Legal Theory Blog |
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 Home All the theory that fits. This is Lawrence Solum's legal theory weblog. Legal Theory Blog comments and reports on recent scholarship in jurisprudence, law and philosophy, law and economic theory, and theoretical work in substantive areas, such as constitutional law, cyberlaw, procedure, criminal law, intellectual property, torts, contracts, etc. RSS Legal Theory Links --Email me --My Home Page --Legal Theory Annex (All the theory that does not fit.) --Legal Theory Lexicon (Basic concepts in legal theory for first year law students.) --My Publications on SSRN Noteworthy Posts Getting to Formalism Water Wells and MP3 Files: The Economics of Intellectual Property Do Humans Have Character Traits? Naturalistic Ethics The Case for Strong Stare Decisis, or Why Should Neoformalists Care About Precedent? Part I: The Three Step Argument Part II: Stare Decisis and the Ratchet Part III: Precedent and Principle Fear and Loathing in New Haven A Neoformalist Manifesto Understanding the Confirmation Wars: The Role of Political Ideology and Judicial Philosophy Breaking the Deadlock: Reflections on the Confirmation Wars Going Nuclear: The Constitutionality of Recess Appointments to Article III Courts Archives Blogosphere --Balkinization (Jack Balkin) --Crescat Sententia (Group Blog) --Crooked Timber (Group Blog) --De Novo (Group Blog) --Discourse.Net (Michael Froomkin) --Displacement of Concepts (Group Blog) --Election Law (Rick Hasen) --Freedom to Tinker (Ed Felten) --How Appealing (Howard Bashman) --Instapundit (Glenn Reynolds) --Is That Legal? 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Berkeley) eScholarship Repository +Law and Politics Book Reviews +Metapsychology Book Reviews +Notre Dame Philosophical Review +Online Papers in Philosophy +PoliticalTheory.info +SSRN Most Recent Uploads This Month's Contents (University of Texas Law Library) More Blogs of Interest --Asymmetrical Information (Jane Galt) --bIPlog (Group Blog) --The Blawg Review (Group Blog) --Brad DeLong --The Buck Stops Here (Stuart Buck) --Copyfight (Donna Wentworth) --A Copyfighter's Musings (Derek Slater) --The Curmudgeonly Clerk --Daniel Drezner --Discriminations (John and Jessie Rosenberg) --Eastmania (Wayne Eastman) --EveTushnet.com (Eve Tushnet) --Freespace (Timothy Sandefur) --Furdlog Frank Field --A Good Oman (Nate Oman) --Greg Goelzhauser --Half the Sins of Mankind (Pallavi Guniganti) --Ideoblog (Larry Ribstein) --The Importance Of Ernest Miller --The Indiana Law Blog (Marcia J. 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Journals Specializing in Legal Philosophy --American Journal of Jurisprudence --The Journal of Philosophy, Science, and Law --Law and Philosophy --Law and Social Inquiry --Legal Theory --Oxford Journal of Legal Studies Legal Theory Resources on the Web Entries from the Stanford Encyclopedia of Philosophy +Austin, John +justice, distributive +justice, as a virtue +legal philosophy, economic analysis of law +legal reasoning, interpretation and coherence +legal rights +liberalism +libertarianism +naturalism in legal philosophy +nature of law +nature of law, legal positivism +nature of law, pure theory of law +republicanism From the Oxford Handbook of Jurisprudence +Natural Law Theory: The Modern Tradition From the Oxford Handbook of Legal Studies +Law as an Autonomous Discipline From the Examined Life A Critical Introduction to Liberalism Papers & Articles +Virtue Jurisprudence Organizations +American Political Science Association(APSA) +American Society for Political and Legal Philosophy (ASPLP) +Association of American Law Schools(AALS) +Internationale Vereinigung fur Rechts und Sozialphilosophie(IVR) +Law and Society Association +Midwest Political Science Association (MPSA) My Postal Address Lawrence B. Solum University of San Diego School of Law 5998 Alcala Park San Diego, CA 92110-2492 USA 
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Thursday, March 25, 2004
Lash on the Ninth Amendment and the Proposed FMA I posted yesterday on the relationship between the text of the Ninth Amendment and the text of the proposed FMA, which reads:
Retained rights under the Ninth are either collective or personal. If personal, they are either natural, positive or both. For the purposes of the FMA, it does not matter which of these is the case. All retained rights referred to in the Ninth Amendment are subject to being delegated by the people to their respective state governments. The same is true for reserved powers under the Tenth Amendment--they too may be delegated by the people to their respective state governments. Both the Ninth and Tenth Amendments leave to the people control over non-delegated rights and powers. So, suppose that a retained right of the people is the right to marry, including the right to marry regardless of sex. The people retain the right to delegate control of marriage, including the right to marry regardless of sex, to their respective state government. Since the FMA basically allows the people to delegate control of such rights to their state government, the FMA is not in conflict with the Ninth. Even if this right is considered a natural right, and therefore not a matter legitimately delegated to state governments, it still remains under the control of the people of the several states. The people may assert such a right, and the enumeration in the federal constitution of certain rights shall not be contrued to deny or disparage such retained rights. But even if the federal constitution is not to be construed to deny or disparage such rights, this does not answer whether the people of a state have decided to deny regulatory power over marriage to the federal government, but delegate control over the same to state governments. It simply becomes an issue of state law. The clearest example of this is James Madison's arguments against the Alien and Sedition Acts. Madison believed that speech was a retained natural right of the people. His argument against the Sedition Acts, however, was that Congress had both violated the retained rights of the First Amendment and the reserved sovereignty of the states. In the alternative, suppose that the Ninth Amendment refers to collective as well as personal rights. For example, the people retain the colective right to regulate marriage at a local level. In this case, the FMA actually defends a retained right of the people. In this case, it defends the people's right to local control over marriage against interference by federal courts and their construction of the constitution. In fact, under this approach, the FMA becomes an example of how the Ninth Amendment was meant to be applied. If the Ninth, like the rest of the Bill of Rights, was meant to control federal interference with matters thought best left to the people of the several states, then the FMA could be placed directly after the Ninth and prefaced by the words "for example . . . Thursday Calendar
At U.C. Berkeley's GALA series, William Talbott (University of Washington, Philosophy) presents What's So Bad About Legal Paternalism? (Or What's So Good About Autonomy? At Oxford's Faculty of Law, Douglas Baird presents The New Face of Chapter 11. At Oxford's Public International Law Discussion Group, Ryszard Piotrowitz presents The Emerging International Regime on People Trafficking . At UCLA's legal history series, David Konig, Washington University in St. Louis, presents The Color of Money and Color of Law: Credit, Law, and the Forming of a Property Regime in Seventeenth-Century Virginia. At Princeton's public law colloquium, Jeffrey Staton (Florida State University) presents When Judges Go Public: Building the Judiciary through Media Relations. At UCLA's tax policy series, Al Harberger, UCLA Economics Department, presents Top Ten Lessons from Public Finance At University College, London, Gisela Striker (Harvard) presents Mental Health and Moral Health: Moral Progress in Seneca's Letters. Emens on Compulsory Monogomy Elizabeth F Emens (University of Chicago - Law School) has posted Monogamy's Law: Compulsory Monogamy and Polyamorous Existence on SSRN. Here is the abstract:
The article asks why polyamorous relationships face such severe normative censure. After considering various objections, the article concludes that one key component of the censure is, paradoxically, the ability of most people to imagine themselves having sex with someone other than a primary partner-in other words, a paradox of prevalence. Despite the widespread desire for more than one sexual partner, however, and despite relatively widespread nonmonogamy, most people do not engage in polyamorous relationships. But neither do most people affirmatively choose monogamy: Laws and norms exert strong pressure on people to promise monogamy, and most people simply succumb to this pressure. The article argues that although monogamy is a sound choice for many, polyamory is a sound choice for others. Building on this premise, the article considers some ways that information-forcing principles of contract law might be used to help encourage people to make active, reflective choices about monogamy. Marmor on Constitutional Interpretation Andrei Marmor (University of Southern California - Law School) has posted Constitutional Interpretation on SSRN. Here is the abstract:
Mann on the Software Patent Thicket Ronald J. Mann (University of Texas at Austin - School of Law) has posted The Myth of the Software Patent Thicket: An Empirical Investigation of the Relationship Between Intellectual Property and Innovation in Software Firms on SSRN. Here is the abstract:
This paper focuses on innovation in the hundreds of small venture-backed firms that form the bulk of the population of the industry. After a brief description of the history of the industry in Part II, Part III discusses the evidence on which the paper relies: a set of about 50 interviews of industry executives - diversified geographically, by size of company, and by role in the industry (software developers, venture capitalists, lenders, etc.). Relying on those interviews, the paper provides a detailed explication of the role that intellectual property plays in the industry. Parts IV through VI of the paper organize the information from the interviews and situate it in the extensive literatures on venture capital investing, the economics of innovation, and patents. The first substantive topic of the paper (Part IV) is the features of startup firms that attract investment by venture capitalists - generally something about the startup that suggests a sustainable differentiation of the firm from its competitors. The second substantive part of the paper (Part V) discusses the role of copyright. The major point of this part is that copyright protection is of little value to startup firms. Copyright protection is designed to protect expression, and not functionality. Thus, it provides little of the protection for which venture investors are looking. On the other hand, copyright protection does provide important protections in other areas, most obviously in protecting the later-stage firm's products from piracy. Generally, this part of the paper tells a story of unsuccessful efforts to stretch the copyright regime to do something it never was intended to do. The final substantive part of the paper (Part VI) discusses the role of patents. Because patents do protect functionality, they have at least the theoretical potential to provide the sustainable differentiation for which investors are looking. The problem, however, is that in many sectors of the software industry innovation is not of a character that a typical patent can protect a firm from competitors: often competitors would be able to design a competing product that works around a firm's patent. Thus, despite significant increases in patenting in the industry, about 80% of venture-backed software firms do not obtain patents during the early years of their existence. The question, then, is what benefits patents do provide to those firms. This part explores several benefits, including the classic benefit of excluding competitors. In this industry at least, that benefit accrues primarily to small firms, protecting them from the competitive depredations of incumbents. Incumbents, by contrast, rarely use patents to exclude smaller firms from the industry. The part also discusses a series of less conventional benefits small firms gain from software patents: as barter in cross-licensing arrangements, in signaling their technical competence to third parties, in converting tacit knowledge into a verifiable and transferable form, and in making the firm attractive to potential acquirers. The paper closes by discussing the implications of the patent analysis for recent debates about the value of patents in the software industry. The paper presents evidence about existing practices in the industry suggests that technology in fact is readily available, rebutting the prominent claims of a patent thicket that is supposedly stifling innovation in the industry. On the contrary, I argue, to the extent patents have an important effect in the industry, it is an effect that inures primarily to the benefit of the smaller firms trying to find a foothold from which they can compete. Wednesday, March 24, 2004
Essay Contest: Law & Aesthetics
Imagine there is something called "Law & Aesthetics" that is studied and taught at law schools. Now, write its encyclopedia entry. There are no restrictions other than those suggested by the title of the encyclopedia entry. As you see fit, your assignment is to invent the history and/or substance of Law & Aesthetics, a discipline that does not presently exist. You are encouraged to: invent or rewrite history in order to accommodate your creative vision. attribute elements of the discipline to historical figures (artists, legal scholars, philosophers, judges, historians, etc.) or invent its participants out of whole cloth. integrate strands of existing theories and realms of inquiry you deem relevant or create something from scratch. chronicle the history and evolution of the discipline; catalog its adherents and critics and their contributions; detail its tenets and research program; summarize the leading books or articles; or all (or none) of the above. be creative. This creative writing contest is open to Boalt Hall Faculty, Students and Staff.* Winning entries will receive appropriate recognition. The author of the best entry will receive $150.00. Entries should be submitted to LawAesthetics@yahoo.com. The text of this announcement is available on request at this email address. Additional information probably will not be provided, however, in order to maintain a level playing field. Entries should be longer than, say, a dictionary entry but probably no more than a thousand or twelve hundred words. The submissions deadline is Wednesday, April 7, 2004. Contest rules may change; however, the cash prize will be awarded if a minimum number of entries are received. *and some others: the contest is open to Boalt Hall students, faculty, and staff; and to their friends, family, and household members; and to the friends of these people. Froomkin on National ID Cards Michael Froomkin has posted a new version of his paper, The Uneasy Case for National ID Cards. Here is a taste:
Copyfight Goes Group One of my very favorite blogs--Copyfight--is now a group blog with Donna Wentworth, Ernest Miller, Elizabeth Rader, Jason Schultz, Wendy Seltzer, and Aaron Schwarz. That's a teriffic lineup. Check it out! FMA & the Ninth Amendment Stepehen Bainbridge pointed to the text of a new version of the Federal Marriage Amendment:
Of course, all of this is academic at this point, as it appears that no version of the FMA currently has a serious chance of making it through the Senate. For on this proposed version, check out Balkin. Thursday Calendar
At the University of Pennsylvania's philosophy series, Philip Kitcher, Columbia begins his series of Seybert Lectures. The first is Beyond Religion. At Loyola Marymount, Kathryn Boalt Hall School of Law, University of California at Berkeley, presents Fostering Agency through Social Programs: The Case of Welfare Reform. At NYU's legal history series, Felice Batlan, Graduate Student of History, NYU, presents The Purified Tenements: Municpal Citizenship, the Expanding Public, and the Myth of Laissez-Faire . At London's Heythrop Philosophy Society, Stephen Mulhall (New College, Oxford) presents Nietzsche's Genealogy of Humanity. Distinguished Lecture Announcement: Balkin at Cardozo On April 27 at 6:00 p.m., Jack Balkin will give the Uri & Caroline Bauer Memorial Lecture at the Benjamin Cardozo Law Schoo. Balkin's title is "Plessy,Brown & Grutter: A Play in Three Acts." Balkin is one of the very best--mark your calendars! Brophy on the Torts Analogy for Reparations Alfred L. Brophy (University of Alabama - School of Law) has posted Reparations Talk: Reparations for Slavery and the Tort Law Analogy (Boston College Third World Law Journal, Vol. 24, pp. 81-138, 2004) on SSRN. Here is the abstract:
Beach on Constitutional Bargaining Derek Beach (University of Aarhus) has posted Towards a New Method of Constitutional Bargaining? The Role and Impact of EU Institutions in the IGC and Convention Method of Treaty Reform on SSRN. Here is the abstract:
Durham on Copyright & Information Theory Alan L. Durham (University of Alabama - School of Law) has posted Copyright and Information Theory: Toward an Alternative Model of Authorship (BYU Law Review, 2004) on SSRN. Here is the abstract:
Madoff on Mediating Probate Disputes Ray D. Madoff (Boston College - Law School) has posted Mediating Probate Disputes: A Study of Court Sponsored Programs (Real Property, Probate and Trust Law Journal, Vol. 38, pp. 697-725, Winter 2004) on SSRN. Here is the abstract:
1. Courts are not providing sufficient encouragement; 2. Probate disputes are relatively rare - particularly in comparison to divorce - and, therefore, it is not efficient to establish mediation programs specifically geared towards such disputes; 3. The number of qualified mediators with a good understanding of probate law is insufficient to handle probate disputes; 4. Estate planners already act as informal mediators in probate disputes and resolve many of the resolvable cases. If litigation is threatened, it is because the dispute is unlikely to be susceptible to successful mediation; 5. The probate bar lacks familiarity with mediation and is reluctant to embrace it; 6. The parties are unwilling to bear the costs of mediation; 7. In many probate disputes, at least one party's litigation expenses may be borne by the trust or the estate thereby reducing that party's incentive to settle; 8. The emotional nature of probate disputes makes the parties unwilling to settle through mediation; and 9. Probate disputes are difficult to mediate because the person whose views are most relevant, namely the testator in a will or the settlor of a trust, is dead and not able to participate in the mediation. In some jurisdictions, courts have attempted to address these concerns directly. For example, to overcome reluctance by the parties to use mediation, some judges require that all disputes go to mediation before they can proceed in court. To reduce the costs of mediation, some court-sponsored programs use volunteer mediators or fund the cost of mediation directly. Finally, to fill the perceived need for mediators who understand the substantive law of wills and trusts, some programs provide mediation training for lawyers practicing in the wills and trusts area, and others provide probate law training to experienced mediators. This Article examines six court-sponsored programs designed to encourage the use of mediation to resolve probate disputes in five jurisdictions: Texas, Florida, Georgia, California (Los Angeles and San Francisco), and Hawaii. Some of the programs are part of larger state-run programs designed to encourage the mediation of a variety of disputes, but all were studied in terms of their specific application to probate disputes. In discussing each of the programs, this Article focuses on the extent to which courts and practitioners either have addressed or proven false the suggested impediments to the use of mediation in resolving probate disputes. Part II of this Article provides a general description of mediation. It discusses the role of mediation in our current dispute resolution system and describes the mediation process. Part III then describes the six court-sponsored programs designed to encourage the use of mediation in probate disputes and offers attorney feedback with respect to each program. Finally, Part IV examines common issues that arise in developing court-sponsored programs designed to encourage the use of mediation in probate disputes. Tuesday, March 23, 2004
Blogging from Cardozo: Session Four on Reform
The first speaker is Prof. Walter Dellinger, Duke Law School; O�Melveny & Myers LLP, and one of the great American legal academics. His paper is entitled The Judicial Appointments Breakdown � Is There a Solution? Dellinger believes that the process is in terrible trouble. Everyone understands that the opposition can block a certain number of nominees, but not all. A nominee may be rejected if the nominee is �outside the mainstream.� Dellinger would prefer complete deference to the status quo. Dellinger thinks that the current system encourages mediocrity or stealth candidates. Some of the best Bush nominees, i.e. Michael McConnell, were held up. Dellinger proposes that the Senate Democrats should meet at a retreat and come up with a list that the President should add to his list. If the Senate had come up with a list of 15 distinguished additions and the President had rejected them all, then the only reason for the President�s behavior would be a strict ideological test. Why would the President agree? Because the President would get more nominees confirmed! Dellinger advances a half-serious proposal on the filibuster. A filibuster should be terminated when Senators representing a majority of the population vote for cloture. McGinnis Next up is Prof. John O. McGinnis, Northwestern University School of Law. McGinnis�s paper is entitled Supermajority Rules in Judicial Confirmations--coauthored with Michael Rappaport. An ideal supermajority rule would not be a filibuster rule, but a rule that would require a supermajority vote for confirmation itself. Such a rule would result in a different set of judges. Would the supermajority rule produce better judges? To decide whether it would be a good thing, you need a theory of judging. Suppose we have a realist theory of judging. In that context, a supermajority rule might defend the rights of the majority. Constitutional amendments require supermajority; if realism is right, then the Supreme Court is a perpetual constitutional convention. Requiring 60 votes for confirmation is a less stringent rule than applied for constitutional amendments. What are the costs of a supermajority rule? It might keep the most talented judges off the bench. Once you have a 60 vote rule, there may be even more opposition to distinguished judges, because it is easier to defeat them. McGinnis discusses several other costs briefly, and concludes that it is not clear that a supermajority rule is a good idea. McGinnis then turns to the question whether there should be a rule that requires a hearing on nominees, unless a supermajority votes against holding the hearing. When candidates don�t get hearings, then even good candidates may be defeated. Marshall The next speaker is Prof. William P. Marshall, University of North Carolina School of Law. Marshall�s paper is Constitutional Law as Political Spoils. Marshall is one of the most respected constitutional scholars and an alumnus of the Clinton administration. Marshall introduces his remarks by saying he will end on a note of pessimism. The system is broken and may not be fixable. The politics of political destruction has taken over the process. And if we confirm someone who has radical views, does that license radical judging? The real villain is legal realism. Not crude legal realism, but a modest sort of legal realism. Recently, the abandonment of objective law has entered the judicial selection process. This was evident in the Bork hearings, and in the nomination practices of the Reagan administration. Marshall argues that the Clinton administration was less ideological, in part because the Clinton administration supported the judicial status quo. Most recently, in Republican Party of Minnesota v. White, the United States Supreme Court recognized the right of candidates for judge to campaign on the basis of their stances on particular legal issues. Why is this bad? Marshall is troubled, because he believes that partisan politics is not a good way to play out the development of constitutional law. Hardball politics is not a good way to shape the future of the Constitution. But no one has an incentive to change the nature of the process. The winners in the political game won�t give up power. What about the other side? If judgeships are like legislation, then, of course, you will use every possible tactical tool to fight your political battles. The only way to end the stalemate is through an act of statesmanship. Marshall hoped that President Bush might have tried to end the cycle of payback. But that didn�t happen. Both sides, left and right, want to change the nature of the federal courts. Given that, neither side will be willing to forgo the use of the power that goes with holding the Presidency. Hamilton Comments were provided by Prof. Marci Hamilton, Benjamin N. Cardozo School of Law. I always enjoy Hamilton�s remarks�which I usually see at intellectual property conferences. Hamilton argues that both parties have abandoned the public good. The Constitution is set up to allow Senators and Presidents to pursue the public good, but neither side is doing that. The founders would have asked us to look at the virtue of those who occupy office. Madison was worried that there are not enough virtuous men to make the system work. The only thing that will stop the cycle is statesmanship. Someone would need to say, I am looking for fair-minded people. The truth of the matter is that federal judges spend most of their time on drugs and the sentencing guidelines. They don�t get the political cases very frequently, but what that proves is the politicization of the process. The answer to a lack of virtue is checks and balances. We are supposed to experiment with new ways of making the system work. Dellinger�s proposal would require an incredible change of attitude that isn�t likely to work. With respect to McGinnis�s proposal to require committee votes absent a supermajority vote to delay, Hamilton says, �Why not? If it works, wonderful. If not, try something else.� However, Hamilton disagrees with the idea that the legislature is supposed to be majoritarian. Federalist Number Ten makes it clear that legislatures are not supposed to be majoritarian; legislatures are supposed to seek the common good. Senators are free to disregard out opinions during their relatively long terms. Blogging from Cardozo: Session Three on The Constitutional Law Of The Appointments Process
First up are my dear friends Erwin Chemerinsky and Catherine Fisk (currently USC, but Duke next year). Their talk is entitled Filibustering Judicial Nominations. Fisk states their thesis: filibusters are a desirable feature of the nomination process. Moreover, she argues, that filibusters of the confirmation process has precedent�both in the filibuster of Abe Fortas and more generally in opposition to nonjudicial nominees. Chemerinsky then moves to the argument that filibusters are antimajoritarian. Filibusters, says Chemerinsky, is one of many antimajoritarian features of our system, including the apportionment of the Senate itself. Antimajoritarian checks serve to protect minorities. The filibuster is used, he argues, to protect minorities. Chemerinsky then shifts his argument and claims that the filibuster makes judicial nominees more majoritarian�but I think that Chemerinsky means more centrist not more majoritarian. Fisk then discusses the historical precedents. The filibuster is one of several Senatorial checks. (1) One is the �blue slip,� which gave home state Senators the opportunity to veto a nominee�s consideration by the Committee. (2) Another is the �hold,� a request for delay to give a Senator additional time to investigate a nominee. (3) Yet another is the committee system which allows a small number of committee members to block a nomination. (4) Other tools have been used to control nominees; for example, oversight hearings have been used to prevent executive branch appointees from carrying out their policies. (5) A threat of noncooperation on other issues�e.g. legislation�can be used to thwart nominations. Chemerinsky then points out that Republicans have proposed changing the filibuster rule solely for judicial nominees. Chemerinsky argues that there is no good reason to treat judicial nominations differently than other nominations�on this point, his argument was quite persuasive to me. On the role of ideology, Chemerinsky argues that the consideration of ideology is entirely appropriate and that the Democrats have been insufficiently ideological in opposing Bush�s nominees. Fisk then addressed the question whether filibusters can legitimately be used for obstruction, as opposed for the purpose of facilitating extended deliberation. She argues that this distinction is not supported by the history of the Senate�where there is a long history of obstructionist filibuster. Chemerinsky concludes that Rule 22, although unconstitutional, can only be changed in accord with Rule 22. This last point proved quite controversial in the Q & A period. John McGinnis pressed Chemerinsky, suggesting that when Rule 22 was applied, a constitutional objection could be made and the chair (the President of the Senate (VP of the US) could then rule on the objection. Chemerinsky stuck to his position, arguing that the chair lacks authority to rule on such a motion. In informal discussions after the session, several participants continued to press on this point, arguing that the Senate Rules are subject to the Constitution, just like any other law. Rudenstine Next up is David Rudenstine, Dean of the Benjamin N. Cardozo School of Law. His topic is Advice and Consent. The Senate, he said, has done too little advising and too much consenting. Rudenstine recounts the story of Justice Routledge�s giving George Washington the advice that Routledge be appointed as Chief Justice. His second story concerned Justice Cardozo, who was appointed by Hoover, perhaps in response to pressure from a powerful Senator. I think Rudenstine�s characterization of the history is wrong. There are literally hundreds (perhaps thousands) of documented cases of Senators giving Presidents advice on judicial nominees. Indeed, advice is the norm, not the exception. Rudentstine then presents five models of advice and consent. (1) The feather approach�that is, undue deference to the President. In the middle of the twentieth century, only one Justice was rejected. (2) The hammer approach�that is, raw political strife between the Senate and the President. An example is post-Civil War reduction of the size of the Supreme Court in order to prevent President Johnson from even having the opportunity to nominate a Supreme Court Justice. (3) The boa-constrictor approach�the approach that eliminates consideration of �ideology� or Rudenstine prefers �judicial philosophy.� Powell and Blackmun, for example, were overwhelmingly confirmed, without any real consideration of their worldviews. (4) The curtain approach�Senators say they consider character and competence, but really consider judicial philosophy behind the curtain. (5) The banana-split model. Everything should be out in the public. This model, he argues, is realistic and consistent with the Constitution. That clause was intended to give the Senate a meaningful role in the process. Rappaport Prof. Michael Rappaport, University of San Diego School of Law, is next. His talk is entitled The Original Meaning of the Recess Appointments Clause. Rappaport�s position is that the recess appointments by President Bush are unconstitutional if we follow the original meaning of the recess appointments clause. The original meaning of the clause allows recess appointments only if two conditions are met: (1) the vacancy arises during a recess of the Senate, and (2) the recess is an �intersession� recess and not an �intrasession� recess. Rappaport first addresses the question whether the vacancy must �arise� during a recess or whether it is sufficient that the appointment �exist� during a recess. The language of the clause�vacancies that may happen during the recess�seems to strongly support the limitation of the clause to vacancies that come into being while the Senate is in recess. Moreover, almost all of the early history from the founding period supports the �arise� interpretation of the clause. Finally, Rappaport argues, the structure of the Constitution, with a major role for the Senate in confirmation, is most consistent with the �arise� interpretation. Rappaport then turns his attention to the problem of late-arising vacancies, i.e. vacancies that occur during the waning days of the Senate. He argues that this policy problem can be handled by �acting� positions, e.g. the deputy AG becomes AG if the AG is incapacitated, dies, or resigns. Finally, Rappaport turns to the question whether the clause applies to intrasession recesses. The modern view is that even short intrasession recesses trigger the recess appointments power, but Rappaport argues that the power is limited to recesses that are between sessions. Rappaport argues that the Constitution distinguishes �recesses� from �adjournments,� and that only the latter are short breaks within a session. Moreover, recess appointments last until the end of the next session of Congress�it would be odd for this to be the term if short intrasession recesses were intended to be covered by the clause. Moreover, intrasession recesses can be quite short�one day or even a single night. There is no good reason for allowing recess appointments during such a short period. Rappaport�s argument is quite compelling. (Since his office is next to mine, he�s had many opportunities to persuade me.) But Rappaport�s argument is limited to the original meaning and does not directly address the long historical practice that runs contrary to the original meaning. Hartnett The next speaker is Prof. Edward Hartnett, Seton Hall Law School. His talk is entitled Recess Appointments of Article III Judges. Unlike Rappaport, Hartnett defends the broad, modern interpretation of the recess appointments clause. Harnett argues that things can happen over an extended period of time. So, he argues, that a vacancy �happens� during the whole period the vacancy exists. The �exists� interpretation, Hartnett argues, dates back to 1823, and late-arising vacancies provided a perfectly sensible reason for this interpretation. Harnett also makes the argument that under the �arises� interpretation, the President could wait until the Senate is back in session and then fill a vacancy that remains open�an absurd result. With respect to intrasession recesses, the modern practice did not arise until the 1860s, but it was not until then that extended intrasession recesses arose. The argument that intrasession recesses are not allowed does not come about until Theodore Roosevelt�s Presidency. Harnett also points out that there could be a very very short intersession period�if one session runs into the next. Hartnett also argues that the term of recess appointments is consistent with intrasession recesses. Different legal mechanisms work to determine recess and session. Sessions require action by law. Recesses are set by concurrent resolution. So is there any limit at all? This is troubling, says Hartnett. Maybe there is a three-day limit�each House can recess for three limits without the consent of the other. Or perhaps, this is a political question. The Senate and President have political means suggestion themselves. Does the recess appointments power apply to the judiciary? Hartnett says the text supports judicial recess appointments. What about life tenure? Recess appointees do not have life tenure. This argument was not raised until the 1950s. And recess appointees cannot be removed by the President; they have good behavior protection for the term of the recess appointment. Herz Michael Herz from Cardozo provided comments. His first observation is that there is only one appointments clause, but the clause applies to many different kinds of officers. This one-size-fits-all approach is going to give rise to problems. Take the recess appointments clause. The text supports Rappaport�s narrow interpretation, but this is inconsistent with the purpose of the clause, which applies even if the vacancy first arose during the time when the Senate was in session. Could we have two recess appointments clauses? One for judges, another for all other officers. Herz suggests that we could�that in practice judicial confirmations are treated differently than other confirmations. Recent recess appointments, says Herz, have nothing to with the purpose of the recess appointments clause. There is no threat to the effective functioning of the judiciary. Can we have a dead constitution with living purposes? Finally, Herz notes that Thurgood Marshall�s appointment to the Second Circuit was held up for a very long time. There was a protracted struggle. Marshall was a recess appointee. One of the things that kept the nomination bottled up was the threat of a filibuster. Kennedy considered giving Marshall a second recess appointment. Marshall was considered out of the mainstream. We should keep this story in mind. Blogging from Cardozo: Session Two on The View from DC The speaker at the second session was Helaine Greenfeld, Senior Nominations Counsel to Senator Patrick Leahy; her talk was entitled The View From D.C.. Greenfield provided a fascinating narrative of the last decade of confirmation battles from the Democratic perspective. One of her points was that Senator Leahy allowed confirmation of many more of President Bush�s nominees than Senator Hatch allowed of President Clinton�s nominees. A major portion of Greenfield�s talk was devoted to the proposition that the Democratic filibuster of Estrada, Owens, Pickering, et al, was not based on ideology. Rather, she argued, the opposition to these nominees was based on their lack of �qualification� of these nominees. The first part of Greenfield�s talk, which pointed out Republican obstruction of Clinton nominees was very serious seemed quite right to me. The second part of her talk was interesting in part because her line�that the opposition was not based on political ideology�contrasts sharply with the stance of many of the supporters of filibusters, both in and out of the academy, which has been based precisely on ideology. I asked Greenfield a question about the so-called �nuclear option,� i.e. a change in the Senate Rules that would eliminate or limit the filibuster of judicial nominees. Did the Democrats in the Senate take the nuclear option seriously? Greenfield�s answer was no. Republicans lacked the votes to get cloture on an amendment to the Senate Rules�the high road to ending the filibuster. And the low road, essentially getting a ruling of the chair to avoid the necessity of a two-thirds vote on cloture would have led the Democrats to shut down the Senate, a price that Democrats calculated that Republican�s would not be willing to pay. Blogging from Cardozo: Session One on Judicial Selection I am blogging from the Joseph Burns Moot Court at the Benjamin N. Cardozo School of Law at the corner of Tenth Street and Fifth Avenue in New York. I was on the first panel. It would have been impolite to take notes, so I don�t have detailed comments. Here was the lineup:
Prof. Judith Resnik, Yale Law School, Judicial Selection, Independent Jurists, and Life Tenure. Prof. Lawrence Solum, University of San Diego School of Law, Judicial Selection: Ideology Versus Character. Prof. David Yalof, University of Connecticut, A Bridge Too Far? Interpreting Lower Courts Appointments of Today Within the Framework of Supreme Court Appointments of Tomorrow I enjoyed all of the papers. Judith Resnick gave especially illuminating remarks, emphasizing the historical changes the federal judiciary. Most federal judges, she noted, are administrative law judges�wielding authority that would have been unthinkable for a non-Article III adjudicator before the New Deal. In addition, today there are hundreds of non-Article III bankruptcy judges and magistrates. And there are many, many more Article III judges. Moreover, the federal courts business has expanded and changed in nature. In other words, we fact a judicial selection task that is far different today than was faced 100 years ago. Dawn Johnsen�s comments focused mainly on my presentation�with which she strongly disagreed. One of Johnson�s moves was to distinguish between political ideology and legal ideology. Johnson argued that consideration of legal ideology is legitimate, even if it would be improper to consider purely political ideology. Johnson also questioned the notion that formalist even possible judging possible. But if formalism isn�t possible, then what is the difference between political and legal ideology? Johnsen�s comments were intelligent and fair. Monday, March 22, 2004
Weekend Update On Saturday, the Download of the Week was Respect-Worthy: Frank Michelman and the Legitimate Constitution by Jack Balkin. Also on Saturday, the Legal Theory Bookworm recommended Alexander Bickel's classic, The Least Dangerous Branch and links were provided to SSRN Top Recent Downloads. On Sunday, the Legal Theory Lexicon entry was Concepts and Conceptions and the Legal Theory Calendar previewed this week's conferences, talks, and workshops. Monday Calendar
At Columbia's law and economics series, Henry Hansmann, New York University, School of Law, presents Legal Entities, Asset Partitioning, and The Evolution of Organizations, authored with Reinier Kraakman, and Richard Squire. At NYU, Deborah Schenck is presenting. At Florida State University, Eric Talley, University of Southern California Law Center, Experimental Study of Law. At Vanderbilt's Law & Business Seminar Series, David Denis is presenting. Noah on the Human Embryo Research Debate Lars Noah (University of Florida - Fredric G. Levin College of Law) has posted A Postmodernist Take on the Human Embryo Research Debate (Connecticut Law Review, Vol. 36, 2004) on SSRN. Here is the abstract:
Norman & Trachtman on Customary Internatonal Law George Norman and Joel P. Trachtman (Tufts University - Department of Economics and Tufts University - The Fletcher School) have posted The Customary International Law Supergame: Order and Law on SSRN. Here is the abstract:
This article develops a model of an n-player prisoner's dilemma in the customary international law context that shows that it is plausible that states would comply with customary international law under certain circumstances. These circumstances relate to: (i) the relative value of cooperation versus defection, (ii) the number of states effectively involved, (iii) the extent to which increasing the number of states involved increases the value of cooperation or the detriments of defection, including whether the particular issue has characteristics of a commons problem, a public good, or a network, (iv) the information available to the states involved regarding compliance and defection, (v) the relative patience of states in valuing the benefits of long-term cooperation compared to short-term defection, (vi) the expected duration of interaction, (vii) the frequency of interaction, and (viii) whether there are also bilateral relationships or other multilateral relationships between the involved states. One implication of this model is to lend credence to customary international law. From a research standpoint, this model identifies a number of parameters for which data may be developed in order to test the model. From a policy standpoint, this model shows what types of contexts, including malleable institutional features, may affect the ability of states to reach stable and efficient equilibria in their customary international law relations. Dubber on German Criminal Law Markus Dirk Dubber (University at Buffalo School of Law) has posted The Promise of German Criminal Law on SSRN. Here is the abstract:
Page & Lopatka on Antitrust Experts William H. Page and John E. Lopatka (University of Florida - Fredric G. Levin College of Law and University of South Carolina - School of Law) have posted Economic Authority and the Limits of Expertise in Antitrust Cases on SSRN. Here is the abstract:
In the past thirty years, the most important source of economic authority has been the Chicago School's models of the practices that most concern antitrust: cartels, tying, predatory pricing, resale price maintenance, and so forth. The Supreme Court has relied on these models not, for the most part, to adopt rules of per se legality, as some Chicagoans have suggested, but in less sweeping ways, such as limiting or abandoning rules of per se illegality, defining antitrust injury and standing, and determining the sufficiency of evidence. In some notable examples, of course, the Court has declined to follow Chicago models in favor of others. In all of these contexts, however, economic authority frames and defines the role of expert testimony. In the main part of the article, we examine how economic authority has defined the role of expertise in four critical contexts: predatory pricing; market definition and market power; the characterization and proof of price fixing; and the definition and proof of antitrust injury. In the final section we consider the legitimacy of the deference to economic authority over expertise in the formation of antitrust law, and suggest how our account of the role of economic authority affects the continuing confrontation between Chicago and Post-Chicago economics. Dougan on the EU Constitution Michael Dougan (University College London) has posted The Convention's Draft Constitutional Treaty: A 'Tidying-Up Exercise' that Needs Some Tidying-Up of its Own on SSRN. Here is the abstract:
Conference Announcement: High Tech IP Issues in a Global Marketplace
WIPO Comes to Silicon Valley High Tech IP Issues in a Global Marketplace May 17 and 18, 2004 Stanford Law School For the first time ever, the World Intellectual Property Organization The conference entitled "WIPO Comes to Silicon Valley - High Tech IP Issues in a Global Marketplace" will take place on May 17 and 18, 2004 on Stanford University campus. The program will address timely issues relating to intellectual property including the international patent and trademark systems that WIPO runs, WIPO's alternative dispute resolution services, and WIPO's work relating to patent law harmonization. Domain names, software, and biotechnology patents, protection of genetic resources, and the link between public health and intellectual property are among the session topics. The event will bring together major players from Silicon Valley's high technology industries and venture capital community, patent and trademark practitioners, academics, and members of the public. Registration will open in the first week of April. Please check our website at Roland Vogl, Esq. Executive Director and Lecturer in Law Program in Law, Science & Technology lst.stanford.edu rvogl@law.stanford.edu Sunday, March 21, 2004
Legal Theory Calendar
Today at Cardozo, there is a conference entitled Reconsidering the Federal Appointments Process. The participants include Michael Gerhardt, Judith Resnik, David Yalof, Dawn Johnsen, Kyron Huigens, Helaine Greenfeld, Erwin Chemerinsky, Catherine Fisk, Edward Hartnett, Michael Rappaport, David Rudenstine, Michael Herz, Stewart E. Sterk, Walter Dellinger, William P. Marshall, John O. McGinnis, Marci Hamilton, and Paul R. Verkuil. I will be on the program at 10:15 a.m. See you there! My paper is entitled Judicial Selection: Ideology versus Character (comments welcome!). At Columbia's law and economics series, Henry Hansmann, New York University, School of Law, presents Legal Entities, Asset Partitioning, and The Evolution of Organizations, authored with Reinier Kraakman, and Richard Squire. At NYU, Deborah Schenck is presenting. At Florida State University, Eric Talley, University of Southern California Law Center, Experimental Study of Law. At Vanderbilt's Law & Business Seminar Series, David Denis is presenting. Wednesday, March 24 At George Mason's Philosophy, Politics and Economics series, Josef Sima, Department of Economic Policy, Prague School of Economics, presents The Logic of Social Action: Austrian Law and Economics. At the University of Pennsylvania's philosophy series, Philip Kitcher, Columbia begins his series of Seybert Lectures. The first is Beyond Religion. At Loyola Marymount, Kathryn Boalt Hall School of Law, University of California at Berkeley, presents Fostering Agency through Social Programs: The Case of Welfare Reform. At NYU's legal history series, Felice Batlan, Graduate Student of History, NYU, presents The Purified Tenements: Municpal Citizenship, the Expanding Public, and the Myth of Laissez-Faire . At London's Heythrop Philosophy Society, Stephen Mulhall (New College, Oxford) presents Nietzsche's Genealogy of Humanity. Thursday, March 25 At Michigan's Olin Seires, Kristin Madison, Pennsylvania, presents The Residency Match: Competitive Restraints in an Imperfect World. At Yale's Legal Theory Workshop, the speaker is Michael Froomkin (Univeristy of Miami). Michael, what is your topic? Can we get a link to the paper? At George Mason, Bert van Roosebeke, University of Hamburg presents Non-contractual Liability for European Union Member States: A Private Law-Enforcement Mechanism? At the University of Pennsylvania's philosophy series, Philip Kitcher, Columbia continues his series of Seybert Lectures. The second is The Growth of Knowledge. At Boston University, Jack Beerman is on for today. At the University of Hertfordshire Centre for Normativity and Narrative, Matthew Radcliffe (Durham) presents Mirror Neurons, Phenomenology and the Perception of Agency Making Sense of Delusional Experience. Friday, March 26 At the University of Texas's law and philosophy program, there is a Conference on "Methodology in Legal Philosophy" with papers by Liam Murphy (Law & Philosophy, New York University), Nicos Stavropoulos (University Lecturer in Legal Theory, Oxford University), and Benjamin Zipursky (Law, Fordham University). Yale Law School is hosting Digital Cops in Virtual Environment--CyberCrime and Digital Law Enforcement Conference today through March 28, 2004. At SUNY Buffalo, Elisabeth Clemens, Chicago, presents Making a Market in Education? Arizona's Charter Schools as an Experiment in Institutional Change. At the University of Pennsylvania's philosophy series, Philip Kitcher, Columbia ends his series of Seybert Lectures. The third is The Evolution of Values. At Vanderbilt today, there is a Law and Business Conference entitled Executive Compensation. At Oxford's faculty of law, there is a program on Guantanamo Bay. At the University of Pittsburgh's series on Classics, Philosophy and Ancient Science, Tony Long (University of California at Berkeley) presents Eudaimonism, Rationality, and Divinity in Greek Ethics. At Tulane's philosophy series, Jon Riley, Tulane, presents Rousseau's Social Contract. Update: At Michigan State, starting today and continuing Saturday, a conference entitled Intellectual Property, Sustainable Development, and Endangered Species: Understanding the Dynamics of the Information Ecosystem. Legal Theory Lexicon: Concepts and Conceptions
Some ideas seem to be endlessly debated. We might all agree that "justice" is a good thing, but some of us think that justice boils down to counting the utility of each individual equally, while others think that justice is a matter of respecting basic human rights. Utilitarians might all agree that maximizing expected utility should be the aim of right action, but disagree about what "utility" is. Most torts theorists might agree that causation between an act of the defendant and harm to the plaintiff is an element most or all forms of tort liability, but disagree about what "causation" means. One of the niftiest tricks in legal theory is to handle cases like this with the concept/conception distinction. The "concept" of justice is the general idea, but different political theorists have different "conceptions" of justice. The concept of "utility" is shared by all utilitarians, but eudaimonistic utilitarianism maintains that the best conception of utility is happiness, while hedonistic utilitarianism holds that the best conception is pleasure. This post provides an introduction to the concept/conception distinction for law students (especially first-year law students) with an interest in legal theory. Essentially Contested Concepts So far as I know, the concept/conception distinction originates with "Essentially Contested Concepts," a paper written by the philosopher William Gallie in 1956. The core of Gallie's argument was the idea that certain moral concepts are "essentially contested." "Good," "right," and "just," for example, are each moral concepts which seem to have a common or shared meaning. That is, when I say, that the alleviation of unnecessary suffering is good, you understand what I mean. But it may be that you and I differ on the criteria for the application of the term "good." You may think that a state of affairs is good to the extent that it produces pleasure or the absence of pain, while I may think that the criteria for "good" make reference to the conception of a flourishing human life, lived in accord with the virtues. A quick aside. Sometimes, when there is this sort of disagreement, we want to say, "Ah, you and I are referring to different concepts." If by "cause," you mean "legal cause," whereas I use "cause" as a synonym for "cause in fact," then we are using the same word to refer to two different concepts. Back to "good." But in the case of "good," we seem to be using the same concept. I think that the good really is human flourishing and not pleasure; you have the opposite opinion. So we are contesting the meaning of the concept "good," and each of us has a different conception of that concept. Gallie thought that some concepts were essentially contested. That is, Gallie believed that some concepts were such that we would never reach agreement on the criteria for application of the concepts. If a concept is essentially contested, then it is in the nature of the concept that we disagree about the criteria for its application. Two Uses of the Concept/Conception Distinction Rawls on the Concept and Conceptions of Justice Perhaps the most famous use of the concept/conception distinction is found in the political philosopher John Rawls's famous book, A Theory of Justice. Rawls appeals to the distinction between the concept of justice and particular conceptions of justice. His theory, justice as fairness, is defended as the best conception of justice. Notice that as used by Rawls, the concept/conception distinction does not imply that the concept of justice is essentially contested. It might be the case that we would eventually come to agreement on the criteria for a just society. In other words, not all contested concepts are essentially contested concepts. Dworkin on Concepts and Conceptions in Legal Reasoning Another well-known use of the concept/conception distinction is found in Ronald Dworkin's theory, law as integrity. You may know that Dworkin uses a hypothetical judge, Hercules, to illustrate his theory. Suppose that Hercules is interpreting the United States Constitution. He finds that the Equal Protection Clause of the Constitution makes reference to the concept of equality. In order to decide some case, about affirmative action say, Hercules must decide what equality means. To do this, Hercules will determine what conception of equality best fits and justifies our legal practices--narrowly, the equal protection clause cases but more broadly, the whole of American constitutional law. For Dworkin, "equality" is not an "essentially contested concept," because Dworkin does not take the position that there cannot be stable criteria for the meaning of concepts like equality. Rather, "equality" is an interpretive concept--a concept that is subject to interpretation. Interpretive concepts like equality are, in fact, contested, and may, in fact, always be contested, but this is not an "essential" (necessary) characteristic of interpretive concepts. Conclusion The law is full of contested concepts, and one of the jobs of legal theorists is to determine which conceptions of these concepts are the most defensible. Indeed, because contested concepts come up all the time, the concept/conception distinction is extremely useful as a tool for clarifying the nature of disagreements about what the law is and what it should be. When you next run into an idea like "justice," "equality," "utility," or "causation," ask yourself whether different conceptions of that concept are at work. References Saturday, March 20, 2004
Help on RSS Feed My RSS feed appears to be nonfunctional. Can anyone advise me of a simple replacement that does not involve a switch away from blogspot/blogger? Legal Theory Bookworm Alexander M. Bickel was born in Romania, graduated summa cum laude from Harvard Law School, and served as a law clerk to Justice Felix Frankfurter. While clerking for Frankfurter, he worked on the historic memorandum that urged reargument of Brown v. Board of Education. At Yale, he became one of the most influential constitutional theorists of the twentieth century. Tragically, Bickel, who was born in 1924, died in 1974, cutting short a brilliant career. This week the Legal Theory Bookworm recommends Alexander Bickel's classic work of constitutional theory, The Least Dangerous Branch: The Supreme Court at the Bar of Politics. This book has been so influential that much of Bickel's vocabulary has become part of ordinary constitutional parlance, including the "counter-majoritarian difficulty." If you are interested in constitutional theory, this is a book you must read. Download of the Week This week, the Download of the Week is Respect-Worthy: Frank Michelman and the Legitimate Constitution by Jack Balkin. Here is the abstract:
The Constitution is not legitimate because it is a contract for legitimacy, because it contains a certain fixed substantive content, or because a certain group of people agreed to it long ago. It is legitimate to the extent that the members of the political community, each interpreting its meaning and its content in his or her own way, can reasonably assent to it and give it their respect. This account of legitimacy, nevertheless, is incomplete in three respects. First, because the constitutional/legal system will change, judgments of legitimacy must be grounded in faith about the future as well as in beliefs about the current content of the constitutional/legal system. Second, for the same reason, judgments of legitimacy require that members of the political community be able to see themselves as part of a political project that extends over time, working toward a goal that is worth striving for even if it is not yet completely achieved. Third, the legitimacy of the system requires that there be some method of feedback - whether formal or informal - through which members of the political community can challenge dominant understandings of the constitutional/legal system that they believe to be mistaken. In terms of the American constitutional system, with its practice of judicial review, there must be formal and informal methods through which dissenting constitutional interpreters can shape, influence, and affect official interpretations of the Constitution. Although some scholars have argued that the legitimacy of the American system depends on the judiciary having the final word on the meaning of the Constitution, in fact the opposite is the case: Constitutional legitimacy ultimately depends on disagreements about constitutional meanings, and a protestant approach to constitutional interpretation. SSRN Top Recent Downloads The Social Science Research Network compiles lists of top ten downloads by subject matter. Here are some of the categories of interest to legal theorists: Friday, March 19, 2004
Downing on Ebay & Commodification Over at That's News to Me, Brian Downing has a post entitled Restrictions on Alienability, Anti-Commodification, and eBay. Here is a taste:
It doesn't take Milton Friedman to see what's going to happen - the scouts use loopholes to circumvent the restriction. The most popular way, it seems, is to auction off cookie order forms. However, I'd advise the method often used with Southwest Airlines' rapid rewards tickets (which also have a restriction on alienability) - people sell "one free alcoholic beverage" tickets for about $180, with the "bonus" gift of a rapid rewards ticket. It seems the difference is whether something is purchased or given, but clearly the distinction is spurious in practice. This situation reminds me of the general principle in property law against restrictions on alienability. Miller on the FCC's Regulation of "Profane Speech" One of my favorite bloggers, Ernie Miller, has up a very important post on the FCC's new regulations of profane speech. Here's the teaser:
Conference Announcement: Reconsidering the Federal Appointments Process On Monday of next week (March 22, 2004), I will be speaking at Cardozo Law School in New York. The conference is titled Reconsidering the Federal Appointments Process and the participants include Michael Gerhardt, Judith Resnik, David Yalof, Dawn Johnsen, Kyron Huigens, Helaine Greenfeld, Erwin Chemerinsky, Catherine Fisk, Edward Hartnett, Michael Rappaport, David Rudenstine, Michael Herz, Stewart E. Sterk, Walter Dellinger, William P. Marshall, John O. McGinnis, Marci Hamilton, and Paul R. Verkuil. My paper is entitled Judicial Selection: Ideology versus Character (comments welcome!). My talk will be at 10:15 a.m.. Finally, directions are available here. Please introduce yourself as a reader of Legal Theory Blog if you attend! Friday Calendar
Larry Alexander--University of San Diego Richard Arneson--University of California at San Diego Mitchell Berman--University of Texas David Brink--University of California at San Diego John Fischer--University of California at Riverside Heidi Hurd--University of Illinois Douglas Husak--Rutgers Michael Moore--University of Illinois Stephen Morse--University of Pennsylvania Dana Nelkin--University of California at San Diego Sam Rickless--University of California at San Diego Connie Rosati--University of California at Davis, Visiting University of San Diego Maimon Schwarzschild--University of San Diego Kadri Vihvelin--University of Southern California Gideon Yaffe--University of Southern California Matt Zwolinski--University of San Diego At Vanderbilt today and tomorrow, a conference entitled Lawyers as Activists: Achieving Social Change through Civil Litigation. Speakers include Stephen Yeazell, Rand Rosenblatt, Burt Neuborne, Louis Pollack, Elizabeth Cabraser, Howard Erichson, William Rubenstein, Anthony Sebok, Richard Nagareda, Ralph Steinhardt, Beth Van Schaack, Allison Danner, John Dayton, and Michael Heise. At Washington University, St. Louis, the Sixth Annual St. Louis Philosophy of Social Science Roundtable with Keynote Speakers, David Copp and Alex Rosenberg. Lee on Jurisdiction Evan Tsen Lee (University of California, Hastings College of the Law - General) has posted The Dubious Concept of Jurisdiction (Hastings Law Journal, Vol. 54, pp. 1613-1640, August 2003) on SSRN. Here is the abstract:
Perhaps I misundertand Lee's argument. He may be saying that the criteria for determining whether a given issue is jurisdictional or not are highly conventional. Venue, for example, is similar to personal and subject matter jurisdiction in many ways, but it is not deemed "jurisdictional," with the consequence that venue can be waived (as opposed to subject matter jurisdiction) and is not subject to collateral attack (as opposed to personal jurisdiction). But the venue rules could have been jurisdictional. If Lee's claim is that there is no essence of "jurisdiction" that prevents us from reclassifying various threshold issues as jurisdictional or not, then I think I agree with a modest version of his claim. Perhaps, we would disagree insofar as I would think that the jurisdiction-making features are likely to be built into the secondary rules that authorize the tribunal to act. Lee's positive program, which would sort the jurisdictional from the nonjurisdictional on the basis of underlying policy concerns, such as the expectations of the parties, troubles me. Formal sorting rules, classifying some issues as jurisdictional, serve an important function--which is to settle such questions in advance, precisely because we don't want to unsettle the expectations of the parties as to whether a court's decision on a particular issue will be subject to collateral attack on the basis of lack of jurisdiction. Whether a given secondary-rule is jurisdiction depends mostly on the formal features of the rule itself and not on an ad hoc balancing of interests. Tussey on UCITA Deborah S. Tussey (Oklahoma City University - School of Law) has posted UCITA, Copyright, and Capture (Cardozo Arts & Entertainment Law Journal, Vol. 21, 2004) on SSRN. Here is the abstract:
Zuckerman on Studying Media Attention Ethan Zuckerman (Harvard University - Berkman Center for Internet & Society) has posted Global Attention Profiles - A Working Paper: First Steps Towards a Quantitative Approach to the Study of Media Attention on SSRN. Here is the abstract:
The genesis of this paper was the anecdotal observation that major English-language news media outlets devote more attention to some countries than to others. This is to be expected: in a given week, some countries will experience newsworthy events like wars, natural disasters, scientific discoveries, economic collapses, sports championships, while others will not. But it is equally clear, on an anecdotal basis, that some countries get far more attention on a consistent basis, without regard to the relative frequency or magnitude of newsworthy events. How do newspapers, newscasts and website divide their attention between regions of the world? To which countries do they devote the most attention? Why do some countries get more attention than others? Do factors like a country's population and the size of its economy predict which countries will command the most attention from media channels? This paper begins to answer some of these questions with repeatable, transparent statistical tools. It introduces the Global Attention Profile (GAP) as a portrait of a news media outlet's attention to various nations. GAP software automatically crawls a news media outlet's website and calculates country-by-country story counts over a period of time. This paper reports these story counts and correlates them to a wide range of country data sets provided by the World Bank. GAP research demonstrates that the most accurate predictor of a media outlet's attention is the size of a nation's gross domestic product. This correlation is significantly greater than the correlation between media attention and the size of a nation's population, and appears to be the strongest correlation between media attention and 21 factors examined. Generally speaking, violent conflict seems to have less effect on media attention than the size of a nation's economy does. While most media sources studied demonstrate similar patterns, one media outlet - the BBC News - shows radically different patterns. The BBC's media attention is more closely correlated to the size of a nation's population than to the size of its economy. Gasser on Information Quality Urs Gasser (Universit�t St. Gallen) has posted Information Quality and the Law, or, How to Catch a Difficult Horse on SSRN. Here is the abstract:
This essay seeks to provide, first, a brief overview over the genesis and content of the Federal Data Quality Act and the implementing OMB Guidelines. Second, against this background, the article examines this set of rules and regulations from the viewpoint of what - at least in the European context - is termed information law. It may be of interest to compare the U.S.'s attempt at a functional and open regulation of information quality by law with earlier contributions of European theorists to this area of law. Thursday, March 18, 2004
Event Today: Layers & Internet Policy at the New America Foundation My thanks to Frank Field of Furdlog for calling my attention to this event at the New America Foundation today:
U.S. policymakers face a virtual conundrum: how to best incorporate the new Internet Protocol (IP)-centric services, applications, and facilities into the nation's pre-existing legal and public policy construct. Over the next several years, legislators and regulators will find themselves increasingly challenged to make the Internet adapt itself to the already well-defined bricks-and-mortar, services-and-technologies environment that exists today under the Communications Act and other statues. In this paper and in his presentation, Richard Whitt will explain that trying to impose the current outmoded legal system onto the Internet and all its IP progeny is flawed, damaging, and ultimately doomed approach. Instead, policy makers should adopt a new public policy framework that regulates along horizontal network layers, rather than legacy vertical silos. Event Details Thursday 12:15pm-1:45pm March 18, 2004 Location New America Foundation 1630 Connecticut Ave, 7th Floor Washington , DC 20009 Format: Brownbag Lunch Event Registration: RSVP to Jennifer Buntman at 202-986-4901 or to buntman@newamerica.net Thursday Workshops
At Stanford's Olin series, Stephen Choi (School of Law, University of California, Berkeley) presents Do the Merits Matter Less in Securities Class Actions? At the University of Michigan's law and economics series, Randy Picker, Chicago, presents Entry, Access and Facilities-Based Competition. At UCLA's tax series, Joe Bankman, Stanford Law School, presents Who Should Bear Tax Compliance Costs? At ANU's RSSS, Susan Brison (Dartmouth College) presents Free Speech Fundamentalism. At Florida State, Eric Posner, University of Chicago Law School, presents A Theory of International Adjudication. At the University of Pennsylvania's fine law and philosophy series, Susan Haack (Prof of Law and Cooper Senior Scholar in Arts & Sciences, University of Miami) is speaking. At the London School of Economic's Centre for Philosophy of the Natural and Social Sciences, Jo Wolff (University College London) presents Are there Moral Limits to the Market? At George Mason, Ilya Somin, GMU School of Law, presents Democracy and Judicial Review. At Georgetown's Colloquium on Intellectual Property & Technology Law, Joel R. Reidenberg, Fordham University School of Law, presents The Regulation of Information Flows in a Networked Society. At Vanderbilt law, Professor Michael Heise, Cornell University Law School, presents Criminal Case Complexity: An Empirical Perspective. My thanks to Richard Nagareda for the paper title. Palfrey on ICANN & Global Internet Democracy John G. Palfrey Jr. (Harvard University - Berkman Center for Internet & Society) has posted The End of the Experiment: How ICANN's Foray into Global Internet Democracy Failed on SSRN. Here is the abstract:
Three lessons emerge from this study. First, ICANN's failure shines further light upon the need for an overhaul of its governance structure. Second, ICANN should clarify the way in which users can involve themselves in the decision-making process for managing the domain name system, arguably through the Supporting Organization process. Third, we should look beyond the ICANN model, which has never been the appropriate venue for experimentation in global decision-making, toward new ways to govern the technical architecture of the Internet in an increasingly networked, less clearly bordered world. Drahozal on Selection of Disputes for Litigation Christopher R. Drahozal (University of Kansas School of Law) has posted Ex Ante Selection of Disputes for Litigation on SSRN. Here is the abstract:
Lupu & Tuttle on Ecclesiastical Immunity Ira C. Lupu and Robert W. Tuttle (George Washington University Law School and George Washington University Law School) have posted Sexual Misconduct and Ecclesiastical Immunity (Brigham Young University Law Review, 2004) on SSRN. Here is the abstract:
Woven into the fabric of Part III are three major themes. First, those who perpetrate sexual harms against children, or against others who lack capacity to consent, have no claim of ecclesiastical immunity. Second, the religious status of persons, and the religious character of institutions should not give rise to fiduciary duties as a matter of law. The judicial creation of such duties violates the constitutional prohibition on discrimination against religion as compared with its secular counterparts. Third, adjudication of wrongful acts in the hiring and supervision of clergy must be conducted with sensitivity to constitutional concerns of both substance and process. Borrowing from the law concerning First Amendment limitations on the tort liability of the press, we argue that liability of supervising institutions should be limited to cases involving an "intentional failure to supervise," and that processes of adjudication should be tailored to maintain compliance with that standard. Cheng & Lo on Insider Trading & Voluntary Disclosure Qiang Cheng and Kin Lo (University of British Columbia - Sauder School of Business and MIT Sloan School of Management) have posted Insider Trading and Voluntary Disclosures on SSRN. Here is the abstract:
Katz on the Relative Costs of Incorporating Trade Usage into Domestic and International Contracts My law school classmate Avery Wiener Katz (Columbia Law School) has posted The Relative Costs of Incorporating Trade Usage into Domestic versus International Sales Contracts (Chicago Journal of International Law, Vol. 5, No. 1, Spring 2004) on SSRN. Here is the abstract:
Wednesday, March 17, 2004
Oman on Legal Education Nate Oman has a post entitled Why Law Schools Should Not Produce Lawyers responding to my post What Do Law Schools Teach? (which was a guest turn at the new blog, De Novo). The Economics of Domain Name Policy The Domain Name System is one of the key pieces of the infrastructure of the Internet. One of the most controversial aspects of domain name policy has been the question whether and how new top level domains (TLDs) should enter the root file. The root is certainly capable of supporting many, many more TLDs than currently exist, but ICANN's process for adding new TLDs has been almost glacially slow. In An Economic Analysis of Domain Name Policy, Karl Manheim and I have argued that many more TLDs should be added to the root and that the basic mechansim for root expansion should be an auction of new slots and strings (e.g. an auction in which one could bid for the right to operate a new TLD such as .mobile, .kids, or .sex). Our paper has just hit the stands (Hastings Communications and Entertainment Law Journal, Vol. 25, p. 317, 2004) and we have also made a downloadable version of the final article available--click here. In the course of writing the article, we interacted with many of the key players in the ICANN process. It became apparent that because the process is dominated by actors with a technical background, there was very little familiarity with the economics of resource allocation. For example, we spoke with lots of folks who insisted that TLDs were not a "scarce resource," becuase there are still lots of unused strings in the second level domain space. Perhaps even more disturbing was the fact that ICANN seemed to be embarked on a recapitulation of the early history of spectrum allocation--as if the Nobel prize-wiinning economist Ronald Coase had never written his famous article, "The Federal Communications Commission." And here is the abstract:
The Root Server System and associated name space are scarce resources in the economic sense. The root servers have a finite capacity and expansion of the system is costly. The name space is scarce, because each string (or set of characters) can only be allocated to one Registry (or operator of a Top Level Domain). In addition, name service is not a public good in the economic sense, because it is possible to exclude strings from the DNS and because the allocation of a string to one firm results in the inability of other firms to use that name string. From the economic perspective, therefore, the question arises: what is the most efficient method for allocating the root resource? There are only five basic options available for allocation of the root. (1) a static root, equivalent to a decision to waste the currently unallocated capacity; (2) public interest hearings (or beauty contests); (3) lotteries; (4) a queuing mechanism; or (5) an auction. The fundamental economic question about the Domain Name System is which of these provides the most efficient mechanism for allocating the root resource? This resource allocation problem is analogous to problems raised in the telecommunications sector, where the Federal Communications Commission has a long history of attempting to allocate broadcast spectrum and the telephone number space. This experience reveals that a case-by-case allocation on the basis of ad hoc judgments about the public interest is doomed to failure, and that auctions (as opposed to lotteries or queues) provide the best mechanism for insuring that such public-trust resources find their highest and best use. Based on the telecommunications experience, the best method for ICANN to allocate new Top Level Domains would be to conduct an auction. Many auction designs are possible. One proposal is to auction a fixed number of new Top Level Domain slots each year. This proposal would both expand the root resource at a reasonable pace and insure that the slots went to their highest and best use. Public interest Top Level Domains could be allocated by another mechanism such as a lottery and their costs to ICANN could be subsidized by the proceeds of the auction. Wednesday Workshops
Seyla Benhabib's Tanner Lectures continue today at U.C. Berkeley. At Villanova, law and philosophy star Claire Finkelstein, University of Pennsylvania School of Law, presents Legal Theory and the Rational Actor. At ANU's RSSS, John Tasioulas (University of Oxford) presents International Distributive Justice and the Duty of Assistance. In Murcia, Spain, the 14th Inter-University Workshop on Philosophy and Cognitive Science continues. Today, John McDowell delivers Dummett on meaning and truth-conditions. At ANU's faculty of law, James Stellios presents Trial by Jury and Section 80 of the Constitution. Ballkin on Michelman Jack M. Balkin (Yale University - Law School) has posted Respect-Worthy: Frank Michelman and the Legitimate Constitution (Tulsa Law Journal, Forthcoming) on SSRN. Here is the abstract:
The Constitution is not legitimate because it is a contract for legitimacy, because it contains a certain fixed substantive content, or because a certain group of people agreed to it long ago. It is legitimate to the extent that the members of the political community, each interpreting its meaning and its content in his or her own way, can reasonably assent to it and give it their respect. This account of legitimacy, nevertheless, is incomplete in three respects. First, because the constitutional/legal system will change, judgments of legitimacy must be grounded in faith about the future as well as in beliefs about the current content of the constitutional/legal system. Second, for the same reason, judgments of legitimacy require that members of the political community be able to see themselves as part of a political project that extends over time, working toward a goal that is worth striving for even if it is not yet completely achieved. Third, the legitimacy of the system requires that there be some method of feedback - whether formal or informal - through which members of the political community can challenge dominant understandings of the constitutional/legal system that they believe to be mistaken. In terms of the American constitutional system, with its practice of judicial review, there must be formal and informal methods through which dissenting constitutional interpreters can shape, influence, and affect official interpretations of the Constitution. Although some scholars have argued that the legitimacy of the American system depends on the judiciary having the final word on the meaning of the Constitution, in fact the opposite is the case: Constitutional legitimacy ultimately depends on disagreements about constitutional meanings, and a protestant approach to constitutional interpretation. Shiffrin on the Foundations of the Religion Clauses Steven Shiffrin (Cornell University - School of Law) has posted The Pluralistic Foundations of the Religion Clauses on SSRN. Here is the abstract:
Professor Shiffrin recognizes that the equality value is important, but shows that many deviations from religious equality are deeply embedded in the framework of government operations. It will not work to maintain that our Constitution regards religion and non-religion as equal. Indeed, the religion clauses are best interpreted to protect religion not just because of values like autonomy, equality, community, and religious peace, but because religion is regarded as important. This, he suggests, is a regrettable interpretation. It obviously is a bitter pill for religious skeptics to swallow, and it should even be a source of regret for most religious believers. Nonetheless, it is the best reading of our evolving Constitution. The foundational view that religion is important, however, does not flirt with theocracy. Far from it. The Constitution forbids coercion and, with exceptions, the favoring of one religion over another. Even more important, with some exceptions, the Constitution is best interpreted to curb government intervention to favor religion, not because religion is a constitutional stepchild, but because the seductions of governmental dependence are great and because government is not to be trusted. In applying his analysis, Professor Shiffrin explores many examples including (1) the ingestion of peyote; (2) animal sacrifice; (3) the government's use of religious symbols; (4) government's involvement with monotheistic prayer, including the Pledge of Allegiance; (5) the teaching of evolution in the public schools; (6) government protection of conscientious objectors and those who refuse to work on the Sabbath; and (7) voucher programs together with government support for religion within the public schools. Given the pluralistic character of the values underlying the religion clauses and the variety of contexts in which questions about the legal status of religion arise, he concludes, that equality can best be seen as one important value in a rich and evolving tradition. This tradition, he argues, is misunderstood by both the secular left and the religious right. The secular left does not understand the importance of religion in our constitutional tradition, and the religious right does not understand that government harms religion when it tries to help. Neither the secular left, nor the religious right understands the complex dimensions of religious equality. Lubben on Sovereign Debt Restructuring Stephen Lubben (Seton Hall University - School of Law) has posted Out of the Past: Railroads & Sovereign Debt Restructuring (Georgetown Journal of International Law) on SSRN. Here is the abstract:
Several leading scholars have begun to ask if railroad receiverships might hold important insights into the issue of sovereign debt restructuring, or at least inform the analysis. This paper takes a closer look at the analogy between railroads and countries to see if it holds beyond its superficial appeal. In particular, I examine how railroad receiverships addressed the problems of holdouts and individual creditor action, the key stumbling blocks for most of today's approaches to sovereign debt restructuring. I conclude that receiverships overcame these problems in ways that could be useful with respect to today's sovereign borrowers, although the utility of receiverships should not be overstated. Plainly there are historical lessons awaiting application, but I argue that only selective and considered reference to the early days of corporate bankruptcy will translate into meaningful improvement of sovereign debt restructuring. Harel & Stein on Class Counsel Selection & Monitoring Alon Harel and Alex Stein (Hebrew University of Jerusalem - Felt Center for Legal Studies and Hebrew University of Jerusalem) have posted Auctioning for Loyalty: Selection and Monitoring of Class Counsel (Yale Law & Policy Review, Vol. 22, No. 69, 2004) on SSRN. Here is the abstract:
Dubber on Constitutional Criminal Law Markus Dirk Dubber (University at Buffalo School of Law) has posted Toward a Constitutional Law of Crime and Punishment (Hastings Law Journal, Vol. 55, 2004) on SSRN. Here is the abstract:
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