PrawfsBlawg

Non-State Law Beyond Enforcement II

With grading finally behind me, I wanted to post again about non-state law "beyond enforcement."   The question I've been exploring is in what ways do various forms of non-state law (such as international law and religious law) function as law even when these forms of law lack the ability to enforce their legal rules?

In my last post, I mentioned a forthcoming book by Chaim Saiman, which conceptualizes Jewish Law as "studied law" as opposed to enforced law.  In making this point, Saiman highlights some Jewish legal doctrines that the Talmud explicitly notes are not meant to be applied in the public square, but simply dissected in the study hall.  In this way, Saiman disaggregates the very concept of Jewish law from the enforcement of Jewish law.

Now there is a tendency to think that religious law - as opposed to other forms of non-state law - is particularly susceptible to manifesting law-like characteristics outside the context of enforcement.  Religious law, at its core, is intended to connect individuals to something outside of this world and so it is not surprising that certain facets of religious law might be directed not to practical this-world enforcement, but to achieving some other-worldly religious value.      

While I think this sentiment is true, over-emphasizing the point would lead us to miss the ways in which other forms of non-state law exhibit law-like features even in the absence of enforcement.  At the symposium I ran a few weeks back on "The Rise of Non-State Law," Harlan Cohen (Georgia) presented a great paper titled ""Precedent, Audience and Authority."  The paper wrangled with the following question: why is it that, even though international law denies international precedent any doctrinal force, precedent is cited constantly as authority in any number of international law fields?

To answer the question, Cohen emphasizes the way in which law - and in particular international law - is a practice with its own (often unspoken) interpretive rules and norms.  On this account, Cohen focuses on how precedent speaks to the members of the international law community - the ways in which using precedent generates legitimacy for international law in the eyes of those within the international law community.  

One of the striking features of Cohen's analysis - at least striking to me - is the persistence of precedent in the eyes of consumers of law even absent an actual doctrinal basis.  It is almost as if, at least in certain legal communities, that law struggles to separate itself from an interpretive method that discounts precedent.  All of this struck me as a bit Dworkinian, capturing another important way in which non-state law can function as law outside the context of enforcement.  Put differently, certain legal systems can be identified as being systems of law not simply based upon the extent to which the law is enforced, but based upon certain methods of interpretation endemic to law.  

In this way, Cohen's notion of international law as a practice parallels Saiman's formulation of Jewish law as studied law.  In both instances, we find important ways in which non-state law functions internally as law based upon the way in which the law is interpreted and analyzed.  On this account, non-state law can function as law irrespective of whether it is enforced.  

Non-State Law Beyond Enforcement

So I've been a bit behind in posting as I slowly drag myself toward the grading finish line (aside: thanks to all my Prawfs' Facebook friends who have been regularly taunted me by noting how long ago they finished grading.  I get it - I'm slow).  But today I wanted to post again about non-state law, focusing on what it might mean to be law even when the law in question is not enforced.

As an example of this dynamic, I've been reading some advanced chapters of Chaim Saiman's forthcoming book Halakhah: The Rabbinic Idea of Law (Princeton U. Press).  One of the key questions Saiman tussles with in the book - and also addressed in his public Gruss Lecture in Talmudic Law - is why there are multiple Jewish legal doctrines which the Talmud expressly states are not intended to be enforced in any circumstance.  As examples, Saiman notes how regarding doctrines like the "rebellious son" and the "rebellious city," the Talmud states the "law never did, nor ever will apply."  In response to questions as to why there exist laws that are not intended to be enforced, the Talmud simply responds "To study and receive reward."

Saiman's book interrogates this response, exploring what it means to have "studied law" as opposed to "enforced law" - and by extension what it means to be unenforced law.  Much of his analysis revolves around contrasting philosophical inquiry and legal inquiry, with the latter funneling the reader into concrete application of core values (in ways that abstract philosophical inquiry often does not) and requiring the reader to inhabit a particular religious world that can more effectively convey principles and values.  

In this way, his project is a quintessential example of how the discursive practice of law - and not merely the enforcement of law - serves a unique legal purpose.  It is the concrete and detailed method of legal analysis the pulls the reader into the legal text - much like a novel pulls the reader into a narrative - that captures a key facet of how Jewish Law functions as law (one hears strong elements of Robert Cover in Saiman's analysis).  Moreover, it also provides important guidance to thinking about the internal elements (as opposed to external manifestations) of law and legal practice - a topic which I hope to explore a bit further in my next post.

Non-State Law and Enforcement

As I mentioned in my last post, I've been doing some thinking about what it means to be non-state law and looking to different types of non-state law - such as international law or religious law - to consider some common dynamics that consistently arise.  

One theme that regularly emerges - and is often discussed - in the context of non-state law is the problem of enforcement.  Put simply, without the enforcement power of a nation-state, non-state law must typically find alternative mechanisms in order to ensure compliance with its rules and norms.  This hurdle has long figured into debates over whether one can properly conceptualize international law as law.

But the focus on enforcement is problematic for a couple of reasons.  First of all, the challenge of enforcement for non-state law is in many ways overstated.  For example, in a 2011 article titled Outcasting: in Domestic and International Law, Oona Hathaway and Scott Shapiro explored this issue, emphasizing - especially in the context of international - how certain forms of nonviolent sanctions, such as denying the disobedient the benefits of social cooperation and membership, can be deployed as a form of non-state law enforcement.  Indeed, the use of outcasting has long been prominent in other areas of non-state law, such as a method to enforce religious law within religious communities.  

There's, of course, much more to be said on the relationship between non-state law and enforcement (something I may explore in a subsequent post).  But too heavy an emphasis on this piece of the non-state law puzzle is problematic for a second reason - it too often obscures other important ways in which non-state law functions as law.  In my next couple of posts what I'd like to do is consider other ways in which various forms of non-state law function as law by focusing more directly on the internal practice of law within the relevant communities.

Rationing Legal Services

In the last few years at both the federal and state level there have been deep cuts to providing legal assistance to the poor.  This only  only makes more pressing and manifest a sad reality: there is and always will be persistent scarcity in the availability of both criminal and civil legal assistance. Given this persistent scarcity, my new article, Rationing Legal Services just published in the peer-reviewed Journal of Legal Analysis, examines how existing Legal Service Providers (LSPs), both civil and criminal, should ration their services when they cannot help everyone.

To illustrate the difficulty these issues involve, consider two types of LSPs, the Public Defender Service and Connecticut Legal Services (CLS), that I discuss in greater depth in the paper. Should the Public Defender Service favor offenders under the age of twenty-five years instead of those older than fifty-five years? Should other public defenders offices with death eligible offenses favor those facing the death penalty over those facing life sentences? Should providers favor clients they think can make actual innocence claims over those who cannot? How should CLS prioritize its civil cases and clients? Should it favor clients with cases better suited for impact litigation over those that fall in the direct service category? Should either institution prioritize those with the most need? Or, should they allocate by lottery?

I begin by looking at how three real-world LSPs currently rationi(PDS, CLS, and the Harvard Legal Aid Bureau). Then, in trying to answer these questions I draw on a developing literature in bioethics on the rationing of medical goods (organ, ICU beds, vaccine doses, etc) and show how the analogy can help us develop better rationing systems. I discuss six possible families of ‘simple’ rationing principles: first-come-first-serve, lottery, priority to the worst-off, age-weighting, best outcomes, and instrumental forms of allocation and the ethical complexities with several variants of each. While I ultimately tip my hand on my views of each of these sub-principles, my primary aim is to enrich the discourse on rationing legal services by showing LSPs and legal scholars that they must make a decision as to each of these issues, even if it is not the decision I would reach.

I also examine places where the analogy potentially breaks down. First, I examine how bringing in dignitary or participatory values complicates the allocation decision, drawing in particular on Jerry Mashaw’s work on Due Process values. Second, I ask whether it makes a difference that, in some cases, individuals who receive legal assistance will end up succeeding in cases where they do not “deserve” to win. I also examine whether the nature of legal services as “adversarial goods”, the allocation of which increases costs for those on the other side of the “v.”, should make a difference. Third, I relax the assumption that funding streams and lawyer satisfaction are independent of the rationing principles selected, and examine how that changes the picture. Finally, I respond to a potential objection that I have not left sufficient room for LSP institutional self-definition.

The end of the paper entitled “Some Realism about Rationing”, takes a step back to look for the sweet spot where theory meets practice. I use the foregoing analysis to recommend eight very tangible steps LSPs might take, within their administrability constraints, to implement more ethical rationing.

While this paper is now done I am hoping to do significant further work on these issues and possibly pursue a book project on it, so comments on or offline are very welcome. I am also collaborating with my wonderful and indefatigable colleague Jim Greiner and a colleague in the LSP world to do further work concerning experimentation in the delivery of legal services and the research ethics and research design issues it raises.

- I. Glenn Cohen

“Why is a big gift from the federal government a matter of coercion? ... It’s just a boatload of federal money for you to take and spend on poor people’s health care” or the mysterious coercion theory in the ACA case

At oral argument in NFIB v. Sebelius, the Affordable Care Act (ACA) case, Justice Kagan asked Paul Clement:

“Why is a big gift from the federal government a matter of coercion? It’s just a boatload of federal money for you to take and spend on poor people’s health care. It doesn’t sound coercive to me, I have to tell you.”

The exchange is all the more curious because, despite her scepticism, Kagan signed on to the Court’s holding that the Medicaid expansion in the ACA was coercive, as did all but two of the Justices (Ginsburg and Sotomayor). What happened? I try to answer this question, suggesting the court misunderstood what makes an offer coercive, in this article published as a part of a symposium on philosophical analysis of the decision by the peer-reviewed journal Ethical Perspectives.

First a little bit of background since some readers may not be as familiar with the Medicaid expansion part of the ACA and Sebelius: The ACA purported to expand the scope of Medicaid and increase the number of individuals the States must cover, most importantly by requiring States to provide Medicaid coverage to adults with incomes up to 133 percent of the federal poverty level. At the time the ACA was passed, most States covered adults with children only if their income was much lower, and did not cover childless adults. Under the ACA reforms, the federal government would have increased federal funding to cover the States’ costs for several years in the future, with States picking up only a small part of the tab. However, a State that did not comply with the new ACA coverage requirements could lose not only the federal funding for the expansion, but all of its Medicaid funding.

In Sebelius, for the first time in its history, the Court found such unconstitutional ‘compulsion’ in the deal offered to States in order to expand Medicaid under the ACA. In finding the Medicaid expansion unconstitutional, the Court contrasted the ACA case with the facts of the Dole case, wherein Congress “had threatened to withhold five percent of a State’s federal highway funds if the State did not raise its drinking age to 21.”In discussing Dole, the Sebelius Court determined that “that the inducement was not impermissibly coercive, because Congress was offering only ‘relatively mild encouragement to the States’,” and the Court noted that it was “less than half of one percent of South Dakota’s budget at the time” such that “[w]hether to accept the drinking age change ‘remain[ed] the prerogative of the States not merely in theory but in fact’.”

By contrast, when evaluating the Medicare expansion under the ACA, the Sebelius Court held that the

financial “inducement” Congress has chosen is much more than “rela- tively mild encouragement” – it is a gun to the head [...] A State that opts out of the Affordable Care Act’s expansion in health care cover- age thus stands to lose not merely “a relatively small percentage” of its existing Medicaid funding, but all of it. Medicaid spending accounts for over 20 percent of the average State’s total budget, with federal funds covering 50 to 83 percent of those costs [...] The threatened loss of over 10 percent of a State’s overall budget, in contrast [to Dole], is economic dragooning that leaves the States with no real option but to acquiesce in the Medicaid expansion.

I argue that this analysis is fundamentally misguided, and (if I may say so) I have some fun doing it! As I summarize the argument structure: If the new terms offered by the Medicaid expansion were not coercive, the old terms were not coercive, and the change in terms was not coercive, I find it hard to understand how seven Supreme Court Justices could have concluded that coercion was afoot; the only plausible explanation is that these seven Justices in Sebelius fundamentally misunderstood coercion. This misunderstanding becomes only more manifest when we ask exactly ‘who’ has been coerced, and see the way in which personifying the States as answer obfuscates rather than clarifies matters.

The paper is out, but I will be doing a book chapter adapting it so comments still very much approeciated.

- I. Glenn Cohen

Non-State Law

Back in 2011, I attended a symposium on Legal Positivism in International Legal Theory: Hart’s Legacy.  The conference was a bit outside the range of topics I usually write about (e.g. religion meets private law).  But presenting at the symposium drove home the point to me that international law and religious law scholars are contending with similar inquiries, many of which flow from one core question: what does it means to be non-state law?   

When I talk about non-state law, I'm thinking collectively of various forms of law - from religious law to transnational law to international law.  Of course, thinking about these forms of law outside of the law of the nation-state has long been at the center of the legal pluralism project.  But what is often missed is that lessons from international law are  instructive for religious law - and vice versa.

This often overlooked opportunity was largely the motivation behind the "Rise of Non-State Law" symposium I organized last week.  To my mind, the papers, presentations and discussion at the symposium were extremely productive and got me thinking even more about the overlap between various forms of non-state law.  In my next couple of posts, I'm hope to say a little bit about non-state law, building on some of the insights from the symposium. 

Great to be back and greetings from Washington!

It's great to be back at Prawfs for another guest-blogging stint.   I'm looking forward to spending the month talking a bit about some of my favorite topics such as co-religionist commerce, religious arbitration, and non-state law.  

My growing interest in non-state law largely traces to my sense that conversations in both international law, transnational law, and religious law share much in common (e.g. discussions of what is law, can there be law without enforcement, how should the state treat competing legal norms etc.).  To further this interest, I'm running a symposium in Washington, D.C. today sponsored by Pepperdine Law School and the American Society for International Law titled "The Rise of Non-State Law."  The symposium is part of a series run by ASIL's International Legal Theory Interest Group and the papers from today's symposium will eventually become part of a volume published by Cambridge University Press.  

I must say the papers submitted (and being presented) by the participants are truly fantastic and have led today to some great conversation and debate.  For those who share the interest, here's the full schedule for the day:

Symposium Schedule

8:30 a.m. Breakfast (Tillar House)

8:45 Introduction (Michael Helfand (Pepperdine), John Linarelli (Swansea))

9:00 Panel 1—Global Legal Pluralism: Trends and Challenges

• Moderator: John Linarelli (Swansea)
• Panelists: 
  • Paul Schiff Berman (George Washington)
  • Ralf Michaels (Duke)
  • Peer Zumbansen (Osgoode)

10:45 Coffee

11:00  Panel 2—Non-State Law and Non-State Institutions

• Moderator: Donald Earl Childress III (Pepperdine)
• Panelists: 
  • Oren Perez (Bar-Ilan)
  • Sally Merry (NYU)
  • Harlan Cohen (Georgia)
  • Helen Quane (Swansea)

1:00 p.m. Lunch

2:00 Panel 3—The Role of Religion and Culture in Non-State Law

• Moderator: Mortimer Sellers (Baltimore)
• Panelists:
  • Nomi Stolzenberg (USC)
  • Joel Nichols (St. Thomas)
  • Clark Lombardi (Washington)

3:45 Coffee

4:00 Open Forum

5:00 Closing Comments

What Mainstream Criminal Procedure Overlooks (and Why)

In the words of a friend of mine, who worked for years at a very prominent public interest law firm in the South, "everyone is overlooking everything."  By this, I mean that the adjudication portion of the criminal procedure syllabus for the most part leaves students with no idea what goes in the sorts of low-level criminal courts so nicely described by Amy Bach in her book "Ordinary Injustice," which might be thought of as a journalistic follow-up to Malcolm Feeley's pathbreaking work, "The Punishment is the Process." 

I'm going to hazard the thesis that the reason we have no idea what goes on in the courts that process the bulk of our criminal cases is an "elite" focus on doctrine.  First, these courts are largely invisible to "doctrine."  They do not produce many opinions, their other operations are hard to access from the comfort of a law-school office or library, and so there is a paucity of materials readily at hand produced by the courts. Because of our reliance on "well reasoned opinions" (or at least pedagogically-useful-badly-reasoned ones), the gold standard for teaching criminal procedure is either the elite federal court system, or the differently elite state appellate court system, which do produce opinions that are readily accessible from a computer or library. 

Second, state trial and (especially) municipal courts are often bereft of "doctrine."  There is little doctrine in municipal court, where lawyering depends upon interpersonal interactions between members of the court "workgroup" (as the sociologists put it).  In these courts, appeals to doctrine may actually be counterproductive: a nuclear option utilized only when workgroup relationships break down or do not yet exist. 

Third, in order to access the operation of these low-level courts we depend upon either anecdotal data or social science data.  The first is unreliable but emphasizes "practice-based knowledge" of the sort that is currently popular; the latter is much more reliable and useful, but emphasizes a discipline that is generally held in disregard by law faculties in the United States (but not, intriguingly, in Europe or the British Commonwealth countries). 

Fourth and finally, (as Alexandra Natapoff compellingly argues) we tend to prioritize felonies over misdemeanors, on some scale of seriousness, despite the fact that for many individuals the impact of a misdemeanor may be as severe as some felonies.  Accordingly, we have little or no knowledge about what happens to the 13 million people who cycle through the misdemeanor system and who are afforded a rough and ready sort of justice. 

While I don't think this is the whole story, I think it is a start.  [I do think that another part of the story is who is writing the scholarship: primarily scholars employed in clinical programs, low-level judges, and criminologists and sociologists working through the data.  My sense—though anecdotal—is that there is a little bit of snobbery about the producers of this scholarship, though I’d be happy to be wrong about that.  I’ll discuss this part of politics of scholarly production and recognition in a subsequent post.]

Problem-solving courts afford one window into this type of court, albeit a specialized version of the system.  What they reveal is a system of justice that is marginal, political, and administrative, dominated by the judge as much as the prosecutor, and in which the Sixth Amendment notion of rights to counsel and adversarial testing are largely absent.  Furthermore, the ideal of an administrative system of justice based on legal-rational decision-making largely absent: the decisions are made through a mixture of conflict and collaboration that is often actively non-bureaucratic (as Feeley first argued). 

Over the next few days I’ll engage a little with some of the great scholarship out there that has yet to make its way into the traditional course.  But one central point worth making is that the focus on low-level criminal courts, given the nature of the process (non-doctrinal) and the sort of issues raised is—if it is to be descriptively accurate and normatively productive—must be both inter-disciplinary and practice-oriented.  The sort of interdisciplinarity I have in mind looks at how practice happens on the ground, and how political institutions, like courts, operate.  One nice example of the latter is Lisa Miller’s book, The Perils of Federalism, which looks at crime, politics, and criminal justice at the community level in Philadelphia.

It ought to be the sort of thing that the various theories of punishment—sociological, criminological and philosophical—attend to.  Often, however, these are top-down theories, primarily concerned with the policies (actuarialism, control, risk) and officials (legislators, perhaps prosecutors, appellate judges) that are perceived as having wide political influence over the criminal justice system: but certainly not low-level judges.  What I am proposing, then, is a bottom-up look at the criminal justice system for the sorts of institutional resistances to legislation that (as criminologist Pat O’Malley argues) are often invisible from the top down perspective of governance.   Problem-solving courts offer a neat example of this sort of institution.  

ost Book Club: Justifying IP -- Putting the Horse Before Descartes (Response to Duffy)

In this, my final response to the many interesting posts in my book, I want to traverse some comments that John Duffy made. To the other authors of posts, especially those who wrote reactions to my responses -- we will have to continue offline. I have taken too much space already. And the many readers of Prawfsblawg who care nothing for IP are I am sure tired of all this.

I am going to skip over the blush-inducing praise in John's post, and get right to his main point. He says:

" [I]f we are frustrated with the complexities of economic theories and are searching for a more solid foundation for justifying the rules of intellectual property, is Kant (or Locke or Rawls or Nozick) really going to help lead us out of the wilderness?"

John says no. He says further that just as Descartes' doubts drove him to embrace foundations that were thoroughly unhelpful when it came to elucidating actual physical reality, such as planetary motion, so my doubt-induced search for solid foundations will lead nowhere (at best), and maybe to some very bad places (at worst).

This argument may be seen to resolve to a simple point, one often made in legal theory circles: "It takes a theory to beat a theory." (Lawrence Solum has an excellent entry on this topic in his Legal Theory Lexicon, posted on his Legal Theory Blog some time back.) The idea here is that utilitarian theory is a true theory, because it is capable of proof or refutation and because it guides inquiry in ways that could lead to better predictions about the real world. By this criterion, deontic theories are not real theories because they cannot be either proven or refuted. Einstein's famous quip comes to mind; after a presentation by another scientist, Einstein supposedly said "Well, he wasn't right. But what's worse is, he wasn't even wrong."

My response starts with some stark facts. We do not know whether IP law is net social welfare positive. Yet many of us feel strongly that this body of law, this social and legal institution, has a place in a well-functioning society. Now ,we can say the data are not all in yet, but we nevertheless should maintain our IP system on the hope that someday we will have adequate data to justify it. The problem with this approach is, where does that leave us in the interim? We could say that we will adhere to utilitarian theory because it stands the best chance of justifying our field at some future date -- when adequate data are in hand. But meanwhile, what is our status? We are adhering, we say, to a theory that may someday prove true. By its own criteria it is not true today, not to the level of certainty we require of it (and that it in some sense requires of itself.) But because it will be "more true" than other theories on that magic day when convincing data finally arrive, we should stick to it.

My approach was to turn this all upside-down, I started with the fact that the data are not adequate at this time. And I admitted that I nevertheless felt strongly that IP makes sense as a field; that it seems warranted and even necessary as a social institition. So it was on account of these facts that I began my search for a better theoretical foundation for IP law.

If you have followed me so far, you will not be surprised when I say that for me, Locke, Kant and Rawls better account for the facts as I find them than other theries -- including utilitarianism. Deontic considerations explain, to me at least, why we have an IP system in the absence of convincing empirical evidence regarding net social welfare. Put simply: We have IP, regardless of its (proven) effect on social welfare -- so maybe (I said to myself) *it's not ultimately about social welfare*.

This is the sense in which, to me, deontic theory provides a "better" theory of IP law. It fits the facts in hand today, including the inconvenient fact of the absence of facts. Of course, we may learn in years to come that the utilitarian case can be made convincingly. I explicitly provide for this in JIP, when I say that there is "room at the bottom," at the foundational level, for different ultimate foundations and even new ultimate foundations. It's just that for me, given the current data, I cannot today make that case convincingly. And it would be a strange empirically-based theory that asks me to ignore this key piece of factual information in adopting foundations for the field. To those who say deontic theories cannot be either proven or disproven, I offer the aforementioned facts, and say in effect that an amalgam of deontic theory does a better job explaining why we have IP law than other theories. And therefore that it is in this sense "more true" than utilitarian theory. Again, it fits the facts that (1) we do not have adequate data about net social welfare; and (2) we nevertheless feel IP is an important social institution in our society and perhaps any society that claims to believe in individual autonomy, rewards for deserving effort, and basic fairness.

One final point: to connect Kant with Hegel with Marx, as John does, is a legitimate move philosophically. But I have to add that for many interpreters of Marx, he is the ultimate utilitarian. What is materialism, as in Marxist historical materialism, but a system that makes radically egalitarian economic outcomes the paramount concern of the state? The famous suppression of individual differences and individual rights under much of applied Marxist theory represents the full working out of the utilitarian program under which all individuals can be reduced to their economic needs, and all government can be reduced to a mechanistic system for meeting those needs (as equally as possible)? If we are going to worry about where our preferred theories might lead if they get into the wrong hands, I'll take Locke and Kant and Rawls any day. In at least one form, radical utilitarian-materialism has already caused enough trouble.

This is hardly all there is to say, but it is all I have time to say. So I will keep plodding along, like a steady plow horse, trying not only to sort out the foundational issues, but also to engage in policy discussion and doctrinal analysis. And with this image I close, having once again put the (plow) horse before Descartes in the world of IP theory.

 

 

Book Club: Even More on Midlevel Principles in IP Law - Response to Bracha

In a previous post I explained the concept of midlevel principles in IP law. In this post I respond to a couple of detailed points made in a very insightful post on this topic by Oren Bracha. Oren has a number of interesting things to say, but his critique has two main points: (1) the conservative bias of midlevel principles; and (2) the fuzzy nature of midlevel principles, a product of their origin in a (hypothetical) consensus-building procedure.

(1) The conservative bias: I think there are two senses of "conservative." In my view, what are conserved are meta-themes that derive from but transcend specific practices. These themes do not uniformly point to results that are "conservative" in the other sense -- tending to preserve the status quo; continuing with trends currently in place. Let me illustrate with two specific examples. When Wendy Gordon introduced the idea of "fair use as market failure," she tied together a number of emerging themes in copyright law and connected them with a large body of thought (including caselaw) that came before. But her ideas -- based largely on what I would call the efficiency principle, though surely infused also with considerations of proportionality, nonremoval (public domain), and perhaps even dignity -- were not conservative with respect to outcomes. In fact they created a revolution in consumer or user rights, by shifting the focus from the copyright owner's interests, the amount copied, etc., to higher-level issues such as transaction costs and the nature of markets for IP-protected works. 

A second example is eBay. The majority opinion, based on traditional equity doctrine (as codified in the Patent Act), was conservative in the sense that it deployed well-known rules. The Kennedy concurrence had a richer policy discussion, which centered (in my view) on the proportionality principle. The basic idea was that sometimes the automatic injunction rule gives patent owners "undue leverage" in negotiations; and that equity was flexible enough to take this into account. I see this as the embodiment of a very general principle, one that finds expression in many areas of IP law, from the rules of patent scope (enablement, written description, claim interpretation, etc.) to substantial similarity in copyright law, and so on. Again the discussion "conserved" on meta-principles by deploying a familiar theme from the body of IP law. But the outcome was not therefore necessarily conservative in the sense of preserving the staus quo. The status quo heading into the case was the automatic injunction rule. And that was rejected in favor of a more flexible approach.

(2) The fuzz factor: Oren's second point is that the midlevel principles just do not seem to have the requisite level of granularity to resolve difficult problems in IP policy. This leads him to conclude that the only way to gain true resolution is to engage each other at the (admittedly contentious) level of our foundaional commitments.

Here I would advert to the master for some guidance. John Rawls, in A Theory of Justice, describes a detailed multi-stage procedure by which fair institutions can be established. In the course of the discussion he says this about the problem of fuzziness:

"[O]n many questions of social and economic policy we must fall back upon a notion of quasi-pure procedural justice: laws and policies are just provided that they lie within the allowed range, and the legislature, in ways authorized by a just constitution, has in fact enacted them. This indeterminacy in the theory of justice is not in itself a defect. It is what we should expect. Justice as fairness will prove a worthwhile theory if it defines the range of justice more in accordance with our considered judgments than do existing theories, and if it singles out with greater sharpness the graver wrongs a society should avoid." (A Theory of Justice, sec. 31, pp. 200-201).

So foundational consensus will inevitably be general. But that does not mean that citizens cannot engage each other in contentious argument at more operational, implemenetation-oriented stages. The way I see things, the midlevel principles are expansive enough to cut through the generality required to agree on them. (Note that this pluralistic sensibility is a product not of the early Rawls of A Theory of Justice but of the later Rawls of Political Liberalism.) These principles admit of sharper disagreement and a deeper level of engagement than Oren seems to believe. Perhaps they require greater elaboration than my brief treatment made possible. But they are not in my view fatally vague as a vocabulary of policy debate.

I should add one additional point. Oren notes my emphasis in JIP on the complete independence of foundational commitments and midlevel principles. I have begun to rethink that a bit, based in large part on a thoughtful critique of this aspect of the book by David H. Blankfein-Tabachnick of Penn State Law School. His critique and my response are both still in process and are forthcoming in the California Law Review, so I do not want to say too much. But suffice it to say that I have rethought the "complete independence" thesis a little bit. I can see that in a few rare instances, where policy issues are in equipoise, resort to one's ultimate commitments -- the foundations of the field as one sees them -- may be useful and even necessary. So, to close with Oren's wonderful imagery, after the flash of white light on the road to Damascus, the rider surely does remount and head on down the road. But he or she is changed utterly at some level -- and that change is bound to peek out, now and then, in the clinch.

Book Club: Justifying IP -- Midlevel Principles: Response to Jonathan Masur

In this post I respond to some comments on my book (abbreviated "JIP") by Jonathan Masur. It is not surprising to me that Jonathan takes aim at Part II of JIP, in which I introduce and explain what I call the midlevel principles of IP law. It seems whenever the book is addressed in depth (most notably at a full-day conference at Notre Dame organized by Mark McKenna; and a number of discussions at a conference on the Philosophy of IP rights at San Diego convened by Larry Alexander), this is the topic that seems to stir up the greatest interest.

Before I turn to Jonathan's specific points, let me say a word about what I mean by midlevel principles. Basically, these are meta-themes in IP law that mediate between pluralist foundational commitments and detailed doctrines and case outcomes. They are meant to serve as the equivalent of shared basic commitments in the “public” and “political” sphere as described by Rawls in his book Political Liberalism (2005). That is, midlevel principles supply a shared language, a set of conceptual categories, that are consistent with multiple diverse foundational commitments. They are more abstract, operate at a higher level, than specific doctrines and case outcomes; but they are pitched in a language that is distinct from that of foundational commitments. They create, as I say in JIP, a shared public space in which abstract (non-case-specific) policy discussions can take place. The payoff is this: a committed Kantian can conduct a sophisticated policy argument with a firm believer in the Talmudic (or Muslim, or utilitarian) basis of IP law about the proper scope of fair use in copyright, or the proper length of the term for patent protection, or what should be required to prove that a trademark has been abandoned. The argument can proceed without the Muslim needing to convert the Kantian or utilitarian to a religious worldview, and without the Kantian talking others out of the view that religious texts provide a set of workable guiding principles for right behavior. Diverse people can – and indeed, often do! – speak in terms of an appropriate public domain (i.e., the nonremoval principle); a fair reward for creators (the proportionality principle); the importance of moral rights (the dignity principle); or the cheapest way to offer legal protection at the lowest net social cost (the efficiency principle). All without the conversation devolving into fights over ultimate commitments.

Jonathan Masur recognizes the versatility of the midlevel principles. And he acknowledges that although these principles are fully consistent with utilitarian foundations, the IP system as a whole has failed to fully implement the policies called for by those with a thorough commitment to utilitarian foundations. As he puts it:

"The problem, as Merges correctly describes it, is that IP doctrine, as implemented by courts and other parties, has failed to advance the economic aims that it set out. This is an empirical judgment, and quite possibly a correct one."

As Masur notes, I have come to believe that utilitarian foundations are inadequate in the IP field. The data required by a comprehensive utilitarian perspective are simply not in evidence in this field -- at least not yet. Put simply, I do not think we can say with the requisite degree of certainty that IP systems create net positive social welfare. Yet I still had the intuition that IP rights are a valuable social institution. Which is what led me to search for alternate foundations. Hence Part I of JIP, in which I describe foundational commitments growing out of the ideas of Locke, Kant and Rawls. These deontic conceptions provide a better set of foundational commitments for the IP field, in my view. Others of course disagree, which is why the midlevel principles are so important as a shared policy language for those with divergent foundational commitments.

Masur notes the lack of empirical support for utilitarian IP foundations, but says in effect that deontic foundations do not provide much of an alternative. As he puts it,

"But what is the comparable standard by which a deontic conception of IP is to be judged? What would it mean for IP doctrine in practice not to have properly advanced Lockean or Kantian ethics? How could anyone tell? The problem—or, more accurately, the advantage for Kant and Locke—is that those approaches are purely theoretical and do not generate testable predictions. Economic theory has foundered on a set of tests that cannot be applied to the alternatives Merges proposes."

The way I see things, Jonathan has conflated two separate issues here. The first is whether IP can be justified at all. The second is how well any particular IP system is performing, given that there is a basic consensus that there should be such a system in the first place. The first issue is where foundational commitments come in. The second is operational; it is a question more of "how" or "how well" as opposed to "whether." (I address this in more detail in an article forthcoming in the San Diego Law Review, "The Relationship Between Foundations and Principles in IP Law.")

Seen in this light, there is no need for empirical tests to prove the viability of Lockean, Kantian, and/or Rawlsian foundations for the field. The only question that needs to be answered is whether a body of IP law can be envisioned that is consistent with these systems of philosophical thought. If so, the foundational question has been successfully answered. Then it's on to the operational level -- designing actual institutions and rules to implement a workable IP system. In my view this is where the efficiency principle comes into play: one important design principle for IP law is and should be getting from our IP system the greatest social benefit at the lowest net cost (as best we can estimate these values). Efficiency is an operational (midlevel) principle, in other words. It does not (and in my view cannot) justify the existence of the field. But it can serve us well in crafting the detailed operations of the field -- once we decide, consistent with ultimate commitments, that it makes sense to have such a field in the first place.

Merges on Gordon on Rawls and IP

Wendy Gordon, as might be expected, gets right to the heart of the most difficult issues in her post on the Rawls chapter in my book, Justifying Intellectual Property ("JIP"). In this post I want to give some quick context and then point the interested reader to the fuller discussion that addresses the issues Wendy raises. Chapter 4 of JIP is on "Distributive Justice and IP Rights." It comes after an introductory chapter that lays out the architecture of the book, and then two chapters on foundational figures in the philosophy of property rights, Locke and Kant. While Locke and Kant are both sophisticated enough to include "other-regarding" features in their accounts of property, I wanted to include a more thorough, systematic, and comprehensive account of distributive justice issues in my discussion of IP rights. So naturally I turned to Rawls. Rawls himself, especially the early Rawls of A Theory of Justice, is fairly lukewarm on private property. But there is a good bit of subsequent literature that extends and adapts Rawls's framework in various ways that reflect more contemporary concerns. And of course since the 1970s there has been a huge upswelling of interest in property theory and philosophical discussions of private property. (Think Jeremy Waldron, The Right to Private Property; Stephen Munzer, A Theory of Property; Richard Epstein's Takings book and subsequent writings; Henry Smith, Lee Ann Fenell, Carol Rose, Greg Alexander, etc. etc. And in IP law, Peggy Radin, Wendy herself (indispensable on Locke) and others.) So it was in this spirit of updating and adapting that I tried to defend IP rights as consistent with a comprehensive Rawlsian account of distributive justice. I began, reasonably enough I think, with Rawls' two principles of justice. Principle 1 says that all persons have an equal right to the most extensive system of basic liberties that is consistent with the liberty of others (the "liberty principle"). The balancing of individual ownership with the interests and rights of the community is a major theme of contemporary property theory -- arguably *the* major theme. So it was relatively easy to draw on the property rights literature for a defense of property (and particularly IP rights) under the liberty principle. I will spare you the details here; but I would add that for me Kant's emphasis on property as a way to facilitate personal autonomy factors heavily into my description of IP as a true, basic individual right. Rawls aficionados will recognize that I could have stopped there. Under his "lexical priority" approach, if a right is demanded by the liberty principle it need not be justified in terms of the second principle. Because I was not sure everyone would buy my defense of IP under the first principle, and more importantly because I could not resist the challenge, I also tried to defend IP under Rawls's second principle. The second principle is the famous "difference principle." A deviation from strictly equal resource allocation can be justified only if it results in the greatest benefit to the least advantaged members of society. My argument here is based on the fact that industries reliant on IP rights contribute significantly to the quality of life of the poorest members of society. Popular culture (including much TV programming); technological improvements such as air conditioning; low-cost long-distance communication and transportation (especially important for immigrants); and cost-saving innovations of all kinds (mobile phones, hypertension medicines, etc.) are, the data show, highly valued by low-income members of our society. These data are surely what Wendy Gordon has in mind when she says that I have not persuasively defended IP under Rawls's second principle. She makes a good point. IP rights stand behind a number of personal fortunes that in themselves represent wildly extravagant deviations from a pure egalitarian distribution (think Bill Cosby, Bill Gates, Jay-Z, George Lucas, Oprah Winfrey). Consumer enjoyment, particularly for the least advantaged, must be factored into a discussion of these fortunes and the institutions (including IP rights) that make them possible. I would note, incidentally, an interesting feature of my list of IP-backed fortunes. Did you notice that 3 of the 5 people mentioned are African Americans? While not strictly relevant to the second principle, I think it is interesting that so many prominent fortunes in the African American community have been enabled by IP rights. This may not be justifiable unless the poorest of our citizens somehow benefit from the conditions that make these fortunes possible, but it is surely an interesting point from the general perspective of distributional concerns in our socio-economic system. (Incidentally, Justin Hughes and I have undertaken some joint work to pursue this idea in more depth). Nevertheless, as I acknowledge in JIP, what I provide is really not much more than a sketch of a full-blown defense of IP under the difference principle. A fuller defense would have to accept the higher marginal prices brought about by IP, and balance these against the consumer surplus created even for the poorest members of society by IP-based entertainment and technology products. My defense gestures in this direction but falls far short of being truly comprehensive. On the other hand, at least I have tried to integrate a comprehensive account of distributive justice into the discussion of IP rights. It may be less than a full feast. But perhaps it's also more than chopped liver.

Score 1 for Quants, but Score 5 for Pollsters

There's been a lot of talk after the election about how one big winner (after Obama, I imagine) is Nate Silver, of the FiveThirtyEight blog. He had come under fire in the days/weeks leading up to the election for his refusal to call the race a "toss up" even when Obama had only a narrow lead in national polls. He even prompted a couple of posts here (in his defense). Turns out that Silver called the election right - all fifty states- down to Florida being a virtual tie.

But that's old news. I want to focus on something that may be as, or even more, important. The underlying polling. We take it for granted that the pollsters did the right thing, but their methodology, too, was under attack. Even now, there are people - quants, even - who were shocked that Romney lost because their methodology going in to the election was just plain wrong.

So, that's where I want to focus this post after the jump - not just on "math" but on principled methodology.

It's easy to take the pollster methodology for granted. After all, they've been doing it for many, many years. That, plus the methodology is mostly transparent, and past polls can be measured against outcomes. Taking all of this methodology information into account is where Silver bettered his peers who simply "averaged" polls (and how Silver accurately forecasted a winner with some confidence months ago). Everybody was doing the math, but unless that math incorporated quality methodology in a reasonable way, the results suffered. 

It didn't have to be that way, though. As Silver himself noted in a final pre-election post: 

As any poker player knows, those 8 percent chances [of Romney winning] do come up once in a while. If it happens this year, then a lot of polling firms will have to re-examine their assumptions — and we will have to re-examine ours about how trustworthy the polls are.

This is the point of my title. Yes, Silver got it right, and did some really great work. The pollsters, however, used (for the most part) methodologies with the right assumptions to provide accurate data to reach the right answers. [11/11 addition: Silver just added his listing of poll result accuracy and methodology discussion here.]

The importance of methodology to quantitative analysis is not limited to polling, of course. Legal and economic scholarship is replete with empirical work based on faulty methodology. The numbers add up correctly, but the underlying theory and data collection might be problematic or the conclusions drawn might not be supported by those calculations.

I live in a glass house, so I won't be throwing any stones by giving examples. My primary point, especially for those who are amazed by the math but not so great at it themselves, is that you have to do more than calculate.  You have to have methods, and those methods have to be grounded in sound scientific practice.  Evaluation of someone else's results should demand as much.

A couple reading suggestions and the schedule for the NYU Crim Theory Colloquium

N.B. This post is basically for crimprofs and those interested in crim theory.

Apropos Rick's recent mention that he assigned an old favorite of mine, the Speluncean Explorers, for his first crim law class, I thought I'd share some (self-serving) recommendations, since this week marks the onset for many law schools across the country, and that means  the first criminal law class is here or around the corner for some 1L's.  (After the jump, I also share the schedule for the crim law theory colloquium at NYU this coming year.)

As many crim law profs lament,  first-year criminal law casebooks generally have pretty crummy offerings with respect to the state of the field in punishment theory. (The new 9th edition of Kadish Schulhofer Steiker Barkow, however, is better than most in this respect.) Most casebooks give a little smattering of Kant and Bentham, maybe a gesture to Stephen and for a contemporary flourish, a nod to Jeff Murphy or Michael Moore or Herb Morris. Murphy, Morris, and Moore deserve huge kudos for revivifying the field in the 1970's and since.  Fortunately, the field of punishment theory is very fertile today, and not just with respect to retributive justice.  

For those of you looking to give your students something more meaty and nourishing than Kantian references to fiat iustitia, et pereat mundus, you might want to check out either Michael Cahill's Punishment Pluralism piece or a reasonably short piece of mine, What Might Retributive Justice Be?, a 20-pager or so that tries to give a concise statement of the animating principles and limits of communicative retributivism.  Both pieces, which come from the same book, are the sort that law students and non-specialists should be able to digest without too much complication.  Also, if you're teaching the significance of the presumption of innocence to your 1L's, you might find this oped I did with Eric Miller to be helpful as a fun supplement; it concerns the quiet scandal of punitive release conditions.

Speaking of Cahill (the object of my enduring bromance), Mike and I are continuing to run a crim law theory colloquium for faculty based in NYC at NYU. The goal for this coming year is to workshop papers on and by:

September 10: Re'em Segev (Hebrew U, visiting fellow at NYU); James Stewart (UBC, visiting fellow at NYU)

October 29: Amanda Pustilnik (U Maryland); Joshua Kleinfeld (Northwestern)

November 26: Dan Markel (FSU); Rick Bierschbach and Stephanos Bibas (Cardozo/Penn)

January 28: Rachel Barkow (NYU) and Eric Johnson (Illinois)

February 25: Miriam Baer (BLS) and Michael Cahill (BLS)

March 18: Josh Bowers (UVA) and Michelle Dempsey (Villanova)

April 29: Daryl Brown (UVA) and Larry Alexander (USanDiego)

As you can see, the schedule tries to imperfectly bring together crim theorists of different generations and perspectives. This is going to be the fourth and fifth semesters of these colloquia. Let me know if you'd like to be on our email list for the papers.

Are All Citations Good Citations?

There’s a saying in the public relations field that “all press is good press.” The main premise is that, regardless of positive or negative attention, the ultimate goal is to be in the public eye. Does this same concept extend to legal academia? When our work is cited, but somehow questioned for its accuracy, merit, or value, is that better than not being cited at all?

The Doctrine of Efficient Breach: Faculty/Student Edition

Dan has graciously allowed me to extend my May guest-stint in order for me to explore a couple of topics that I had intended to -- but did not -- cover in May.  I hope these remaining two posts are interesting to readers and do not lead Dan to regret his order granting me late-check out. 

Perhaps the most talked about post on this site from the month of May was Rick’s discussion of a student’s decision to back-out on a commitment to serve as his research assistant.  The student, it seems, secured another opportunity that was more consistent with his or her professional aspirations.  Rick addressed the frustrating position the decision left him in, and also the sufficiency of the manner in which the decision was communicated.  First, I think Rick deserves a lot of credit for sharing his very thoughtful reflections triggered by the significant -- and largely critical -- reaction to his initial post.  I do not want to focus at all the contents of the initial post or the subsequent reflective post.  Rather, what struck me was a comment to the initial post, suggesting that the student’s decision is akin to an efficient breach, and that defenders of the doctrine should have no problem with the student’s decision.

While the analogy isn’t perfect, I think the commenter was on to something.  In both situations, performance was expected and the non-breaching party is compelled to scramble to find someone to take the place of the breaching party.  The breaching party now has an entity that he or she values more and thus social welfare is supposed to be enhanced in this respect, assuming there is some compensation to the non-breaching party. 

As a matter of full disclosure, I have my doubts about the doctrine of efficient breach.  The doctrine was the subject of my first law review article.  In it, I argued that an efficient breach is morally problematic because it degrades contracts, which are an instrument of social cooperation and mutual trust, and are not “efficient” because compensatory damages do not place the non-breaching party in the place he or she occupied in the absence of the breach and because such breaches lead to a discounting of that which is exchanged the market due to the possibility that a contracting party may not perform.  A student’s decision to renege on a commitment to work for a faculty member, to the extent it has any relationship to the doctrine, seems to cut in favor of arguments against the doctrine.  Indeed, an efficient breach is said to work only if the non-breaching party is made “indifferent” to the breach through the receipt of compensation.  But I am not sure that a faculty member could be made truly “indifferent” in this situation.  While an efficient breach is very difficult to find in real-life, a question that I examine in a more recent law review article is whether we, as professors, should be engaged in an active effort to promote the doctrine.  My sense is no, because its theoretical benefits are an almost practical impossibility in real life, and because, on balance, the supposed benefits are outweighed by costs to contracting as a reliable form of social cooperation and by costs that are not compensated for and are thus borne by the non-breaching party. 

I invite readers to explore this link between a decision by a student to refuse to perform an agreed-upon and voluntarily assumed obligation with an efficient breach.  I suspect that, as faculty members, we may have encountered a situation similar to Rick’s and can appreciate how much it would, for lack of a better term, “suck.”  This more accessible and relatable situation may provide us with a helpful lens through which to view and assess the value of an efficient breach in society and the propriety of its open promotion by law faculty.

I hope readers will excuse me for any typos or errors in this post, which was written rather quickly as I am attending the Law and Society conference.  I hope to meet readers attending the conference at the AALS Law & the Social Sciences Section Happy Hour (tonight at Tropics from 4-6pm) and/or the Faculty Lounge-Prawfs Happy Hour (tonight, at the Tapa Bar starting at 9pm and ending as soon as Hilton wisely places us on "double secret probation").

A Coasean Look at Commercial Skipping...

Readers may have seen that DISH has sued the networks for declaratory relief (and was promptly cross-sued) over some new digital video recorder (DVR) functionality. The full set of issues is complex, so I want to focus on a single issue: commercials skipping. The new DVR automatically removes commercials when playing back some recorded programs. Another company tried this many years ago, but was brow-beaten into submission by content owners. Not so for DISH. In this post, I will try to take a look at the dispute from a fresh angle.

Many think that commercial skipping implicates derivative work rights (that is, transformation of a copyrighted work). I don't think so. The content is created separately from the commercials, and different commercials are broadcast in different parts of the country. The whole package is probably a compiliation of several works, but that compilation is unlikely to be registered with the copyright office as a single work. Also, copying the work of only one author in the compilation is just copying of the subset, not creating a derivative work of the whole.

So, if it is not a derivative work, what rights are at stake? I believe that it is the right to copy in the first place in a stored DVR file. This activity is so ubiquitous that we might not think of it as copying, but it is. The Copyright Act says that the content author has the right to decide whether you store a copy on your disk drive, absent some exception.

And there is an exception - namely fair use. In the famous Sony v. Universal Studios case, the Court held that "time shifting" is a fair use by viewers, and thus sellers of the VCR were not helping users infringe. Had the Court held otherwise, the VCR would have been enjoined as an agent of infringement, just like Grokster was.

I realize that this result is hard to imagine, but Sony was 5-4, and the initial vote had been in favor of finding infringement. Folks can debate whether Sony intended to include commercial skipping or not. At the time, remote controls were rare, so skipping a recorded commercial meant getting off the couch. It wasn't much of an issue. Even now, advertisers tolerate the fact that people usually fast forward through commercials, and viewers have always left the TV to go to the bathroom or kitchen (hopefully not at the same time!). 

But commercial skipping is potentially different, because there is zero chance that someone will stop to watch a catchy commercial or see the name of a movie in the black bar above the trailer as it zooms by. I don't intend to resolve that debate here. A primary reason I am skipping the debate is that fair use tends to be a circular enterprise. Whether a use is fair depends on whether it reduces the market possibilities for the owner. The problem is, the owner only has market possibilities if we say they do. For some things, we may not want them to have a market because we want to preserve free use. Thus, we allow copying via a DVR and VCR, even if content owners say they would like to charge for that right.

Knowing when we should allow the content owner to exploit the market and when we should allow users to take away a market in the name of fair use is the hard part. For this reason, I want to look at the issue through the lens of the Coase Theorem. Coase's idea, at its simplest, is that if parties can bargain (which I'll discuss below), then it does not matter with whom we vest the initial rights. The parties will eventually get to the outcome that makes each person best off given the options, and the only difference is who pays.

One example is smoking in the dorm room. Let's say that one person smokes and the other does not. Regardless of which roommate you give the right to, you will get the same amount of smoking in the room. The only difference will be who pays. If the smoker has the right to smoke, then the non-smoker will either pay the smoker to stop or will leave during smoking (or will negotiate a schedule). If you give the non-smoker the right to a smoke-free room, then the smoker will pay to smoke in the room, will smoke elswhere, or the parties will negotiate a schedule. Assuming non-strategic bargaining (hold-ups) and adequate resources, the same result will ensue because the parties will get to the level where the combination of their activities and their money make them the happiest. The key is to separate the analysis from normative views about smoking to determine who pays.

Now, let's apply this to the DVR context. If we give the right to skip commercials to the user, then several things might happen. Advertisers will advertise less or pay less for advertising slots. Indeed, I suspect that one reason why ads for the Super Bowl are so expensive, even in a down economy, is that not only are there a lot of viewers, but that those viewers are watching live and not able to skip commercials. In response, broadcasters will create less content, create cheaper content, or figure out other ways to make money (e.g. charging more for view on demand or DVDs). Refusing to broadcast unless users pay a fee is unlikely based on current laws. In short, if users want more and better content, they will have to go elsewhere to get it - paying for more channels on cable or satellite, paying for video on demand, etc. Or, they will just have less to watch.

If we give the right to stop commercial skipping to the broadcaster, then we would expect broadcasters will broadcast the mix they have in the past. Viewers will pay for the right to commercial skip. This can be done as it is now, through video on demand services like Netflix, but that's not the only model. Many broadcasters allow for downloading via the satellite or cable provider, which allows the content owner to disable fast forwarding. Fewer commercials, but you have to watch them. Or, in the future, users could pay a higher fee to the broadcaster for the right to skip commercials, and this fee would be passed on to content owners.

These two scenarios illustrate a key limit to the Coase Theorem. To get to the single efficient solution, transactions costs must be low. This means that the parties must be able to bargain cheaply, and there must be no costs or benefits that are being left out of the transaction (what we call externalities). Transactions costs are why we have to be careful about allocating pollution rights. The factory could pay a neighborhood for the right to pollute, but there are costs imposed on those not party to the transaction. Similarly, a neighborhood could pay a factory not to pollute, but difficulty coordinating many people is a transaction cost that keeps such deals from happening.

I think that transactions costs are high in one direction in the commercial skipping scenario, but not as much in the other. If the network has the right to stop skipping, there are low cost ways that content aggregators (satellite and cable) can facilitate user rights to commercial skip - through video on demand, surcharges, and whatnot. This apparatus is already largely in place, and there is at least some competition among content owners (some get DVDs out soon, some don't for example).

If, on the other hand, we vest the skipping right with users, then the ability for content owners to pay (essentially share their advertising revenues) with users is lower if they want to enter into such a transaction. Such a payment could be achieved, though, through reduced user fees for those who disable channel skipping. Even there, though, dividing among all content owners might be difficult.

Normatively, this feels a bit yucky. It seems wrong that consumers should pay more to content providers for the right to automate something they already have the right to do - skip commercials. However, we have to separate the normative from the transactional analysis - for this mind experiment, at least.

Commercials are a key part of how shows get made, and good shows really do go away if there aren't enough eyeballs on the commercials. Thus, we want there to be an efficient transaction that allows for metered advertising and content in a way that both users and networks get the benefit of whatever bargain they are willing to make.

There are a couple of other relevant factors that imply to me that the most efficient allocation of this right is with the network:

1. DISH only allows skipping after 1AM on the day the show is recorded. This no doubt militates in favor of fair use, because most people watch shows on the day they are recorded (or so I've read, I could be wrong). However, it also shows that the time at which the function kicks in can be moved, and thus negotiated and even differentiated among customers that pay different amounts. Some might want free viewing with no skipping, some might pay a large premium for immediate skipping. If we give the user the right to skip whenever, it is unlikely that broadcasters can pay users not to skip, and this means they are stuck in a world with maximum skipping - which kills negotiation to an efficient middle.

2. The skipping is only available for broadcast tv primetime recordings - not for recordings on "cable" channels, where providers must pay for content.  Thus, there appears to already be a payment structure in practice - DISH is allowing for skipping on some networks and not others, which implies that the structure for efficient payments are already in place. If, for example, DISH skipped commercials on TNT, then TNT would charge DISH more to carry content. The networks may not have that option due to "must carry" rules. I suspect this is precisely why DISH skips for broadcasters - because it can without paying.  In order to allow for bargaining however, given that networks can't charge more for DISH to carry content is to vest the right with networks and let the market take over.

These are my gut thoughts from an efficiency standpoint. Others may think of ways to allow for bargaining to happen by vesting rights with users. As a user, I would be happy to hear such ideas.

This is my last post for the month - time flies! Thanks to Prawfs again for having me, and I look forward to guest blogging in the future. As a reminder, I regularly blog at Madisonian.

Law as Plinko

My last moments in the classroom this past semester were spent engaging in what is likely a familiar exercise for most law professors -- trying to inspire students and leave them with some parting words of wisdom, encouragement, and motivation.  I look forward to these moments, and hope that my last-minute ramblings help bring together the general themes of the course and, more broadly, replenish their passion for the law to the extent that specific and more immediate parts of their experience -- such as Socratic conversations, lengthy readings, and concerns about the final examination -- have them questioning why they are in law school and are incurring debt in the process.  To quote Michael Scott, I might as well tell my students on the last day of classes to "get as much done as you can... because, afterward, I'm going to have you all in tears."

This semester, I discussed what I attempted to accomplish in the course and apologized to the extent that I fell short of their expectations.  I revealed to them what led me to study the law, and why I am continually fulfilled and humbled by my pursuit to understand the law and the law's role in society.  In my constitutional law course, I read to my students Neal Katyal's comments after Hamdan, celebrating the rule of law and how it distinguishes us from other political communities.  I also asked my students whether anyone has seen The Godfather.  Predictably, all hands were raised. When I asked what the first line of the movie is, no hands went up.  The first line is, "I believe in America."  I explained candidly why I believe in America, and it is specifically because of the structure of the Constitution that they just (hopefully) learned about and also because they will be active participants in that structure, seeking to improve the law and society.

I also, in a rather light portion of my semester-ending remarks, share my fun theory of the law -- that the law is like Plinko.  Yes, Plinko. An explanation follows:

Plinko, as shown here, is a game on the long-running CBS game show, "The Price is Right," in which contestants place chips flat at the top of a large vertical board -- once the contestant lets go of the chip, it moves down through a series of pegs and ultimately lands at the bottom, in one of several spaces labeled with different dollar amounts.  The contestant wins the amount of money assigned to the space where the chip lands.  Part of the fun is seeing how the chip winds its way through the pegs and, of course, where the chip's journey comes to an end -- the winnings range from $0 to hundreds and even thousands of dollars. 

It seems to me that the law is similar -- the facts of a case are like the chips, and the pegs are established cases that the facts must work through, and the space is the result that the court eventually hands down (e.g., granting or denying a motion, reversing or affirming a decision).  What, I believe, we do in law school is also related -- we attempt to ensure that students understand the pegs (the applicable precedents), how they have evolved or shifted over time, and the critical facts and context that help explain where the pegs are.  In general, in a Socratic exercise and on the final examination, students entertain a modified or new fact pattern, and analyze how those facts may "fit" in the existing framework.  We give students random fact patterns because it is unlikely that, in practice, they will receive a factual problem that is identical in all respects to an established case.  They must have a substantive foundation -- an understanding of the precedents -- and the skills -- how to research, write, and argue -- in order to properly assess how the new facts may work their way through the relevant cases and to then be able to advocate, on behalf of their client, for how those facts should work their way through the prior cases.  This is why I refer to cases as guideposts -- they literally are the pegs that set the general bounds within which certain issues will be examined and resolved. 

Further, students, equipped with an understanding of the law and the tools to analyze and advocate, can argue for why the guideposts should and must change.  Here is where they can become agents for broad social change -- by removing and reconstructing the guideposts that previously constrained and dictated how certain issues would be reviewed.  Again, in order to do this, students need the substantive foundation in the law and the skills with which to dissect cases and propose new legal principles.  The study of legal doctrine and professional skills may seem tedious, slow, and boring at times, but is critically necessary if students are to one day be effective representatives of their clients' interests and/or instruments of robust changes in the law and society.

This rather informal way of looking at the law as Plinko seems consistent with Holmes's theory of law as prediction.  When a contestant puts that chip down on the board, one does not know where it will land; at best, one can develop some sense as to where it may land given certain data points.  Similarly, armed with a set of facts, an attorney can offer only his or her prediction as to how a certain judge will apply certain guideposts, and what the outcome will be. 

Law as Plinko also may help one appreciate the different aspects of the legal process.  Whereas the top pegs may be akin to standards for the sufficiency of a complaint and jurisdictional issues, later pegs may be akin to guideposts governing whether the facts should survive a motion for summary judgment, and the final pegs akin to the standards on the merits of a legal issue.  This theory also emphasizes framework and process, where students focus on result (e.g., who "won" and who "lost").

It doesn't leave them in tears, but students seem nonetheless to enjoy this admittedly nutty way of viewing the law. 

Restating, stating, shuffling, or changing?

I’m really glad to have a chance to rejoin the Prawfs community for this month. Sorry for the somewhat belated start, but the past couple of days have been a flurry. I was just out in sunny California for a fascinating international humanitarian law conference at Santa Clara Law School. As Ken Anderson, one of the participants, notes in his opinio juris blog post on the conference, topics covered included the applicability of classic criminal responsibility theories to robots that are used in warfare; the intersections between gender, justice, and conflict; and the right to counsel in military proceedings. I had a chance to present on my new book on child soldiers, several aspects of which I hope to blog about here this month as well.

Yesterday the Transnational Law Institute at my law school hosted George A. Bermann from Columbia Law School, who delivered a fantastic public lecture entitled "American Exceptionalism in International Commercial Arbitration". We are fortunate at Washington and Lee to have Susan Franck as a colleague, in that her work situates at the cutting-edge of scholarship in this field -- and our Moot Court Room was packed and engaged. Although the notion of "American Exceptionalism" often applies in human rights law areas (such as constitutional interpretation, war crimes trials, and terrorism), Prof. Bermann explored how aspects of the US legal system interface with the quest, through international convention, for uniform enforcement of international arbitration awards in commercial law matters. In particular, Bermann identified a number of factors, which may not always be anticipated in contract negotiation, including federalism (for example, how the public policy of one of the US states may interface with the recognized ability for an award to be denied enforcement if it infringes public policy), inadequacies in the domestic Federal Arbitration Act, and procedural features of the US legal system. In this regard, clearly, I would answer Trey Childress' earlier question on this blog with a clear yes – international law matters and domestic legal structures ought to be mindful of it.

Bermann serves as Chief Reporter of the American Law Institute Restatement (Third) of the U.S. Law of International Commercial Arbitration. At the end of his talk, a student in the audience raised what I thought to be an important reminder – namely, what are the obligations and duties of Restatement authors? Is it to photograph the law, prod it along, or reengineer it? Do different obligations arise in different areas of law? For example, in areas of law thick with case-law and statute, is photography preferable? In areas of law lolling in ambiguity, grappling with change, or redolent with awkwardness, is something more required? What is the proper place for normativity? For international law junkies out there: are the obligations of the Restatement drafters similar to or different from those of the members of the International Law Commission (ILC), who are called upon to promote the progressive development of international law and its codification – recognized by convenience in art. 15 of the ILC's statute as two separate tasks?

Circumvention Tourism: Traveling for Abortion, Assisted Suicide, Reproductive Technology, Female Genital Cutting, Stem Cell Treatments, and More...

This past week I was in lovely Hermance, Switzerland, as a guest of the Brocher Foundation and the International Society for Stem Cell Research's Ethics and Policy Commitee to talk to them about stem cell tourism -- travel abroad to receive treatment or be part of a clinical trial using stem cells not authorized in the patient's home country.  This is often a sub-type of what I call "circumvention medical tourism" -- medical tourism for services that are illegal in the patient's home country but legal in the destination country to which they travel.

I have just posted on SSRN a draft of my new article, Circumvention Tourism, 97 Cornell L. Rev. _ (forthcoming, 2012), which uses the real world examples of  medical tourism for abortion, assisted suicide, reproductive technology (especially surrogacy), and female genital cutting to build a bigger legal and ethical theory of circumvention tourism.

I briefly discuss the 'can' question: Assuming a domestic prohibition on access to one of these services is lawful, as a matter of international law is the home country permitted, forbidden, or mandated to extend its existing criminal prohibition extraterritorially to home country citizens who travel abroad to circumvent the home country prohibition?

Most of the Article, though, is devoted to the 'ought' question: Assuming the domestic prohibition is viewed by the home country as normatively well-grounded and lawful, under what circumstances should the home country extend its existing criminal prohibition extraterritorially to its citizens who travel abroad to circumvent the prohibition? I show that contrary to much of the current practice, in most instances home countries should seek to extend extraterritorially to circumvention tourists their criminal prohibitions on abortion, FGC, assisted suicide, and to a lesser extent reproductive technology usage.

I then use this analysis as scaffolding to build towards a larger theory of circumvention tourism that includes examples outside of the medical context (such as prostitution, drug use, honor killings, and others)

I don't normally post drafts on SSRN until they are in page proofs (this draft is before the editors have had a chance to improve it) but am doing so early in this case because the topic is developing and I want my views to be part of the conversation. Still, it is a work-in-progress, so if you have any feedback you want to give me I always value it; though I think it makes more sense just to email me comments on the paper directly rather than post it on here so as not to clog the blog...but happy for more editorial/conversational comments to be added on here.

PS: I've already benefitted greatly from workshops of this paper at HLS, UT Austin, and by the NYU/Brooklyn Crim Law Theory Group that Dan Markel coordinates. I love workshopping papers, so if you are interested in having me present this or another paper feel free to get into contact.

Should the U.S. Prohibit Anonymous Sperm Donation?

In the United States, a movement urging legally prohibiting sperm-donor anonymity is rapidly gaining steam. In her forthcoming article in the Georgetown Law Journal, The New Kinship (not yet up on SSRN), and in her wonderful book, Test Tube Families, Naomi Cahn is among this movement’s most passionate and thoughtful supporters. She argues for mandatory sperm-donor registries of the type in place in Sweden, Austria, Germany, Switzerland, the Australian states of Victoria and Western Australia, the Netherlands, Norway, and, most recently, the United Kingdom and New Zealand. The UK system is typical in requiring new sperm (and egg) donors to put identifying information into a registry and providing that a donor-conceived child “is entitled to request and receive their donor’s name and last known address, once they reach the age of 18.”

In my new Article, Rethinking Sperm Donor Anonymity: Of Changed Selves, Non-Identity, and One-Night Stands, forthcoming in the same issue of the Georgetown Law Review (out in print in Jan or Feb 2012 and up on SSRN now), I explain why the arguments for these registries fail, using Cahn’s Article as my jumping off point.

I demonstrate four problems with the arguments Cahn offers for eliminating anonymous sperm donation:

(1) Her argument for harm to sperm donor and recipient parents fails in light of the availability of open-identity programs for those who want them, such that she imposes a one-size-fits-all solution where it would be better to let sperm donor and recipients parents choose for themselves.

(2) Her argument for harm to children that result from anonymous sperm donation fails for reasons relating to the Non-Identity Problem. This portion of the Article summarizes work I have done elsewhere, most in-depth in Regulating Reproduction: The Problem With Best Interests, 96 Minn. L. Rev. _ (forthcoming, 2011) and Beyond Best Interests, 96 Minn. L. Rev. _ (forthcoming, 2012 and up on SSRN soon).

(3) She has sub silentio privileged analogies to adoption over analogies to coital reproduction. When the latter analogy is considered, her argument is weakened. I show this through a Swiftian Modest Proposal of a Misattributed-Paternity and One-Night-Stand Registry paralleling the one she defends for sperm donation.

(4) The argument may not go far enough even on its own terms in endorsing only a “passive” registry in which children have to reach out to determine if they were donor conceived, rather than an “active” registry that would reach out to them. If we recoil from such active registries, that is a reason to re-examine the reasons in favor of the less effective passive ones.

For the reasons discussed, despite my admiration for this paper and all of Cahn’s work, I am not persuaded by the argument for adopting a mandatory sperm-donor identification registry of the kind in place elsewhere in the world. Indeed, I think these registries should be eliminated, not replicated. At a moment in which the idea of these registries is rapidly gaining popularity and attention in the United States, I hope my dissenting voice will be heeded.

The Curricular Powder Room?

A female friend who teaches family law recently wryly suggested to me that family law had become "the curricular powder room," in that circa 2011 it is a subject whose teaching and scholarship is dominated by women in the American legal academy.  This was not always so. In her work on the development of family law textbooks out of domestic relations courses, my wonderful colleague Janet Halley's What Is Family Law? A Genealogy, Part I and II (the latter is forthcoming) shows that in its early days family law textbook writing was dominated by men, just like all other fields of law, and the female dominance is of fairly recent vintage.

I only dabble in family law with my reproductive technology work, but my experience with the various conferences I attend has led me to believe that the number of heterosexual men who primarily write and teach in the area and have joined the academy in the last 10 years or so is extremely small, and even when I teach family law topics I can feel myself performing my sexuality to some extent as if it were a ritual to get access or credibility.  The only other field that I know of which comes close in terms of gender splits, is health law, although here the split feels more like 50/50, which is striking more because of the gender disparity of almost all the other fields in law.

Of course, one reaction to all this is that it is the other legal fields that are the problem in terms of gender skew so far in favor of men, and I am sympathetic to that point, but in this post I am primarily curious about what the ramifications are of family law having become "the curricular powder room"?

Would family law scholarship and teaching be different if more men were involved? Does the female domination of it lead to a kind of reactive devaluation of its importance or seriousness by the rest of the legal academy? Are there methodological correlates to the gender skew – for example, again from my relative outsiders' perspective, there seems to have been less law and econ in family law than elsewhere, and I wonder if that is partially a function of gender (but worry that this hypothesis itself might be based on gender stereotypes)? What impact does all this have on our students' enrollment in these classes, experienc of them, and career choices in the area? Are any of these descriptive claims (if they obtain) actually problems, or at least things the field should be concerned with?

Incest, Surrogacy, Abstinence Education Funding, Single Parent Reproduction...or What's Wrong with the Regulation of Reproduction

Should the state permit anonymous sperm donation? Should brother-sister incest between adults be made criminal? Should individuals over the age of fifty be allowed access to reproductive technologies? Should the state fund abstinence education? 

One common form of justification that is offered to answer these and a myriad of other reproductive policy questions is concern for the best interests of the children that will result, absent state intervention, from these forms of reproduction. This focus on the Best Interests of the Resulting Child (BIRC) is, on the surface, quite understandable and stems from a transposition of a central organizing principle of family law justifying state intervention - the protection of the best interests of existing children - visible in areas such as adoption, child custody, and child removal.

In Regulating Reproduction: The Problem with Best Interests, coming out shortly in the Minnesota Law Review (the penultimate draft now available on SSRN), I show why BIRC (or if you prefer, child welfare) arguments are a non-starter in justifying most regulation of reproduction, despite their dominance of the discourse. This is the first part of a larger project, and its companion paper Beyond Best Interests will appear in the Minnesota Law Review’s April 2012 issue, and should go on SSRN shortly.

What is the problem with best interests?

Drawing on insights from bioethics and the philosophy of identity (especially Derek Parfit’s work), I show why the BIRC justification, at least stated as such, is problematic both as a normative and constitutional matter: unless the state’s failure to intervene would foist upon the child a “life not worth living,” any attempt to alter whether, when, or with whom an individual reproduces cannot be justified on the basis that harm will come to the resulting child, since but for that intervention the child would not exist. Nevertheless, I show that BIRC arguments are frequently relied upon by courts, legislatures, and scholars to justify these interventions. At a doctrinal level the Article also shows that this reliance on BIRC justifications is in tension with the implicit rejection of similar reasoning by courts unwilling to recognize wrongful life torts.

After demonstrating why the BIRC argument is unworkable as stated, I considers three possible reformulations of the argument that would save it, including one that focuses on population welfare (and non-person-affecting principles). I explain why none of these approaches is persuasive including by discussing their disturbing implications as to enhancement and eugenics.

In the companion paper, Beyond Best Interests, I consider a set of quite different substitute justifications for regulating reproduction – reproductive externalities, wronging while overall benefitting, legal moralism, and virtue ethics approaches – and evaluate their plausibility.

While Regulating Reproduction: The Problem With Best Interests is almost in print (the final version will hopefully make the diagrams a bit more readable), I still have time to work on the companion paper so I welcome any comments on- or offline.  I will also blog a bit later this month about a related paper, Rethinking Sperm-Donor Anonymity: Of Changed Selves, Nonidentity, and One-Night Stands, forthcoming in the Georgetown Law Journal, which I will post on SSRN shortly.

This project has been a long time in gestation, so I redouble my thanks to all those of you who have given me comments and invited me to present at your workshops and conferences (hopefully you are all thanked in the paper), since you have helped me improve this work immeasurably.

Greetings from D.C.

I'm spending a wonderful day in D.C. presenting a paper at the annual symposium for the American Society of International Law's International Legal Therory Interest Group addressing Hart's Legacy on International Law.  The papers have brought together some amazing work on legal theory, international relations, international law and non-state governance presented by Trey Childress, Mark Herlihy, John Linarelli (see here for one of his related papers), Tim Meyer (related to his forthcoming article in the Penn. L. Rev. Codifying Custom), John Mikhail, Liam Murphy, and Dan Priel (another related paper here).  These papers will appear down the road in Cambridge U. Press's ASIL Studies in International Legal Theory.

I must say that given my experiences today, I'm even more bullish about writing in multiple scholarly areas.  Many thanks to Mark Herlihy for organizing this fantastic event!

Global Justice and Medical Tourism

Over the last few years, when I have not been working on bioethical issues relating to reproduction and reproductive technologies, I have been working on a different project relating to medical tourism – the travel of patients from one country (the “home country”) to a foreign country (the “destination country”) for the primary purpose of getting health care.  I have done three major law review articles on the subject (and a few other bioethics and medical journal articles). The first law review article focued on quality of care and medical malpractice recovery.  The third, which is forthcoming in the Cornell L. Rev, focuses on circumvention tourism -- patients who travel abroad for the purpose of circumventing a home country restriction on access, such as in the case of abortion, assisted suicide, female genital cutting, and reproductive technology use in some contexts.  The second law review article is coming out this week in print, but I have already posted it online here. This piece of the project, I hope, will be useful beyond medical tourism to those interested in globalization and global justice theory more generally.

A good way to frame my subject of inquiry is by way of a recent New York Times article  by Somini Sengupta, entitled “Royal Care for Some of India’s Patients, Neglect for Others,” which captures a particular global justice critique well: She begins by describing the care given at Wockhardt Hospital in India to “Mr. Steeles, 60, a car dealer from Daphne, Ala., [who] had flown halfway around the world last month to save his heart [through a mitral valve repair] at a price he could pay.” The article describes in great detail the dietician who selects Mr. Steele’s meals, the dermatologist who comes as soon as he mentions an itch, and Mr. Steeles’s “Royal Suite” with “cable TV, a computer, [and] a mini-refrigerator, where an attendant that afternoon stashed some ice cream, for when he felt hungry later.” This treatment contrasts with the care given to a group of “day laborers who laid bricks and mixed cement for Bangalore’s construction boom,” many of whom “fell ill after drinking illegally brewed whisky; 150 died that day.” “Not for them [was] the care of India’s best private hospitals,” writes the article’s author; “[t]hey had been wheeled in by wives and brothers to the overstretched government-run Bowring Hospital, on the other side of town,” a hospital with “no intensive care unit, no ventilators, no dialysis machine,” where “[d]inner was a stack of white bread, on which a healthy cockroach crawled.”

There is also a more academic or policy strain of critiques among those who write about global health and/or globalization.

The goal of this paper is to examine this kind of critique.  Here is my take...

As I argue in the paper these kinds of critiques should be understood as raising there kinds of questions: (1) An empirical question: Does medical tourism have negative effects on health care access for the poor in the destination country? (2)  The normative question: If so, do home countries or international bodies face obligations to prevent or correct those negative effects, and under what circumstances? (3) The regulatory question: If so, how might they do so?

I discuss some of the development economics and health system design pertaining to the first question and regulatory options as to the third question, but most of the paper is focused on the second normative question. This gives me an opportunity to engage ongoing debates in normative and applied ethics between theories of global justice, cosmopolitan, statist, and intermediate. I discuss the ways in which these theories suggest we may owe different things to those inside versus outside the nation state, or the ways in which the obligations may be activated under different circumstances depending whether those who suffer are our fellow nationals or foreign.  While my focus is on medical tourism, I also show how some of the ideas I develop are applicable to other instances of the globalization of health care such as medical migration (the brain drain).  The goal (you, dear reader, can judge if it is successful) is to have a dialogue between these theories and the concrete medical tourism cases, to see ways in which the theories speak to the cases but also the ways in which the cases identify gaps, ambiguities, and possible divergeny ways of filling the blanks.

 I am currently editing a book for Oxford on legal and ethical issues in health care globalization and starting a new book project on medical tourism specifically. While I have found the global justice literature useful as to these project, I actually think it has many more applications to the work done by law prawfs – for example in immigration law and labor and employment law, among other areas.  Since this law review article represents a part of an ongoing project, I am definitely eager for your thoughts.

Originalism Owns the Eighteenth Century: An Essay with A Compulsory (Voting) Exercise

In the Sunday NYT, Reid Hoffman, chairman at LinkedIn, is quoted as saying “[e]ntrepreneurs ... often spend too much time creating products and too little figuring out how to get people to use them.” This probably applies as well to scholars. Even in the relatively open, interdisciplinary world of the law school, our scholarship can get specialized enough that many colleagues (never mind the public at large) may not follow the broad contours and insights of our subfields unless we give them a lever or two. Not that the value of accessibility should always trump the competing values. But some levers, sure.

These levers may be, partly about the marketing, partly about the design. On the marketing, many of us have heard the message to have at the ready a short ‘elevator ride’ pitch about our scholarship. This is advice I try to follow. But, at least for my late-eighteenth-century work on election law, I still run into a messaging problem--that many academics glean too much meaning when I identify my historical period. Late-eighteenth-century? Then of course the work is originalist in method and purpose. Some audiences go further with the historical cue, apparently assuming that eighteenth-century scholarship is not only originalist but also tied into a hidden conservative political agenda. Before I can get across that, well actually, my work approaches the founding more from the perspectives of social-science history and the history of political thought, the ‘elevator ride’ may be over.

I find the eighteenth-century-to-originalism-to-political-conservatism cascade of assumptions odd. After all, there are now originalists of all political stripes (a Jack Balkin or Akhil Amar for a Robert Bork or a Justice Scalia). And there are originalist scholars of integrity of various stripes who are quite serious about their primary sources and who are not narrowly results-oriented (not to deny there's also a stream of the cringe-worthy ‘forensic history’ in the journals). Then (like me) there are constitutional historians who write on the eighteenth-century but who are not (or not primarily) engaged with originalism or with any approach to contemporary constitutional interpretation (think, perhaps, of Mary Sarah Bilder, Dan Hulsebosch, Alison LaCroix).

However, I can’t say for sure that the cognitive short-cuts are non-adaptive for most purposes. The Legal History Blog (one of my favorite reads, by the way) even uses as one of its subject-matter labels: “Originalism & the founding period.” It has no labels such as “Originalism & the post-Civil War amendments”, “Cultural History & the founding,” or “Economic modeling & the founding.” Originalism & the founding are monogamously paired, while “Ancient law,” “Medieval law,” and “14th amendment” get to be stand-alones. I imagine this labeling practice responds to some reality that’s ‘out there.’

There may be other subjects of legal scholarship that elicit equally-tight audience expectations, but, if those of you working in other areas often encounter this sort of thing, I’m not aware of it. Maybe the simple information that a scholar has written on sexuality and gender will trigger in some audiences an expectation of political liberalism and identity politics? (Unless there’s also a mention of natural law? Then the opposite assumption?) If I meet an environmental law prof, maybe I suspect she’s a person who spends her weekends hiking and rafting, and maybe also, I have mild expectations she’s not strongly de-regulatory in her politics, but this is about as far I go with the cues based solely on subject-matter.

What to do if the cues mislead? I’ve been encouraged to preemptively incorporate criticism of originalism into my spiel. But this feels too much like: “I am not now, nor have I ever been X.” Anyway, my historical writing (to date) simply isn’t designed to take a stand on approaches to constitutional interpretation today. It’s geared more towards explanation and understanding of some political and legal features of our world, and the sometimes-patterned ways in which they’ve changed over time. Rather than continue with the corrections, though, I’m wondering if I should quit fighting the fact that ‘Originalism Owns the Eighteenth Century’. Maybe a user-friendly lever would leverage rather than resist expectations?

Marketing may not be a strong suit for scholars. Certainly, it’s not for me. Yet I’d like to think that, if we fashion the user-friendly marketing lever, maybe we can be more stubborn about not compromising on the deeper design choices.

My marketing practice for today is to imagine I’m sketching an essay in response to another piece from the Sunday Times, this one a thoughtful op-ed by William Galston in favor of compulsory voting.http://www.nytimes.com/2011/11/06/opinion/sunday/telling-americans-to-vote-or-else.html

After his policy argument, Galston winds down with a concession that:

"[T]he United States Constitution gives the states enormous power over voting procedures. Mandating voting nationwide would go counter to our traditions (and perhaps our Constitution) and would encounter strong state opposition."

What Galston doesn’t mention (something I don’t believe I’ve ever seen mentioned in a treatment of modern compulsory voting) is that several of the American colonies had a history of compulsory voting (including some laws that were enforceable by fines that could be levied either on individuals or on towns), and that a compulsory-voting tradition was sufficiently salient in Massachusetts during the U.S. ratification that a few ‘name-brand’ founders made reference to it in their argument for empowering Congress to regulate congressional elections under the Congressional Elections Clause (article I, section 4, clause 1). More generally, Galston’s emphasis on the states’ (not Congress’s) constitutional power over voting procedures is entirely conventional today, but is not an easy fit with the way the federal right to vote was often described during the U.S. ratification debates as, well, a federal right.

Playing to the ‘18th century = originalism’ audience expectations, I could work on developing my own views about constitutional authority and then take a stand on what role the early history should play in constitutional interpretation today. But I’m not sure I have to do that. User-friendly marketing might just mean an originalism-tease--that I raise the possibility that the early history should have sway. Then I use any attention garnered to divert audiences to some of my interpretive and explanatory concerns. (How and when did we change from a political culture when mandatory voting was plausible in some colonies/states to a libertarian world in which it is un-American? When and why was the federal understanding of the federal right to vote forgotten? What features of modern political parties suggest that Galston’s right to think that opposition to a congressional mandate for mandatory voting would be very dramatic?) Of course, by the time I’d get through one of these social-science-y or political theory questions, I’d be long past an elevator ride or even a blog post.

Constitutional Pragmatism

I am working on a long term project regarding the use of pragmatism as a method of constitutional interpretation. Perhaps Dan Farber and Richard Posner are the most well known pragmatists, but they certainly don't agree on many things. Indeed one major criticism of pragmatism is that it is vague. Another is that it amounts to nothing more than consequentialism, and thus lacks any moral component. Yet several noteworthy and disparate scholars agree that the U.S. Supreme Court's interpretive approach is best described as pragmatic, despite all of the focus in constitutional debates on originalism or on variants of living constitutionalism (though critics could argue that pragmatism is a default conclusion, in that the Court does not employ any single method in its majority opinions). What I've been examining is the types of pragmatism the Court actually uses because I believe there are many. For example, I believe constitutional pragmatism is not necessarily inconsistent with the Court taking account of ethical and/or moral considerations.

Last term, the U.S. Supreme Court decided a case in which important, but different, pragmatic arguments were on both sides. In JDB v. North Carolina, the Court ruled 5-4 that the police acted unconstitutionally in questioning a 13 year old boy without providing the Miranda warning. Authorities had removed the boy from his school classroom, and questioned him in a conference room for about 30 minutes before he confessed to a theft. Justice Sotomayor wrote the majority opinon and said that "commonsense" supported her view. She used the term several times (always as one word, despite other Justices sometimes using two words). For example, she wrote that "It is beyond dispute that children will often feel bound to submit to police questioning when an adult in the same circumstances would feel free to leave. Seeing no reason for police officers or courts to blind themselves to that commonsense reality, we hold that a child's age properly informs the Miranda custody analysis." She used empirical data and precedents to support her conclusion as well.

I call Somayor's approach "commonsense pragmatism," and the Court has used such a method (for good or bad) on many occasions. Think of "I know it when I see it." In dissent, Justice Alito criticized Sotomayor's "reality-based approach." He explained that Miranda had actually reversed the Court's prior case by case approach to determining custody, and had replaced that method with a clear and simple instruction. He then argued that Sotomayor had muddled things by requiring case by case inquiries into the situations of specific minors. I call Alito's argument "efficiency-oriented pragmatism" (other efficiency types would include administrative convenience, and slippery slope arguments). I will discuss several other types of pragmatism in future posts.

Scholars and the Briefs They Sign (qua Scholars)

I'm back in the 'Hassee after a quick trip to NYU earlier this week. Unfortunately, I'm missing the colloquium today for Dick Fallon's paper on scholars and the amicus briefs they sign. Somewhat oddly, the paper is part of the festival of ideas hosted weekly by Dworkin/Nagel. I say oddly because the colloquium is ostensibly about social, legal, and political philosophy, and the paper doesn't really have much to do with any of those topics. That's not a mark against the paper. Like all of Fallon's work that I've read, it's careful and thoughtful, and indeed philosophically informed. It's just a mite odd given the venue. That said, because the venue frequently attracts leading con law scholars who sign amicus briefs of the sort that worries Fallon, maybe it makes good sense for Fallon to go into the proverbial lions' den. 

In any event, I had a chance to peruse the paper earlier this week and I think Fallon's right to push legal academics to be more circumspect about the amicus briefs they sign. Fallon cites Ward Farnsworth as having raised some of these issues a decade ago. Here's Farnsworth's basic point: "when academics offer opinions in their professional capacities, they should use the same care and have the same expertise called for in their published professional work, or should disclose that they are adhering to a lesser standard. Equivalently, they should not sign documents unless they would be ready to defend them orally in the tribunals to which the documents are being presented." It seems that Fallon largely agrees with this. Count me in too. But Fallon proposes a few other norms to guide the development of scholars' briefs. 

FWIW, I think I've only signed fewer than a handful of amicus briefs, but it's true that I haven't always been as familiar with the sources cited in them as would be appropriate under Farnsworth and Fallon's prescriptions. Since I have a non-trivial interest in the ethical standards of legal scholarship, I find myself feeling a bit shame-faced. I'm glad Fallon's new paper provoked this greater mindfulness on my part, and I hope his essay and the norms it seeks to promote will find a warm and welcome embrace by other prawfs as they contemplate their participation in the seemingly growing practice of filing scholarly amicus briefs with the courts.

 

What Commons Have in Common

Thanks to Dan and the Prawfs crew for having me! Blogging here is a nice distraction from the Red Sox late-season collapse.

I thought I'd start with a riddle: what do roller derby, windsurfing, SourceForge, and GalaxyZoo have in common?

Last week, NYU Law School hosted Convening Cultural Commons, a two-day workshop intended to accelerate the work on information commons begun by Carol Rose, Elinor Ostrom, and Mike Madison / Kathy Strandburg / Brett Frischmann. All four of the above were presented as case studies (by Dave Fagundes, Sonali Shah, Charles Schweik, and Mike Madison, respectively). Elinor Ostrom gave the keynote address, and sat in on most of the presentations. It's exciting stuff: Mike, Kathy, and Brett have worked hard to adapt Ostrom's Institutional Analysis and Development framework to analysis of information commons such as Wikipedia, the Associated Press, and jambands. Yet, there was one looming issue that the conferees couldn't resolve: what, exactly, is a commons?

The short answer is: no one knows. Ostrom's work counsels a bottom-up, accretive way to answer this question. Over time, with enough case studies, the boundaries of what constitutes a "commons" become clear. So, the conventional answer, and one supported by a lot of folks at the NYU conference, is to go forth and, in the spirit of Clifford Geertz, engage in collection and thick description of things that look like, or might be, commons.

As an outsider to the field, I think that's a mistake.

What commons research in law (and allied disciplines) needs is some theories of the middle range. There is no Platonic or canonical commons out there. Instead, there are a number of dimensions along which a particular set of information can be measured, and which make it more or less "commons-like." Let me suggest a few as food for thought:

1. Barriers to access - some information, like Wikipedia, is available to all comers; other data, like pooled patents, are only available to members of the club. The lower the barriers to access, the more commons-like a resource is. 
2. State role in management - government may be involved in managing resources directly (for example, data in the National Practitioner Data Bank), indirectly (for example, via intellectual property laws), or not at all. I think a resource is more commons-like as it is less managed by the state.
3. Ability to privatize - information resources are more and less subject to privatization. Information in the public domain, such as Shakespeare's plays, cannot be privatized - no one can assert rights over them (at least, not under American copyright law). Some information commons protected by IP law cannot be privatized, such as software developed under the GPL, and some can be, such as software developed under the Apache License. The greater the ability to privatize, I'd argue, the less commons-like.
4. Depletability - classic commons resources (such as fisheries or grazing land) are subject to depletion. Information resources can be depleted, though depletion here may come more in the form of congestion, as Yochai Benkler argues. Internet infrastructure is somewhat subject to depletion, while ideas or prices are not. The greater the risk of depletion,the less commons-like.

Finally, why do we care about the commons? I think that commons studies are a reaction to the IP wars: they are a form of resistance to IP maximalism. By showing that information commons are not only ubiquitous, but vital to innovation and even a market economy, legal scholars can offer a principled means of arguing against ever-increasing IP rights. That makes studying these resources - and, hopefully, putting forward testable theories about what are and are not attributes of a commons - vital to enlightened policymaking.

(Cross-posted to Info/Law.)

Retributive Justice and the Demands of Democratic Citizenship

As some of you may know, I've been preoccupied the last 9 months or so on a big project called Retributive Justice and the Demands of Democratic Citizenship. I've thrilled to say that I've finally uploaded a draft of it to SSRN. You can download it here. The piece represents my early efforts at thinking through some of the relationships between political obligation and decisions regarding crime and punishment. In particular, I try to argue, contra crim law gurus like Doug Husak and Michael Moore, why it is that appropriately scaled punishment may, under the right conditions, be justly imposed on offenders for crimes involving conduct that is itself morally neutral (prior to or independent of law). If I'm right about that claim, then the underlying arguments also generate a raft of unusual implications, some of which are detailed in the abstract.

Sadly, the piece is long. Still, if you plod through it, I would be very grateful for comments as my hope is to turn this (and some other) material into a book tentatively entitled Rethinking Retributive Justice. The abstract and some more background about the piece appear after the jump. 

This article reveals and responds to the democracy deficit in certain retributivist approaches to criminal law. Democracy deficits arise when we insufficiently recognize the moral authority of liberal democracies to create new moral obligations for us as individuals. Specifically, I will argue, in contrast to the claims of some leading criminal law theorists, that conduct can be legitimately and justly criminalized even if the conduct is not morally wrongful prior to or independent of law. In other words, once we understand the basis for our presumptive political obligations within liberal democracies, a more capacious approach to establishing criminal laws can be tolerated from a political retributivist perspective. 

If I'm correct, then here are some of the implications: we are morally obligated (in a pro tanto way) to (1) conform our conduct, in our capacities as nonofficials, not only to “good” mala in se criminal laws but also many mala prohibita laws, laws that I call permissibly dumb but not illiberal; (2) to render, in our capacities as nonofficials, reasonable assistance to law enforcement of the previous categories of laws; and (3) to enforce, in our capacities as officials, these categories of laws. While the implications of this "democratic fidelity" argument are extensive, there is no moral obligation to surrender one’s judgment entirely. Indeed, officials and nonofficials have no moral obligation toward laws that are illiberal or what I call "spectacularly dumb," regardless of their valid legal status. 

Like democratic criminalization choices, democratic sentencing laws must also be scrutinized. To that end, I sketch two moral frameworks that should work in conjunction with each other and with the threshold criminalization question when deciding whether to enforce, conform to, or assist enforcement efforts of criminal laws within liberal democracies.

By way of background, the paper was the invited "launch" paper of a new journal devoted to criminal justice issues at UVA's law school, the Virginia Journal of Criminal Law. I am very grateful to Darryl Brown and the student editors of that journal for making possible the chance to come to Charlottesville to begin a dialogue with some of my favorite voices in criminal law theory: Josh Bowers, Michael Cahill and Antony Duff. When the first issue comes out, it will comprise my paper, the response essays by Bowers, Cahill and Duff, as well as a reply essay by me whose final touches I'm currently procrastinating via this blog post. While this project has been difficult for me at times to work though, I confess it's been a delight to have the opportunity for this conversation in criminal law theory to unfold both in person and in print.

Fall Schedule for Criminal Law Theory Colloquium at NYU and BLS

For those of you writing in criminal law theory/philosophy of crime and punishment, you might be interested in the information that I just circulated BELOW via email. Let me know if you want to be on the email list for future updates and paper drafts.

 

Folks,

Mike and I just wanted to let you know of the upcoming schedule for the Fall 2011 Criminal Law Theory Colloquium. Also, Mike's paper is attached, which is short and provocative. Kyron Huigens' paper will be circulated soon.

A. Dates/Places, etc.

1) Tues August 30th (next week!) 6pm-830 at Brooklyn Law School.  BLS, located at 250 Joralemon St. in Brooklyn, will provide snacks and drinks during the get together, and then will also generously host us for dinner at a nearby place. Mike Cahill will provide more info on logistics. If you can, please RSVP to me and Mike so we can make a rough headcount for the reservation.

We will have papers by Mike Cahill and Kyron Huigens. Mike's paper is attached and it includes a cover note. Kyron's is forthcoming... 

Papers by: Mike Cahill (BLS) and Kyron Huigens (Cardozo)

2) Thurs September 15th 3-530pm at NYU (as a warmup to the wonderful conference on Vice and Crime that Stuart Green and friends at Rutgers Newark are hosting on Sept. 16, and to which all on this list are invited. More info from Stuart is available at the link. We will go from our gathering to the  dinner for the Vice-Fest. Please let me or Stuart know if you're interested in joining for the dinner and travelling with us from NYU.

Papers by: Glenn Cohen (Harvard) and Dan Markel (FSU)

3) Tues Oct 25th at 3-530pm at NYU (as a precursor to the Hoffinger dinner at NYU featuring Brandon Garrett)

Papers by: Kim Ferzan (Rutgers/NYU) and Chad Flanders (SLU)

4) Thurs Nov. 3 at 3-530pm at NYU (as a precursor to the "The Retributivist Tradition and Its Future" conference at St. John's Law on Friday Nov. 4 to which all on this list are invited to attend; if you're interested in attending that conference, please also contact Marc DeGirolami at St. John's (cc'd)). 

Papers by: David Gray (UMaryland) and Adil Haque (Rutgers)

5) Spring 2012:

We have set out the following dates and times for our spring gatherings, which are all timed to precede the NYU Hoffinger dinners. We have not confirmed everything yet but we will have a stellar lineup for the spring including Vera Bergelson (Rutgers), Alon Harel (BU/Hebrew U), Matt Kramer (Cambridge), Stephanos Bibas (Penn) and Rick Bierschbach (Cardozo), and some newer voices too. Stay tuned and mark your calendar. Unless we indicate otherwise, except for the first meeting this August, we'll be meeting at NYU.

Monday, January 23, 3-530pm

Tues, Feb 28, 3-530pm
Monday, March 26, 3-530pm
Monday, April 23, 3-530pm

B. Papers

We plan on keeping to the two papers per session routine. As mentioned in earlier emails, we're doing something different also to open things up a bit and make this a bit more of a national (or at least regional) crim theory colloquium. There are a number of you who cannot regularly attend the colloquium b/c of teaching conflicts or geographic constraints. Those presenting who are not able to make it to each of the meetings during the semester are expected to provide timely and written comments to the other persons who are presenting during the semester (and preferably the year if you are able to). 

Drafts will be circulated 7-10 days before the gathering in a Word Doc, and then we'll share it with the list, and those of you who can show up in NYC will be treated to the finest company and coffee/cookies/fruit available.

Now that we're opening it up a bit more, please feel free to send this information to other colleagues or friends in crim law theory that might be interested in participating.

C. Opt-Out 

Last: if you'd like to be taken off this email list, just let me know. And if there's someone who you think should be added to this list, please let me know also.

best wishes,

Danny and Mike.

 

Is Group Participation Like Playing the Lottery?

For my current writing, I’ve been doing a fair amount of reading and thinking about collective action and public choice theory. I’m far from the first one to notice that there’s a tension between Mancur Olsen’s views on collective action and the fact that people still organize in large groups. One of Olsen’s arguments (in oversimplified form) is that large groups tend to underproduce public goods, because of incentives to free ride and disincentives to act. The question that remains is why individuals in large groups organize in the first place, since according to Olsen, the larger the group, the less incentive for individuals to act. Scholars have provided a variety of explanations to this, but reading Bryan Caplan’s The Myth of the Rational Voter made me think that the trick to explaining why large groups organize in the face of the disincentives Olsen highlights is to check our premises: maybe people aren't acting rationally here, as public choice (and the logic of collective action) assumes. Maybe group participation (voting, campaign donation, and especially individual participation in interest groups) is like playing the lottery. It's irrational to think you'll win, just as it's irrational to think that your influence in an interest group, or an election, will make a difference, or yield benefits that outweigh costs, rather than the other way around. So the answer to the question public choice theory raises about why people vote in elections, or join interest groups, may be the same as the reason people play the lottery: they are systematically irrational about the payoff they will receive from their actions.  

Sundry: SEALS, scholarship updates, and the writer's studio

The annual SEALS conference is coming up next week, which I'll be excitedly attending. Our crew will be staying next door to the Marriott at the Palmetto Dunes--so please message me if you're there and want to celebrate Benben's 2d bday on the 29th.  Notwithstanding the happy hour the night before, the (sincere!) motivation for the trip is a panel I'll be doing with Larry Solum, Usha Rodriguez, and Dave Fagundes on the question(s) of: (How) Can Blogging Build Community in the Legal Academy? I think blogs like ours (particularly Bodie's wonderful book club series) have done some great things toward cultivating community (at least defined in some ways), but Usha is right to ask her readers what else can be done. So...as a new school year awaits in the shadows, I thought I'd ask for readers of this blog to share thoughts they might have (either via email or in the comments) about what more Prawfs can do to build a warm and engaged community in the legal academy. After all, I'll need something to talk about on the 29th at 10:15am!

While I'm typing on the intertubes, let me take this moment to conclude my recent short series of posts with updates on what I've been working on. Mercifully, this will be the last of the batch for a while. 

First, the other day I put up on SSRN the final version of a chapter entitled What Might Retributive Justice Be?, which appears in the recently published volume, Retributivism: Essays on Theory and Practice (edited by Mark D. White).  As the piece is, for me, relatively short, it's worth mentioning that this chapter might be somewhat helpful as an introduction/overview of contemporary retributive justice theory for those (1) less familiar with punishment theory and (2) tasked with teaching (or studying) criminal law or sentencing law in the coming year. By the way, there will be a conference at St. John's Law in NYC on Friday Nov. 4th devoted to discussing the chapters and themes in the volume. If you're interested in attending, let me  or Marc DeGirolami know. 

Second, thanks to a teaching leave made possible by the good folks at the Searle foundation and FSU, I've spent much of the last five months working on a piece trying to connect the literature on political obligation (ie., is there a moral duty to obey the law) to criminalization and punishment theory. The resulting marriage is a paper entitled Retributive Justice and the Demands of Democratic Citizenship. Not sure why, but I'm still holding this one back from SSRN right now. Nonetheless, it's now in a sufficiently complete draft(!) form that I'd be happy to share it with any folks who want a sneak preview and a chance to help me avoid various errors.  

Third, I've also just put up a short essay (entitled A Judge for Justice) on related themes of disagreement, deference, and democracy in the context of crime and punishment (and in particular shaming punishments). By looking at the somewhat famous Gementera case carefully, the piece is intended as an homage to my former boss, Judge Michael Hawkins on the Ninth Circuit, who transitioned to senior status recently. To mark that transition, the editors at the ASU LJ convened a celebration/symposium earlier this year with some of his former clerks who are now prawfs; accordingly, the issue in Volume 43 with my essay also includes thoughtful reflections on Judge Hawkins' jurisprudence from Profs. Lenni Benson,  Thomas Healy, and Carlton Larson.

I was going to include something about our new "writer's studio" at FSU in this post, but I'll save that for a separate post, as this one has probably gone on long enough. More later. Happy Thursday.

Judges: Ask not what legal academics can do for you, but what you can do for legal academia!

Apropos Chief Justice Roberts' kvetching about the irrelevance of legal scholarship not long ago, y'all might be interested in this post I received from a prawf at Harvard Law School. Use the comments to guess who wrote it.

The Growing Disjunction between Legal Scholarship and Judicial Practice:

A Profession in Crisis?

Not so long ago, legal scholars and practicing judges had a healthy and mutually beneficial professional relationship.  Indeed, there was a time when academics and judges saw themselves as part of a common enterprise devoted to the understanding and improvement of law.  Over the last generation, this has changed profoundly.  Unfortunately, the last several decades have witnessed the emergence of a large and ever-widening disjunction between legal scholarship and judicial practice.  It is fair to say that this disjunction has reached crisis proportions.  Of course, there are those who, either out of complacency or personal investment in the existing system, do not see this growing disjunction as a serious problem.  But it is a serious problem, and unless we honestly recognize it as such and take steps to fix it, the productive and symbiotic relationship between legal academics and practicing judges may break down completely.

That a disjunction between legal scholarship and judicial practice exists is self-evident.  If you leaf through any volume of the U.S. Reports or the Federal Reporter, you will hardly ever find any judicial opinions of the slightest use to legal scholars.  Most published judicial opinions are on obscure, mundane, and basically uninteresting topics like whether a dredge counts as a “seagoing vessel,” or whether some bankrupt coal company can unload its pension obligations on a successor, or whether the admission of some piece of meaningless evidence in a trivial case was properly excluded under an exception to an exception to the hearsay rule.  Even when judges do take on issues that are relevant to academic practice, their opinions are typically written in such a way that makes them unhelpful for legal scholarship.  Indeed, most academics – who are working to better understand and predict the practical consequences of legal institutions for human welfare, to elucidate how the law operates and evolves as a social institution situated in a particular historical context, to delve deeply into the moral and ethical dimensions of legal decision-making, and indeed to better understand the concept of law itself – will find little to help them in the turgid, arcane, and essentially irrelevant discussions in most published judicial opinions.  In fact, I have many colleagues in the legal academy who no longer even bother to read judicial opinions, they have become so useless for serious legal scholarship.

Things have gotten so bad that it’s not clear that anyone reads most judicial opinions these days, except for other judges. 

When judges write only for one another, rather than for a broader audience of legal academics, the practice of judging threatens to become insular, self-indulgent, and intellectually irrelevant.  Of course, judges may still be performing a useful function, in that they can help resolve mundane, or very occasionally consequential, legal disputes.  So I suppose the increasing insularity of the judicial community may not matter if the only role of the judge is to be a kind of bureaucratic functionary.  But many of us subscribe to the old idealistic notion that judging can be something more than that – that judges can contribute, in a very real way, to the scholarly enterprise (though admittedly as junior partners).  In order to do that, however, judges need to stop writing just for other judges, and to start writing in a way that their opinions will be useful to academics.

 

In order to figure out what to do about the growing disjunction between the legal academy and the bench, we must understand the reasons this disjunction exists.  While it is hard to give a definitive explanation (and there are probably many causes), a few possibilities stand out.  One is that these days fewer and fewer judges join the bench with serious academic experience.  In days gone by, a larger fraction of judges had spent significant time in academic practice (not just one or two summers as a research assistant) before becoming judges, and as a result these judges had both better academic training and a greater sensitivity to the needs and interests of professional scholars.  These days, however, most judges are much likely to have backgrounds as practicing lawyers rather than as academics.  This is a problem.  Those who are responsible for appointing and promoting judges should give prospective candidates much more credit for serious academic experience than they currently do.  Yet today – hard as this is to believe – there seems to be some discrimination against judicial candidates with serious academic credentials.  If we are serious about narrowing the gap between legal scholarship and judicial practice, the thumb should be on the other side of the scale: we should be willing to appoint judges with meaningful academic experience, even if they don’t have all the conventional hallmarks of achievement as practicing lawyers.

 

A second explanation for recent trends may have to do with the fact that judicial practice these days places less and less emphasis on “interdisciplinary” judicial reasoning than it did in earlier times, when judges would routinely draw on ideas from moral philosophy, history, and social science when making their decisions.  As judicial decisions have become ever more doctrine-oriented, they have had less and less relevance to legal scholarship.  This may have less to do with any essential requirements of judicial practice, though, and more to do with the current preferences and proclivities of judges, as well as the people who hire and promote them.

 

These two explanations may both be manifestations of a larger, and troubling, cultural trend in the judiciary.  Most judges do not self-identify as scholars, but rather as legal practitioners.  Indeed, even those judges with serious academic abilities consider themselves judges first, and only scholars by happenstance.  Moreover, even those judges who do have an interest in writing opinions that are useful to legal academics – opinions that engage with serious intellectual problems using rigorous research methods – face daunting social and professional pressure not to do so.  I gather that some judges will quietly complain to friends and colleagues that they are worried that their prestige and chances of career advancement may be harmed if they are seen as “too academic” or “not practical and doctrinal enough.”  Changing a culture is hard, but doing so may be necessary if the current crisis is to be redressed.

 

Of course, not everyone agrees that there is really such a crisis.  “So legal academics don’t find much useful in published judicial opinions,” these skeptics say, “So what?”  While some of the skeptics take the obviously untenable position that judges and legal academics have fundamentally different jobs (so that it would be unfair to judge one profession by how much it is helping the other profession do its job), a few of the skeptics do raise some objections that are worth taking seriously.

 

First, some of the skeptics assert that it is wrong to blame the judges for their failure to write for an academic audience, because the judges rightly believe that academics do not really care what judges think.  Those holding this view often lament that the legal academy is so politicized – with scholars determined to reach particular preferred conclusions – that legal academics will at best selectively quote only those judicial opinions that support the academics’ preconceived notions, rather than really engaging deeply with judicial opinions that might argue cogently for a contrary position.  On this view, the disjunction between legal scholarship and judicial practice is indeed a problem, but the fault lies with the academics for not being willing to listen, rather than with the judges.  There may be something to this, but most academics I know would be thrilled to read a really good judicial opinion that engaged directly and intelligently with their latest research project.  It seems to me that the real problem is that such opinions are so rare.

 

Another skeptical objection is that academics do not really need judicial assistance these days in the same way that they might have in earlier generations.  After all, legal academics have access to advanced computer search engines (including Lexis and Westlaw), as well as paid research assistants and professional support staffs (much as judges have law clerks and similar administrative and research support).  These skeptics would assert that academics can do their own research, and it’s a sign of narcissism or laziness when scholars complain that the judges aren’t doing enough to help the scholars do their jobs.  This is profoundly unfair to legal academics, and it also reflects a fundamental misunderstanding of the role of the judge, which is to contribute useful material for academic progress.

 

In sum, this short comment is really a plea from a representative of the legal academy to the bench: You have the potential to make a real contribution to a vital social enterprise – the advancement of human knowledge about the nature, purposes, and effects of law.  This potential has been realized in the past, and can be again if you are willing to make the effort.  Resist the temptation to retreat into the comfortable cocoon of writing only for other judges and practicing lawyers, as this will eventually lead to the total irrelevance of the judiciary to the scholarly enterprise.  Rather, you should strive to write opinions in a way that will inform, enlighten, and – yes – even influence practicing legal academics.

 

A Constitutional Crisis for Liberals and Libertarians: The Declaration of Independence and the Mythologocial Side of American Constitutional Culture

Constitutional meaning is hotly contested in the United States today.  This is hardly an unprecedented state of affairs.  Questions of constitutional fidelity and constitutional restraints on policy making have figured prominently in each of the nation’s several epochs of heightened constitutional awareness, as Bruce Ackerman and many others have reflected.  Indeed, supposed periods of relative constitutional quiescence and consensus can be described as such only in comparative terms, by contrast to other periods such as the Civil War and Reconstruction or the early Neal Deal when constitutional politics were obviously especially freighted and enthused and indeed even dangerous.  Whether or not government under the Constitution has actually been imperiled in these phases of constitutional ferment, during each of them a great many people have gone on record as fearing the imminent demise of the Constitution they love.  Perhaps the phrase constitutional crisis is exaggerated or at least lifted infelicitously from British political usage where it was employed with reference to constitutional impasses surrounding the Parliament Act of 1911 and the Abdication of Edward VIII in 1936.  Crisis implies to me at least the possibility of the collapse of the existing system, and even during the American Civil War (surely the greatest of this country’s alleged constitutional crises) only the geographic scope of governmental operations under the United States Constitution was at stake, not government under the Constitution per se.  Still, the concept of constitutional crisis resonates with millions, and there seems to be a mounting sense in many quarters that this nation is sliding towards a renewed constitutional crisis of truly epic moment.

But what is it about the Constitution that appears under threat to so many vocal devotees of varying constitutional stripes?  What are the terms of the great constitutional contest just around the corner?  Is there truly more at stake than the choice between divergent political outcomes and policy options favored by rival votaries?  What parts of the Constitution as we know it will be annulled if either side wins the battle to repeal the Affordable Health Care and Patient Protection Act lovingly known as Obama Care?  Is text under threat?  Structure?   Whole Articles destined for the scrap heap if one or the other side prevails?  Or is it a favored strand of Supreme Court case law that is in jeopardy?  Or a cherished academic theory about the Constitution?   More than any of these fine things, I think, what those animated by contemporary constitutional politics fear is repudiation of a mythological vision that depends more on constitutional culture and iconography than on constitutional text and structure.  From Sarah Palin and Glen Beck on television and at camp meetings to Michelle Bachmann and Ron Paul in debate and on the campaign trail, those who warn that the Constitution as we know it faces imminent or ongoing attack are generally quick to invoke the founding fathers, the Spirit of 1776, and the full panoply of origination myths surrounding the creation of the American Republic.  They do so generally not just for the sake of rhetorical flourish, but rather to appeal to the highest authorities in their constitutional value system. 

Independence Day does not tend to focus the patriotic mind on high political theory so much as on celebration of the distinctive national character, and like all national characters that of the United States is as much artificial as it is organic, and as much fluid as it is stable.  For better or worse, nationalism anchored in backward looking myth is a human construct, and conscious effort is required to prop it up.  Some people openly acknowledge and cherish instability, laden as it is with potential for success or failure, and a plasticity that invites intervention by the shaping hand.  Change we can believe in as the slogan went.  Others chafe at their own rootlessness and the rootlessness about them, and yearn to see change fenced in and controlled.  I have oscillated fairly sharply between these opposite poles at different stages of my life, sometimes yearning for government empowered to facilitate radical change, sometimes for government constrained to do no more than stay the courses and maintain the policies adopted by its direct and distant predecessors.   My urges along these lines have generally been more visceral than theorized or philosophical, and on a very basic level, I think this bipolar tension between tendencies to embrace or shun activist government mirrors the tectonic clashes driving popular constitutional politics today.   Lawyers and legal academics tend to think constitutional law is a product of text and doctrine, but I strongly suspect a more common sense of the Constitution for someone who does not identify as a lawyer and legal academic takes roughly the following two part form:  (1) The Constitution mandates political outcomes I desire, and prohibits those I dislike.  (2) The legitimacy of those outcomes is measured by testing them against the political principles embodied in the foundation of the United States (which fortunately coincide with my own principles).

It’s natural enough perhaps for professional lawyers to scoff at this condensed short form version of constitutional essentialism on the grounds that it leaves out text, structure, and case law, but it has a powerful popular appeal, and a prestige pedigree, coming very near to the (admittedly more self-effacing, theoretically grounded, and historically rooted) positions Thomas Jefferson assumed during his struggles with Chief Justice John Marshall during the first three decades of the nineteenth century.   Marshall’s tactically shrewd maneuver in Marbury and McCulloch was to insist that the Constitution reduced to written form in a single instrument was particularly part of the realm of law, amenable to judicial supervision, interpretation, and enforcement.  As axiomatic as that postulate seems to us today, it was just as easy for members of his generation to view that same Constitution as something inherently political and contested, not chiefly or even at all within the province of the judiciary, and not wholly reduced or reducible to written form in a single instrument.  Jeffersonian departmentalism (under which each department of government is the supreme constitutional arbiter within its own sphere) and popular sovereignty (in which the political will of the living generation is the ultimate constitutional authority) seemed as self-evidently correct to many of his contemporaries in the Revolutionary and Early National scene as Marshall’s celebration of the distinctions between the American constitutional republic with judicial review from the British system of legislative omnipotence under natural law does to most inward looking American constitutionalists today.   There is nothing inherently right or wrong about constitutionalism in the styles of A.V. Dicey (legislative omnipotence), Thomas Jefferson (departmentalism and active popular sovereignty that does not go dormant in non-Ackermanian moments), James Madison (a system of checks and balances reduced to a short code), or John Marshall (judicial supremacy based on an instrument that did not say a word about judicial supremacy when he wrote Marbury and continued silent on that point when his successors affixed each of their signatures to Aaron v. Cooper some 150 years later).  One can coherently operate as a constitutionalist in the American tradition without obsessing over text and case law.   Jefferson’s retirement letters to Madison belabor the theme of constitutional threats and violations at the hands of Marshall, but the reader soon discovers that the constitutional touchstone Jefferson refers to in measuring Marshall’s constitutional infidelity is neither the seven articles written in 1787 nor Bill of Rights written in 1789, but rather a set of Whiggish principles and conventions respecting legislative supremacy that crystallized during the English constitutional crises of the seventeenth century.  Indeed Jefferson was not above getting misty eyed and mystical about seventeenth century English Whigs, in much the fashion that a great many popular constitutionalists today are prone to look with almost spiritual reverence towards the image of our founding fathers rather than to text and case law when extolling constitutional fidelity on the part of reprobate nation.    

What then is the source of those core foundational beliefs that comprise foundation mythology, those principles and stories associated with the text and its creation that resonate so deeply with those who fear that the Constitution is under assault by its deontological enemies?  For writers as diverse as Abraham Lincoln and Louis Henkin, the constitutionalism behind the constitution has been Jefferson’s Declaration of Independence.   I submit that it matters profoundly whether those of us who cleave to the Declaration in contemporary constitutional conflicts think principally in terms of the Declaration’s general part or special part, which is to say in the first place its description of the natural law principles according to which just government is practiced and self-determination fulfilled, and in the second place its list of grievances against British imperial authority.   Those who focus on the general part I view as my fellow travelers, internationalists in the tradition of the Enlightenment who cherish human progress and read their Declaration like Harvard historian David Armitage in his 2008 study The Declaration of Independence: A Global History.   In contrast, those who focus on the Bill of Particulars, the special part detailing perceived imperial wrongs, worry me profoundly, for I can’t help but think they cherish rebellion as a wonderful thing in its own right, a doorway to adolescent thrills, primitivism for primitivisms sake, imaginary conflict with parent figures, and war with Europe to purge the soul and get back to American-kind’s pure and violent essentials.  As suggested Saturday by E.J. Dionne in Washington Post editorial , some among this camp that worships the special part drift away even from the concrete character of the enumerated grievances in the Declaration towards a broader claim (wholly divorced from the Declaration’s text) that government is always a bad thing.  I sometimes wonder whether Clarence Thomas doesn’t come close to adding a special theoretical veneer to the radical school’s atomistic claims by proclaiming that the real constitutionalism behind the Constitution is not the Declaration of Independence but the Articles of Confederation, in the incoherent sense that the framers found the non-existent federal government under the Articles so terrifyingly strong that they assembled a new constitutional edifice featuring a federal government with very substantial enumerated powers in order to ensure that the states were better protected against federal over-reaching than they had been under the constitutional system of the Articles which featured no federal government at all.   Without having in mind or perhaps being aware of the Articles, Rick Perry and Ron Paul approach the same result in insisting that the Constitution was made by the states for the states, not by the people of one nation embracing one new national government.

Ever since my days as an at least slightly jingoistic high school nerd in the 1980s, my favorite part of Independence Day has been reading and reflecting on the Declaration of Independence.   The first two paragraphs explaining the Continental Congress’s theory of just government, natural rights, equality, and the right to self-determination have retained all their luster as I’ve aged, although I’ve grown to appreciate them differently since I began teaching comparative constitutional law and international law about five years ago.  I can no longer think of Jefferson’s general outline of legitimate grounds of secession of one nation from a larger empire without  comparing his criteria for justified secession with those outlined in the Canadian Supreme Court’s famous advisory opinion In. Re. the Secession of Quebec. More recently still, as I prepare to move to the University of South Carolina for the coming academic year, I find myself often mulling over the general theories of secession outlined in the Declaration in the broader context of recent scholarly efforts to offer a global theory of self-determination, such as those explored in Secession: An International Phenomenon, a series of provocative essays edited by University of South Carolina historian Don H. Doyle comparing the secession of the American South to other secession movements in modern history.  From the perspective of the global history sketched by David Armitage or the perspectives of law and philosophy developed by Don Doyle and his colleagues, the principles in those two opening paragraphs of the Declaration have help up very well indeed.  Whether the cause that Jefferson advocated was just or otherwise, the measures he described for judging its justice echo and endure.  In marked contrast, the Bill of Particulars, developed in the succeeding 27 paragraphs of the Declaration and reciting concrete grievances with British imperial authority, troubles me more with each Independence Day than it did the year before.   I am in no position to pass judgment, but I cannot say that I find all 27 paragraphs of charges convincing.

There are no official casualty figures on the imperial side of the Anglo-American civil war of 1775-1783, so estimating total deaths during the War of American Independence  is by its nature inexact, but it is no gross exaggeration to suggest that in the vicinity of 40,000 colonial rebels, loyalists, Native Americans, imperial forces from Britain and Europe, and others lost their lives in the eight year war, and that at least 100,000 loyalist were driven into exile in Canada.   The thirteen rebellious British North American colonies in 1775 had a non-Native American population of about three million compared to the U.S. population of some three hundred million today, so in relative terms the human toll of the War of Independence had an impact equivalent to that of an American war in our time costing four million lives on American soil and driving ten million compatriots into exile today.  What wrongs of 1763-1776 were vindicated at this enormous cost from 1775-1783?  Let us return to the list of grievances in the Declaration to help aid our memory.  

This essay has grown far too long already for this forum, so I will not recite each point laid out in the 27 paragraphs charging British authorities with alleged offenses warranting secession from the Empire and war to establish a new nation.  Rather, I will point out a few major themes among them, and focus on a few violations the singers of the Declaration considered particularly grievous.  On one basic level that only began to resonate widely with the population until the months immediately preceding the Declaration, colonial grievances reflected the simple insight put famously by Thomas Paine in Common Sense, namely that it was absurd for an island to rule a continent.   In 1763, the overwhelming majority of politically active residents who thought about such things supported the subject matter jurisdiction of the Westminster Parliament over the British North American colonies, in part because that jurisdiction was exercised rather lightly respecting internal matters of the mainland provinces.  Once jurisdictional conflict arose over taxation and tax enforcement issues, increasing numbers drifted gradually into the independence camp, with wide circulation of Paine’s manifesto in the winter and spring of 1776 dramatically quickening the pace and lending incipient self-determination sensibilities a strong anti-monarchical hue.  While Paine’s claims have their logic, it took the coming of civil war in British North America in 1775 to ripen the patriotic mind for their reception in 1776.   But given that imperial taxes were light – in fact far lighter in the colonies than in the home islands – it is fairly hard to move from the claim that their abolition demands self-determination to the claim that once self-determination was favored by a bare plurality of the politically empowered population its attainment without the consent of others affected (Native Americans, enslaved Africans, loyalists, pacifists, Canadians) justified a war costing 40,000 lives.  Apart from rejection of Parliamentary jurisdiction to tax and measures taken by the King’s government to enforce that jurisdiction, colonial grievances concerned imperial constraints on colonial efforts to appropriate lands for purposes of exploitation.  Here more than an absence of proportionality causes me to wonder about the legitimacy of the resort to arms to support what Armitage calls mere settler grievances.   Concrete charges in the Declaration of Independence justify the use of armed force to attain unilateral secession in order to nullify the Quebec Act and the Proclamation Line, and the sales pitch here is not just nationalist and racist, but what today would be considered at least border line genocidal. To speak plainly, principal grievances enumerated in the Declaration’s Bill of Particulars include imperial interference with Indian removal and imperial toleration of French speaking Catholics.   These are not grievances worth fighting for, worth 40,000 lives, worth driving at least 100,000 from their homes.  One cannot in good faith argue in retrospect that a self-determination movement by a political minority (or even plurality) and the defense of the movement by extreme violence is justified in order to repulse imperial efforts to partially protect racial and religious minority populations against settler aggression.  At least one cannot do so consistently with the universal and enlightened claims about equality and human rights invoked in the Declaration’s general part.

Over the past twenty years I have enjoyed a great many things, including reading nearly all of Jefferson’s surviving 19,000 letters while working on my PhD, learning about human rights from Louis Henkin and legal theory from George Fletcher while I was a student at Columbia Law School, teaching at Washburn Law School from 2005-2011, and for these last few weeks making a few longer than average entries on this first rate Blawg.   I have also enjoyed many wonderful and warm Fourth of July celebrations with friends in England, New York City, Baltimore, Arlington, Monticello, and Kansas.   I look forward to many more, with lots of spectacular explosions and grilled meat, and perhaps if Whiggish optimism is not yet wholly exhausted two hundred and more years after the Enlightenment has run its course, a little more celebration of universalism, human rights, and aspiration for happiness, and a little less celebration of collective violence among tribes and peoples.

Is deliberation overrated?

I'm not saying that deliberation is necessarily overrated, but I'm starting to wonder about its relative value. In recent years I've read a number of books and articles on the decision making processes of groups such as James Surowieki's The Wisdom of Crowds (2005) and Cass Sunstein's Infotopia: How Many Minds Produce Knowledge (2008), and found them to be very interesting and insightful. Both of these books at least suggest the possibility that group decision making may not always be better with group deliberation.

Of course, to suggest that something is 'overrated' typically implies that it is somewhat highly rated in the first place. When I look around, I see deliberation everywhere - government decisions, academic committee decsisions, tenure decisions, where to eat lunch, jury outcomes, Supreme Court outcomes (ok, only to a degree on that one). I think it's fair to say that deliberation is cherished in this country. But is it all that it's cracked up to be? What are its attributes? How do we evaluate its worth (relative to other systems)?

For a bit of class fun last semester, I tried a class exercise that was suggested by one of my readings on this subject.

I divided the class into three groups of equal size: 1) The deliberation group, 2) The secret vote group, and 3) the list vote group. I then held up for the class to see (all had roughly equal views) a glass container of paper clips. They were able to view the container for 30 seconds. I then asked the groups to decide how many paper clips were in the container. The secret ballot group was to do just that - each person would make a guess, write it down in private and their estimates would be averaged. The list  group would use a list - the first person to decide would write their estimate on the top of the list and then the estimates would go from there (everyone could see the prior estimates)- and they were averaged. The deliberation group deliberated on the best estimate and used a consensus decision rule on the number of paper clips.

The results? The best estimate was by the secret vote group, followed by the list group, and the worst estimate (by far) was by the deliberation group. Of course, this little exercise is hardly ready for scientific peer review and was done primarily for fun and to introduce the class to varying decision methods. However, given the prevalence of deliberation in our society, might it give us pause to think about whether it's 'overrated'? I'm not sure. Certainly there are other considerations at issue (e.g. how the process makes participants feel). But I thought I'd see what Prawfs readers thought.

Would you lie to prevent accurate enforcement of an unjustified law?

Here's something I'm thinking about vis-a-vis my article and I thought it might be fun to hear people's thoughts.

If you knew and saw A did X in front of you, where X is a crime that you think is unjustifiably criminalized because at bottom you think X lacked any morally blameworthy feature (e.g., pot possession/handgun possession/eating on the subway, whatever), how many of you would lie if the cop asked you (Did you see A do X a moment ago) or if the court called you as a witness--in order to prevent accurate enforcement of the law against A?

I take it some of you might be willing to lie or not answer if A if A was family/friend--true? But perhaps that would be the case even if X was a justified crime in your mind? In any event, how many of you think you should lie, but doubt you would because you fear the perjury/false statements criminal liability to you if you did? What are some of the other options you think are desirable as a moral agent facing this quandary?

I'd be curious to see what your intuitions are when you tweak the scenario in several ways too:

a) imagine you think X should be permitted conduct but you think the law banning X is nonetheless morally legitimate even if you don't think it's  all-things-considered justified in your view to have a criminal law prohibiting X.  (This is kind of like saying you think the law passes muster under a deferential reasonableness review). Would you lie then?

b)  imagine you think X is impermissibly criminalized because the law is so spectacularly dumb that it couldn't survive deferential reasonableness review (e.g., a prohibition on chess). Would you lie then?

c) imagine you think the law banning X is illiberal (ie. and e.g, it violates a core political right such as free speech) (perhaps X is flag burning). Would you lie then? 

The interpretive authority of consensus in the lower courts

Following up on my earlier post on today's Supreme Court decision in Fowler v. U.S., here is a post on another of today's cases: U.S. v. Tinklenberg. The case concerned how to calculate time under the Speedy Trial Act. Justice Breyer wrote for the Court, and it was a characteristically Breyerian opinion: The text could be read this way, but then again it could also be read this other way; and here are several (in this case, six) considerations that, taken together, lead us to adopt one interpretation rather than the other one.

Let's focus on his second consideration. The opinion tells us that, over the course of the last few decades, every circuit has answered the question at issue and, until the Sixth Circuit's decision here, every circuit ruled the other way. Breyer then states that "[t]his unanimity among the lower courts about the meaning of a statute of great practical administrative importance in the daily working lives of busy trial judges is itself entitled to strong consideration, particularly when those courts have maintained that interpretation consistently over a long period of time."*

Concurring in the judgment, Justice Scalia (joined by the Chief and Justice Thomas) concludes that the text is clear and so there is no need to consider anything else. In particular, he writes: "The clarity of the text is doubtless why, as the Court's opinion points out, every Circuit disagrees with the Sixth Circuit's conclusion. That is the direction in which the causality proceeds: Clarity of text produces unanimity of Circuits -- not, as the Court's opinion would have it, unanimity of Circuits clarifies text."

I'm not 100% sure what Breyer has in mind, but let's take a strong reading of his position, according to which the lower-court consensus has more than the evidentiary value of shedding light on the best interpretation of the statute. The consensus, instead, has force by virtue of its mere existence. That is, the fact that all the lower courts have adopted one interpretation is an independent reason (not conclusive, to be sure) to agree with them -- due to the interest in avoiding disruption, etc.

I am inclined to think that the strong view of the value of lower-court consensus, whether or not Breyer is actually embracing it here, states a normatively desirable principle of law. Cf. Eskridge & Frickey on "Law as Equilibrium."

* Note: I corrected a typo that appears in the current version of the opinion on the Court's website. (I'm not sure I corrected it the right way, though.)

How Should Elected Judges Interpret Statutes?

Federal judges are unelected and, basically, politically unaccountable. Most state judges are elected in some form or another. What (if any) significance does this hold when it comes to how judges should interpret statutes? There is some evidence that modes of selection and retention do in fact affect judicial behavior, but here I am asking the normative question. Should a judge's elected character make a difference to the judge's interpretive method?

A) No. What matters is the judicial role. That role determines the proper interpretive method. How one got into the role is irrelevant.

B) Yes. Elected judges can legitimately engage in looser interpretation or more aggressive interpretive maneuvers because they have a better democratic pedigree. (I concede that some of the terms being used here are vague, contested, complex, etc. but I hope they have enough content to allow the reader to agree or not.)

C) Yes, but in the opposite way. Elected judges have to be more restrained precisely because they lack the right kind of independence.

D) None of the above.

As you might guess, this issue is implicated in one of my current research projects. I am tentatively endorsing B. Perhaps you can save me from making a fool of myself by explaining why I'm totally wrong before I post the draft on SSRN.

Should Jurisprudence Be a Required Law School Course?

Note: the following is a guest post from Patrick Luff, who will be VAPing at W and L, and is currently at Oxford:

In doing some extracurricular reading on jurisprudence, I’ve been struck by how it can yield additional layers of understanding and meaning to any area of the law. No U.S. law school I know of requires students to take classes in jurisprudence or legal theory, and I expect that many U.S. lawyers have never read a word about jurisprudence (excluding that part that overlaps with constitutional theory, which they might get a bit of in their con law course). On the other hand, at the University of Oxford and some other law schools in the United Kingdom, undergraduate law students are required to take jurisprudence.

Granted, as most jurisprudence scholars recognize (usually on the first page of their books) that isn’t directly related to law practice­—you can’t plead that a law is invalid because it’s basis is an ought derived from an is. But if I were designing a law school curriculum from scratch, I might require jurisprudence as an upper-level course. I would make it required, rather than merely offered, because I think it would enhance students’ understanding of the other subjects they had studied. On the other hand, I wouldn’t place jurisprudence in the first-year curriculum, because I suspect that reading jurisprudence is a more enriching experience if you first understand the basics of how we use the law. Having examined various subjects in the rest of their courses, students might benefit from looking at the big picture of what law is­. I’m willing to admit, however, that my suggestion may be nothing more than the conceit of a law professor who thinks that jurisprudence is interesting, and that law students should therefore take an equal interest in the subject. Should jurisprudence be a required law school course? If so, when should students take it?

 

Don't worry, I haven't gone wobbly on democracy

For the crew who helped me overcome my anxieties about the strengths of libertarianism over the last couple weeks, I owe you thanks; you can rest assured that your efforts have helped and my current draft on retributive justice and the demands of democratic citizenship has taken a stronger pro-democracy view. Phew. (Needless to say, please don't bother quoting or citing that blog post in anything since I now disavow some of the tentative concerns I raised there.)

Here's an interesting thing emerging from that discussion though. If you look at one of the best accounts of democratic authority out there, Scott Shapiro's essay from his 2002 edited volume with Jules Coleman, there's a footnote in the final version (that's not in the online version on Scott's SSRN page) in which Scott leaves out from the analysis the case of the "internal exile," the person whose private pursuits are not dependent on a pervasive scheme of social cooperation. As I put it, this is a person who goes off the grid. I followed up with Scott and he didn't think his account could necessarily reach that kind of person in terms of obligating him to view the law as having some kind of independent moral force. I'm wondering which accounts of political obligation, if any, y'all think are most successful at reaching that person. Feel free to email me or to provide suggestions or citations in the comments. Thanks.

The Short Sharp Paper Series and a movie review too.

Since I would clearly never engage in icky acts of overt self-promotion, and I cringe :-) at the thought of others saying nice things about me or my work, that leaves it to me to sometimes use the blog responsibly and say nice things about the work of others. During this last semester when I had the privilege of a teaching release, I probably read more drafts than I usually do, sometimes to the consternation of those whose drafts I had read and commented on.  But I've also had the chance to continue reading lots of finished products and lately I've found all sorts of wonderful stuff worth sharing. Of course, I should be writing this up on JOTWELL, which was created with the smart idea that we should share our reactions about papers that we liked (lots)--it's a concept I love and I have even contributed, but, dammit Jerry, writing up a JOTWELL entry takes time. Fortunately, Facebook status updates don't take much time...and this post is sort of an agglomeration of some recent status updates--talk about synergy. 

Those of you on FB with me may have noticed that I have unwittingly started a series of touts or vouches for sharp and usually short papers that may be of broader interest. This has proven useful to a few of you, or so you say, Tamar and Sarah. In any event, I figured some of you may enjoy knowing what I've found really good or helpful to me recently, but I should note that I won't be offering explanations of why I think they're good. These will be like my occasional Ruth Franklin-inspired movie reviews. [Btw, I saw Win Win a couple weeks ago on a date night--worth watching, but for Netflix, not necessarily in the theater, at least if you triage your movie time as I do under the constraining presence of little monsters angels in your blessed and beleaguered life.]

So, without further adieu, here are a few disparate links in no particular order:

a) my Robin West brain crush continues unabated: here's some stuff of hers with which I recently slaked my thirst

b) a short YLJ student note by now prof Stuart P. Green on challenging prosecutorial inaction

c) an awesome YLJ essay by Jeremy Waldron from a few years back on democracy and judicial review--and Fallon's concise but cogent response, which I've now just read based on someone else's rec.

d) a nifty and short essay by Sasha Volokh addressing and critiquing the progressive case for cost-benefit analysis as propounded by Ricky Revesz and Michael Livermore

e) and finally for today, a recent piece by Sean Williams on self-altering injury and the hidden harms of hedonic adaptation, which just came out in the cornell lr.

Enjoy your reading time as summer beckons. And feel free to share similar positive reax to the work of others (non-anonymously) in the comments.

P.S. Did y'all hear FOP Alex Long on NPR the other day dishin' on his Bob Dylan and the Law stuff? You can find the link here. 

Libertarians and the Claims of Democratic Authority in the Context of Criminalization Debates

I have a section in this paper I'm working on --designed to be a love letter of sorts between retributive justice and liberal democracy :-) --  that I'm afraid I'm not sure is fully there yet, and I was wondering if those with a political philosophy bent might have some reactions. The relevant background here is that I'm trying to explain the reasonableness of democratic authority, largely by appeal to some arguments put forward these days (ie, in the last decade) by Shapiro, Hershovitz, and Christiano. My concern, however, is that in anticipating the first-wave libertarian objection, they have not responded to the "second wave" of critique that an aspect of Arneson's paper represents. (The rough cites for this can be found below.). I could be completely wrong and maybe they or others address the concern, so please feel free to email me offline . 

So below the fold, please take a look at these tentative thoughts and feel free to share some reactions or references to additional citations that can help me manage Arneson's critique. I've included a bit more of the discussion than is necessary in case it spurs other reactions too. All the usual caveats apply--it's just a preliminary draft and not for citation or circulation w/o my approval but yes, please tell me if/how I'm wrong (gently). Many thanks!

1. Why Fidelity to Liberal Democratic Law?

 

To sustain a claim that offenders in liberal democracies could reasonably and retributively be punished even in the absence of conduct that is morally wrongful probably requires overcoming an intuition that is widespread and reasonably fixed. Nonetheless, we currently have many laws that criminalize conduct that is not morally wrongful, and many of those laws are violated, and those violators are punished. So do we rationalize this outcome simply by appealing to the possibility that we are all, deep down, thoroughgoing welfarists and that these laws (and the punishments made in their name) are in fact welfare-promoting? 

Well, that is one tactic available to avoid cognitive dissonance. But another way to explain this outcome – and indeed to justify it – is to say that we have obligations to conform our conduct to the law’s dictates in liberal democracies, and the recognition of these obligations is not only reasonable, but praiseworthy.^[i] What would such an argument look like?

Scott Shapiro and others have defended the idea that there is an authority of law in liberal democratic regimes such that the fact of legislation to do X provides a free-standing (though probably still defeasible) reason to X.[ii] (I leave aside for now whether that obligation is one that necessarily trumps all other reasons to do or not do X.[iii])

We live, work, and play with others—that much cannot be denied. The reason we must conform to democratically elected authority is because such a power-sharing arrangement is, according to Shapiro, “socially necessary, empowering and fair.  By disobeying, subjects are unilaterally, and hence unreasonably, setting the terms and direction of social cooperation.”[iv] To understand why this unilateralism is inappropriate, consider first that “social cooperation is not … possible without the availability of procedures for the resolution of conflict.”[v] Moreover, and “absent acceptable resolution, disputes would fester … [and] likely threaten the very survival of the community.”[vi] As Heidi Hurd notes, democratic rulemaking is morally demanding (even if defeasibly so)  because “when a moral matter is in dispute (even a matter that concerns competing claims of right, rather than competing claims of preference or utility) and it is more important (again, perhaps as a matter of right) to gain a peaceful resolution of the dispute than to gain a right resolution at a cost to peace, a democratic resolution will recommend itself, and the value of peace will thus dictate compliance with the democratically-crafted solution, even when one takes the resolution to be in error.”[vii]

To risk such dire effects is especially misplaced once “citizens are granted the power to exert control over their lives by allowing them, through the franchise, to affect the terms of social cooperation and the direction of collective pursuits.”[viii]

According to Shapiro, the unreasonableness of disobeying democratic authority is all the more true when there are basic background rights that continue to empower or “enable citizens … the opportunity to persuade their rivals, and the uncommitted, of their view.”[ix] Finally, “democratic processes constitute fair procedures for the resolution of disputes. Democratic processes are fair because power is shared in a roughly equally manner. Equal power-sharing consists, first, in the equal voting power that individuals, or groups to which they belong, have in the selection of policies or election of representatives.  Second, equality of power is determined by the equal opportunity that individuals, or groups to which they belong, possess to express their views and to persuade others as to the value of their positions.”[x]  Ultimately, Shapiro’s argument here is that it is unreasonable “not to abide by” procedures for dispute resolution that are necessary, empowering, and fair.

Presumably the Nietzschean, the anarchist, or libertarian would resist this claim to their conformity to the law: after all, it’s not as if they asked to receive the public order, coordination, and dispute resolution benefits provided from the state.[xi] If someone throws a newspaper at my house that I didn’t ask for, I’m not morally obligated to pay for it and it’s not right to ask me to do something else in return for a benefit.[xii]

Shapiro adroitly anticipates the objection that the receipt of benefits from a particular person or body is not normally sufficient to ground obligation or deference. But his response here is that whatever liberty the objector has to pursue his projects is a function of the restraint shown by other people.[xiii] Thus to reject the terms of social cooperation that create the objector’s liberty is ostensibly exploitative of other people. Shapiro argues further that such behavior is “dictatorial” because it denies the majority the right to control their lives and it fails to show them the “respect due to them as equal participants in a fair power-sharing arrangement.”[xiv]

There is much I find compelling in this argument and similar ones advanced by Hershovitz, Waldron, and Christiano. For instance, if A thought that his vision of the good required others to do X (build museums to honor a tradition), but the majority did not want to do X, I could easily accept Shapiro’s claim that A’s failure to listen to the majority would be dictatorial and disrespectful to his fellow citizens.[xv] Nonetheless, I don’t see the argument here going through entirely, at least as stated.

The focus of our concern has to be on the claim above that observes whatever liberty the objector has to pursue his projects is a liberty created by the restraint of other people.  Is this a descriptive claim of reality and if so is it accurate? If it’s a descriptive claim, it seems to depend on a hidden assumption that private pursuits without a state restraining us are impossible because otherwise we would live in a Hobbesian state of nature of ceaseless war of “every man against every man.”[xvi] But it might well be that such a view is overly pessimistic and that we would be able to pursue some private pursuits in part through a) our own efforts to do so, b) the moral forbearance of others, and c) the measures of self-defense we threaten to those who would not forbear and instead attempt to interfere with those private pursuits.  Moreover, assuming we do have a state with the capacity to restrain us from interfering with the libertarian’s private pursuits, in what way is it correct to threaten predation to the libertarian rather than reasons?

Maybe this isn’t what Shapiro means though. Perhaps he’s saying that the pursuit of essentially all private projects necessarily involves building on the achievements and restraint of those before or alongside us. So our own private pursuits are always activities in which we actively participate in the schemes of social cooperation that require our fidelity. For example, if a person wanted to raise chickens on his land and watch TV all day he would perforce be relying on the laws and institutions that protect his land and chickens from intrusion and theft, the laws that provide for intellectual property generation, dissemination, and protection, and the background property norms that allow a person to own chickens and television as private property. Enjoyment of private property rights, for instance, is not just a private pursuit: it entails control over other people, for example, because the owner will (likely) have the power to exclude others from entering the property and taking the chickens.[xvii] As Christiano notes, “Those who refuse to pay taxes or who refuse to respect property laws on the grounds that these are unjust are simply affirming a superior right to that of others in determining how the shared aspects of social life ought to be arranged. Thus, they act unjustly.”[xviii]

All this seems true. But does it go far enough to do the work that democrats want regarding criminalization? If these considerations seem abstract, consider: the libertarian might concede that he morally owes some respect to those public taxing and spending and criminalization decisions that keep the minimal state functioning so that he can raise chickens and watch TV.[xix] And no matter how much he loves opera, he will concede that he can’t force others to kick in and subsidize opera because that would also be disrespectful or dictatorial of their entitlement to liberty and respect. Nonetheless, he might insist there is a “rough line”, as Arneson puts it, between “rights that confer on the right-holder the power to direct how another shall live and rights that do not confer such power.”[xx]

Consequently, our objector might respond that anything beyond that low floor, even if supported by majority rule, corrals too much of his time and effort (and reasonably acquired property) for public use or imposes more restrictions on his liberty than are necessary for that minimal state to protect a large sphere of autonomy for the individual to act privately or with others on the basis of consensual terms of cooperation. Accordingly, the libertarian objector might say: any extra burdens imposed through majority rule on libertarians are ones you democrats can’t reasonably force me to bear if the pursuit of my projects is consistent with and doesn’t impinge on the autonomous spheres of others. Moreover, pace Shapiro, there’s nothing dictatorial about my libertarian stance because I’m perfectly willing for everyone to enjoy the same expansive sphere of private or negative liberty that I do. So, what’s disrespectful about a strong presumption of (negative) liberty, he might ask?

To bring it down one more level of abstraction, consider if the libertarian objected to a law passed with strong majority support designed to eliminate private possession and use of drugs like cocaine or pot. The libertarian can say everyone should have that liberty uncurtailed. Who is being more dictatorial? The majority that criminalizes this conduct or the objector who says this kind of non-culpable activity should not be subject to criminal law and punishment? The majority could say, look, because of the harmful effects of drug use or manufacture, we end up with people causing other crimes and unjustified risks to others when they are high; sometimes the production of drugs (like meth) itself is physically dangerous (independent of the fact of prior prohibition); moreover, we face more expensive medical insurance costs and we worry about free-riders who don’t pay their whole way ex post, so we’d rather try to prevent people from using drugs at the outset because of those risks and harms. That strikes me as a plausible set of responses to the libertarian.[xxi]

Nonetheless, it seems the libertarian should be able to buy some insurance product to ensure to others that he won’t be free-riding, or imposing the risks of externalities arising from his conduct, and thus avoid criminality for recreational drug use (and maybe even its manufacture). If he’s willing to say, look, I will use drugs only in my own home, I will show my good faith by minimizing these risks and externalities by buying insurance and hiring a guard to keep me from injuring others when I’m high, then it seems as if Christiano and Shapiro’s arguments about disrespect toward social cooperation is not necessarily applicable.[xxii]

Perhaps a better way to persuade even the libertarians to conform to democratic authority is to take a tack that Waldron emphasizes: namely, to point out that we need a procedurally legitimate way to go about resolving disputes even over first principles.[xxiii]   Democracy plausibly meets that challenge. But as Raz points out, it’s not clear why the fact of disagreement grounds an obligation to accede to democratic decision-making procedures.[xxiv] Moreover, even if it were true that disagreement did ground such an obligation, it would not provide us with a firm basis for enshrining certain liberal rights against democratic choices. I take it, that for skeptics of judicial review like Waldron, this inference isn’t such a big deal as it might be for others.[xxv]

Maybe it would be enough to show the various intrinsic and instrumental benefits associated with democratic authority though. There is after all the suggestion from various corners that democracy: offers a form of epistemic or theoretical authority[xxvi]; instantiates a form of procedural justice[xxvii]; promotes individual autonomy inasmuch as it facilitates our ability to do things that we would not be able to do alone; boosts self-esteem of citizens[xxviii] while militating against social alienation and defeatism[xxix]; and allows citizens to “express and respect their status as political equals.”[xxx] Perhaps the benefits of democracy are so manifold that to reject them in the face of the alternatives is to act unreasonably. But I’m not sure the libertarian discussed above is unreasonable, especially once he makes the concessions to democracy that he does about the shape and contours of those social projects necessary for the protection of liberty and the polity itself.

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[i]In the punishment context, the offender has not necessarily consented ex post to his punishment, but, as a reasonable citizen/resident/guest, living with other reasonable persons, he should authorize the creation of fair institutions of retributive justice as part of the machinery necessary to work out the dilemmas of collective self-government. I try to elaborate this point more in what follows in the text and it is in no way unique or, for that matter, without controversy. Nonetheless, there are a number of punishment theorists who adopt this quasi-contractualist (as opposed to contractarian) tradition to ground our obligation to conform our conduct to the law. Cf. Murphy, “Marxism and Retribution,” p. 228: “The criminal himself has no complaint, because he has rationally consented to or willed his own punishment. That is, those very rules which he has broken work, when they are obeyed by others, to his own advantage as a citizen. He would have chosen such rules for himself and others in the original position of choice.” On the difference between contractualist and contractarian, see SEP __.

[ii] Shapiro, 2002 authority essay in oxford handbook 434-439. See also Rawls, A Theory of Justice, 98-99, 294-95 (Rev. ed. 1999) (discussing the “natural duty” to support reasonably just institutions).

[iii] Christiano believes that the democratic assembly’s vote in favor of a law provides “each person a pre-emptive and content-independent reason for complying.” Christiano, The Authority of Democracy 2002, p. 3. But further along he clarifies that respect for such votes is contingent on abidance with other constraints: (“There is no good reason for thinking that matters of distributive justice, individual rights and the common good are less normatively important than democratic principles.”). Id. at 4. So that leaves us with a question of what gets prioritized, which itself is a cause for disagreement, and thus a possibility for infinite regress emerges.

[iv] Shapiro, Authority essay, 2002. (italics mine)

[v] Shapiro

[vi] Id.

[vii] Hurd, 42 SDLR 2005 at 78. I confess I wonder about the extent to which Hurd’s quasi-anarchistic views in her earlier work is undermined by this later piece, in which she provides 3 content-independent reasons for giving democratic rules some weight as a reason for action in favor of conforming to the law.

[viii] Id.

[ix] Shapiro.

[x] Shapiro. (Shapiro acknowledges and is unpleased by the fact that certain laws might make harder the purportedly equal shot at persuading when money drives politics to the extent that it does).

[xi] Nozick, ASU, 90-95.

[xii] This is the distinction between receiving and accepting benefits that some fair-play advocates invoke. My accepting a benefit might obligate me because I am voluntarily participating in a scheme of social cooperation. But my receipt of benefits cannot on its own show that I have voluntarily participated in a fair scheme of social cooperation that thereby obligates me. Cf. A. Simmons 1979 (129).

[xiii] Shapiro (noting that the objection “ignores the fact that personal liberty has value only when a scheme of social cooperation is already in place.  One cannot complain that one’s ability to pursue projects in the manner one sees fit would be overburdened when the ability to pursue those projects essentially depends on everyone else’s restraint.  The very assertion of personal liberty indicates that the objector willingly accepts the benefits of such procedures.  The objection, in other words, wants its cake and to eat it too.”).

[xiv] Shapiro.

[xv] Shapiro’s account here basically coincides with others who vouchsafe the authority of democracy, such as Peter Singer (1974) , Tom Christiano (SEP), Jeremy Waldron 1999.

[xvi] Hobbes, Leviathan, ch. 11/13.

[xvii] See Arneson, Democracy is not intrinsically just, around fn. 11. Justice and Democracy, eds. Keith Dowding, et al. (Cambridge: Cambridge University Press,

2004), 40-58

[xviii] Christiano, Authority of Democracy, at p.21.

[xix] Cf. Nozick, ASU.

[xx] Arneson, supra note __, (“a right that constrains other people from engaging in a

certain type of conduct toward the right-holder differs from a right to set rules

that might specify what others shall do across a broad range of important types

of conduct.  I concede this is a difference in degree but when the difference in

degree is large the difference is large and in my view morally significant).

[xxi] Of course, the story is much more complicated. For a helpful overview of how and why drugs laws in the United States emerged, see Richard C. Boldt, Drug Policy in Context, 62 S. Carolina L. Rev. 261 (2011).

[xxii] Similarly, Tom Christiano argues that the moral authority of a democratic assembly runs out when the assembly passes laws that “undermine equal respect,” Christiano, SEP, since it is that norm that grounds the authority of democratic assembly in the first instance. But as the example above shows, it is not clear who is being disrespectful: the majority that seeks to constrain the liberty of the objector who creates risks and costs or the objector who says the majority is acting in a tyrannical fashion by not allowing him to accommodate the majority’s reasonable interests in reducing the risks and externalities of the objector’s hypothetical drug possession and use.

[xxiii] See Waldron 1999; Christiano, Authority of Democracy (“citizens are bound, as a consequence of the facts of disagreement, fallibility and cognitive bias, to disagree about what justice requires in a society”).

[xxiv] See Hershovitz 2003 (at n.48, describing Razian critique of Waldron and providing specific references).

[xxv] This seems to be more of a problem for Christiano. Christiano and I agree that liberal rights are a basic necessity for the justice of democratic authority to be available, but he doesn’t quite tell us how to defend well against the libertarian objections that say the democratic assembly gets some leeway to resolve necessary projects but not those projects unnecessary for securing the peace and minimal conditions for civil society to effloresce on its own.

[xxvi] Hurd YLJ Challenging Authority at 1675-76 (arguing that democracy may be epistemic guide to determining antecedent moral obligations).

[xxvii] Robert Dahl, DEMOCRACY AND ITS CRITICS 164 (1989).

[xxviii] Rawls, TJ 234 (1971).

[xxix] Hershovitz, 2003 at 214.

[xxx] Gutmann and Thompson, DEMOCRACY AND DISAGREEMENT 18 (1996).

 

Favorite Tort Theory Article of the Year: John Gardner on Corrective Justice

It has been an interesting year in the theory of tort law.  Gregory Keating’s stuff is always good (here); Scott Hershkowitz cleverly used Harry Potter to demonstrate how tort theory is often blind to procedural dimensions of tort law (here); Goldberg & Zipursky offered a comprehensive account of their conception of tort law as a law of private wrongs (here); Joseph Raz wrote brilliantly on responsibility and the negligence standard (here, here); Avihay Dorfman has defended an account of the morality of tort law based on the value of equal-respect (here, here), and there have been others.  Yet, my favorite (with Raz of course a close second) is John Gardner’s recent article on corrective justice (here).  

Gardner – successor to Ronald Dworkin as the Chair of Jurisprudence at Oxford – is often primarily thought of as a theorist of criminal law, which may have the unfortunate effect of distracting readers from his equally impressive work in other fields such as torts (e.g., here, here, here, here).  Not that I always agree with Gardner.  In fact, I devoted an article to exploring and rejecting some of his ideas on the nature of the negligence standard (here). Yet, I believe that Gardner is among the handful of the world’s very best legal philosophers.  His work is always carefully reasoned and highly illuminating.  You may say I’m a fan.

In his most recent piece – "What is Tort Law For? Part 1: The Place of Corrective Justice" – Gardner sets out to clarify the concept of corrective justice and its role in the law of torts.  A corrective justice approach to tort law appears, at least on its face, overly focused on tort law’s remedial aspects.  Remedial duties are second-order duties.  They are predicated on a violation of first-order duties, which in tort law are embodied in duties such as the duty of care.  Any account of tort law predicated on corrective justice must explain how corrective justice – a concept focused on the remedial – can account for the primary duties of tort law.  Jules Coleman, for example, tackles this problem in his The Practice of Principle (lecture III).

Gardner’s article is rich.  His explanation of the logic of corrective justice and its relation to primary obligations is particularly interesting. Where an obligation is violated one may often still conform to the reasons for that obligation.  Given that it is no longer possible to adhere to the original obligation, the persisting reasons for that obligation call for the next-best satisfaction.  Put differently, the rationale for a violated primary obligation (e.g. a duty of care) is also a rationale for a secondary obligation which is an obligation to do the next-best thing (e.g., compensation).  Tort law’s remedial obligations of corrective justice are rational echoes of tort law’s violated primary obligations.  Realizing this clarifies the normative connection between duty and remedy in tort law: the reasons why one must pay for the wrongful harms one causes are the same reasons why one must not cause such harms in the first place.  Gardner calls this the “continuity thesis.”  Plaintiffs’ remedial acts are (partial) conformity with those original reasons they failed to conform to in violating the primary obligations of tort law.  In tort law the reason not to violate the primary obligation is that even perfect performance of a secondary remedial obligation does not ever fully satisfy the reasons for the primary obligation.  There is always a rational remainder of nonconformity.  This remainder manifests itself in reasons for a variety of reactive emotions such as regret or shame for violating one’s primary obligation. 

Gardner is currently working on a sequel project titled: "What is Tort Law For? Part 2: The Place of Distributive Justice."  I cannot wait.                       

Should Retributivists Obsess about Moral Wrongdoing?

I'm both excited and nervous to be heading to UVa tomorrow to give a presentation in the late afternoon on the subject of  "Retributive Justice and the Demands of Democratic Citizenship."  I'm excited because after my presentation I will face challenges and questions from some of my favorite voices in criminal law theory: Antony Duff, Michael Cahill, Josh Bowers, and Darryl Brown (and in the print version of this paper, Heidi Hurd and Mary Sigler, who sadly couldn't join us in person). But I'm nervous because, did I mention, those same people will be eviscerating whatever substance can be found in the paper and the presentation. Anyway, if the prep for colonoscopies is one's idea of fun, then this will be a terrifically good time, I'm sure. Thanks to Darryl Brown and the student editors of  a new journal at UVa, the Virginia Journal of Criminal Law, for bringing us all together in C-ville. I really am excited...and nervous.

Oh yeah, the paper is about, among other things, why retributivists shouldn't think the only good criminal law is a criminal law that targets moral wrongdoing. I'll have more to say about that later. In the meantime, if you're in or near Virginia, I hope you can join us at the Caplin Pavillion at 5pm. And a special thanks to Mike Cahill for helping me last week see the thread of the argument I was working out these last few months. I've been lucky the last few years to have Mike to consult to find out whatever it is I think about a given subject in criminal law. I heartily recommend him (or someone like him) to you all.  

Yikes, a little googling just revealed this very disturbing image: 

Is "Intellectually Vacuous" the Right Expression for Veil-Piercing Doctrine?

Over at his blog, Steve Bainbridge endorsed a view, inspired by comments from Steve Bradford (Nebraska) at Business Law Prof Blog to the effect that every time he got to teaching "veil-piercing," he was reminded again how "intellectually vacuous" the doctrine was.

I sympathize.  I have the same reaction when I teach veil-piercing.  Why?  It's the tempest in a teapot problem that affects much of what commercial and business lawyers learn in school, on one hand, and what they practice, on the other.   Were you inside the teapot of an idiosyncratic case that ends up as an appellate decision on veil-piercing, it would seem like a Category 5 hurricane.   You read five or six cases with outrageous facts and try to reconcile how the doctrine for why corporations legitimately exist (individual use them to shield themselves from liability) is exactly the same as the doctrine under which individuals can be tagged (individuals used them to shield themselves from liability).  Blow winds and crack your cheeks, rage, blow!  But piercing cases are rare, idiosyncratic, and usually marked by some outrageous conduct that makes the decision, in retrospect, not particularly surprising.

But I disagree that the proper description of the problem is intellectual vacuity.  The problem is trying to reduce to propositions something that propositions can't reduce.   I've been teaching first year contracts and I've encountered this same "vacuity" problem every time the standard is "justice" (as in promissory estoppel), unconscionability, or mistake.  Analogical reasoning doesn't work because it is inductive analogy - the cases are supposed to describe a rule - rails in a Wittgensteinian sense - that point you to the next result, and there are no rails, or there are too many rails, or they aren't parallel (metaphorically speaking).   The better way to approach this is to understand that (a) we have a non-propositional conception of the prototypes of corporate legitimacy and corporate legerdemain, (b) the prototypes sit in polar opposition on a continuum, and (c) the rationalizing propositions follow the non-propositional and intuitive metaphoric leap from the specific case before us to a prototype.  Another in my series of Venn representations of this kind of polarity is at left - this on unconscionability.

Shameless self-promotion alert:  I discuss this cognitive process at length (giving credit where credit is due - I didn't make this stuff up) in three recent papers:  Metaphor, Models, and Meaning in Contract Law;  The Financial Crisis of 2008-09:  Capitalism Didn't Fail But the Metaphors Got a "C" (Minn. L. Rev., forthcoming), and The Venn Diagram of Business Lawyering Judgments (46 Seton Hall L. Rev. 1 (2011), forthcoming).

Awesome Civil Recourse Conference at FSU

My apologies for the brief delay in getting notice of this exciting conference up to you all, but FSU is hosting yet another all-star conference this spring, this one organized by the FSU Law Review and my colleague, the inimitable Curtis Bridgeman. The information appears below and after the jump. I plan on being there and may have a small role in trying to keep Jason Solomon in line during his panel.

Come to the 'Hassee in February.  It'll likely be warmer then than wherever you're reading this now, and more importantly,  this will be a stellar set of conversations, all slated to appear in the FSU law review.

Symposium on Civil Recourse Theory

February 11-12 , 2011
at the Florida State University College of Law

Tallahassee, Florida

Presented by the Florida State University Law Review.

Civil recourse theory is an account of private law (property, contract and especially
tort) according to which the primary purpose of private law is to empower victims to
confront publicly those who have wronged them and enlist the state’s help in addressing those wrongs. This event brings together some of the world’s top scholars in private law to discuss this emerging area of legal philosophy.

Click here to register for the symposium. 

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AGENDA

 

Friday, February 11

9-9:10 a.m. – Welcome
Dean Don Weidner, Florida State University College of Law

9:10-10:40 a.m. – Civil Recourse vs. Corrective Justice
Jules Coleman, Yale Law School
Arthur Ripstein, University of Toronto Faculty of Law
Ernest Weinrib, University of Toronto Faculty of Law

11 a.m.-12:30 p.m. – Political Theory of Recourse
John Goldberg, Harvard Law School
Heidi Hurd, University of Illinois College of Law
Jason Solomon, William & Mary Law School

12:30-1:50 p.m. – Lunch

1:50-3:10 p.m. – Contracts and Civil Recourse
Jody Kraus, University of Virginia School of Law
Andrew Gold, DePaul University College of Law
Curtis Bridgeman, Florida State University College of Law

3:30-5 p.m. – Relational Duties
Ben Zipursky, Fordham University School of Law
Stephen and Julian Darwall, Yale University Law School and New York University
Nate Oman, William & Mary Law School

7 p.m. – Dinner

Saturday, February 12

9-10:30 a.m. – Recourse, Revenge, Redress, Remedy
Emily Sherwin, Cornell University Law School
Tony Sebok, Cardozo School of Law
Gabe Mendlow, Yale University Law School

11 a.m.-12:30 p.m. – Recourse and Justice
John Gardner, Oxford University
Stephen Perry, University of Pennsylvania Law School
Scott Hershovitz, University of Michigan Law School

An informal lunch will be provided after the last panel.

 

Some not-so-random updates on the scholarship front; or, what I like to tell my deans I did on winter "vacation."

I'm excited to say I've just begun my first semester of teaching leave. While I am excited to tackle some new projects now, I am also clearing some other ones off the decks. (And yes, I hope the leave facilitates some more substantive blogging too.)  In any event, for the benefit of my mom and a handful of other folks looking for something to read besides Amy Chua or Ethan Leib or Paul Horwitz's new books, I thought I'd let you know that there are new (and nearly final) versions of a couple pieces of mine up on SSRN and I just added a draft of a new piece.

The first new version is of my chapter, What Might Retributive Justice Be?, for the Retributivism volume edited by Mark D. White.  (I am hopeful that this volume gets the same publicity Mark was able to generate for his edited volume on procrastination--a review in the New Yorker!). As I alluded to when I put the draft up first, it is a relatively short overview of contemporary retributive justice theory (more specifically, the conception of that punishment theory that I favor). Thus, for those of you prawfs teaching criminal law to first year students this semester, and punishment theory this week or next, please feel free to circulate the draft or the link to your students who are still puzzled by the accounts of retributive justice offered up in their casebooks. 

The second piece I have revised, which is now up on SSRN, is entitled Overcoming Tradeoffs in the Taxation of Punitive Damages. This piece should be coming out in the next couple months and is a companion to a piece Gregg Polsky and I did last year entitled Taxing Punitive Damages.  Btw, Larry Zelenak of Duke wrote a super interesting reply to that piece, which you can see here; I suspect Gregg and I will write up a short reply in the near future. Anyhow, whereas the piece with Polsky made its recommendations regarding the taxation of punitive damages largely in response to the practice of punitive damages law currently governing in most American jurisdictions, the new companion piece is designed to advance the discussion of the normatively desirable tax treatment of punitive damages once punitive damages are properly disaggregated to serve the separate functions of cost internalization, victim vindication, and retributive justice.  In developing the normative policy recommendations, the new piece builds on the earlier work I've done regarding the reformation of punitive damages law.

Finally, and somewhat more exciting, Chad Flanders (SLU), David Gray (U. Maryland), and I have just uploaded a draft of a new piece of ours, coming out in April, which is entitled Beyond Experience: Getting Retributive Justice Right. It's an essay that continues and, for now, concludes our part in the conversation about the relevance of subjective experience, and in particular, hedonic adaptation, to retributive punishment. Although interest in subjective experience for purposes of punishment goes back at least as far as Bentham, this was a topic whose salience for retributive justice theory was most recently revivified in 2009 and 2010 by Adam Kolber; John Bronsteen, Chris Buccafusco, and Jonathan Masur (BBM); and, to some extent, my colleague Shawn Bayern. Chad and I wrote up an article (entitled Bentham on Stilts: The Bare Relevance of Subjectivity to Retributive Justice) trying to explain the wrong turns associated with such arguments. Separately, and roughly around the same time, David Gray wrote up his trenchant critique of Kolber and BBM (entitled Punishment as Suffering). BBM responded to our sallies in their recently published essay, Retribution and the Experience of Punishment. The piece I've just uploaded to SSRN, Beyond Experience: Getting Retributive Justice Right, is our attempt to deal with some of the new (and old) arguments and formulations advanced by BBM.  Doubtless, you're tempted to wade into this stunningly important debate yourself :-), but if you've been overcome by other obligations, here's the punchline of our piece: we're still not persuaded that hedonic adaptation is of any substantial significance to punishment theory or policy guided by retributive principles worthy of adhering to. 

"This is writing ... that restores one’s faith in the legal academy; this is what legal scholarship can be."

The quote in the title of this post comes from this remarkable review by Robin West at Jotwell of an article by my OSU colleague Marc Spindelman.   The article being reviewed is Marc's forthcoming piece in the Columbia Journal of Gender and Law entitled "Sexuality’s Law."  Here are excerpts from the start and end pf Robin's review:

Marc Spindelman’s essay Sexuality’s Law, forthcoming in the Columbia Journal of Gender and Law, is one of the most extraordinary pieces of legal writing on the interrelations of law, culture and sexuality to appear in a law journal in well over a decade, perhaps much longer.

Professor Spindelman begins his essay with a legal puzzle: why is it that out of the thousands of men who have been infected with HIV through consensual sex with another man who failed to disclose his HIV status, almost none have sought to use the law’s tools so as to seek redress for the injuries done to them?   The transmission of disease through sex might be intentional, reckless, or negligent, and in any event, occasioned without the informed or knowing assumption of the risk by the person infected.  Yet we see virtually no criminal prosecutions for homicide when this occurs intentionally, and almost no civil awards of damages when it occurs recklessly or negligently.   Why?   Why have gay men not turned to the law to seek redress against other gay men who harm them, and often kill them, by not disclosing their HIV status in the course of consensual sex?...

Spindelman takes on hundreds of cultural sources and a library of legal scholarship in mounting his argument.  The arguments are also, quite simply, brave: he has bucked the ascendant trend in legal cultural studies and queer theory both that has tilted drastically and, quite possibly catastrophically, toward the praise, valorization, and protection of empowered sex of all forms, together with a contemptuous denial of the injuries and harms that sex has carried for its victims, including girls, women, gay men, and boys, and plenty of straight men and boys as well.   He does so, furthermore, with writing that is as impassioned and literary and beautiful as some of the texts he’s attacking, but in Spindelman’s writing, the argument, the passion, the turns of phrase, the thousands of footnotes, are put toward the ends of truth, of community of purpose, autonomy, and a celebration of individual dignity, all values, he argues, threatened by sexuality’s ideology.  This is writing that matters, that serves truth, that responds to injury, and that restores one’s faith in the legal academy; this is what legal scholarship can be.

That's quite a review, especially for someone like me who has come to be (too?) cynical about what traditional legal scholarship has become and can now be.  For that reason (and because I have long been a big fan of my colleague Marc's work), I highly recommend both Robin's review and the work she is reviewing .

WikiLeaks, Sex Tapes, and Information Valuation Theory

The recent WikiLeaks disclosures have been in the news lately, and leaked photos and tapes of naked celebrities always seem to be in the news. I want to focus on a small sliver of the pie: how should we think about the value of the leaked information/documents/pictures, and the value of keeping it all secret.

There are many normative theories for the protection of trade secrets. One of them (the best one, I argue), is that trade secret laws are there to encourage less protection of secrets. The idea is that without the remedy provided by trade secret laws, companies will overprotect their information in ways that are inefficient. Thus, the law is there to make sure that companies only expend reasonable precautions to protect information, and if the secrets are lost, then they can obtain a remedy to compensate.

A negative corollary of this theory is that where remedies are insufficient then we will see much more protection of the secrets. Anecdotal evidence supports this. Consider the protection of the formula for Coke, or the thickness of the walls of the Pentagon as examples.

What, then, should we make of the value of WikiLeaks and sex tapes?  Let's start with sex tapes. Conventional wisdom holds that many who make illicit photos do so knowing that the publicity, even "bad" publicity of a sex tape can help boost careers. Indeed, many believe that the celebrities themselves were behind such leaks, despite mock protests.  

If true, this supports the general theory. Celebrities don't see much harm in the release of these tapes, and thus don't go to great lengths to protect them. 

But what of WikiLeaks? After all, these are sensitive government documents, right? Doesn't the government view these as ultra-secret? I wonder about that. First of all, the purported leaker is a an army private working in a field office. If true, how is it that ultra-sensitive documents are so easily accessed and copied by a relatively young soldier working in a field office? I wouldn't expect national secrets whose disclosure would leave no recourse to be so easily available.

Of course, this is not to say that leaks never happen. Spying goes on. But compare, for example, the Valerie Plame leak by Scooter Libby. That information, also of apparent national security, was protected all the way up to the Chief of Staff to the Vice President. I also suspect that Libby would not have known it but for rules that require the executive to get certain information (not that such rules are a bad thing). If it were up to the departments in charge, I suspect that critical information would not be shared so widely.

The conclusion is that this information, for the most part, is just not that valuable, despite protestations to the contrary. Embarrassing, perhaps, but not really valuable. Viewed this way, the documents are the equivalent of government sex tapes. Supporting that theory are recent statements by Robert Gates (h/t Dan Filler): 

Let me just offer some perspective as somebody who’s been at this a long time....Now, I’ve heard the impact of these releases on our foreign policy described as a meltdown, as a game-changer, and so on. I think those descriptions are fairly significantly overwrought. The fact is, governments deal with the United States because it’s in their interest, not because they like us, not because they trust us, and not because they believe we can keep secrets....Is this embarrassing? Yes. Is it awkward? Yes. Consequences for U.S. foreign policy? I think fairly modest.

Of course, Gates could just be downplaying the cost to the U.S., but what he says goes against what others in our government are saying.

Note that my take is agnostic about whether WikiLeaks disclosures (or sex tape publications, for that matter) are right or wrong, or good or bad.  I do think, however, that the ease with which information is obtained and distributed says something about how the owner values it.

To be sure, you can blame sex tapes on celebrities who aren't smart enough to protect their tapes. Even so, a celebrity really worried about the potential costs of a release, will not make one, or will lock it in a safe - consider all the celebrities who do not have scandalous photos leaked. Further, how often do you see celebrity cell phone numbers published - even those with leaked photos and tapes? Somehow, these folks are able to protect that information. Finally, diplomatic cables are not sex tapes, and the government is not a ditzy celebrity. These folks know how to protect information, and how that information is protected can be quite telling.