system. The article then briefly sets out the normative perspective that I believe should guide tax policymakers in making the difficult choices among possible AMT changes. The article next evaluates common criticisms of the AMT made by those favoring repeal and finds the arguments for repeal unconvincing. There are strong normative, and practical, reasons to retain the AMT despite its flaws. As an alternative to repeal, the article proposes a solution to the AMT quandary that addresses the most blameworthy features of the current AMT system while continuing to use the AMT to target taxpayers who benefit from aggregation of substantial preferences under the regular tax. Reforms include protections for what might be called ordinary taxpayers and additional preferences that should be taken into account in the AMT system to appropriately target higher-income taxpayers. To further limit the harmful growth of inequality among taxpayers, the article also argues for related, concurrent changes to the regular tax system. Finally, the article suggests that Congress should consider withdrawing some of the 2001-2003 tax cuts for taxpayers in the highest income brackets, to the extent necessary to fund needed AMT changes and at the same time ensure overall progressivity of the federal tax system.

Sullivan on the Asterisk Footnote Charles A. Sullivan (Seton Hall University - School of Law) has posted The Under-Theorized Asterisk Footnote (Georgetown Law Journal, Vol. 93, p. 1093, 2005) on SSRN. Here is the abstract:
    The asterisk footnote, although universally deployed in legal scholarship, has been equally universally ignored by the academy as a focus of scholarly interest. As I use the term, asterisk footnote refers to the note (usually, but not always, the first one) that, inter alia, identifies the author and (usually, but not always) is indicated by an asterisk. This footnote is used by every scholar but analyzed by none. This scholarly inattention is shocking given the remarkable growth and development of the asterisk footnote over the last 40 years. This Article is the first effort to address this gaping lacuna in scholarship. It is my hope (perhaps not my expectation) that it will launch a wave of asteriskian studies that will throw new light on the legal academy. In addition to tracing the history of the asterisk footnote from its origins in the primeval scholarly ooze to its present exalted status, the Article explores its significance for the legal academy on topics ranging from wholesale acknowledgements to dedications to pets. It also considers what light the asterisk footnote can throw on questions as diverse as the proper etiquette for tributes and the democratization of scholarship.

Johnsen on the Rehnquist Court & Congressional Power Dawn E. Johnsen (Indiana University School of Law, Bloomington) has posted Ronald Reagan and the Rehnquist Court on Congressional Power: Presidential Influences on Constitutional Change (Indiana Law Journal, Vol. 78, p. 363, 2003) on SSRN. Here is the abstract:
    This article was published as part of a symposium on "Congressional Power in the Shadow of the Rehnquist Court." It reviews recent Rehnquist Court decisions that limit congressional power - including through limits on Congress's section 5 and commerce powers as well as state sovereign immunity and "anti-commandeering" doctrine - and traces them to a concerted effort on the part of ideological conservatives to change the direction of constitutional law. The article focuses on a little-known series of lengthy reports issued by the U.S. Department of Justice, under the direction of President Reagan's Attorney General Ed Meese, that developed a detailed and comprehensive constitutional vision on all the great issues of the day - the right to privacy, affirmative action, religion, and many other issues in addition to congressional power and federalism - a vision, moreover, often at odds with Supreme Court precedent. The reports also addressed strategies for implementing the Reagan/Meese vision, including a call for the appointment of ideologically sympathetic judges. The article considers the Reagan/Meese effort as an example of the central role the political branches, and more generally non-judicial forces, play in promoting constitutional change.

Monday, July 04, 2005
Garnett on Zoning & Home Businesses Nicole Stelle Garnett (Notre Dame Law School) has posted On Castles and Commerce: Zoning Law and the Home-Business Dilemma (William & Mary Law Review, Vol. 42, pp. 1191, 2001) on SSRN. Here is the abstract:
    Most zoning laws severely restrict residents' ability to work from home. Some prohibit it outright. These regulations serve the ostensible purpose of protecting neighbors from externalities that might be generated by home businesses. But, home occupation restrictions also reflect in a particularly sharp way the central motivating ideology underlying all zoning laws - namely, that the "good life" requires the careful segregation of work and home. Today, home business regulations are being challenged by both planning theory and economic reality. At the same time that many in the academy and planning professions are calling into question zoning's pervasive segregation of land uses, increasing numbers of Americans are choosing to work from home. Homeowners, however, continue to worry about the introduction of commercial activity into residential neighborhoods. This article examines how local governments might respond to zoning law's "home business dilemma."

Hellman on the Role of Intent in Discrimination Deborah Hellman (University of Maryland - School of Law) has posted It's Not the Thought that Counts on SSRN. Here is the abstract:
    The article considers a central question about discrimination - are an actor's intentions relevant to whether an action wrongfully discriminates - and takes issue with a familiar answer to this question. If one thinks of "discrimination" in its literal sense, as simply drawing distinctions among people on the basis of possessing or lacking some trait, it becomes clear that discrimination is ubiquitous and often benign. The challenge is to distinguish when discrimination is permissible and when it is not. One common answer to this question is that it is the intentions of the actor who adopts or enacts a law, policy or decision that are crucial. Legal doctrine, both constitutional and statutory, reflects this view by treating the actor's intentions as centrally important. But is the moral claim on which it rests defensible; are intentions morally relevant to whether discrimination is wrong? The article argues that the actor's intent in enacting a law, adopting a policy or making a decision is irrelevant to the moral assessment of whether the law, policy or decision wrongfully discriminates. The article begins in Part I by drawing an analogy to a debate in the philosophical literature about the Doctrine of Double Effect in order to press the point that the focus on intentions confuses assessment of the wrongfulness of the action with assessment of the moral blameworthiness of the actor. The article goes on to argue that when we look more closely at instances of discrimination, we see that it is not the aims of the actor that render the action wrongful, rather it is what the actor does, whether intentional or unintentional, that matters. Parts II and III raise and reply to objections to the arguments advanced in Part I. In particular, Part II explores the argument that the actor's intent is necessary to determine whether or not a law or policy distinguishes among people on the basis of a suspect trait. Part III explores objections meant to show that bad intentions contribute, at the very least, to rendering an action wrongful. The article finishes by concluding that, as far as discrimination is concerned, it is not the thought that counts.

Johnsen on Rehnquist and Abortion Dawn E. Johnsen (Indiana University School of Law, Bloomington) has posted Abortion: A Mixed and Unsettled Legacy (THE REHNQUIST LEGACY, Craig Bradley, ed., Cambridge University Press, 2006) on SSRN. Here is the abstract:
    Not long after William Rehnquist joined the Court, he dissented in Roe v. Wade. He has continued to urge the Court to overrule Roe throughout his time on the Court. This paper, which will be published by Cambridge University Press in a forthcoming book entitled The Rehnquist Legacy, evaluates Rehnquist's legacy on abortion, and more generally substantive due process, including in the context of four distinct possible approaches to overruling Roe. Rehnquist's abortion opinions over the years are striking in how little they say about abortion per se or any governmental interest in fetal life - less than any other Justice who has opposed Roe. Rehnquist has based his opposition to Roe instead on an extremely narrow view of individual "liberty" protected against governmental intrusion and general hostility to the doctrine of substantive due process. Rehnquist obviously has not succeeded in overruling Roe. Originally in a minority of only two Justices in Roe, Rehnquist steadily gained support throughout the 1980's. But just when new appointments seemed to provide the necessary votes, the Court unexpectedly reaffirmed what it described as Roe's essential holding in its 1992 Casey decision. Less appreciated is the extent to which the Court has diminished judicial protection for reproductive liberty. Rehnquist wrote in Casey: "Roe continues to exist, but only in the way a storefront on a western movie set exists: a mere facade to give the illusion of reality." Court appointments and decisions in the near future will determine Rehnquist's ultimate legacy on reproductive liberty, but for now it is best viewed as mixed and unsettled.

Sunday, July 03, 2005
Legal Theory Lexicon: The Attitudinal Model
    Introduction Political scientists and lawyers look at the law from different angles. Lawyers emphasize what we might call the “internal perspective”—the way that the law looks from inside. Political scientists tend to emphasize the “external perspective”—the way the law looks from outside. So lawyers at least try to explain judicial decisions on the basis of “legal reasons”—precedents, statues, constitutional provisions, legal principles, and so forth. But political scientists (and economists) may emphasize judicial behavior and its causes. One of the most influential attempts to explain the causes of judicial behavior is called the attitudinal model—the core idea of which is that judges decide cases on the basis of their policy preferences or political ideologies. Of course, this idea is familiar to legal theorists as well—it is a version of one of the core ideas of legal realism (and later critical legal studies): that law is politics and legal rules are indeterminate.
    This post in the Legal Theory Lexicon series provides an introduction to the attitudinal model and to some possible criticisms and modifications of the model. We will also explore the implications of the model (and extensions of the model) for judicial selection. As always, the Lexicon is aimed at law students—especially first-year law students—with an interest in legal theory.
    As is usually the case, this Lexicon entry is covering a complex topic in just a few paragraphs. For a full and accurate description of the attitudinal model, consult the sources in the References at the end. In particular, be warned that my version of the “attitudinal model” has been simplified and modified for presentation to a legal audience!
    A Simple Version of the Attitudinal Model Let’s begin with a very simple version of the attitudinal model. This version of the model will be very schematic. We need to begin by introducing the notion that political attitudes or ideology can be “measured” or “represented” as a “real number” which occupies a position or point on a “real line.” For example, the real line could begin at 0.0 and terminate at 1.0, with 0.5 as the midpoint.
    What do these numbers represent? At this point, we don’t really need to answer that question. The numbers might represent general political ideology. In that case, the origin (or “right-most” position) on the line would represent a conservative (or “right-wing”) political ideology and the terminus (or “left-most” position) on the line would represent a liberal (or “left-wing”) political ideology. But we could also model judicial attitudes towards a specific issue in the same way. For example, the origin could represent a pro-national power attitude, and the terminus could represent a pro-state’s rights attitude. For illustrative purposes, I will use the conservative-liberal scale for the remainder of this post.
    Figure One illustrates the idea of a real line ranging from 0.0 to 1.0: __________________________________________________ Left (0.0)_____________________________Right (1.0)
    Figure One: A Real Line
    Our very simple model of political ideology is one-dimensional. Of course in the real world, political ideology may be multi-dimensional. Representing a multi-dimensional political ideology space as if it were a one-dimensional real line might be a problem, but it might not. It might turn out that a one-dimensional model does a good enough job of predicting political behavior, and that multidimensional models become unuseably complex if the really map onto the actual attitudes of political actors. Let us set this problem to the side, and assume that the one-dimensional mode is “good enough” to get the job done. Remember, all of this is just for purposes of illustration.
    Each judge (or court) occupies a position on this real line. The most conservative possible judge would be at the right-most point (1.0) on the line; the most liberal judge would be at the left-most point (0.0).
    Applying the Model to the Supreme Court So let’s apply the model to the Supreme Court. Our hypothetical court consists of nine justices, each of whom will be represented by a one or two letter designation:
    _____St__G___Br___So___O___K______R__Sc_____T______ Left_________________________________________Right
    Figure Two: The Composition of the Current Supreme Court
    The attitudinal model assumes that judges decide cases in accord with their political attitudes. How does that work? The Supreme Court votes by simple majority to affirm or reverse. When a majority of Justice’s join a single opinion it becomes the “Opinion of the Court” and has binding vertical stare decisis (precedential) effect on lowers courts. Let us assume that any given decision the Court makes (consisting of the mandate plus the legally binding effect of the Opinion) can assume a value on the real line. (We might want to assume that decisions affect the position of the whole policy system on the line. Let’s just set that issue aside for our simplified discussion.).
    Because our very simple version of the attitudinal model predicts that each Justice will vote his or her attitudes in each case, the “median” justice has a very important role to play on the Court. Why? Because the median justice will always be in the majority. For example, in Figure Two, Justice “O” would always be in the majority, whether the vote be 9-0, 8-1, 7-2, 6-3, or 5-4, either to affirm or to reverse the decision of the lower court being reviewed.
    Of course, in the real world the “median justice” isn’t always in the majority. There could be any number of explanations for that fact that would be consistent with the basic thrust of the attitudinal model. One possibility is that there are several different issues (dimensions of political ideology) and that a judge who is to the left on one issue could be to the right on another issue. For example, a judge who is to the right of median on federalism issues could be the median justice on criminal law issues. Let’s set aside this issue and continue with our exploration of the model.
    An Elaboration of the Model As we’ve already observed, some Supreme Court decisions are 9-0, but some are 8-1, 7-2, 6-5, and 5-4. Some cases produce a single “Opinion of the Court” joined by all of the Justices, but others produce fragmented opinion structures, with some justices concurring separately or dissenting separately. How might the attitudinal model explain these phenomena?
    Let’s take the 9-0 decision first. How could the Supreme Court be unanimous, given our simple attitudinal model? One reason for unanimity might be that the decision below is outside the range of attitudes on the Court. For example, let X represent the position occupied by the lower court’s decision, and let the positions of the Justices remain as in Figure Two:
    __X__St__G___Br___So___O___K______R__Sc_____T______ Left_________________________________________Right
    Figure Three: Unanimous Reversal
    In Figure Three, the lower court’s decision X occupies a point on the real line to left of the left-most Justice (Justice “S”). So all nine Justices will vote to reverse X. It is easy to see how we can produce the other vote combinations by moving the position of X.
    What about the opinions? What determines who joins which opinions? Of course, it is possible that the space of possible opinions is such that it will make no difference to the behavior of lower courts how the opinion in the case is written. (Imagine that the issue is a simple binary, yes or no, issue.) In that case, the decision will be unanimous and there will be a single opinion. But it would also be possible that two different rationales could be given for the result. Suppose that one of the possible rationales occupies the same point on the real line as does Justice “St” and that another occupies the same position as Justice “G”. We would then predict that the Opinion of the Court will be the one that occupies the “G” point. Why? Because each of the judges to the left of G would prefer an Opinion that identifies the point associated with “G” as the “legal rule” to an opinion that identifies the point associated with “St” as the legal rule. There are eight judges at or to the left of “G” and therefore, “G” and not “St” would be joined by at least 8 justices. For simplicity’s sake, let’s assume that the Justice who occupies “St” would right a separate opinion in these circumstances. (In the real world, the “G” opinion might be so close to St’s preferred position that St would not bother to write separately.)
    There could be another possible reason for unanimity (but not for any of the other possible voting patterns. It might be that some cases are such that they have no attitudinal valence; the issues involved are purely judicial “housekeeping” questions, or they are issues on which persons with any possible judicial attitude would agree.
    Criticisms of the Attitudinal Model The attitudinal model can be criticized in various ways. In the pure and simple form that we have explored, the model assumes that ideology does all the explanatory work, but that assumption is probably incorrect. It is likely that Supreme Court Justices decide in part on the basis of legal reasons, even when the result that is legally required is inconsistent with their ideology. The attitudinal model can absorb this criticism, however, by simply narrowing its scope of application. Political ideology could explain why the Justices vote as they do in those cases where the law “underdetermines” the result—allowing “room for interpretation” or “discretion.”
    Even the Supreme Court may be constrained by the text of the Constitution or of federal statutes in various ways. Lower courts (the United States Courts of Appeal, state supreme and intermediate courts, and trial courts) are likely to be further constrained. For example, lower courts may be constrained by the doctrine of vertical stare decisis and intermediate courts of appeal may be constrained by horizontal stare decisis. If these “legal” constraints do exist, they show that the attitudinal model has a limited domain of application—but advocates of the model may not intend for it to apply (in its strongest form) except to the Supreme Court.
    Another criticism of the simple attitudinal model is that it fails to consider the interaction between the Courts and other actors within the system. Suppose, for example, that the Supreme Court decides an issue of statutory interpretation in accord with the ideological preferences of a majority of Supreme Court Justices but in a way that would prompt Congress (and the President) to pass a new statute that overrode the Court’s decision. Recognizing this possibility, the Court might decide the case so as to produce the outcome that came closest to the preferences of a majority of Justices without provoking Congress to pass overriding legislation. Once again, however, the attitudinal model can absorb this criticism. The attitudinal model might need to be modified (by game theory) to take this criticism into account, but the central assumptions of the model would not be undermined in a serious way.
    Conclusion Law students focus heavily on the internal perspective—especially in the first year of law school. That doesn’t mean that law students aren’t introduced to the realist picture of law that lies behind the attitudinal model. They are! But a rough and ready introduction to legal realism and the view that judicial attitudes influence judicial behavior isn’t really sufficient. Every legal theorist needs a basic grasp of the attitudinal model—whether they ultimately decide to reject the model or not.
      David W. Rohde & Harold J. Spaeth, Supreme Court Decision Making (1976)
      Jeffrey A. Segal & Harold J. Spaeth, The Supreme Court and the Attitudinal Model Revisited (2001).
      Glendon Schubert, The Judicial Mind (1965)
      Glendon Schubert, The Judicial Mind Revisited (1974)
      Harold J. Spaeth, An Introduction to Supreme Court Decision Making: Revised Edition (1972)

Saturday, July 02, 2005
Law & Society Blog on the O'Connor Vacancy and the Rule of Law Check out Weaken the Court, Strengthen the Rule of Law on Law & Society Blog. Here's a taste:
    The root of the problem is that the Supreme Court is simply too powerful an institution. The court overpowers the law. Of course it matters whether the next appointee is virtuous in Solum's sense rather than a party delegate, but the fact remains that constitutional adjudication has been and will always be political adjudication. Constitutional courts are arguably shared institutions, in that they operate both within the legal and the political system. The legal system works best where there are many courts, many cases, many decisions, and no centralized über-court. The unity of the legal system, seen from an internal point of view as a hierarchical system of rules, is guaranteed by the constitution as the highest set of legal norms. But that normative hierarchy, with its single ultimate focal point, does not mandate a similarly centralized institutional structure with one highest court on top. In fact, the power given to individual courts (as opposed to all courts in the aggregate) may well be inversely related to the significance of the rule of law.

Legal Theory Bookworm This week, the Legal Theory Bookworm recommends two books by Sandra Day O'Connor:O'Connor was not a "theoretical" justice, but she certainly is an important historical figure in American jurisprudence.

Download of the Week The Download of the Week is Can Contract Theory Ground Morality? by Philip N. Pettit. Here is the abstract:
    The paper in is in three sections. In the first I offer a characterization of contractualism, explaining along the way that under this representation it is proof against two more or less obvious consequentialist objections. In the second section I argue that even when characterized in this manner, however, there remains an attractive and plausible way of taking contractualism that would make it consistent with consequentialism; this would cast it as a theory of the relatively right - the right relative to a practice - rather than the absolutely right. And then in the third section I show that even if this relativised way of taking it is rejected, as Scanlon himself would certainly reject it, there is a second way in which contractualism can in principle be rendered consistent with consequentialism; it may be cast as a partial rather than a complete theory of the absolutely right. Under neither of these ways of taking the doctrine would contractualism ground morality - not at least in every relevant sense - but under each it would retain a significant place in moral theory.
Pettit on Scanlon! This paper is a real treat. Highly recommended!!!

Friday, July 01, 2005
Tamanaha on the O'Connor Vacancy Check out this very fine post by Brian Tamanaha on Balkinization. Here's a taste:
    My broader point is not to urge the left to be more strategically savvy, but to encourage reflection on the battles that have erupted through and over the law, on the systematic and comprehensive efforts to seize the law and to use it against opposing groups. We have become so inured to this seemingly growing frenzy that it is hardly reflected upon any more. All sides, liberal and conservative, groups of every stripe, are eagerly engaged in and equally responsible for these fights. All sides show a single-minded pursuit of their objectives in and through the law with nary a thought of the harmful consequences that might follow to society or the legal system. Multiplied a thousand fold, this is the setting for the fight over O’Connor’s replacement. Already, groups on the left and right are preparing for what they anticipate will be the worst ever fight over a judicial appointment--focused squarely on the ideology of the appointee. Indeed a right group spent $700,000 in preemptive ads before O'Connor's retirement was announced. And of course there’s the looming possibility of a second vacancy… How many battles of this sort can the legal system absorb before everyone simply takes for granted that the judge’s ideology is everything—that the law doesn’t matter? Or have we already passed that point?
I am a great admirer of Tamanaha's scholarship and now of his blogging!

O'Connor's Importance on the Court
    Introduction This is an updated version of a post from a few months ago. I am reposting an edited version, because of its relevance to O'Connor's resignation.
    O'Connor has been the swing justice in many important cases. That makes her resignation especially salient to those who view the Supreme Court through the lens of political ideology. From abortion to affirmative action, O'Connor's replacement has the potential to shift the balance of the Court on a variety of "hot button" issues.
    A Closely Divided Court, The Mission to Make Everything Come Out Right As I was browsing a few months ago, I came across two stories, both courtesy of the amazing Howard Bashman, that highlighted the dysfunctionality of the current Supreme Court. The first story was this article, commenting on Jonathan Turley's advocacy of expansion of the Supreme Court:
      Justice Sandra Day O'Connor's recurring role as a key swing vote is essentially turning the U.S. Supreme Court into "a court of one," says a prominent constitutional scholar who argues that the nation's highest court should be expanded from nine justices to 19. In an article titled "Unpacking the Court," George Washington University law Professor Jonathan Turley calls it "remarkable" how uncontroversial this "concentration of power" in a single justice has been, saying that never was the intent of the nation's Founding Fathers.
    The second was this article by Gina Holland on Scalia's frustration with the recent performance of the Supreme Court:
      Justice Antonin Scalia ended the Supreme Court term with some harsh words for his colleagues. "This court seems incapable of admitting that some matters - any matters - are none of its business," he wrote on the court's final day. Only fellow conservative Clarence Thomas wrote more dissents than Scalia in the nine-month term that ended this week. In the final days, Scalia complained about a misguided court that "seems to view it as its mission to Make Everything Come Out Right," even with wrong rulings.
    So, we have two interacting phenomena. First, we have a closely divided court, and the division is especially prominent on a variety of key constitutional issues, including unenumerated rights and federalism. Second, the behavior of the Justices seems consistent with the theory that the Justices vote to produce the "fair" or "best" outcome, feeling only loosely constrained by the rules laid down--e.g. their own precedents, the constitutional text, statutory language, and so forth. I would like to suggest (as a working hypothesis) and not as a firm conclusion) that the interaction of these two phenomena is much more problematic than either would be by itself. What do I mean? I think the best way to explain my point is to examine two scenarios: (1) a stable supermajority court, and (2) a divided formalist court.
    Two Scenarios
      Scenario One: A Stable, Supermajority, Results-Oriented Court My hypothesis is that (1) a closely divided court that is (2) results oriented poses a greater threat to the rule of law than would either phenomena standing alone. Of course, a results-oriented court would threaten the rule of law--even if there was a stable supermajority on the court. One of the points of the rule of law is to limit the arbitrary discretion of individuals ("the rule of law, and not of men"). Nonetheless, when a results oriented court has a stable supermajority, other rule of law values can be realized. A stable supermajority results oriented court can create predictability and certainty. Here's why:
        First, such a court is not likely to reverse itself. Even if one justice waffles on a particular issue, the supermajoritarian position is unlikely to change. Moreover, a stable supermajority court has every incentive to respect its own prior decisions; by building a body of consistent precedent, the supermajority is better able to translate its own preferences into binding law that would control the behavior of lower courts and the other branches of government.
        Second, a stable supermajoritarian results-oriented court is likely to be predictable. This predictability does not derive from the formal written materials (by definition, a results-oriented court is not following the rules laid down), but rather is a function of the fact that the ideological makeup of the court is stable and predictable.
      Let me be clear, I am not endorsing result-oriented jurisprudence. My point is simply that result-oriented jurisprudence is less damaging to the rule of law when a stable supermajority shares the same preferences with respect to outcomes.
      Scenario Two: A Divided Formalist Court What about the other scenario? Imagine now that we have a court that is closely divided on ideological grounds, but which consists of judges who share a commitment to the rule of law principle that cases should be decided on the basis of the rules laid down, rather that policy preferences. Let's assume that even formalist judges are influenced by their ideological preferences. The formal materials underdetermine outcomes, especially in the case of broad constitutional provisions like the equal protection, due process, and free speech clauses. So, a closely divided formalist court will produce 5-4 decisions, when different ideological lenses produce different interpretations of what the constitution and its history mean. Nonetheless, such differences are likely to be less damaging to the rule of law when the court is composed of judges whose ideological commitments are tempered by a true dedication to the rule of law. Formalist judges who respect precedent, for example, will take 5-4 decisions as decisive. Having lost the battle, they will not continue to fight the war--continuing to dissent and maneuvering for a reversal in a future case. As time goes on, then, a formalist court will converge on rules of law, even if they do not converge on political ideology.
      Comparison with a Results-Oriented Closely Divided Court And how do these two scenarios compare with a results-oriented, closely-divided court. Because such a court is results oriented, its decisions cannot be predicted on the basis of the rules laid down; a results-oriented court is not much concerned with precedent, constitutional text or original meaning. Because the such a court is closely divided, its decisions cannot easily be predicted on the basis of a consistent political ideology. Of course, this does not mean that such a court is utterly unpredictable. How do you predict a results-oriented, closely-divided court? You predict the votes of individual swing justices! And of course, that is exactly what court watchers try to do. They try to get inside the psyches of the swing votes; today, that means they try to predict the voting behavior of Justices Kennedy and O'Connor. (The combination of both Kennedy and O'Connor was in the minority only twice this term. In other words, in every case but two, so long as you did not lose both O'Connor and Kennedy, you prevailed.) Assuming a certain amount of noise (generated by random or opaque internal inconsistencies within Justices perhaps), however, this method of prediction is likely to be very difficult to use as a practical guide for planning behavior. The unidimensional left-right model may be out best model for predicting votes in the Supreme Court, but that does not mean it is good enough to serve as a substitute for decisions according to the rules laid down. The difficulty of predicting is likely to be compounded if the swing justices themselves are unpredictable--as many Kennedy and O'Connor may well be.
    The core of my point is simple: a results-oriented, closely-divided court poses grave dangers for the rule of law--dangers that are greater than those posed by a either results orientation or close division alone.
    Solutions? And this brings me round to the question, "What can be done?" One answer is suggested by Jonathan Turley's proposal to expand the Court from 9 to 19. Turley's proposal would reinforce the rule of law in two distinct ways:
      First, if the 10 additional justices were appointed an approved in a relatively short span of time, it is likely that the ideological balance of power on the court would shift from closely divided to supermajority. This would be especially likely if both the Presidency and the Senate were controlled by a single party at the time the expansion occurred. (If the Presidency and Senate were divided, I have a hard time imagining how the current dysfunctional appointments process would be able to handle the task.) Of course, the desirability of this solution is likely to be viewed through the prism of political ideology. The left would never agree to an expansion that would result in a stable right-wing supermajority, and vice versa.
      Second, over the long-run it is simply less likely that a 19 member court would be divided 10 to 9. With 19 members, there will be more regular vacancies and a greater likelihood of stable 12+ member majorities; more justices equals more chances that the "middle" of the court will consist of more than one or two members.
    Turley's solution might work, but, at least for now, it seems utopian. A court-packing plan that expands the size of the Court from 9 to 19 would meet with the stiffest possible political resistance from the side that would be disadvantaged. Absent a shift to a new political constellation where a single party has both the Presidency and a filibuster-proof Senate majority, this option seems unlikely. Moreover, there would, I think, be a political cost to imposing such a plan. My untutored guess is that such a proposal would be very unpopular, precisely because it would be perceived as a court-packing plan.
    The Virtue of Justice Is there an alternative? Frequent readers of Legal Theory Blog will not be surprised to learn that I think there is. The key to the solution is rejection of the realist dogma that judges must be ideological. To put this point differently, we need to expand our model of judicial attitudes and dispositons and recognize that judges vary not only in their political ideology, but also in their judicial philosophies. Realist judging is not hard wired into the furniture of the universe; it is the result of particular forces, beliefs, and attitudes. And yet another way of making the point is this: formalism is a possibility.
    But how could we get a formalist Supreme Court? The answer to this question can begin with the virtue of justice. As is often the case with the virtues, we can learn much by going back to Aristotle. The eminent scholar, Richard Kraut explains:
      [W]hen [Aristotle] says that a just person, speaking in the broadest sense is nominos, he is attributing to such a person a certain relationship to the laws, norms, and customs generally accepted by some existing community. Justice has to do not merely with the written enactments of a community's lawmakers, but with the wider set of norms that govern the members of that community. Similarly, the unjust person's character is expressed not only in his violations of the written code of laws, but more broadly in his transgression of the rules accepted by the society in which he lives.
      There is another important way in which Aristotle's use of the term nomos differs from our word "law": he makes a distinction between nomoi and what the Greeks of his time called psephismata--conventionally translated as "decrees". A decree is a legal enactment addressed solely to present circumstances, and sets no precedent that applies to similar cases in the future. By contrast a nomos is meant to have general scope: it applies not only to cases at hand but to a general category of cases that can be expected to occur in the future.
    Rule by decree, Aristotle believed, was typical of tyranny--the rule of individuals and not of law; a regime that rules by decree does not provide the stability and certainty that is required for human communities to flourish. Kraut continues:
      We can now see why Aristotle thinks that justice in its broadest sense can be defined as lawfulness, and why he has such high regard for a lawful person. His definition embodies the assumption that every community requires the high degree of order that comes from having a stable body of customs and norms, and a coherent legal code that is not altered frivolously and unpredictably. Justice in its broadest sense is the intellectual and emotional skill one needs in order to do one's part in brining it about that one's community possesses this stable system of rules and laws.
    A Virtuous Justice What I am suggesting is as simple as it is radical. When we select judges (especially Supreme Court justices), we should look first and foremost for good judicial character, and especially for the virtue of justice--the disposition to decide cases on the basis of the rules laid down and the norms of the community and not on the basis of the judges' own perceptions of what the law should be. We should select Justices who are willing to compromise in order to produce stable majorities on particular issues. We should select Justices who will respect the Supreme Court's decisions as precedent, even though they may have dissented from the decision. We should select Justices who care more about the rule of law and less about ruling through law.
    At this point, I know that many readers will be saying to themselves, "Solum is hopelessly naive." Some of you may think that human beings really are hard wired to be realists when given judicial power. Others may think that politics are so polarized that neither party can resist the opportunity to view the opportunities to fill vacant Supreme Court seats as the ultimate spoils of political victory. And I cannot confidently say that you are wrong. In my more pessimistic moments, I am inclined to think that the downward spiral of politicization must hit bottom and the rule of law almost utterly destroyed before political actors will come to see that the long-run costs of realist judging outweigh the short run political benefits. But I take it that Jonathan Turley's proposal to increase the size of the Court from 9 to 19 is a sign of disquiet and unease. The realization that the Supreme Court is becoming increasingly dysfunctional is growing. It is not, I think, utopian to believe that a consensus can be reached on the very great value of the rule of law. Legal realism is not written in the fabric of the universe; it is the product of human choices.
Update: O'Connor & Kennedy were both in dissent in only two cases, Till v. SCS Credit Corp., which held that interest rates in Chapter 13 bankruptcy cramdowns should be computed using a prime-plus or formula rate (4 Justices) or in recognition that the rate need not reflect the risk of nonpayment (1 Justice) and Blakely v. Washington, in which the Court held that Judges cannot apply upward departure from statutory sentencing ranges based on facts neither admitted by defendant nor found by jury. Without reading the opinions, my impression is that Till case does not involve issues with a prominent ideological dimension. Blakely does; the crucial fifth vote for the liberals was provided by Justice Thomas. Marty Lederman (of the superimpressive SCOTUS Blog) writes:
    The answer to your question [re O'Connor & Kennedy both dissenting] is two, or one-and-a-half, really. AMK and SOC were joined in dissent in just two cases, Till and Blakely. And in Till the dissent and the plurality were in accord on most facets of the case, but not on the judgment. Until the final week of the Term, SOC had dissented -- and I don't mean "had only written a dissent"; I mean had not been in dissent -- in only two cases, Till and Olympic Airways. In the final week, she was on the short end of the stick in Blakely, Siebert and ACLU. The only dissents she wrote all Term were in Siebert and Blakely. There were only three majority opinions of the Court all Term that did not include SOC -- Blakely, ACLU and Olympic Airways. And Olympic Airways was the only case of the Term in which she was not joined by at least three other Justices.
And for more commentary on the October 2003 term, read this thoughtful post by Lyle Denniston of SCOTUS Blog.
And Sasha Samberg-Champion (posted in full here at the Legal Theory Annex):
    One solution to this problem, as you suggest, would be for the majority opinion writer to move towards the middle to "restate" the law in a way that would be agreeable to more than 5 Justices. * * * But now the problem is, we've created compromise law that doesn't adhere to anyone's formalist reading, but rather was created to reach a particular political result -- i.e., legal stability. It then falls to the law professors to try to "explain" how we could come to such an odd detente. To me, that seems like an acceptable solution, but it doesn't seem like formalism. Isn't that exactly the kind of results-oriented law that you don't like? Am I missing something here?
It depends on the nature of compromise, doesn't it? Compromising formalist with realist-political judging for the sake of stability may well lack integrity--I need to think about that very carefully, but compromising two different formalist positions (e.g. compromising on the plain-meaning versus legislative intent issue) is not inconistent with at least some conceptions of formalism. More importantly, follow stare decisis, even when you think the prior decision was wrong on formalist grounds is certainly consistent with (and may even be required by) a coherent formalist jurisrpudence.
And for another reaction, check out Bloomfield's Realism and the Virtue of Justice(s) at Law & Society Blog:
    Realism has become the culprit. What is going wrong in the courts is the politicization of judicial decision making, what used to be called judicial activism: the infusion of political will into what should be the neutral, legal arbitration of disputes. Are realism and judicial activism connected? (Or is it simply that we call it judicial activism if liberal justices do it, and something else (such as realism) if conservative justices do it?) If you consider that legal realism in this country started as a counter-movement against "mechanical jurisprudence" (a stylized opponent, not to say strawman), and if you further consider that the rhetorical exclusion of "real" issues from the decisions of the Lochner era in itself represented a political agenda of the courts, realism in its first and critical incarnation conceptually neither condemned nor condoned political or social agendas in judicial decision-making. What was to be condemned was that judges were hiding the ball, playing a three-shell game with legal doctrine, obscuring the social and political conflicts at work in the cases.

O'Connor Resigns The New York Times Reports:
    Justice Sandra Day O'Connor, the first woman appointed to the Supreme Court and a key swing vote on issues such as abortion and the death penalty, said Friday she is retiring. Sandra Day O'Connor announced today that she is retiring from the Supreme Court. O'Connor, 75, said she expects to leave before the start of the court's next term in October, or whenever the Senate confirms her successor. There was no immediate word from the White House on who might be nominated to replace O'Connor. It's been 11 years since the last opening on the court, one of the longest uninterrupted stretches in history. O'Connor's decision gives Bush his first opportunity to appoint a justice.