Legal Theory Blog

Yoo on Network Neutrality & Technology

Christopher S. Yoo (University of Pennsylvania Law School) has posted Network Neutrality and the Need for a Technological Turn in Internet Scholarship (HANDBOOK OF MEDIA LAW AND POLICY: A SOCIO-LEGAL EXPLORATION (Monroe E. Price & Stefaan G. Verhulst eds., Routledge Forthcoming 2012)) on SSRN. Here is the abstract:

To most social scientists, the technical details of how the Internet actually works remain arcane and inaccessible. At the same time, convergence is forcing scholars to grapple with how to apply regulatory regimes developed for traditional media to a world in which all services are provided via an Internet-based platform. This chapter explores the problems caused by the lack of familiarity with the underlying technology, using as its focus the network neutrality debate that has dominated Internet policy for the past several years. The analysis underscores a surprising lack of sophistication in the current debate. Unfamiliarity with the Internet’s architecture has allowed some advocates to characterize prioritization of network traffic as an aberration, when in fact it is a central feature designed into the network since its inception. The lack of knowledge has allowed advocates to recast pragmatic engineering concepts as supposedly inviolable architectural principles, effectively imbuing certain types of political advocacy with a false sense of scientific legitimacy. As the technologies comprising the network continue to change and the demands of end users create pressure on the network to further evolve, the absence of technical grounding risks making the status quo seem like a natural construct that cannot or should not be changed.

Fisk & Gordon on Legal Historiography

UCI Law Review, Vol.1, No.3, 2011, UC Irvine School of Law Research Paper No. 2012-51 Catherine Fisk and Robert W. Gordon (University of California, Irvine School of Law and Yale University - Law School) have posted Forward: 'Law as . . .': Theory and Method in Legal History on SSRN. Here is the abstract:

Legal historians have long taken their intellectual cues from the problematic of the “law and” theory. The “law and” theory has been influential both intellectually and institutionally because of the capaciousness of the conjunctive metaphor. “Law and” allows all manner of claims about the natures of law and history, and about the insights one might gain from studying law as part of other domains of human activity. The pragmatic usefulness of the conjunction papers over abiding doubts about the continuing intellectual coherence of the framework that encompasses so much sociolegal historical work. The sixteen papers in this symposium issue of the UC Irvine Law Review responded to an invitation to consider legal history through a lens other than that provided by the “law and society” framework. Instead of parsing relations between distinct domains of activity, between law and what lies “outside” of it, the objective of historical research about law might be to imagine them as the same domain: “law as . . . .” The ellipses began as a hopeful invitation to consider what law is if it is not half of a conjunction. The ellipses became statement of principle: law can and should be imagined in many ways, including as the five themes reflected in these papers: law as the language of social relations, law as consciousness, law as enchanted ritual and spectacle, law as sovereignty, and law as economic/cultural activity.

Mandelker on the Constitutionality of Design Standards

Daniel R. Mandelker (Washington University in Saint Louis - School of Law) has posted The Constitutionality of Design Standards in Planned Community Regulations on SSRN. Here is the abstract:

This is the fifth chapter in a book, Designing Planned Communities (2010), that reviews the concepts and ideas that go into the design of planned communities, and explores how local governments can encourage and provide for their good design through land-use regulation. Design standards in planned community regulations can raise constitutional problems because a court can hold them unconstitutionally vague or an unconstitutional delegation of legislative power. This problem occurs especially with planned community regulations that contain indeterminate design standards, such as equirements that a planned community’s design be “creative” or “harmonious.” The judicial record on the constitutional issues is mixed. Some courts have struck down stand-alone design standards that are not part of a comprehensive program for regulating planned communities, but some have not. Courts have upheld design standards when they are one element in a program of planned community regulation. Even when the courts have struck down design standards, they have provided drafting guidelines that can avoid constitutional problems. The entire book can be downloaded by going to the author's profile on Washington University Law School's website.

Subrin on Aschcroft v. Iqbal

Stephen Subrin (Northeastern University - School of Law) has posted Ashcroft v. Iqbal: Contempt for Rules, Statutes, the Constitution, and Elemental Fairness (Nevada Law Journal, Vol. 12, No. 3, pp. 571-581, Summer 2012) on SSRN. Here is the abstract:

We were asked to write about one of the worst United States Supreme Court opinions we had read. My article is about Ashcroft v. Iqbal because it is such an important decision in the field of federal civil litigation and the majority opinion is unsupportable in so many different ways. I explain how that opinion changes the substantive law of supervisory liability for government officials without providing the parties notice that the issue would be considered by the Court. The majority then enshrines fact pleading requirements in federal court for all cases (although denying they have done so), without following the strict statutory method for amending the Federal Rules of Civil Procedure. They also do this by misinterpreting Federal Rule 9(b) that permits the general allegation of states of mind and by ignoring the Forms attached to the Rules. Moreover, the instructions by the Court to lower court judges to disregard conclusory allegations and then decide whether a case is “plausible” are non-defining and an invitation for arbitrary decision making. Ashcroft v. Iqbal is in direct contradiction to the liberal pleading, broad discovery regime envisioned by the Supreme Court and Congress in enacting the 1938 Federal Rules of Civil Procedure, and specifically mandated in subsequent Supreme Court decisions, as well as an assault on the private enforcement of public rights that Congress assumed in passing dozens of statutes since 1938. The decision is also an attack on the Seventh Amendment right to trial by jury because its effect is to invite trial judges to decide factual issues in jury cases. The lawless behavior of Justices in the majority in this case returns pleading in Federal Court to a procedural regime that proved unsatisfactory in the second half of the nineteenth century and the early decades of the twentieth.

Miller & Rachmilevitch on a Behavioral Arrow Theorem

Alan D. Miller (University of Haifa - Faculty of Law; University of Haifa - Department of Economics) & Shiran Rachmilevitch have posted A Behavioral Arrow Theorem on SSRN. Here is the abstract:

In light of research indicating that individual behavior may violate standard assumptions of rationality, we modify the standard model of preference aggregation to study the case in which neither individual nor collective preferences are required to satisfy transitivity or other coherence conditions. We introduce the concept of an ordinal rationality measure which can be used to compare preference relations in terms of their level of coherence. Using this measure, we introduce a monotonicity axiom which requires that the collective preference become more rational when the individual preferences become more rational. We show that for any ordinal rationality measure, it is impossible to find a collective choice rule which satisfies the monotonicity axiom and the other standard assumptions introduced by Arrow (1963): unrestricted domain, weak Pareto, independence of irrelevant alternatives, and nondictatorship.

Barker on Good Faith Exchange & Restitution

Kit Barker (TC Beirne School of Law) has posted After Change of Position: Good Faith Exchange in the Modern Law of Restitution (LAUNDERING AND TRACING, pp. 191-215, Ch 7 in Birks, ed., Oxford, Clarendon, 1995) on SSRN. Here is the abstract:

This chapter models the defense of bona fide purchase as it exists in the modern law of restitution in the wake of the recognition of the defense of change of position in English law. It counters suggestions that the latter defense has rendered the former redundant and posits the following conclusions:

The defense still has a place in the modern law, though its principal function is quite different to that of change of position. Whereas the latter aims to protect individual recipients against unfair losses caused by a given receipt, the former deploys a broad policy of transactional security in exchange dealings, with the primary (economic) objective of facilitating the free transfer of wealth. Prior to the recognition of change of position, bona fide purchase met both functions: protecting individuals and protecting the market. Now that a more sensitive device for meeting the former objective has been developed, however, the modern function of the defense is primarily confined to the latter.

The defense logically applies in those cases in which a defendant has received a benefit under a contract with a third party (one other than the plaintiff). It is immaterial whether the benefit was received 'indirectly' (from the third party) or 'directly' from the plaintiff. But where a defendant pays for a benefit under an exchange transaction with the plaintiff himself (or one acting as agent for the plaintiff), the requisite guarantees of transactional security are provided by the law of contract itself; in particular by the principle of contract law known as the 'objective principle.' Although the good faith of the defendant is relevant in these cases, the defense of bona fide purchase has no part to play.

The defense is legitimately to be regarded as a defense, with the onus on the defendant to prove both that value has been given and that it was given in good faith, without notice of the plaintiff's rights. Discussions about the defendant's 'knowledge' of the plaintiff's rights in three-party cases must, on this basis, be shifted squarely within the parameters of the defense debate. This proposition is in line with Prof. Birks' analysis of many of the cases in equity and (not uncontroversially) assumes the truth of his vision that liability standards in cases of misdirected funds should be strict.

The defense must be available both in the law of property and in the law of restitution. Following on from, the defense must be available in both personal and proprietary claims and the conditions for its operation of the defense should be the same in either case.

Yoo on FCC v. Pacifica Foundation & Free Speech Theory

Christopher S. Yoo (University of Pennsylvania Law School) has posted Technologies of Control and the Future of the First Amendment (William & Mary Law Review, Vol. 53, p. 747, 2011) on SSRN. Here is the abstract:

The technological context surrounding the Supreme Court’s landmark decision in FCC v. Pacifica Foundation allowed the Court to gloss over the tension between two rather disparate rationales. Those adopting a civil libertarian view of free speech could support the decision on the grounds that viewers’ and listeners’ inability to filter out unwanted speech exposed them to content that they did not wish to see or hear. At the same time, Pacifica also found support from those who more paternalistically regard indecency as low value (if not socially harmful) speech that is unworthy of full First Amendment protection. The arrival of filtering technologies has introduced a wedge between those who supported the constitutionality of indecency regulations out of a desire to enhance individual autonomy and those who wish to restrict speech in order to promote a particular vision of the public good. At the same time, commentators on the political left have begun to question whether continued support for the classic liberal vision of free speech may be interfering with the advancement of progressive values.

This Article offers a qualified defense of the libertarian vision of free speech. Deviating from the civil libertarian view would require a revolution in doctrine and would contradict the postulate of independent moral agency that lies at the heart of liberal theory. Although some suggested institutions for ascertaining the idealized preferences that individuals ought to have could justify allowing the government to override individuals’ actual preferences, such an approach is all-too reminiscent of the Rousseauian notion of being “forced to be free” and has never been accepted by the Supreme Court. Finally, claims that private censorship presents risks commensurate with public censorship fail to address the fact that liberal theory presupposes the existence of a private sphere into which the state cannot intrude, as well as the long tradition recognizing the special dangers associated with the coercive power of the state. Moreover, the rationales upon which the Supreme Court has relied to justify overriding individual preferences in broadcasting and cable have been undermined by technological change.

Kuo on Comparative Transnational Administrative Law

Ming-Sung Kuo (University of Warwick School of Law) has posted From Administrative Law to Administrative Legitimation? The Spatiality of Law and Transnational Administrative Law in Comparative Perspective (International & Comparative Law Quarterly, Forthcoming) on SSRN. Here is the abstract:

Globalisation redefines the relationship between law and space, resulting in the emergence of transnational administrative law in a globalising legal space. I aim to shed light on transnational administrative law by examining how administrative law relates to the process of European integration. I argue that the idea of administrative legitimation is at the core of this relationship. In the European Union, transnational administration grounds its legitimacy on the fulfilment of administrative law requirements. However, given that in the European Union, administrative legitimation is rooted in Europe’s constitutional transformation, I caution against the projection of Europe’s experience onto global governance.

Garnett on Koppelman on the Neutrality towards Religion

Richard W. Garnett (Notre Dame Law School) has posted Neutrality and the Good of Religious Freedom: An Appreciative Response to Professor Koppelman (Pepperdine Law Review, Vol. 39, p. 1001, 2012) on SSRN. Here is the abstract:

This paper is a short response to an address, “And I Don’t Care What It Is: Religious Neutrality in American Law,” delivered by Prof. Andrew Koppelman at a conference, “The Competing Claims of Law and Religion: Who Should Influence Whom?”, which was held at Pepperdine University in February of 2012. In this response, it is suggested – among other things – that “American religious neutrality” is, as Koppelman argues, “coherent and attractive” because and to the extent that it is not neutral with respect to the goal and good of religious freedom.

Religious freedom, in the American tradition, is not what results from the operationalization in law of hostility toward religion. It is not (only) what results from a program of conflict-avoidance or division-dampening. It is not merely the product of those compromises that were necessary to secure the ratification of the original Constitution. It is, instead, a valuable and necessary feature of any attractive legal regime, because it reflects, promotes, and helps to constitute human flourishing. So, and again, the state should remain “neutral” with respect to most religious questions – primarily because the resolution of such questions is outside the jurisdiction, and not just the competence, of civil authorities – but it may and should affirm enthusiastically that religious freedom is a good thing that should be protected and nurtured in law and policy.

Recommended!

Kelly on Strategic Spillover

Daniel B. Kelly (University of Notre Dame Law School) has posted Strategic Spillovers (Columbia Law Review, Vol. 111, No. 8, p. 1641, December 2011) on SSRN. Here is the abstract:

The conventional problem with externalities is well known: Parties often generate harm as an unintended byproduct of using their property. This Article examines situations in which parties may generate harm purposely, in order to extract payments in exchange for desisting. Such “strategic spillovers” have received relatively little attention, but the problem is a perennial one. From the “livery stable scam” in Chicago to “pollution entrepreneurs” in China, parties may engage in externality-generating activities they otherwise would not have undertaken, or increase the level of harm given that they are engaging in such activities, to profit through bargaining or subsidies. This Article investigates the costs of strategic spillovers, the circumstances in which threatening to engage in these spillovers may be credible, and potential solutions for eliminating, or at least mitigating, this form of opportunism through externalities.

Very interesting & highly recommended.  Download it while its hot!

Schauer on Legal Realism

Frederick Schauer (University of Virginia School of Law) has posted Legal Realism Untamed on SSRN. Here is the abstract:

What makes hard cases hard, and what makes easy cases easy? A common response to H.L.A. Hart’s (mis)reading of Legal Realist is that the Realists offered their arguments solely in the context of the hard or indeterminate cases likely to find their way into appellate courts. Llewellyn, for example, made clear that his claims were restricted to “any case doubtful enough to make litigation respectable,” and Max Radin limited his Realist claims to “marginal cases.” Thus, a “tamed” version of Realism limits the Realists’ claims to the self-selected but non-representative group of disputes that are the stuff of reported appellate decisions. And this version is “tamed” because it is compatible with the view that standard legal sources determine the outcome in the cases that are not doubtful and would be futile to litigate. Indeed, the version is so tamed that it is largely compatible with Hart’s own response to the Realists.

But although many commentators, including this author, have at times subscribed to this effort to tame Realism, that effort may understate the magnitude of the Realist challenge by understating the effect of the gap between paper rules and real rules, to use Llewellyn’s terminology, on the makeup of the array of cases that are or are not doubtful. If, as Llewellyn and others argued, factors other than the standard (or literal) reading of standard legal sources determine the outcome even when the standard legal sources are clear, then the existence of such non-standard sources will make cases that are not doubtful under the traditional picture doubtful – and thus worth litigating. And if this is so, then the divergence between real rule and paper rule will be relevant not only in doubtful cases, but also in determining which cases are doubtful and which not. Realism would then be a claim not merely about doubtful cases, but a claim pervading the entire operation of a system of legal rules. To the extent that the claim is true, therefore, it represents a serious attack on the traditional picture of law throughout its operation, and not simply in the doubtful cases. To the extent that easy cases are easy not because of the plain meaning of the language of a written-down or black-letter legal rule, and thus to the extent that hard cases are hard not because of the indeterminacy of the language of such rules, the entire array of cases selected for litigation, and deselected from litigation, will be determined by factors not to be found in the paper rules. In this sense, American Legal Realism constitutes a less bounded -- and thus untamed -- attack on the traditional picture of law, although the ultimate soundness of the challenge still depends on empirical facts about the relationship, if any, between the paper rules and the real rules.

Highly recommended. Download it while its hot!

In my view, the interpretation-construction distinction is quite helpful in conceptualizing the radical nature of realist claims.  The "paper rules" refers to the communicative content of legal texts--the realists need not be skeptical about "interpretation" in this sense.  Their critique goes to "construction"--the determination of legal effect.  On the interpretation-construction distinction, see this paper.

Koller on the Expressive Power of Title IX

Dionne L. Koller (University of Baltimore - School of Law) has posted How the Expressive Power of Title IX Dilutes Its Promise (Harvard Journal of Sports and Entertainment Law, Vol. 3, pp. 103-158 (2012)) on SSRN. Here is the abstract:

Title IX is widely credited with shaping new norms for the world of sports by requiring educational institutions to provide equal athletic opportunities to women. The statute and regulations send a message that women are entitled to participate in sports on terms equal to men. For several decades, this message of equality produced dramatic results in participation rates, as the number of women interested in athletics grew substantially. Despite these gains, however, many women and girls, especially those of color and lower socio-economic status, still do not participate in sports, or remain interested in participating, in numbers comparable to their male counterparts. Indeed, in recent years the gains in participation rates brought about by Title IX seemingly have leveled off while the childhood obesity crisis, especially among girls, has grown. Title IX scholarship and popular advocacy efforts often focus on greater Title IX enforcement as the way to continue attracting women and girls to participate in competitive sports.

This Article examines whether greater enforcement of Title IX’s equality mandate is the answer, by looking at the signals the statute and regulations send to prospective female athletes. In doing so, this Article explains that a key feature of Title IX theory is that discrimination in the form of fewer opportunities for women as compared to men, as well as sub-par conditions for participation, “sends a message” to girls that discourages them from participating. This negative message is the prevailing explanation for why women still do not participate in sports at rates comparable to men. Implicit in this argument is that strong Title IX enforcement can produce the opposite result, continuing to signal that women are entitled to participate in sports on terms equal to men, and that such a positive message will stimulate interest in participation. This Article seeks to push beyond such assumptions to examine with more nuance how Title IX speaks to women about sports and how the law’s expressive content affects women’s interest in participating. Using the expressive theory of the law, this Article takes the position that Title IX powerfully “speaks” beyond its remedies, and the message today is much more complex than that of simply empowering women through a message of equality. Instead, this article asserts that Title IX in fact sends a mixed message, communicating both that women and girls are entitled to participate in athletics under the same conditions as their male counterparts, but also that such participation opportunities are within a model for athletics that serves to exclude those who lack the interest, ability and/or resources to meet its demands. As a result, while Title IX communicates an empowering message that can in many cases stimulate women’s interest in sports, it also sends a message that drives many more women, especially those of color and lower socio-economic status, away.

Maloberti on Libertarian Paternalism

Nicolás Maloberti (Liberty Fund, Inc.) has posted Libertarian Paternalism and Limited Government: A Reconsideration on SSRN. Here is the abstract:

Supporters of the so-called “new” paternalism believe that the findings of behavioral economics, according to which individuals are predictably irrational in many important areas of life, should lead us to reconsider the traditional liberal opposition to paternalistic government action. Popularized by Cass Sunstein and Richard Thaler, “libertarian paternalism” is perhaps the most well-known version of this new family of paternalistic views. The purpose of this article is to offer an account of the nature of libertarian paternalism, and of its significance for the case for limited government. It is argued that libertarian paternalism should not be understood as advocating an extension of the scope of political activity, since it does not have the theoretical resources to do such a thing. Libertarian paternalism has the resources to reorganize government action that has already been taken to be justified according to some independent principle, lowering the unchosen costs imposed on the individual. It is also suggested that the misunderstanding of both critics and advocates of libertarian paternalism as justifying, by itself, the intervention of government in several areas of life seems to arise from an underappreciation of both the centrality of the value of autonomy and the importance of personal responsibility within the traditional liberal case for individual liberty. Due to those normative commitments, the case for a limited scope for government is largely unaffected by the findings of behavioral economics. When possible, however, such findings should be taken into account in organizing government actions within that limited scope.

Baker on Consent as a Defense in Criminal Law

Dennis J. Baker (King's College London - School of Law) has posted The Moral Limits of Consent as a Defense in the Criminal Law on SSRN. Here is the abstract:

In this paper I aim to examine the objective limitations of consent as a defense to criminal harm doing. This paper starts by briefly outlining the idea of objective morality (critical morality) as the proper basis for criminalization decisions and argues that there are also objective rather than mere conventional reasons (positive morality) for limiting the scope of consent as a defense in the criminal law. The idea of consent is in itself an objective reason for excusing wrongful harm doing to others. However, it can be overridden by other objective considerations of greater importance. In this paper, I argue that it is only wrongful harm doing that is criminalizable, as we do not criminalize mere accidents. Furthermore, I argue that a person can as an exercise of her personal autonomy consent to certain harms. However, there is a crucial difference between waiving rights that are grounded in an exercise of personal autonomy and waiving rights that violate a person's human dignity: rational autonomy. I conclude that regardless of consent, certain grave harms violate a person's dignity as a human being and therefore are wrongful and criminalizable.

Call for Papers: CELS 2012

Call for Papers CELS 2012

The Seventh Annual Conference on Empirical Legal Studies (CELS 2012), sponsored by the Society for Empirical Legal Studies, will be held in Palo Alto at Stanford Law School on Friday, November 9, and Saturday, November 10, 2012.  Paper submission deadline: Sunday, July 8, 2012, midnight (PST).

Conference History

The annual Conferences on Empirical Legal Studies (CELS) were launched in 2006, in response to the growing level of empirical scholarship in law schools and elsewhere. It has thus far been held at University of Texas (2006), NYU (2007), Cornell (2008), USC (2009), Yale (2010), and Northwestern (2011), and is scheduled for Stanford (2012), Penn (2013), and UC Berkeley (2014), in each case with generous support from the host school.

 

Schwartz on Perpetual Corporations & Immortal Investing

Andrew A. Schwartz (University of Colorado Law School) has posted The Perpetual Corporation (George Washington Law Review, Vol. 80, p. 764, 2012) on SSRN. Here is the abstract:

Courts and commentators take for granted that the ultimate objective of a business corporation is long-run profitability, not immediate profits. But a corporation is a creature of statute, so a statutory source for this rule must be found — or it is not really a rule. Yet prior literature has not identified any such legal basis, leaving a gap in corporate theory. This Article fills that gap by showing that the modern corporation is obliged to act with a long-term view because it has “perpetual existence” under the law. This Article then explains that because they must plan for a perpetual future, corporations should invest like immortal entities, namely with a long time horizon and low discount rate. This method of “immortal investing” offers a number of fundamental advantages to the corporation, and is also in the public interest, as immortal investors can be expected to highly value the future and act as stewards for natural resources and other assets.

Benvenisti & Downs on Transnational Judicial Dialogue & Democracy

Eyal Benvenisti (Tel Aviv University - Buchmann Faculty of Law) & George W. Downs (New York University (NYU) - Wilf Family Department of Politics) have posted The Democratizing Effects of Transjudicial Coordination (Utrecht Law Review, Vol. 8, No. 2, pp. 158-171, May 2012) on SSRN. Here is the abstract:

There are growing indications that transjudicial dialogue among national courts has increased in recent years and that it has become more routinized. We argue below that this trend is at least partially motivated by the efforts of these courts to: address a 'judicial deficit' that has resulted from the broad transfer of regulatory policy-making authority from the domestic to the international sphere; and curb pro-executive interpretations of regulatory rules on the part of less politically insulated international tribunals. While recognizing the dangers of 'le gouvernement des juges', we suggest that, at least in the short term, the expanded role of national courts can operate to enhance rather than pre-empt domestic political processes and promote accountability to diverse democratic concerns by providing opportunities for national legislatures and civil society to weigh in on matters subject to executive discretion or international regulation.

Cooper on Mandatory Pro Bono

Benjamin P. Cooper (University of Mississippi School of Law) has posted Mandatory Pro Bono Redux (Legal Ethics, Forthcoming) on SSRN. Here is the abstract:

This short article, which will appear as the Correspondent's Report from the United States in the journal Legal Ethics, argues that New York's new requirement that bar applicants perform 50 hours of pro bono service in order to gain admission is flawed but nevertheless worth supporting because of the dire need for such services. Other solutions, such as increased funding for legal services, are clearly better, but this is a step that the New York Court of Appeals could take on its own. Although the detailed implementing regulations have not been issued, this plan appears to impose far less of a burden on applicants, law schools, and the legal profession than critics suggest. Further, the new requirement fosters practical training of law students. Finally, the overwhelmingly negative reaction to this new requirement demonstrates once again that the legal community is remarkably resistant to change.

Kochenov on Disagreements About EU Citizenship

Dimitry Kochenov (University of Groningen - Faculty of Law) has posted The Present and the Future of EU Citizenship: A Bird’s Eye View of the Legal Debate on SSRN. Here is the abstract:

This article scrutinizes the last ten years of the academic debate on EU citizenship law taking nine fundamental disagreements among scholars as staring points. It explores EU citizenship’s relationship with three groups of issues of fundamental importance, including the place of this concept within the fabric of EU law, the influence of this concept on the essence of the Union as a system of multilevel governance, and its impact on the lives of ordinary Europeans. A number of key works which influenced the Court and the legislator in the recent years is assessed to outline the likely direction of future research, as well as future EU citizenship’s development. Although the literature on the subject is overwhelmingly rich and diverse, this article aspires to provide a representative sample of issues of interest for the framing of the concept at issue from a supranational perspective, necessarily leaving national (or nationalistic) literatures aside.

Schäfer & Cooter on Growth-Oriented Reform in Developing Countries

Hans-Bernd Schäfer and Robert D. Cooter (Bucerius Law School and University of California, Berkeley - School of Law) have posted Growth-Oriented Legal Reforms (Production Of Legal Rules, Hrsg. F. Parisi, Cheltenham 2012, 400-417) on SSRN. Here is the abstract:

This paper deals with the obstacles to growth-oriented institutional reforms and policies in developing countries and with methods to overcome them.

Kovarsky on Original Writs of Habeas Corpus in the Supreme Court

Lee Kovarsky (University of Maryland, Francis King Carey School of Law) has posted Original Habeas Reduux (Virginia Law Review, Vol. 97, No. 61, 2011) on SSRN. Here is the abstract:

This article explores what is perhaps the Supreme Court’s most exotic appellate power— its authority to issue (inaptly-named) “original” writs of habeas corpus. Although I have been working on Original Habeas Redux for some time, the Troy Davis case has recently thrust this topic into the national spotlight. In Davis (2009), the Supreme Court exercised, for the first time in over forty years, its power to transfer an original habeas petition to a district court for merits adjudication. Having collected and tabulated two decades of new data, I argue that Davis is not a blip in an otherwise constant state of original habeas inactivity. In light of the original writ’s history and of newly-cognizable constitutional claims, the authority may evolve into a safety valve by which the Court ensures that capital prisoners are not wrongfully executed.

Call for Papers: AALS Section on International Human Rights

Call for Papers Announcement
AALS Section on International Human Rights
Topic: Human Rights in Times of Conflict: New Voices in Human Rights

2013 AALS Annual Meeting
January 4-7, 2013
New Orleans, Louisiana

The AALS Section on International Human Rights is pleased to announce that it will sponsor a Call for Papers for its program during the AALS 2013 Annual Meeting in New Orleans, LA on Human Rights in Times of Conflict: New Voices in Human Rights.

The section program will be on Sunday, January 6, 2012, from 8:30 to 10:15 a.m. Here is the program description:

The first casualty of war may be truth, but the overwhelming majority of its victims are civilians who have nothing to do with the conflict. They are victims not only of war itself -- strategic bombings, terrorist attacks, accidents, famine and disease. Tens of millions more have died in the past century from intentional policies directed at civilians, often by their own governments – genocide, forced pregnancy, sterilization, enslavement, ethnic cleansing, and torture. And then there are the refugees and internally displaced persons, forced from their homes, trapped in squalor, and destabilizing international relations in Africa, Asia, and the Near East. The Geneva and Hague conventions on the law of armed conflict go only so far in protecting noncombatants, and some argue that they displace international human rights law when they do apply. This panel will examine the role of law – especially international human rights law, international criminal law, and international humanitarian law – in protecting civilians in times of armed conflict.

Once again, New Voices in Human Rights offers newcomers – to the academy, to AALS, to human rights – an opportunity to present their cutting-edge scholarship to what we hope will be an active and responsive audience. Diane Marie Amann of the University of Georgia School of Law will serve as commentator.

Form and length of submission
Presentations at various stages of completion will be considered. A key consideration will be a proposal’s suitability for a 12-to-15-minute presentation (to be determined) and its relationship to other presentations on the panel.

Publication
Papers may have already been accepted for publication but must not be published prior to the Annual Meeting. The section has no plans to publish the papers, so individual presenters should continue to seek their own publishers.

Deadline and submission
The absolute, drop-dead, final deadline to submit a paper is September 4, 2012. Please email submissions, in Word or PDF format, to Bill Dunlap at william.dunlap@quinnipiac.edu with AALS in the subject line.

Presentations at various stages of completion will be considered. The selection process has become increasingly competitive over the years, with the number of submissions exceeding what can be accommodated during the program. The Executive Board of the AALS International Human Rights Section will review the submissions and make determinations in late September.

Eligibility
Under AALS rules, only full-time faculty members of AALS member law schools are eligible to submit papers. Foreign, visiting (without a full-time position at an AALS member law school) and adjunct faculty members; graduate students; fellows; and non-law school faculty members are not eligible to submit. Faculty members at fee-paid non-member schools are also ineligible.

Under section rules, the program is a venue for “new voices in human rights.” You are eligible to be a “new voice” if you are submitting a paper in international human rights law and practice for the first time at an AALS conference; you do not necessarily need to be new to academia or new to human rights.

Call for Paper participants will be responsible for paying their annual meeting registration fee and travel expenses. Inquiries
Any inquiries about the Call for Papers should be submitted Bill Dunlap at Quinnipiac University, william.dunlap@quinnipiac.edu.

Rowell on Partial Valuation & Cost-Benefit Analysis

Arden Rowell (University of Illinois College of Law) has posted Partial Valuation and Cost-Benefit Analysis on SSRN. Here is the abstract:

Regulators should not regulate where the monetized costs of the regulation are greater than the monetized benefits. This holds true even if money can be used only incompletely to express many of the goods we as a society believe to be valuable. So long as monetary valuations are thorough, in the sense that they count everything for which people are willing to pay money, this is true even if we accept that money is importantly incommensurable with many other goods that we as a society believe to be valuable. The reason for this is not because money is somehow magical, or even necessarily more important than other goods: it is because it is poor policy to pay more for a regulation - in any resource - than people value that regulation.

This approach to valuation, which I call 'partial valuation,' provides distinct guidance both to OIRA, as the office responsible for reviewing draft regulations, and to agencies performing cost-benefit analyses. OIRA should not allow agencies to promulgate regulations where the monetized costs outweigh the monetized benefits. Agencies should seek to monetize thoroughly. When benefits cannot be fully expressed in dollars, they should seek to perform partial valuations, where they elicit people’s willingness to pay for those goods in dollars. Any remainder that regulators truly believe to be inexpressible in monetary terms might be reasonably included in a discussion of nonmonetizable benefits, as would any goods that cannot be valued in monetary terms at all. Once benefits are identified as nonmonetizable, agencies should not attempt to rely on the nonmonetizable category of benefits to somehow “make up for” monetized analyses where the costs outweigh the benefits. Regardless of the importance or magnitude of the nonmonetizable benefits at issue, too much money is too much money. Once a resource costs more in any resource - monetary or non-monetary - than people are willing to pay for it, the existence of other effects does not justify implementation of the regulation.

As a concrete application of this approach, I show that, with the current information before it, OIRA should not permit NHTSA to promulgate the rear-view camera regulation, on the grounds that the monetized benefits do not justify the monetized costs. NHTSA should revisit its methods for monetizing benefits, and should reconsider whether people are truly unwilling to pay enough money, in dollars, to save the lives of a hundred people a year, almost half of whom are toddlers, given the costs they have calculated. If people are truly not willing to pay (in dollars) the cost of the regulation (in dollars), and if NHTSA is truly unable to come up with alternatives for which people are willing to pay, then NHTSA should return to Congress and explain that it has been unable to regulate because the cost of the regulation is simply more than people are willing to pay.

Highly recommended.

Austin on Privacy & Shame

Lisa M. Austin (University of Toronto - Faculty of Law) has posted Privacy, Shame and the Anxieties of Identity on SSRN. Here is the abstract:

Many privacy advocates, and scholars, seek to liberate privacy from shame. We need to understand that privacy norms do more than insulate individuals from the exposure of shameful secrets and intimate information, the argument goes, in order to deal with contemporary privacy issues that concern the collection of information that is often not sensitive or intimate and may even be publicly available. This essay argues that privacy does not need to be liberated from shame — to the contrary, it is shame that can liberate privacy. A proper understanding of shame reveals that it involves a complex form of self-consciousness — how you feel about how others view you; it is triggered by a disjunct between how you would like others to see you and the consciousness that they do not see you in this way. Privacy norms can insulate us from shame because they protect our self-presentation from the disruptions that can cause us to feel shame. Accounts of privacy go wrong when they do not understand this idea of identity that is at stake in privacy norms. By relying upon different ideas of identity, such as self-revelation or self-determination, both control-based and limited-access accounts of privacy misunderstand the social dimensions of identity and end up with an impoverished account of privacy norms. By ignoring the centrality of identity, “contextual” accounts of privacy lose analytic rigour by running together a broad set of interests and norms under the category of “privacy.” A focus on the constitutive relation between privacy and identity can also show why the idea that privacy should be protected through legal rights is misplaced. Justifications for legal rights rely upon ideas of autonomy and harm but privacy’s focus on the conditions of self-presentation sound in an altogether different register. This essay argues that legal rights such as the tort of invasion of privacy lie, at best, on the periphery of the legal protection of privacy and that the emerging international standards of Fair Information Practices provide a better framework. The best way to understand this framework is not through the language of rights but through a set of alternative ideas about the role of law in enabling and empowering individuals to act within a context of settled expectations necessary for the production of identity and agency. The role of privacy law is not simply to protect identity but in fact to help produce it.

Very interesting, highly recommended.

Rostron on Originalism & Incorporation

Allen Rostron (University of Missouri at Kansas City - School of Law) has posted The Intersection of Originalism and Jot-for-Jot Incorporation on SSRN. Here is the abstract:

In the aftermath of the Supreme Court’s decisions in District of Columbia v. Heller and McDonald v. City of Chicago, lower court judges have produced many decisions about the meaning of the right to keep and bear arms. One of those opinions, a Seventh Circuit ruling in Ezell v. City of Chicago, contains a brief passage raising an intriguing question, about the interaction between originalism and the incorporation doctrine, that has largely escaped notice. The Ezell opinion asserts that Heller requires an originalist approach to the Second Amendment, meaning that judges should give it the meaning it had in 1791 when the Bill of Rights was ratified. But Ezell suggests that when considering whether a state or local government action violates the right to keep and bear arms, as incorporated into the Fourteenth Amendment, the analysis must be “carried forward in time” to the period around 1868 when that Amendment was added to the Constitution. That approach disregards the Supreme Court’s declaration in McDonald that every incorporated right, including the right to keep and bear arms, must mean exactly the same thing as applied to state and local governments through the Fourteenth Amendment as it means when applied to the federal government through the Bill of Rights. The Seventh Circuit cannot be correct in advising that judges should look to 1791 when considering a Second Amendment challenge to a federal law but should focus on 1868 in cases concerning state or local laws. The Supreme Court’s decision in McDonald clearly ruled out such a two-track approach.

Noferi on the Right to Counsel for Immigrants Pending Removal

Mark L. Noferi (Brooklyn Law School) has posted Cascading Constitutional Deprivation: The Right to Appointed Counsel for Mandatorily Detained Immigrants Pending Removal Proceedings (Michigan Journal of Race & Law, Vol. 18, No. 1, 2012) on SSRN. Here is the abstract:

When a Department of Homeland Security officer mandatorily detains a green card holder without bail pending his removal proceedings, for a minor crime committed perhaps long ago, the immigrant’s life takes a drastic turn. If he contests his case, he likely will remain incarcerated in substandard conditions for months or years, often longer than for his original crime, and be unable to acquire a lawyer, access family whom might assist, or access key evidence or witnesses. In these circumstances, it is all but certain he will lose his deportation case, sometimes wrongfully, and be banished abroad from work, family, and friends. The immigrant’s one chance to escape these cascading events is the off-the-record “Joseph” hearing challenging detention. If he wins, is released, and can secure counsel, he likely will win his case to stay in America. Yet pro se and detained, he may not even be told the “Joseph” hearing exists, let alone win the hearing involving complex statutory analysis on facts, witnesses, and evidence relating to the conviction, now all outside his reach.

It is rare in modern American law that a non-lawyer’s decision causes so much to hang in the balance in such complex yet informal proceedings without a lawyer to challenge it. Indeed, the modern immigration detention system is uniquely rare, in peacetime or war, in providing for preventive pretrial detention without counsel pursuant to underlying proceedings without counsel. It creates a cascading risk of wrongful detention and deportation – one cognizable under modern procedural due process theories, even notwithstanding traditional plenary power over immigration laws. In a post-Padilla v. Kentucky world with an increasingly functionalist Constitutional view of deportation, and where criminal defenders now must advise on the same issues litigated at the Joseph hearing, a right to appointed counsel for mandatorily detained immigrants pending removal proceedings is constitutionally viable, practically feasible, and morally necessary.

Bellamy on Coalition Government & Political Integrity

Richard Bellamy (University College London - Department of Political Science) has posted Democracy, Compromise and the Representation Paradox: Coalition Government and Political Integrity (Government and Opposition, July 2012, Forthcoming) on SSRN. Here is the abstract:

Coalitions are often condemned as undemocratic and unprincipled because of the compromises they involve. Politicians are accused of betraying the commitments they made during the election. Paradoxically, proponents of this view suggest that if compromises are to be made they should be pragmatic and based on policy rather than principle. This article disputes this thesis and defends compromise as both principled and democratic. The first section distinguishes a shallow compromise based on the maximal satisfaction of exogenously defined preferences from a deep compromise resulting from reasoning on principle, and argues it proves impossible to avoid the latter. The second section suggests that the obligation to compromise forms part of the ethos of democracy, whereby citizens must agree despite their disagreements. The third section concludes by showing that while representatives will almost certainly betray their electoral mandate if obliged to make only shallow compromises, they can legitimately engage in deep compromises for their voters when they reason as they do.

Austin on Property Theory

Lisa M. Austin (University of Toronto - Faculty of Law) has posted Possession and the Distractions of Philosophy (J. E. Penner and H. E. Smith (eds.), The Philosophical Foundations of Property Law (Oxford: Oxford University Press), Forthcoming) on SSRN. Here is the abstract:

This paper argues that many types of philosophical argument distract us, rather than provide clarity, in relation to the role that possession plays in the law of property. The philosophical strategies I have in mind include the natural law tradition’s fascination with state-of-nature stories as well as Dworkinian claims that law is a matter of interpretation that must make reference to a general theory of justice. By either imagining away the concrete details of our legal system and institutions (through invoking a state of nature) or by passing too quickly to weightier ideas of justice and fairness (through Herculean judgment), these strategies distract us from seeing the centrality of law to a proper understanding of possession.

To show this, I use the well-known distinction between justifying a particular action within a practice and justifying a practice as a whole. Puzzles about whether some particular action counts as “possession” and why this might be so are questions of the former kind and puzzles about why we might want to recognize and protect possession at all are questions of the latter kind. The key point is that different kinds of answers are suitable to the different questions. In other words, it is not clear at all that answering the question of how one should understand the elements of the practice of possession has anything to do with answering the question of why we think the practice of possession as a whole is justified.

Answering questions about the elements of a practice should therefore make reference to the practice itself. The law of possession has multiple aspects but three stand out: it can refer to the relationship between a person and a thing (factual possession), it can refer to rights (the right of possession), it can refer to the question of to whom these rights can be attributed (possessory title). My claim is that to properly understand how these three aspects work and are related, we also need to bring to the fore the specifically legal aspects of this practice that help to constitute it and serve as its central organizing ideas. In this regard I look to two different legal ideas. The first is Lon Fuller’s understanding of the principles of legality, which I argue can help us understand the role that factual possession plays in determining title conditions. The second is Kant’s understanding of omnilaterality as a legal relation (which I will sever from his broader project of political justification), which I argue can help us understand the logical structure of the right of possession. Taken together these legal ideas illuminate that possession is at its core a legal practice and that references to pre-legal thought experiments (like the state of nature) or extra-legal values (such as political morality) are unhelpful in understanding its particular doctrinal features.

Very interesting & recommended.

Waldron on Natural Law

Jeremy Waldron (New York University (NYU) - School of Law) has posted What is Natural Law Like? on SSRN. Here is the abstract:

“The State of Nature,” said John Locke, “has a Law of Nature to govern it, which obliges every one.” But what is “a law of nature”? How would we tell, in a state of nature, that there was a natural law as opposed to something else — like positive law, a set of customs, natural morality, natural ethics, a set of natural inclinations, the truth of certain prudential calculations, a widespread but perhaps false belief in some transcendent law, the voice of God, or just a natural disposition on the part of some pompous people to make sonorous objective-sounding pronouncements? What form should we expect natural law to take in our apprehension of it? This paper argues three things. (a) John Finnis’s work on natural law provides no answer to these questions; his “theory of natural law” is really just a theory of the necessary basis in ethics for evaluating positive law. (b) We need an answer to the question “What is natural law like” not just to evaluate the work of state-of-nature theorists like Locke, but also to explore the possibility that natural law might once have played the role now played by positive international law in regulating relations between sovereigns. And (c), an affirmative account of what natural law is like must pay attention to (1) its deontic character; (2) its enforceability; (3) the ancillary principles that have to be associated with its main normative requirements if it is to be operate as a system of law; (4) its separability form objective from ethics and morality, even from objective ethics and morality; and (5) the shared recognition on earth of its presence in the world. Some of these points — especially 3, 4, and 5 — sound like characteristics of positive law. But the paper argues that they are necessary nevertheless if it is going to be plausible to say that natural law has ever operated (or does still operate) as law in the world.

Highly recommended.

Kochan on the Reason Giving Lawyer

Donald J. Kochan (Chapman University School of Law) has posted The 'Reason Giving' Lawyer on SSRN. Here is the abstract:

Whether as a matter of duty or utility, lawyers give reasons for their actions all the time. In the various venues in which legal skills must be employed, reason giving is required in some, expected in others, desired in many, and useful in most. This Essay underscores the pervasiveness of reason giving in the practice of law and the consequent necessity of lawyers developing a skill at giving reasons.

This Essay examines reason giving as an innate human characteristic related directly to our need for answers and our constant yearning to understand the answer to the question “why.” It briefly surveys the scholarship on reason-giving, including an analysis of its presence in law and legal institutions. Understanding then that reason-giving is a skill required for effective lawyering, the Essay proceeds to emphasize the pedagogical importance of (a) teaching an understanding of reason-giving’s prevalence in law; and, (b) nurturing the discrete habit and skill of reason giving in legal education as a foundational trait of good lawyering. The Essay concludes with a case study equating the law school exam taking process with administrative law decisionmaking and law school grading with the process of judicial review of agency action. Agency is to student as judge is to law professor.

Greater recognition of the role of the reason giving lawyer – along with recognition and strengthening of the parts of legal education that help inculcate the reason giving skill – should improve our understanding of when, how, and under what conditions reason giving must occur for the effective functioning of the legal system and for effective lawyering.

Legal Theory Lexicon: Virtue Jurisprudence

Introduction

Law students with a background in philosophy are sure to notice the strong influence of moral philosophy on legal thinking. Theories like Kant's have had a profound influence on the idea of fairness and on the conception of rights that is at the heart of deontological legal theory. Utilitarianism and the law reform agenda of Jeremy Bentham provide an important inspiration for the normative version of law and economics. But if you recently studied moral philosophy as an undergraduate or in graduate school, you might notice that something is missing. The moral philosophy pie can be cut in many ways, but the conventional slicing divides normative moral theory into three kinds: (1) deontological moral theories (e.g. Kant and contractualism), (2) consequentialist moral theory (e.g. utilitarianism and welfarism), and (3) aretaic moral theories (e.g. virtue ethics). Recently, however, a variety of legal theorists have begun to consider the implications of aretaic (virtue-centered) moral theory for the law.

This entry in the Legal Theory Lexicon series provides an introduction to "virtue jurisprudence." As always, the discussion is aimed at law students, especially first-year law students, with an interest in legal theory.

Modern Moral Philosophy and Contemporary Legal Theory

The Legal Theory Lexicon already includes entries on Utilitarianism and Deontology, two of the most influential approaches for moral philosophy. In an essay titled Modern Moral Philosophy, Elizabeth Anscombe famously noted persistent problems with the deontological and utilitarian approaches that dominated normative ethics when she wrote in 1958. Anscombe's suggestion was for moral philosophers to return to Aristotle, and that is just what happened. Starting in the 1960s and accelerating through the 1980s and 1990s, there was a trickle and then an avalanche of philosophical work on virtue ethics--an approach to moral theory that emphasizes character and the virtues--as opposed to right action (deontology) or good consequences (utilitarianism). A prior entry in the Legal Theory Lexicon provided an introduction to virtue ethics and you might want to review that before you continue with this post.

Modern legal theory has strong connections with modern moral philosophy. Historically, the connection is evident in the work of Jeremy Bentham: his work combined a conceptual separation of law and morality with a utilitarian program of legal reform. Contemporary legal scholarship frequently invokes general moral theories, including preference-satisfaction utilitarianism and deontological theories like Kant’s, to make arguments about what the law should be. Such normative legal theories are addressed to lawmakers (in the broad sense), including legislators and adjudicators. Developments in political philosophy, sparked by John Rawls’s A Theory of Justice and its libertarian and communitarian critics, have met with avid attention from the legal academy.

Virtue Ethics and Legal Theory

There is, however, an exception to general reflection of developments in moral philosophy in legal theory. Legal philosophy (as practiced by philosophers or academic lawyers) has only recently paid attention to one of the most significant developments in moral theory in the second half of the twentieth century, the emergence of virtue ethics.

An outpouring of articles and monographs attests to the interest of philosophers in virtue ethics. In the law, the situation has been different. The hegemony of deontological and utilitarian theories prevails, at least among legal theorists working in the common-law tradition. There are, however, a growing number of exceptions to this hegemony. A growing number of legal scholars have discussed virtue ethics in their work.

Towards a Virtue Jurisprudence

A full account of the implications of virtue ethics and epistemology for legal theory is a very large topic. Among the issues raised by virtue jurisprudence are the following:

• Virtue ethics has implications for an account of the proper ends of legislation. If the aim of law is to make citizens virtuous (as opposed to maximizing utility or realizing a set of moral rights), what are the implications for the content of the laws?
• Virtue ethics has implications for legal ethics. Current approaches to ethical lawyering emphasize deontological moral theory, i.e. duties to clients and respect for client autonomy, and these deontological approaches are reflected in the various codes of professional conduct that have been devised for lawyers, judges, and legislators. How can we reconceive legal ethics from a virtue-centered perspective?
• Accounts of the virtue of justice (in particular, Aristotle’s and Aquinas’s theories of natural justice) have implications for debates between natural lawyers and legal positivists over the nature of law.

Much recent work on virtue jurisprudence has focused on the relationship between virtue and particular areas of substantive law.  In the bibliography for this entry, you will find articles that discuss virtue and contract law and aretaic approaches to property law.

In this Legal Theory Lexicon post, however, I will discuss only one aspect of virtue jurisprudence--a virtue-centered theory of judging in general and the virtue of justice in particular. Virtue-centered theories of judging answer the question: How should judges decide the controversies that are presented to them? A virtue-centered theory of judging provides an answer along the following lines: Judges should decide cases in accord with the virtues, or judges should render the decisions that would be made by a virtuous judge.

A Virtue-Centered Theory of Judging

How would a virtue-centered theory of judging go? Let’s begin with the uncontroversial idea that good judging is inconsistent with the worst judicial vices and that it requires some minimal set of judicial virtues.

The Thin Theory of Judicial Vice--Begin with the assumption that humans have characters. More particularly, let’s assume that humans have dispositional traits that incline them to behave in more or less predictable ways. Our vocabulary is rich with words to describe such traits. We use terms like “coward,” “procrastinator,” “reliable,” “hard-working,” “studious,” “curious,” “sensitive,” and so forth. Following Aristotle, let’s sort the traits, picking out those which we count as human excellences, “virtues,” and those which we count as defects, “vices.” Let’s set the virtues and any traits that are neutral to the side, and focus on the defects—traits like cowardice, gluttony, avariciousness, foolishness, and so forth.

Are there judicial vices that are inconsistent with excellence in judging? Once asked, the question answers itself. Hardly anyone thinks that corruption and incompetence are consistent with excellence in judging.

We can systematize the worst judicial vices, borrowing Aristotle’s distinction between intellectual and moral character traits. There are two important intellectual vices that are inconsistent with excellent judging. The first of these is judicial stupidity. Judges who suffer from this vice in its worst form lack the intelligence (and hence also the knowledge) necessary to do the complex intellectual work required of judges. They do not know what the rules of law are, and they are unable to see how they could be applied in particular fact situations. The second intellectual vice is judicial foolishness. Even a very smart judge can have terrible practical judgment. A foolish judge may know the law, but he cannot discern the difference between the rules that are important to the case and those that are only marginally relevant. Foolish judges are likely to make impractical demands are the lawyers and parties who appear before them.

There are also moral vices that should are inconsistent with excellent adjudication. The most obvious of these is corruption. Judges should not accept bribes. Although judges are only infrequently in physical danger, they are more frequently faced with situations in which rendering the legally correct decision might injure their popularity, social standing, or opportunities for promotion or nonjudicial work. Hence we should not select civil cowards for judicial office. Judges are often placed in anger-inducing situations. A judge who is prone to fly off the handle at small provocations is not likely to be effective in the courtroom, and hence we ought not to select the hot-tempered for judicial office.

What I have offered is a thin theory of judicial vice. This is a thin theory, because it rests on very weak assumptions about what counts as bad character. So far as I can see, no sensible normative account of judicial selection provides good reasons to reject the normative implications of the thin theory of judicial vice. No one wants stupid, foolish, corrupt, cowardly, or hot-tempered judges. Of course, these vices are not always apparent when candidates are nominated and confirmed for judicial office. There are, I am afraid, some judges on the bench today who possess the full range of these vices.

The Thin Theory of Judicial Virtue--The next step in our investigation of the judicial virtues is simple. If you accept the thin theory of judicial vice, you should also accept a thin theory of judicial virtues. Why? The basic reason is conceptual: virtue is required for the absence of vice. To select a judge who lacks the intellectual defect of judicial stupidity, you must select a candidate who has the corresponding virtue of judicial intelligence. To avoid, civic cowardice, you must select a judge with the virtue of civic courage. To avoid corruption, you must select a judge with the virtue of temperance. To avoid, ill temper, you must look for candidates who have judicial temperaments. A fully-developed virtue jurisprudence would flesh out this list of judicial virtues--specifying the character traits and mental abilities that make for good judging.

A Preliminary List of the Judicial Virtues So let's make a tentative list of judicial virtues:

Judicial Sobriety--Sober as a judge" is the say that expresses the idea that judges should have what was classically called the virtue of temperance. Good judging requires that one’s desires be in order. This is clear when the temperate judge is contrasted to the judge who lacks the ability to control her appetites. Judges who care too much for their own pleasures are prone to temptation; they are likely to be swayed from the course of reason and justice by the temptations of pleasure. A libertine judge may indulge in pleasures that interfere with the heavy deliberative demands of the office. Hence, the saying “sober as a judge,” reflects the popular understanding that excessive indulgence in hedonist pleasures would interfere with excellence in the judicial role.

Judicial Courage--A second virtue, judicial courage is a form of “civic courage.” The courageous judge is willing to risk career and reputation for the ends of justice.

Judicial Temperament--A third virtue, judicial temperament, corresponds to the vice of bad temper. The traditional concern in judicial selection with judicial temperament is illuminated by Aristotle's account of the virtue of good temper or proates: the disposition to anger that is proportionate to the provocation and the situation. The virtue of good temper requires that judges feel outrage on the right occasions for the right reasons and that they demonstrate their anger in an appropriate manner.

Judicial Intelligence--The corrective for the vices of judicial stupidity and ignorance is a form of sophia or theoretical wisdom. I shall use the phrase “judicial intelligence” to refer to excellence in understanding and theorizing about the law. A good judge must be learned in the law; she must have the ability to engage in sophisticated legal reasoning. Moreover, judges need the ability to grasp the facts of disputes that may involve particular disciplines such as accounting, finance, engineering, or chemistry. Of course, judicial intelligence is related to theoretical wisdom in general, but the two are not necessarily identical. The talents that produce theoretical wisdom in the law may be different from those that produce the analogous intellectual virtue in physics, philosophy, or microbiology. Or it may be that theoretical wisdom is the same for all these disciplines. If this is the case, then judicial intelligence may simply be general theoretical wisdom supplemented by the skills or knacks that produce fine legal thought combined with deep knowledge of the law.

Judicial Wisdom--The final virtue on my short list is the corrective for bad judgment or foolishness. I shall use the phrase “judicial wisdom” to refer to a judge’s possession of the virtue of phronesis or practical wisdom: the good judge must possess practical wisdom in her selection of the proper legal ends and means. Practical wisdom is the virtue that enables one to make good choices in particular circumstances. The person of practical wisdom knows which particular ends are worth pursuing and knows which means are best suited to achieve those ends. Judicial wisdom is simply the virtue of practical wisdom as applied to the choices that must be made by judges. The practically wise judge has developed excellence in knowing what goals to pursue in the particular case and excellence in choosing the means to accomplish those goals. In the literature of legal theory, Karl Llewellyn’s notion of “situation sense” captures much of the content of the notion that judicial wisdom corresponds to the intellectual virtue ofphronesis.

This abstract account of judicial wisdom can be made more concrete by considering the contrast between practical wisdom and theoretical wisdom in the judicial context. The judge who possesses theoretical wisdom is the master of legal theory, with the ability to engage in sophisticated legal reasoning and insight into subtle connections in legal doctrine. But even a judge who possesses judicial intelligence is not necessarily a reliably good judge, even if she employs the correct decision procedure in her judicial decision-making. Why not? An answer to this question begins by clarifying the distinction between judicial intelligence and judicial wisdom.

Beyond a Thin Theory of Judicial Virtue

A thin theory of judicial virtue should prove uncontroversial because it avoids the tough questions about judging. Formalists and realists, conservatives and liberals—all can endorse a thin theory of judicial virtue, because thin theories don’t answer hard questions. We can distinguish thin theories of judicial virtue from theories that are “thick.” A thick theory of judicial virtue expands the list of judicial excellences to include characteristics of mind and will that are controversial. Corresponding to any particular normative theory of judging we can postulate a thick theory of judicial virtue that specifies those dispositions and capacities that are required for excellent judging according to the criteria provided by the particular theory.

An example may help. Consider Dworkin’s imaginary judge, Hercules, who decides cases by constructing the theory that fits and justifies the law as a whole; this task can only be accomplished by someone who is able to appreciate legal complexity and to see the subtle interconnections between various legal doctrines summarized in the slogan, “the law is a seamless web.” Moreover, Dworkin’s theory requires judges to have a special concern for the coherence of the law, a virtue we might call “judicial integrity.” But other normative theories of judging may not value this characteristic. For example, “judicial integrity” might not be important to an act-utilitarian theory of judging. Perhaps, the act-utilitarian would consider Hercules to be obsessed with consistency—the hobgoblin of a foolish mind.

Instrumental and Virtue-Centered Theories

Thick theories of judicial virtue may be divided in two kinds, instrumental and virtue-centered. Instrumental theories of judicial virtue are those which begin with some independent criteria for what constitutes a good judicial decision and then selects a list of judicial virtues based on those criteria. For example, many normative theories of judging are decision (or outcome) centered. A decision-centered theory offers criteria for what should count as a good, right, just, or legally valid decision. For a decision-centered theory of virtue, the notion of a correct decision is primary and the judicial virtues are derived from it. Thus, Dworkin’s description of Hercules begins with the criteria for good decisions and then constructs the ideal judge who is able to render such decisions. By way of contrast, a virtue-centered theory does not proceed in this way. Rather, a virtue-centered theory begins with the an account of the virtuous judges as primary and then proceed to derive the notion of a virtuous decision from it.

A Virtue-Centered Theory

So what would a virtue-centered theory look like? This is just a blog post, so I can only give you a brief outline. For the sake of simplicity and clarity, we can formulate a virtue-centered theory of judging in the form of five definitions:

• A judicial virtue is a naturally possible disposition of mind or will that when present with the other judicial virtues reliably disposes its possessor to make correct decisions. The judicial virtues include but are not limited to temperance, courage, good temper, intelligence, wisdom, and justice.
• A virtuous judge is a judge who possesses the judicial virtues.
• A virtuous decision is a decision made by a virtuous judge acting from the judicial virtues in the circumstances that are relevant to the decision.
• A lawful decision is a decision that would be characteristically made by a virtuous judge in the circumstances that are relevant to the decision. The phrase “legally correct” is synonymous with the phrase “lawful” in this context.

The central normative thesis of a virtue-centered theory of judging is that judges ought to be virtuous and to make virtuous decisions. Judges who lack the virtues should aim to make lawful or legally correct decisions, although they may not be able to do this reliably given that they lack the virtues. Judges who lack the judicial virtues ought to develop them. Judges ought to be selected on the basis of their possession of (or potential for the acquisition of) the judicial virtues.

Conclusion

Of course, this very short introduction raises many more questions than it answers. But I hope that even this very sketchy account of one aspect of virtue jurisprudence has sparked your interest. Some of the most interesting applications of virtue ethics to legal theory can be found in torts and criminal law, and we haven't even touched on those. Another very interesting set of questions arises from the notion that the aim of the law is to inculcate virtue--an idea that may be at odds with pluralist idea that morals is a matter of individual choice.

For a short introduction to my own work, check out Virtue Jurisprudence: An Aretaic Theory of Judging and Natural Justice.

Related Lexicon Entries

• Legal Theory Lexicon 008: Utilitarianism
• Legal Theory Lexicon 010: Deontology
• Legal Theory Lexicon 012: Virtue Ethics

Bibliography

• Virtue Jurisprudence (edited by Colin Farrelly & Lawrence B. Solum, Palgrave-Macmillan 2008).
• Chapin Cimino, Virtue and Contract Law (2010).
• Chapin Cimino, Public Law, Public Consequences, and Virtue Jurisprudence (2010).
• Eric Claeys, Virtue and Rights in American Property Law (2009).
• Sherman J. Clark, Neoclassical Public Virtues: Towards an Aretaic Theory of Law-Making (and Law Teaching) (2010).
• Colin Farrely & Lawrence B. Solum, eds., Virtue Jurisprudence (Palgrave 2008).
• Kyron Huigens, Nietzsche and Aretaic Legal Theory (2003).
• Eduardo M. Penlaver, Land Virtues (2008).
• Frederick Schauer, Must Virtue Be Particular? (2010).
• Lawrence B. Solum Virtue Jurisprudence: An Aretaic Theory of Judging (2003).
• Lawrence B. Solum, Natural Justice (2006).
• Ekow N. Yankah, Virtue's Domain (2008).
• Ekow N. Yankah, The Law of Duty and the Virtue of Justice (2008).

(This entry last revised on May 20, 2012.)

 

Legal Theory Bookworm

The Legal Theory Bookworm  recommends The Harm in Hate Speech by Jeremy Waldron.  Here is a description:

Every liberal democracy has laws or codes against hate speech—except the United States. For constitutionalists, regulation of hate speech violates the First Amendment and damages a free society. Against this absolutist view, Jeremy Waldron argues powerfully that hate speech should be regulated as part of our commitment to human dignity and to inclusion and respect for members of vulnerable minorities.

Causing offense—by depicting a religious leader as a terrorist in a newspaper cartoon, for example—is not the same as launching a libelous attack on a group’s dignity, according to Waldron, and it lies outside the reach of law. But defamation of a minority group, through hate speech, undermines a public good that can and should be protected: the basic assurance of inclusion in society for all members. A social environment polluted by anti-gay leaflets, Nazi banners, and burning crosses sends an implicit message to the targets of such hatred: your security is uncertain and you can expect to face humiliation and discrimination when you leave your home.

Free-speech advocates boast of despising what racists say but defending to the death their right to say it. Waldron finds this emphasis on intellectual resilience misguided and points instead to the threat hate speech poses to the lives, dignity, and reputations of minority members. Finding support for his view among philosophers of the Enlightenment, Waldron asks us to move beyond knee-jerk American exceptionalism in our debates over the serious consequences of hateful speech.

Download of the Week

The Download of the Week is The Nature and Purpose of Evidence Theory by Michael S. Pardo. Here is the abstract:

The past few decades have seen an explosion in theoretical and empirical scholarship exploring the law of evidence. From a variety of disciplines and distinct methodological perspectives, this work has illuminated important issues regarding types of evidence, legal rules and doctrine, the reasoning processes of judges and juries, the structure of proof, and the normative considerations underlying these various issues. This Article takes up the theoretical project writ large. Exploring the landscape of evidence scholarship, the Article examines a number of methodological and meta-theoretical questions: What would a successful evidentiary theory look like? By what criteria should assess such a theory? What is the purpose of such theorizing? What is the relationship between the theoretical and empirical projects? In exploring these questions, the Article identifies criteria by which to evaluate theorizing in this area. 

To that end, the Article first identifies two considerations that underlie any theoretical account of the evidentiary proof process and its components: factual accuracy and allocating the risk of erroneous decisions. Next, it articulates and defends general criteria by which to evaluate theoretical accounts in evidence scholarship in light of these considerations. Finally, it applies the general criteria to evaluate two theoretical accounts — a probabilistic conception and an explanatory conception — and concludes that the probabilistic conception fails and the explanatory conception succeeds in light of the theoretical criteria. Along with clarifying evidence theory, the Article also clarifies the relationship between theoretical and empirical scholarship in this area.

Highly recommended. Download it while its hot!

Hemel on the First Amendment & Executive Action

Daniel Jacob Hemel (Yale University - Law School) has posted Executive Action and the First Amendment's First Word (Pepperdine Law Review, Vol. 40, 2013, Forthcoming) on SSRN. Here is the abstract:

In recent years, textualist scholars have advanced the argument that the First Amendment only applies to legislative action, and thus that executive authority is unencumbered by the First Amendment’s prohibitions. According to this argument, the words “Congress shall make no law” cannot be construed to limit the powers of the executive branch. This brief Article seeks to show why the textualist argument is logically flawed. If Congress can make no law abridging First Amendment freedoms, then it cannot empower the executive to do the same. Statutes authorizing executive action either (a) do not empower the executive to abridge First Amendment freedoms, in which case executive actions abridging First Amendment freedoms are ultra vires, or (b) do empower the executive to abridge First Amendment freedoms, in which case the statute itself violates the First Amendment. In either case, executive actions abridging First Amendment freedoms are unconstitutional. Importantly, this Article’s thesis only applies where the executive acts pursuant to legislative authorization under Article I of the Constitution. Where the executive acts pursuant to its own Article II inherent authority, then the textualist scholars’ argument is stronger. When, for example, the President acts as “Commander in Chief,” a strict textualist could conclude that the President is not bound by the First Amendment. Notably, federal courts’ deference to the executive in First Amendment cases involving military matters already seems to reflect the principle that the force of the First Amendment’s prohibitions might hinge on the source (Article I vs. Article II) of the executive authority being exercised.

Samahon on Freytag v. Commissioner of Internal Revenue

Tuan Samahon (Villanova University - School of Law) has posted Blackmun (and Scalia) at the Bat: The Court's Separation-of-Powers Strike Out in Freytag (Nevada Law Journal, Vol. 12, 2012) on SSRN. Here is the abstract:

This contribution to the "worst Supreme Court cases" symposium examines Erwin Griswold's role in the litigation of Freytag v. Commissioner and the majority's holding that the U.S. Tax Court is a part of "the Courts of Law." The Author concludes that the Freytag majority created the risk of a further separation-of-powers challenge to the Tax Court predicated on the President's qualified power to remove tax court judges (26 U.S.C. sec. 7443(f)), officers who per Freytag exercise "the judicial power of the United States." Assuming, arguendo, the Tax Court judges do exercise "the judicial power of the United States" (and not executive power), Congress impermissibly granted to the President a cross-branch power to remove these judges. The Author argues that even a qualified power to remove affords a degree of control, and an executive's qualified power to remove a judicial officer represents an executive's power to control to some degree the exercise of judicial power. In this context, the article considers newly released presidential archival sources on the non-transparent "resignation" of Judge Albert Fletcher of the U.S. Court of Military Appeals as, in effect, a precipitated but disguised removal "for cause."

The Author also offers a critique of Scalia's concurring opinion. It suggests that although an officer's attributes are necessary for the proper characterization of the exercise of power (whether legislative, executive or judicial), they are not alone sufficient to characterize the same. Instead, some resort must be made to some definition or conception of what is encompassed within the scope of "the judicial power of the United States."

Sunder on Patents & HIV

Madhavi Sunder (University of California, Davis - School of Law) has posted An Issue of Life or Death (Yale University Press 2012) on SSRN. Here is the abstract:

Not too long ago, an HIV-positive diagnosis was tantamount to a death sentence — for people in the East and the West, in the South and the North. The drug companies that perfected the antiretroviral therapies invested princely sums to find these miracle cures. To justify their investment, they rely on the promise of a patent — the twenty-year exclusive right to make, use, and sell an invention that is novel, non-obvious, and useful. The patent allows the drug company to charge high sums for the medicine, and thereby recoup its enormous investments in scientists and drug trials, while also turning a profit for shareholders and investing in research toward future breakthrough drugs. Thus patents have saved countless lives, including Thembisa’s thus far. But this structure has its limits. Indeed, the evidence is mounting that in crucial ways patents fail to promote the health of people in the developing world, and in some cases in the developed world as well.

Pardo on Evidence Theory

Michael S. Pardo (University of Alabama School of Law) has posted The Nature and Purpose of Evidence Theory (Vanderbilt Law Review, Forthcoming 2013) on SSRN. Here is the abstract:

The past few decades have seen an explosion in theoretical and empirical scholarship exploring the law of evidence. From a variety of disciplines and distinct methodological perspectives, this work has illuminated important issues regarding types of evidence, legal rules and doctrine, the reasoning processes of judges and juries, the structure of proof, and the normative considerations underlying these various issues. This Article takes up the theoretical project writ large. Exploring the landscape of evidence scholarship, the Article examines a number of methodological and meta-theoretical questions: What would a successful evidentiary theory look like? By what criteria should assess such a theory? What is the purpose of such theorizing? What is the relationship between the theoretical and empirical projects? In exploring these questions, the Article identifies criteria by which to evaluate theorizing in this area.

To that end, the Article first identifies two considerations that underlie any theoretical account of the evidentiary proof process and its components: factual accuracy and allocating the risk of erroneous decisions. Next, it articulates and defends general criteria by which to evaluate theoretical accounts in evidence scholarship in light of these considerations. Finally, it applies the general criteria to evaluate two theoretical accounts — a probabilistic conception and an explanatory conception — and concludes that the probabilistic conception fails and the explanatory conception succeeds in light of the theoretical criteria. Along with clarifying evidence theory, the Article also clarifies the relationship between theoretical and empirical scholarship in this area.

Highly recommended. Download it while its hot!

Fromer on The External Limits on the Intellectual Property Clause

Jeanne C. Fromer (Fordham Law School) has posted The Intellectual Property Clause's External Limitations (Duke Law Journal, Vol. 61, p. 1329, April 2012) on SSRN. Here is the abstract:

The text, structure, and history of the Intellectual Property Clause (IP Clause), as well as subsequent governmental activity, Supreme Court doctrine, and policy, show that the IP Clause limits Congress from using any of its other powers “To promote the Progress of Science and useful Arts” through laws that reach beyond the power conferred by the IP Clause to “secur[e] for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” That is, the evidence marshaled by this Article shows that the IP Clause externally limits Congress from seeking, via legislation, to promote the progress of science and useful arts, in any way other than by enacting laws that secure to authors and inventors exclusive rights in their writings and discoveries for limited times. Yet the story of Congress’s power in this area has another side: Since the late twentieth century, Congress has increasingly reached beyond the IP Clause’s means to promote the Clause’s ends, often asserting its expansive — and less limited — commerce and treaty powers. To some degree, this shift reflects the fact that laws regulating intellectual property often have multiple purposes, including trade and foreign-relations interests, which sometimes point in more expansive directions than do those of the more limited IP Clause. This Article synthesizes these competing purposes and provides an analytical framework under which courts, legislators, and others can assess the constitutionality of federal legislation. This framework affords a presumption against the constitutionality of laws that promote the IP Clause’s ends but subvert its means, a presumption that may be overcome only by clear and convincing evidence that Congress, pursuant to its other more permissive powers, intentionally chose to supersede the IP Clause’s means because of paramount, legitimate interests. This framework suggests that a number of existing federal laws, such as federal trade-secrecy provisions and antibootlegging laws, might be unconstitutional. The framework also suggests how to assess the constitutionality of laws that would protect databases, laws passed pursuant to international agreements with other countries, and laws that establish federal funding for scientific and artistic works.

Highly recommended. Download it while its hot!

Austin on Property & the Rule of Law

Lisa M. Austin (University of Toronto - Faculty of Law) has posted Property and the Rule of Law on SSRN. Here is the abstract:

This paper offers a new framework for thinking about the relationship between the common law of property and the rule of law. The standard way of framing this relationship is within the terms of the form/substance debate within the literature on the rule of law — does the rule of law only include formal and procedural aspects or does it also encompass and support substantive rights such as private property rights and civil liberties? Jeremy Waldron and Richard Epstein have recently defended each of these positions, respectively. By focusing on the nature of common law reasoning, I wish to question the form/substance dichotomy that frames this debate and show that the formal aspects of the rule of law are in fact principles widely adopted within the practice of common law reasoning and, as such, play a large role in shaping the substantive content of common law property rights. In other words, once property rights are understood as the result of a practice of reasoning that routinely invokes rule of law principles, the standard form/substance dichotomy is untenable. In short, there is no “substance” in the common law of property that is not already informed by “form.” Understanding this has implications beyond the relationship between property law and the rule of law for it indicates an important defect in contemporary property theory more generally. My claim is that property theory has focused too much on the concept of, and justifications for, ownership and ignored the role that rule of law principles have played in shaping substantive property doctrine. Theories of ownership risk going astray if they seek to account for property doctrine without first appreciating the way that form influences substance. Moreover, theories of legal reasoning and justification risk going astray if they do not appreciate the role that rule of law principles play in providing important standards of legal justification and instead mistake these elements for either principles of political morality or references to broad policy considerations.

Highly recommended.

Haque on the Morality of War

Adil Ahmad Haque (Rutgers, The State University of New Jersey - School of Law-Newark) has posted Law and Morality at War (Criminal Law and Philosophy, Vol. 6, 2012) on SSRN. Here is the abstract:

This article, written as part of a Special Issue on the legal philosophy of Jeremy Waldron, offers a general account of the relative scope of the morality of war, the laws of war, and war crimes. I propose an instrumentalist account of the laws of war, according to which the laws of war should help soldiers conform to the morality of war. The instrumentalist account supports Waldron’s conclusion that the laws of war justifiably prohibit attacks on civilians even if it turns out that some civilians lack a moral right not to be killed. Importantly, the instrumentalist account also offers what Waldron thinks impossible: a non-consequentialist defense of the failure of the laws of war to prohibit the killing of nonthreatening combatants. Finally, I argue that new war crimes can be broader than the morality of war as well as established laws of war and that many of the arguments for defining war crimes more narrowly than either the morality of war or the laws of war are unconvincing. In all of th