Legal Theory Blog
All the theory that fits!
This is Lawrence Solum's legal theory weblog. Legal Theory Blog comments and reports on recent scholarship in jurisprudence, law and philosophy, law and economic theory, and theoretical work in substantive areas, such as constitutional law, cyberlaw, procedure, criminal law, intellectual property, torts, contracts, etc.
Monday, June 30, 2003
An Egalitarian Theory of Judicial Review Ronald C. Den Otter's article DEMOCRACY, NOT DEFERENCE: AN EGALITARIAN THEORY OF JUDICIAL REVIEW just became available on Westlaw and at 91 Ky. L.J. 615. Here is a taste:
New Papers on the Net Here is today's roundup:
Buck on Lawrence Surf here for Stuart Buck's commentary on The Buck Stops Here.
Seltzer on New Top Level Domains I seem to be in cyberlaw mode today! Surf over to wendy.seltzer.org for more on the decisions made in Montreal by ICANN on new top level domains.
Trespass to Chattels & the Internet: RIP? The use of the tresspass to chattels tort as a device to enforce rights on the Internet has been hugely controversial. The California Supreme Court has reversed the California Court of Appeals decision in Intel Corp. v. Hamedi (see also the trial court decision). Here is a link to the California Supreme Court decision. And here is a taste:
Blogging from Montreal: Roundup Last week, I posted several times from the ICANN meetings in Montreal. Here is a guide to the posts:
Part 2 (Sunday, June 22, 2003): The GAC Open Meeting.
Part 3 (Monday, June 23): The Non Commerical Users Constituency Meeting.
Part 4 (Tuesday, June 24): The GNSO Council.
Part 5 (Tuesday, June 24): The Request for Proposals for new sTLDs.
Part 6 (Wednesday, June 25): Who Owns the Root? The ccTLDs and ICANN.
Part 7 (Wednesday, June 25): More on gTLD expansion.
Barnett on Lawrence and the Thomas Dissent Surf over to the Conspiracy here and go to NPR for Real Audio here for Randy Barnett's analysis of Justice Thomas's dissent in Lawrence.
Saturday, June 28, 2003
Copyright and "the Progress of Science" Stripped of the references to patent, the copyright clause of the constitution would read: "Congress shall have Power To promote the Progress of . . Science . . . by securing for limited Times to . . . Authors. . .the exclusive Right to their respective . . . Writings." Via David Post of the Conspiracy, I learned that there is a campaign to strip science out of the protection of the copyright laws. Here is an exerpt from the description of the Public Library of Science Campagin:
Harry Potter and the International Order of Copyright Tim Wu has a nice piece on Slate on character appropriation. Here is a taste:
Bloggers as Citizens Check out this post on Philosophy.Com.
Friday, June 27, 2003
New Papers on the Net Here is today's roundup:
The case includes a teacher's manual followed by a background memo and term sheet intended for distribution to the students.
This review finds much to admire in the Ackerman-Ayres reform proposal. But it criticizes some minor administrative details of the reforms and raises two broader concerns: that the injection of up to $5 billion in public money into each campaign cycle might lead not to more deliberative democracy but to even more mind-numbing, trivial campaigns and that the amount of private money in federal campaigns may not be, after all, so large as to excite concern.
The net benefits of accepting this objective will depend on how the legal system can actually support problem-solving. This article discusses seven possible areas of implementation. A legal system attuned to problem-solving will be more open towards different types of interests and will stimulate the parties to find creative value-maximizing solutions. The perspective of problem-solving underlines the need to improve access to court, and more in general to reduce bargaining ranges by enhancing the way the legal system provides 'batnas'. If this is done, distribution of value will become easier and the effects of bargaining power can be diminished. Stressing the use of objective criteria, the perspective contains an invitation to redesign the rules of substantive private law so that they give better help to the negotiating parties when they deal with distributive issues. Useful objective criteria for distributive issues may be continuous instead of binary. Multiple objective criteria can exist next to each other. They do not have to be binding, but can be adjustable to individual differences in valuation of interests, different ways of creating value, and dissimilar external circumstances. The perspective of problem-solving also invites us to rethink the processes of contracting and dispute resolution, the role of blaming, and the principle of autonomy. Although many of the proposals suggested by this perspective are not new, it may help to develop a more coherent vision on reform of the civil justice system.
Lynn Lopucki and Joseph Doherty (UCLA) upload The Determinants of Professional Fees in Large Bankruptcy Reorganization Cases, forthcoming in the Journal of Empirical Legal Studies.
Sonia Oreffice (University of Chicago, Economics) posts Abortion and Female Power in the Household Evidence from Labor Supply
Thomas Ulen (Illinois) post A Nobel Prize in Legal Science: Theory, Empirical Work, and the Scientific Method in the Study of Law, forthcoming in the University of Illinois Law Review.
Richard McAdams and Thomas Ulen (Illinois) post Introduction to the Symposium on Empirical and Experimental Methods in Law, forthcoming in the University of Illinois Law Review.
Frist Memo on the Process for Confirming Supreme Court Nominees Courtesy of Howard Bashman:
Volokh on Thomas Surf to Eugene Volokh's column on MSNBC (GlennReynolds.com) for a terrific column on Justice Thomas & the affirmative action cases. Here is a taste:
The most basic objection to this view, I think, is that if a judge thinks that a policy is unconstitutional, he has an obligation to so vote, whatever his personal history might be. “Gratitude” isn’t a proper basis for constitutional decisionmaking.
Thursday, June 26, 2003
Lawrence v. Texas Decided--Updated at 3:01 PM EDST
Introduction The Supreme Court has decided Lawrence v. Texas, 6-3 to strike down the Texas statute. Justice Kennedy wrote the majority opinion, stating the law "demeans the lives of homosexual persons." This post, which will be updated periodically, provides basic information on the opinion, reactions, and most especially relevant legal theory resources. From the AP Report on the New York Times:
--The major disagreement between Kennedy and Scalia was about the doctrine of stare decisis. Kennedy needed to argue that reversal of Bowers was consistent with the discussion of the role of precedent in Casey Scalia charges the majority with inconsistency, and devotes a substantial portion of his dissent to Roe v. Wade, clearly weakening the dissent as an intellectual matter.
--Scalia argues that the majority employed "rational basis scrutiny," but having read and reread Kennedy's opinion, I think this is just plain wrong. Althouigh there is ambiguity, it looks like a fundamental rights decision to me. (Update: Unlearned hand reacts to this here.)
--The majority relied extensively on historical evidence that homosexuals were not singled out for special treatment by early anti-sodomy laws and on evidence that such laws were rarely enforced (or enforceable under the then-prevailing rules of evidence and criminal procedure.
--Concurring Opinion (O'Connor)
--Dissenting Opinion (Scalia, joined by Rehnquist and Thomas)
--Dissenting Opinion (Thomas)
In Griswold the Court invalidated a state law prohibit- ing the use of drugs or devices of contraception and coun- seling or aiding and abetting the use of contraceptives. The Court described the protected interest as a right to privacy and placed emphasis on the marriage relation and the protected space of the marital bedroom. Id., at 485. After Griswold it was established that the right to make certain decisions regarding sexual conduct extends beyond the marital relationship. * * * The Court began its substantive discussion in Bowers as follows: The issue presented is whether the Federal Con- stitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time. Id., at 190. That statement, we now conclude, discloses the Court's own failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse. The laws involved in Bowers and here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being pun- ished as criminals.
This, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the rela- tionship or to set its boundaries absent injury to a person or abuse of an institution the law protects. It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in inti- mate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosex- ual persons the right to make this choice.
Having misapprehended the claim of liberty there pre- sented to it, and thus stating the claim to be whether there is a fundamental right to engage in consensual sodomy, the Bowers Court said: "Proscriptions against that conduct have ancient roots. In academic writings, and in many of the scholarly amicus briefs filed to assist the Court in this case, there are fundamental criticisms of the historical premises relied upon by the majority and concurring opinions in Bowers. Brief for Cato Institute as Amicus Curiae; Brief for American Civil Liberties Union et al. as Amici Curiae; Brief for Professors of History et al. as Amici Curiae. We need not enter this debate in the attempt to reach a defini- tive historical judgment, but the following considerations counsel against adopting the definitive conclusions upon which Bowers placed such reliance.
At the outset it should be noted that there is no long- standing history in this country of laws directed at homo- sexual conduct as a distinct matter. Beginning in colonial times there were prohibitions of sodomy derived from the English criminal laws passed in the first instance by the Reformation Parliament of 1533. The English prohibition was understood to include relations between men and women as well as relations between men and men. See, e.g., King v. Wiseman, 92 Eng. Rep. 774, 775 (K. B. 1718) (interpreting "mankind" in Act of 1533 as including women and girls). Nineteenth-century commentators similarly read American sodomy, buggery, and crime- against-nature statutes as criminalizing certain relations between men and women and between men and men. * * * Laws prohibiting sodomy do not seem to have been enforced against consenting adults acting in private. A substantial number of sodomy prosecutions and convic- tions for which there are surviving records were for preda- tory acts against those who could not or did not consent, as in the case of a minor or the victim of an assault. * * * It was not until the 1970s that any State singled out same-sex relations for criminal prosecution, and only nine States have done so. * * * Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding prece- dent. Bowers v. Hardwick should be and now is overruled.
James Gerstenzang & Nick Anderson's Los Angeles Times Story.
Charles Lane's Washington Post Story.
Gays Joyful, Relieved Over Court Ruling (AP in Washington Post)
Houston Chronicle report
US court to rule on gay case (BBC)
Sodomy ruling expected today (Daily Texan)
Supreme Court expected to issue ruling on sodomy laws (CNN)
--The Raving Atheist.
Human Rights Campaign
EQUAL RIGHTS, NOT GAY RIGHTS by Nigel Ashford
Robin West, "Universalism, Liberal Theory, and the Problem of Gay Marriage
Toni M. Massaro, Thick and Thin Arguments for Gay Constitutional Rights
Glenn H. Reynolds & David B. Kopel, THE EVOLVING POLICE POWER: SOME OBSERVATIONS FOR A NEW CENTURY
The Gays Rights Controversy
A Law Professor's Guide to Natural Law and Natural Rights
Stephen Macedo, "Homosexuality and the Conservative Mind," and "Reply to Critics" (Robert George and Gerard Bradley, and Hadley Arkes), Georgetown Law Journal, v. 84 (December 1995).
Lazarus on Equal Protection Edward Lazarus has a Findlaw column entitled The Supreme Court And Equal Protection: Why This Term's Momentous Affirmative Action and Same-Sex Sodomy Cases Have Put the Doctrine To the Test. Read it!
Dorf & Adler Michael Dorf (Columbia) and Matthew Adler (Pennsylvania) have posted Constitutional Existence Conditions and Judicial Review. Here is the abstract:
Korsgaard and Parfit Christine Korsgaard (Harvard, Philosophy) has posted a paper entitled Normativity, Necessity, and the Synthetic a priori: A Response to Derek Parfit. From the abstract:
New Papers on the Net Here is the roundup:
Hugh LaFollette posts World Hunger.
Simon Keller posts Welfare and the Achievement of Goals
Fred Gramlich (U.S. Department of Justice, Antitrust Division) posts Coupon Remedies in Antitrust Cases: The Form of the Discount also Matters
Wednesday, June 25, 2003
Eve Tushnet on Stare Decisis Check out her post here. Tushnet has a really excellent post replying to my three part series on stare decisis (Part I, Part II, Part III). I will post a reply in a day or two.
Blogging from Montreal: Part 7
--International Air Transport Association (.travel).
--International Confederation of Free Trade Unions (.union).
--Universal Postal Union (.post).
Just What Is A Sponsored TLD Anyway? Heck if I know, but here is what the draft RFP says:
Evaluating the Proposed "Montreal" Round What should we make of this very limited plan for expansion of the root? Certainly an argument can be made that this is a part of an absurdly slow process of root expansion. But how could expansion move more quickly at this stage of the game? Here are some possibilities:
--A steady-state market-driven expansion, e.g. a commitment to the auctioning of a few dozen new TLDs per year.
--An open-ended beauty contest, e.g. a repetition of the process followed in the year 2000.
Next Steps So what is ICANN to do? Given Stuart Lynn's legacy (the commitment to creating a small number of new sponsored Top Level Domains through a beauty-contest mechanism, it is not clear that ICANN has many feasible options. If the Lynn proposal were expanded, there would be a real danger of lock-in to a beauty contest mechanism as a template for future root expansion. Perhaps ICANN could simply abandon the Lynn proposal, but that would mean no expansion of the root. What is really needed is a fundamental rethinking of root allocation policy. And ICANN needs help in that enterprise. At a minimum, ICANN nees input from economists and policy scientists familiar with similar resource allocation problems--such as those faced by the Federal Communications Commisssion.
The Long Run And in the long run, the root resource should be put to its highest and best use. The best way to accomplish that goal is by conducting regular auctions of a significant number of slots, as Karl Manheim and I have proposed in An Economic Analysis of Domain Name Policy.
Guide to Blogging from Montreal Posts.
Yin on the Affirmative Action Cases Surf here for a good post by lawprof Tung Yin.
Blogging from Montreal: Part 6 There is a very nice post from nhklein on ICANN Watch, touching both on whois and on the difficulties with establishing the ccNSO (the supporting organization for ICANN that consists of the various entities that operate ccTLDs. This is surely one of ICANN's most difficult problems, and in my opinion it stems from a fundamental ambiguity in the nature of ICANN. Here is quote from the post:
Guide to Blogging from Montreal Posts.
Game Theory and the Dormant Commerce Clause Maxwell L. Stearns (George Mason) has posted A Beautiful Mend: A Game Theoretical Analysis of the Dormant Commerce Clause on SSRN. Here is the abstract:
New Papers on the Net Here is today's roundup:
Bela Plechanovova (Charles University, Prague) posts The Treaty of Nice and the Distribution of Votes in the Council – Voting Power Consequences for the EU after the Oncoming Enlargement, on SSRN and European Integration online Papers (EIoP).
Paul Tremblay (Boston College) posts Moral Activism Manque, forthcoming in the South Texas Law Review.
Jeanne Schroeder (Cardozo) uploads Envy, Jealousy and Insider Trading: The Case of Martha Stewart.
Thomas Berg (University of St. Thomas) posts Vouchers and Religious Schools: The New Constitutional Questions, forthcoming in the University of Cincinnati Law Review.
Tuesday, June 24, 2003
Equitas non pro fastidiosi est. You really truly must surf here.
Garamendi Sasha Volokh has a great post on American Insurance Associationn v. Garamendi--the foreign policy preemption case from yesterday.
Blogging from Montreal: Part 5
• The proposal will move ICANN in the direction of the worst of all resource allocation models, the beauty-contest approach. ICANN should learn from its own painful experience in November 2000 and from the 75 years of failure at the FCC under the beauty contest model. Of all the decisions that ICANN could make now, moving towards the beauty-contest model is the worst-possible decision.
• The criteria in the proposal will have the unintended consequence of favoring well-finance globalized non-profit membership organizations at the expense of regional, relatively poorer institutions that serve the needs of communities in third world.
• The criteria in the proposal will focus the decision-making process on the characteristics of the applicant (responsiveness to community, etc.) rather than the usefulness of the new sTLD. The experience of the FCC teaches that is an inherent problem in the beauty-contest model.
• The best options for solution of ICANN’s short-run problem are entirely mechanical or objective allocation systems. One such proposal is to grandfather in all the qualified applications from the November 2000 round. Other possibilities are to grandfather all qualified applications from non-profit institutions.
• ICANN should establish a task force to design a rational policy that will put the root to its highest and best use and avoid the substantial institutional problems produced by the beauty-contest model.
The Bad News But there is bad news as well. The RFP is part of an elaborate "beauty contest" approach. An elaborate application must be submitted and evaluated by independent evaluators. The criteria include the following:
A Comprehensive Study of Root Resource Policy In the short run the RFP is not terribly important. A few sTLDs will be created. Although there is a lot of window dressing, this is really a grandfathering process. In the long run, some very important issues need to be addressed, and a comprehensive study of root resource policy is exactly what is needed. For some thought by Karl Manheim and me on these issues, see An Economic Analysis of Domain Name Policy.
Guide to Blogging from Montreal Posts.
Blogging from Montreal: Part 4 It is Tuesday afternoon in Montreal and the GNSO council is discussing the report on expansion of the name space. On the one hand, this report represents a step forward. So far, ICANN's basic policy toward the root has been to waste the resource. Although the root could comfortably support a thousand to ten-thousand additional top level domains (TLDs), expansion of the root has been proceeding at a snails pace. Here is the recommendation in the GNSO report:
Nonetheless, the GNSO Council approved the report unanimously.
Guide to Blogging from Montreal Posts.
Marston on the affirmative action cases Check out his post entitled "Curmudgeonly Thoughts on Grutter v. Bolllinger." Here is an excerpt:
Update: Also, check out this post by John Eden on the Legal Theory Annex.
The Layers Principle and NAT In a post entitled Oh no, Not Nat!, Eric Rescorla (Educated Guesswork) discusses an important question about the relationship between NAT (Network Address Translation) and the the layered nature of Internet Architecture. Rescorla is reacting to a post by Ed Felten, commenting on The Layers Principle: Internet Architecture and the Law by Minn Chung and me.
The battle for the Constitution? Cal Thomas has an op/ed with the above title. Here is an excerpt:
Senate Rules Committee Votes to Limit Filibusters of Judicial Nominees See this AP Report. Here is a snippet:
Balkin on Affirmative Action and Judicial Selection Reacting to a story in the New York Times, Jack Balkin has a thoughtful post on the possible effects of the affirmative action decisions on appointments to the Supreme Court. Here is a taste:
Updated Post on the Affirmative Action Cases Yesterday, I put up a long post on the affirmative actions cases, which has been updated several times. It includes a variety of resources on the cases, emphasizing the theoretical and normative questions. Scroll down or click here.
25 Years Howard Bashman has an excellent post that starts with an email from a student at Harvard:
For my views on the role of stare decisis, see The Case for Strong Stare Decision, or Why Should Neoformalists Care About Precedent?, in three parts:
Klarman: Is the Supreme Court Irrelevant? Michael Klarman (Virginia) posts Is the Supreme Court Sometimes Irrelevant?: Race and the Southern Criminal Justice System in the World War II Era. Here is the abstract: