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

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Tuesday, January 31, 2006
 
Hasen on the Failure of the Alito Filibuster Read The Failed Alito Filibuster, with an excellent analysis of Hasen's own failed prediction that Alito would be defeated. Here's a taste:
    Where does this leave Democrats? Thought the "Gang of 14" agreement has saved the Senate from the nuclear option, it has seriously weakened the Democrats, who apparently won't be able to block any competent Bush nominee to the Supreme Court (should another nomination open up). It may still be possible to block lower stakes judicial nominees, as is apparently happening with DC Circuit nominee Brett Kavanaugh.
Just another thought or two:
    With respect to overruling Roe, I think it is important to remember that Alito is at most the fourth vote, and that assumes that Roberts was the third, which is not at all clear yet.
    With respect to the Gang of 14 and the agreement, I certainly agree that the agreement did not help Democrats or hurt Republicans--contrary to the hew and cry at the time. But I don't think the agreement itself, actually hurts Democrats much either. It is not the agreement among the Gang of 14 that prevents a successful filibuster. That's because the agreement is not much more than "cheap talk." Any Senator who wanted to vote against Alito could reasonably claim exceptional circumstances. It is the political preferences of the Senators and not the agreement or the chumminess of the gang that is doing the work.
Read Rick's post!


 
Rowe & Baskauskas on the Rooker-Feldman Doctrine Thomas D. Rowe, Jr. and Edward L. Baskauskas (Duke University School of Law and Golden Gate University - School of Law) have posted 'Inextricably Intertwined' Explicable at Last? Rooker-Feldman Analysis After the Supreme Court's Exxon Mobil Decision (Federal Courts Law Review, Forthcoming) on SSRN. Here is the abstract:
    The Supreme Court's March 2005 decision in 'Exxon Mobil Corp. v. Saudi Basic Industries Corp.' substantially limited the Rooker-Feldman doctrine, under which lower federal courts largely lack jurisdiction to engage in what amounts to de facto review of state-court decisions. Exxon Mobil's holding is quite narrow - entry of a final state-court judgment does not destroy federal-court jurisdiction already acquired over parallel litigation. But the Court's articulation of when Rooker-Feldman applies, and its approach in deciding the case, have significant implications for several aspects of Rooker-Feldman jurisprudence. Chief among our claims is that although the Court did not expressly repudiate or limit the applicability of the inextricably intertwined formulation from prior cases, which had been a primary test for many lower courts, that concept appears to have been relegated to some secondary role and no longer to be a general or threshold test. The Exxon Mobil Court properly did not elaborate on just what the concept's role should be, but we offer a suggestion based on an earlier Ninth Circuit decision. We also discuss the apparent impact of Exxon Mobil on other aspects of Rooker-Feldman doctrine as the lower federal courts had developed it, including relation to preclusion doctrines, the significance of whether the federal plaintiff was plaintiff or defendant in state court, and the doctrine's applicability a) to those not parties to prior state-court litigation, b) to interlocutory state-court rulings and decisions of lower state courts, and c) when federal-court plaintiffs did not raise their federal claims in state court.


 
Comande on Adjudicating Personal Injury Damages Giovanni Comande (Sant'Anna School of Advanced Studies - Faculty of Law) has posted Towards a Global Model for Adjudicating Personal Injury Damages: Bridging Europe and the United States (Temple International & Comparative Law Journal, Vol. 19, No. 2, 2005) on SSRN. Here is the abstract:
    Techniques for awarding personal injury damages assume an increasing interest in times of frequent mobility of individuals. Assessing non-economic damages might require more harmonized answers to provide justice and equal treatment across the world. Indeed, in most countries a lasting debate surrounds noneconomic damages for personal injury. Specifically, an alleged constant increase in awards and the difficulties linked to the subjectivity of their assessment, and the selection of the institution that is best suited to award these damages and how it should do so are but a few problems that are addressed by contemporary scholarship. However, this extensive debate has not sufficiently explored the techniques for awarding intangible loss damages in personal injury by using a comparative law methodology. Filling this gap, this article explores the latest developments in awarding noneconomic damages. It further proposes an analysis of the American and European experiences which aims to bridge these two legal cultures for mutual benefit. By way of comparative and historical analysis, Part I highlights the significant trend in American and European jurisdictions, which consists of distinguishing non-economic damages based on objective criteria stemming from an ascertainable medical condition. Building on these results, Parts II and III develop a more efficient conceptual framework and further propose better assessment tools in awarding these damages. This method demonstrates the benefits the United.States could gain by introducing innovative judicial scheduling, without triggering either constitutional concerns or statutory intervention while building upon the existing strengths of the European experience and the American judicial system. For instance, Normalized Value Scheduling would endow actual judges and jurors with the necessary expertise, increasing horizontal and vertical equality without necessarily impeding an inevitable variability of awards among different jurisdictions.


 
Tuesday Calendar
    Marquette Law: Eric Goldman, Marquette University Law School, Placing and Marketing Scholarship


 
McGovern on Claims Resolution Faciliites Francis E. McGovern (Duke University School of Law) has posted The What and Why of Claims Resolution Facilities (Stanford Law Review, Vol. 57, p. 1361, April 2005) on SSRN. Here is the abstract:
    Claims resolution facility is a generic term used to describe a wide range of entities that process and resolve claims made against a potential funding source. In the context of a natural disaster, for example, there might be facilities to process claims based upon insurance policies, federal or state statutory or administrative rights, international relief efforts, contractual obligations, or any *1362 other basis for receiving economic or noneconomic benefits. These facilities are generally characterized by a large number of claims that are in need of rapid and efficient resolution. In certain instances, however, the positive connotations of the term have been expropriated to describe a facility that desires to appear quick and efficient while acting slowly and expensively. In the context of alternatives to the litigation system, claims resolution facilities function to enable the disaggregation of liability from damages in the determination of legal entitlements either individually or collectively, in settlement or as a precursor to litigation. The facilities operate under the assumption that there is at least some liability, and their role is to focus on any residual damage issues not resolved through litigation or settlement. These facilities vary considerably in form, from qualified settlement funds recognized by the federal tax code to ad hoc efforts to resolve disputes prior to any invocation of the legal system. In the context of a man-made disaster, for example, there might be facilities either by defendants or their insurance carriers to settle claims prior to the intervention of attorneys, to evaluate and/or settle claims individually or in groups after the retention of counsel either before or after the initiation of litigation, to determine individual or collective damages, or to allocate damages among claimants. Part I attempts to identify the critical variables that are integral to the claims resolution facilities that have become alternatives to traditional litigation. These variables include all the essential elements, with particular attention to the criteria and methodology used by claims resolution facilities to evaluate, process, and pay claims. In Part II, there is an analysis of the strategy for designing a claims resolution facility that takes advantage of the multiplicity of options in order to accommodate the particular needs associated with a given claims resolution facility. Parts III and IV consider the assets and defects of claims resolution facilities, including rationales for their recent popularity. Finally, Part V assesses the future by focusing on common failure modes for claims resolution facilities and then proposes possible substantive standards and procedural rules that may increase the legitimacy of claims resolution facilities.


 
Rosenthal on the Theory of Government Damages Liability Lawrence Rosenthal (Chapman University - School of Law) has posted The Theory and Practice of Government Damages Liability: Torts, Constitutional Torts, and Takings. Here is the abstract:
    Theories of tort liability generally fall within two broad camps: the instrumentalists claim that tort liability promotes efficient investments in safety by cutting into the revenues of those who under-invest in safety; and the advocates of corrective justice claim that tort liability embodies a moral obligation of culpable parties to bear losses for which they are fairly considered responsible. Neither theory offers much support for government tort liability. Unlike private tortfeasors, the government's objective is not profit maximization; it responds to political and not market discipline. Thus, the instrumental justification for tort liability is wanting in the public sector. As for corrective justice, the government passes its legal costs along to the taxpayers, who bear little if any culpability for the underlying tortious conduct. Thus, corrective justice also supplies little support for public-sector tort liability. Indeed, there is an emerging consensus among legal scholars that government tort liability lacks a coherent justification. In this work in progress, I endeavor to show that the emerging consensus is wrong. To do so, I anchor the justification for government tort liability in a theory of political behavior. I look to politics because the government responds primarily to political costs and benefits, whereas private tortfeasors respond primarily to economic rewards or punishment. In my view, government tort liability exacts a political price by diverting the funds used to pay judgments and other litigation costs from what elected officials regard as the politically optimal use of those funds. Therefore, government liability creates a political incentive to invest in loss prevention in order to maximize political control over public resources. This theory, however, does not argue for unlimited government liability; to the contrary, it also provide a justification for many of the immunities that limit government liability.


Monday, January 30, 2006
 
Constitutional Abstraction and Originalism I've been thinking and reading a good deal about constitutional theory recently, and coincidentally have come across several versions of a familiar argument against originalism. It goes something like this:
    The constitution includes abstract and general provisions like the equal proctection clause and the due process clauses of the fifth and fourteenth amendments. The very generality and abstraction of these clauses indicates that they were intended to be interpreted as general principles rather than as particular rules. Therefore, the framers could not have intended that their own intentions about particular issues should guide the process of constitutional interpretation and construction.
It struck me this morning that this argument is horrendously bad--a real stinker, as they say. Consider:
    First, this is an originalist argument. It says that the purpose and public meaning of the general and abstract clauses of the constitution are a guide to how they should be interpreted. This is an originalist move; not an anti-originalist move.
    Second, this argument conflates the crucial distinction between what can be labeled original meaning originalism and original intent originalism. With few exceptions, contemporary originalists believe that the relevant inquiry is into the original public meaning of the constitution--not into the expectaitons or intentions of the framers with respect to how the constitution should or would be applied. Ironically, the move presupposes the relevance of both original public meaning and original intentions as it attempts to argue against them.
    Third, this argument is usually offered without the necessary supporting evidence. The constitution uses the phrase "equal protection of the laws" and "due process of law." Those phrases might be construed as general and abstract principles of equality and fairness, but they might not. Either phrase, or both, might have a relatively particular, sharp edged meaning. Whether they do or not cannot be answered by hand waving. You need to dig into the text and evidence about the public meaning of the phrasss at the time they were drafted and adopted.
    Fourth, the argument does not establish that expectations about application are irrelevant to constructiona and interpretation--merely that they would be relevant in a particular fashion. For example, even if the equal protection clause establishes some kind of equality principle, the question remains, "What principle?" Assume that it is possible that the idea was to establish judicial license to articulate some conception of equality and that the clause embodies only the general concept. (I am deploying the well known concept/conception distinction, best known from Rawls and Dworkin.) Evidence about expectations and intentions would be relevant to the question whether the "concept of equality" was the original public meaning and, if so, what the even the general concept meant.


 
Monday Calendar
    Rutgers-Camden Law: Larence Solum, The Supreme Court in Bondage: Constitutional Stare Decisis, Legal Formalism, and the Future of Unenumerated Rights. See you there!
    UCLA Law: Professor Bill Henderson Indiana University School of Law-Bloomington, "An Empirical Study of Single-Tier versus Two-Tier Partnerships in the AM Law 200"
    Hofstra Law: Seth Harris, New York Law School, “Law, Economics, and Accommodations in the Internal Labor Market”
    NYU Law: Richard Primus.


 
Patterson on Morawetz on Wittgenstein Dennis Patterson (Rutgers University School of Law, Camden) has posted Wittgenstein on Understanding and Interpretation (Comments on the Work of Thomas Morawetz) (Philosophical Investigations, Vol. 29, No. 2, April 2006) on SSRN. Here is the abstract:
    Wittgenstein’s distinction between understanding and interpretation is fundamental to the account of meaning in Philosophical Investigations. In his discussion of rule-following, Wittgenstein explicitly rejects the idea that understanding or grasping a rule is a matter of interpretation. Wittgenstein explains meaning and rule-following in terms of action, rejecting both realist and Cartesian accounts of the mental. I argue that in his effort to employ Wittgenstein’s views on meaning and rule-following, Professor Morawetz embraces the position Wittgenstein rejects. In the course of making his case for law as a “deliberative practice,” Professor Morawetz embraces interpretation as a fundamental element of human practices, thereby taking up precisely the view Wittgenstein rejects.
I always read Patterson.


 
Garrett & Vermeule on Budget Process Transparency Elizabeth Garrett and Adrian Vermeule (University of Southern California - Law School and University of Chicago Law School) have posted Transparency in the Budget Process on SSRN. Here is the abstract:
    Budget procedures are often adopted or changed to improve "transparency" in budgeting. This phrase can refer to two different, although related, stages of the budget process. First, transparency may refer to the outputs of budgeting; here the ideal is that the tradeoffs inherent in a budget should be made clear, salient and understandable to policy makers and the public. Second, transparency may refer to the inputs of budgeting; here the ideal is to ensure that the decision-making process is itself conducted in public. This paper focuses on the second concept of budget transparency - the degree to which important budgeting decisions are made in public and in open deliberation and debate. We identify an ideal transparency regime for the federal budget process, one that optimizes the benefits and costs of transparency and opacity. Two institutional-design tradeoffs are critical. First, transparency allows the public, and others who bring information to the attention of the public such as the media and challengers, to monitor elected officials and hold them accountable. However, it also allows interest groups, whose interests may not be congruent with the larger public interest, to monitor legislators. Because interest groups are better organized than the public, transparency may unduly empower those representing minority interests at the expense of overall welfare. We propose some techniques of transparency - such as delayed disclosure, which provides information some period of time after the budgeting decision has been made - that empower the voters while reducing the ability of interest groups to influence outcomes. Second, we discuss the effect of transparency on legislative arguing and legislative bargaining. Transparency deters self-interested bargains, but can also encourage posturing and inflexibility that produces bad deliberation. We propose that opacity is generally beneficial at earlier stages of the budget process, as where committees develop the macro-level allocations embodied in the concurrent budget resolution, while transparency is desirable at later stages of the process, when committees engage in concrete bargaining. Finally, we discuss various institutional constraints and second-best problems at the implementation stage, including the question whether politics will block adoption of the optimal transparency framework, the risk that transparency will be circumvented by collusion, and the risk that opacity will be undermined by leaks. Although these problems are serious, we conclude that none is insuperable.
A very interesting paper by two of the best.


 
Broughton on Capital Punishment J. Richard Broughton (United States Department of Justice - Capital Case Unit) has posted The Second Death of Capital Punishment on SSRN. Here is the abstract:
    This paper seeks to reexamine, and to reformulate, the terms of our national capital punishment dialogue by approaching death penalty jurisprudence as a problem of constitutional structure and form. As a factor contributing to the incremental demise of capital punishment in the United States, omnipotent and omniscient judicial regulation of capital sentencing has significant consequences for the political institutions responsible for controlling the people in our constitutional design. Examining the Supreme Court's recent categorical exemption cases, this paper confronts the raw moral judgments and political preferences that define the Court's immodest understanding of its own authority under the Eighth Amendment. It also examines recent capital habeas cases to demonstrate that the Court may be softening the rigorous standards for habeas relief especially for capital cases. Ultimately, these actions have weakened the death penalty and, more importantly, our political institutions. By serving as a forum for determining which criminal punishments are morally right and desirable, and by compromising the integrity of legal structures that safeguard vital state criminal law interests, the Court diminshes the essential distance that the Constitution places between the government and the governed, and between the institutions that govern. It also undermines the authority of the political branches as the primary institutional mediums for filtering out public passions and building coalitions for responsible democratic action to control the people. The paper therefore urges a greater awareness of, and endorses a constitutional law that safeguards, formal institutional arrangements.


 
Raustiala & Sprigman on the Piracy Paradox and Fashion Design Kal Raustiala and Chris Sprigman (University of California, Los Angeles - School of Law and University of Virginia - School of Law) have posted The Piracy Paradox: Innovation And Intellectual Property In Fashion Design on SSRN. Here is the abstract:
    The orthodox justification for intellectual property is utilitarian. Advocates for strong IP rights argue that absent such rights copyists will free-ride on the efforts of creators and stifle innovation. This orthodox justification is logically straightforward and well reflected in the law. Yet a significant empirical anomaly exists: the global fashion industry, which produces a huge variety of creative goods without strong IP protection. Copying is rampant as the orthodox account would predict. Yet innovation and investment remain vibrant. Few commentators have considered the status of fashion design in IP law. Those who have almost uniformly criticize the current legal regime for failing to protect apparel designs. But the fashion industry itself is surprisingly quiescent about copying. Firms take steps to protect the value of trademarks, but appear to accept appropriation of designs as a fact of life. This diffidence about copying stands in striking contrast to the heated condemnation of piracy and associated legislative and litigation campaigns in other creative industries. Why, when other major content industries have obtained increasingly powerful IP protections for their products, does fashion design remain mostly unprotected - and economically successful? The fashion industry is a puzzle for the orthodox justification for IP rights. This paper explores this puzzle. We argue that the fashion industry counter-intuitively operates within a low-IP equilibrium in which copying does not deter innovation and may actually promote it. We call this the “piracy paradox.” This paper offers a model explaining how the fashion industry’s piracy paradox works, and how copying functions as an important element of and perhaps even a necessary predicate to the industry’s swift cycle of innovation. In so doing, we aim to shed light on the creative dynamics of the apparel industry. But we also hope to spark further exploration of a fundamental question of IP policy: to what degree are IP rights necessary to induce innovation? Are stable low-IP equilibria imaginable in other industries as well? Part I describes the fashion industry and its dynamics and illustrates the prevalence of copying in the industry. Part II advances an explanation for the piracy paradox that rests on two features: induced obsolescence and anchoring. Both phenomena reflect the status-conferring power of fashion, and both suggest that copying, rather than impeding innovation and investment, promotes them. Part II also considers, and rejects, alternative explanations of the endurance of the low-IP status quo. Part III considers extensions of our arguments to other fields. By examining copyright's negative space - those creative endeavors that copyright does not address - we argue can we can better understand the relationship between copyright and innovation.


 
Joseph on "Smart Intelligence" Anne M Joseph (UC Berkeley Law) has posted The Architecture of Smart Intelligence: Balancing Unification and Redundancy in Agency Design and Congressional Oversight (California Law Review, Vol. 94, 2006) on SSRN. Here is the abstract:
    The changes to the intelligence community and its congressional overseers recommended by the 9/11 and WMD Commissions, both those implemented and those not adopted, raise fundamental questions of administrative and constitutional law that cut to the heart of the federal government's effectiveness in addressing two of the most prominent policy imperatives of our time: protecting national security and maintaining core democratic values, including civil liberties, transparency, and accountability. How should agencies and congressional oversight be structured in a system of separated but overlapping powers that aims to protect both national security and central liberal democratic values? Should administrative agencies (or congressional committees) be unified or placed in competition with each other? Answers to these questions are constrained by political realities. As Terry Moe explains, The bureaucracy arises out of politics, and its design reflects the interests, strategies, and compromises of those who exercise political power. Drawing on research in economics, political science, and law, this paper considers three important perspectives on the recommendations to unify intelligence agencies and to consolidate congressional oversight, which have not, so far as I can tell, been applied to intelligence reform rigorously in combination. These perspectives, in addition, have wider application to any possible restructuring of the administrative state. First, what are the most effective structures, taking into account both benefits and costs, of the intelligence bureaucracy and congressional oversight for national security? Second, what structures are politically and legally feasible? It is very difficult, though not impossible, to change jurisdictions of agencies and congressional committees. The Intelligence Reform and Terrorism Prevention Act of 2004 made potentially significant changes to the intelligence community but did not touch congressional boundaries. Third, what structures should a democratic society desire? How does the organization of the intelligence community and congressional oversight affect core liberal democratic values? This paper questions the siren call of unification, in terms of national security effectiveness, political feasibility, and democratic legitimacy, and suggests future avenues for research.


 
Degan on Taxing Commuting Expenses Tsilly Dagan (Bar-Ilan University, Faculty of Law) has posted Ordinary People Necessary Choices on SSRN. Here is the abstract:
    This Article reexamines some fundamental tax policy concepts through the analysis of commuting expenses. It challenges the well-entrenched distinction between personal and business expenses. This distinction, I argue, conceals fundamental normative choices that should be openly discussed. Indeed, this Article suggests that resorting to the substantive grounds for the allowance of certain expenses explicitly is normatively superior to using the seemingly technical personal-business distinction. Furthermore, such a strategy provides a more workable doctrinal framework. In its search for appropriate substantive foundations, the Article draws not only on the conventional considerations of efficiency and distributive justice, but also on considerations that are novel to tax policy - identity and community. This Article uses commuting expenses as a case study. A critical examination of tax law's disallowance of commuting expenses demonstrates the futility of the business-personal distinction. In its stead, the Article analyzes the economic efficiency of allowing a deduction for commuting expenses; it uses the vast empirical literature on commuting to demonstrate the significant distributive questions involved; and it highlights the importance of community and identity considerations to the discourse of deductions in general and of commuting expenses in particular. Finally, this Article suggests a mechanism that would properly address the distributive and efficiency concerns while fully tackling identity and community issues.


Sunday, January 29, 2006
 
Legal Theory Calendar The Calendar is still in progress.
    Monday, January 30
      Rutgers-Camden Law: Larence Solum, The Supreme Court in Bondage: Constitutional Stare Decisis, Legal Formalism, and the Future of Unenumerated Rights. See you there!
      UCLA Law: Professor Bill Henderson Indiana University School of Law-Bloomington, "An Empirical Study of Single-Tier versus Two-Tier Partnerships in the AM Law 200"
      Hofstra Law: Seth Harris, New York Law School, “Law, Economics, and Accommodations in the Internal Labor Market”
      NYU Law: Richard Primus.
    Tuesday, January 31
      Marquette Law: Eric Goldman, Marquette University Law School, Placing and Marketing Scholarship
    Wednesday, February 1
      University of London, Institute of Education: Patricia White (IOE), Political Forgiveness and Civic Education.
      NYU Legal History: Claire Priest, Northwestern, “Creating an American Property Law: Alienability and its Limits in American History”
      Ohio State Law: Omri Ben-Shahar, Contracts Without Consent
      UCLA Legal History: Dennis J. Ventry, Jr., UCLA, "Family Tax Inequities and Community Property Law, 1913-1930"
    Thursday, February 2
      Oxford Jurisprudence Discussion Group: Kevin Toh, Raz on Detachment and Describability
      Stanford Law & Economics: Daniel Kelly (U.S. Court of Appeals for the Second Circuit), "The 'Public Use' Requirement in Eminent Domain Law: A Rationale Based on Secret Purchases and Private Influence"
      Lewis & Clark Law: Anita Bernstein, Emory, Keep It Simple: An Explanation of the Rule of No Recovery for Pure Economic Loss
      Boston University Law: Mike Meurer and Maureen O'Rourke, Contract and Coordination Failure: Mandatory and Prohibited Terms in Intellectual Property Licenses.
      Brooklyn Law: Wendy Seltzer, Brooklyn Law School, The Chilling Effects of Legal Threats to Online Speech—and Ways to Warm the Air.
      Florida State Law: Suzanna Sherry, Vanderbilt University Law School.
      Fordham Law: Thomas H. Lee, Fordham & Visiting Columbia, "The World Balance of Power and the Evolution of U.S. Foreign Relations Law"
      UC Berkeley, Kadish Center: Lawrence Sager, Texas.
      NYU Colloquium on Tax Policy & Public Finance: Jason Furman, NYU Wagner School, “Coping With Demographic Uncertainty.”
      Northwestern Law, Advanced Topics in Taxation: Steven A. Bank, Professor of Law, University of California at Los Angeles, "Dividends and Tax Policy in the Long-Run"
      Oxford Comparative Law Discussion Group: Dr Péter Gárdos, Fundamental Conceptions of the Basis of Civil Liability: Insights from the Draft Hungarian Civil Code
    Friday, February 3
      University of Georgia Law: Jim Rossi (Florida State): Approaching Deference for State Regulators in Antitrust Law Through Chevron.
      Notre Dame Law: Ernest A. Young, Texas.
      Georgetown Law & Economics: Jonathan Klick, Florida State University College of Law, "Incomplete Contracts and Opportunism in Franchising Arrangements: The Role of Termination Clauses"
      Boston College Law: Michelle J. Anderson, Professor of Law, Villanova University School of Law.
      University of Illinois Law: East Asia Undisciplined: Law, Economics, and Institutions in East Asia
        12:30 Ethan Michelson, University of Indiana, Guanxi in the Chinese Legal System 12:55 Jacques deLisle, Law, University of Pennsylvania, TBA 1:30 Jonathan Marshall, Political Science, Carthage College, Institutional Barriers, Cause Lawyers, and Citizen Litigation in Japan 2:00 Kentaro Koga, Illinois, Bank Relations and Security Analyst Forecasts among Japanese Firms 2:30 Glenn Hoetker, Illinois, Supplier Relationships in the Japanese Economy
    University of Florida, Conference: DATA DEVOLUTION: Corporate Information Security, Consumers and the Future of Regulation.


 
Legal Theory Lexicon: Balancing Tests
    Introduction Balancing tests are ubiquitous in American law. From the Due Process Clause to the Freedom of Speech and from the federal joinder rules to personal jurisdiction, U.S. law makes the outcome of legal disputes dependant on the balancing of various interests and factors. Law students quickly become familiar with the idea of a balancing test, and moreover, are likely to quickly develop a cynical attitude about their constraining power. "So it's just subjective?"--is a question often asked in classroom discussion when a balancing test is announced. This post provides a rough and ready introduction to the theoretical issues raised by the notion of a "balancing test." As always, my intended audience consists of law students, especially first years, with an interest in legal theory.
    Case-by-Case versus Systemic Balancing The first distinction to master when thinking about balancing tests is that between case-by-case and systemic balancing. When a court adopts a case=by-case balancing test, the test is applied to each case, one case at a time. For example, in personal jurisdiction law, a case-by-case balancing test is used to determine whether assertions of personal jurisdiction are consistent with the Due Process Clause. But not all balancing is done on a case-by-case basis. For example, Mathews v. Eldridge announced a balancing test for determining whether pre-deprivation hearings are required by Due Process. This balancing test is applied to general categories (types) of deprivations. Once it has been determine that the balancing test does not require a hearing in category (e.g. Social Security disability benefit cases), the result is a categorical rule that can be applied to the category without further balancing.
    There is, of course, an analogy between the difference between case-by-case versus systemic balancing and the difference between act and rule utilitarianism. Act utilitarianism makes the rightness of an action depend on the consequences of that individual action. Rule utilitarianism makes the rightness of an action depend on whether the action conforms to the system of rules that would produce the best consequences. This analogy points to a larger concept--the scope of decision problem. Many legal theories assume that the scope of decision is an individual action or case, whereas others look to individual legal rules and yet others look to types of rules.
    Here is a nifty move, made famous by David Lyons (the legal philosopher who teaches at Boston University). Lyons argued that rule utilitarianism could be shown to be extensionally equivalent to act utilitarianism. His argument was beautifully simple. Take a rule and a particular action that would be required by act utilitarianism but forbidden by the utility maximizing rule. Now imagine an exception to the rule that would allow the utility maximizing action to be treated differently. The new rule-plus-exception produces more utility than the old rule. Hence rule utilitarianism requires the new rule. Lyons argued that we can iterate this move until rule utilitarianism and act utilitarianism require exactly the same results.
    One more point about case-by-case versus systemic balancing. Both kinds of balancing can be done ex post (backwards looking) or ex ante fowards looking. Take the Learned Hand balancing test for negligence. This test requires us to compare the cost of safety (ex post) against the benefits (ex post). This is ex post, case-by-case balancing. But when courts decide whether to issue an injunction, they sometimes "balance the equities," ex ante, asking whether the injuries done if the injunction does not issue will outweigh those that will result if the injunction is entered--in the future. Likewise, systemic balancing can be done either ex post or ex ante.
    What is Balanced? Yet another question that must be faced by any balancing test is "What is balanced?" Courts seem to think that just about any sort of interest or factor can be balanced. One kind of balancing test is represented by the International Shoe test for personal jurisdiction. This test balances interests--i.e. the interest of the plaintiff in the forum, the interest of the forum in the dispute, and so forth. Another kind of balancing test takes a varity of so-called factors into account: "prejudice to the defendant," "the impact on nonparties," and so forth in the case of tests for mandatory joinder. Properly speaking, such factors cannot really be balanced. Interests belong on the same scale--at least if they are the right kind of interests, but "factors" are usually considerations that bear in complex ways on a decision. The integration of multiple factors into a decision may involve balancing, but it also may involve reasoning that doesn’t actually weigh and compare commensurables.
    The Commensurability Problem This last point about balancing tests leads to a very fundamental idea in legal theory. Some approaches to moral theory make all ultimate values commensurable. In contemporary law and economics, for example, one approach reduces all value to preference-satisfaction, which then can be weighed via a Bergson-Samuelson social utility function. W(x) = F {U1(x), U2(x), . . UN(x)}, where F is some increasing function, U1 is the utility of state of affairs X for individual number 1, and so forth. Although some forms of consequentialism have the property of making all values commensurable, many moral theories do not have this property. Deontological ethics and virtue ethics, for example, generally are interpreted as maintaining that not all values are commensurable and hence as denying that balancing is even possible in some choice situations.
    The commensurability problem also provides a nifty move for legal theorists. If someone proposes a balancing test, ask yourself if the things that it requires to be weighed are such that they really can be measured on the same scale. If not, then the proposed balancing test simply will not be able to do the work assigned to it.
    Balancing Tests and the Rule of Law Yet another issue concerning balancing tests is the fancy version of the law student's intuition that balancing tests are subjective. Justice Scalia, for example, has argued that balancing tests undermine the rule of law because of their subjectivity and elasticity. If we believe that the rule of law values--certainty and predictability of the law--are very great social goods, then we have a general reason to prefer categorical rules to balancing tests. On the other hand, some balancing tests may be actually be more predictable than some rules with respect to a particular problem. For example, a case could be made that the "purposeful availment" component of the International Shoe test for personal jurisdiction is more subjective than the multifactor balancing component of the Shoe test. Some rules are very fuzzy; some balancing tests are quite precise.
    Conclusion Balancing tests are so common in American law, that you might begin to take them for granted, but that would be a mistake. Almost every balancing test raises interesting issues of legal theory. I hope this post has provided you with the tools to begin asking those questions.
For a collection of all the Legal Theory Lexicon posts, surf here.


Saturday, January 28, 2006
 
Legal Theory Bookworm The Legal Theory Bookworm recommends Educating Oneself in Public : Critical Essays in Jurisprudence by Michael S. Moore. Here's a blurb:
    The eleven essays in Educating Oneself in Public: Critical Essays in Jurisprudence constitute an education in the Anglo-American jurisprudence of the second half of the twentieth century. The book examines both the thought of major figures such as H. L. A. Hart, Joseph Raz, Ronald Dworkin, Lon Fuller, and Richard Rorty, and the general themes of major movements such as legal realism, post-modernism, and pragmatism. Despite this focus on the thoughts of others the book is not a survey but is a critical probing of particular ideas often attributed to such figures. Detailed depth of understanding is sought about: Hart's conception of a `general jurisprudence' that describes law in general; Dworkin's conception of an `internal jurisprudence' that interprets the concept of law of our legal culture; Fuller's ideal of a `functional jurisprudence' that seeks the essence of law in the values it serves; the place of rules in legal and moral reasoning; Raz's idea that laws give `exclusionary reasons' to legal actors subject to such laws; how judges should reason, according to the legal realists; whether there are right answers to all disputed law cases; whether behind the obvious law of legal rules there can exist an unobvious law of legal principles; Finnis's conception of the common good as the function law uniquely serves; in what sense law practice and legal theory are interpretive activities; whether all knowledge, or some discrete realm of knowledge, is peculiarly interpretive in character. Michael Moore's views on each of these topics are detailed and original, even if the springboards for each discussion are the writings of those who introduced such topics into modern discussions. The introductory chapter includes responses by many of the figures examined in the other essays, together with the author's rejoinders.
Moore is superb, and these essays address many of the central topics in contemporary philosophy of law. Highly recommended!


 
Download of the Week The Download of the Week is Law, Science, and Morality: A Review of Richard Posner's The Problematics of Moral and Legal Theory by John Mikhail. Here is the abstract:
    In The Problematics of Moral and Legal Theory, Judge Richard Posner argues that moral and legal theory are largely worthless in their own right and have little if anything to contribute to legal scholarship. In this review essay, I first summarize the major themes of Problematics and then evaluate Posner's arguments on their merits. Among the main points I make are the following. First, the most conspicuous feature of Problematics is Posner's failure to engage in any serious way with the model of moral theory described by Rawls in A Theory of Justice. In keeping with a traditional analogy, Rawls’ model is organized around a series of comparisons between rules of justice and rules of grammar. The model begins from the empirical assumption that each person develops a sense of justice under normal circumstances, an assumption it takes to be the best explanation of the moral analogue of what linguists and cognitive scientists call the projection problem. The model then identifies the first task of moral philosophy to be an accurate description of the sense of justice, thereby solving the moral analogue of what linguists and cognitive scientists call the problem of descriptive adequacy. The model follows the standard practice of the cognitive sciences in distinguishing a person’s operative moral principles (those principles actually operative in her exercise of moral judgment) from her express principles (those principles she verbalizes in an effort to explain or justify her judgments). Finally, the model draws a distinction between moral performance (a person's actual exercise of moral judgment in concrete situations) and moral competence (the mental capacity or cognitive system underlying those judgments) in a sense analogous to the linguistic competence-performance distinction first introduced by Chomsky in Aspects of the Theory of Syntax and now used throughout the cognitive sciences. Posner's failure to address these and other plausible features of Rawls' model vitiates much of what he says in Problematics about morality and moral theory. Second, Posner's defense of moral relativism is undermined by his mistaken assumption that alleged moral universals such as "murder is wrong" are nothing more than vacuous tautologies. This assumption is false: the proposition "murder is wrong" is not analytic, but synthetic - as Locke and Hume, among others, recognized, and as any well-developed criminal code will attest. Moreover, Posner's contention that the prohibition of murder is not universal is not only unfounded but contradicted by the very sources he cites in his book. Finally, Posner fails to come to terms in any serious way with the hypothesis that human beings share a sense of justice rich enough to support a system of universal human rights and obligations, including the right not to be murdered. This hypothesis is plausible and supported by a considerable body of empirical evidence. Throughout Problematics, Posner adopts the mantle of science and pokes fun at philosophers for being unscientific. But, in truth, it is his relativism, not their universalism, which seems out of touch with modern science.
Download it while its hot!


Friday, January 27, 2006
 
Friday Calendar
    Boston College Law: Steven L. Schwarcz, Stanley A. Star Professor of Law & Business, Duke University School of Law.
    Oxford Centre for Competition Law & Policy: Peter Willis & Taylor Wessing, The privilege against self-incrimination in competition investigations
    All Souls College, Oxford, Neill Lecture: The Honourable Michael Beloff QC, Paying the Judges - Who, Whom, How Much and Why?
    Vanderbilt Faculty Workshop: Don Herzog, University of Michigan Law School, "The Kerr Principle, State Action and Legal Rights"
    University of Syracus, Sawyer Law and Politics Program Research Workshop: Petra Hejnova, Maxwell School, "Women's Mobilization and Democratic Transitions: A Study of Regional Patterns"
    University of Georgia Law: Ronald Rotunda (George Mason), The Detainee Cases of 2004 and Their Aftermath
    Michigan State University: THIRD ANNUAL INTELLECTUAL PROPERTY & COMMUNICATIONS LAW AND POLICY SCHOLARS ROUNDTABLE


 
Rossi on Gardner on State Constitutions Jim Rossi (Florida State University College of Law) has posted The Puzzle of State Constitutions on SSRN. Here is the abstract:
    In his new book, 'Interpreting State Constitutions: A Jurisprudence of Function in a Federal System' (University of Chicago Press 2005), James Gardner positions state constititions and their interpretation within federalism, in contrast to others who see state constitutions as largely independent of the federal constitution or as meriting primacy as their own interpretive texts. As Gardner suggests, understanding state constitutions within the larger national system challenges theorists to focus on the function that state constitutions, and sub-national constitutions more generally, perform within a national system. Gardner argues that a functional approach licenses courts to interpret state constitutions instrumentally to facilitate state resistance to national power. He endorses a rebuttable presumption that construes state judicial power to resist federal authority broadly, envisioning a bolder role than alternative theories for state courts in promoting federalism. After summarizing Gardner's approach, I will discuss two possible objections to it. First, his account is based on the primary goal of federalism as protecting liberty (broadly defined) against intrusion by national authorities. This liberty-based understanding of federalism, however, ignores or downplays that federalism may be understood in ways that are agnostic towards national authority. A broader understanding of federalism would give state courts clearer direction in implementing the goals of federalism and also would allow Gardner to extend his interpretive theory to subnational constitutional interpretation contexts outside of the U.S., where the protection of liberty may not have claim to being a primary historical rational for the recognition of state power. Second, even if we accept Gardner's account of federalism, his approach sees the core interpretive problem of state constitutionalism as centered around judicial power to resist the reach of national power. This court-centered approach downplays other important features of state constitutionalism. For example, as the recent disputes over same-sex marriage in California and Oregon remind us, other branches of government, such as the legislature or executive, could have a superior claim to interpreting a state constitution. Further, in some contexts there are strong reasons for understanding state constitutions as being focused on facilitating, not resisting, federal power. To the extent Gardner’s approach views courts as "resistors" rather than "facilitators" of national authority, his interpretive tools may be limited in their ability to serve the goals of state constitutions - as where a state branch other than a court resists federal power and courts support it. Gardner’s interpretive account does little to help courts solve such conflicts, thus inviting courts and scholars to do further interpretational groundwork. Notwithstanding these concerns, the broader framework Gardner lays out is the strongest starting place for a theory of state constitutional interpretation. His innovations for state constitutionalism allows scholars and courts to conceptualize a state constitution as something more than a positivist text in a jurisdictional vacuum, without rendering state constitutions irrelevant given the existence of national power in a federalist system. Gardner's functionalist approach and presumptions should be taken as a challenge for state courts, even though I believe that a mature enterprise of state constitutional interpretation must do more than adhere to a liberty-based notion of federalism or focus exclusively (or necessarily even primarily) on judicial interpretation.
I always find Rossi's work to be illuminating and the theory of state constitutionalism is an important and (in my opinion) undertheorized topic. Highly recommended.


 
Ryan on Breyer and Sunstein James E. Ryan (University of Virginia School of Law) has posted Does It Take a Theory? Originalism, Active Liberty and Minimalism (Stanford Law Review, Forthcoming) on SSRN. Here is the abstract:
    This review essay examines two recent books, Active Liberty by Justice Stephen Breyer, and Radicals In Robes by Professor Cass Sunstein, and it assesses them in relation to their main target – Justice Scalia and his brand of originalism. Both books are self-consciously designed to influence public debate over how best to interpret the Constitution, a debate that originalists have dominated for the last fifteen years or so. There is much to admire in these books. Both are engaging and at times quite provocative. Justice Breyer’s book is candid and smart. He offers no pat answers or simplified formula for deciding cases, which is to his credit and speaks well of his intellectual honesty. Professor Sunstein’s book, in turn, is quite effective in poking holes in the form of originalism he dubs “fundamentalism” and in highlighting the numerous instances where “fundamentalists” like Justices Scalia and Thomas seem to deviate from their avowed methodology. For those who have been waiting for a public response from the left, these books are a sight for sore eyes, if for no other reason than they constitute an attempt to push back at the level of ideas. And yet the books fall a bit flat, at least in the eyes of this (sympathetic) reader. The basic problem is suggested by the title of this review: neither Justice Breyer nor Professor Sunstein offers and justifies a theory of constitutional interpretation. Justice Breyer comes closer than Professor Sunstein. But in my view, neither Active Liberty nor Radicals in Robes explains and justifies, in terms plain enough to influence public debate, how judges ought to decide cases. In their haste to distance themselves from originalism, moreover, both Justice Breyer and Sunstein seem to distance themselves from the text of the constitution. These seem to me fatal missteps in their effort to persuade a general audience to reject originalism and embrace an alternative. In addition, both books only partially succeed in their critique of originalism. Breyer and Sunstein focus on one form of originalism, which entails looking to the narrowly conceived expectations of the framers. While this may indeed be the way originalism is occasionally practiced by Scalia and others, it is not the only version of originalism conceivable. Nor is it necessarily the one most faithful to the text of the Constitution, which, at the end of the day, is the point of originalism. What is ironic about both books is that each contains seeds of an alternative, originalist-oriented approach. But neither Breyer nor Sunstein explores whether that alternative might be superior both to the originalism they criticize and the approaches they advocate. Indeed, absent a compelling alternative theory, one wonders if Breyer and Sunstein should have sought to mend rather than end originalism.
And here is a bit more from the text itself:
    [T]here can be a difference between meaning and expectations. The founding generations may have expected particular results to follow from constitutional language. But these expectations may or may not be consistent with the actual and proper meaning of the text. They might be the result of misinterpretations of language or time-bound prejudices and beliefs that obscure the proper application of the text. Moreover, it seems likely that, given the language they used in many provisions, the founding generation recognized that some constitutional provisions established general principles that would not themselves change, but might have different applications in different contexts.36 Put differently, the founders would have recognized, as we should, that their specific expectations did not settle the meaning of the text.
And a bit more from later in the review:
    If [originalisms tendency to produce bad policies] is indeed one of [Sunstein and Breyer's] arguments against originalism, it is both overblown and potentially self-defeating. It is overblown insofar as it ignores the role of stare decisis. Sunstein is guiltier on this score, as his parade of horribles assumes that originalist judges are willing to overturn precedent in order to achieve their more perfect vision of the Constitution. Yet as he acknowledges, most judges, as well as Justice Scalia, believe in stare decisis.86 So it is hard to agree that the sky would necessarily fall if the Supreme Court became more originalist in orientation while at the same time maintaining a healthy respect for stare decisis. What is more, it is hard to see how Sunstein’s own approach -- or any single coherent approach to the Constitution, for that matter -- would necessarily lead to all or even most of the results that Sunstein now wants to preserve. It seems unfair to imagine originalism without stare decisis and catalogue the awful results, without engaging in a similar thought experiment where minimalism is the approach and there are no precedents to preserve or build from.
Highly recommended! Download it while its hot!


 
Greeen on Employment Discrimination Mediation Michael Z. Green (Texas Wesleyan University) has posted Tackling Employment Discrimination With ADR: Does Mediation Offer A Shield for the Haves or Real Opportunity for the Have-Nots? (Berkeley Journal of Employment and Labor Law, Forthcoming) on SSRN. Here is the abstract:
    This paper explores the benefits of using mediation in addressing employment discrimination disputes. It highlights the difficulties for those who expect too much out of mediation by expecting it to transform relations while exposing concerns with those who limit mediation's potential by supporting mythical notions about mediators being neutral. The paper suggests that employers develop comprehensive conflict resolution systems and include mediation as a process that is case-specific and focused on the needs of all parties and not the needs of the mediator.


 
White on Jackson's Youngstown Opinion Adam White has posted Justice Jackson’s Draft Opinions In The Steel Seizure Cases on SSRN. Here is the abstract:
    Justice Robert H. Jackson's opinion in Youngstown Sheet & Tube - also known as The Steel Seizure Cases - is, of course, no ordinary lone concurrence. As the nation debates executive action in the Global War on Terror, that opinion has grown ubiquitous in legal discourse. Jackson's analysis - including the famous tripartite framework for the evaluation of Executive action - now borders on conventional wisdom. Nonetheless, as Jackson's draft opinions reveal, that analysis did not spring fully-formed from the Justice's mind. Rather, it was the product of his deliberation, draft, and re-draft. His papers reveal not only the substantive evolution of his views, but also his changing efforts to justify the wartime actions of FDR as well as his own participation in the case. His drafts reflect his own ambivalence toward judicial limitation on the powers of the President, particularly in his reference to Korematsu, as well as his deep concern - relatively muted in his final opinion - that Congress would be unwilling to check the President. In sum, they warn of the folly inherent in reducing Jackson's views to a bullet-point version of his tripartite framework. Jackson's views - like the institutions he analyzed - are not so simple.
I've always been fascinated by Jackson's concurrence--one of the most important foundations of contemporary separation of powers doctrine, but (in my opinion) a horribly wrong turn. White's piece sheds light on Jackson's own ambivalence about this case.


 
Kaplan on Tax Policy and Family Care for Older Adults Richard Kaplan (Illinois) has posted Federal Tax Policy and Family-Provided Care for Older Adults (Virginia Tax Review (vol. 25, no. 2), Fall 2005 issue, pp. 509-562) on SSRN. Here's the abstract:
    An issue of enormous and increasing significance to the vast majority of older Americans, and their families, is who will care for them as they age and require assistance in their daily lives. Such assistance is usually denominated "long-term care," because it is a chronic phenomenon that is not limited to some specific medical incident. Such care can be provided in a variety of settings, depending upon the intensity of the older person's needs and the medical nature of those needs, but 80% of long-term care is provided by family members and close friends on an informal and typically unpaid basis. This phenomenon reflects a wide range of cultural norms in this country, as well as certain economic realities. As more Americans attain ages at which some assistance with daily life activities is typical, the federal tax treatment of family-provided elder care will become increasingly important. This Article considers how the provision of informal care for older family members is taxed presently and how such treatment should be changed in light of changing family dynamics. It begins with a brief description of what informal elder care consists of and the impact of such care responsibilities on the family members who provide that care. The Article then considers how courts have assessed informal caregiving in the context of gratuitous transfers by the recipients of such care. It then examines the tax treatment of informal caregiving as it relates to the personal exemption and the deduction of medical expenses. The Article next analyzes a number of recent legislative proposals that would provide tax credits for family caregivers. The Article concludes with some policy responses to this growing societal concern.


Thursday, January 26, 2006
 
Thursday Calendar
    Oxford Jurisprudence Discussion Group: Alan Norrie, War crime and the failure of law: Arendt, Jaspers and the ontology of guilt
    Boston University Law: David Walker, Financial Accounting, Corporate Behavior, and the Promise of Offensive Accounting
    Brooklyn Law: Margaret A. Berger, Brooklyn Law School, Vioxx: A Roadmap of Fissures in Our Legal and Healthcare Systems
    Florida State Law: Charlene Luke, Florida State University School of Law
    UC Berkeley, Kadish Center: Charles Beitz, Professor of Politics, Princeton University
    Kings College, London: Angus Dawson (Keele) Children's vaccinations, best interests and parental disagreement.
    Forum for European Philosophy, Institut Français, London: Rupert Read (UEA), Rawls and Habermas: Liberalism is inherently inegalitarian and unsustainable.
    Oxford EC Law Discussion Group & Oxford Comparative Law Discussion Group: Vanessa Mak, Harmonisation of European Contract Law: Problem Areas in the Sale of Goods Law
    UCLA Legal Theory Workshop: Annelise Riles.
    UCLA Tax Policy and Public FInance Workshop: Michael Livingston, Rutgers School of Law - Camden, Rendering Unto Caesar: Religious Perspectives on Progressive and Flat Taxation
    University College London, Current Legal Problems Lecture: Mr Gavin Phillipson (King's College London), "Deference, Discretion and Democracy: Judicial Reasoning under the Human Rights Act"
    University of Michigan, Law & Economics: Richard Nelson, Columbia, The Market Economy, and the Scientific Commons
    University of Texas Colloquium on Constitutional and Legal Theory: Jane Schacter (Wisconsin, Stanford), "Political Accountability, Proxy Accountability, and Democratic Legitimacy" & "Democracy Diminished"
    Yale Law Economics & Organizations: Professor James Poterba, MIT, Economics, Defined Contribution Plans and Retirement Saving Risk and also here.


Wednesday, January 25, 2006
 
Wednesday Calendar
    University College London, Colloquium in Legal and Social Philosophy: Janet Radcliffe Richards (University College, London) Equality of opportunity
    University College London, International Law Society: Professor Christine Chinkin, LSE, "Gender and international peace and security"
    Philosophy of Education, London: John Marshall, Multiculturalism and Culturual Plurality Revisited.
    NYU Law & History: Barry Friedman, Jacob D. Fuchsberg Professor of Law, NYU School of Law, "Neither Force Nor Will: The Popular Foundations of Judicial Review"
    Oxford, The Ethox Centre and Oxford Genetics Knowledge Park Seminar Series 2006: Professor Bartha Maria Knoppers, "The Public Population Project in Genomics (P3G) International Consortium for Linking Population Genomic Studies: What it is and what it offers."
    Oxford Criminology Seminar Series 2005/06: Julian Roberts, The Virtual Prison: Community Custody and the Evolution of Imprisonment
    Oxford Law Faculty: Jeremy Horder, A New Homicide Act for England and Wales? (Consultation Paper no.177)
    University of Toronto: Lisa Philipps, York University, Partners in Business, Partners in Love: Tax Law and the Two-Person Career
    Villanova Law: David Wilkins, Harvard Law School.


 
Mikhail on Posner John Mikhail (Georgetown) has posted Law, Science, and Morality: A Review of Richard Posner's The Problematics of Moral and Legal Theory on SSRN. Here is the abstract:
    In The Problematics of Moral and Legal Theory, Judge Richard Posner argues that moral and legal theory are largely worthless in their own right and have little if anything to contribute to legal scholarship. In this review essay, I first summarize the major themes of Problematics and then evaluate Posner's arguments on their merits. Among the main points I make are the following. First, the most conspicuous feature of Problematics is Posner's failure to engage in any serious way with the model of moral theory described by Rawls in A Theory of Justice. In keeping with a traditional analogy, Rawls’ model is organized around a series of comparisons between rules of justice and rules of grammar. The model begins from the empirical assumption that each person develops a sense of justice under normal circumstances, an assumption it takes to be the best explanation of the moral analogue of what linguists and cognitive scientists call the projection problem. The model then identifies the first task of moral philosophy to be an accurate description of the sense of justice, thereby solving the moral analogue of what linguists and cognitive scientists call the problem of descriptive adequacy. The model follows the standard practice of the cognitive sciences in distinguishing a person’s operative moral principles (those principles actually operative in her exercise of moral judgment) from her express principles (those principles she verbalizes in an effort to explain or justify her judgments). Finally, the model draws a distinction between moral performance (a person's actual exercise of moral judgment in concrete situations) and moral competence (the mental capacity or cognitive system underlying those judgments) in a sense analogous to the linguistic competence-performance distinction first introduced by Chomsky in Aspects of the Theory of Syntax and now used throughout the cognitive sciences. Posner's failure to address these and other plausible features of Rawls' model vitiates much of what he says in Problematics about morality and moral theory. Second, Posner's defense of moral relativism is undermined by his mistaken assumption that alleged moral universals such as "murder is wrong" are nothing more than vacuous tautologies. This assumption is false: the proposition "murder is wrong" is not analytic, but synthetic - as Locke and Hume, among others, recognized, and as any well-developed criminal code will attest. Moreover, Posner's contention that the prohibition of murder is not universal is not only unfounded but contradicted by the very sources he cites in his book. Finally, Posner fails to come to terms in any serious way with the hypothesis that human beings share a sense of justice rich enough to support a system of universal human rights and obligations, including the right not to be murdered. This hypothesis is plausible and supported by a considerable body of empirical evidence. Throughout Problematics, Posner adopts the mantle of science and pokes fun at philosophers for being unscientific. But, in truth, it is his relativism, not their universalism, which seems out of touch with modern science.
Highly recommended!


 
Frost on Judicial Recusal Amanda Frost (American University) has posted Keeping Up Appearances on SSRN. Here is the abstract:
    The laws governing judicial recusal are failing to protect the reputation of the judiciary, as was illustrated by the recent controversy surrounding Justice Scalia's refusal to recuse himself from Cheney v. United States District Court for the District of Columbia. The history of recusal law reveals that each time Congress amends the recusal statutes to expand their scope, judges interpret the legal standards narrowly to avoid disqualification. This article contends that the recusal statutes are ineffective not because the substantive standards for recusal are too limited, but rather because the recusal process operates outside of the traditional adjudicatory model. For example, the very judge whose impartiality is being questioned is expected to raise and decide the question whether his or her own conduct creates the appearance of impartiality, and often makes that decision without issuing any explanation for it. Drawing on the literature locating the judiciary's legitimacy in traditional forms of adjudication, this article suggests that recusal law will only serve its purpose of protecting the judiciary's reputation if it incorporates these core procedural tenets of adjudication into the recusal decision. Specifically, the article proposes procedural reforms such as encouraging an adversarial presentation of the recusal question to an impartial judge who must issue a reasoned decision that will provide guidance for judges in future cases.
This is an important, underwritten, and undertheorized issue. Frost's article is a fine and welcome contribution!


 
More on Open Access Publishing & e-prints Michael Froomkin writes about his Copyright Experiences Wiki--a site that provides information about copyright policies of various legal publishers. It's a Wiki--so you (or we) can share information about various journals. Here's the description from the site:
    Welcome to the Copyright Experiences Wiki The purpose of this website is for legal academics and others to share our copyright experiences with law journals and other legal publishers. As academics, we have an interest in ensuring the widest dissemination of our work. Law Journals tend, however, to use standard-form copyright agreements that reqire a copyright assignment, and impose unreasonable restrictions on our rights to share and re-use our own work. Some law journals, however, are more enlightened. Others, when pushed, will also see the light. Due to the transitory nature of student-run law journal staffs, still others are actually unaware of their own past practices. This site will allow you to learn what other people have been able to persuade law journals to accept. On the pages linked from here, legal writers describe their copyright experiences. The information is as good or bad as what you contribute to it.
And John Oberdiek writes:
    Solove's PDF reprint idea. It turns out that Philosophy & Public Affairs is already doing this -- I believe they just switched over. Indeed, [a colleague] sent me the PDF reprint -- all that PAPA would provide -- of his article in the new issue. ...So maybe philosophers don't have to wait for the Owl of Minerva to take to the sky after all....


Tuesday, January 24, 2006
 
Are Reprints Obsolete?--with an Update Dan Solove has a very interesting post over at Concurring Opinions. Here's a taste:
    So here's my idea. I'm thinking of moving toward a system of electronic reprints. I could send out a PDF version of the final article in an email to everybody in my database. In other words, I'd shift from being a junk mailer to a spammer. . . . In my email, I'd include the text of the letter I would have sent to accompany the reprint, attach the article in PDF format, and possibly include a link to the final version of the paper on SSRN. I'd still order some reprints -- about 50 to 100 -- and offer to send hard copies of the reprints to anybody who requested them. My guess is that I'd get a few people requesting the actual reprint, but most people interested in reading the article would just print it out from the attached digital version.
Solove's post asks whether we would prefer digital reprints. For a long time, my answer would have been no. Why? Because paper is still easier to read. But now, I've switched positions on this. Digital reprints are much better--not because they are more readable (although that's improved a lot with Acrobat's amazing quality), but because they are easy to store and retrieve. Old reprints are very difficult to find. And let's face it, at some point they are lost or tossed. But digital reprints can be organzised, searched, and kept forever. Where do I sign up?
Update: Michael Froomkin comments on Solove's post:
    I think long attachments in bulk mailings are Not Nice. It can have nasty effect on recipient email systems if they get several. And if everyone starts doing it.... No, if you're going to go digital, include a link to an online copy, not an attachment.
Right! There are two solutions:
    1. Two tiers of e-print recipients: (i) secondary interest recipients (everyone in the field), who should get links, and (ii) primary interest recipients (those you cite or discuss or who are working on the topic), who can get the attachment.
    2. With respect to those who you email links, there is the problem of public access. Of course, if you publish in a journal that allows or provides a public access (free, downloadable) electronic version, this is not a problem. But some peer-reviewed journals charge a truly prohibitory fee for one-time downloads by nonsubscribers, i.e. $30 for one copy of one article. The best solution is do not publish in these journals.
I've moved this post to the top of the blog.


 
Book Announcement: Happy Lives & the HIghest Good by Lear
    Happy Lives and the Highest Good: An Essay on Aristotle's Nicomachean Ethics Gabriel Richardson Lear To read the entire book description or the introduciton, please visit: http://pup.princeton.edu/titles/7751.html Gabriel Richardson Lear presents a bold new approach to one of the enduring debates about Aristotle's Nicomachean Ethics: the controversy about whether it coherently argues that the best life for humans is one devoted to a single activity, namely philosophical contemplation. "A fine book. Anyone interested in Aristotle's ethics should read it."--Norman O. Dahl, Philosophy in Review Paper | $19.95 / £12.95 | ISBN: 0-691-12626-7 Cloth | 2004 | $37.95 / £24.95 | ISBN: 0-691-11466-8


 
Tuesday Calendar


Monday, January 23, 2006
 
Monday Calendar
    Columbia Law & Economics: Omri Ben-Shahar, BOILERPLATE AND ECONOMIC POWER IN AUTO MANUFACTURING CONTRACTS (with James J. White)
    Florida State Law: Douglas Baird, University of Chicago Law School
    London School of Economics, Centre for Philosophy of the Natural and Social Sciences: Raimo Tuomela (Helsinki), Cooperation and the We-Perspective
    University of Texas Law: Abe Wickelgren (UT Economics) "Why Divorce Laws Matter: Incentives for Non-Contractible Marital Investments Under Unilateral and Consent Divorce
    Vanderbilit Law & Politics Seminar: Virginia Hettinger, University of Connecticut Political Science, & Wendy Martinek, SUNY Binghamton Political Science, "Judging on a Collegial Court: Influences on Federal Appellate Decision Making"


 
Welcome to the Blogosphere . . . . . . to Feminist Law Professors, with Ann Bartow and Wendy Gordon, Caitlin Borgmann, Jenny Rivera, Rebecca M. Bratspies, Ruthann Robson, Katherine Franke, Susan Sturm, Martha Fineman, Sonia Katyal, Rebecca Tushnet, Amy Adler, Sylvia Law, Kimberly Yuracko, Margaret Chon, Deborah Rhode, Ellen Podgor, JoAnne Epps, Kathryn Stanchi, Madhavi Sunder, Berta Hernandez, Nancy Dowd, Elizabeth B. Brandt, Maureen Laflin, Anita L. Allen-Castellitto, Regina Austin, Fran Ansley, Jennifer Hendricks, Joan MacLeod Heminway, Mae Quinn, Llewellyn Gibbons, and Jessica Litman. That's quite a line up!


 
Symposium Announcement: The Future of Unenumerated Rights
    THE FUTURE OF UNENUMERATED RIGHTS Friday, February 10, 2006 9:15-5:30 Levy Conference Center University of Pennsylvania Law School 3400 Chestnut Street, Philadelphia, PA 19104 Keynote Speaker
      Louis H. Pollak, Senior Judge, United States District Court for the Eastern District of Pennsylvania
    Symposium Participants
      Gregory S. Alexander, Cornell Law School Randy Barnett, Boston University School of Law Rebecca L. Brown, Vanderbilt University Law School Jesse Choper, University of California, Berkeley (Boalt Hall) James W. Ely, Jr., Vanderbilt University Law School Stephen M. Feldman, University of Wyoming College of Law Howard Gillman, University of Southern California Department of Political Science Frank Goodman, University of Pennsylvania Law School Mark A. Graber, University of Maryland, College Park, and University of Maryland School of Law R.H. Helmholz, University of Chicago Law School Ken I. Kersch, Princeton University Department of Politics Seth Kreimer, University of Pennsylvania Law School Frank Michelman, Harvard Law School Kermit Roosevelt, University of Pennsylvania Law School Theodore Ruger, University of Pennsylvania Law School Jane Schacter, University of Wisconsin Law School Lawrence B. Solum, University of Illinois College of Law Mark Tushnet, Georgetown University Law Center Robin West, Georgetown University Law Center
    For a symposium schedule and speaker bios click here. For more information please contact Tony Falcone.


Sunday, January 22, 2006
 
Legal Theory Calendar
    Monday, January 23
      Columbia Law & Economics: Omri Ben-Shahar, BOILERPLATE AND ECONOMIC POWER IN AUTO MANUFACTURING CONTRACTS (with James J. White)
      Florida State Law: Douglas Baird, University of Chicago Law School
      London School of Economics, Centre for Philosophy of the Natural and Social Sciences: Raimo Tuomela (Helsinki), Cooperation and the We-Perspective
      University of Texas Law: Abe Wickelgren (UT Economics) "Why Divorce Laws Matter: Incentives for Non-Contractible Marital Investments Under Unilateral and Consent Divorce
      Vanderbilit Law & Politics Seminar: Virginia Hettinger, University of Connecticut Political Science, & Wendy Martinek, SUNY Binghamton Political Science, "Judging on a Collegial Court: Influences on Federal Appellate Decision Making"
    Tuesday, January 24 Wednesday, January 25
      University College London, Colloquium in Legal and Social Philosophy: Janet Radcliffe Richards (University College, London) Equality of opportunity
      University College London, International Law Society: Professor Christine Chinkin, LSE, "Gender and international peace and security"
      Philosophy of Education, London: John Marshall, Multiculturalism and Culturual Plurality Revisited.
      NYU Law & History: Barry Friedman, Jacob D. Fuchsberg Professor of Law, NYU School of Law, "Neither Force Nor Will: The Popular Foundations of Judicial Review"
      Oxford, The Ethox Centre and Oxford Genetics Knowledge Park Seminar Series 2006: Professor Bartha Maria Knoppers, "The Public Population Project in Genomics (P3G) International Consortium for Linking Population Genomic Studies: What it is and what it offers."
      Oxford Criminology Seminar Series 2005/06: Julian Roberts, The Virtual Prison: Community Custody and the Evolution of Imprisonment
      Oxford Law Faculty: Jeremy Horder, A New Homicide Act for England and Wales? (Consultation Paper no.177)
      University of Toronto: Lisa Philipps, York University, Partners in Business, Partners in Love: Tax Law and the Two-Person Career
      Villanova Law: David Wilkins, Harvard Law School.
    Thursday, January 26
      Oxford Jurisprudence Discussion Group: Alan Norrie, War crime and the failure of law: Arendt, Jaspers and the ontology of guilt
      Boston University Law: David Walker, Financial Accounting, Corporate Behavior, and the Promise of Offensive Accounting
      Brooklyn Law: Margaret A. Berger, Brooklyn Law School, Vioxx: A Roadmap of Fissures in Our Legal and Healthcare Systems
      Florida State Law: Charlene Luke, Florida State University School of Law
      UC Berkeley, Kadish Center: Charles Beitz, Professor of Politics, Princeton University
      Kings College, London: Angus Dawson (Keele) Children's vaccinations, best interests and parental disagreement.
      Forum for European Philosophy, Institut Français, London: Rupert Read (UEA), Rawls and Habermas: Liberalism is inherently inegalitarian and unsustainable.
      Oxford EC Law Discussion Group & Oxford Comparative Law Discussion Group: Vanessa Mak, Harmonisation of European Contract Law: Problem Areas in the Sale of Goods Law
      UCLA Legal Theory Workshop: Annelise Riles.
      UCLA Tax Policy and Public FInance Workshop: Michael Livingston, Rutgers School of Law - Camden, Rendering Unto Caesar: Religious Perspectives on Progressive and Flat Taxation
      University College London, Current Legal Problems Lecture: Mr Gavin Phillipson (King's College London), "Deference, Discretion and Democracy: Judicial Reasoning under the Human Rights Act"
      University of Michigan, Law & Economics: Richard Nelson, Columbia, The Market Economy, and the Scientific Commons
      University of Texas Colloquium on Constitutional and Legal Theory: Jane Schacter (Wisconsin, Stanford), "Political Accountability, Proxy Accountability, and Democratic Legitimacy" & "Democracy Diminished"
      Yale Law Economics & Organizations: Professor James Poterba, MIT, Economics, Defined Contribution Plans and Retirement Saving Risk and also here.
    Friday, January 27
      Boston College Law: Steven L. Schwarcz, Stanley A. Star Professor of Law & Business, Duke University School of Law.
      Oxford Centre for Competition Law & Policy: Peter Willis & Taylor Wessing, The privilege against self-incrimination in competition investigations
      All Souls College, Oxford, Neill Lecture: The Honourable Michael Beloff QC, Paying the Judges - Who, Whom, How Much and Why?
      Vanderbilt Faculty Workshop: Don Herzog, University of Michigan Law School, "The Kerr Principle, State Action and Legal Rights"
      University of Syracus, Sawyer Law and Politics Program Research Workshop: Petra Hejnova, Maxwell School, "Women's Mobilization and Democratic Transitions: A Study of Regional Patterns"
      University of Georgia Law: Ronald Rotunda (George Mason), The Detainee Cases of 2004 and Their Aftermath
      Michigan State University: THIRD ANNUAL INTELLECTUAL PROPERTY & COMMUNICATIONS LAW AND POLICY SCHOLARS ROUNDTABLE
    Saturday, January 28
      Michigan State University: THIRD ANNUAL INTELLECTUAL PROPERTY & COMMUNICATIONS LAW AND POLICY SCHOLARS ROUNDTABLE (continues)


 
Legal Theory Lexicon: Procedural Justice
    Introduction Recently, the Legal Theory Lexicon provided a very general entry on the the topic of justice. The notion of justice can be analyzed in many ways, but one good place to start is with Aristotle. Aristotle divides the topic of justice into two main parts, corrective justice and distributive justice. Distributive justice concerns the division of shares in social benefits and burdens; thus, many questions of tax policy are questions of distributive justice. Corrective justice involves the rectification of injustice, and thus includes a variety of topics from criminal law, torts, and contracts, among many others. Supplementing Aristotle's account, let us say that "procedural justice" is concerned with the means by which social groups (including governments, private institutions, and families) institutionalize the application of requirements of corrective and distributive justice to particular cases. This entry in the Lexicon provides an introduction to the idea of procedural justice for law students (especially first years) with an interest in legal theory.
    Slicing a Cake Our approach to the idea of procedural justice may be made easier by using a simple example. Consider the familiar procedure for dividing a cake: the person who slices the cake picks last. What makes this a fair procedure? One answer to this question might be the following: there is an independent criterion of what constitutes a fair outcome, equal slices for all, and the slicer-picks-last rule assures that we will get to this outcome. Slicer-picks-last is fair because guarantees accuracy. Or does it? If we really wanted to assure perfectly equal slices, then we could use a compass and the principles of plane geometry, with equal shares as a more reliable result. But this strikes us as an undue amount of fuss to go through when slicing a cake. Perhaps, the reason we believe that the slicer-picks-last rule is a fair procedure is that it strikes a fair balance between the importance of the outcome and the cost of getting there: the rule gets us close to equal shares most of the time at a reasonable price. Slicer-picks last might be considered fair, because does a good job of balancing. Or is there something more to the idea that the slicer-picks-last rule is fair? Maybe the reason we believe that the slicer gets a fair share is because the slicer was the one who did the cutting; the slicer's participation in the cutting validates the outcome, even if the slicer ends up with a smaller slice (or among the calorie conscious, a bigger slice). Slicer-picks-last could be a fair rule, because of process independently of outcome.
    Perfect, Imperfect, and Pure Procedural Justice These questions about the fairness of procedures for slicing a cake can be generalized by setting out a framework for analyzing the idea of procedural justice. In A Theory of Justice, John Rawls distinguishes three very general and abstract kinds of procedural justice: (1) perfect procedural justice, (2) imperfect procedural justice, and (3) pure procedural justice. Consider perfect procedural justice first. There are, he writes,
      two characteristic features of perfect procedural justice. First, there is an independent criterion of what is a fair division, a criterion defined separately from and prior to the procedure which is to be followed. And second, it is possible to devise a procedure that is sure to give that desired outcome.
    Rawls argues that our rule for the slicing of cakes is an example of perfect procedural justice. The person who slices picks last; Rawls believes that this procedure insures the equal division of shares. "Equal shares for each" is the independent criterion of a fair division; the slicer-picks-last rule is the procedure that reliably produces that outcome.
    In the case of imperfect procedural justice, the first characteristic, an independent criterion for fairness of outcome, is present, but the second, a procedure that guarantees that outcome, is not. Rawls contends:
      Imperfect procedural justice is exemplified by a criminal trial. The desired outcome is that the defendant should be declared guilty if and only if he has committed the offense with which he is charged. The trial procedure is framed to search for and to establish the truth in this regard. But it seems impossible to design the legal rules so that they always lead to the correct result. The theory of trials examines which procedures and rules of evidence, and the like, are best calculated to achieve this purpose consistent with the other ends of the law. Different arrangements for hearing cases may reasonably be expected in different circumstances to yield the right results, not always but at least most of the time.
    Thus, imperfect procedural justice incorporates the notion of an independent criterion for accuracy but adds the notion of "other ends of the law," e.g., considerations of cost that may be balanced against accuracy.
    The final notion is "pure procedural justice." Rawls writes:
      [P]ure procedural justice obtains when there is no independent criterion for the right result: instead there is a correct or fair procedure such that the outcome is likewise correct or fair, whatever it is, provided that the procedure has been properly followed. This situation is illustrated by gambling. If a number of persons engage in a series of fair bets, the distribution of cash after the last bet is fair, or at least not unfair, whatever this distribution is.
    Pure procedural justice rejects an underlying assumption of both perfect and imperfect procedural justice--the assumption that there is an independent criterion for what constitutes the correct outcome. There are not criteria for the correct outcome except for an ideal (or actual) set of procedures.
    Three Models of Procedural Justice: Accuracy, Balancing, and Participation Rawls's theory provides an abstract framework that can be used to categorize theories of procedural justice, but it doesn't tell us what the content of a theory of procedural justice might be. Three approaches have been characteristic of thinking about procedural justice--one emphasizes accuracy, the second cost, and the third participation. Each of these three approaches can be expressed as simply model of procedural justice:
      The Accuracy Model We can begin with the utopian hypothesis that the current doctrine is structured by an implicit conception of perfect procedural justice?the accuracy model?corresponding to the idea of perfect procedural justice. The core idea of this model is that the aim of procedure is a search for truth?e.g. conclusions of law that are correct and findings of fact that are true.
      But there are severe problems with the accuracy model. Given that civil procedure imposes real costs on litigants and society at large, it is difficult to argue that the smallest marginal gain in accuracy is worth the largest investment of resources. Justice has a price, and there is a point at which that price is not worth paying. Moreover, we have every reason to believe that accuracy is subject to the law of diminishing returns. If we were to make perfect accuracy our highest commitment, we would find that as we got closer and closer to our goal, the cost of reducing the marginal rate of error would become higher and higher. We will reach a point where society would be required to invest enormous resources for the most infinitesimal gain in accuracy.
      The Balancing Model The second model "the balancing model" corresponds to the idea of imperfect procedural justice. The consequentialist version of imperfect procedural justice finds substantial support in the decisions of the Supreme Court that interpret the Due Process Clauses of the United States Constitution. The most striking example is provided by the balancing test announced in Mathews v. Eldridge:
        [O]ur prior decisions indicate that identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
      Beginning with the emphasis on balancing in doctrine, we could construct a utilitarian conception of imperfect procedural justice. This effort is complicated, however, because there are many forms of utilitarianism; for our purposes, we might consider ideal rule utilitarianism, in which an act is right if and only if it is conformity with the system of rules, which if universally followed would produce the best consequences. Let us make a further simplifying assumption: that all of the relevant costs can be expressed as prices. The resultant approach will be roughly similar to some law and economics approaches.
      Consider for example, Richard Posner?s economic analysis of procedure. He writes, "The objective of a procedural system, viewed economically, is to minimize the sum of two costs. The first is "the cost of erroneous judicial decisions." The second type of cost is "the cost of operating the procedural system." Operating costs are borne by the public, in the form of subsidies to the judicial system and by the parties in the form of court fees, attorneys' fees, and litigation costs.
      The Participation Model The third model--the participation model?corresponds to the idea of pure procedural justice. The key notion is that it is it is participation in the process and not outcome that defines procedural justice. The second interpretation of the participation model connects the independent value of process with the dignity of those who are affected by legal proceedings. One way of articulating this central notion is that everyone is entitled to their day in court. This right to participation is justified by a background right of political morality, i.e. the right of persons (or citizens) to be treated with dignity and respect. A procedure which ensures parties an opportunity to participate in the process of making decisions that affect them might be counted as a just procedure for this reason, independently of the correctness of the outcome that results from the procedures.
      On influential version of the participation model has been developed by Jerry Mashaw. Mashaw states the intuitive idea as follows:
        At an intuitive level, a dignity approach is appealing. We all feel that process matters to us irrespective of result. This intuition may be a delusion. We may be so accustomed to rationalizing demands for improvement in our personal prospects, in the purportedly neutral terms of process fairness, that we can no longer distinguish between outcome-oriented motives and process-oriented arguments. * * * Yet there seems to be something to the intuition that process itself matters. We do distinguish between losing and being treated unfairly. And, however fuzzy our articulation of the process characteristics that yield a sense of unfairness, it is commonplace for us to describe process affronts as somehow related to disrespect for our individuality, to our not being taken seriously as persons.
      In recent years, the question whether participation has value that is independent of outcomes has been enormously controversial. The participation model reflects the view that participation matters for reasons other than cost and accuracy. Most advocates of the balancing model deny that participation has independent value--other than a subjective taste for participation which can be weighed in a cost-benefit analysis.
    Conclusion Of course, procedural justice is a very large topic, and we have only begun to scratch the surface. Law students encounter ideas about procedural justice in a variety of courses: Civil Procedure, Criminal Procedure, and Administrative Law are among the classes in which procedural justice may become an important focus of discussion. I hope this Lexicon post gives you a lively sense of the basic structure of legal thinking about procedural justice.
    Online Resource Bibliography
    • Robert Bone, Agreeing to Fair Process: The Problem with Contractarian Theories of Procedural Fairness, 83 B.U. L. REV. 485, 488-89 (2003).
    • Mathews v. Eldrige, 424 U.S. 319 (1976).
    • Jerry L. Mashaw, Due Process In The Administrative State (1985).
    • Richard Posner, Economic Analysis Of Law (1992).
    • John Rawls, A Theory Of Justice (1971)


Saturday, January 21, 2006
 
Legal Theory Bookworm The Legal Theory Bookworm recommends Bad Acts and Guilty Minds : Conundrums of the Criminal Law by Leo Katz. Here's a description:
    With wit and intelligence, Leo Katz seeks to understand the basic rules and concepts underlying the moral, linguistic, and psychological puzzles that plague the criminal law.
And a blurb:
    "Bad Acts and Guilty Minds . . . revives the mind, it challenges superficial analyses, it reminds us that underlying the vast body of statutory and case law, there is a rationale founded in basic notions of fairness and reason. . . . It will help lawyers to better serve their clients and the society that permits attorneys to hang out their shingles."--Edward N. Costikyan, New York Times Book Review
A marvelous book, by one of the most original thinkers about criminal law theory. And a pleasure to read!


 
Download of the Week The Download of the Week is Hunting Goodwill: A History of the Concept of Goodwill in Trademark Law bv Bob Bone. Here is the abstract:
    A deep tension lies at the heart of trademark law. On the one hand, the law’s core mission is to facilitate the transmission of accurate information to the market. Hence the touchstone of liability has always been the likelihood of consumer confusion. On the other hand, it is also customary to refer to trademark law as protecting goodwill in a mark. The problems arise because these two ways of formulating the goal push in different normative directions and create a policy tension that frustrates attempts to formulate a coherent body of doctrine. This Article examines how the goodwill concept originally entered trademark law and traces its intellectual and social history and its impact on trademark doctrine. Ever since the 1920s, and with greater frequency during the past two decades, courts have relied on the idea that trademark law protects against appropriation of goodwill to justify some rather broad, and ultimately ill-advised, doctrinal expansions. These expansions seem sensible extensions of trademark principles from the point of view of goodwill appropriation because of the elasticity of the goodwill concept, which can extend to include brand, firm, and in its broadest form, inherent goodwill. In the end, understanding this history gives a useful perspective from which to evaluate the role of goodwill in trademark law today and to propose reforms that would eliminate its pernicious effects.
Highly recommended!


Friday, January 20, 2006
 
Posting on Friday & Saturday I'm attending a roundtable on intention and responsibility in Death Valley, California. No broadband, no wireless, and no public computer at the hotel! I'm putting up Friday's posts very early in the morning on Friday & will put up Saturday's posts very late on Saturday night. A more regular posting schedule will resume on Sunday!


 
Friday Calendar
    Boston College Law: Sara Beale, Charles L.B. Lowndes Professor of Law, Duke University School of Law.
    Oxford Centre for Competition Law & Policy: Simon Priddis, Senior Director for Competition Casework , OFT, The Law and Economics of Conglomerate Mergers.
    Syracuse, Sawyer Law and Politics Program: Amanda DiPaolo, Maxwell School, "All Laws But One: The American Civil War and the Writ of Habeas Corpus", Discussant Jason Plume, Maxwell School.
    University of Texas Law: John Robertson, Embryo Culture and the 'Culture of Life': Constitutional Issues in the Embryonic Stem Cell Debate


 
Gulati & Choi Study Securities Disclosure Practices G. Mitu Gulati and Stephen J. Choi (Georgetown University Law Center and New York University - School of Law) have posted An Empirical Study of Securities Disclosure Practices on SSRN. Here is the abstract:
    Using a dataset of sovereign bond offering documents and underlying bond contracts for ten sovereign issuers from 1985 to 2005, we examine the securities disclosure practices of issuers and attorneys. The sovereign bond market is comprised of sophisticated issuers with highly paid attorney law firms. If anyone complies fully with federal securities disclosure requirements, we expect sovereign issuers and their attorneys to do so. On the other hand, network effects that determine what information issuers choose to disclose as well as the high cost of determining what information is required for disclosure may lead issuers to fail to meet their disclosure duties. We provide evidence that sovereign issuers in fact may not fully meet their disclosure duties in one context. Where shocks occur to how courts interpret language in existing boilerplate bond contracts, leading to material and idiosyncratic changes in the underlying allocation of substantive rights for the different issuers, we find zero disclosure to investors. Conversely, we find that where there is less of a legal requirement for disclosure, such as when the entire market shifts publicly to using explicit collective action clauses in the bond contracts, there is a high level of disclosure. Over time, long after such terms have become the market standard and thus part of the total mix of information, this heightened level of disclosure continues. In sum, we find heightened disclosure in the place where the legal obligations (and investor need) for disclosure are less significant and no disclosure in the place where legal obligations (and investor need) for disclosure are more significant.
Choi & Gulati always knock my socks off!


 
O'Cinneide on Antidiscrimination Law in Britain Colm O'Cinneide (University College London - Faculty of Laws) has posted Fumbling Towards Coherence: The Slow Evolution of Equality and Anti-Discrimination Law in Britain (Northern Ireland Legal Quarterly, Forthcoming) on SSRN. Here is the abstract:
    Due to a lack of consensus as to underlying principles, the development of equality and anti-discrimination law in Britain has taken place in fits and starts. When change occurs, it often tends to be reactive in nature. Legislation and new policies are usually introduced in response to events, or to fill a sufficiently embarrassing gap in the legislation, or to comply with the requirements of EC law. This disjointed approach has persisted since the introduction of the earliest forms of anti-discrimination legislation in the 1960s, and has produced a complex hybrid of equality principles embedded in a patchwork quilt of anti-discrimination legislation and case-law. Since 1995, anti-discrimination protection has been extended to the “new” grounds of disability, sexual orientation, religion and (imminently) age, while the scope of existing protection in the areas of race and gender has been extended. This has been paralleled by considerable shifts in judicial approaches to equality issues, with some development of common law equality principles and a move towards the purposive interpretation of anti-discrimination legislation. These developments have been accompanied by the introduction of positive equality duties, attempts to introduce mainstreaming initiatives, the coming into force of the Human Rights Act and the establishment of a single Commission for Equality and Human Rights. This transformation of British equality law has not been immune from its recurring defects, exemplified in particular by the piecemeal, stumbling and reactive manner in which these reforms have been introduced. However, it can be argued that the cumulative effect of these changes has been to establish the bare bones of a coherent framework of equality and anti-discrimination law. However, the conceptual uncertainties noted by McCrudden remain. Fundamental questions as to how this evolving legal framework should be further developed remain unresolved. Part One of this paper examines the underlying conceptual uncertainties that continue to afflict British equality law and policy. Part Two will assess the scope and effectiveness of the recent extension of anti-discrimination legislation in Britain, while Part Three will outline how equality and anti-discrimination norms are becoming “constitutionalised” in British public law. Part Four will then look at attempts to require public and private authorities to take proactive action to eliminate patterns of inequality, and how conceptual uncertainties persist as to the appropriate scope and direction to be given to “transformative” equality measures. British equality law is fumbling towards greater coherence, consistency and clarity, but real obstacles to achieving full coherence persist.


 
Ross Compares Italy & the US on Transnational Undercover Policing Cooperation Jacqueline E. Ross (University of Illinois College of Law) has posted Impediments to Transnational Cooperation in Undercover Policing: A Comparative Study of the United States and Italy (American Journal of Comparative Law, Vol. 52, No. 3, pp. 569-624, 2004) on SSRN. Here is the abstract:
    This article examines fundamental differences in how the United States and Italy think about, regulate, and attempt to legitimate undercover policing. It identifies a number of ways in which normative differences between American and Italian regulation impede transnational cooperation in covert investigations. The article also uses the insights gained from the contrast between the Italian and American regulatory approaches to hypothesize about the prospects for convergence on shared regulatory norms and the institutional impediments that such changes would face in Italy. The article is based on extensive field interviews with Italian police officials, prosecutors, and judges, and on an array of sources that illuminate law-in-action, including police manuals, ministry guidelines for conducting undercover investigations, and training materials. Both the American and Italian criminal justice systems treat undercover policing as problematic, but in strikingly dissimilar ways. American regulation focuses primarily on the risk that covert operations may distort behavior and encourage crime in the process of exposing it. By contrast, Italy especially emphasizes how undercover policing poses a threat to the rule of law - in particular, to the principle that the criminal laws apply to everyone, police officer and civilian alike. In the Italian legal system, the central dilemma of undercover policing is that allowing undercover agents to participate in the offenses they investigate (e.g. by purchasing contraband) implicates them in crimes and thus violates the principle that the criminal laws apply to the police along with the rest of society. Given this concern, Italian criminal procedure proceeds from the rule that undercover agents may not violate criminal laws in their undercover rule unless a statute expressly exempts them from criminal liability for doing so. Italy applies to its agents what I term “societal norms” - rules that apply to society in general rather than to the police in particular. By contrast, the American legal system does not assume that undercover conduct is per se criminal. American regulation of undercover investigations rest on the assumption that undercover operations need to be bounded through norms specific to government actors, that is, “police norms.” The difference between Italian use of societal norms and American reliance on police-specific norms expresses itself in the two systems’ contrasting conceptions of entrapment. In the United States, entrapment is a defense afforded to targets. It is a violation of investigative norms specific to governmental actors. In Italy entrapment is a crime committed by an undercover agent when he provokes a target to commit an offense. It is a form of accomplice liability that imposes criminal liability on the undercover agent along with the target. This Italian conception of entrapment-as-complicity embodies the notion that entrapment is a violation of a societal norm. These fundamental differences between the American and Italian undercover policing systems present underappreciated obstacles to international cooperation in transnational undercover investigations. Advocates of closer coordination do not sufficiently emphasize or appreciate how extensively Italy would need to transform its domestic policing regimes to try to facilitate covert operations with American agencies. Better collaboration would require fundamental changes in a multiplicity of areas whose connection to undercover policing is not readily apparent: for instance, in the interaction of informants and police; in the rules of evidence, including the use of suppression remedies; in the defenses allowed to suspects; in the independence of Italian prosecutors from judicial oversight and executive accountability; and in the range of discretion permitted to prosecutors and judges. A comparison between the United States and Italy illuminates some of the dynamics involved in harmonizing regulatory regimes premised upon different norms.


 
Raeder on Crawford Myrna Raeder (Southwestern University School of Law) has posted Remember the Ladies and the Children Too: Crawford's Impact on Domestic Violence and Child Abuse Cases (Brooklyn Law Review, Vol. 71, p. 311, Fall 2005) on SSRN. Here is the abstract:
    Crawford v. Washington, 541 U.S. 36 (2004), which altered the Supreme Court’s approach the Confrontation Clause, has generally impacted trial practice. However, its effect on domestic violence and child abuse cases has been particularly severe. Pursuant to Crawford, if a declarant makes a “testimonial” statement, in the absence of forfeiture, its admission at trial violates the defendant’s right of confrontation unless the declarant is unavailable and has been subjected to prior cross-examination. Young child witnesses may be incompetent to testify or otherwise available. Most complaining witnesses in domestic violence cases do not willingly cooperate with the police, Prior to Crawford, Ohio v. Roberts, 448 U.S. 56 (1980), and its progeny permitted the statements of absent declarants to be introduced under firmly rooted hearsay exceptions, or under ad hoc exceptions when the statements were trustworthy. As a result, in child abuse cases, statements of children were frequently introduced which had obtained through multidisciplinary forensic interviews. Prosecutors relied heavily on excited utterances, statements to medical personnel, and child hearsay exceptions as well as on medical expert testimony and introduction of prior molestations by defendants. In domestic violence cases, prosecutors developed “victimless” prosecutions, based primarily on the complainant’s excited utterances, medical statements, or other trustworthy hearsay, which were introduced through the testimony of police and medical personnel who photographed the injuries. In some jurisdictions expansive use of prior acts of domestic violence were offered under Rule 404(b) or domestic violence exceptions. The effort to hold batterers accountable for their actions did not create uniformly good results for battered women. Some complainants were virtually forced to testify or face jail when they ignored subpoenas in “no drop” jurisdictions. In addition, more women were arrested for domestic violence, judges often granted mutual protective orders, women were charged criminally for endangering their children who witnessed their abuse; and even when they were not charged, their children might be removed from the home and placed in foster care. The effect and effectiveness of such policies began to be questioned even before Crawford. This article critiques the testimonial approach, discusses how testimonial statements should be defined focusing particularly on excited utterances and 911 calls, and identifies current trends affecting domestic violence and child abuse litigation. It also explores forfeiture, waiver, and opening the door to testimonial statements. Rather than fighting Crawford, consideration should be given to adopting new hearsay exceptions for declarants who testify, determining whether Rule 404(b) is being adequately used, and expanding expert testimony to permit background about battering and child abuse. More globally, the article proposes restructuring domestic violence prosecutions into three separate tracks in order to devote scarce criminal justice resources to the most dangerous offenders. Finally, best practices are suggested that are most likely to permit child testimony.


 
Corporate Lawyers & Perjury Thomas D. Morgan (George Washington University Law School) has posted The Corporate Lawyer and 'The Perjury Trilemma' (Hofstra Law Review, 2006) on SSRN. Here is the abstract:
    This paper extends Monroe Freedman's idea of the criminal lawyer's "perjury trilemma" to current issues faced by corporate lawyers dealing with perceived pressures on the attorney-client privilege. The duties of criminal defense and corporate lawyers are more similar than they often seem. Corporate lawyers' duties of honesty in dealing with third parties are closely analogous to criminal lawyers' duties of honesty in dealing with a court. Both sets of lawyers also have an important interest in fostering open communications with their clients. Where their situations differ is not with respect to lawyer obligations but with respect to their clients' rights. Corporations, for example, lack a privilege against self-incrimination possessed by individual criminal defendants. Further, many current issues of corporate fraud involve information not privileged at all because of the crime-fraud exception. Finally, corporate clients have a power to compel employees to disclose personally adverse information without the encouragement offered by protecting the information as privileged. These differences between rights of corporate clients and those of individual criminal defendants should lead corporate lawyers to rely less on arguments analogous to those of the "perjury trilemma" as they respond to today's perceived pressures on the corporate attorney-client privilege.


 
Conference Announcement: Trade & Legal Aid in Nassau
    The Northeast People of Color Legal Scholarship Conference and the American and Caribbean Law Initiative are proud to present TRADE & LEGAL AID: Tools for Economic Development and Independence. TRADE & LEGAL AID will be held in beautiful Nassau, Bahamas from July 6 to July 8, 2006. This exciting joint conference will explore two themes important to the Caribbean: the challenge of delivering legal services to the poor and marginalized and the recurrent tensions between sovereignty and trade and economic development. The conference will consider how trade and economic development affect the achievement of equality and justice for all in developing countries. There will be a focus on the Caribbean nations but the disucssions will also draw on the experiences of other countries. Please see our conference website for a tentative schedule and more details: http://www.nsulaw.nova.edu/caribbean We will also be continuing the tradition of various NEPOC events. If you are interested in doing a work-in-progress presentation at the conference, please email your name, your affiliation and the title of your work-in-progress by April 1st, 2006 to Alafair Burke at Hofstra Law School at Alafair.S.Burke@hofstra.edu. The actual paper will not be due until June 1st, 2006. We will try to accommodate as many presenters as possible, but we will use a first-come, first serve basis. The work-in-progress can be on any topic related to the law and does not have to discuss trade or legal aid. Works in progress presentations are particularly good opportunities for junior faculty who want to present their work in a supportive environment and get feedback from more senior faculty. If you are interested in being a commentator for a work-in-progress, please also contact Alafair Burke. We are also currently accepting nominations for the Haywood Burns / Shanara Gilbert Awards for Activist Teachers and Scholars. Nominees should be outstanding legal scholars who have contributed to their schools, their communities and to the greater legal academy of faculty of color. Past winners include Adrien Wing, Derek Bell, Randy Scott McLaughlin, Cruz Reynoso, Maria Arias, Odeana Neal, Judy Scales-Trent, Deborah Post, Jon C. Dubin and Elizabeth M. Iglesias. Please email your nomination along with a supporting statement to Deborah Post at Touro Law School at DEBORAHP@tourolaw.edu by February 15th, 2006.


Thursday, January 19, 2006
 
Thursday Calendar With an updated entry at the end of the post.


 
Leipold on Pretrial Process & Wrongful Convictions Andrew D. Leipold (University of Illinois College of Law) has posted How the Pretrial Process Contributes to Wrongful Convictions (American Criminal Law Review, Vol. 42, pp. 1123-1165, 2005) on SSRN. Here is the abstract:
    Wrongful convictions have attracted a great deal of scholarly interest in recent years, with most of the attention focused on bad forensics, flawed eyewitness identification, witness perjury, and other deviations from legal norms. This article argues that there is another, less obvious contributor to erroneous decisionmaking: the federal pretrial procedural rules. Current doctrine on pretrial release, venue, pretrial delay, joinder and severance, discovery, and guilty pleas are designed to accommodate a variety of interests, only one of which is the factual accuracy of the proceeding. As a result, the rules often implicitly, and at times explicitly, tolerate modest amounts of prejudice to the defendant's case in order to serve these other interests. Thus, for example, pretrial release decisions will closely consider the risks of flight and the dangers to the community, but rarely consider how the defense can be hampered if the accused remains in jail. Joinder and severance decisions place great weight on the efficiency of combined trials, while simultaneously recognizing the prejudicial impact that joinder can have on the defense. Other pretrial rules create comparable risks and are similarly tolerated. Relying on both case law and government data, the article contends that none of the pretrial processes, in isolation, creates a serious risk of skewing the outcome of criminal cases, but that collectively the current rules are cause for concern. The article evaluates the impact of the procedures, both individually and collectively, and tries to assess how they contribute to the risk of wrongful convictions.


 
Pollack on ISP Liability Malla Pollack (Univ. of Idaho, College of Law) has posted Rebalancing Section 512 to Protect Fair Users from Herds of Mice-Trampling Elephants, or A Little Due Process Is Not Such A Dangerous Thing (Santa Clara Computer and High Technology Law Journal, Vol. 22, No. 3, 2006) on SSRN. Here is the abstract:
    The author agrees with the basic concept of 17 U.S.C. 512; to protect internet functionality, ISPs should have robust safe harbors against liability for their subscribers' copyright infringement. However, the current details of the notice and take down system are both unfair to the general public and unnecessary to the economic health of the United States. The author suggests a robust, statutorily established digital fair use right backed by a notice and take procedure protecting fair users. At a minimum, use of a purchased music file on any of the purchaser's equipment should be fair use. Preferably, all personal non-commercial use should be legal. Use or provision of technology to enable fair use should not violate Chapter 12 of Title 17. Additionally, ISPs should not be allowed (let alone incentivised) to cut off subscribers as repeat, on-line copyright infringers absent court decision on the alleged infringements.


 
Singel & Fletcher on Tribal Property Wenona Singel and Matthew L.M. Fletcher (University of North Dakota - School of Law and University of North Dakota - School of Law) have posted Power, Authority, and Tribal Property (Tulsa Law Review, forthcoming) on SSRN. Here is the abstract:
    Indian land claims have long been a foundational and fundamental subject of American law. Indians and Indian tribes have long been acutely aware that their land base has been shrinking since the beginning of the European invasion. Outnumbered, outgunned, and outbrutalized, Indians have had little choice but to recede. But Indians and Indian tribes have never forgotten their sacred homelands and continuously seek to restore whatever lands they can. This behavior, it seems, baffles non-Indian legal experts and legal philosophers, who argue that these “ancient” Indian land claims should be dismissed. Conversely, there are legal scholars who argue that the Indian rights to land are as absolute as to justify the restoration of vast amounts of land to Indian tribes. In short, there is a wide spectrum of choice for courts in relation to Indian land claims – courts can dismiss the claims altogether or restore the vast tribal land base or choose a middle ground. Until recently, the courts have chosen a version of the middle ground, best exemplified by the Supreme Court’s decisions in the Oneida Indian Nation’s land claims. The federal courts might not approve of tribes suing hundreds or thousands of “innocent” landowners for eviction, but were willing to allow tribes to sue for trespass damages. The Second Circuit recently rejected this long-established middle ground in Cuygua Indian Nation of N.Y. v. Pataki and dismissed the Cuyuga Indian Nation’s land claims based on the equitable doctrine of laches, relying exclusively on a recent Supreme Court case, City of Sherrill, N.Y. v. Oneida Indian Nation of N.Y. This Article rejects the conclusions of the Second Circuit and argues instead that there is no principled reason to depart from the middle ground of earlier cases. We choose to begin by discussing tribal land dispossession from the point of view of the Indians who had been victimized by non-Indians. We discuss two instances of tribal land dispossession of the lands of the Michigan Anishinabeg that have yet to be remedied. These forms of tribal land dispossession are remedial under the middle ground of analyzing Indian land claims. We further discuss the origin of equity and its relationship to the law. We introduce the notion that laches is a powerful judicial tool subject to arbitrary and abusive exercise by the judiciary. We conclude our argument by asserting that laches is an improper judicial tool for resolving Indian land claims. We note that non-Indian defendants have long argued that Indian land claims should be barred by laches and, in the most persuasive cases, those defenses have been rejected. We argue that the underlying purpose of laches is not consistent with the exercise of laches by the City of Sherrill and Cuyuga Indian Nation courts. We conclude by lamenting that the dispossession of tribal lands has moved from the 19th century notion of brute force and the 20th century notion of corrupt political processes to the 21st century notion of final and complete judicial action to eradicate Indian land claims.


 
Flood, Webb, and Boon on Postmodern Professionalism and Legal Education John Flood , Julian Webb and Andrew Boon (University of Westminster , University of Westminster - School of Law and University of Westminster - School of Law) have posted Postmodern Professions: The Fragmentation of Legal Education (Journal of Law and Society, Vol. 32, No. 3, pp. 473-492, September 2005) on SSRN. Here is the abstract:
    The English legal profession is facing radical changes to the ways it educates its novices from the Training Framework Review. The paper examines this in three parts. 1. The structure and drivers of the TFR 2. The TFR is examined in the context of the political economy of higher education 3. The potential effects of the TFR are examined in the context of professionalism and deprofessionalization.


 
Call for Proposals: Environmental Ethics
    Call for Proposals The 2nd Midwest Environmental Ethics Conference: "Making Ethics Visible" St. Paul, Minnesota May 6, 2006 ***DEADLINE EXTENDED to Feb. 15, 2006*** Conference Sponsors:
      --Department of Philosophy, University of St. Thomas --Program on Agricultural, Food, and Environmental Ethics, University of Minnesota --Minnesota Department of Natural Resources --Minnesota Association for Environmental Education
    Featured Speakers:
      --J. Baird Callicott, Professor of Philosophy, University of North Texas --Andrew Light, Associate Professor of Philosophy, University of Washington --Peter Bell, Chair, Metropolitan Council of the Twin Cities
    The organizing committee for the 2nd Midwest Environmental Ethics Conference invites proposals from academic philosophers, natural resource professionals, environmental education practitioners, and interested community members for papers, panels, roundtables, workshops, and other presentations that address the role of environmental ethics in community decision-making. The committee specifically invites proposals that address the conference theme -- "Making Ethics Visible" -- by answering the following question: "how can your academic discipline, professional expertise, or personal insight contribute to making ethical practices, principles, and/or assumptions visible in community decision-making about the environment?" Proposals that address the environment of the Midwest and/or environmental education are especially encouraged. Presenters may also wish to address one or more of the following related questions:
      --what ethical practices, principles, and assumptions are involved in community decision-making about the environment? how are theoretical issues in environmental ethics related to actual communities, issues, and decision-making processes? --who constitutes the "community" in community decision-making? who gets to make the decisions, and how is this decided? who is affected by these decisions, and what role do these parties have in the decision-making process? are the values promoted in environmental decisions shared by the affected communities? --how does community decision-making function at different temporal and spatial scales? what role can future generations play? what role can people in distant lands play? what is the relationship between local, regional, and global communities? what is the relationship between communities of interest and communities of place? --how are ethical conflicts resolved? which methods of conflict resolution have proven most effective, and why? --what role can environmental educators play in community decision-making? how should environmental ethics be incorporated into environmental education? how do environmental ethics and the ethics of education interact in the delivery of environmental education?
    Morning keynote addresses by J. Baird Callicott and Andrew Light will be followed by a panel discussion with Peter Bell and other policy- makers that will model how to make ethics visible in community decision-making, using the issue of suburban sprawl as a case study. Following lunch, four hour-long concurrent sessions will promote an interdisciplinary dialogue between academics, professionals, environmental educators, and community members. A variety of session proposals will be considered -- including papers, panels, roundtables, discussions, and workshops -- but all presentations will be limited to 30 minutes, so that 30 minutes of audience discussion and participation can follow. Conference organizers will chair the concurrent sessions and will review all proposals prior to acceptance. Send one-page proposals by 15 February 2006 to:
      Heidi Giebel Department of Philosophy, #JRC 241 University of St. Thomas St. Paul, MN 55105 Email: hmgiebel@stthomas.edu
    Please include the title of your proposed presentation, your institutional affiliation (if any), and your contact information. Requests for audio-visual equipment must accompany the proposal. Electronic submissions are encouraged. Registration materials will be made available on or around 1 March 2006. We will also have a web site linked to and .


Wednesday, January 18, 2006
 
Wednesday Calendar


 
Fanto on Paternalistic Regulation of Management James A. Fanto (Brooklyn Law School) has posted Paternalistic Regulation of Public Company Management: Lessons from Bank Regulation on SSRN. Here is the abstract:
    In this Article, I contend that Sarbanes-Oxley represents a significant step in the ongoing development of a paternalistic federal regulation of public firm management that is in certain respects comparable to the regulation of bank and bank holding company management by federal banking agencies. Federal regulation of bank management is all encompassing, covering bank officers and directors from the time a bank begins its operations onwards. The pervasive regulatory guidance and constant interaction, both informal and formal, between bank managers and regulators give the former notice of the regulators’ expectations for their behavior and an early warning of regulators’ concerns with it. The prescreening and ongoing monitoring thus justify the serious penalties that can be assessed against a bank officer and director by a bank regulator through an administrative proceeding or the courts or by a U.S. attorney in a criminal prosecution. By contrast, neither the Securities and Exchange Commission (the “SEC”) nor any self-regulatory organization (“SRO”) screens officers or directors of public companies. Although, at the direction of Congress, the SEC and the SROs increasingly specify standards of conduct for these officers and directors, they do not monitor on an ongoing basis officers’ and directors’ compliance with the standards, inspect the firms or interact informally or even formally, outside of enforcement and prosecutions, with them. Despite this approach, which reflects limitations on the SEC’s jurisdiction, the SEC’s disciplinary powers over public firm management have grown, as has criminal liability for officers and directors. Yet current corporate governance in public companies remains unsatisfactory. Despite improvements to the board over the last decades, including from Sarbanes-Oxley, directors do a poor job of monitoring executives. Boards of public firms often fail in their monitoring due to the formation in a public firm of a destructively cohesive group of senior executives, corporate advisors, and even some board members, led by the CEO. Social psychologists suggest that one way to prevent the formation of these perverse groups, or to break apart existing ones, is to involve in the monitoring of a group an outsider who is loyal and has a mission to an organization other than the group and who, as a result, can resist its attraction. While, as a theoretical and practical matter, the SEC and the SROs cannot replicate the prescreening, standard setting and oversight of management provided by bank regulators, in order to address the ongoing corporate governance problems in a way that uses the insights of social psychology, the Article proposes that the SEC appoint a corporate governance monitor for certain of the largest public firms who would have a role like that of an examiner of a large bank or financial holding company. The SEC would hire, train, and oversee the performance of, these monitors, who would be supervised by that part of the SEC’s Division of Corporation Finance responsible for their firms and industry. A monitor would promote the development of professional standards in a board, assist the board in reviewing any conflicts of interest, look for “red flags” of serious management problems and convey to directors and executives, on an ongoing and informal basis, any SEC concerns about their conduct. Interaction with the monitor would give them an opportunity to address any problems in their behavior before the SEC instituted formal enforcement proceedings or the Department of Justice criminal action. The presence of the monitors in public companies would also enable the SEC to receive valuable information about companies and industries, which could improve overall company disclosure. The proposed reform would have the added advantage of balancing the enforcement orientation of the SEC’s current paternalistic regulation of public firm management and the increasing criminalization of management’s behavior.


 
Berger on the Precariousness of the Criminal Law Benjamin L. Berger (University of Victoria - Faculty of Law) has posted On the Book of Job, Justice, and the Precariousness of the Criminal Law (Law, Culture, and the Humanities, Forthcoming) on SSRN. Here is the abstract:
    The criminal law has been subject to both increased demands in the societal functions that it is expected to perform, and heightened scrutiny for those points at which it fails to achieve these ends. The resulting pressures put into question the criminal law’s capacity to perform justice. Rather than turning to contemporary sources to assess the criminal law’s relationship to claims of justice, the author uses an analysis of the ancient myth found in the Book of Job as a means of exposing the irresolvable tensions at the core of the criminal law system’s quest for justice. In the end, injustice manifests as senseless suffering. The profound precariousness of contemporary criminal law is that its prescribed task is to make sense of suffering but it is always unable to wholly achieve this goal and is, indeed, always on the precipice of making things worse.


 
Daicoff on Lawyering as Healing Susan (Florida Coastal School of Law) has posted Law As A Healing Profession: The Comprehensive Law Movement (Pepperdine Dispute Resolution Law Journal, Fall 2005) on SSRN. Here is the abstract:
    This article outlines the history, context, importance, and development of ten or so “vectors” of an emerging change in the law comprising the “comprehensive law movement.” This is a movement towards law as a positive force in the resolution and administration of legal matters. The vectors include: creative problem solving, therapeutic jurisprudence, preventive law, restorative justice, collaborative law, transformative mediation, and holistic justice. The movement utilizes the insights of procedural justice and other social science-based understanding of the intrapersonal and interpersonal dynamics of legal affairs and legal disputes. Developments such as problem solving courts, which include drug treatment courts, unified family courts, and mental health courts, are examples of the comprehensive law movement in application. This movement and its vectors intersect in two broad areas: first, it explicitly seeks to optimize human wellbeing in the administration of law, the resolution of legal disputes, and the resolution of legal matters, when to do so does not impinge or reduce the legal rights of the individuals involved. Second, in resolving legal matters, it explicitly considers more than strict legal rights, duties, and obligations; it includes needs, goals, values, beliefs, resources, relationships, psychological dynamics, and other nonlegal factors in its analysis of legal problems and legal solutions. The legal profession has been suffering from a “tripartite crisis” in the past two decades or so, of deprofessionalism and incivility, low public opinion of lawyers, and lawyer distress and dissatisfaction. The comprehensive law movement holds promise for infusing a set of restorative, therapeutic, collaborative, reconciliative, cooperative, and humanistic values into law practice and the administration of laws that may appeal to many lawyers and many clients. In offering an alternative to the traditional approach to law and lawyering, the comprehensive law movement may help to ameliorate some of the internal and external dissatisfaction with lawyers and the legal system.


 
Vischer on Phramacist Rights Robert K. (University of St. Thomas, St. Paul/Minneapolis, MN - School of Law) has posted Conscience in Context: Pharmacist Rights and the Eroding Moral Marketplace on SSRN. Here is the abstract:
    Our society has long esteemed the sanctity of conscience, and our legal system has reflected that esteem, effectively shielding the individual from state encroachment, especially in matters of religion. A rapidly expanding range of disputes, however, is not readily settled under the individual-versus-state paradigm; rather, the new battle lines are forming between consumer and provider, with both driven to live out the dictates of conscience in the marketplace. The legal community has been slow to adjust to this trend, presuming reflexively that resolutions are best reached by harnessing state power to defend some conception of individual conscience, as exemplified by pharmacists' well-publicized entry onto the center stage of our nation's ongoing culture war drama. One side invokes conscience to justify legislation that would empower pharmacists to refuse to fill prescriptions on moral grounds without the possibility of negative consequences; the other side invokes conscience on behalf of the consumer to justify legislation that would require all pharmacies to fill all valid prescriptions. Congress and the dozens of state legislatures to take up the issue have embraced the winner-take-all terms in which the combatants have framed the contest. This article asks us to step back from these two-dimensional terms of engagement and to contextualize the public relevance of conscience by outlining the contours of a marketplace where moral claims can operate and compete without invoking the trump of state power. Instead of making all pharmacies morally fungible via state edict, the market allows individual consciences to thrive through overlapping webs of morality-driven associations and allegiances, even while diametrically opposed consciences similarly thrive. The zero-sum contest over the reins of state power is replaced by a reinvigorated civil society, allowing the commercial sphere to reflect our moral pluralism.


 
Call for Papers: Religion, Science and Public Concern
    Call for Papers Conference : Discourses on Ethics, Ecology, and Genomics Date: Thursday 26 and Friday 27, October 2006 Venue: The Netherlands, University of Leiden The aim of the conference, organised by the Faculty of Theology at Leiden University, is to bring together researchers interested in interactions between religion, ethics, and science in public discourses. In reflecting upon the social and moral jobs that speakers expect religious, ethical, and scientific notions to do, we may acquire a better understanding of debates on controversial issues of public policy and on the understanding of the role of and the relation between religion, ethics, science, politics, and technology. The Research Group on Philosophy of Religion and Ethics at the Department of Theology at Leiden University, under the direction of Professor Willem B. Drees, is currently engaged in research in these areas, concentrating on the interaction of religion and science, particularly in relation to perceptions of nature and modern technology. The programme consist of
      · a public lecture on October 26, 2006 by Bronislaw Szerszynski (Institute for Environment, Philosophy and Public Policy, Lancaster University) with a response by Gerrit de Kruijf (Leiden University) and Hans Achterhuis (University of Twente) · an international conference on October 27, 2006 with the presentation of papers and confirmed invited speakers Hub Zwart (Radboud University of Nijmegen) and Jan Boersema ( Vrije Universiteit Amsterdam) Scholars are invited to submit proposals for papers, which focus on any of the interactive dimensions of religion, ethics, science, and public discourses. Priority will be given to PhD and postdoctoral researchers. A variety of perspectives is encouraged (e.g. anthropological, ethical, historical, linguistic, philosophical, political, theological, sociological).
    Topics could include:
      · Religion and genomics, religion and ecology, religion and science. · Religious or scientific vocabularies used in public debates. · The relation between church, state, and science in politics. · Rationalism, emotion, and identity in public discourses on new technologies. · Interpretation of sacred texts and myths related to science and technology. · The role of the media in religious or scientific, public or political debates.
    Submission guidelines
      Those proposing to present papers should take note of the following guidelines: Please submit a 150-300 words long abstract including the proposed title of the paper + full name, address and e-mail address of the author and some personal background information (e.g. age, study, research field, recent publications), send it to Olga Crapels: o.j.p.crapels@let.leidenuniv.nl. Deadline abstracts: April 1, 2006 Before June 1, 2006 you will receive notice of whether your paper proposal is accepted. The conference language is English. File type: Word for Windows. Abstracts will be reviewed by the program committee based on content, presentation and suitability for the event. · By submitting an abstract you give permission to publish it on the conference web site, and probably in a printed conference booklet. The deadline for the fully worked out version of your paper is September 1, 2006. This full version is only required after acceptance of the abstract and not to be more than 5,000 words including abstract and references. The paper will be published as work in progress on the pass word protected web site of the conference.
    More information about the conference, the programme and registration is available on the conference web site: www.rspc-conference.nl University of Leiden Faculty of Theology Prof. Dr. W. B. Drees Postbus 9515 2300 RA Leiden The Netherlands


Tuesday, January 17, 2006
 
Tuesday Calendar


 
Welcome to the Blogosphere . . . . . . to Truth on the Market with Josh Wright, Bill Sjostrom Geoffrey Manne, Keith Sharfman, Pseudonym on the Market, and Thom Lambert.


 
Bone on Good Will in Trademark Law Robert G. Bone (Boston University School of Law) has posted Hunting Goodwill: A History of the Concept of Goodwill in Trademark Law (Boston University Law Review, Forthcoming) on SSRN. Here is the abstract:
    A deep tension lies at the heart of trademark law. On the one hand, the law’s core mission is to facilitate the transmission of accurate information to the market. Hence the touchstone of liability has always been the likelihood of consumer confusion. On the other hand, it is also customary to refer to trademark law as protecting goodwill in a mark. The problems arise because these two ways of formulating the goal push in different normative directions and create a policy tension that frustrates attempts to formulate a coherent body of doctrine. This Article examines how the goodwill concept originally entered trademark law and traces its intellectual and social history and its impact on trademark doctrine. Ever since the 1920s, and with greater frequency during the past two decades, courts have relied on the idea that trademark law protects against appropriation of goodwill to justify some rather broad, and ultimately ill-advised, doctrinal expansions. These expansions seem sensible extensions of trademark principles from the point of view of goodwill appropriation because of the elasticity of the goodwill concept, which can extend to include brand, firm, and in its broadest form, inherent goodwill. In the end, understanding this history gives a useful perspective from which to evaluate the role of goodwill in trademark law today and to propose reforms that would eliminate its pernicious effects.
Highly recommended!


 
Cox & Thomas on the Failure of Financial Institutions to Participate in Securities Class Action Settlements James D. Cox and Randall S. Thomas (Duke Law School and Vanderbilt University - School of Law) have posted Letting Billions Slip Through Your Fingers: Empirical Evidence and Legal Implications of the Failure of Financial Institutions to Participate in Securities Class Action Settlements (Stanford Law Review, Vol. 58, p. 411, November 2005) on SSRN. Here is the abstract:
    This article presents the results of an empirical investigation of the frequency with which financial institutions submit claims in settled securities class actions. We combine an empirical study of a large set of settlements with the results of a survey of institutional investors about their claims filing practices. Our sample for the first part of the analysis contains 118 settlements that were not included in our earlier study. We find that less than 30% of institutional investors with provable losses perfect their claims in these settlements. We then explore the possible explanations for this widespread failure. We suggest a wide range of potential problems from mechanical failures in the notification and recordkeeping processes to more subtle issues such as portfolio managers' beliefs that only investment activities produce significant returns for their clients. In order to determine which of these problems were the main culprits, we surveyed institutional investors about their claims filing practices, asking them who was responsible for this task, how they performed it, and what, if any, performance monitoring was done. We learned that most institutions relied on their custodian banks to file claims for them in securities fraud class action settlements, that many of these institutions did little monitoring of whether the custodian actually performed these services, and that custodians had financial disincentives to file claims on behalf of their clients. We argue that any such failures should be evaluated as potential breaches of the duty of care consistent with the monitoring obligations embraced in Delaware's Caremark decision. Applying this standard to our problem, we believe that the trustees of institutional investors must, in good faith, insure that their fund has an adequate system in place to identify and process the fund's claims. Furthermore, they should create a monitoring mechanism to insure that this system is adequate, and if they learn it is inadequate they should take measures to fix the problem. Custodians that file claims on behalf of their institutional clients should perform the various aspects of this job with due care, too, or face potential liability for negligence. We then identify several discrete problems with the claims filing system that can be addressed to help remedy the current situation. We conclude our article with two observations about the implications of our results for the goals of securities fraud litigation. Our survey results show a serious mismatch between the beneficiaries of the settlement and those that have been harmed by the securities violation that gave rise to the settlement. Simply stated, many defrauded beneficiaries are not compensated for their losses, while others are unjustly enriched. Given the enormous importance of institutional investors in the market, this mismatch raises serious doubts about whether securities fraud class actions can be justified as compensatory mechanisms. Moreover, the poor claims filing records of institutional investors exacerbates this mismatch, as many investors are systematically deprived of any benefits from these settlements. This raises more doubts about the compensatory function of securities fraud cases. Rather we believe the more persuasive rational for these cases is the deterrence of fraud. But in order to accomplish that purpose, we think that the current process needs to undergo some changes. We therefore suggest targeting securities fraud litigation at the individual wrongdoers, and invoking vicarious liability only when the company benefits from the fraud.


 
Penalver & Katyal on Property Outlaws Eduardo M. Penalver and Sonia Katyal (Fordham University School of Law and Fordham University School of Law) have posted Property Outlaws on SSRN. Here is the abstract:
    Most people do not hold those who intentionally flout property laws in particularly high regard. The overridingly negative view of the property lawbreaker as a wrong-doer comports with the nearly sacrosanct status of property rights within our characteristically individualist, capitalist, political culture. This dim view of property lawbreakers is also shared to a large degree by property theorists, many of whom regard property rights as a fixed constellation of allocative entitlements that collectively produce stability and order through ownership. In this Article, we seek to rehabilitate, at least to a degree, the maligned character of the intentional property lawbreaker, and to show how property outlaws have played an important role in the evolution, modification, and transfer of property entitlements. We develop a typology of the property outlaw by introducing three particular kinds of property lawbreakers - the acquisitive outlaw, the expressive outlaw, and the intersectional outlaw. Descriptively, we show that each type of property outlaw has enabled the reevaluation of, and, at times, productive shifts in the distribution or content of property entitlements. What emerges from this study of the property outlaw is an alternative vision of property law that focuses, not only on its capacity for fostering order and stability, but also on its dynamic function as a site for the resolution of conflict between owners and non-owners. We argue that, if property is to perform this dynamic function, the law should be careful not to over-deter those who conscientiously and nonviolently refuse to abide by existing property arrangements.


 
Call for Papers: Joint Session 2006
    CALL FOR PAPERS 2006 JOINT SESSION OF THE MIND ASSOCIATION AND THE ARISTOTELIAN SOCIETY UNIVERSITY OF SOUTHAMPTON, 7TH –9TH JULY OPEN SESSIONS
      A number of parallel sessions on Saturday and Sunday afternoons will be available for the presentation of papers not previously published. There will be a considerable number of these sessions available, allowing room for many submissions to be included. The intention is to accommodate all philosophical material suitable for presentation to a professional audience, so far as time and space in the programme allow, and not to operate a selective policy. Each presentation should last no more than 20 minutes, so that a further 10-15 minutes may be allowed for discussion. Presented papers should aim to introduce material involving recent research. There are no restrictions on the areas of philosophy which papers may address. Philosophers whose papers are included in this part of the programme must be or become subscribing members of one of the organising societies. Those wishing to make a presentation should submit by e-mail attachment a copy of their paper (no more than 2000 words), together with a 250-word abstract, to joint-session@soton.ac.uk by 1st March 2006. Decisions on whether papers have been accepted will be made by the end of April 2006. Papers accepted for the Open Sessions will not be published in the Supplementary Volume of the Aristotelian Society (unlike papers invited for the plenary programme of the conference); and expenses will not be paid.
    POSTGRADUATE SESSIONS
      Two parallel sessions on the Saturday afternoon will be devoted to short presentations by graduate students (or those who have recently obtained a postgraduate degree). Each student should speak for 20 minutes, allowing 10 minutes for discussion. Students wishing to participate should send their paper, preferably by attachment in Word 98 or higher, otherwise in two hard copies, by 1st February 2006 to: Dr. Mark Eli Kalderon, Department of Philosophy, University College London, Gower Street, London WC1E 6BT. Email: m.kalderon@ucl.ac.uk. The paper should be about 2000 words but no more than 2500 words, including notes and bibliography, and should begin with a brief abstract. It should be typewritten in 12-point text, single-spaced throughout (i.e. including references and quotations), on one side of white A4 paper. All pages should be numbered and have margins of 1 inch or more. Papers containing symbols liable to distortion in transmission should be submitted as hard copies; otherwise soft copy is welcome. Please ensure that there are no self-identifying references in the text. Submissions should be accompanied by a separate page containing the title of the paper, the name of the author, institution and status, and email and postal addresses. Authors are advised to consult supervisors about what may be suitable for presentation to a largely professional audience. Given the tight word-limit, they are advised to give as much space as they can to the statement of their own ideas. The papers will be sent to referees, and a maximum of eight will be selected for presentation at the Joint Session. The programme will be settled in May 2006. The selected authors will have their conference fee and accommodation expenses (but not their travel costs) paid by the Mind Association and the Aristotelian Society. Some papers may subsequently be considered for publication in the Proceedings of the Aristotelian Society. Nobody should submit a paper for both the Postgraduate and the Open Sessions, and only one paper may be submitted per individual. However, graduate students whose submission for the Postgraduate Sessions is unsuccessful may subsequently be advised that their paper has been accepted for the Open Sessions. Conference costs, however, will not be paid by the organisers.
    INVITED SPEAKERS Inaugural Address – Timothy Williamson Symposia:
      Andy Clark and Naomi Eilan Sally Haslanger and Jennifer Saul John Hawthorne and Scott Sturgeon Lloyd Humberstone and respondent Tom Hurka and John Tasioulas Ken Gemes and Christopher Janaway
    For information about the Aristotelian Society & the Joint Session see http://www.aristoteliansociety.org.uk


Monday, January 16, 2006
 
Legal Theory Calendar Assistance If you have a workshop series, one-time event, or something else that you believe is appropriate for the calendar, you can send me an email to: lsolum@gmail.com. It would be an enormous help if you used the following format for the subject line: "Legal Theory Calendar YYYY-MM-DD" with the date of the event filled in.
I would especially appreciate links to web pages that list the workshop or colloquium calendars. I check about 30-40 or these each week, but I must be missing several (or even dozens!).
Thanks!


 
Weekend Update On Saturday, the Download of the Week was Religion, Division, and the First Amendment by Rick Garnett, and the Legal Theory Bookworm recommended Improving Healthcare: A Dose of Competition edited by by David Hyman. On Sunday, the Legal Theory Lexicon entry was Intention, and the Legal Theory Calendar listed this weeks workshops and other events.


 
Monday Calendar Only one event today, because of the MLK holiday in the United States and start of term time in the UK.
    Vanderbilt Law: R. Richard Banks, Stanford Law School, "Race, Discrimination, and Equality in the 21st Century"


 
Kitrosser on Secrecy and Separated Powers Heidi Kitrosser (University of Minnesota - Twin Cities - School of Law) has posted Secrecy and Separated Powers: Executive Privilege Revisited on SSRN. Here is the abstract:
    This Article considers the constitutional validity of executive privilege claims made by the President against statutorily authorized information requests. The Article concludes that such claims are constitutionally illegitimate and that courts, when turned to, should order compliance with statutorily authorized demands for information in the face of executive privilege claims. This conclusion is reached in two steps. First, perusal of Article I’s list of legislative powers and Article II’s list of presidential powers does not clearly resolve the issue. Rather, such perusal alone offers fair ground to deem control of executive branch information both within Congress’ “sweeping clause” power and within the President’s execution power. Second, a broader analysis of constitutional text, structure and history demonstrates that information control has special constitutional significance. Specifically, such analysis suggests that secrecy within the political branches must, to be legitimate, remain a politically controllable tool of the people. To keep such secrecy within the ultimate control of the people, mechanisms must exist to keep the secrecy “shallow” and politically checkable. In other words, mechanisms must exist to ensure that the very fact of such secrecy is subject to public debate, reconsideration and reprisal. This is particularly crucial with respect to executive branch activities, given that branch’s special capacity for secrecy. The natural mechanisms to keep government secrecy shallow and politically checkable are statutory authorizations to Congress, to the public and to agencies to demand information. Furthermore, the statutory process itself is sufficiently protective of any interests in secrecy.
I read an eearlier version of this. Highly recommended!


 
Sherwin Demystifies Legal Reasoning Emily L. Sherwin (Cornell University - School of Law) has posted Demystifying Legal Reasoning: Part I (Demystifying Legal Reasoning, Forthcoming) on SSRN. Here is the abstract:
    Demystifying Legal Reasoning defends the proposition that there are no special forms of reasoning peculiar to law. Legal decisionmakers engage in the same modes of reasoning that all actors use in deciding what to do: open-ended moral reasoning, empirical reasoning, and deduction from authoritative rules. Part I (abstracted here) addresses common law reasoning, when prior judicial decisions determine the law. Part II addresses interpretation of texts. We conclude that, in both areas, the popular view that legal decisionmakers practice special forms of reasoning are false. In Chapter 2, we propose that there are two plausible models of common law reasoning, and only two. One is the "natural" model, in which courts resolve disputes by deciding what outcome is best, all things considered. The other is the "rule" model, in which courts treat rules announced by prior courts as serious rules of decision, then revert to natural decisonmaking when rules provide no answers. Despite the inescapable flaws of serious judicial rules, the rule model of common-law decisionmaking has advantages that we believe justify courts in adopting it. In Chapter 3, we explain why other supposed methods of legal reasoning are spurious. Analogical decisionmaking based on factual similarity between cases is either intuitive or deductive. If the process of identifying important similarities is intuitive, the precedent case does not constrain the outcome of the new case in any predictable or even detectable way. If the process is deductive, the rules or principles that govern similarity, rather than the outcome of the precedent. We also reject the possibility of reasoning from "legal principles." As a matter of logic, legal principles cannot operate in the way their proponents suggest, as a medium by which past decisions constrain the outcome of natural reasoning in current cases. The notion of weight is too elusive, and the criterion of fit with prior decisions is too malleable, to sustain the argument that legal principles guide judges in reaching decisions. Moreover, if legal principles could in fact effectively constrain decisionmaking, their effects would be pernicious: legal principles entrench past errors without securing the benefits associated with legal rules. In Chapter 4, we address both the problems judges face a rulemakers and the descriptive gap between the rule model of decisionmaking we have proposed and prevailing judicial practice. Practices that appear to contradict the rule model of decisionmaking may have developed in response to the special problems that arise when a single authority must both resolve a particular dispute and also announce rules for a broader class of future cases.


 
Proulx on the Jurisdiction of the International Criminal Court Vincent-Joël Proulx (New York University) has posted Rethinking the Jurisdiction of the International Criminal Court in the Post-September 11th Era: Should Acts of Terrorism Qualify as Crimes Against Humanity? (American University International Law Review, Vol. 19, No. 5, pp. 1009-1089, 2004) on SSRN. Here is the abstract:
    Following the events surrounding September 11th, many categories of international law are being revisited. The jurisdiction of the International Criminal Court (ICC) should be no exception. This article argues that acts of international terrorism, such as those perpetrated on September 11th, qualify as crimes against humanity under the Rome Statute. Mindful of the concept of complementarity found under the statute, this article identifies several situations where it would be desirable to grant the ICC jurisdiction over acts of terrorism. The article first examines the jurisdiction of the ICC as it currently stands, along with the reasons why state parties did not feel the need to include terrorism under ICC jurisdiction. Conversely, it presents the view, held by various states and legal scholars, that crimes of terrorism could be adjudicated on the international level. The article then moves toward the concrete process of rethinking the jurisdiction of the ICC so as to adapt to the modern war on terrorism. Before engaging in legal analysis, this article references the ongoing debate regarding adoption of an internationally-accepted definition for terrorism. Taking into consideration the fact that a majority of states share a common understanding of the minimal contents of such a definition, the author provides a solution to that polemic. In addition, this article briefly reviews the notion of crimes against humanity so as to demonstrate a prima facie proximity or compatibility between that infraction and acts analogous to those perpetrated by members of Al Qaeda. Finally, the article culminates with an analysis of Article 7 of the Rome Statute. Before dissecting every element found in that provision, the author surveys jurisprudential elements of the International Criminal Tribunal for the former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR) that delineate the legal boundaries of crimes against humanity. This project ultimately leads to a detailed analysis of the requirements found under Article 7, and applies these requirements to the acts perpetrated on September 11th. In sum, the position taken in this article is that the Rome Statute does not have to be modified in order to characterize acts of terrorism as crimes against humanity. Most importantly, it follows from this proposition that where genuine national prosecutions prove illusory, the ICC could assert jurisdiction over acts of international terrorism.


 
Conference Announcement: Historical Reflections on Human Nature at Boulder
    On March 3rd and 4th, CU/Boulder will hold the thirtieth-annual Morris Colloquium. The topic is "What Am I? Historical Reflections on Human Nature." Participating will be some of the leading historians of philosophy in North America, including
      Julia Annas Victor Caston Don Garrett Peter King Calvin Normore David Owen Marleen Rozemond Allen Wood Rega Wood
    For further information, go to http://www.colorado.edu/philosophy/morris/morris.html


 
Fulbright Distinguished Chairs
    The Council for International Exchange of Scholars (CIES) is pleased to announce the opening of the 2007-08 Fulbright Distinguished Chairs Program Awards Competition. FULBRIGHT DISTINGUISHED CHAIRS PROGRAM:
      Awards in the Fulbright Distinguished Chairs Program are viewed as among the most prestigious appointments in the Fulbright Scholar Program. Candidates should have a prominent record of scholarly accomplishment. Applicants should submit the one page Distinguished Chairs application form, a letter of interest (about three pages), a curriculum vitae (maximum eight pages) and a sample syllabus (maximum four pages) by the May 1 deadline. Following a review during the summer, scholars selected for the short list for each chair will be asked to complete a full application by August 1.
    A flyer listing these awards is available for download at the following link: http://www.cies.org/ab_dc/download/Chairs.pdf For more information, please visit our website at http://www.cies.org/ab_dc/. Or contact Assistant Director Maria Bettua, mbettua@cies.iie.org or Senior Program Associate Jamie Oberlander, joberlander@cies.iie.org.


Sunday, January 15, 2006
 
Legal Theory Calendar


 
Legal Theory Lexicon: Intention
    Introduction Was it intentional? Did he intend to kill? What were the original intentions of the framers of the United States Constitution? "Intention" is an important concept for legal theory. On the one hand, "intention" figures prominently in theories of criminal law and tort law. On the other hand, constitutional theory is interested in the idea of "the original intentions of the framers." This post provides a very rough and ready introduction to the idea of "intent" and related notions of "intentionality" for law students (especially first year law students) with an interest in legal theory.
    A Note on Terminology Legal theory is most concerned with "intentions" of the ordinary sort: "The defendant intended to kill" or "The Framers intended 'commerce' to exclude 'agriculture' in the commerce clause."--uses like these involve the ordinary legal use of "intention." There are, however, two related philosophical concepts that might be confused with this sense of intention. Philosophers use the word "intentionality" to refer to the ability of mental states to represent things, properties and states of affairs: in this special sense, all mental states are intentional. And philosophers also have a more technical concept of "intensionality"--spelled with an "s" rather than a "t" after the second "n"--that is used to refer to an important logical feature of words and sentences. A sentence is an intensional context if its truth value is sensitive to the substitution of referentially equivalent descriptions: don't worry, the jargon will be explained!. Ordinary intentions exhibit intentionality, intention sentences are intensional--hence the potential for confusion.
    Actions Are Intended Under a Description Jane hears a knock on the door and sees someone in the uniform of a package delivery company with a package. She invites the person in. She does not know that the person she has invited into her home is "the Westside rapist"--a serial rapist who disguises himself as a delivery person. If we ask her, did you intend to let "him" in, her answer will depend on the description we give. Did you intend to let the man in the delivery uniform in? Her answer will be "Yes." Did you intend to let the Westside rapist in? Her answer will be "No." The lesson of this example is that actions are intentional under a description. The very same individual was both "the man in the delivery uniform" and "the Westside rapist," but Jane's intentions were not the same with respect to the two different descriptions.
    Transparent and Opaque Contexts Actions are intentional under a description. Because of that fact, philosophers say that intention is a referentially opaque context. Boy, that is mouthful. What does that mean? Let's take a context that does not involve intentionality. The sentence "The Westside rapist entered Jane's house" does not involve an attribution of an intention. And we can substitute a different description for "Westside rapist" without affecting the truth value of the statement. Assuming that the Westside rapist did enter Jane's house and that his name was Norman Heathcliff, then all of the following statements would be true:
      The Westside rapist entered Jane's house.--True. Norman Heathcliff entered Jane's house.--True. The man in the delivery uniform entered Jane's house.--True. The man on he porch entered Jane's house.--True.
    We can substitute any description that refers to "Norman Heathcliff" and the truth value of the sentence is unaffected. A sentence that has this property is called "referentially transparent" or "an extensional context."
    Now, let's go back to intention. Suppose that Jane lets the man into her house, but does not know that he is the Westside rapist or that he is named "Norman Heathcliff." Truth value now will vary depending on how the man is described :
      Jane intended to let the man in the delivery uniform into her house.--True. Jane intended to let the Westside rapist into her house.--False. Jane intended to let Norman Heathcliff into her house.--False. Jane intended to let the man on the porch into her house.--True.
    But the four descriptions all refer to the same man. Because you cannot substitute referentially equivalent descriptions into expressions of intentions, we say that such expressions are "referentially opaque" or that they are "intensional" contexts. (Notice again that intensional was spelled with an "s".)
    The distinction between opaque and transparent contexts is fundamental to the philosophy of language, and this distinction figures prominently in philosophical writing about "intention." This may all sound a bit abstract, but this distinction is worth mastering. If you don't know it, you will not be able to follow any really sophisticated discussion about intention.
    What difference does the distinction between referentially transparent and opaque contexts make to the law? That's a big question, but here is one example. Some theories of constitutional or statutory interpretation assert that questions about the applicability of a legal rule can be settled by reference to the intentions of the authors of the statute. One line of attack on this view focuses on the question whether a collective body (e.g. a legislature or constitutional convention) has intentions in the same sense as does an individual. Putting that objection to the side, the distinction between opaque and transparent contexts can be used to build a different sort of objection. Suppose that we have only one legislator, Rex, and that Rex enacts a legal rule. Now a judge, Solomon, must apply the rule in a case where the meaning of the rule is either vague or ambiguous. Can Solomon simply apply the rule as Rex would intend? In some cases, the answer to this question may be "yes," but not in all. Why not? Because Rex may have intended the rule to apply to the case under some descriptions of the case, but not under others. Boy, that's abstract. Can you make your point more concrete?
    Consider this example. The same Congress that enacted the 14th Amendment's equal protection clause also segregated the schools of the District of Columbia. Suppose that this Congress had the following two intentions: (1) Congress intended that the equal protection clause should prohibit discrimination on the basis of race, and (2) Congress intended that the equal protection clause should not prohibit segregation of the public schools. Now suppose that we believe a third thing: segregation of the public schools is discrimination on the basis of race. Given this situation, the "intentions of Congress" cannot directly settle a particular case, e.g. Brown v. Board of Education. Under one description, Congress would intend that the case should be decided for Brown; under another description, Congress would intend that the case should be decided for the Board. Both descriptions are true of the case.
    Of course, I haven't developed this objection or the possible responses in a deep or thorough way. There is lots more to say. But the point is this. Legal rules are the product of intentional actions. Like all actions, lawmaking is intentional under a description. This means that statements about legislative intentions are referentially opaque. But when we apply a legal rule to a fact situation, we can describe the facts in many different ways. (A vast number of descriptions can refer to any particular legal dispute.) If intentions are to be used to as the basis for interpreting legal rules, it cannot be on the basis of a theory that says only, "Decide the case as the intentions of the lawmaker require." More will be required to make such a theory work.
    Intention and Foreseeable Consequences Does "intending an action" make a difference to either moral or legal responsibility? The distinction between intentional and unintentional action certainly seems to be important to both tort law and criminal law. Tort law differentiates between intentional torts and torts based on negligence or strict liability. Criminal law involves what is called mens rea or the "mental state" that is an element of the crime. In ordinary morality, we differentiate between intentional infliction of harm as more culpable than mere negligence.
    Most law students encounter the problem of foreseeable but unintended consequences in both criminal law and torts. Consider the following examples:
      --Example One: Ben has a gun. He aims at Alice and shoots, hoping to kill her. Her death was what he was trying to accomplish.
      --Example Two: Carlos plants a bomb under the bridge. He wants to destroy the bridge, but he also knows that when he triggers the bomb Dawn is on the bridge right over the powerful bomb. Carlos regrets that Dawn died, and he had hoped that by some miracle Dawn would live.
      --Example Three: Edgar is holding Francis and Gertrude captive. When Edgar's demands aren't met, he executes Francis. Edgar regrets that he had to do this, but he believes this is the only way that he will be able to intimidate Francis and Gertrude's employer into paying a ransom for Francis.
      --Example Four: Harry shoots in the air on New Year's Eve. The bullet goes up and comes down, killing Ingrid. Harry did not intend to kill anyone, but he did recognize that there was a small risk that his bullet might strike and injure or kill.
    In all four cases, we can say that one person killed another: Ben killed Alice, Carlos killed Dawn, Edgar killed Francis, and Harry killed Ingrid. But each case differs with respect to intentionality:
      In example one, Ben intended to kill Alice and her death was his end.
      In example two, Carlos intended to blow up the bridge and Dawn's death was a foreseen and very likely consequence of this intentional act, but Carlos did not directly intend to kill Dawn.
      In example three, Edgar intended to kill Francis, but her death was a means to a further end--payment of the ransom.
      In example four, Harry did not intend to kill Ingrid, but his intentional act foreseeably resulted in her death.
    Are these cases alike or different? Morally or legally? Of course, those are big questions, but we can make a little progress on them. Cases one, two, and three are usually considered to be indistinguishable so far as culpability is concerned: in all three cases, the actor intends the death of the victim. Case four is usually considered to be distinguishable from cases one, two, and three: case four involves negligence which may be culpable but is not as blameworthy as intentional killing. Case two--where the Dawn's death is foreseen as highly likely but is not desired--is sometimes said to involve "oblique intention." Even though the death in case two was not directly intended, it is nonetheless the natural and foreseeable consequence of the intended action (blowing up the bridge while someone is on it).
    Trolley Problems In all four cases described above, the action that results in death is clearly wrongful. But that is not so clear in the famous "Trolley Problem." Here is a statement of the problem:
      A trolley is running out of control down a track. In its path are 5 people who have been tied to the track by a mad philosopher. Fortunately, you can flip a switch which will lead the trolley down a different track. Unfortunately, there is a single person tied to that track. Should you flip the switch with the result that one will die instead of five?
    Most philosophers agree that it is morally permissible to flip the switch. The philosopher and legal theorist John Mikhail has done a series of experiments that confirm that most ordinary people agree. If you pull the switch, you act intentionally and you cause the death of the one person. Now consider a second problem, "Organ Harvesting":
      You are a surgeon performing elective surgery on a healthy person. Five other patients are on the verge of death, but could be saved if you killed your healthy patient and harvested her organs. Should you kill your patient?
    Almost everyone (except perhaps some hard-core act utilitarians) agrees that killing the patient is morally impermissible. Both cases involve causing the death of one to save five. But in the "Trolley Problem," you do not directly intend the death; in the Trolley problem, you may hope that through some miracle the one person escapes death. In "Organ Harvesting," on the other hand, the surgeon must intend the patient's death. The organs can only be harvested if the patient is killed. Perhaps it is the intention to kill that makes the difference to our moral intuitions.
    Our discussion of the Trolley Problem has been very brief and superficial. For more, you can follow this link. For our purposes, the point of the trolley problem is to suggest that intention is potentially important to questions of culpability.
    Conclusion Every legal theorist needs a basic mastery of "intention." But this is a very deep topic. If you are drawn to the theory of criminal law or the theory of torts or to constitutional theory or statutory interpretation, you will want to know more about "intent." Hopefully, this entry will get you started.


Saturday, January 14, 2006
 
Legal Theory Bookworm The Legal Theory Bookworm recommends Improving Healthcare: A Dose of Competition, edited by by David Hyman. Here's a blurb:
    Improving Healthcare: A Dose of Competition systematically examines the American health care system from a competition-oriented perspective. The volume surveys the performance of each major sector of the health care system, and identifies impediments to more effective competition. Improving Healthcare examines such issues as competition v. regulation, public and private sector approaches to health care financing, cross-subsidies, licensure, provider market concentration, financial and clinical integration, payment for performance, quality, pharmacy benefit managers, direct-to-consumer advertising of pharmaceuticals, certificates of need, mandates, unionization, the significance of organizational status (nonprofit v. for-profit), and the role of antitrust and consumer protection in health care. It offers concrete recommendations to improve the quality and cost-effectiveness of the American health care marketplace.


 
Download of the Week The Download of the Week is Religion, Division, and the First Amendment by Rick Garnett. Here is the abstract:
    Nearly thirty-five years ago, in Lemon v. Kurtzman, Chief Justice Warren Burger declared that state programs or policies could excessive[ly] - and, therefore, unconstitutionally – entangle government and religion, not only by requiring or allowing intrusive public monitoring of religious institutions and activities, but also through what he called their divisive political potential. Chief Justice Burger asserted also, and more fundamentally, that political division along religious lines was one of the principal evils against which the First Amendment was intended to protect. And from this Hobbesian premise about the inten[t] animating the First Amendment, he proceeded on the assumption that the Constitution authorizes those charged with its interpretation to protect our normal political process from a particular kind of strife and to purge a particular kind of disagreement from politics and public conversations about how best to achieve the common good. This Article provides a close and critical examination of the argument that observations or predictions of political division along religious lines should supply the content, or inform the interpretation and application, of the Religion Clause. The examination is timely, not only because of the sharp polarization that is said to characterize contemporary politics, but also because of the increasing prominence of this political division argument. The inquiry and analysis that follow have empirical, doctrinal, and normative components: What, exactly, is religiously based social conflict - or, as the Court put it in Lemon, political . . . divisiveness on religious lines? What, exactly, is the relevance of such conflict to the wisdom, morality, or constitutionality of state action? How plausible, and how normatively attractive, are the political-divisiveness argument and the principle it is intended to vindicate? How well do this argument and this principle cohere with the relevant text, history, traditions, and values? And what does the recent resurfacing of this argument in the Religion Clause context reveal and portend about the state and trajectory of First Amendment theory and doctrine more generally? Working through these questions, I am mindful of John Courtney Murray's warning that we should cherish only modest expectations with regard to the solution of the problem of religious pluralism and civic unity, and also of his observations that pluralism [is] the native condition of American society and the unity toward which Americans have aspired is a unity of a limited order. Those who crafted our Constitution believed that both authentic freedom and effective government could be secured through checks and balances, rather than standardization, and by harnessing, rather than homogenizing, the messiness of democracy. It is both misguided and quixotic, then, to employ the First Amendment to smooth out the bumps and divisions that are an unavoidable part of the political life of a diverse and free people.
Highly recommended! Download it while its hot!
And while I'm at, there were several fabulous papers this week, check out:


Friday, January 13, 2006
 
Sherwin on Moral Anxiety About Good Property Rights Emily L. Sherwin (Cornell University - School of Law) has posted Three Reasons Why Even Good Property Rights Cause Moral Anxiety on SSRN. Here is the abstract:
    Entirely apart from the substantive justification for existing private property rights, there are several reasons why property is, unavoidably, a morally uncomfortable subject. First, legal property rights are and must be the products of determinate legal rules. As such, they inevitably will diverge in some of their applications from the moral principles that support them. Second, property rights suffer, more than other legal rights, from problems of transition.* Most or all justifications for private property envisage secure rights on which people can and will rely. As a result, there may be genuine moral value in the preservation of rights that were not morally justifiable at their point of origin. Finally, property rights expose fundamental conflicts among the different conceptions of justice - distributive, corrective, and retributive justice - that guide our system of law. It follows that even if private property rights are in fact morally justified, they are likely to generate moral unease. See generally Legal Transitions: Is There an Ideal Way to Deal with the Non-Ideal World of Legal Change?, 13 J. Contemp. Legal Issues, Issue 1 (2003).
Yet another recommended paper!


 
Garnett on the Political Economy of Just Compensation Nicole Stelle Garnett (Notre Dame Law School) has posted What a Strange Place to Put a Church: The Political Economy of 'Just Compensation' on SSRN. Here is the abstract:
    The Supreme Court's public use decision, Kelo v. New London (US 2005), has prompted dozens of proposals to reform eminent domain practices legislatively. Most of these proposals would restrict the use of eminent domain to transfer of property from one private individual to another. Noted legal scholars have proposed, however, compensation-based reforms as a wiser alternative to this prohibitory model. These suggestions flow naturally from the widely accepted belief that the constitutionally mandated fair-market-value compensation may undercompensate owners. This Article argues that the undercompensation problem likely has been overstated because scholars mistakenly have focused on the compensation required by the Constitution, rather than on the actual mechanics of the eminent domain process. Specifically, the Article examines three ways that Takers (i.e., non-judicial actors in the eminent domain process) may minimize undercompensation. First, Takers may simply avoid taking high-subjective-value properties. (By way of illustration, I examine evidence that expressway planners dodged Chicago's urban Catholic churches.) Second, Takers may (and frequently are required to) pay more compensation in the form of relocation assistance. Third, during mandatory pre-condemnation negotiations, Takers and property owners may voluntarily settle on above-market compensation. (This part of the Article includes an empirical case study of the compensation paid by St. Joseph County, Indiana to purchase -under threat of eminent domain - several dozen residential properties for a facility to manufacture luxury H2 sport utility vehicles.) The Article concludes by asking a natural question: If undercompensation is less of a problem than commonly assumed, is eminent domain reform really needed? The final Part argues that there are two problems, unique to takings raising public use questions that more money cannot solve: First, high compensation levels may undermine critical political resistance to questionable projects; second, private takings may generate high non-instrumental, dignitary harms that will persist even as compensation increases. These problems weigh in favor of some version of the prohibitory model of eminent domain reform currently dominating legislative debates.
It's a good day for new papers on SSRN!


 
Ribstein on the Economics of Federalism Larry Ribstein (Illinois) has posted The Economics of Federalism on SSRN. Here is the abstract:
    This is the introductory essay for the Economics of Federalism, a book edited by the authors and forthcoming in Edward Elgar Publishing's ECONOMIC APPROACHES TO LAW series. This essay discusses the major issues and theories concerning federal political systems, which we define as systems that have a hierarchy of at least two distinct "state" and "central" levels, each with a well-defined scope of authority. The essay discusses two branches the economics literature. The first branch, on competitive federalism, stems from Tiebout's 1956 article. It focuses on the horizontal structure of federalism and examines jurisdictional competition between state governments for mobile individuals and resources. The second branch of the literature, on fiscal federalism, examines the vertical structure of federalism, or the division of public services and taxing power between the central and state governments. The essay also examines applications of the economic analysis of federalism to specific areas of the law, including corporate law, antitrust law, environmental law, choice of law rules, contractual choice of law, and public choice theory.
Ribstein focuses on what is important on virtually every topic he discusses. Highly Recommended!


 
Hanson & Benforado on Supreme Court Drift Jon D. Hanson and Adam Benforado have a new piece entitled The Drifters: Why the Supreme Court makes justices more liberal at Boston Review. Here's a taste:
    Why are presidents, and other backers, so often disappointed by the eventual performance of their nominees? And why do so many Supreme Court justices drift to the left, especially on matters of individual rights? In a groundbreaking essay, Hanson and Benforado argue that an array of structural forces conspire to open justices' minds and, ultimately, push their opinions to the left. "With the pressure of being the last ones to decide a matter, with the knowledge that the outcome of any one case may influence hundreds of others and thousands of lives, with the benefit of a robust debate, with access to time, resources, information, and a variety of perspectives, it is more difficult for justices to rely on the ideological intuitions or commitments that may have helped get them nominated in the first place."


Thursday, January 12, 2006
 
Thursday Calendar The Legal Theory Calendar will be back in full swing next week, but in the meantime, here are two events today:Thanks to Paul Caron for the latter two events.


 
Rodriguez & McCubbins on PPT, Law, and the Judiciary Daniel B. Rodriguez and Mathew D. McCubbins (University of San Diego School of Law and University of California at San Diego) have posted The Judiciary and the Role of Law: A Positive Political Theory Perspective (HANDBOOK ON POLITICAL ECONOMY, B. Weingast & D. Wittman, eds., Oxford University Press, 2006) on SSRN. Here is the abstract:
    In this chapter for a comprehensive volume on political economy, the authors survey key work in the positive political theory tradition and its impact on the study of law and judicial politics. They consider, in particular, the influence of positive political theory on the study of statutory interpretation, administrative law, and judicial independence. This chapter draws upon the recent literature and aims, as well, to synthesize into some discernible themes a broad body of work within the positive political theory framework.
Highly recommended! Because the training for the legal academy is so varied and disparate, many legal academics have only a very vague awareness of "PPT" or positive political theory and the important work done in this tradition on issues that are salient to almost every legal scholar. McCubbins and Rodriguez do some of the best PPT/Law work and a survey authored by them is really a wonderful way to get a sense of the lay of the land. Download it while its hot!


 
Conference Announcement: Portugese Society for Analytic Philosophy at Lisbon
    Portuguese Society for Analytic Philosophy Third National Meeting (ENFA-3) University of Lisbon, 2-4 June 2006 Keynote speakers
      Timothy Williamson, University of Oxford Wlodek Rabinowiz, University of Lund João Saagua, Universidade Nova de Lisboa (to be confirmed) António Branco, Universidade de Lisboa
    Call for Papers
      The third meeting of the Portuguese Society for Analytic Philosophy (ENFA-3) will be held on 2-4 June 2006 at the Faculty of Letters of the University of Lisbon. Besides plenary sessions with invited papers, there will be parallel sessions with submitted papers. Submissions on any philosophical topic in the analytic tradition are welcome (just one submission per person, please). Submissions should take the form of abstracts written either in Portuguese or in English and present the outline of the paper, containing the thesis argued for as well as the key arguments supporting it. They should not exceed 1000 words. Please e-mail submissions to enfa3@netcabo.pt (the subject should be ENFA-3). Name of author, affiliation and e-mail should appear only in the main message. The abstract should be sent as an attached file both in Word and Pdf format. Papers should not exceed a 30 minute reading time.
    Deadline for submissions: March 31st, 2006. Selection: All abstracts will be blind-refereed. Efforts will be made to include in the program quality original papers from different philosophical disciplines. Notification of acceptance will be sent by April 30th, 2006. Programme committee: João Branquinho (Chair), Universidade de Lisboa; Sofia Miguéns, Universidade do Porto; Desidério Murcho, Centro de Filosofia da Universidade de Lisboa; Ricardo Santos, Universidade Nova de Lisboa; Pedro Santos, Universidade do Algarve Organizing committee: João Branquinho, Universidade de Lisboa; António Lopes, Centro de Filosofia da Universidade de Lisboa; Carla Simões, Centro de Filosofia da Universidade de Lisboa. ENFA-3 is jointly organized by the Philosophy Centre and the Philosophy Department (Instituto Filosófico Pedro Hispano) of the University of Lisbon. Information about registration, accommodation, etc., will be available soon on the website of the meeting: http://pwp.netcabo.pt/QED/enfa3 Sponsors: Fundação para a Ciência e a Tecnologia. Venue: Faculdade de Letras da Universidade de Lisboa, Alameda da Universidade 1600-214 Lisboa, PORTUGAL Tel +351217920000; Fax +351217960063 Further information: João Branquinho jbranquinho@netcabo.pt


Wednesday, January 11, 2006
 
New York Times on Blogger Reaction to Alito Check out Blogger Reaction to the Alito Hearings, with links to Howard Bashman, Rick Hasen, Orin Kerr, Steve Bainbridge, and others.


 
Conference Announcement: MLEA 2006 at Kansas This year's meeting of the Midwestern Law & Economics Association will be held at the University of Kansas School of Law on October 20 & 21, 2006.


 
More on Blogging and Scholarship Following my post of Monday, Blogging, Legal Scholarship, and Academic Careers, Doug Berman (of the excellent Sentencing Law and Policy blog) offers the following anecdote:Internet time, indeed!


 
Garnett on Religious Division Richard Garnett (Notre Dame) has posted Religion, Division, and the First Amendment on SSRN. Here is the abstract:
    Nearly thirty-five years ago, in Lemon v. Kurtzman, Chief Justice Warren Burger declared that state programs or policies could excessive[ly] - and, therefore, unconstitutionally – entangle government and religion, not only by requiring or allowing intrusive public monitoring of religious institutions and activities, but also through what he called their divisive political potential. Chief Justice Burger asserted also, and more fundamentally, that political division along religious lines was one of the principal evils against which the First Amendment was intended to protect. And from this Hobbesian premise about the inten[t] animating the First Amendment, he proceeded on the assumption that the Constitution authorizes those charged with its interpretation to protect our normal political process from a particular kind of strife and to purge a particular kind of disagreement from politics and public conversations about how best to achieve the common good. This Article provides a close and critical examination of the argument that observations or predictions of political division along religious lines should supply the content, or inform the interpretation and application, of the Religion Clause. The examination is timely, not only because of the sharp polarization that is said to characterize contemporary politics, but also because of the increasing prominence of this political division argument. The inquiry and analysis that follow have empirical, doctrinal, and normative components: What, exactly, is religiously based social conflict - or, as the Court put it in Lemon, political . . . divisiveness on religious lines? What, exactly, is the relevance of such conflict to the wisdom, morality, or constitutionality of state action? How plausible, and how normatively attractive, are the political-divisiveness argument and the principle it is intended to vindicate? How well do this argument and this principle cohere with the relevant text, history, traditions, and values? And what does the recent resurfacing of this argument in the Religion Clause context reveal and portend about the state and trajectory of First Amendment theory and doctrine more generally? Working through these questions, I am mindful of John Courtney Murray's warning that we should cherish only modest expectations with regard to the solution of the problem of religious pluralism and civic unity, and also of his observations that pluralism [is] the native condition of American society and the unity toward which Americans have aspired is a unity of a limited order. Those who crafted our Constitution believed that both authentic freedom and effective government could be secured through checks and balances, rather than standardization, and by harnessing, rather than homogenizing, the messiness of democracy. It is both misguided and quixotic, then, to employ the First Amendment to smooth out the bumps and divisions that are an unavoidable part of the political life of a diverse and free people.
Highly recommended!


Tuesday, January 10, 2006
 
New from Tulane Congratulations to the Tulane Law Review for Volume 80, Issue Number 1:
    Foreword by Meredith Byars
    Memorial to Luther Love McDougal III by Mark McDougal
    In Memoriam - Luther L. McDougal III by Martin L.C. Feldman
    A Colleague's Memorial to Luther L. McDougal III by M. David Gelfand
    The Judge as Comparatist by Sir Basil Markesinis & Jörg Fedtke
    Constitutional Comparativism in South Africa: A Response to Sir Basil Markesinis and Jörg Fedtke by Laurie W.H. Ackermann
    Response to The Judge as Comparatist: Comparison in Public Law by Aharon Barak
    The Constitutional Judge and the International Constitutionalist Dialogue by Brun-Otto Bryde
    La pratique du droit compare par les cours supremes Breves reflexions sur le dialogue des juges dans les experiences française et europeenne: en commentaire de l'article de Sir Basil Markesinis et Jörg Fedtke Le juge en tant que comparatiste by Guy Canivet
    Comparative Law in Constitutional Adjudication: The South African Experience by Sir Sydney Kentridge
    The European Judge as Comparatist by Christos L. Rozakis
    A Response to The Judge as Comparatist by Konrad Schiemann
    Comment: Multistate Class Actions Properly Frustrated by Choice-of-Law Complexities: The Role of Parallel Litigation in the Courts by Jeremy T. Grabill
    Book Review: Comparative Law in the Courtroom and Classroom: The Story of the Last Thirty-Five Years. By Sir Basil Markesinis, reviewed by James Gordley
And congratulations to Stephen Griffin of Tulane on his recent election as the Chairman of the Constitutional Law Section of the Association of American Law Schools! I'm sure the readers of Legal Theory Blog will join me in wishing all of the law schools and other academic institutions in the New Orleans area the very best for the year to come.
Thanks to Paul Caron for the link!


 
Public Awareness of the Supreme Court Check out FindLaw's US Supreme Court Awareness Survey. Here's a taste:
    The percentages of Americans who could name each current justice were as follows:
      27% Sandra Day O'Connor 21% Clarence Thomas 16% John Roberts 13% Antonin Scalia 12% Ruth Bader Ginsburg 7% Anthony Kennedy 5% David Souter 3% Stephen Breyer 3% John Paul Stevens


 
Alito on Precedent & Super (Duper) Precedent I'm listening to the Alito hearings as Senator Specter asks Judge Alito about the doctrine of stare decisis. Alito says, "it is not an inexorable demand but it is a general presumption." Of course, that is a fairly common view of stare decisis--that it is a presumption, which as Alito puts it, "can be overcome by a special justification." Framed in that way, of course, we really have no idea what Alito's view of precedent really is. Everything would depend on what makes a justification "special." The realist view of precedent is that this is an instrumental question--through and through. Specter's follow-up questioning of Alito focused on Casey, Miranda, and the concept of the reliance interest in stare decisis. Of course, this is still quite vague, but the focus on reliance suggests that both Specter and Alito see stare decisis as a prudential judgment--about the costs and benefits of following precedent and not as a doctrine that binds the Supreme Court.
Specter is now asking Alito about the concept of "super precedent" or "super stare decisis. Alito says that he would not use the label "super," but he says that when a precedent is reaffirmed, it strengthens the precedent. Reaffirmance "should be taken into account." And he agrees that there are "precednets on precedents." Stare decisis is " a judgment that has to be made taking into account all the factors."
This exchange is, of course, not unexpected. Specter is trying to get Alito to commit to Casey and Roe. Alito is trying to avoid commitment. But something of jurisprudential interest is occuring underneath the exchange. The concept of "super precedent" is really an attempt to return to an older and more formalist conception of stare decisis. Of course, this "old fashioned" approach is very much alive today in the doctrines of "vertical stare decisis--the binding effect of precedents on lower courts and the doctrine of "horizontal stare decisis" in intermeidate courts of appeal. (In the 3rd Circuit, for example, each panel considers circuit precedent "binding" and not simply a "presumption" that can be overcome by balancing "all the factors."
In other words, the idea of "super precedent" is an attempt to revive the notion of "binding stare decisis" within a realist/instrumentalist framework that denies that Supreme Court precedent should ever truly be binding.


 
Conference Announcement: Federalism Past & Future at St. John's
    Federalism Past, Federalism Future: A Constitutional Law Symposium Friday, March 3, 2006 St. John’s University School of Law 8000 Utopia Parkway Queens, NY 11439 Schedule:
      9:30 Registration/breakfast reception 10:00 Opening Remarks, Mary C. Daly, Dean & John V. Brennan Chair of Law and Ethics, St. John’s University School of Law
      10:05 Opening lecture, Akhil Reed Amar, Southmayd Professor of Law, Yale Law School
      10:45 Panel I: Federalism Past: The Current State of the “Revolution”
        Preeta D. Bansal, Partner, Skadden, Arps, Slate, Meagher & Flom, LLP; former Solicitor General of the State of New York
        John Q. Barrett, Professor, St. John’s University School of Law & Elizabeth S. Lenna Fellow, Robert H. Jackson Center
        Neal Devins, Goodrich Professor of Law, Professor of Government & Director, Institute of Bill of Rights Law, College of William & Mary, Marshall-Wythe School of Law
        Barbara D. Underwood, Counsel to the United States Attorney, Eastern District of New York; formerly both Principal Deputy Solicitor General of the United States and Acting Solicitor General of the United States
      12:15 Lunch Speaker: Jeffrey Toobin, Staff writer, The New Yorker; senior legal analyst, CNN
      1:30 Panel II: Federalism Future: the prospects for future revolutions
        Michael C. Dorf, Michael I. Sovern Professor of Law, Columbia Law School
        Stephen M. Griffin, Rutledge C. Clement, Jr. Professor in Constitutional Law, Tulane Law School
        William W. Van Alstyne, Lee Professor of Law, College of William & Mary, Marshall-Wythe School of Law
        Timothy Zick, Associate Professor, St. John’s University School of Law
      3:00 Closing reception
    For further information, please contact: Nancy Hollihan Brady Manager of Special Events St. John's University School of Law


Monday, January 09, 2006
 
Weekend Update On Saturday, the Download of the Week was Suzanna Sherry's Politics and Judgment and the Legal Theory Bookworm recommended The Place of Families: Fostering Capacity, Equality, and Responsibility by Linda C. McClain. Sunday's Legal Theory Lexicon was on Speech Acts.


 
Unable to Resist Temptation As the Chair of the Constitutional Law Section of the Association of American Law Schools, I was the organizer and moderator of a session entitled "The Constitution in Exile" featuring a discussion with Randy Barnett, Cass Sunstein, and several distinguished members of the audience. Please accept my apologies for being unable to resist the temptation to quote from Sunstein and Barnett at AALS posted by Kaimi Wenger on Concurring Opinions:
    Some of you missed the Friday morning session at AALS about the Constitution in Exile, with Cass Sunstein and Randy Barnett. It was your loss – the session was phenomenal. It was the best session of any that I attended at the conference (including the blogging session, which was itself very good). Both Sunstein and Barnett are very good speakers, and the material they covered was very interesting.
Wenger goes on to summarize and comment on the session, which will eventually be available from the AALS as a Podcast.
Thank you Kaimi! And thanks to Barnett & Sunstein for agreeing to participate!


 
Blogging, Legal Scholarship, and Academic Careers
    Introduction Three days ago, I participated in a panel at the annual meeting of the Association of American Law Schools on blogging and legal scholarship. The panel was organized by Dennis Patterson and my copanelists were bloggers Randy Barnett and Victor Fleisher. Paul Caron blogged about the panel and several comments have followed, including Christine Hurt's (Sigh) Women & Blogging, Part 72) at Conglomerate, Orin Kerr's Law Prof Blogging: Scholarship or Distraction? at The Volokh Conspiracy, Dan Markel's Scholarship or Distraction? at PrawfsBlawg, Larry Ribstein's Blogging: Distraction from What?) at Ideoblog, David Schraub's Blogging as Scholarship as Struggle) at The Debate Link, and Dan Solove's two posts, Blogging Without Tenure and Christine Hurt on Blogging and Gender, at Concurring Opinions. The blogging and much of the question and answer at the session itself focused on the career implications of blogging for legal scholarship. I'd like to say something about that topic, but first I thought it might be interesting to talk about the other side of the panel--the relationship between "lawprof blogging" and legal scholarship. Especially since Randy Barnett has urged me to weigh in!
    Blogging and Legal Scholarship
      “Academic Blogs” versus “Blogs by Academics” versus “Blogs About Law” Let me begin by noting that "blogging" is too broad a category. There are several different kinds of blogs that interact legal scholarship. There are academic blogs--not all of which are written by academics (i.e. Law and Soceity Weblog). Legal Theory Blog fits in this category--at least I hope it does. Then there are blogs by academics, which may or may not deal with academic topics. For example, the Volokh Conspiracy is a group blog with mostly academic participants, but the topics range from academic topics to law, politics, movies and even the Roomba! Then there are blogs about law by lawyers, law students, and others. In this category, there are two blogs that are important to legal scholarship--Howard Bashman's How Appealing and Scotus Blog. And a variety of other blogs--Eve Tushnet's, for example, that make significant contributions to academic debates.
      Blogging Is Part of a Larger Set of Interrelated Phenomena One more thing. It is a mistake to look at blogging in isolation. The "blog" or "weblog" are just the tip of the iceberg or of several iceberts. Weblogs are simply ways of using the "World Wide Web" and the Web is just one way of using the Internet to transform scholarship and the academy. And blogs are significant in part because they are "defacto" open source publications--that is, bloggers allow their material to be quoted in whole or part and to be republished via RSS feeds. The "blog" itself may be replaced in a few years (or even months), but it represents larger and more enduring trends.
      Seven reasons that the internet may be important to legal scholarship Here they are:
        Internet time versus snail mail and paper time Think about this. In the old days, scholarly opinion about Supreme Court opinions (and other significant legal events) took months to gel. A decision was handed down. Some legal scholars would actually read the opinion. There would be a bit of superficial commentary in the media. There would be some discussion in the halls and the lunch room. And then there would be a long wait. The first important scholarly assessment would come in the Supreme Court issue of the Harvard Law Review--followed a string of law review articles, student notes, and, of course, The Supreme Court Review. Of course, all of that still occurs, but today a really major Supreme Court case is likely to provoke a blogospheric eruption, including high-level practitioners and academics. Within two or three days, interpretations will have been advanced, criticized, and abandoned. Most of the major positions will have been sketched, criticized, and defended. Of course, this initial outpouring of blogospheric reaction is not the end of the story, but it is a beginning, and it is different, significantly and substantially different, than what happened in the days when snail mail and paper time--the publication schedules of the law journals--determined the pace at which legal ideas were disseminated.
        The Open Source Revolution Blogs are part of and related to another significant trend in the dissemination of legal scholarship--what we might call the "open source" revolution, by way of analogy with "open source" software. The "old" legal scholarship was copyrighted--usually with the copyright held by law journals and academic or legal presses. The "new" legal scholarship may be copyrighted, but increasingly legal scholars are demanding that their publications be available for free downloading and duplication. Almost everything I publish now includes the following "copyright notice":
          (c) by the author. Permission is hereby granted for noncommercial reproduction of this article in whole or in part for educational or research purposes, including the making of multiple copies and/or online distribution for classroom or research use, subject only to the condition that the name of the author, a full citation, and this copyright notice and grant of permission be included in each of the copies.
        Not only are "blogs" open source, they also are a prominent intermediary in the distribution of open source legal scholarship. A very prominent example is the day that the blogosphere exploded with commentary on Cass Sunstein and Adrian Vermeule’s draft paper: Is Capital Punishment Morally Required? The Relevance of Life-Life Tradeoffs. Try googleing "Sunstein Vermeule Death Penalty" and you will immediately see what I mean. Not only does open-source, downloadable legal scholarship create the opportunity for scholarly debate in the accelerated world of "Internet" time, it also faciliatates a number of other important phenomena. That is blogs interact with SSRN and BE Press and other vehicles for the dissemination of downloadable papers.
        Google & Full Text Searching And one of the "other important phenomena" is the interrelationship between googleing, full-text searchability, free-downloads, and the blogs. Anyone who runs a blog can testify to the importance of Google to readership. But this points to something else--the importance of Google and full-text searching to new modes of academic research. Ask anyone under 25 how they do research. Frankly, I'd be surprised if there were more than a tiny fraction of frank answers that failed to include Google. I suspect that that a very substantial percentage of young researchers start and end their systematic search for "starting points"--the articles that yield the further sources that then complete the research process--with Google and Google alone.
        Disintermediation The dissemination of legal scholarship has traditional been dominated by intermediatires--institutions that stand between the author and audience. Blogs, Google, SSRN & BE Press, are all part of a process of disintermediation.
        What does that mean? To understand "disintermediation," we need to take a look back at the "old intermediary institutions," which can be further divided into two categories, the "old-old intermediaries" and the "new-old intermediaries."
        The old-old intermediaries were student-edited law journals (like the Harvard Law Review or the Yale Law Journal) and legal presses (like West and Matthew-Bender). If you wanted to disseminate anything other than a treatise, you sent off a manuscript to a buch of student-edited law journals. Sooner or later, some journal would accept your article and then several months to several years later, it would come out in pring. (Several years is a bit of an exaggeration, but the delay between acceptance and publication could easily be more than two years given the vagaries of student editorial boards.) Of course, venue mattered. Publication in the Harvard Law Review guaranteed a wide audience. Publication in the East-West Overshoe Law Journal almost (but not quite) guaranteed a narrow audience.
        Over the course of the past two decades, the old-old intermediaries have increasingly been supplemented and even sometimes displaced by the new-old intermediaries: the peer-reviewed journals and academic presses. The emergence of the new-old intermediaries has gone hand and hand with the trend towards "interdisciplinarity" in legal scholarship. That is, as law and economics, law and philosophy, law and history, law and psychology, law and political science, and other "law and" approaches have become more important in the legal academy, legal scholarship has increasing turned towards the venues of (or modeled on) other disciplines.
        There is an irony about the turn towards academic presses and peer-reviewed journals. By and large, publication in a peer-reviewed journal or academic press tends to work against open-source legal scholarship. Academic presses also tend to be the back-end publishers of peer-reviewed journals. And academic presses are under tremendous pressure to break even or show a "profit," even if they are formally subsidiary to a nonprofit insitution such as a university. Since copyrights in scholarship are the only assets that academic presses own, it is hardly surprising that most academic presses are unwilling to give scholarship away for free. Hence, an article pubished in a peer-reviewed journal is less likely to be available for free downloading on SSRN or BE Press than an article published by a student-edited law review. And that means that an article published in a peer-reviewed journal may be less likely to be the subject of a blog post.
        Lifting the Cone of Silence You remember the cone of silence! From "Get Smart!" One of the complaints about the legal academy is that legal academics operate as if they were within a virtual cone of silence--able to talk only to each other and inaudible to the outside world. We might call this phenomenon, the "acoustic isolation of the legal academy." Blogs, open-source, and Google all operate to lift the cone of silence and make the ideas advanced by legal academics available to a larger world.
        Every prominent academic blogger has personal experience of this phenomenon. I get email from high-school students, undergraduates, lawyers, judges, stay-at-home dads and moms, investment bankers, retired generals, and importantly journalists. Blogs and google make scholarship available at lower cost and through somewhat random processes.
        Globalization Just as blogs disseminate ideas beyond the academy, they also faciliate the international distribution of legal scholarship. In the past week, I've recieved emails from readers of Legal Theory Blog in India, the United Kingdom, China, and Romania. Over the past few years, I've heard from readers on every continent and from dozens (perhaps over a hundred) different nations. Of course, this is hardly a systematic study of the globalization of legal scholarship. But anecdotal evidence suggests that many other academic bloggers have similar evidence of the "globalizing" effect of the blogosphere.
        American law reviews and peer-edited scholarly journals are not globally available. That's because they are so expensive. Indeed, once you get past the most prominent law reviews and peer-edited journals, they are almost completely unavailable outside of North America and the wealthiest academic libraries of Europe, Oceana, and Asia. Just ask a second or third tier American law review how many foreign subscriptions they have. Or ask a peer-reviewed journal that specializes in "law and x" the same question. The point is that distribution of open-source legal scholarship by the Internet makes difference!
        As an aside, I've heard it argued that lifting disintermediation, penetration of the acoustic isolation of the legal academy, and the globalization of legal scholarhsip are trivial rather than significant phenomena. One such argument focuses on the idea that only a few specialists are capable of understanding, digesting, evaluating, and interacting with "high level legal scholarship"--the kind published by the best peer-reviewed journals and student-edited law reviews. Of course, there is something to that! The blogosophere may degrade the "signal to noise ratio" of feedback on legal scholarship. I suspect that Legal Theory Blog gets better than average email feedback. After all, it is called "Legal Theory Blog" and it contains an awful lot of purely academic content. Nonetheless, I do get some comments that require patience and good humor. On the other hand, I have been astonished by the thoughtful and genuinely informative comments and blog posts that have come from nonacademic sources. I'm proud to be an academic and I believe in the value of academic institutions. But I think it is both wrong and silly to think that credentials matter more than content.
        Changing the Marketplace of Ideas Blogs, the Internet, and open-source legal scholarship have all worked together to change the marketplace of ideas, much as eBay has changed markets for collectables and used electronics. What makes eBay important is the transparency and relatively low transaction costs that it provides. The same thing is true for the emerging new electronic agora of ideas.
        Of course, blogs are not perfect. They can spread falsehoods as wells as truths. But they aggregate opinions and argument rapidly and accessibly. Bad ideas tend to die quickly in the blogosphere. Good ideas tend to spread rapidly--especially if they are embodied in appealing memes.
      The End of the World as We Know It? Is this the end of the world as we know it? Are student-edited law reviews and peer-edited journals about to give way to a new world of unmediated access to free downloads? Will download counts replace publication in the Yale Law Journal as the proxy (or signal) of academic excellence?
      The answer to these questions is undoubtedly "no." Not replace or displace. It is not the end of the world as we know it. But it is a change. If you are like me and I know that many readers of Legal Theory Blog are, then you probably read more papers for the first time on SSRN or BE Press than by getting the latest copy of the Yale Law Journal sent to your office (or by browsing it in the library). Of course, I still read lots of "published versions." Especially, if I am doing research for an article. But my impression of what is hot, current, and happening is shaped by the online world, not the paper world.
    Blogging and Academic Careers What does all of this mean for academic careers? Before I answer that question, I would like to say that as much as I enjoy the topic of careers and careerism, those are not the most important aspects of the phenomena that are the subject of this post. But who can resist? So here goes:
      Juniors and Seniors (and Law Students, too) At the recent AALS panel on blogging, Randy Barnett summarized his take on blogging and academic careers with four words:
        Seniors? Yes. Juniors? No.
      Several other posts have discussed this topic, and I'm not sure I have much to add. I would simply say that blogging poses two dangers to junior scholars--distraction and disaffection. By distraction, I simply mean that blogging takes time. That's why I would especially discourage junior (untenured) faculty members from teaching and scholarship. By disaffection, I mean that blogging has the potential for alienating senior faculty members. "Blog in haste, regret at leisure"--I don't know how many time I've heard it or said it myself. If you are cautious about tenure, then you might ask yourself, "Should I blog it, if I would not be willing to say it at a faculty cocktail party in front of the colleagues that I least trust?" I would suggest that the answer to this question is usually "no."
      On the other hand, I am of the opinion that blogging can be a very interestng option for law students. Before blogging, there was really no way for a law student from School X to get to know professors from other law schools. But blogging does change that--especially thoughtful blogging that reacts to issues of concern to legal academics. This year's entry-level job market included a handful of candidates who I "know" from their student blogs--many of which had subsequently been discontinued after they became law clerks or entered practice. When I read their AALS forms as a member of the appointments committee, I read very carefully and (in most cases) with a favorable preconception.
      A Cautionary Note (with Special Salience for the Untenured) Let me try to be a bit more concrete about a potential downside of blogging. If you say something intemperate, ill-informed, or offensive on a blog, it may create a lasting negative impression. This is not speculation. I know of more than one academic blogger--both senior and junior--who has prompted multiple negative remarks. I think that I may hear such remarks more than most legal academics--because most everyone I meet in the business knows that I have a blog.
      In one case, more than a dozen faculty members at several different law schools have made negative comments about someone at an early career stage who would otherwise be invisible except through her or his scholarship. If you blog and you are developing a negative reputation, you may be "the last to know."
      Of course, there are some very prominent legal academics who blog and whose blogging has provoked some negative reaction; I doubt the negative reaction to the blogs of the already prominent is any worse or much different than the negative reaction to their other prominent academic doings.
      A Bit More on the Upside But there is also an upside. I also am familiar with several "juniorish" (untenured or recently tenured) legal academics who have gotten "ahead of the curve" through excellent blogging. The reasons are obvious. Really good blogging gets you readers that otherwise would come at a later stage in an academic career.
      Short Form and Long Form At the AALS session on Blogging, Randy Barnett made the point that blog entries tend to be short form and hence are no substitute for "long form" legal scholarship. On the one hand, I agree with Barnett about this. Most blogging is very much "short form" and hence is (usually) part of a different enterprise than long forml legal scholarship in the form of longer articles and books.
      But Barnett's point can be exaggerated. Blogging can be part of long-form scholarship in a variety of ways. Most obviously, blogging provides a forum for "trial baloons" that can be incorporated in larger projects.
      And blogs can, in fact, be a forum for long-form scholarship. For example, the Legal Theory Bookclub on Larry Lessig's last book Free Culture was published by the Texas Law Review. Another example of a longer piece is Water Wells and MP3 Files: The Economics of Intellectual Property, part of an exchange with Eugene Volokh.
      Another way in which blogging can interact with long-form scholarship stems from the fact that blogging allows criticism and really good criticism is invaluable. Jack Balkin's criticism of two posts (A Neoformalist Manifesto and Fear and Loathing in New Haven) served an important catalytic role in the development of my thinking about neoformalism as a legal theory.
      So while I agree with Barnett, the short form is no substitute for the long form, I would add that blogging can have an important role to play in long-form legal scholarship.
    Conclusion And speakikng of the long form, this post is getting a bit long! As always, reactions can be emailed to lsolum@gmail.com or posted elsewhere in the blogosphere!


 
Live Alito Blogging Check it out at ScotusBlog!


 
Legislative Marvels Department CNET reports:
    It's no joke. Last Thursday, President Bush signed into law a prohibition on posting annoying Web messages or sending annoying e-mail messages without disclosing your true identity. In other words, it's OK to flame someone on a mailing list or in a blog as long as you do it under your real name. Thank Congress for small favors, I guess.


 
Pollack on a Feminist Theory of the Public Domain Malla Pollack (Univ. of Idaho, College of Law) has posted Towards a Feminist Theory of the Public Domain, or Rejecting the Gendered Scope of United States' Copyrightable and Patentable Subject Matter (William & Mary Jounral of Women and the Law, Vol. 12, No. 3, 2006) on SSRN. Here is the abstract:
    This article presents liberal feminist, essentialist feminist, communitarian feminist, and humanist feminist critiques of the gendered scope of United States intellectual property protection. Different feminist perspectives lead to different conclusions regarding intellectual property. However, the most important aspect of intellectual property for feminists should be the public domain. The public domain is essentially feminine; feminists of all types should join the movement to reinvigorate and protect the currently-endangered public domain. The Article then addresses the conflict between communitarianism and feminist. As to intellectual property, this conflict can be bridged by theorizing the public domain in terms of a right not to be excluded.


 
Kang & Banaji on a Behavioral-Realist Revision of Affirmative Action Jerry Kang and Mazharin Banaji (University of California, Los Angeles - School of Law and Harvard University - Radcliffe Institute for Advanced Study) have posted Fair Measures: A Behavioral Realist Revision of 'Affirmative Action' (California Law Review, Forthcoming) on SSRN. Here is the abstract:
    New facts recently discovered in the mind and behavioral sciences have the potential to transform both lay and expert conceptions of affirmative action. Drawing on recent findings in implicit social cognition (ISC) and applying a legal methodolgy called behavioral realism, the authors advance four arguments. First, evidence of pervasive implicit bias allows us to avoid problematic backward- and forward-looking justifications for affirmative action and instead focus on addressing discrimination here and now. Second, evidence of biased interpretation and stereotype threat suggest that merit is currently being mismeasured, and that more accurate measurement processes should be adopted. Third, evidence of the malleability of impicit bias suggests interventions different from the traditional social contact hypothesis, such as deploying debiasing agents. Finally, instead of an arbitrary deadline, a better terminus for various affirmative action programs is when our society reaches alignment between explicit normative commitments and measures of implicit bias. Through this analysis of the legal and policy implications of cutting-edge social cognitive research, the authors shed the freighted term affirmative action and produce instead a scientific and normative common ground in favor of fair measures.


 
Davis & Chang on the Old & New Identity Wars Adrienne D. Davis and Robert S. Chang (University of North Carolina at Chapel Hill - School of Law and Loyola Law School (Los Angeles)) have posted The Adventure(s) of Blackness in Western Culture: An Epistolary Exchange on Old and New Identity Wars (UC Davis Law Review, Forthcoming) on SSRN. Here is the abstract:
    Through a series of letters, Professors Robert Chang and Adrienne Davis examine the politics of positionality in law and literary criticism. They use the scholarly debates and conversations around critical race theory and feminist legal theory as a starting point to formulate some thoughts about Critical Race Feminism (“CRF”) and its future. The authors use the epistolary form as a literary device to allow them to collaborate on this project while maintaining their own voices. Thus, the letters are not dated. The letters pay particular attention to various border crossings: male attempts to engage in feminist literary criticism, white attempts to engage in African American literary criticism, and attempts to engage in black male, black feminist criticism. The racial politics of identity, boundaries, and theory are ones that the late Professors Jerome Culp, Trina Grillo, and Marilyn Yarbrough dedicated much of their lives to pursuing. This is reflected in their scholarship, which challenged existing modes of legal reasoning about race, gender, and theories of justice, and thus effected paradigm shifts in all areas. Moreover, Professors Culp, Grillo, and Yarbrough encouraged progressive legal scholars of color to think about the issues raised over the meaning and politics of black feminism, the role of theory in reasoning about race and the law, the fluidity of racial identity and its political implications, the transcendence of binary legal models, the importance of community and collaboration, and above all, an abiding disrespect for boundaries. The letters are wide-ranging with regard to the texts that they engage, moving from Toni Morrison’s Song of Solomon to monuments to the film Monster’s Ball. The letters examine some contentious academic debates, such as those between “race men” and black feminists and between critical race theorists and their critics. In all of this, the central questions relate to who speaks and, as corollaries, who is allowed to speak and what is remembered. These questions may be methodological entry points for those doing critical race feminism.


Sunday, January 08, 2006
 
Legal Theory Lexicon: Speech Acts
    Introduction Speech act theory will forever be associated with the great J. L. Austin, the Oxford philosopher whose work in the 1950s had an enormous influence on analytic philosophy in the United States and England. One of Austin's core insights is reflected in the title of his William James lectures, delivered at Harvard in 1955, How to Do Things with Words. When we use language, we don't just communicate information or say things about how the world is; when we use language, we do things. We command, request, apologize, contract, convey, and admonish. Speech act theory focuses on the ways in which language (both oral and written) can be used to perform actions.
    Legal theorists are interested in speech act theory for a variety of reasons, but one of the most important is that speech act theory helps to explain the way that the law uses language. Statutes, holdings, and constitutional provisions aren't like "the cat is on the mat." That is, a statute does not tell us how the world is in the same way that a declaratory sentence does. Legal language is full of speech acts. This entry in the Legal Theory Lexicon provides a rough and ready introduction to speech act theory pitched at law students (especially first-year law students) with an interest in legal theory.
    Sentences, Propositions, Meaning, and Truth There are lots of ways we could start, but let's begin with a simple sentence. "The sidebar of legal theory blog contains a link to Balkinization." What does this sentence mean? One answer to that question is pretty straightforward. There is an object in the world (the sidebar of legal theory blog) and that object includes another, "a link to Balkinization." Simple declarative sentences like this have truth values (or are "truth-apt"). In this case, the sentence is true, because the sidebar to Legal Theory Blog actually does have a link to Balkinization. There is a temptation to think that all sentences are like simple declarative sentences in that (1) the meaning of the sentence can be cashed out by the way it refers to the actual world, and (2) if the sentence is meaningful (i.e. it succeeds in referring), then the sentence has a truth value.
    O.K., that was a lot to swallow, but what does it have to do with "speech acts"? Now, take this expression in English: "Please add my blog to your blogroll." Does this sentence refer to anything? Well, it does include elements that refer, e.g. "my blog" and "your blogroll." But this sentence doesn't assert that my blog is on your blogroll. It may imply that my blog currently is not on your blogroll, but that implicit assertion doesn't exhaust its meaning. The sentence "Please add my blog to your blogroll" is a request. By uttering (or posting) these words, I am making a request. If you do add my blog to your blogroll, the request will succeed. If you don't, the request will have failed. Although the request can succeed or fail, it would be strange indeed to say that "Please add my blog to your blogroll" is either true or false. Requests are not truth-apt; they do not bear truth values.
    Are there any other types of expressions that are similar to requests? Once we start looking, we will discover lots and lots. Orders, questions, offers, acceptances, warnings, invitations, greetings, welcomes, thank yous--all of these are types of expressions that do not seem to refer or to have truth values. What do these expressions mean then, if they don't refer? When I gave an order, I perform an action--the act of ordering X to do Y. When I make an offer, I perform an action--the act of creating a legally effective option for the offeree to form a legally binding contract by accepting the offer. When I extend an invitation to a party, I perform an action--the act of inviting person P to event E. Speech act theory begins with the idea that language can be used to perform actions.
    Form and Function We might be tempted to think that we can tell the difference between sentences that describe the world and expressions that perform actions simply by their form. So we might be tempted to say, "Sentences of the form X is Y express propositions that refer," whereas sentences of the form, "I hereby do X" perform a speech act. But language is much messier than this. Take the sentence, "This room is a pig sty." In some contexts, this sentence might be referential. If one were taking a tour of an animal husbandry research facility, the sentence "This room is a pig sty" might express a true proposition about the function of a particular room. But if the same words were used by a parent, in an annoyed tone, and directed to a teenage child, the real meaning of the expression might be, "Clean up your room!" Certain forms are characteristically associated with propositions that refer and others with the performance of speech acts, but the question of meaning depends on the context of utterance.
    Utterance, Locution, Illocution, Perlocution With the basic idea of a speech act under out belts, we can now introduce a useful set of terminological distinctions:
    • Utterance--We can use the term "utterance" to refer to the words (e.g. the sounds or letters) that constitute a particular use of language.
    • Locution--We can use the term "locution" to refer to the semantic meaning of the utterance.
    • Illocution--We can use the term "illocution" to refer to the speech act that is performed by use of a particular utterance in a particular context.
    • Perlocution--We can use the term "perlocution" to refer to the effect that a given expression has when it is uttered in a particular context.
    Take the example of the sentence, "This room is a pig sty." The utterance is simply the words that are used: suppose this is an oral statement in English made by a parent to a child on a particular occasion. The same parent could utter similar worlds in English (or another language) that have the same semantic content. "The family room is a pig sty"--would express the same propositional content as "This room is a pig sty" if "this room" was "the family room." The illocutionary force of this statement is ambiguous. If the child spoken to was responsible for the mess, then both parent and child might understand that "This room is a pig sty" is the equivalent of "Clean up this room." The same illocutionary force can be obtained by a variety of expressions. Finally, the perlocutionary effect of "This room is a pig sty" will also depend on context. The effect might be to produce shame, but it might also produce anger. Thus, one utterance has both locutionary content, illocutionary force, and perlocutionary effect.
    A Typology of Speech Acts One of the tasks of speech act theory has been to develop typologies of speech acts. Here is one typology developed by Bach and Hamish:
    • Constatives: affirming, alleging, announcing, answering, attributing, claiming, classifying, concurring, confirming, conjecturing, denying, disagreeing, disclosing, disputing, identifying, informing, insisting, predicting, ranking, reporting, stating, stipulating
    • Directives: advising, admonishing, asking, begging, dismissing, excusing, forbidding, instructing, ordering, permitting, requesting, requiring, suggesting, urging, warning
    • Commissives: agreeing, guaranteeing, inviting, offering, promising, swearing, volunteering
    • Acknowledgments: apologizing, condoling, congratulating, greeting, thanking, accepting (acknowledging an acknowledgment)
    There are other ways of slicing and dicing the types of speech acts, but Bach and Hamish's typology gives a good sense of how such a typology might work.
    Speech Act Theory and Legal Theory How can legal theorists use speech act theory? We could start by noting the important role that speech acts play in the law. Laws themselves might be seen as speech acts--as types of commands or authorizations. In contract law, issues of contract formation frequently turn on questions whether particular utterances were speech acts of particular types. Was this utterance an offer? Was that statement an acceptance? In a very general way, speech act theory is helpful simply because it allows us to understand legal phenomena from a new angle.
    Speech act theory may also be helpful in resolving particular sorts of doctrinal puzzles. For example, in the theory of the freedom of speech, one might be puzzled about the unprotected status of certain expressions. Oral contracts are speech. Threats are speech. An order from a Mafia boss to a hitman is speech. But no one thinks that these instances of speech raise serious questions under the First Amendment. Why not? One possible answer to this question could begin with "marketplace of ideas" theory of free speech famously associated with Justice Holmes--a theory that emphasizes the role of freedom of speech in facilitating the emergence of truth from the unrestricted public debate and discussion. Directive speech acts, such as orders, do not make truth claims, and hence might be entirely outside the freedom of speech. But constantive speech acts, such as affirming, conjecturing, or disagreeing, do make speech claims and hence would raise free speech issues on the marketplace of ideas theory. Of course, one paragraph does not a theory of the freedom of speech make--for more on this, see my Freedom of Communicative Action.
    Here is another example. The hearsay rule is notoriously difficult to conceptualize precisely, because the canonical formulation, that hearsay is "an out-of-court declaration introduced for the truth of the matter asserted," is not transparent. Speech act theory may perform a clarifying function. The phrase "out of court declaration" may be clarified by reference to the categories of speech acts: out-of-court declarations are constantive speech acts. Other categories of speech acts, e.g. directives, commisives, and acknowledgements, are not declarations. Moreover, the phrase "for the truth of the matter asserted" may be illuminated by distinguishing propositional contents which may bear truth values, on the one hand, and illocutionary force and perlocutionary effects on the others. The hearsay rule is usually not violated if an out-of-court declaration is introduced for the purpose of demonstrating its illocutionary force. For example, a third party can testify to the making of an oral contract for the purpose of showing that the action--making the contract--was performed.
    If you are interested in acquiring a very basic knowledge of speech act theory, I recommend that you start with Austin's marvelous How to Do Things with Words. Although many of Austin's particular points have been criticized or superceded by subsequent work, this is a marvelous book--concise, illuminating, and a model of ordinary language philosophy at its best. More advanced readings are included in the bibliography below.
    Links Bibliography
    • Austin, J. L. (1962) How to Do Things with Words, Cambridge, Mass.: Harvard University Press.
    • Bach, K. and R. M. Harnish (1979), Linguistic Communication and Speech Acts, Cambridge, Mass.: MIT Press.
    • Grice, H. P. (1989) Studies in the Way of Words, Cambridge, Mass.: Harvard University Press.
    • Searle, J. (1969) Speech Acts: An Essay in the Philosophy of Language, Cambridge, Eng.: Cambridge University Press.
    • Strawson, P. F. (1964) 'Intention and convention in speech acts', Philosophical Review 73: 439-60.


Saturday, January 07, 2006
 
Legal Theory Bookworm The Legal Theory Bookworm recommends The Place of Families : Fostering Capacity, Equality, and Responsibility by Linda C. McClain. (Sample chapter here.) And here is a description:
    In this bold new book, Linda McClain offers a liberal and feminist theory of the relationships between family life and politics--a topic dominated by conservative thinkers. McClain agrees that stable family lives are vital to forming persons into capable, responsible, self-governing citizens. But what are the public values at stake when we think about families, and what sorts of families should government recognize and promote? Arguing that family life helps create the virtues and character required for citizenship, McClain shows that the connection between family self-government and democratic self-government does not require the deep-laid gender inequality that has historically accompanied it. Examining controversial issues in family law and policy--among them, the governmental promotion of heterosexual marriage and the denial of marriage to same-sex couples, the regulation of family life through welfare policy, and constitutional rights to reproductive freedom--McClain argues for a political theory of the family that embraces equality, defends rights as facilitating responsibility, and supports families in ways that respect men's and women's capacities for self-government.
And here is a review from Amazon:
    In this elegant and tightly reasoned book, Linda McClain argues that the family--though not necessarily traditional marriage--is central to the 'formative project' of fostering key civic virtues: capacity, equality, and responsibility. In a series of different situations she considers what might be an optimal balance among governmental, social, and family responsibilities for shaping good citizens. The Place of Families is sure to influence many heated debates, in courts and legislatures as well as journals, about the complex relationships between families and public life. The Place of Families is the most careful and comprehensive defense to date of the progressive liberal feminist position on the civic role of families. Those who agree with the thesis of this book will find powerful evidence for their case, and those who disagree will have to come to grips with it. Linda McClain has written an immensely valuable book that combines philosophical depth with up-to-the-moment policy analysis. Taking on many of the most difficult and contentious issues in family law and public policy today, including same-sex marriage, welfare reform, abortion, and sex education, McClain grounds her discussions in a commitment to both liberalism’s respect for individual liberty and feminism’s insistence on gender equality. Her meticulous scholarship, even-handed consideration of opposing viewpoints, and clear and accessible writing make The Place of Families a “must read” for anyone interested in the future of American families and family law. A most compelling and novel study of the rights and responsibilities of the family, the community of which it is a constitutive part, and the government. A joy for legal scholars and social scientists and many others.


 
Download of the Week The Download of the Week is Politics and Judgment by Suzanna Sherry. Here is the abstract:
    Two hundred years after its most famous invocation in Marbury v. Madison, judicial review has apparently lost its luster. Despite its global spread, it is in disrepute in its country of origin. The mainstream American academic attitude toward judicial review as practiced by the modern Supreme Court ranges from open hostility to a position similar to Winston Churchill’s on democracy: It is the worst way to implement a Constitution, except for all the rest. This essay, part of a larger book project with Daniel Farber, provides one explanation of the source of the hostility, defends judicial review against its critics, and makes a few suggestions for improvement.
Highly recommended! Download it while its hot!


Friday, January 06, 2006
 
Ohnesorge on Financial Crisis & the Rule of Law in Asia John K.M. Ohnesorge (University of Wisconsin Law School) has posted Asia's Legal Systems in the Wake of the Financial Crisis: Can the Rule of Law Carry Any of the Weight? on SSRN. Here is the abstract:
    The financial crisis that swept East and Southeast Asia in the late 1990s triggered calls for institutional reforms throughout the region, including reforms to national legal systems. Many of the reforms being called for can be fairly described as neo-liberal, meaning that they conform to a general policy stance in favor of free markets, free trade, and small, constrained government. This paper, prepared for a conference sponsored by the United Nations Research Institute for Social Development, explores the increasingly important law reform plank of the neo-liberal reform agenda. The rule of law has become the overarching concept explaining and legitimating neo-liberal law reforms, yet this paper argues that thin neo-liberal rule of law provides little useful guidance to those who face the task of reforming East and Southeast Asia's actual legal systems.


 
Guiora & Page on Theories of Judicial Activism Amos N. Guiora and Erin M. Page (Case Western Reserve University School of Law and Case Western Reserve University - School of Law) have posted Going Toe to Toe: President Barak's and Chief Justice Rehnquist's Theories of Judicial Activism (Hastings International and Comparative Law Review, Vol. 29, No. 1, p. 51, 2006) on SSRN. Here is the abstract:
    A critical component of counterterrorism is the role of a nation's judiciary. The concept of an unfettered executive, unrestrained by courts and legislatures alike is detrimental to liberal democracies attempting to balance national security and individual rights. In examining the role of the judiciary in the U.S. and Israel, it is incumbent to understand that different political regimes have differing systems. Nevertheless, there is a common thread to this article: an examination of the willingness of a judiciary to actively review and, if need be, criticize and intervene in the decisions and actions of the executive during armed conflict. The article analyzes decisions of the two Supreme Courts and writings both of the Chief Justice of the U.S. Supreme Court, the late Chief Justice William Rehnquist, and the President of the Supreme Court of Israel, President Aharon Barak. It is suggested, as a point of reference, that the judicial activism advocated both intellectually and in practice by President Barak represents one end of the judicial review scale and that the position suggested by the late Chief Justice Rehnquist represents if not the extreme other end, then at least an opposite.


 
Edwards & Waverman on Public Ownership & Regulatory Independence Geoff A. Edwards and Leonard Waverman (Haas School of Business - Business & Public Policy Group and University of London - Department of Economics) have posted The Effects of Public Ownership and Regulatory Independence on Regulatory Outcomes: A Study of Interconnect Rates in EU Telecommunications on SSRN. Here is the abstract:
    We examine the effects of public ownership and regulatory agency independence on regulatory outcomes in EU telecommunications. We present evidence of political influence over regulatory outcomes, and demonstrate the importance of regulatory independence in ensuring unbiased regulatory policy. Specifically, we study regulated interconnect rates paid by entrant firms to incumbent firms. We find that public ownership of the incumbent positively affects these interconnect rates, suggesting an ability of governments to influence regulatory outcomes in favor of incumbents in which they are substantially invested. But we also find that the presence of institutional features enhancing regulatory independence from the government mitigates this effect. In order to study regulatory independence, we introduce a new cross-country time-series database - the European Union Regulatory Institutions (EURI) Database. This database describes the development of institutions bearing on regulatory independence and quality in telecommunications in the 15 founding EU member states from 1997 to 2003. Beyond the current research, we expect this database will prove useful in future studies of the effects of the institutional environment of regulation on industry structure and performance.


Thursday, January 05, 2006
 
Verkuil on the Duty to Govern Paul R. Verkuil (Cardozo Law School) has posted The Nondelegable Duty to Govern on SSRN. Here is the abstract:
    This article addresses the proposition that some duties of government may not be transferred to private hands.It views the executive power as requiring public governance and connects congress to this responsibility through the Appointments clause. Officers of the United States are those officials directly charged with doing the public's business and any direct or indirect transfer of their responsibilities would run counter to the constitutional plan. Decisions at the margins, where government remains nominally in control,are less easy to categorize and issues of justiciability are always problemattic. However, there remains a core of government responsibilities that must be protected from the increasingly robust privatization movement.


 
Dubber on the Integration of American Criminal Law Markus Dirk Dubber (University at Buffalo - Law School) has posted The Integration of Substantive Criminal Law in the United States on SSRN. Here is the abstract:
    The notion of national integration is foreign to U.S. substantive criminal law, which traditionally has been highly particularized and localized, with a clear emphasis on the states rather than the federal government. Even in the absence of an explicit integrative ambition, however, the expansion of federal criminal law has resulted in the creation of a uniform body of criminal law that covers the entire United States. The further development of federal constitutional criminal law also may advance the integration of substantive criminal law in the United States, through the establishment of a common denominator of individual rights.


Wednesday, January 04, 2006
 
Sherry on Politics & Judgment Suzanna Sherry (Vanderbilt University School of Law) has posted Politics and Judgment (Missouri Law Review, Vol. 70, 2005) on SSRN. Here is the abstract:
    Two hundred years after its most famous invocation in Marbury v. Madison, judicial review has apparently lost its luster. Despite its global spread, it is in disrepute in its country of origin. The mainstream American academic attitude toward judicial review as practiced by the modern Supreme Court ranges from open hostility to a position similar to Winston Churchill’s on democracy: It is the worst way to implement a Constitution, except for all the rest. This essay, part of a larger book project with Daniel Farber, provides one explanation of the source of the hostility, defends judicial review against its critics, and makes a few suggestions for improvement.
And here is a bit more from the paper:
    Let us leave to one side the fact that the Constitution does not, and was not designed to, create a pure democracy. Also put aside the critics’ exaggeration of both the representativeness and accountability of the elected branches and the countermajoritarian nature of the judiciary. Instead, let us consider a premise that is implicit in both the countermajoritarian critique of judicial review and the calls for popular constitutionalism: that the Court’s constitutional decisions B like legislative enactments B are political acts and should therefore reflect the political wishes of the majority. This implicit premise becomes clearer if we contrast the criticisms of the judiciary’s constitutional decision-making with the attitude towards its nonconstitutional decisions. No one complains that judges are acting contrary to the wishes of the people when they rule on legal questions, such as whether testimony is admissible, or whether it is an antitrust violation for a company to conspire with its officers, or when common law preclusion doctrines bar a subsequent suit, or how the burdens of production are allocated in an employment discrimination case. Those are legal questions, and we leave them to legal experts B to judges, in other words. Congress may set the framework by enacting legislation, but we instinctively separate that initial political decision from the myriad legal decisions that must be made in the course of implementing the legislation. Contemporary critics of judicial review, however, view constitutional questions not as legal questions but as political ones. They think that the courts are doing something different B and suspect B when they interpret the Constitution than when they interpret a statute or a common law precedent or a rule of civil procedure. This widely-held implicit belief that constitutional law is not really law at all, but politics, is also becoming more explicit in the work of some constitutional scholars. Recent articles claim that it is not possible to separate constitutional law from politics, or that Supreme Court decisions B whether for good or ill B simply mirror popular opinion.15 Two respected law professors are circulating a proposal for what amounts to term limits for Supreme Court Justices, and they have the support of over a dozen prominent liberal and conservative legal scholars.16 What all these arguments and proposals have in common is the rejection of any distinction between what judges do in constitutional cases and what legislatures do generally.
Sherry is one of the most important, interesting, and original constitutional theorists. Highly recommended!


 
Perez & Teubner on Legal Pardoxes and Inconsistencies Oren Perez and Gunther Teubner (Bar-Ilan University, Faculty of Law and Goethe University Frankfurt - Law Area) have posted Paradoxes and Inconsistencies in the Law (PARADOXES AND INCONSISTENCIES IN THE LAW, Oren Perez and Gunther Teubner, eds., Hart Publishing, December 2005) on SSRN. Here is the abstract:
    Is law paradoxical? This book seeks to unravel the riddle of legal paradoxes. It focuses on two main questions: the nature of legal paradoxes, and their social ramifications. In exploring the structure of legal paradoxes, the book focuses both on generic paradoxes, such as those associated with the self-referential character of legal validity and the endemic incoherence of legal discourse, and on paradoxes that permeate more restricted fields of law, such as contract law, euthanasia, and human rights (the prohibition of torture). The discussion of the social effects of legal paradoxes focuses on the role of paradoxes as drivers of legal change, and explores the institutional mechanisms that ensure the stability of the law, in spite of its paradoxical makeup. The essays in the book discuss these questions from various perspectives, invoking insights from philosophy, systems theory, deconstruction and economics.


 
Mandel on Hindsight Bias and Obviousness Gregory N. Mandel (Albany Law School) has posted Patently Non-Obvious: Empirical Demonstration that the Hindsight Bias Renders Patent Decisions Irrational on SSRN. Here is the abstract:
    This Article reports an experimental study that provides the first empirical demonstration of the hindsight bias in patent law. The results are dramatic along several fronts: (1) the hindsight bias prejudices non-obvious decisions far more than anticipated, and to a greater extent than other legal judgments; (2) jury instructions that explicitly identify and warn against the hindsight bias do not ameliorate the hindsight effect; (3) secondary consideration evidence and other attempted doctrinal fixes (such as the Federal Circuit's suggestion test) do not solve the hindsight problem; and, (4) the hindsight bias pervades patent law to an extent not previously recognized - it impacts decisions under the doctrine of equivalents, claim construction, the on-sale bar, and enablement. These findings run counter to the dominant patent analysis of the last decade and have significant import for patent and innovation policy. The study results indicate that the non-obvious requirement actually often may be applied too stringently. Critics of the current non-obvious requirement will need to reconsider the bases of their challenges, and likely need to revisit the contours of their prescriptions for reform. Revising non-obvious doctrine or practice, for instance, may not provide the panacea that most assume. The Article concludes with recommendations for revisions to patent doctrine and litigation to mitigate the impact of the hindsight bias.


 
Cassidy on Grand Jury Independence Michael Cassidy (Boston College Law School) has posted Toward a More Independent Grand Jury: Recasting and Enforcing the Prosecutor's Duty to Disclose Exculpatory Evidence (Georgetown Journal of Legal Ethics, Vol. 13, pp. 361-403, 2000) on SSRN. Here is the abstract:
    This Article analyzes the Supreme Court's decision in Williams, in which the Court struck down an attempt by the Tenth Circuit to impose an obligation on federal prosecutors to disclose substantial exculpatory evidence to the grand jury. The author discusses the contours of this case and the ethical underpinnings of a prosecutor's disclosure obligations before the grand jury, and sets forth a new framework for consideration of such issues.


 
Breen & Scaperlanda on Stenberg v. Carhart John M. Breen and Michael Scaperlanda (Loyola University of Chicago - School of Law and University of Oklahoma - College of Law) have posted Never Get Out'a the Boat: Stenberg v. Carhart and the Future of American Law on SSRN. Here is the abstract:
    In this short essay, the haunting scenes from the film Apocalypse Now serve as the backdrop for an examination of Stenberg v. Carhart and the meaning that this case holds for the future of American law. The movie tells the story of Captain Benjamin Willard, a special forces officer in Vietnam who travels up-river on a patrol boat in search of a renegade American colonel whom Willard has been ordered to "terminate." The major thematic concerns of the film are morality, violence, candor, and the tenuous nature of civilization. Indeed, life on board the boat, such as it is, represents civilization. This contrasts with the jungle, which represents the absence of the moral order that makes social life possible. This absence allows for the exercise of freedom without judgment. Thus, in one scene, the viewer is warned that you should "never get out'a the boat" unless you are prepared to "go all the way." In the essay, we argue that in Stenberg v.Carhart the Supreme Court "got out'a the boat" and went "all the way." Stenberg held that a state may not ban the procedure commonly known as partial birth abortion. Stated more bluntly, the Court held that the protection of the law does not extend to a child in the process of being born. Incredibly, the humanity of the victim of this procedure is never addressed in the Court's opinion. Here the Stenberg majority differs significantly from the Court in Roe v. Wade, which appeared to struggle with "the difficult question of when life begins." In Stenberg, the Court knows that the life at issue has already begun. Indeed, it is in the process of being born. By licensing the brutal killing of what is undeniably an innocent human being, the Court turns its back on civilization and marches proudly into the jungle. Plainly, law is an essential component of authentic civilization. Law as such must embody the principle of equal concern and respect for every human being and the principle of ordered liberty. The essay provides examples of how, since the adoption of the 14th Amendment, these principles have been at the heart of American constitutional law. We argue that, with Stenberg, the Court has abandoned the concept of ordered liberty in favor of the concept of liberty as license. Moreover, in adopting what it believes is a maximal conception of human freedom, the Court has undermined the very notion of equal concern and respect. Here we contrast the abortion license with the Court's treatment of the right to free speech as well as its decisions concerning capital punishment. We conclude the piece by arguing that if the Court truly believes that the benefits of constitutional personhood do not extend to a child in the process of being born, then it is incumbent on the Court to explain why this is so. Indeed, the rule of law demands that the Court explain its now unspoken criteria for constitutional personhood. The piece is especially timely given that three decisions striking down the recent federal ban on partial birth abortion are now making their way to the Supreme Court. Thus, the Court is once again faced with the choice of embracing authentic civilization or promoting barbarism under the appearance of law.


Tuesday, January 03, 2006
 
Top Ten Tax Stories Paul Caron rounds them up over at TaxProf Blog.


 
Berman on Lesser Evils Mitchell N. Berman (University of Texas School of Law) has posted Lesser Evils and Justification: A Less Close Look (Law and Philosophy, Vol. 24, p. 681, 2005) on SSRN. Here is the abstract:
    This contribution to a symposium issue on justification and excuse in the criminal law comments on an article by Larry Alexander that raises a host of important and challenging questions about that paradigmatic justification known both as the “lesser evils” defense and as the defense of necessity. Most centrally, it identifies three conceptions of the justificatory class of defenses: (1) that a justification simply reflects a permission - extended for whatever reason - to do what the criminal law otherwise forbids; (2) that a justification applies to conduct that realizes a lesser evil, or avoids a greater evil, than would have occurred had the defendant complied with the law; and (3) that a defense is a justification if and only if the conduct to which it applies may be aided by a third party. Although the first view - the “permission” conception - will likely strike many readers as common wisdom, Alexander’s own ruminations about the proper shape of the necessity defense are actually premised on the second and third conceptions. This essay defends the permission conception of justifications against its competitors and teases out implications of this conception for the way that the necessity defense should accommodate defendants’ actual beliefs and motivations.


 
Jacobson on Authority, Derrida, & Quaintance Arthur J. Jacobson (Cardozo Law School) has posted Authority: An Hommage to Jacques Derrida and Mary Quaintance (Cardozo Law Review, Vol. 27, p. 791, 2005) on SSRN. Here is the abstract:
    This essay, in a symposium celebrating the publication 25 years ago of Jacques Derrida’s Force of Law: The “Mystical Foundation of Authority”, traces the themes of that work through the struggle between Derrida and his translator, Mary Quaintance, for authority over the translation. In the end, neither wins the struggle: Authorship of the translation - authority - must be ceded to a third. Derrida’s reacts to this loss of authority by signing the translation, taking responsibility for the translation even when it is the product of forces beyond his control and of decisions he only imperfectly understands. He thus enacts in his relationship with Quaintance what he characterizes in Force of Law as the condition of justice: taking responsibility for words and deeds for which one cannot be wholly responsible. The essay closes with reflections upon the significance of Derrida’s refusal to sign the part of the translation that discusses Walter Benjamin and the Holocaust.


 
Dickinson on Public Law Values & Privatization Laura Dickinson (University of Connecticut - School of Law) has posted Public Law Values in a Privatized World (Yale Journal of International Law, 2006) on SSRN. Here is the abstract:
    Although domestic administrative law scholars have long debated privatization within the US, this debate has not confronted the growing phenomenon of privatization in the international realm or its impact on the values embodied in public international law. Yet, with both nation-states and international organizations increasingly privatizing foreign affairs functions, privatization is now as significant a phenomenon internationally as it is domestically. For example, states are turning to private actors to perform core military, foreign aid, and diplomatic functions. Military privatization entered the popular consciousness in 2004, when private contractors working for the US government abused detainees at Abu Ghraib prison in Iraq. But this is only the tip of the iceberg. The US is increasingly using private actors for logistical support to combat troops and to provide strategic planning and tactical advice. Other states, such as Sierra Leone, have used private contractors to engage in direct combat, and international organizations have weighed the possibilities of using private contractors to perform peacekeeping. In the foreign aid context, states and international organizations are entering into agreements with private non-profit and for-profit entities to deliver all forms of aid, including humanitarian relief, development assistance, and post-conflict reconstruction. Even diplomatic tasks such as peacekeeping negotiations are being undertaken by private actors. In this Essay I suggest that the domestic U.S. administrative law literature may provide a useful set of responses to privatization that has been largely overlooked by international law scholars, policy-makers, and activists. In particular, I argue that possibilities for extending public law values inhere in the privatized relationship itself, particularly in the government contracts that are the very engine of privatization. Thus, the contracts governments enter into with non-state actors can include many provisions that would help to create both standards of behavior, performance benchmarks, and a means of providing some measure of public accountability. In this Essay, I outline nine such contractual provisions. Specifically, I suggest that contracts be drafted to: (1) explicitly extend relevant norms of public international law to private contractors, (2) specify training requirements, (3) provide for enhanced monitoring both within the government and by independent third-party monitors, (4) require accreditation, (5) establish clear performance benchmarks, (6) mandate self-evaluation by the contractors, (7) provide for governmental takeovers of failing contracts, (8) include opportunities for public participation in the contract negotiation process, and (9) enhance whistleblower protections and rights of third-party beneficiaries to enforce contractual terms. And while these provisions are not a panacea, they may be at least as effective as the relatively weak enforcement regime of public international law. At the same time, by considering the field of international privatization, I seek to open what I believe could be a fruitful dialogue between domestic administrative law scholars and international law scholars about possible responses.


 
Book Announcement: Welfare & the Constitution by Barber
    Welfare and the Constitution by Sotirios A. Barber To read the entire book description or the introduction, please visit: http://pup.princeton.edu/titles/7647.html Welfare and the Constitution defends a largely forgotten understanding of the U.S. Constitution: the positive or "welfarist" view of Abraham Lincoln and the Federalist Papers. Sotirios Barber challenges conventional scholarship by arguing that the government has a constitutional duty to pursue the well-being of all the people. He shows that James Madison was right in saying that the "real welfare" of the people must be the "supreme object" of constitutional government. With conceptual rigor set in fluid prose, Barber opposes the shared view of America's Right and Left: that the federal constitutional duties of public officials are limited to respecting negative liberties and maintaining processes of democratic choice. Paper | $18.95 / £12.50 | ISBN: 0-691-12375-6 Cloth | $39.95 / £26.95 | ISBN: 0-691-11448-X


Monday, January 02, 2006
 
Weekend Update On Saturday, the Download of the Week was Contract as Statute by Stephen J. Choi and G. Mitu Gulati, highly recommended! And the Legal Theory Bookworm recommended the best translation of Hegel's Elements of the Philosophy of Right. Sunday's Legal Theory Lexicon entry was on Causation.


 
Levy on Modus Vivendi Approaches to Constitutionalism Jacob Levy (Chicago, Political Science) has posted Contextualism, Constitutionalism, and Modus Vivendi Approaches on SSRN. Here is the abstract:
    This paper examines the turn to contextualism in the political theory literature on multiculturalism and minority rights. It distinguishes several, partly-incompatible, senses in which political theory can make use of cases and context, including some that may be distinctively appropriate to the study of cultural diversity. It argues that there is something importantly distinctive in this trend in the literature, but that it is not wholly novel - a return, rather than simply a turn, toward social facts and away from pure moral theory in thinking about justice.
I am always impressed with Levy's intelligent and original work. Highly recommended!


 
Welcome to the Blogosphere . . . . . . to Blackprof.com from Richard Banks, Paul Butler, Devon Carbado, Richard Delgado, Darren Hutchinson, Sherrilyn Ifill, Tracey Meares, Spencer Overton, Dorothy Roberts, and Adrien Wing.


 
Call for Papers: The Social Sciences & Democracy
    The Centre for Logic and Philosophy of Science of Ghent University, Belgium invites papers for a conference: The Social Sciences and Democracy: a philosophy of science perspective 28th – 30th of September 2006 Ghent, Belgium http://logica.ugent.be/SSD/ Keynote speakers are:
      Patrick Baert (University of Cambridge) James Bohman (Saint Louis University) Steve Fuller (University of Warwick) Sandra Harding (UCLA) Philip Mirowski (University of Notre Dame) Stephen Turner (University of South Florida)
    Although the conference has a philosophical orientation, contributions by historians and sociologists of science, political scientists, economists, and others, are welcome, as long as they are relevant to the theme. Possible topics are:
      (a) to analyse whether concepts of democratic theory might be useful in describing the relations between competing theories in the (social) sciences (e.g., consensus, pluralism, deliberation, minorities, etc.). (b) to pay attention to the history of the social sciences and the relation with the development of democracy, the nation-states, the Cold War, globalisation, etc., which might help us to discuss the situation of the social sciences in our democracies today and (science policy) in the future. (c) scientific pluralism, explanatory pluralism, methodological pluralism, etc. (d) orthodoxy vs. heterodoxy, etc.
    More details on the topics can be found on the website: http://logica.ugent.be/SSD/ Abstracts should be no longer than 1000 words. Please send a Word- or PDF-file to Jeroen.VanBouwel@UGent.be. Abstracts received will be acknowledged within ten days by email. Authors will be informed on acceptance or rejection as soon as possible and not later than 30 April 2006. Deadline for abstracts is 31 March 2006.


 
Book Announcement: Hutson on the Founders on Religion
    The Founders on Religion:: A Book of Quotations by James H. Hutson To read the entire book description or a sample chapter, please visit: http://pup.princeton.edu/titles/8013.html What did the founders of America think about religion? Until now, there has been no reliable and impartial compendium of the founders' own remarks on religious matters that clearly answers the question. This book fills that gap. A lively collection of quotations on everything from the relationship between church and state to the status of women, it is the most comprehensive and trustworthy resource available on this timely topic. Cloth | $19.95 / £12.95 | ISBN: 0-691-12033-1


 
Book Announcement: Skach on Constitutional Design
    Borrowing Constitutional Designs: Constitutional Law in Weimar Germany and the French Fifth Republic by Cindy Skach To read the entire book description or the introduction, please visit: http://pup.princeton.edu/titles/8094.html Borrowing Constitutional Designs questions the hasty adoption of semi-presidentialism by new democracies. Drawing on rich case studies of two of the most important countries for European politics in the twentieth century--Weimar Germany and the French Fifth Republic--Cindy Skach offers the first theoretically focused, and historically grounded, analysis of semi-presidentialism and democracy. cloth | $29.95 / £18.95 | ISBN: 0-691-12345-4


 
Conference Announcement: 6th East Asian Conference on Philosophy of Law
    6th East Asian Conference on Philosophy of Law “East Asia in the New Century: Democracy, Human Rights and the Diversity of Legal Cultures” Date: 26-27 March 2006 (Sunday and Monday) Location: The Civil Service Development Institute, Taipei (No. 30, XinSheng S. Rd. Sec 3, Taipei City) Official Language: Mandarin Chinese (including both traditional and simplified Chinese for written materials), Japanese, Korean, and English. Program design: There will be seven to nine panels during the two full-day plenary sessions; the exact number of panels will be decided in accordance with the number of papers accepted. Simultaneous oral translation in the four official languages will be provided in the plenary sessions. We hope that Professor Imai Hiromichi (Professor of Law, Hokkaido University) will agree to be our keynote speaker. Papers: Papers for the plenary sessions may be written in any one of the four official conference languages. The abstracts of all papers presented in the plenary sessions will be translated into all four official languages by the conference hosts, though the papers themselves will be published only in their original language. Papers for the parallel sessions must all be in English; no translations of parallel-session papers or their abstracts will be available. Conference Theme: “East Asia in the New Century: Democracy, Human Rights and the Diversity of Legal Cultures” Description:
      The Conference on the Philosophy of Law is the largest Jurisprudence Conference in East Asia. In 1996, Tokyo University and Doshisha University hosted the first conference on the Philosophy of Law in Japan. The second conference was held by Yonsei University and Cheju National University in Korea in1998. Nanjing Normal University hosted the third conference in China. The forth conference was held by Hong Kong University and City University of Hong Kong in 2002, and the fifth conference by Hokkaido University in Japan in 2004. The College of Law of National Taiwan University is honored to host the 6th East Asian Conference on Philosophy of Law in Taipei from March 26 to 27, 2006. Taiwanese scholars did not attend the conference until the fourth conference in Hong Kong, and have participated in the fifth conference in Hokkaido, Japan. The College of Law of National Taiwan University, as one of Taiwan ' s leading law schools, has the honor of hosting the 6th conference due to the tremendous support from participating law schools. We sincerely welcome you to be our guest in Taipei. As the capital of Taiwan, Taipei is a metropolitan city that blends local culture with cosmopolitan life. Taipei is the political, economic, educational and recreational center of the country, and it provides much of the cultural diversity. One of the most popular attractions of the city is the National Palace Museum, which houses the finest collections of Chinese artifacts. The museum is located in outskirt of Taipei City and is a must-see for lovers of ancient Chinese culture. For visitors fond of historical sites, don ' t miss the Di-hua Street or the Lung-shan Temple (established in 1723). Please visit the website of Taiwan's Tourism Bureau at http://www.taiwan.net.tw/ (in Chinese, Japanese, Korean and English) for more information. An excursion will be provided for conference participants on the last day of the conference (March 28th).


Sunday, January 01, 2006
 
Happy New Year My best wishes for flourishing and happiness in the New Year to all the readers of Legal Theory Blog!


 
Legal Theory Lexicon: Causation
    Introduction Causation is one of the basic conceptual tools of legal analysis. And for most purposes, we can get along with a notion of causation that is both vague and ambiguous. In the world of medium sized physical objects (automobiles, pedestrians, etc.), our judgments about causation rarely depend on conceptual niceties. The driver’s negligence caused the death of the pedestrian but did not cause Hurricane Katrina. In these cases, various notions of causality converge. The person on the street, the scientist, and lawyer can all agree in such cases that for all practical purposes X caused Y but not Z. But sometimes the various notions of cause come apart exposing ambiguities and vagueness in both ordinary and legal talk about causes and effects. This post provides a very basic introduction to causation for law students (especially first-year law students) with an interest in legal theory.
    Cause-in-Fact & Legal Cause Let’s put the most important distinction on the table right away. Contemporary legal theory and judicial practice assume that there is a distinction between legal cause on the one hand and cause-in-fact on the other. What does that mean? That’s a huge question, of course, but we can state one conclusion straight away: that X is a cause-in-fact of Y does not entail that X is a legal cause of Y. Less obviously, that X is a legal cause of Y does not entail that X is a cause-in-fact of Y. The various ways that cause-in-fact and legal cause can come apart leads many to the conclusion that legal cause simply has nothing to do with causation, but this turns out to be an exaggeration. I know this all sounds very airy. So let’s get down to brass tacks!
    Cause-in-Fact What do we mean when we say that X is a cause-in-fact of Y? Many law students learn that the answer to this question is but-for causation. If it is the case that but for X, Y would not have occurred, then X is a but-for cause of Y and hence X is a cause-in-fact of Y. This simple story works most of the time, and as a rough and ready rule of thumb, it isn’t half bad. But it turns out that if you try to use but-for causation as a hard and fast rule for determining whether X is the cause of Y, you will run into trouble, sooner or later. In torts and criminal law, but-for causation runs into trouble somewhere in the midst of the first-year course. In a sense, the point of this Lexicon post is to provide a set of tools that for understanding the troubles that overreliance on but-for causation can cause.
    Necessary and Sufficient Causes The first item in the causation toolkit is the distinction between necessary and sufficient cause. The basic ideas are simple and familiar. X is a necessary cause of Y, if Y would not have occurred without X. Ben’s running the red light is a necessary cause of the damage to Alice’s car, just in case the damage would not have occurred without Ben’s having run the light. The idea of "necessary cause" is the same idea expressed by the phrase "but-for cause."
    X is a sufficient cause of Y, if Y would have occurred so long as X occurred. Alice’s shooting Ben through the heart is a sufficient cause of Ben’s death, just in case the shot thru the head by itself would have caused Ben’s death. This is true, even though Ben would have died anyway, because Cynthia shot him through the head at the same time Alice shot him through the heart.
    The Role of Counterfactuals The notions of necessary and sufficient causation are familiar to almost everyone. We use these ideas all the time in everyday life. But the very familiarity of these concepts creates a temptation to take them for granted. There is an important feature of these ideas that our day-to-day use of them does not make explicit. Both necessary and sufficient causation are counterfactual concepts. What does that mean? “Counterfactual” is simply the fancy name for “what if” thinking. What if Ben had stopped at the red light? Would the damage to Alice’s car still have occurred? What if the Ben had gotten immediate medical attention? Would the shot through the head still have killed him? Every statement regarding a necessary or sufficient cause can be interpreted as making a counterfactual (“what if”) claim.
    What-if reasoning is itself familiar and ordinary. When we say, Ben’s running the red light was a necessary cause of the damage to Alice’s car, we are claiming that if the world had been different and Ben had not run the red light, then Alice’s car would not have been damaged. We imagine what the world would have been like if Ben had stopped at the red light, and Alice had proceeded through the intersection without being struck by Ben’s car. Counterfactual reasoning can get more complicated that this, but for our purposes we can use everyday what-if reasoning as our model of role of counterfactuals in necessary and sufficient causation.
    Overdetermination Once we’ve gotten the notions of necessary and sufficient causes, we can move on to the idea of overdetermination. An effect is overdetermined if it has more than one sufficient cause. Take the case of Alice shooting Ben through the heart. We have postulated that the bullet passing through the heart was a sufficient cause of Ben’s death, but it may not have been a necessary cause. Suppose that Alice was a member of a firing squad, and that at the exact same moment that Alice’s bullet passed through Ben’s heart, another Bullet, fired by Cynthia, passed through Ben’s cerebral cortex and that this would have resulted in Ben’s death, even if Alice’s had not fired or her bullet had missed. Ben’s death now results from two sufficient causes, but neither Alice’s shot nor Cynthia’s shot was necessary. If Alice had not fired, Cynthia’s shot would have killed Ben. If Cynthia had not fired, Alice’s shot would have killed Ben.
    Overdetermination is important, because it undermines the idea that but-for causation tells us everything we need to know about cause-in-fact. We might say that both Alice and Cynthia’s shooting caused Ben’s death or we might say they were both partial causes of Ben’s death, but we would not be likely to say that neither Alice nor Cynthia’s shot was the cause.
    The firing squad example was described as a case of simultaneous overdetermination—both sufficient causes occurred at the same time. What if Cynthia shot a few seconds before Alice and Ben died before Alice’s shot pierced his heart? In that case, Cynthia’s shot would have preempted the causal role of Alice’s shot. If Cynthia had missed, then Alice’s shot would have killed Ben. This kind of case is sometimes called preemptive causation.
    Coincidence Overdetermination poses one kind of problem for but-for causation, coincidence poses another a different sort of difficulty. Suppose the driver of a trolley is speeding. As a result the trolley is in just wrong place and time and a tree falls, injuring a passenger. If trolley had gone just a little faster or just a little slower, the tree would have missed the trolley and the injury would not have occurred. Given these circumstances, speeding was a but-for cause (a necessary cause) of the tree injuring the passenger. So what? Coincidence is no problem for cause-in-fact, but it does pose a problem for the legal system. Intuitions vary, but lots of folks are inclined to believe that one should not be legally responsible for harms that one causes as a result of coincidences.
    Coincidence is related to a variety of other problems with but-for causation. Take our example of Ben running the stoplight and hitting Alice’s car. Running the stoplight was one but-for cause of this accident, but there are many others. For example, Alice’s being in the intersection was also a but-for cause. And how did Alice come to be in the intersection at just the time when Ben was running the red light? If her alarm clock hadn’t gone off, she would have slept in and arrived in the intersection long after Ben, so her alarm clock’s ringing was another but-for cause. And you know how the story goes from here. As we trace the chain of but-for causes back and out, we discover that thousands and millions and billions of actions and events are but-for causes of the accident.
    Legal Cause What do we about the problems with problems created by but-for cause? One way that the law responds is with the idea of legal cause or proximate cause. In this post, we cannot hope to achieve a deep understanding of legal cause, but we can get a start. Here are some of the ideas that help me to understand legal cause.
    First, there is a terminological issue: causation may be confused with responsibility. “Legal cause” is only partially about cause. We start with the idea of cause-in-fact (understood in light of the distinction between necessary sufficient cause). This idea of cause seems, on the surface, to fit into the structure of various legal doctrines. So we imagine that if a defendant breaches a duty of care and causes a harm, then defendant is legally responsible for the harm. This works for lots of cases, but then we start thinking about other cases like overdetermination and coincidence. “Legal cause” is the way that we adjust our ideas about legal responsibility to overcome the counterintuitive results that would follow from a simple reliance on but-for causation. In other words, “legal cause” may be a misnomer. It might be clearer if we used the phrase “legal responsibility” (or some other phrase) to describe the ways in which we adjust the law.
    Second, legal cause is frequently associated with the idea of foreseeability. For example, in coincidence cases, the harm (the tree injuring the passenger) is not a foreseeable consequence of the wrongful act (driving the trolley at an excessive speed). If the purpose of the law is deterrence, then no good purpose may be served by assigning legal responsibility in cases where the effect is unforeseeable.
    Third, legal cause is sometimes associated with the idea of proximity in time and space. Of course, the phrase “proximate cause” emphasizes this connection. We usually don’t want to hold defendants responsible for the remote and attenuated effects of their actions. We frequently do want to hold defendants responsible for the immediate and direct effects of their actions. “Proximity” seems to capture this point, but an overemphasis on proximity in time and space leads to other problems. Some immediate consequences do not give rise to legal responsibility: the trolley driver may have started speeding just seconds before the tree fell. Some causal chains that extend for long distances over great durations do give rise to legal responsibility: Osama bin Laden’s responsibility for 9/11 would not be vitiated by the fact that he set events in motions years in advance and thousands of miles away.
    Probability Our investigation of causality so far has elided an important set of issues—the connections between causation and probability. These connections are far too large a topic for this post, but even a superficial analysis requires that we consider two perspectives--ex ante and ex post.
    Ex post questions about causation arise in a variety of contexts, but for the legal system, a crucial context is provided by litigation and especially trial. In many cases, there is no doubt about causation. When Ben’s car speeds through the red light and hits Alice’s car, we don’t have much doubt about what caused the damage. But in many types of cases, causation will be in doubt. Did the chemical cause cancer? Was the desk job the cause of the back injury? Sometimes the evidence will answer these questions with certainty (or perhaps, with something that is so close to certainty that we treat it as certainty for legal and practical purposes). But in other cases, the evidence will leave us with a sense that that the defendant’s action is more or less likely to have caused the harm to the defendant. Such probabilities may be expressed either qualitatively or quantitatively. That is, we might say that it is “highly likely” that X caused Y or we might say that there is a 50% chance (p = .5) that X caused Y.
    Ex ante issues of causation also arise for the law. For example, the legal system may be required to assign a value to a risk of harm that has not yet been realized. David has been exposed to asbestos, but may or may not develop cancer. In this case, probabilities refer to the likelihood of future events.
    Decision theory and mathematics have elaborate formal machinery for representing and calculating probabilities. In this short post, we cannot even scratch this surface, but there are two or three bits of notation that every legal theorist should know:
      --The letter “p” is frequently used to represent probability. Most law students encounter this notation in Justice Hand’s famous opinion in the Carroll Towing case (B < PL or “burden less than loss discounted by probability). The notation p(x) = 0.1 can be read “the probability of x equals 1/10.” And the notation, p=0.5 can be read “probability equals one in two.”
      --The symbol “|” is frequently used to represent conditional probabilities. Suppose we want to represent the probability that X will occur given that Y has occurred, we can use this notation: p(X|Y). So we could represent the sentence, “The probability of Cancer given Exposure to Asbestos is ten percent,” as p(C|EA)=0.1.
    Types and Tokens So far, we have been focusing mostly on cases where an individual instance of harm is caused by some particular wrongful action. But of course, we frequently think about causation as a more general relationship. For example, in science we might speak of “causal laws.” There is no standard terminology for this distinction: we might use the phrase “individual causation” and “systematic causation.” One helpful bit of terminology for getting at this idea is to differentiate “types” and “tokens.” Ben’s running the rend light at a particular time and location is an event token and it is a token of a type of events, i.e. the type “running a red light.”
    Once we have the distinction between types and tokens in place, we can define individual causation as a causal relationship between a token (e.g. a token event) and another token (e.g. a token action). And we can define systematic causation as a causal relationship between a type (e.g. a type of event) and another type (e.g. a type of action). Science studies causal relationships between types; trials frequently involve questions about the causation of one token by another. This leads to another important point: the question whether an individual harm was caused by an individual action will sometimes depend on the question whether a systematic causal relationship exists; for example, the question whether this factory’s release of a chemical caused an individual case of cancer may require a jury to resolve a “scientific” question about systematic causation.
    Conclusion Even though this is a long entry by the standards of the Legal Theory Lexicon it is a very compressed and incomplete treatment of the concept of causation. Given the way legal education is organized (around doctrinal fields like torts, criminal law, and evidence), most law students never get a truly comprehensive introduction to causation. Torts may introduce the distinction between cause-in-fact and legal cause; criminal law, problems of overdetermination; and evidence, the relationship between probability and causation. If this post accomplishes anything of value, I hope that it serves as warning—causation is a deep and broad topic about which there is much to learn.
    Bibliography
      H.L.A. Hart & Tony Honore, Causation in the Law (2d ed. 1985). This is the book on causation and the law. Currently out of print, but used copies are available on Amazon.com.
      Causation (Oxford Readings in Philosophy) (Ernest Sosa & Michael Tooley eds. 1993). A fine collection of essays, with contributions by J.L Mackie, Michael Scriven, Jaegwon Kim, G.E.M. Anscombe, G.H. von Wright, C.J. Ducasse, Wesley C. Salmon, David Lewis, Paul Horwich, Jonathan Bennett, Ernest Sosa, and Michael Tooley.