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

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Sunday, October 31, 2004
 
Legal Theory Calendar--Updated
    Monday, November 1 Tuesday, November 2
      Oxford Jurisprudence Discussion Group: Amir Fuchs, Welfare between Equality and Responsibility.
      University of Chicago Law & Economics: Alex Stein, Professor of Law, Benjamin N. Cardozo School of Law, Yeshiva University, Overenforcement.
      Oxford Intellectual Property Research Centre: Andreas Panagopoulos, INTELLECTUAL PROPERTY IN THE NEW MILLENNIUM: The Effects of Firm Size in Reaching an Out-of-court Settlement.
    Wednesday, November 3
      Northwestern, Law & Economics: Chris Sanchirico, University of Pennsylvania, "Evidence, Procedure, and the Upside of Cognitive Error". NYU Legal History: Walter Walsh, University of Washington School of Law.
      Oxford Centre for Criminology: Pat O’Malley, The Uncertain Promise of Risk.
    Thursday, November 4
      UCLA Legal Theory: Benjamin C. Zipursky, Fordham, BMW v. Gore and the Double Aspect Problem in the Theory of Punitive Damages.
      Boston University, School of Law: Ward Farnsworth, "Signatures of Ideology: The Case of the Supreme Court's Criminal Docket".
      Florida State University, School of Law: Kathyrn Zeiler, Georgetown University Law Center, "Common Law Disclosure Duties and the Sin of Omission: Testing the Meta-theories."
      Loyola Marymount, Loyola Law School: Sharon Dolovich, Professor of Law, UCLA Law School, “Punishment and Profit: The Case Against Private Prisons”.
      Oxford Public International Law Discussion Group: Salem Chalabi, Prosecuting Saddam Hussein: The Iraqi Special Tribunal for War Crimes.
      University of Michigan Law & Economics: Daryl Levinson, New York, Empire-Building Government in Constitutional Law.
    Friday, November 5


 
Legal Theory Lexicon: Public Reason
    Introduction How should citizens in a modern pluralist democracy debate and discuss public affairs? What kinds of reasons are appropriate in the context of judicial opinions, legislative debate, or administrative decisionmaking? There is wide agreement that the government should not censor public debate about politics, at least not without very good reason. But when it comes to a related question of political morality - "To what ideal should citizens aspire in political debate?" - the issue is cloudy. For example, some have argued that religious reason should be excluded from public debate; others argue for the exclusion of statements which degrade people on the basis of their religion, race or ethnicity. Still others contend that in public debate, an ideal of political morality should mirror the freedom of expression: all viewpoints should contend in a marketplace of ideas. An ideal of public reason can provide guidance on these issues. This post provides a very short introduction to the idea of public reason--with a special emphasis on the role of that idea in the work of John Rawls.
    Historical Perspective Where does the idea of public reason come from? Contemporary scholarship sometimes assumes that the notion of public reason was invented out of whole cloth by Rawls, but in fact, it has a long philosophical history. For example, the phrase "public reason" is found in Thomas Hobbes' Leviathan. The section of Leviathan in which this passage appears addresses the question, whose reason should govern the question of whether a purported miracle has occurred?
      For in these times, I do not know one man, that ever saw any such wondrous work, done by the charm, or at the word, or prayer of a man, that a man endued but with a mediocrity of reason, would think supernaturall: and the question is no more, whether what we see done, be a Miracle; whether the Miracle we hear, or read of, were a reall work, and not the act of a tongue, or pen; but in plain terms, whether the report be true, or a lye. In which question we are not every one, to make our own private Reason, or Conscience, but the Publique Reason , that is, the reason of God's Supreme Lieutenant, Judge; and indeed we have made him Judge already, if wee have given him a Soveraign power, to doe all that is necessary for our peace and defence. A private man has alwaies the liberty, (because thought is free,) to beleeve, or not beleeve in his heart, those acts that have been given out for miracles, according as he shall see, what benefit can accrew by mens belief, to those that pretend, or countenance them, and thereby conjecture whether they be Miracles, or Lies. But when it comes to confession of that faith, the Private Reason must submit to the Publique ; that is to say, to God's Lieutenant.
    In this passage, Hobbes uses the phrase "public reason" to refer to the reason or judgment of the sovereign.
    A second use of the phrase "public reason" is found in Rousseau's Discourse on Political Economy:
      In effect, though nature's voice is the best advice a good father could listen to in the fulfillment of his duty, for the magistrate it is merely a false guide which works constantly to divert him from his duties and which sooner or later leads to his downfall or to that of the state, unless he is restrained by the most sublime virtue. The only precaution necessary to the father of a family is that he protect himself from depravity and prevent his natural inclinations from becoming corrupt, whereas it is these very inclinations that corrupt the magistrate. To act properly, the former need only consult his heart; the latter becomes a traitor as soon as he listens to his. Even his own reason ought to be suspect to him, and the only rule he should follow is the public reason , which is the law. Thus nature has made a multitude of good fathers of families, but it is doubtful that, since the beginning of the world, human wisdom has ever produced ten men capable of governing their peers.
    Rousseau's use of the phrase "public reason" is quite different than Hobbes'. Public reason is contrasted to the reason of private individuals. The latter sort of reason is self-interested; the former sort is concerned with the common good. This suggests a connection between Rousseau's idea of public reason and his notion of the general will. The general will (like public reason) is concerned with the good of all; whereas, the individual will (like private reason) is concerned with the good of the individual.
    Another early use of the phrase "public reason" is found in Thomas Jefferson's Second Inaugural Address:
      [I]t is proper that you should understand what I deem the essential principles of our government, and consequently those which ought to shape its administration . . . . [They include] the diffusion of information and the arraignment of all abuses at the bar of public reasons
    Jefferson's notion of public reason seems connected to an ideal of democratic government. Information should be widely diffused so that government actions may be judged at the bar of public reason - which in this case seems to be the collective reason of the citizens of a democratic society. In this view, the quality or efficacy of public reason is connected to the freedom of speech and press.
    In What is Enlightenment, Kant introduces the idea of public reason as an answer to a question that might be phrased, "What restrictions on freedom of public discourse will facilitate public enlightenment?" Kant replies:
      The public use of man's reason must always be free, and it alone can bring about enlightenment among men; the private use of reason may quite often be very narrowly restricted, however, without undue hinderance to the progress of enlightenment. But by the public use of one's own reason I mean that use anyone may make of it as a man of learning addressing the entire reading public . What I term the private use of reason is that which a person may make of it in a particular civil post or office with which he is entrusted.
    As Kant uses the phrase, "public reason" is defined in terms of the audience to which reasons are given. Public reason is addressed to the entire public. Public reason should be free if the public is to become enlightened - that is, if citizens are to rely on their own reason without the guidance of another. Notice Kant's use of the phrase is, in a sense, diametrically opposed to Hobbes'. For Hobbes, public reason is reason bound by the judgment of the sovereign; for Kant, public reason is precisely that reason which is free from such constraint.
    Here is the point of the history: the idea of public reason is contested, with different theorists offering different conceptions public reason. I am about to give you Rawls's ideas about public reason, but it is very important to realize that Rawls's theory is just one of many, and that new theories of public reason are likely to emerge in the years ahead.
    Rawls and Public Reason In an early formulation, Rawls explained what he has called the "idea of free public reason":
      [G]reat values fall under the idea of free public reason, and are expressed in the guidelines for public inquiry and in the steps taken to secure that such inquiry is free and public, as well as informed and reasonable. These values include not only the appropriate use of the fundamental concepts of judgment, inference, and evidence, but also the virtues of reasonableness and fair-mindedness as shown in the adherence to the criteria and procedures of common sense knowledge, and to the methods and conclusion of science when not controversial, as well as respect for the precepts governing reasonable political discussion.
    Although this discussion contains the core of the Rawls' position, a few additional points deserve separate discussion:
      First, Rawls understands public reason as the reason of a political society. A society's reason is its "way of formulating its plans, of putting its ends in an order of priority and of making its decisions accordingly." Public reason contrasts with the "nonpublic reasons of churches and of many other associations in civil society." Both public and nonpublic reason share features that are essential to reason itself, such as simple rules of inference and evidence. Public reasons, however, are limited to premises and modes of reasoning that can appeal to the public at large. Rawls argues that these include "presently accepted general beliefs and forms of reasoning found in common sense, and the methods of science when these are not controversial." By contrast, the nonpublic reason of a church might include premises about the authority of sacred texts and modes of reasoning that appeal to the interpretive authority of particular persons.
      Second, the limits imposed by Rawls' ideal of public reason do not apply to all actions by the state or even to all coercive uses of state power. Rather, his ideal is limited to what he calls "the constitutional essentials" and "questions of basic justice." Thus, the scope of the freedom of speech and qualifications for the franchise would be subject to the Rawlsian ideal, but the details of tax legislation and the regulation of pollution control would not.
      Third, Rawls' ideal of public reason applies to citizens and public officials when they engage in political advocacy in a public forum; it also governs the decisions that officials make and the votes that citizens cast in elections. The ideal does not apply to personal reflection and deliberation about political questions; by implication it could not apply to such reflection or deliberation about questions that are not political in nature.
    With these features in mind, we can offer a summary of the Rawlsian ideal of public reason; this ideal has three main features: (1) The ideal of public reason limits the use of reason to (a) the general features of all reason, such as rules of inference and evidence, and (b) generally shared beliefs, common- sense reasoning, and the noncontroversial methods of science. (2) The ideal applies to deliberation and discussion concerning the basic structure and the constitutional essentials. (3) The ideal applies (a) to both citizens and public officials when they engage in public political debate, (b) to citizens when they vote, and (c) to public officials when they engage in official action - so long as the debate, vote or action concerns the subjects specified in (2). With Rawls' view in mind, we proceed to two preliminary subjects: first, the role of the idea of public reason in the regulation of public discourse and, second, the ways in which a particular ideal of public reason might be justified.
    Public Reason and Law How is the idea of public reason relevant to legal theory? One answer to this question might begin with Rawls's observation that judicial reasoning, for example the reasoning of the Supreme Court, exemplifies public reason. It would be unusual to see a Supreme Court justice rely on a particular religion or on a deep philosophical view about the meaning of life or the ultimate nature of the good. There are exceptions, however. One of the most infamous Supreme Court opinions in the contemporary period is Chief Justice Burger's concurring opinion in Bowers v. Hardwick, the case that was recently overruled in Lawrence v. Texas. Burger argued that criminalization of homosexual conduct was constitutionally permissible, because the prohibition on such conduct was rooted in Judeo-Christian morality. Arguably this argument exceeded the bounds of public reason, because the United States is a pluralist society in which there are many citizens outside of the Judeo-Christian tradition, including, for example, Buddhists, adherents of Native American religions, and nonbelievers.
    One of the interesting features of the idea of public reason is that it provides an argument against what we might call going deep in legal theory. By going deep, I mean making arguments that rely on deep philosophical premises, about ultimate values on the one hand or metaethics and moral psychology on the other. So, for example, it might be argued that utilitarianism (or welfare economics) is an inappropriate source of legal arguments, when the argument relies on a deep utilitarian premises, such as the notion that only utility (e.g. hedonic value or preference satisfaction) is valuable. That premise, it might be argued, goes beyond public reason.
    The idea of public reason is deeply controversial and the subject of heated debate, but the connections between public reason and law have only recently begun to be explored in depth.


Saturday, October 30, 2004
 
Legal Theory Bookworm The Legal Theory Bookworm recommends A Dictionary of Legal Theory by Brian Bix. I've just been browsing through Bix's marvelous volume--a real treat! Here's a brief description:
    Modern legal theory contains a wide range of approaches and topics: from economic analysis of law to feminist legal theory to traditional analytical legal philosophy to a range of theories about justice. This healthy variety of jurisprudential work has created a problem: students and theorists working in one tradition may have difficulty understanding the concepts and terminology of a different tradition. This book works to make terminology and ways of thinking accessible. This dictionary covers topics from 'the autonomy of law' to the 'will theory of rights', from 'autopoiesis' to 'wealth maximization', and from 'John Austin' to 'Ludwig Wittgenstein'. The most important concepts and ideas are presented in a simple dictionary format. There are also many longer entries, where the initial definition gives an accessible explanation, but the entry goes on to give more detailed information about the history of an idea and the debates currently surrounding it.
A must!


 
Download of the Week The Download of the Week is The End of Empire: Dworkin and Jurisprudence in the 21st Century by Brian Leiter. Here is a taste from his blog post on the paper:
    Notwithstanding the majestic sweep and ambition of [Dworkin's] jurisprudential corpus, my conclusion—which I’ve come to only gradually over the last decade of reading, writing, talking and teaching about problems in legal philosophy—is that in legal philosophy, Dworkin now deserves to go the way of Skinner in psychology or Derrida in literary theory, that is, the way of figures whose work, at one time, was a stimulus to new research, but who, in the end, led—or, in Dworkin’s case, tried to lead—their field down a deeply wrong-headed path. The only good news in the story about Dworkin’s impact on law and philosophy is that most of the field declined to follow the Dworkinian path—something, interestingly, that those not working in legal philosophy generally do not know. Given the limited amount of time I have today—not to mention the amount of alcohol my audience has already consumed—I’m going to support this polemical thesis with just two kinds of considerations. First, in most of the areas that have made law and philosophy an intellectually vibrant area in recent decades, Dworkin’s work has been largely irrelevant. Second, in the areas where Dworkin has had an impact—namely, the development of his own theory of law and adjudication—his views are, I am afraid, implausible, badly argued for, and largely without philosophical merit. The first point shall be easier to establish this evening than the second, needless to say. I take them up in turn.
Download it while its hot!


Friday, October 29, 2004
 
Friday Calendar


 
Conference Announcement: 28th International Wittgenstein Symposium
    28th International Wittgenstein Symposium 7. - 13. August 2005 Kirchberg / Wechsel, Austria General Topic: Time and History Sections: 1. Wittgenstein; 2. Philosophy of Time; 3. Time and History; 4. Time and Natural Sciences; 5. Time in the Social and Cultural Sciences; 6. Temporal Logics Workshops: The arrow of time: Chaos and Entropy Einstein and Schlick on Space and Time Organizer: Austrian Ludwig Wittgenstein Society Scientific Direction: Friedrich STADLER (University of Vienna, Institute „Wiener Kreis“) Michael STÖLTZNER (University of Bielefeld) List of Speakers includes: Peter Aichelburg (Vienna), Milos Arsenijevic (Beograd), Jacques Bouveresse (Paris), Jeremy Butterfield (Oxford), John Campbell (Berkeley), Paul Davies (Sydney), Graciela DEPIERRIS (Stanford), Günther Dux (Freiburg i.Br.), John Earman (Pittsburgh), Jan FAYE (Kopenhagen), Georg Franck (Vienna), Sergio Galvan (Milano), Michael Friedman (Stanford), Gerhard GRÖSSING (Vienna), Kelly Hamilton (Saint Mary’s), Jaakko Hintikka (Boston), Allan Janik (Innsbruck), Robin Le Poidevin (Leeds), Gabriele Mras (Vienna), Albert Müller (Vienna), Karl MÜLLER (Vienna), Thomas Müller (Bonn), Wolfgang MÜLLER-FUNK (Vienna), Herta Nagl-DOCEKAL (Vienna), Lutz Niethammer (Jena), Nathan Oaklander (Michigan at Flint), J.C. NYIRI (Budapest), Constanze Peres (Dresden), John PERRY (Stanford), Huw Price (Sydney), Mike Sandbothe (Berlin), Katia Saporiti (Zurich), Peter Schöttler (Paris/Berlin), Richard Schrodt (Vienna), Joachim Schulte (Bielefeld), Peter SIMONS (Leeds), Christian Steininger (Salzburg), Michael Tooley (Boulder), Stephen Toulmin (Los Angeles), Jos Uffink (Utrecht), Johan van Benthem (Amsterdam/Stanford), Peter Weibel (Karlsruhe), Hans-Jüergen WENDEL (Rostock), Markus Werning (Düsseldorf), Henrik ZINKERNAGEL (Granada). Call for Papers: For an application form plus guidelines for papers (deadline: 30 April 2005) please contact: The Austrian Ludwig Wittgenstein Society, Markt 63, A-2880 Kirchberg am Wechsel, Austria, Phone and Fax: +43 2641 2557. The conference languages are English and German. Accepted papers will be published before the start of the symposium. For further information consult: http://www.alws.at


 
Jacob on Aristotle on Justice as a Virtue Bernard E. Jacob (Hofstra University - School of Law) has posted Aristotle and the Graces:
    This paper is a reading of Aristotle's book on justice (Book V of the Ethics) as what he says it is, a study of the disposition or inclination towards doing just (or unjust) acts. In that light, the content of Aristotle's famous treatments of distributive and corrective justice are only incidental, for their true role is as clues to a meaningful picture of the Just and the Unjust person. Aristotle's treatment of Being Just as a specific virtue is the most detailed treatment he offers of any moral virtue. Being Just as distributive justice emerges as a commitment to the equal treatment of all citizens, but to an equality tempered by always contentious considerations of merited reward. Being Just as corrective justice is a commitment to protecting and repairing the sphere of each person's dignity and opportunity from damaging and sometimes malicious interactions. But more is required. For Being Just means overcoming the disordered and misdirected desire that both Aristotle and Plato call "pleonexia", wanting - tyrant-like - more-of-and-more-than. If that is overcome by re-directed libido, the virtuous will then have to integrate more subtle elements if they are to achieve an inclination to this tempered, but real equality. These elements are two. One is present only implicitly, the passion Aristotle calls nemesis, a demand that the world – and justice within the world – must never permit an evil person to go unpunished or a good one, to suffer harm. That passion cannot be admitted, but at best can only be temporarily stilled. The second impediment arises from the dynamic of human communities that are made up of diverse and actively striving individuals: such citizens, haunted by suspicion grounded in their own pleonexia, demand that the community be one of laws. That creates a true dilemma, for in Aristotle's estimation, no set of rules can cabin any virtue. The Rule of Law is in tension with the particularity of justice in real life, and that tension is ultimately only bearable through the invention of equity, the trusted deviation from the law to preserve the law. In making this abstract I have had to leave untouched the subject matter of the first and two last chapters, but in my paper I do treat these. More importantly, I also show how all political community and the inclination to seek to be a Just Person rests on a gracious act of reciprocal commitment.


Thursday, October 28, 2004
 
Dougherty on First Amendment Defenses to the Rights of Publicity Claims F. Jay Dougherty (Loyola Marymount) has posted All the World's Not a Stooge: The 'Transformativeness' Test for Analyzing a First Amendment Defense to a Right of Publicity Claim Against Distribution of a Work of Art (Columbia Journal of Law & the Arts, Vol. 27, No. 1, 2003) on SSRN. Here is the abstract:
    This article reviews the case law in which claims of violation of the right of publicity have been brought against expressive works, leading up to the California Supreme Court's decision in Comedy III v. Saderup. It then reviews the Saderup decision and the transformativeness test elaborated by that court to resolve conflicts between freedom of expression and the right of publicity. The article then critiques the transformativeness test. First, it considers distinctions between copyright law and the right of publicity that suggest that application of this part of copyright's fair use law to right of publicity claims inadequately protects speech. Second, it considers the transformativeness test from the perspective of First Amendment jurisprudence, particularly contrasting balancing approaches versus categorical approaches. It concludes that applications of right of publicity claims against expressive works portraying real people should be subject to strict scrutiny and that neither the right of publicity itself as applied to such works, nor the transformativeness test, should survive strict scrutiny. Finally, the article suggests that categorically excluding right of publicity claims against the exploitation of copies of images of real people not used for advertising or in connection with unrelated products would better serve First Amendment interests. Short of such a categorical limitation, the article argues that, to limit chilling effects, the transformativeness test should be liberally applied and should incorporate procedural approaches favoring early resolution of claims.


 
Solove on the Digital Person Daniel J. Solove (George Washington University Law School) has posted The Digital Person: Technology and Privacy in the Information Age (Daniel Solove, THE DIGITAL PERSON: TECHNOLOGY AND PRIVACY IN THE INFORMATION Age, NYU Press, 2004) on SSRN. Here is the abstract:
    THE DIGITAL PERSON: TECHNOLOGY AND PRIVACY IN THE INFORMATION AGE (ISBN: 0814798462) (NYU Press 2004) explores the social, political, and legal implications of the collection and use of personal information in computer databases. In the Information Age, our lives are documented in digital dossiers maintained by hundreds (perhaps thousands) of businesses and government agencies. These dossiers are composed of bits of our personal information, which when assembled together begin to paint a portrait of our personalities. The dossiers are increasingly used to make decisions about our lives - whether we get a loan, a mortgage, a license, or a job; whether we are investigated or arrested; and whether we are permitted to fly on an airplane. Digital dossiers impact many aspects of our lives. For example, they increase our vulnerability to identity theft, a serious crime that has been escalating at an alarming rate. Moreover, since September 11th, the government has been tapping into vast stores of information collected by businesses and using it to profile people for criminal or terrorist activity. Do these developments pose a problem? Is it possible to protect privacy in a society where information flows so freely and proliferates so rapidly? THE DIGITAL PERSON seeks to answer these questions. This book explores the problem from all angles - how businesses gather personal information in massive databases; how the government increasingly provides this data to businesses through public records; and how the government is gathering personal data from businesses for its own uses. THE DIGITAL PERSON not only explores these problems, but also provides a compelling account of how we can respond to them. Using a wide variety of sources, including history, philosophy, and literature, Solove sets forth a new understanding of privacy, one that is appropriate for the new challenges of the Information Age. Solove recommends how the law can be reformed to simultaneously protect our privacy and allow us to enjoy the benefits of our increasingly digital world. The table of contents and Chapter 1 are available for download.


 
LoPucki on the Death of Liability Lynn M. LoPucki (University of California, Los Angeles - School of Law) has posted The Death of Liability (Yale Law Journal, October 1996) on SSRN. Here is the abstract:
    Based on systems/strategic analysis, this paper predicts the complete failure of legal liability system. Liability is the system by which injured persons recover money damages from those who injure them. The system operates through the entry and enforcement of judgments by the courts. The paper argues that the system is vulnerable to defeat by a variety of judgment proofing techniques which can be categorized as secured debt strategies, ownership strategies, exemption strategies, and foreign haven strategies. Computerization has recently brought about dramatic reductions in the costs of pursuing these strategies, making them cost effective for more potential defendants. As use spreads, the cultural and political barriers to judgment proofing will decline, leading to wider use of the techniques and ultimately to system failure. The paper examines a variety of strategies by which the system might respond, including shareholder unlimited liability, involuntary creditor priority, asset provider liability, enterprise liability, mandatory insurance, and financial responsibility laws. The paper concludes that judgment- proofing strategists will be able to overcome all of them.


 
Post on Naturalism and Normativity John Post has uploaded Naturalism, Reduction and Normativity: Pressing from Below:
    Normativity reducible to facts? Some philosophers might see this as a reduction to absurdity of Papineau’s reductionism. Others, however, might see it as a welcome consequence, however unintended. His reductionist method, if taken to heart, would appear to disarm the crucial arguments against naturalist realism about the normativity in question. This would greatly improve the prospects of a positive account, in naturalist-realist terms, of an important kind of normativity some think is objectively in the world — the primitive normativity involved in a biological adaptation’s being “for,” or designed to do this or that. Such normativity is the target of this paper, though the discussion will have implications for moral normativity as well. Not that moral normativity can somehow be inferred from the normativity involved in selectional properties; far from it. Nonetheless, by “pressing from below” on this primitive normativity, we may learn something about the higher-level moral normativity, as we shall see.


 
Thursday Calendar
    Boston University, School of Law: Anthony Sebok (Brooklyn), "Deterrence or Disgorgement? Reading Ciraolo After Campbell"
    Loyola Marymount University, Loyola Law School: Vikram Amar, Professor of Law, University of California, Hastings College of the Law, “The Cheney Case and the Unresolved Lingering Questions About Executive Privilege and the Odd Office of the Vice Presidency”
    Florida State University, School of Law: Robin Craig, University of Indiana-Indianapolis, "The Stevens-Scalia Principle: Statutory Conversations and the Strict Plain Meaning Approach."
    UCLA Legal Theory: Heather K. Gerken, Harvard, "Second-Order Dissent"
    Hofstra School of Law: Edward Stein, Cardozo Law School, "Past and Present Proposed Amendements to the Constitution Regarding Marriage."
    Oxford Public International Law Discussion Group: Professor Malcolm Evans OBE, Recent Approaches to Torture in English Law.
    Stanford Law & Economics: Mark Geistfeld (New York University Law School) “Economic Analysis in a Rights-Based Conception of Tort Law
    University of Michigan Law & Economics: Mitu Gulati, Georgetown, What Drives Changes in Boilerplate Contracts
    Saint Louis University, School of Law: Stacey Dogan, The Merchandising Right: Fragile Theory or Fait Accompli?


Wednesday, October 27, 2004
 
Wednesday Calendar


 
New from Law & Politics Book Review
    THE PERMANENT INTERNATIONAL CRIMINAL COURT: LEGAL AND POLICY ISSUES, by Dominic McGoldrick, Peter Rowe, and Eric Donnelly (eds). Oxford and Portland, OR: Hart Publishing, Studies in International Law, 2004. 514pp. Paper £35.00 / $70.00. ISBN: 1-84113-281-0. Reviewed by Lynn M. Maurer.
    RULE OF LAW: THE JURISPRUDENCE OF LIBERTY IN THE SEVENTEENTH AND EIGHTEENTH CENTURIES, by John Phillip Reid. DeKalb, Illinois: Northern Illinois University Press, 2004. 160pp. Cloth $32.00. ISBN: 0-87580-327-X. Reviewed by Craig Hanyan.
    THE POLITICS OF RIGHTS, 2ND EDITION: LAWYERS, PUBLIC POLICY, AND POLITICAL CHANGE, by Stuart Scheingold (Foreword by Malcolm Feeley). Ann Arbor: University of Michigan Press, 2004. 280pp. Cloth $22.95. ISBN: 0-472-03005-1. Reviewed by Jeffrey R. Dudas.
    THE UNITY OF PUBLIC LAW, by David Dyzenhaus (ed). Oxford and Portland Oregon: Hart Publishing, 2004. 520pp. Hardback. £45.00 / $90.00. ISBN: 1-84113-434-1. Reviewed by Upendra Baxi.
    THE HUMAN RIGHTS OF PERSONS WITH INTELLECTUAL DISABILITIES, by Stanley S. Herr, Lawrence O. Gostin, and Harold Hongju Koh (eds). New York and Oxford: Oxford University Press, 2003. 578pp. Paperback. $49.95 / £35.00. ISBN: 0199264511. Hardback. $175.00 / £100.00. ISBN: 0198267797. Reviewed by Dr Susan C. Breau.
    AN AMERICAN TRAVESTY: LEGAL RESPONSES TO ADOLESCENT SEX OFFENDING, by Franklin E. Zimring. Chicago: University of Chicago Press, 2004. 216pp. Cloth. $29.00. ISBN: 0-226-98357-9. Reviewed by Mark Chaffin.


Tuesday, October 26, 2004
 
Boettke on Hayek & Market Socialism Check out Hayek and Market Socialism: Science, Ideology, and Public Policy by Peter J. Boettke over at mises.org.


 
Leiter on Dworkin Brian Leiter's keynote address (from the inaugural conference of the Rutgers Institute for Law and Philosophy last May) is finally available at SSRN. You must read this--even if you disagree with Leiter! The title is The End of Empire: Dworkin and Jurisprudence in the 21st Century. Here is a taste from his blog post on the paper:
    Notwithstanding the majestic sweep and ambition of [Dworkin's] jurisprudential corpus, my conclusion—which I’ve come to only gradually over the last decade of reading, writing, talking and teaching about problems in legal philosophy—is that in legal philosophy, Dworkin now deserves to go the way of Skinner in psychology or Derrida in literary theory, that is, the way of figures whose work, at one time, was a stimulus to new research, but who, in the end, led—or, in Dworkin’s case, tried to lead—their field down a deeply wrong-headed path. The only good news in the story about Dworkin’s impact on law and philosophy is that most of the field declined to follow the Dworkinian path—something, interestingly, that those not working in legal philosophy generally do not know. Given the limited amount of time I have today—not to mention the amount of alcohol my audience has already consumed—I’m going to support this polemical thesis with just two kinds of considerations. First, in most of the areas that have made law and philosophy an intellectually vibrant area in recent decades, Dworkin’s work has been largely irrelevant. Second, in the areas where Dworkin has had an impact—namely, the development of his own theory of law and adjudication—his views are, I am afraid, implausible, badly argued for, and largely without philosophical merit. The first point shall be easier to establish this evening than the second, needless to say. I take them up in turn.
Download it while its HOT HOT HOT!!!


 
Gilreath on the Technicolor Constitution Shannon D. Gilreath (Wake Forest University - School of Law) has posted The Technicolor Constitution: Popular Constitutionalism, Ethical Norms, and Legal Pedagogy (Texas Journal on Civil Liberties & Civil Rights, Vol. 9, No. 22, 2003) on SSRN. Here is the abstract:
    In order to educate lawyers effectively, legal education must orient legal principles within the greater purpose of the law: to serve as the vehicle for a society striving to realize democratic ideals. Too often, however, students are not asked to examine the variant shades of the Constitution; they are not asked to question the efficacy of court decisions. They are not asked to concentrate on what the law "should be" as well as what the law "is." The role of lawyers as policymakers and guardians of democratic values has for too long been virtually ignored in the law school curriculum. Consequently, the aim of this essay is to support my opinion, with particular reference to law school pedagogy, that popular consideration of the Constitution as a tool for social betterment should be more highly valued and encouraged. The essay is an effort to put law in historical context, tracking episodes in American constitutional history in which the people were more protective of constitutional liberty than the courts were disposed to be - episodes in which the people shaped the content of a constitutional norm and the courts followed. Inquiry and challenge proved in these instances what law schools often fail to assert with authority: The Constitution is a document of the popular conscience. The essay concludes with some observations concerning the proper place of "popular" constitutional theory in constitutional education.


 
Tuesday Calendar


Monday, October 25, 2004
 
Weekend Update On Saturday, the Download of the Week was Humanitarian Intervention as a Perfect Duty. A Kantian Argument by Carla Bagnoli and the Legal Theory Bookworm recommended Facts, Values, and Norms: Essays toward a Morality of Consequence by Peter Railton. Sunday's Legal Theory Lexicon entry was on Utilitarianism. And the Legal Theory Calendar previews this weeks talks and conferences.


 
Monday Calendar
    University of San Diego School of Law: Viva Moffat (University of Denver), Mutant Copyrights and Backdoor Patents: The Problem of Overlapping Intellectual Property Protection.
    At Stanford's Center for Internet and Socienty (CIS), Eugene Volok presents Crime-Facilitating Speech.
    Columbia Law & Economics: Professor Jennifer Arlen, New York University, School of Law, "Contracting Over Malpractice Liability".
    Hofstra, School of Law: Jennifer Gordon, Fordham Law School, “The Best Labor Law in America: The United Farm Workers, the Agricultural Labor Relations Act, and Reflections on the Reform of the NLRA.”
    Oxford Moral Philosophy Seminar: Robert Audi, Notre Dame.
    New York University, School of Law: Mark Tushnet (Visiting from Georgetown), Our Perfect Constitution.
    UCLA School of Law: Sam Thompson, UCLA School of Law, "How Will the Tax Policies of Bush & Kerry Affect Economic Growth?"


 
Berman on Blakely Check out Doug Berman's new paper, "Conceptualizing Blakely."


 
Conference Announcement: Moral Particularism at Canterbury
    ****MORAL PARTICULARISM**** Venue: Canterbury Business School (On the University of Kent Main Campus) DATE: Wednesday December 1st, 2004 from 9:30 - 6:00 Registration: £20 including Buffet Lunch (There are 12 subsidised places at £10 for graduate students courtesy of The Analysis Trust on a first come, first served basis.) Print off and mail in the registration form at: http://www.logical-operator.com/particularism.html 9:30 - 10:15 'Particularism and Default Reasons' Dr Simon Kirchin (Kent) 10:15 - 10:30 Respondent: Professor Richard Norman (Kent) 10:30 - 11:00 Discussion 11:00 - 11:30 Coffee 11:30 - 12:15 'First: Principles' Dr Roger Crisp (St. Anne's Oxford) 12:15 - 12:30 Respondent: Dr Edward Harcourt (Kent) 12:30 - 1:00 Discussion 1:00 - 2:30 Lunch 2:30 - 3:15 'Generalism and Reasons for Action' Dr Michael Ridge (Edinburgh) 3:15 - 3:30 Respondent: Dr Alan Thomas (Kent) 3:30 - 4:00 Discussion 4:00 - 4:30 Coffee 4:30 - 5:15 KEYNOTE ADDRESS: 'Defending the Right' Professor Jonathan Dancy (Reading) 5:15 - 5:30 Respondent: Dr Simon Kirchin (Kent) 5:30 - 6:00 Discussion Conference Dinner at "The Goods Shed" Restaurant, 7:00 p.m.


 
Epstein versus Levinson Over at Legal Affairs, Richard Epstein & Sandy Levinson debate Should Colorado split its electoral votes?.


Sunday, October 24, 2004
 
Legal Theory Calendar
    Monday, October 25
      University of San Diego School of Law: Viva Moffat (University of Denver), Mutant Copyrights and Backdoor Patents: The Problem of Overlapping Intellectual Property Protection.
      At Stanford's Center for Internet and Socienty (CIS), Eugene Volok presents Crime-Facilitating Speech.
      Columbia Law & Economics: Professor Jennifer Arlen, New York University, School of Law, "Contracting Over Malpractice Liability".
      Hofstra, School of Law: Jennifer Gordon, Fordham Law School, “The Best Labor Law in America: The United Farm Workers, the Agricultural Labor Relations Act, and Reflections on the Reform of the NLRA.”
      Oxford Moral Philosophy Seminar: Robert Audi, Notre Dame.
      New York University, School of Law: Mark Tushnet (Visiting from Georgetown), Our Perfect Constitution.
      UCLA School of Law: Sam Thompson, UCLA School of Law, "How Will the Tax Policies of Bush & Kerry Affect Economic Growth?"
    Tuesday, October 26 Wednesday, October 27 Thursday, October 28
      Boston University, School of Law: Anthony Sebok (Brooklyn), "Deterrence or Disgorgement? Reading Ciraolo After Campbell"
      Loyola Marymount University, Loyola Law School: Vikram Amar, Professor of Law, University of California, Hastings College of the Law, “The Cheney Case and the Unresolved Lingering Questions About Executive Privilege and the Odd Office of the Vice Presidency”
      Florida State University, School of Law: Robin Craig, University of Indiana-Indianapolis, "The Stevens-Scalia Principle: Statutory Conversations and the Strict Plain Meaning Approach."
      UCLA Legal Theory: Heather K. Gerken, Harvard, "Second-Order Dissent"
      Hofstra School of Law: Edward Stein, Cardozo Law School, "Past and Present Proposed Amendements to the Constitution Regarding Marriage."
      Oxford Public International Law Discussion Group: Professor Malcolm Evans OBE, Recent Approaches to Torture in English Law.
      Stanford Law & Economics: Mark Geistfeld (New York University Law School) “Economic Analysis in a Rights-Based Conception of Tort Law
      University of Michigan Law & Economics: Mitu Gulati, Georgetown, What Drives Changes in Boilerplate Contracts
      Saint Louis University, School of Law: Stacey Dogan, The Merchandising Right: Fragile Theory or Fait Accompli?
    Friday, October 29


 
Legal Theory Lexicon: Utilitarianism
    Introduction This installment of the Legal Theory Lexicon is an introduction to utilitarian moral and political philosophy tailored to law students (especially first-year law students) with an interest in legal theory. Law students learn early on that classroom discussion of cases and statutes may begin with questions about what the rule is but is likely to turn to questions about what the rule should be. And in most law school classrooms, analysis of the “should” question is likely to go down one of two paths. The first path leads to fairness (which outcome in this case is fair to the parties; which rule will produce fair results in the future). The second path leads to policy (which rule will produce the best consequences in the future). Theories about fairness will be covered in future installments of the Legal Theory Lexicon; today, we focus on arguments of policy and the theoretical question, “What does it mean to say that a rule would produce the best consequences?” One answer to that question is “utilitarianism,” a theory of enormous interest and influence. But what exactly is “utilitarianism” and how might it be criticized or defended?
    What is “utilitarianism”? Just about every law student has some basic familiarity with the idea of utilitarianism, but unless you were a philosophy or economics major, you may have only a fuzzy notion of what this term really means. In this history of moral philosophy, utilitarianism is strongly associated with two historical figures, Jeremy Bentham and John Stuart Mill. Mill’s views are important and deeply interesting, but they are also extremely difficult to sort out properly. Jeremy Bentham, however, provides a wonderful entrée into the world of utilitarian moral and political philosophy. Law students should be especially fond of Bentham, because with only a bit of exaggeration, we can say than Bentham is the original disgruntled law student. Bentham, you see, was highly displeased with William Blackstone’s lectures on law at Oxford University. The common law, Bentham thought, was a disorganized body of rules. Common-law judges irrationally worshipped historical pedigree and had an immoral disregard of the consequences of legal rules. Legal rules, Bentham believed, should be codified, and the codes should be written so as to produce “the Greatest Good, for the Greatest Number.” That is, we should adopt those legal rules that will maximize utility.
    Consequentialism Utilitarianism is just one member of a more general family of moral theories, which we might call “consequentialist.” Consequentialism is the view that morality is about consequences of decisions. Utilitarianism is a particular form of consequentialism, but not the only form. Consequentialism is sometimes contrasted to deontology, where deontological moral and political theories maintain that there are moral rules or principles, the violation of which cannot be justified on the ground that good consequences would result. Thus, a consequentialist might believe that one may tell lies, break promises, or injure innocent persons in order to accomplish a greater good, whereas a deontologist might believe that such actions are forbidden--even if good consequences will result.
    Disambiguating Utilitarianism Let’s pause for a moment. It turns out that “utilitarianism,” the term, refers to many different interrelated theories. “Utilitarianism” is ambiguous, and so we need to specify what we mean by utilitarianism by answering some questions:
    • What is utility? That is, when we say, the greatest “good” for the greatest number, what do we mean by “good?”
    • What is scope of decision? That is, what should maximize utility, individual actions, general rules, principles, or something else?
    • What does it mean to maximize utility?
    • Does the rightness of an action depend on actual or expected utilities?
    What is utility? What is utility? What is a good consequence? Or to use a bit of jargon, what is a “utile,” where the word “utile” stands for a unit of utility? There are many possible answers to this question, but here are three versions of utilitarianism that give three different answers to this question:
      Hedonistic Utilitarianism. Bentham himself believed that utility was pleasure and the absence of pain. Suppose it were possible to measure and quantify pleasures and pains. We might then call one unit of pleasure a positive “hedon” and one unit of pain a negative “hedon.” Maximizing utility then, would simply be to maximize the sum of hedons. When we evaluated legal rules, we would engage in what Bentham called a “hedonic calculus.”
      Eudaimonistic Utilitarianism. But is the good really just a matter of pleasures and pains? Many of Bentham’s critics argued that not all pleasures are good. Would you really want to live your life carrying around a device that constantly stimulated the pleasure center of your brain and suppressed the pain center? Rather than maximize pleasure, we might instead maximize “happiness”—eudaimonia in ancient Greek. Happiness may be related to pleasure, but it includes more abstract satisfactions. Climbing a mountain may involve much more pain than pleasure, but this activity may still contribute to the happiness of the climber.
      Preference Satisfaction Utilitarianism. But if happiness seems a better candidate for “good” than pleasure, there are difficulties with the proposition that the law should maximize “happiness.” Happiness is notoriously difficult to define, and different persons have different views about what makes for a happy life. Moreover, happiness, like pleasure, is difficult to measure directly. For these reasons and others, some utilitarian theorists (especially economists) substitute “preference” for happiness as the “good” to be maximized. Preferences can be measured in a variety of ways. For example, we can ask individuals to simply rank order their preferences among various states of affairs, giving us an ordinal utility function for the individual. Economists have devised a variety of techniques for translating these rank orderings (1st best, 2nd best, etc.) into numerical values. Thus, we can construct a cardinal utility function for an individual. Because preference-satisfaction is measurable, most economists use a preference-based conception of utility. And because of the influence of economics on legal theory, this form of utilitarianism has had the greatest impact on contemporary legal theory as well.
    There are other versions of utilitarianism, but you get the idea.
    Scope of Decision So let’s assume we have a working conception of utility. Our next question is: What exactly is the decision that is supposed to maximize utility? Is each individual action required to maximize utility? Or is it general rules that we are concerned with? Or principles? Or something else? I am going to call this question, the scope of decision question. Different forms of utilitarianism give different answers to the scope of decision question. Let’s take a quick look at some of the possibilities:
    • Act Utilitarianism. (abbreviated AU) The first possibility is that each individual action should maximize utility. Given this answer to the scope of decision question, we might formulate utilitarianism as follows:
        Act so that your action maximizes utility as opposed to any alternative action that you could perform.
      Suppose, for example, that you must decide whether to break or keep a promise to have lunch with a friend. You would ask yourself, “Would keeping my promise produce greater utility than breaking it?” Thus, you would consider the costs of your decision, such as: (1) your friend will be hurt, (2) you will miss out on the satisfaction of having lunch with your friend, and (3) your friend may not trust your promises in the future if you break this promise. And you would consider the benefits, such as: (1) you will be able to use a free ticket to go to the baseball game if you break the promise, and (2) you will not have to listen to your friend's boring stories. You then add the utilities for each action, and choose the action that produces the greatest utility.
    • Rule Utilitarianism. (abbreviated RU) The case of promises reveals a potential problem with AU. If I calculate utilities every time, I decide whether to break or keep a promise, my promises may not be viewed by others as trustworthy. And if my promises are not trustworthy, then I will not be able to use the institution of promising to coordinate my behavior with that of other people. But the ability to coordinate through promises produces good consequences. One way out of these difficulties is to shift the scope of decision from individual actions to general rules. Thus, although the individual actions of breaking my promise might maximize utility as compared to the alternative, the general rule, “keep your promises,” might produce more utility than the alternative rules, such as “keep your promises, but only when there is nothing better to do.”
      Rule utilitarianism itself has two important subvariants, and we can add a third, specifically legal, variant as well:
        Ideal Rule Utilitarianism (IRU) says that you should act in accordance with the set of “ideal rules” that would maximize utility if everyone were actually to act in conformity with the rules.
        Actual Rule Utilitarianism (ARU) says that you should act in accord with the set of “actual rules” that would maximize utility if it were adopted as the moral code of a real society in which persons will sometimes fail to live up to the requirements of the moral code.
        Legal Rule Utilitarianism (LRU) responds to an obvious fact about the application of utilitarianism to the law. The law is concerned with individual acts (e.g. an individual judge's decision in an individual case at the trial level), but it is also concerned with rule-creating acts (e.g. the decision of a legislator to vote for or against a given bill). So it is reasonable for legal theorists to advance a more specialized version of utilitarianism, which we can call "Legal Rule Utilitarianism," as a theory about legal rules. Notice, however, that LRU will have a set of variants. So we can distinguish the utility of an ideal system of legal rules (with perfect compliance) versus an actual system of legal rules (with disobedience and enforcement costs) versus a single nonideal actual rule (where the status quo system of rules is assumed and we look at the utility of changing only a single rule).
    • Utilitarian Generalization (abbreviated UG) There is one more answer to the scope of decision problem that is worth mentioning. UG is the view that one should act on the basis of principles (or maxims) that would produce the greatest utility if they were generalized (e.g. we acted upon by everyone. Because this form of utilitarianism, plays very little role in legal thought, I won't discuss it further.
    What does it mean to maximize utility? There is yet another ambiguity about utilitarianism that is really important to its application. What does "the greatest good for the greatest number" mean? Alternatively, what does it mean to maximize utility? This is a really complex topic. Right off the bat, it has both an intrapersonal and interpersonal dimension. To simplify, I will focus on the interpersonal problem. Let's assume we have utility values for individuals. What do we do with them? You may think the answer is obvious, "Add them up!," but it isn't so easy. Here are some alternatives:
    • Classical Utilitarianism. "Add them up" is the classic answer. That is, we simply sum individual utilities. Sometimes this is called the "utilitarian social welfare function" by economists. This can lead to some confusion as this is what some economists think the term "utilitarianism" means.
    • Average Utilitarianism. But we could average rather add. That is, we could take the sum of individual utilities and divide by the number of persons. You, gentle reader, undoubtedly have run way ahead of me and seen that this will make a big difference to things like population policy. We might have a choice between a larger population with a lower average utility but a greater sum, and a smaller population, with a higher average, but a lower sum.
    • Bernoulli-Nash John Nash (of A Beautiful Mind fame) is associated with another alternative. We might multiply rather than add utilities. I won't go into the reasons why this might be a good idea, except to tell you that multiplication makes more sense if we our utility values for individuals are relative rather than absolute.
    Actual or Expected Utilities We rarely know with certainty what consequences will result from actions or rules. Utilitarianism might look to the actual consequences of rules. If so, then some actions that looked right at the time will turn out to be very wrong, because of some unanticipated effect of the action. The alternative is to say that the rightness or wrongness of an action depends on its expected consequences. Given the phenomenon of uncertainty, a given action may lead to several different possible future states of the world. If we could assign a probability to each state, then the expected consequences of a given action could be calculated by taking the product of the utility value for the state and the probability that the state will coming into being. Take the following choice situation:
      Action A has a 50% chance of producing a utility of 10 and a 50% chance of producing a probability of 0. Since .5*10 + .5*0 = 5, the expected utility of action A is 5.
      Action B has a 90% chance of producing a utility of 0, and a 10% chance of producing a utility of 100. Since .9*0 +.1*100 = 10, the expected utility of action A is 10.
      And since 10 > 5, action A has the greater expected utility. Of course, it may turn out that action B produces a utility of zero, but if what counts is expected utility, then this ex post fact is irrelevant to the moral evaluation of action A.
    Some Objections to Utilitarianism Utilitarianism is an enormously controversial view, with adamant defenders and critics. It is worth our while to examine a few of the most prominent objections, but we will only be sliding across the surface of a deep and complex topic.
      The Rights Objection. Utilitarianism evaluates actions on the basis of the consequences they produce, and therefore does not require respect for moral or legal rights. The literature is full of hypotheticals in which utilitarianism is alleged to justify intuitively unattractive rights violations. Suppose, for example, the slavery is contrary to a moral right, but that in a particular society, enslaving a small minority of the population would produce greater utility for the majority than it produced disutility for the enslaved minority. If these facts were true, the utilitarianism seems to say that slavery would be morally required. But most people would disagree, saying that slavery cannot be justified simply because it produces good consequences: “We have a moral right not to be enslaved." Utilitarians are likely to get quite huffy when this argument is made. They may say, “But slavery does not produce good consequences. It produces bad consequences, and that’s why we think slavery is so awful.” And then the critic might say, “But suppose slavery did produce good consequences, what then?” You can see how this debate could go on for quite some time before we made any progress. Notice, however, that act utilitarianism seems more open to the rights objection than does rule utilitarianism. Rules against rights violations may produce good consequences, even if individual acts of rights violation could be justified on utilitarian grounds.
      The Self-Defeating Objection Another objection is that utilitarianism may be self-defeating. Suppose that everyone tried to deliberate as a utilitarian. It might turn out that nonetheless they would make decisions that led to bad consequences. For example, some people may be extremely bad at predicting the consequences of their actions. Others may systematically overestimate their own utilities while systematically underestimating those of others. One answer to this objection is famously associated with the British moral philosopher R.M. Hare. Hare proposed a two-level theory of morality. Utilitarianism, Hare argued, operates at the level of detached moral theorizing. Ultimately, an action is deemed good or bad based on its utility. But ordinary moral deliberation, Hare continued, operates at a different level. Ordinary folks should deliberate on the basis of moral rules of thumb, such as keep your promises, don’t steal, and don’t enslave your enemies when you vanquish them. As you might guess, there are many criticisms of two-level theories, but you get the general idea.
      The Impossibility of Interpersonal Utility Comparisons This one gets very complicated, very fast. So let me just state the general idea. Suppose we are trying to add up individual utilities for everyone in society. How do we come up with values that are truly comparable across persons. That is, how do we know that X amount of my pleasure or happiness or preference satisfaction is equal to Y amount of yours? This problem is especially vexing for economists, and one solution is simply to limit the conclusions of economics to cases that involve making everyone better off—hence obviating the need for interpersonal comparisons.
      The Demandingness Objections The list of objections goes on and on, but let’s do just one more. It is frequently argued that utilitarianism (especially act utilitarianism) is too demanding. Why? Imagine that it is your day off. You have two choices. You can either read a novel or your can work for Oxfam. If you read a novel, you will produce some positive utility—your enjoyment of the novel. But if you worked for Oxfam, you would save 1.7 starving children in the third world from death. Well, of course, you should work for Oxfam. But the problem is that it will always be the case that I could produce more utility for others if I dedicated my time to helping the least fortunate. Utilitarianism seems to require me to work for Oxfam after work and to stay up as late as I possibly can. In fact, I may be able to maximize utility by neglecting my health and family. If this is true, many would find utilitarianism too demanding and hence implausible.
    Utilitarianism and Legal Theory In the law, utilitarian thinking is most associated with normative law and economics. It is useful to review the various forms of utilitarianism in this context:
      --Normative law and economics uses preferences rather than pleasure or happiness as its concept of utility.
      --Normative law and economics usually assumes that the system of legal rules (as opposed to individual actions or ideal moral rules) provide the relevant scope of decision.
      --Normative law and economics usually assumes that utilities are to be summed—although this issue is rarely addressed in any detail.
      --Normative law and economics usually assumes that it is expected utilities, rather than actual utilities, that are to be maximized.
    If you are interested in the relationship between utilitarianism and legal theory, you will definitely want to check out Kaplow and Shavell’s book, Fairness versus Welfare. Kaplow and Shavell don’t take a stand on the question as to whether utilities should be summed, multiplied, or combined in some other way, but they do offer a trenchant defense of consequentialism as well as an attack on nonconsequentialist approaches to legal theory.
    Links Bibliography The literature on utilitarianism is vast, but here are some good starting points: And finally, on a personal note, I was privileged to take the class on utilitarianism that was taught by Greg Kavka at UCLA more than twenty years ago. Kavka's tragic early death deprived us of an excellent philosopher and a wonderful human being.
For past and future installments of the Legal Theory Lexicon, go here.


Saturday, October 23, 2004
 
Legal Theory Bookworm The Legal Theory Bookworm recommends Facts, Values, and Norms: Essays toward a Morality of Consequence by Peter Railton. Here a blurb:
    In our everyday lives we struggle with the notions of why we do what we do and the need to assign values to our actions. Somehow, it seems possible through experience and life to gain knowledge and understanding of such matters. Yet once we start delving deeper into the concepts that underwrite these domains of thought and actions, we face a philosophical disappointment. In contrast to the world of facts, values and morality seem insecure, uncomfortably situated, easily influenced by illusion or ideology. How can we apply this same objectivity and accuracy to the spheres of value and morality? In the essays included in this collection, Peter Railton shows how a fairly sober, naturalistically informed view of the world might nonetheless incorporate objective values and moral knowledge. This book will be of interest to professionals and students working in philosophy and ethics.
Railton is one of the best philosophers working in metaethics--very highly recommended.


 
Download of the Week The Download of the Week is Humanitarian Intervention as a Perfect Duty. A Kantian Argument by Carla Bagnoli. Here is a taste:
    Conclusion: I have attempted to show that in constructing a moral case for humanitarian intervention based on the defense of human rights, we are bound to recognize it as a duty rather than permission, and as a perfect duty rather than an imperfect one—a duty that proceeds from respect for humanity rather than from charity. This qualification implies that the gross violation of human rights calls for intervention and that a state that grossly violates the human rights of its citizens is outlaw and has no right not to be interfered with. To qualify humanitarian intervention as a strict duty does not settle the issue of proper authority, but it encourages us to rethink the ground of proper authority and the institutionalization of moral responsibility. My conviction is that when human rights are at stake, the whole international community must respond, and only an international organization can have the proper authority to do that. How exactly to design such an international institution is something that falls well beyond the scope of competence of a moral philosopher; so I should leave the matter at this point.
Download it while its hot!


Friday, October 22, 2004
 
Bibas on Fisher on Plea Bargaining Stephanos Bibas (University of Iowa - College of Law) has posted Pleas' Progress (Michigan Law Review, Vol. 102, 2004) on SSRN. Here is the Abstract:
    George Fisher's new book, Plea Bargaining's Triumph, reviews the rise of plea bargaining in Middlesex County, Massachusetts, compares it with the history of plea bargaining elsewhere, and applies the lessons of history to critique current criminal procedure. In particular, Fisher criticizes the U.S. Sentencing Guidelines for tilting the balance of power toward prosecutors. Academics have already written many histories of plea bargaining, but this one is different, because Fisher brings an ex-prosecutor's perspective to bear. He adds an important dimension to the history of plea bargaining precisely because he looks at it with a prosecutor's eye. Instead of resting on broader social explanations of plea bargaining, Fisher emphasizes the caseloads, incentives, and powers of judges and prosecutors. His prosecutor's eye sees the actors' powers and incentives from a rational-actor perspective that purely academic historians often miss. He rehabilitates the role of caseload pressure in explaining bargaining's rise and explains how the explosion of civil cases encouraged judges to lighten their workloads by bargaining away their criminal cases. The lesson of Fisher's history is that plea bargaining has triumphed because it has endeared itself to the actors with real power: judges, prosecutors, defense lawyers, and defendants all like it. Thus, plea bargaining is here to stay. Rather than writing more articles that treat jury trials as the norm, we should focus on making bargaining fairer. The way to do that is to check and balance prosecutors' charging and sentencing power, to create a true balance of bargaining power.


 
Yeazell on Brown & the Silent Litigation Revolution Stephen C. Yeazell (University of California, Los Angeles - School of Law) has posted Brown, The Civil Rights Movement, and the Silent Litigation Revolution (Vanderbilt Law Review, 2004) on SSRN. Here is the abstract:
    Brown v. Board of Education had two collateral effects on the legal profession. First, it created a new set of professional heroes - plaintiffs' lawyers pursuing social reform through litigation. Second, it began the gradual deregulation of the bar, particularly the plaintiffs' bar. Both changes reached well beyond the original civil rights arena and both continue to shape the legal profession and the economics of civil litigation.


 
Hasen Replies Richard L. Hasen (Loyola Marymount) has posted The Supreme Court and Election Law: A Reply to Three Commentators (Journal of Legislation, Vol. 31, January 2005) on SSRN. Here is the abstract:
    The Journal of Legislation and Notre Dame Law School invited three distinguished scholars to comment on my recent book, The Supreme Court and Election Law: Judging Equality from Baker v. Carr to Bush v. Gore (NYU Press 2003), and have kindly given me this chance to reply. After a brief summary of the main points of my book, I focus on what I consider to be the central critical claim of each commentator Professor John Nagle gently suggests that election law itself may not be a coherent field of study, noting that much election law jurisprudence appears to turn on matters of appearance over that of substance. Professor Luis Fuentes-Rohwer agrees with much of my analysis, but argues that I do not go far enough - suggesting that the logical end-point of my argument is for the Supreme Court to extricate itself from the political thicket entirely. Professor Guy-Uriel E. Charles argues that my distinction between core and contested equality rights eliminates any purpose for judicial review and is too difficult to put into practice. In this Reply, I defend my approach. Professor Nagle is right that the Court often strays from the right path when it decides election law cases on appearances alone, but he fails to recognize how conceiving of election law synthetically informs Court decisionmaking on issues such as the justiciability of partisan gerrymandering claims. Professor Fuentes-Rohwer's general suggestion of Court exit from the political thicket has much to commend it in the abstract, but he fails to evaluate my proposal as a second best approach, particularly compared to the main alternative floating around election law circles today, the structuralist approach that focuses on appropriate political competition. Finally, Professor Charles puts his finger on the most difficult aspect of my book, and I welcome his decision to take my proposed distinction between core and contested equality claims seriously.


 
Burke on the Rhetoric of the Endangered Species Act Marcilynn A Burke (University of Houston - Law Center) has posted Klamath Farmers and Cappuccino Cowboys: The Rhetoric of the Endangered Species Act and Why it (Still) Matters (Duke Environmental Law & Policy Forum, Vol. 14, p. 441, 2004) on SSRN. Here is the abstract:
    This Article traces and analyzes the negative, lasting impact of political rhetoric on the Endangered Species Act. The discourse surrounding the Act is consistent in its themes, assumptions, and images, and it is seductively powerful. Taking the form of stories and slogans or catchphrases, this rhetoric paints a picture of imbalance, pitting humans and their prosperity against endangered species and their protection. The political rhetoric has spurred a reform movement to solve the problems that the stories portray. In this way, it influences proposed legislation, regulations, and day-to-day operations of the Executive Branch. Yet, the solutions to these "problems" are ill-advised for several reasons. First, they seek to address problems that do not exist. The stories are misleading; important facts and contexts are omitted. Moreover, they seek to create a new property entitlement for a select segment of the public while at the same time undermining the values that undergird the Endangered Species Act. And because much of the change occurs within the agency's day-to-day routine, it escapes public scrutiny, not being subject to Congressional debate or notice and comment rulemaking procedures. Thus, it is important to recognize the deflection of the issues, to challenge the rhetoric, and ultimately to develop alternative, expanded narratives that reflect the values of the broader public with respect to species protection.


 
Book Announcement
    Wayward Contracts The Crisis of Political Obligation in England, 1640-1674 Victoria Kahn To read the entire book description and a sample chapter, please visit: http://www.pupress.princeton.edu/titles/7893.html Why did the language of contract become the dominant metaphor for the relationship between subject and sovereign in mid-seventeenth-century England? In Wayward Contracts, Victoria Kahn takes issue with the usual explanation for the emergence of contract theory in terms of the origins of liberalism, with its notions of autonomy, liberty, and equality before the law. 0-691-11773-X Cloth $49.50 US and £32.50 392 pages. 6 x 9.


 
Mikos on Congress's Shadow & Enforcement of State Law Robert A. Mikos (University of California, Davis - School of Law) has posted Enforcing State Law in Congress's Shadow on SSRN. Here is the abstract:
    This article examines an important yet overlooked form of federal regulation implicating efficiency and fairness concerns—congressional statutes that impose federal sanctions on individuals convicted of state crimes. These sanctions may profoundly influence state criminal proceedings, but the scholarly literature has all but ignored their effects. The article demonstrates that by raising the stakes involved in state cases, federal sanctions may cause defendants to contest state charges more vigorously, thereby producing one of two unintended consequences. First, the sanctions may make it more costly for state prosecutors to enforce state laws. Second, due to resource constraints or dislike of the federal sanctions, state prosecutors may circumvent them by manipulating charging decisions. But in the process, state prosecutors may have to reduce state sanctions as well, thereby undermining deterrence and the fair application of both state and federal law. The article theorizes that the severity of the sanctions and the emphasis they place upon state outcomes, among other factors, determine how much the sanctions will distort state proceedings. The article then substantiates the theory with five in-depth case studies of federal sanctions: deporting criminal aliens, barring domestic abusers from possessing firearms, and disqualifying drug offenders from receiving federal welfare, public housing, and student financial aid. It suggests ways Congress, states, and the Judiciary might respond to ameliorate the concerns raised herein. It concludes by demonstrating that the analytical framework can be applied more broadly to sanctions imposed and determinations made by any party, including a private citizen.


 
The Role of Folk Psychology Joshua Knobe (Princeton) has posted The Concept of Intentional Action: A Case Study in the Uses of Folk Psychology:
    It is widely believed that the primary function of folk psychology lies in the prediction, explanation and control of behavior. A question arises, however, as to whether folk psychology has also been shaped in fundamental ways by the various other roles it plays in people’s lives. Here I approach that question by considering one particular aspect of folk psychology — the distinction between intentional and unintentional behaviors. The aim is to determine whether this distinction is best understood as a tool used in prediction, explanation and control or whether it has been shaped in fundamental ways by some other aspect of its use.


 
Friday Calendar


Thursday, October 21, 2004
 
Event Announcement: Volokh at Stanford
    The Center for Internet and Socienty (CIS) and The Stanford Law and Technology Association (SLATA) Lunchtime Speaker Series Present: Crime-Facilitating Speech with Eugene Volokh Monday October 25, 2004 12:30 - 1:30 p.m. Room 180 Free and Open to all! Lunch Served Paladin Press publishes a contract murder manual. A Web site operator is sued for linking to copyrighted material, or describing an algorithm for breaking copy protection. A Web page operator is prosecuted for posting bombmaking information. A computer programmer is sued or prosecuted for publicizing holes in a security system. A political activist group is sued for publishing the names and addresses of abortion providers, boycott violators, or police officers. The government issues a secret subpoena under the Patriot Act. All these cases, and many more, turn out to be special cases of a general problem: How should First Amendment law treat "crime-facilitating speech," defined as (1) any communication that, (2) intentionally or not, (3) conveys information that (4) makes it easier or safer for some listeners or readers to (a) commit crimes, torts, acts of war, or suicide, or (b) to get away with committing such acts? Surprisingly, scholars have not focused much on these broad questions, and the Supreme Court has never squarely confronted them either in their general form or in their specific applications. This talk, based on an article that will be published early next year in the Stanford Law Review, will discuss the issue, and suggest which proposals for dealing with it seem promising and which seem inadequate. The article can be found here: http://cyberlaw.stanford.edu/events/archives/eugene_volokh.shtml About the Speaker: Eugene Volokh is visiting at Stanford Law School from UCLA, where he teaches free speech law, copyright law, the law of government and religion, and a seminar on firearms regulation policy. Before coming to UCLA, he clerked for Justice Sandra Day O'Connor on the U.S. Supreme Court and for Judge Alex Kozinski on the U.S. Court of Appeals for the Ninth Circuit. Volokh also worked for 12 years as a computer programmer, and is still partner in a small software company which sells HP 3000 software that he wrote. He is the author of nearly 50 law review articles and over 70 op-eds on a wide range of topics, but mostly on First Amendment law, and of textbooks on the First Amendment and on Academic Legal Writing. He is the founder and coauthor of The Volokh Conspiracy, a Weblog that gets about 10,000 unique visitors per weekday.


 
Thursday Calendar
    Boston University, School of Law: Mike Meurer.
    Oxford Public International Law Discussion Group: Chris Sidoti, The Implementation of International Human Rights Standards.
    Oxford Financial Law Discussion Group: Colin Mayer, The Evolution of Law and Finance in Germany and the UK.


 
Welcome to the Blogosphere . . . . . . to Political Arguments, a blog that focuses on political theory. Alfredo Perez writes:
    We are mostly political theory grad students, but one of [us] is working on constitutional issues and there are also a couple of law students too. Legal Theory Blog readers might be interested.
Check it out!


 
Call for Papers: The First Decade of Cyberspace Law
    CALL FOR PAPERS THE TENTH ANNIVERSARY OF CYBERSECURITIES LAW - LOOKING AT THE NEXT DECADE The University of Toledo College of Law Cybersecurities Law Institute and the Stranahan National Issues Forum are sponsoring a conference on April 8, 2005 to mark the 10th anniversary of cybersecurities law. The year 1995 can be seen as the birthday of cybersecurities law. In that year the SEC issued its first Release on use of electronic media for delivery of documents to investors. Also in that year, the phase-in of mandatory EDGAR filing by registrants was almost complete. TOPICS: At this conference, participants will look at what we can expect in the next decade. The Conference will focus on the full range of securities law issues that have been impacted by Internet technology. These include, but are not limited to: - delivery of SEC disclosure documents online; - online market manipulation and securities fraud; - the Internet in corporate governance; - restructuring of securities markets in an electronic age; - the role of securities intermediaries in an electronic age; - the EDGAR system; - informal corporate disclosures online; - online shareholder voting and annual meetings; - restructuring of the 1933 Act offering process to accommodate Internet offers; - impact of the Internet on the investment banking industry; - the mutual fund industry in an online environment; - broker-dealers online and their regulation; - the fixed income market in an electronic age; - Sarbanes-Oxley and the Internet; - the impact of the Internet on SEC rulemaking procedures; - blue sky laws in an electronic age; - jurisdictional issues in a world with the Web; - privacy for online investors; - e-mail and instant messaging in the securities industry; - regulating online investment advice; - the First Amendment and cybersecurities regulation; - tender offers and proxy fights online. Papers presented at the Conference on April 8 will be published in the University of Toledo Law Review. Papers will be due in final form for publication on July 1, 2005. We seek papers from legal scholars, scholars in the related fields (such as economics and business), government officials, and from members of industry involved in cybersecurities developments. New scholars writing for the first time in this field, as well as established scholars, are encouraged to submit proposals. The conference will be held at the University of Toledo College of Law on April 8, 2005. All transportation and hotel expenses will be paid for those who are chosen to present papers. PAPER SUBMISSIONS: Proposals should consist of a statement of up to 300 words describing your topic. Also please include your name, address, phone number, e-mail address and a brief resume. Proposals will be accepted on a rolling basis. Send proposals to: CONTACT: Prof. Howard Friedman preferably by e-mail at: Email: MAILTO:howard.friedman@utoledo.edu Or by mail: Postal: University of Toledo College of Law 2801 W. Bancroft St. Toledo, OH 43606 If you have questions, pleas contact: CONTACT: Prof. Friedman Email: MAILTO:howard.friedman@utoledo.edu Tel: (419) 530-2911


 
Conference Announcement: Corporate Misbehavior & Social Psychology
    CONFERENCE ANNOUNCEMENT CORPORATE MISBEHAVIOR BY ELITE DECISION-MAKERS: PERSPECTIVES FROM LAW AND SOCIAL PSYCHOLOGY Brooklyn Law School Friday, November 12, 2004 Sponsored By: Brooklyn Law School Center for the Study of Law, Language and Cognition The Alfred P. Sloan Foundation The principal purpose of the conference is to explore ways in which corporate misconduct and scandals result not from the presence of a few "bad apples" among corporate executives and directors, but from systematic and predictable aspects of group behavior and corporate organization. To achieve this purpose, the conference brings together prominent social psychologists and organizational and management specialists to present and to discuss their research findings and theories of group behavior. Corporate law scholars will then, as discussants, comment upon the implications of these findings and research for policy making regarding the regulation of corporations and their governance. The goal of this conference is to find solutions to misconduct of elite corporate decision makers and to stimulate and promote interactions and research between social psychologists and organizational theorists, on the one hand, and corporate scholars, on the other. The conference will thus conclude with a general discussion of avenues of collaboration and joint research for the future. REGISTRATION/FURTHER INFORMATION: Admission is free, but registration is required. To register for the conference, go to: http://www.brooklaw.edu/centers/cognition TOPICS AND SPEAKERS: Corporate Scandals as Problems of Group Behavior Moderator: James Fanto, Brooklyn Law School John M. Darley, Princeton University Linda Trevino and Guoli Chen, Pennsylvania State University Discussant: Daniel Greenwood, University of Utah Corporate Scandals as Problems of Group Identity Moderator: Dana Brakman Reiser, Brooklyn Law School Michael Hogg, University of Queensland and University of California, Santa Barbara Rakesh Khurana and Katharina Pick, Harvard University Discussant: Margaret Blair, Vanderbilt University Possibilities of Reform Moderator: Norman Poser, Brooklyn Law School Dolly Chugh, Mahzarin R. Banaji, and Max H. Bazerman, Harvard University Tom Tyler, New York University Lawrence Mitchell, George Washington University Discussant: Lynne Dallas, University of San Diego Discussion: An Agenda for Future Research? Moderators: James Fanto and Lawrence Solan, Brooklyn Law School


Wednesday, October 20, 2004
 
Wednesday Calendar
    Loyola Marymount, Loyola Law School: Marcy Peek, Assistant Professor of Law, Whittier Law School, “Beyond Contract: Utilizing Restitution to Reach Shadow Offenders & Safeguard Information Privacy”
    Oxford Centre for Criminology: Kathleen Daly, Restorative Justice and Sexual Assault.
    NYU Legal History: Maribel Morey, NYU Law School.


Tuesday, October 19, 2004
 
Stanford Encyclopedia of Philosophy: Game Theory and Ethics Be sure to check out Game Theory and Ethics, a new entry in the Stanford Encyclopedia of Philosophy by Bruno Verbeek and Christopher Morris. Here is a taste:
    Game theory is the systematic study of interdependent rational choice. It may be used to explain, to predict, and to evaluate human behavior in contexts where the outcome of action depends on what several agents choose to do and where their choices depend on what others choose to do. Game theory consequently is relevant to ethics, and it is used in moral and political philosophy in a variety of ways. We shall concentrate on the influence and use of game theory in ethics and those parts of political theory involving norms or principles of justice, ignoring questions about political and legal institutions on the one hand and questions about issues dealing with moral virtues on the other. One can distinguish three distinctive kinds of inquiries in the literature. The first we shall call functionalist: game theory is used to identify the function of morality. It is used to describe the problem(s) that would occur in the absence of morality, and inferences about the remedial or ameliorative function of morality are drawn from this description. The second approach, contractarianism, uses game theory (especially bargaining theory) to formalize social contract theory. This older tradition understands political institutions or norms to be justified to the extent that rational agents would agree to them under suitable conditions. Bargaining theory has been used to establish, first, that there will be agreement in such conditions and, secondly, to predict the outcome of this bargaining process. Third and finally, game theory, especially evolutionary game theory, is used to “recover” many traditional moral norms or practices. In what follows, we shall consider each of these approaches and the results and problems they have encountered. We shall start with some historical background.


 
Bagnoli on Humanitarian Intervention as a Perfect Duty Carla Bagnoli has uploaded Humanitarian Intervention as a Perfect Duty. A Kantian Argument (Nomos, forthcoming). Here is a taste:
    Conclusion: I have attempted to show that in constructing a moral case for humanitarian intervention based on the defense of human rights, we are bound to recognize it as a duty rather than permission, and as a perfect duty rather than an imperfect one—a duty that proceeds from respect for humanity rather than from charity. This qualification implies that the gross violation of human rights calls for intervention and that a state that grossly violates the human rights of its citizens is outlaw and has no right not to be interfered with. To qualify humanitarian intervention as a strict duty does not settle the issue of proper authority, but it encourages us to rethink the ground of proper authority and the institutionalization of moral responsibility. My conviction is that when human rights are at stake, the whole international community must respond, and only an international organization can have the proper authority to do that. How exactly to design such an international institution is something that falls well beyond the scope of competence of a moral philosopher; so I should leave the matter at this point.