Legal Theory Blog

Weisbach on Environmental Taxes & the Precautionary Principle

David A. Weisbach (University of Chicago - Law School) has posted Should Environmental Taxes Be Precautionary? on SSRN. Here is the abstract:

This paper considers whether environmental taxes should be accelerated (or delayed) if the environmental harm from pollution is uncertain and irreversible, and where we are likely to learn more about the nature of the harm or about mitigation technologies in the future. It concludes that environmental taxes should be set equal to expected marginal harm from pollution given the currently available information and should be neither accelerated nor delayed because of the prospect of learning or irreversible harm. The reason is that taxes equal to expected marginal harm decentralize decisions to market participants who will, facing these taxes, make appropriate choices about the timing of pollution. Taxes act similarly to property rights in a complete market where market participants produce Pareto outcomes. There are a number of caveats to this conclusion including the possibility of endogenous learning, in which our understanding of the environmental effects of pollution or the available mitigation technologies depends on the level of taxation.

Recommended. I must confess a great fondness for this approach--which I passionately advocated as a 15-year old.

Denning & Kent on Anti-Evasion Doctrines in Constitutional Law

Brannon P. Denning (Cumberland School of Law) & Michael B. Kent Jr. (Atlanta's John Marshall Law School) have posted Anti-Evasion Doctrines in Constitutional Law on SSRN. Here is the abstract:

Recent constitutional scholarship has focused on how courts—the Supreme Court in particular—“implements” constitutional meaning through the use of doctrinal constructs that enable judges to decide cases. Judges first fix constitutional meaning, what Mitchell Berman terms the “constitutional operative proposition,” but must then design “decision rules” that render the operative proposition suitable to use in the third step, the resolution of the case before the court. These decision rules produce the familiar apparatus of constitutional decisionmaking—strict scrutiny, rational basis review, and the like. For the most part, writers have adopted a binary view of doctrine. Doctrinal tests can defer or not to other actors; implementing doctrines can be fashioned as rules or standards; doctrines can overenforce or underenforce constitutional commands. In this essay, though, we unsettle this dialectical view of doctrinal design by identifying and describing anti-evasion doctrines (AEDs) in constitutional law: doctrines developed by courts—usually designed as standards, as opposed to rules—that supplement other doctrines (designed as rules) to implement particular constitutional principles.

AEDs touch all areas of constitutional law. In addition to being ubiquitous, AEDs have a long pedigree. Early examples appear in famous Marshall Court opinions; thus, they are not some modern innovation. In addition to naming AEDs, describing the forms they take, and the characteristics the forms share, this essay also seeks to describe the benefits and payoffs in constitutional law resulting from AEDs. On the plus side, AEDs are designed to help optimize enforcement of constitutional principles—by addressing “problems with rules,” for example. This gap-filling function comes at a cost, however. Not only does the addition of AEDs tend to increase doctrinal complexity, that complexity can increase decision costs for courts, and dilute the benefits of using rules in the first place. The tradeoffs are almost mirror images of the benefits.

We also discuss the implications of AEDs for constitutional doctrine generally. That they seem to be everywhere in constitutional law suggests that doctrinal complexity should be seen as a feature of our system, and not a bug, because it attempts to ensure form will not trump constitutional substance. If a certain amount of complexity is inevitable, then that suggests one should be skeptical about claims that constitutional law could be rationalized by the abandonment of the “formulaic Constitution,” in favor of simple, predictable, and easy to apply rules. In fact, the presence of AEDs furnishes strong evidence for Frederick Schauer’s “convergence hypothesis,” which holds that “[w]hen authorised to act in accordance with rules, rule-subjects will tend to convert rules into standards by employing a battery of rule-avoiding devices that serve to soften the hard edges of rules,” and vice-versa. Finally, highlighting the role AEDs play in constitutional doctrine, for good or ill, is another reason to take doctrine, its formation, and application by courts, seriously.

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Appleton on Reproduction & Regret

Susan Frelich Appleton (Washington University in Saint Louis - School of Law) has posted Reproduction and Regret (Yale Journal of Law & Feminism, Vol. 23, No. 2, pp. 255, 2011) on SSRN. Here is the abstract:

What is the legal significance of regret following a reproductive decision or outcome? In Gonzales v. Carhart, a Supreme Court majority offered one answer to this question, famously invoking the regret of some women for their past abortions as a reason to uphold a federal law criminalizing a particular abortion procedure. But Gonzales is not the first case to confront what I call 'reproduction and regret,' and the Court’s approach in Gonzales ignores the contrasting judicial responses from these other cases.

This Article supplies the missing analysis - contextualizing Gonzales’s treatment of reproduction and regret by identifying and developing five additional models. These additional models come from disputes about adoption surrenders, the performance of surrogacy arrangements, support obligations arising from children born of unplanned pregnancies, the use of previously frozen embryos, and the status of sperm donors. Each model depicts a different understanding of reproduction and regret, supplementing Gonzales and the ensuing commentary on that case with a more expansive inquiry into the work courts have used regret to perform and the unarticulated assumptions or normative commitments that might explain the doctrinal and rhetorical inconsistencies. This wider lens illuminates regret’s regulatory function across the range of cases.

This Article’s examination of regret as a regulatory tool in turn has three analytical payoffs. First, it disrupts Gonzales’s depiction of regret as a natural and self-generated emotion, clarifying the role of the state in producing regret. Second, it reinforces the critiques of Gonzales’s use of maternal stereotypes with a more robust account of gender that not only includes stereotypes of fatherhood but also exposes a specific link among regret, heterosexual intercourse, and unexamined beliefs about sexual pleasure. Finally, it highlights deep policy rifts in family law, a field that continues to prioritize the regulation of sex in particular, despite rhetoric to the contrary.

The importance of the jurisprudence of reproduction and regret transcends the particular disputes that exemplify it. As a general matter, contemporary family law celebrates what the Supreme Court has called 'the private realm of family life' and scholars have called “the republic of choice.” This vision not only puts a premium on individual decision making; it also complicates the question of what the legal significance of an actor’s own second thoughts about such decisions should be. An analysis of reproduction and regret thus offers a window into family law’s foundational values and contests writ large, providing insights into the principles, themes, and clashes dominating family law today.

Itai on Cross-Border Financial Institutions as Tax Intermediaries

Itai Grinberg (Georgetown University Law Center) has posted Beyond FATCA: An Evolutionary Moment for the International Tax System on SSRN. Here is the abstract:

The international tax system is in the midst of a novel contest between information reporting and anonymous withholding models for ensuring that states have the ability to tax offshore accounts. What is at stake is the extent of many countries’ capacity to tax investment income of individuals and business profits of closely held businesses through an income tax as the world continues to become increasingly financially integrated. This article claims that the global response to four competing and incongruent initiatives of the European Union, the OECD, the United States, and Switzerland, together represent an emerging international regime in which financial institutions act to facilitate countries’ ability to tax their residents’ offshore accounts. The growing consensus that financial institutions should act as “tax intermediaries” cross-border represents a remarkable shift in international norms that has yet to be recognized in the literature. What remains is a contest as to how financial institutions should serve as tax intermediaries cross-border, and for which countries. Different outcomes in this contest may portend starkly different futures for the extent of cross-border tax administrative assistance available to most countries. The eventual triumph of an information reporting model over an anonymous withholding model is key to (1) allowing for the taxation of principal, (2) ensuring that most countries are included in the benefit of financial institutions serving as tax intermediaries cross-border, and (3) encouraging taxpayer engagement with the polity and supporting sovereign policy flexibility, especially in emerging and developing economies. The article closes with observations about how to reconcile the emerging automatic information exchange approaches and develop a multilateral system.

Delgado on Conservative Wealth

Richard Delgado (Seattle University School of Law) has posted Transcendence: Conservative Wealth and Intergenerational Succession on SSRN. Here is the abstract:

This Article investigates a hitherto unexplored connection between money and politics. It posits a psychological explanation for why certain extremely wealthy and powerful tycoons back ultraconservative causes and oppose social spending, even on education, though these measures would benefit the economy as a whole. Employing the concept of transcendence, it shows how wealthy parents are often disappointed in their offspring's free-spending ways and weak work ethic. Unconsciounsly seeking to assure continuity after they are gone, the elderly rich shift focus to assure that their class, at least, will continue to rule afther their own demise.

Barber on the Argument from Counter-Example in Legal Philosophy

Nicholas W. Barber (University of Oxford - Faculty of Law) has posted The Argument from Counter-Example on SSRN. Here is the abstract:

This paper considers a certain brand of argument commonly found in legal philosophy: the argument from counter-example. These arguments challenge an interpretation of an institution or principle by providing an instance that, it is claimed, is mistakenly excluded from, or included in, the account. It is contended that this type of argument can be less persuasive than it first seems, and the assumptions on which it depends are problematic. The paper connects the argument to the broader question of the significance of the common understanding of an institution or principle in its interpretation. It is contended that the common understanding is a constraint on such an interpretation, but only a limited one.

Highly recommended.

Chehab on Posner & Abebe on Foreign Affairs Legalism

Ahmad Chehab (Georgetown University Law Center) has posted A Madisonian Response to Posner and Abebe on SSRN. Here is the abstract:

In seeking to further dethrone the aims of legal liberalism in the United States, Professor Posner, along with his University of Chicago Law School colleague, Professor Daniel Abebe, have jointly produced a renewed endorsement for broad judicial deference to an unchecked Executive in the context of foreign relations, provocatively entitled The Flaws of Foreign Affairs Legalism. Flaws boldly takes aim at “foreign affairs legalism” — a loosely defined “school of thought” among law professors, practitioners and judges who, among other things, believe the President should be constrained by law — which they assert rests on “implausible assumptions” and remains divorced from past and present historical and constitutional practice.

The familiar justification for foreign affairs deference focuses heavily on the frequently perceived comparative institutional advantage of the Executive Branch, including access to information, decisiveness and swiftness of action. Such superior traits also gives Flaws reason to so conclude that courts should “[a]s much as possible, solicit the executive’s views on disputes involving foreign affairs and defer to these views except under unusual circumstances” since “[i]ncreased deference to the executive would ensure that the most accountable branch continues to exercise primary foreign affairs decision-making authority.” Forget about judicial review — not only is the President subject to an electoral test ensuring alignment with the public interest, but the President also cares about his “legacy” and finds himself constrained by both party politics and this public opinion.

This paper argues that excessive faith in stand-alone functional arguments are not enough, since deference unduly removes accountability in favor for unchecked decision-making, an extreme anathema to the liberal constitutional structure underlying American government .Although I criticize the Executive-primacy model advocated by Flaws, I do recognize that functional concerns constitute significant components for sound national security policy. Nonetheless, effectiveness in foreign affairs responses cannot be limited to mere mechanical calculations. Simply placing faith with those in office to correct their own aberrations, pathologies, and errors without external checks will only undermine the demand for accountability, predictability, and transparency commonly understood to form the basis of the rule of law.

In Part I, I attempt to demonstrate two things: First, that the Executive Branch has not been a good promoter of international law. Far from Flaws bold assertion that the “executive branch has been a primary motor for promoting international law”,recent American history suggests otherwise. More pointedly, violations of international law — including outright disregard for international treaty obligations, disrespect for international institutions and even complicity in encouraging flagrant violations of international human rights norm — are commonplace. Second, I contend that the Supreme Court has hardly indicated an inclination to defer to presidential claims in the foreign relations/national security context.

In Part II, I explore and critique Flaws arguments for judicial deference. Contrary to the scenario that “[w]hen national emergencies strike, the executive acts, Congress acquiesces, and courts defer,” the judiciary has not and should not be marginalized. As the history of constitutional democracy shows, nations purporting to follow a clear constitutional set of legal principles often fall prey to the peculiar pathology of enacting draconian statutes in response to emergencies,” including most recently the Prevention of Terrorism Act of 2005 in the United Kingdom the PATRIOT Act in the United States, along with troubling acquiescence to increased presidential power claims at the expense of judicial constraint.

The central point discussed in Section II is that Flaw’s arguments are in tension with social psychological findings suggesting inherent shortcomings in limiting decision-making review to a small group of individuals. The processes involved are manifold and complex, but studies have long pointed out the unconscious tendency of individuals processing of information to arrive at conclusions that suit some pre-determined end or goal. This pre-determined end or goal is often tendentious and ideologically driven. humans tend to persist in their biased theories, beliefs, and expectations. Instead of relying on all available sources of knowledge, individuals are often prone to selectively access a subset of beliefs and epistemological constructs that support prior held conclusions. Studies also have shown how individuals are often predisposed to fit their perceptions of policy-relevant facts to their group commitments. Identifying such empirically established psychological descriptions of human decision-making, giving a plausible and textured account of how they function, and devising instructive lessons from these findings can help improve policy making in the national security context. To be sure, the fact that the motivation of self-interest can distort human judgments does not translate into a free for all. Rather, it suggests excessive deference in those charged with securing American national security as a mistaken course of action.

McAllister on Adaptive Mitigation of Greenhouse Gases in the Electric Power Sector

Lesley K. McAllister (University of San Diego School of Law) has posted Adaptive Mitigation in the Electric Power Sector (Brigham Young University Law Review, p. 2115, 2011) on SSRN. Here is the abstract:

The electric power sector and other sectors that are the primary producers of greenhouse gases are in a unique position with respect to climate change. Over the next several decades, these sectors are likely to face increasing pressure to adopt mitigation measures that reduce their greenhouse gas emissions. In this process of transformation, an opportunity exists to adopt technologies and practices that not only further climate change mitigation but also climate change adaptation.

This article explains the disjuncture between mitigation and adaptation policy and the need for greater integration and analyzes the possibilities for synergies between mitigation and adaptation in the electric power sector. The analysis shows that several mitigation options, particularly energy efficiency and some renewable energy technologies, have a wide variety of adaptation benefits. The article then concludes with policy recommendations to promote adaptive mitigation.

Cooter & Siegel on a Theory of the Tax Power

Robert D. Cooter (University of California, Berkeley - School of Law) & Neil Siegel (Duke University - School of Law) have posted Not the Power to Destroy: A Theory of the Tax Power for a Court that Limits the Commerce Power on SSRN. Here is the abstract:

Article I, Section 8 of the U.S. Constitution explicitly gives Congress the power to regulate interstate commerce. Effective regulations often attach penalties to their violation. Section 8 also gives Congress the power to promote the general welfare by taxing. Interstate commerce is narrower than the general welfare, so the power to penalize is narrower than the power to tax.

As long as the U.S. Supreme Court declined to enforce limits on the commerce power, it had little need to distinguish between penalties and taxes. Recently the Court began to limit the commerce power, so it now needs to distinguish between them. Existing tax power jurisprudence, however, is inadequate to this need. This article analyzes constitutional text, structure, history, and precedent with help from economics in order to develop a theory of the tax power for a Court that limits the commerce power.

A penalty usually condemns forbidden behavior in moral language. In addition to condemning, a penalty usually creates material incentives not to engage in wrongdoing. Exactions that exceed most people’s gains from forbidden conduct provide incentives not to do it. While most people forbear from wrongdoing, some engage in it despite the exaction. To prevent wrongdoing by unusual people, the exaction’s severity often increases for intentional or repeated violations.

A tax usually applies to behavior that is not condemned in moral language. Instead, taxed behavior is often described in morally neutral terms or in the language of permission. People often infer permission from the absence of condemnation. Besides explicit or inferred permission, the material incentives of a tax usually dampen an activity without preventing it. Many people gain more from taxed activities than they pay in taxes. Furthermore, the tax rate usually remains the same for intentional or repeated conduct. Thus a tax provides incentives to dampen one’s activity, not to stop it.

Two ideal types of exactions differ according to their expressive and material characteristics. A “pure penalty” condemns behavior and prevents it, whereas a “pure tax” permits behavior and dampens it.. By condemning and preventing conduct, a pure penalty coerces morally and materially. In contrast, by permitting conduct without preventing it, a pure tax does not coerce morally or materially. According to longstanding doctrine, Congress has the constitutional power to regulate interstate commerce by imposing penalties that coerce, which we call the “pure penalty power.” But Congress lacks the constitutional power to pursue the general welfare by imposing pure penalties.

The difference in pure types underlies another difference that is reflected imperfectly in the Court’s jurisprudence. A penalty that prevents an activity cannot raise significant revenues, whereas a tax that dampens an activity can raise significant revenues. According to longstanding doctrine, Congress has the constitutional power to raise revenues by taxes that dampen behavior, which we call the “pure tax power.”

Problems of interpretation arise from “impure” exactions, in which the expression sounds like a penalty and the material characteristics look like a tax, or vice versa. The shared responsibility payment in the Patient Protection and Affordable Care Act (ACA) imposes a fee on applicable individuals who fail to obtain health insurance in accordance with the law’s minimum coverage provision. The ACA calls this exaction a “penalty,” which sounds like condemning wrongdoing — the wrong of remaining uninsured and shifting the risk of high medical costs to others. In contrast, the material characteristics of this exaction resemble a tax. Its level is set low enough so that at least some people expect to gain from paying it, instead of buying private insurance. Also, the exaction does not increase with intentionality or recidivism. The ACA’s expression sounds like a penalty and its material characteristic look like a tax.

When interpreting an exaction, should expression trump materiality or should materiality trump expression? Our answer depends on the exaction’s effects. If it works like a penalty by preventing conduct, then it should be interpreted as a penalty. If it works like a tax, then it should be interpreted as a tax. We think that most people will respond to the ACA’s material incentives, not to its expression. People are characteristically self-interested with respect to their finances and health.

When interpreting exactions under the General Welfare Clause, the Court has long suggested that materiality should usually outweigh expression. For purposes of the tax power, a statutory provision that sounds like a regulation, looks like a tax, and works like a tax should be interpreted as a tax. It is a tax equivalent.

Highly recommended.

West on the Limits of Process

Robin L. West (Georgetown University Law Center) has posted The Limits of Process (GETTING TO THE RULE OF LAW: NOMOS L, pp. 32-51, James E. Fleming, ed., New York University Press, 2011) on SSRN. Here is the abstract:

This article presents four major objections to Jeremy Waldron’s claim that for “Rule of Law” to exist it we must move beyond basic formal requirements that laws be general and knowable rules we can all comply with, towards substantive requirements that when the law imposes its censorial and punitive will upon us, it is applied in a way that acknowledges our intelligence and respects our individual dignity. After challenging Waldron’s claim, the author suggests that if Rule of Law theorizing is intended to capture our ideals of law, then the three paradigms of Rule of Law scholarship that Waldron has usefully identified and distinguished — formal, procedural, and substantive — need to move beyond identifying the Rule of Law as a means to counter the pernicious abuse of power by a too-fierce state besotted by its own political will, and acknowledge the ways in which the law expresses the will of the state to protect weaker parties harmed not by the state but by powerful private entities.

Highly recommended.

Kelso on Standards of Review & Proportionality, Congruence, & Symmetry

R. Randall Kelso (South Texas College of Law) has posted United States Standards of Review Versus the International Standard of Proportionality: Congruence and Symmetry on SSRN. Here is the abstract:

Part I of this article notes that rights review in the United States is based on two distinct lines of authority: tier review and reasonableness balancing review. Under tier review, courts focus on whether to adopt strict scrutiny, intermediate review, or minimum rationality review. Under reasonableness balancing review, courts balance the benefits of the government regulation against the burden on the individual, and then ask whether given the benefit the burden is “unreasonable,” “clearly excessive,” “grossly excessive,” “grossly disproportionate,” or in some other fashion goes “too far.” Rights review in constitutional courts around the world use one approach: proportionality. Proportionality analysis has three basic steps: suitability, necessity, and balancing “stricto sensu.”

Despite these surface differences, each approach uses the same building blocks in developing the relevant standard of review. As discussed in Part II, each is based on a means/end analysis, focusing on the ends the government is seeking to advance and the means by which those ends are advanced. Each focuses on the extent to which the government action is narrowly tailored to not burden individual rights more than is viewed as appropriate. Each is concerned with whether the government’s interests are strong enough to justify the burden on individual rights. Given this backdrop, Part III discusses the international proportionality analysis and American tier and reasonableness review in greater depth. Part IV considers these standards of review against a backdrop of civil law and common law decisionmaking styles.

Finally, in Part V, the standards of review are related to the philosophic divide between positvist and natural law theories of justice, and to stages of cognitive and moral developmental psychology. As discussed in Part V, both the current majority on the United States Supreme Court and international constitutional rights decisionmaking reject review based on a limited positivist vision of protecting only clearly identified specific rights in the Constitution, consistency with customs and traditions of society, and limited review to ensure the government action is not irrational. Instead, the current majority of the United States Supreme Court and international constitutional decisionmaking reflect a commitment to protecting human dignity against government infringement and giving individuals equal concern and respect.

Hoelle on Natural Law & the U.S. Constitution

John C Hoelle (University of Colorado at Boulder) has posted The Virtue of a Natural Law Reading of the U.S. Constitution (Consortium, 2011) on SSRN. Here is the abstract:

Natural law was arguably fundamental to the U.S. Constitutional project: the Framers apparently assumed courts would interpret and apply unwritten natural law concepts alongside the enacted provisions of the document. However, since the early 19th Century judges have sought to ground all decisions on specific text in the Constitution. Not only is this inconsistent with the intent of the Framers, it makes for bad adjudication. Fortunately, I believe philosophy and custom can be marshaled on the side of re-introducing judicial appeal to natural law.

Philosophically, the fact that the positivist conception of law has no connection to ethics or natural law principles makes it ontologically bankrupt - unlike natural law, positive law has no ontological validity at its core. Natural law is also inherently primary to positive law - in the sense that moral imperatives shape positive law, and in the sense that interpreting positive law requires higher guiding principles. The existence of a long-standing custom of judicial appeal to natural law provides an ethical basis for judicial creativity in protecting rights that flow from natural law principles.

As to a model framework, I argue that judges are competent to apply a range of faculties in ascertaining our society’s moral true north. I offer that virtue ethics, and specifically the venerable tradition of the middle path - the doctrine of the mean - can provide a framework which holds promise as a universal principle that can assist us in re-evaluating and re-creating our fundamental law as our social experiment in the United States develops.

Ryan on Federalism & Multijurisdictional Governance

Erin Ryan (Lewis & Clark Law School) has posted Federalism and the Tug of War Within: Introduction (Oxford University Press, 2012) on SSRN. Here is the abstract:

"Federalism and the Tug of War Within" explores how constitutional interpreters struggle to reconcile the competing values that undergird American federalism, with real consequences for governance that requires local and national collaboration. Drawing examples from the response to Hurricane Katrina, climate governance, health reform, nuclear waste, and other problems that implicate both state and federal authority, it shows how federalism theory can inhibit effective multijurisdictional governance by failing to navigate the tensions within federalism itself.

The book argues that American federalism is best understood through the “tug of war” between the good-governance principles that dual sovereignty fosters — including checks and balances, accountable governance, local autonomy, and interjurisdictional synergy. Instability in the Supreme Court’s federalism jurisprudence reflects its ongoing attempt to reconcile the tension through successive theories of federalism, each privileging different values in the federalism constellation. It traces federalism’s internal struggle through history and into the present, critiquing the Rehnquist Court and Tea Party’s embrace of greater jurisdictional separation, the limits of New and Cooperative Federalism approaches, and the growing disjuncture between federalism theory and practice.

The book then outlines a Balanced Federalism alternative, mediating federalism’s tensions on three separate planes: (1) fostering balance among the competing federalism values, (2) leveraging the functional capacities of all three branches of government in interpreting federalism, and (3) maximizing the wisdom of both state and federal actors in so doing. It articulates distinct judicial and political roles in navigating jurisdictional overlap, including strong and weak judicial constraints in Tenth Amendment contexts and deference to intergovernmental bargaining. Forging new territory in the federalism safeguards debate, it provides theoretical justification for the political safeguards already in operation while preserving a role for judicial review. The resulting dynamic model fosters a healthier dialectic between the core principles and functional capacities that — though in tension — have made the American system of government so effective and enduring.

A late draft of the introduction is available for download on this page. The introduction outlines the questions the book addresses, charts the course of the discussion, and introduces its theoretical approach. It lays out the book’s central argument that federalism is best understood not just in terms of the conflict between states’ rights and federal power, or the debate over judicial constraints and political process, or even the dueling claims over original intent — but instead through the inevitable conflicts that play out among federalism’s core principles. It reviews the interpretive federalism quandaries that have preoccupied jurists over the years, including what level of government should trump in different policy-making arenas, which branch of government should make those calls, and the purpose of dual sovereignty in the first place. It introduces the Tenth Amendment and environmental and land use law as ideal laboratories for the analysis, and explains how the book’s argument proceeds through its Four Parts. Finally, it situates the Balanced Federalism proposal within the overall federalism safeguards debate and the emerging dynamic federalism literature.

Guiora on the Case for Intervention in Syria

Amos N. Guiora (University of Utah - S.J. Quinney College of Law) has posted Intervention in Libya, Yes; Intervention in Syria, No: Deciphering the Obama Administration on SSRN. Here is the abstract:

Deciphering an American presidential administration is truly yeoman’s work. Whether the Obama Administration is significantly distinct from previous administrations is too early to judge. Arguably, the task should be left to historians. Nevertheless, even a casual perusal of President Obama’s Middle East policy (perhaps best described as "policy") reflects a combination of naiveté, inconsistency and murkiness. While perhaps by design, the impact — on the ground — is deeply troublesome. While domestic political considerations are a reality, the implications of the Administration’s policy in an area of the world as treacherous as the Middle East are, potentially, staggering.

Precisely because international law does not articulate either normative or architectural standards as to when international humanitarian intervention is justified, national leaders arguably have a responsibility to act. The oft-cited phrase "when the cannons roar, the muses are silent" is particularly relevant to this discussion. For a variety of reasons, the international community has determined — whether actively or passively — that the massacre of the Syrian population by the Assad government does not justify international humanitarian intervention. While the human rights violations occurring on a daily basis do not compare to the horrors of Rwanda, Kosovo, or Sierra Leone they are not less compelling than the events transpiring in Libya. If, by metaphorical analogy, the international community is the cannons and the U.S. is the muse, does that mean that the Obama Administration is required to be silent? After all, if the quote were to be rigorously applied, then many of the institutions created to minimize human suffering would neither exist, much less function in wartime. While the distinction — from the perspective of international humanitarian intervention — between Libya and Syria is as unclear, as are the criteria that justify intervention, that must not serve as a misguided basis for the Obama Administration to largely turn its back on the Syrian people.

Recommended.

Posner & Weyl on Limiting Speculation on Derivatives

Eric A. Posner and E. Glen Weyl (University of Chicago - Law School and University of Chicago) have posted A Proposal for Limiting Speculation on Derivatives: An FDA for Financial Innovation on SSRN. Here is the abstract:

The financial crisis of 2008 was caused in part by speculative investment in sophisticated derivatives. In enacting the Dodd-Frank Act, Congress sought to address the problem of speculative investment, but merely transferred that authority to various agencies, which have not yet found a solution. Most discussions center on enhanced disclosure and the use of exchanges and clearinghouses. However, we argue that disclosure rules do not address the real problem, which is that financial firms invest enormous resources to develop financial products that facilitate gambling and regulatory arbitrage, both of which are socially wasteful activities. We propose that when investors invent new financial products, they be forbidden to market them until they receive approval from a government agency designed along the lines of the FDA, which screens pharmaceutical innovations. The agency would approve financial products if and only if they satisfy a test for social utility. The test centers around a simple market analysis: is the product likely to be used more often for hedging or speculation? Other factors may be addressed if the answer is ambiguous. This approach would revive and make quantitatively precise the common-law insurable interest doctrine, which helped control financial speculation before deregulation in the 1990s.

Call for Papers: Law & Philosophy Graduate Conference at UCLA

CALL FOR PAPERS
from law students and graduate students
UCLA LAW AND PHILOSOPHY GRADUATE CONFERENCE
Saturday April 7, 2012
School of Law, University of California, Los Angeles

Submission deadline: February 22, 2012

The School of Law and the Department of Philosophy at UCLA are holding a graduate student conference on law and philosophy on April 7, 2012. The aim of this conference is to bring together graduate students, law students, and UCLA faculty members to discuss issues that arise at the intersection of law and philosophy. Lunch will be served.

Law students, graduate students, and recent law school graduates are invited to submit papers on law and philosophy, broadly construed. Please submit an essay of approximately 4000 words, prepared for blind review. Submissions should be sent by email in doc, docx, pdf, or rtf format toUCLALawandPhilosophyConference@gmail.com by February 22, 2012. In a separate cover letter, authors should provide their name, the title of their paper, their institutional affiliation, and contact information. Thanks to the School of Law and Department of Philosophy at UCLA for their generous support of this conference.

Organizing Committee:
Jerry Murphy murphyg2013@lawnet.ucla.edu
Jonathan Gingerich: jgingerich@humnet.ucla.edu

Torrance & Tomlinson on Property Rules, Liability Rules, and Patents

Andrew W. Torrance and Bill Tomlinson (University of Kansas - School of Law and University of California, Irvine) have posted Property Rules, Liability Rules, and Patents: One Experimental View of the Cathedral (Yale Journal of Law & Technology, Vo. 14, p. 138, 2011) on SSRN. Here is the abstract:

In their seminal 1972 article, "Property Rules, Liability Rules, and Inalienability: One View of the Cathedral," Guido Calabresi and A. Douglas Melamed proposed an analytic framework for comparing entitlements protected by property rules and liability rules. Their article has become one of the cornerstones of modern legal scholarship, and the influence of the theory of legal rules they established has extended far beyond tort and property into almost every area of the law, including intellectual property. Despite the prodigious influence this theory of legal rules has had, its implications have never been explored experimentally. To remedy this knowledge gap, we conducted a series of controlled experiments on liability and property rules, using the patent system as an experimental model. Expressed in the nomenclature of Calabresi and Melamed, the United States’ patent law has recently witnessed a shift away from property rules and towards liability rules. This Article presents an experimental study that attempts to test the hypothesis that amounts of innovation, productivity, and social utility vary across patent systems that tend to emphasize either property rules or liability rules. The results of our experiments suggest that the choice between property and liability rules does, indeed, matter, but in a surprising way. Despite the common assumption that property rules tend to outperform liability rules, we found the opposite: in a computational model of the patent system, liability rules outperformed property rules in generating innovation, productivity, and social utility.

Long on the Matthew Shardlake Series

Alex B. Long (University of Tennessee College of Law) has posted Professionalism and Matthew Shardlake (UCLA Law Review, Vol. 59, No. 86, 2012) on SSRN. Here is the abstract:

This Essay/Book Review examines the Matthew Shardlake series by C.J. Sansom. In particular, it examines the question of whether the sixteenth-century fictional lawyer Shardlake can serve as a role model for twenty-first-century lawyers, both in terms of his ethics and his professionalism. An examination of the Shardlake series as a whole yields some uncertain answers, both as to Shardlake and as to what it means to be an ethical and professional lawyer. This is ultimately part of what makes the series so enjoyable for lawyers.

Guerra-Pujol on Risk Regulation, Game Theory, and Corporate Governance

F.E. Guerra-Pujol (Barry University - Dwayne O. Andreas School of Law; Pontifical Catholic University of Puerto Rico) has posted Corporate Governance and the Risk-Regulation Game: A Game-Theoretic Analysis of Risk Regulation on SSRN. Here is the abstract:

This paper studies corporate governance of the problem of risk regulation. Specifically, the author analyzes the problem of system-wide risks and the underlying strategic tension between regulated firms and such new regulating agencies as the Consumer Financial Protection Bureau and the Financial Stability Oversight Council. In order to shed some light on this problem, the paper presents an evolutionary and game-theoretic model of risk-regulation as one involving two stylized players – a regulating agency and a regulated firm – in which each player’s strategy set consists of two idealized choices. On the one hand, the regulating agency may choose between aggressive and lax enforcement measures in response to a perceived risk (i.e., the enforcement level of the regulating agency is either high or low), while on the other side, the regulated firm may choose between legal compliance or evasion (i.e., the compliance level of the regulated firm, like the enforcement level, can either be high or low). Given this game-theoretic framework, the paper attempts to predict the likely outcome of this dynamic regulatory interaction and provide a number of policy recommendations for more effective and efficient risk regulation.

Gostin on Affordable Care Act Litigation

Lawrence O. Gostin (Georgetown University Law Center - O'Neill Institute for National and Global Health Law) & Kelli Garcia have posted Affordable Care Act Litigation: The Supreme Court and the Future of Health Care Reform (Journal of the American Medical Association, Vol. 307, No. 4, pp. 369-370, 2012) on SSRN. Here is the abstract:

In Florida v. HHS, a lawsuit brought on behalf of 26 states challenging the constitutionality of the Patient Protection and Affordable Care Act (ACA), the Supreme Court will determine the future direction of health care reform in the United States. During the unprecedented 5-1/2 hours of oral arguments, the Court will hear 4 issues: the individual purchase mandate, severability, the Medicaid expansion and the Anti-Injunction Act.

The states challenging the ACA maintain that the purchase mandate uniquely penalizes individuals for failing to purchase insurance. Uninsured individuals, however, rarely do nothing. Instead, they self-insure, rely on family, and cost-shift to hospitals, the insured, and tax payers. Because most uninsured people will eventually require uncompensated care, they impose costs on everyone through higher taxes and insurance premiums. Further, although the ACA’s mandate is unusual, it is not unprecedented. Mandatory worker contributions to Medicare, for example, are a compelled purchase of health insurance. The necessary and proper clause, which permits Congress to pass laws rationally related to the exercise of federal powers, may be the best argument in favor of the mandate because the mandate is necessary for the other insurance market reforms to work.

If the Court were to strike down the mandate, it would then have to determine whether the mandate is severable from the rest of the ACA. Although the ACA did not explicitly state that if part of the act were deemed unconstitutional the rest would survive, most ACA reforms are severable because they are unrelated to the mandate, such as funding for public health and community health centers. The more difficult question is whether the mandate is so intertwined with the ACA’s still unimplemented market reforms that the Court must strike them down.

The Court will also review the constitutionality of expanding Medicaid to all individuals with household incomes below 138% of the federal poverty level. The states argue that Medicaid expansion is unduly coercive because they could lose all Medicaid funding and not just the funding related to the expansion. The Court, however, is unlikely to uphold the coercion theory because state participation in Medicaid has always been optional and some states have openly discussed exercising their option to discontinue the program.

Finally, the Court will hear technical arguments concerning the Anti-Injunction Act (AIA), which prohibits lawsuits “for the purpose of restraining the assessment or collection of any tax.” The Court is unlikely to invoke the AIA because neither the administration nor the states contend that it applies.

The ACA will achieve near universal coverage, something that seemed unimaginable just a short time ago. Health reform envisages a social contract in which everyone shares the cost, recognizing that virtually everyone will become ill one day. The ACA and its individual mandate are not unjustified limits on freedom, but rather are vital to a decent society.

Recommended--a very nice guide to the issues from a pro-ACA perspective.

Cushman on FDR's Court-Packing Plan

Barry Cushman (University of Virginia School of Law) has posted The Man on the Flying Trapeze (University of Pennsylvania Journal of Constitutional Law, Vol. 15, 2012) on SSRN. Here is the abstract:

Any history of the controversy over President Franklin D. Roosevelt's Court-packing plan sets out to answer three principal questions. The first is how best to tell what I will call the political story: how to understand the political trajectory of the Plan from its initial conceptualization to its ultimate failure. The second is how best to tell what I will call the legal story: how to understand the constitutional landscape that confronted New Deal reformers, how they negotiated it, and how and in what respects the Supreme Court transformed that body of constitutional law during the Great Depression.

The third is how to specify the relationship between these two stories.

What effect, if any, did the events recounted in the political story have on the legal story? Each of the three Parts of this essay offers an evaluation of Mr. Jeff Shesol's efforts to address each of these questions in his book, Supreme Power: Franklin Roosevelt vs. The Supreme Court. Part I discusses Mr. Shesol’s treatment of the political story; Part II takes up his account of the legal story; and Part III explores his analysis of the relationship between the two. I conclude that while Mr. Shesol does a very nice job with the first question, his efforts to answer the second and the third are not nearly so successful.

Highly recommended. Download it while its hot!

Kang on Antiauthoritarianism & Free Speech

John M. Kang (St. Thomas University School of Law) has posted In Praise of Hostility: Antiauthoritarianism as Free Speech Principle (Harvard Journal of Law and Public Policy, Vol. 35, No. 1, p. 351, 2012) on SSRN. Here is the abstract:

This Article offers a novel justification for why those who are prominent public officials or public figures should be subject to a higher threshold to claim damages for intentional infliction of emotional distress due to offensive speech. Since 1988, in Hustler v. Falwell, the Supreme Court has justified such a higher threshold by arguing that offensive speech regarding public officials and public figures would help the audience in its search for truth.

I will show, however, that the Court’s reliance on the search for truth is unpersuasive on its own terms as well as logically incoherent. I will argue that the Court should adopt a better justification, one that seeks to cultivate an ethos of partial hostility on the part of the people against public officials and public figures. To offer this justification is not to make an exotic bid for anarchy nor to take up the fashionable banner of the Tea Party. It is to return to the Constitution’s most basic logic, which is rooted not chiefly in the search for truth, but in popular sovereignty, the idea that the people, not their leaders, should have political authority. To that end, the ethos of partial hostility, I will argue, is a natural outcome of popular sovereignty and works to preempt conditions in which leaders can command excessive deference.

Recommended!

Schwartzman on Special Treatment for Religion

Micah Schwartzman (University of Virginia School of Law) has posted What If Religion is Not Special? on SSRN. Here is the abstract:

This Article argues that leading accounts of the First Amendment’s Religion Clauses fail to provide a coherent and morally attractive position on whether religion warrants special treatment as compared with secular ethical and moral doctrines. Focusing on two central issues involving whether laws must have a secular purpose and whether religious exemptions are constitutionally mandatory, this Article rejects existing theories as either theoretically inconsistent or substantively mistaken. If religion does not warrant special treatment, then it is important to ask what our attitude should be toward the Religion Clauses. Under originalist theories of constitutional interpretation, the Religion Clauses should be considered morally regrettable. Under non-originalist theories, there may be interpretations of the constitutional text that allow for the possibility of moral reconciliation. Either way, rejecting the idea that religion is special requires reassessing our understanding of the Religion Clauses.

Highly recommended.

Cross, Jacobi, & Tiller on Positive Political Theory & Rules and Standards

Frank Cross, Tonja Jacobi & Emerson Tiller's A Positive Political Theory of Rules and Standards has posted on the Internet. Here is the abstract:

How judges choose between rules and standards fundamentally shapes case outcomes and the development of broader doctrine. While the literature has much to say about the relative merits of rules versus standards, it has largely failed to produce a comprehensive explanation of how judges make that choice. This Article takes a novel approach, using Positive Political Theory to examine the incentives of higher court judges and the information available to them about how lower court judges will likely use those doctrinal tools. By taking seriously both how substantive and ideological judicial preferences shape the choice over doctrinal form as well as the value that judges place on legal obedience, we bridge the divide between the overt cynicism of legal realism and the credulity of much of the rules-standards debate.

This Article identifies the dominant factors in judicial decision making, at both the higher and lower court level—legal obedience and political ideology. Within that framework, we show how six factors determine higher court choice over rules versus standards: political alignment within the hierarchical judicial system, the distribution of case facts, the inherent control characteristics of rules versus standards, the effect of overlapping doctrines, the extent that lower court discretion is unavoidable, and the effect of political heterogeneity on a multimember higher court.

Highly recommended.  Download it while its hot!

Legal Theory Lexicon: Positive and Normative Legal Theory

Introduction

One of the most fundamental distinctions in legal theory is that between "positive legal theory" and "normative legal theory." This post provides a very brief introduction to the distinction, aimed at law students (especially first years) with an interest in legal theory.

The core idea of the distinction between positive and normative legal theory is simple:

• Positive legal theory seeks to explain what the law is and why it is that way, and how laws affect the world, whereas 
• Pormative legal theories tell us what the law ought to be.

Thus, a positive theory of tort law might seek to explain what causal forces have produced the existing principles of tort law, whereas a normative theory of tort law would tell us what rules of tort liability would be best, right, or justifiable. Or more simply: positive legal theories are aboutfacts and normative legal theories are about values.  (This simple formulations assumes that facts and values are mutually exclusive, but that may not be correct.)

Positive Legal Theory

Sometimes, the notion of positive legal theory is presented in an oversimplified way--as if there were a single, well-defined type of theory that counted as positive. In fact, the phrase "positive legal theory" is used in a variety of ways. The one thing that positive legal theories have in common is that they are not normative. Nonetheless, there are three characteristic type of positive legal theory that can be identified:

Positive Legal Theory Type 1: Doctrinal Theories--The first kind of legal theory that is called "positive" is quite simply a theory of what the content of a particular field of legal doctrine is. Thus, a theory of the freedom of speech might simply seek to explain the shape of existing first amendment doctrine. Or a theory of hearsay rule might seek to provide an account of the rule and exceptions that explains and accurately predicts particular applications of the rule. Doctrinal legal theories are responsive to questions like, "What are the principles that shape this area of the law?" or "Can these cases be explained by some underlying theory?"  What I am calling a "doctrinal theory" is also sometimes called a "descriptive theory."

Positive Legal Theory Type 2: Explanatory Theories--The second kind of legal theory to which the label "positive" is applied are explanatory theories--theories about why the law is the way it is. For example, a very simple Marxist theory might state that the content of the law can best be explained by the interests of the ruling class. Some legal economists have tried to argue that common-law rules are efficient, because there is "evolutionary pressure" on inefficient legal rules.  What I am calling an "explanatory theory" is also sometimes called a "causal theory."

Positive Legal Theory Type 3: Effects Theories--The third kind of legal theories that are referred to as "positive" are theories about the consequences that will be produced by a given regime of legal rules. This is the sense of "positive theory" that is most frequently invoked by legal economists. The question --"What effects will a strict liability regime (as opposed to a negligence) regime have on the manufacturers of consumer products?"--can be answered by a legal theory that is positive in the sense that it predicts behavior but does not explicitly evaluate the desirability of the rule.  What I am calling an "effects theory" is also sometimes called a "predictive theory."

Normative Legal Theory

Normative legal theories, on the other hand, are by their nature evaluative. Thus, a normative theory of products liability law would take a stand on the question whether negligence or strict liability is the better rule. Normative legal theories tend to be entwined with more general normative theories, e.g. moral or political theories, although this is not necessarily the case. TheLegal Theory Lexicon already includes entries on deontology, utilitarianism, and virtue ethics--three of the most important general normative theories that have had an influence on the law. There are three other distinctions that are important to understanding the general idea of a normative legal theory:

Ideal versus Nonideal Theory Some normative legal theories are "ideal"--that is, they are theories about what the best legal rule would be in the world in which everything was politically possible, the law could be adequately enforced, and other legal rules that interact with the subject of the theory could be adjusted to produce the best overall system. Other normative legal theories are "nonideal"--that is, they are theories that assume a variety of constraints on the choice of legal rules. For example, a nonideal theory might take into account political feasibility or it might take into account the possibility that the system would not provide an optimal level of enforcement for the rule that would otherwise be best. TheLegal Theory Lexicon entry on second best explores these ideas in greater detail.

Justificatory Theories and Critical Theories Normative legal theories also vary in their "attitude" towards the status quo. You are likely to encounter normative legal theories that start with the question, "What is the best justification that be given for such and such a legal rule?" These justificatory theories have a limited purpose.  Dworkin's theory--"law as integrity"--is an example of a justificatory theory: Dworkin offers theories that "fit and justify" existing law.  Such justificatory theories do not address the ultimate question, "What is the best legal rule?" On the other hand, many legal theories have the opposite purpose--the critique of existing legal doctrine. Thus, a critical theory might enumerate all of the criticisms that could be made of an existing legal rule--even though some of the criticisms may rest on inconsistent premises.

Normative Legal Theories, Political Philosophy, and Comprehensive Moral Theories Another important issue concerns the relationship of normative legal theory to other normative theories, especially political philosophy, ethics, and comprehensive moral theories.  Normative political philosphy asks questions about the normative justification for the state and the normative principles that establish the ends of and limits on the content of the law.  The term ethics can be defined in various ways--but for our purposes on this , ethics might be seen as concerned with the morality of individual action outside the political sphere.  A comprehensive moral theory might encompass both ethics and normative political philosophy.  Normative legal theories have as their domain the normative evaluation of legal substance and procedure.  Normative theories about the law as a whole might be called "general normative jurisprudence."  There can also be normative theories of particular legal domains--"normative constitutional theory," "normative tort theory," and so forth.

One picture of this relationship normative legal theory, on the one hand, and moral and political philosophy, on the other, might be called "top-down."  That is, we might start with a comprehensive moral doctrine (such as utilitarianism or Kant's version of deontology).  Using the method of deduction, we might try to deduce the principles of political philosophy and ethics from a comprehensive moral theory, and the principles of normative legal theory might in turn be deduced from those of political philosophy and ethics.  The top-down approach is exemplified by some consequentialists, who argue for a comprehensive moral doctrine such as welfarism or utilitarianism and then derive normative justifications or criticisms from the comprehensive doctrine and facts about which legal rules will result in what consequences.

Another possibility is that normative legal theory is relatively independent of ethics and political philosophy.  It is at least conceivable that one might believe that the realm of interpersonal ethics is governed by a different set of principles and theories than is the law.  For example, one might espouse deontological ethics, but believe that the laws should (for the most part) be aimed at maximizing utility.

The Intersection of Positive and Normative Theory

So far, we have been assuming a fairly sharp distinction between positive and normative legal theory. And for many purposes, assuming that there is a bright line that separates normative and descriptive legal theory is a good working hypothesis. Even assuming there is such a bright line, however, there are relationships between positive and normative legal theories.

Positive Theory in the Service of Normative Theory--One relationship is clear and straightforward. Many normative theories underdetermine what the legal rules should be in the absence of substantial information about the effects of the rules. This is most obvious in the case of utilitarian theories, where information about consequences does all the real work of determining which legal rule is best. For normative theories like utilitarianism, positive theory performs an essential service. Without a positive account of the effects of a given rule choice, utilitarianism has nothing to say about what rule is best.

Positive Theory as a Constraint on Normative Theory--Another relatively noncontroversial relationship between positive and normative legal theories arises when a positive theory that explains why the law has the shape that it does, is taken as imposing a constraint on normative theory. For example, public choice theory makes certain predictions about how legislatures will act in response to various incentives. Some legal rules that might be justified by ideal normative legal theory may be considered "unrealistic" in light of positive theory. In cases like this, positive legal theory provides constraints that limit the options available to normative theory.

Interpretivism and "Law as Integrity"--There is another, more controversial, way that positive and normative legal theory can interact. Ronald Dworkin's theory of law, "law as integrity," attempts to combine the aims of positive doctrinal theory and normative theory. The idea is that a legal theory should both fit and justify the existing legal landscape. Thus, a Dworkinian theory of the freedom of speech would need to both fit the contours of the Supreme Court's decisions and justify those decisions. Of those interpretations of free speech doctrine that fit the legal topography, Dworkin maintains that judges should select that interpretation that makes the existing law, "the best that it can be." Dworkin's view of legal theory blurs the line between positive and normative legal theory--essentially combining the enterprises that I have called positive doctrinal theory and justificatory normative theory. As you might imagine, this is hugely controversial--although that is a topic for another post.

Conclusion

The distinction between positive and normative legal theories is fundamental, but once you have the terminology down, it is usually easy to apply. The tricky part comes when you are confronted with theories like Dworkin's that blur the lines between the positive and the normative. When you do, my advice is that you stay on your toes. A common mistake is to try to force interpretivist theories into either the positive or the normative. Although there may be deep reasons of legal theory that would justify such a forcing move, it will rarely be productive to start there. A better strategy is to try to understand such hybrid theories from the inside first. When you are constructing your own theories, it is always important to be sure you know whether your theory is positive, normative, or has elements of both. One of the oft-repeated questions that law professors ask of entry-level candidates giving job talks (or ambitious students writing papers) is whether their theory is positive or normative. Be sure you know the answer before the question is asked!

Related Entries

• Legal Theory Lexicon 008: Utilitarianism
• Legal Theory Lexicon 010: Deontology
• Legal Theory Lexicon 012: Virtue Ethics
• Legal Theory Lexicon 014: Fact and Value
• Legal Theory Lexicon 031: Virtue Jurisprudence
• Legal Theory Lexicon 044: Legal Theory, Jurisprudence, and the Philosophy of Law
• Legal Theory Lexicon 058: Contractarianism, Contractualism, and the Social Contract

Bibliography

• Adrian Vermeule, Connecting Positive and Normative Legal Theory, 10 University of Pennsylvania Journal of Constitutional Law 387 (2007).

(This entry was last revised on January 29, 2012.)

Legal Theory Bookworm

The Legal Theory Bookworm recommends Well-Being and Fair Distribution: Beyond Cost-Benefit Analysis by Matthew Adler. Here is a description:

In Well-Being and Fair Distribution: Beyond Cost-Benefit Analysis, author Matthew D. Adler provides readers with a comprehensive, philosophically grounded argument for the use of social welfare functions as a framework for governmental policy analysis--a framework that is welfarist but not utilitarian, and sensitive to the distribution of human well-being.

Well-Being and Fair Distribution addresses a range of relevant theoretical issues, including the nature of well-being and the possibility of interpersonal welfare comparisons; the moral value of equality, and how that bears on the form of the social welfare function; social choice under uncertainty; and the integration of individual responsibility into the social-welfare function approach. Adler also explores issues of implementation by looking at how survey data and other sources of evidence might be used to calibrate both a well-being metric and a social welfare function, and discussing whether distributive goals are ever best pursued through regulation rather than the tax system. In working through this range of theoretical and practical issues, Well-Being and Fair Distribution draws from a wide variety of literatures, including philosophical scholarship on equality, "prioritarianism," responsibility, well-being, and personal identity over time; the social choice literature within economics; applied economic literatures concerning the measurement of inequality and poverty; legal and policy-analytic scholarship on cost-benefit analysis, environmental justice, and the choice between regulation and taxation; and the burgeoning field of "happiness studies."

Adler consistently provides sophisticated and cogent analysis of normative legal theory. A must for anyone interested in cost-benefit analysis or the fairness-versus-welfare debate.

Download of the Week

The Download of the Week is Smooth and Bumpy Laws by Adam J. Kolber. Here is the abstract:

The law amplifies modest differences in conduct into wildly different legal outcomes. A reasonably prudent driver who causes an accident owes nothing, though a slightly less cautious driver may owe millions of dollars. Similarly, a person who has sufficient confidence that his partner consents to sex commits no crime, though a person with a bit more doubt may have committed rape. While it is no surprise that the law draws difficult lines, it is puzzling why the lines have such startling effects. After all, we can fine-tune damage awards and the duration of prison sentences anywhere along a spectrum. 

An input and output of a law have what I call a “smooth” relationship when a gradual change to the input causes a gradual change to the output. The prior examples lack a smooth relationship. Instead, they have a “bumpy” relationship: gradual changes to the input sometimes have no effect on the output and sometimes have dramatic effects. The law is full of these bumpy relationships that create hard-to-justify discontinuities. 

I argue that smooth laws are generally preferable to bumpy laws, at least when we consider phenomena like culpability and level of caution that naturally span a continuum. While considerations like cost and administrability sometimes favor bumpy laws, the law ought to be smoother than it is. Similarly, smooth theories about the law are generally preferable to bumpy theories. I argue, for example, that deterrence theories of negligence offer a smoother explanation of our discontinuous treatment of levels of caution than do some other approaches. I end by responding to recent claims by Leo Katz that any efforts to change the either-or nature of the law are doomed to fail.

Highly recommended. Download it while its hot!

Van Baren on the Targeted Killing of Anwar Al-Awlaki

Bruce Van Baren (Loyola University Chicago School of Law) has posted President Obama’s Memo: The Legal Justification for the Targeted Killing of Anwar Al-Awlaki on SSRN. Here is the abstract:

This Article analyzes whether the U.S. could legally kill Awlaki, an American-Yemeni dual citizen who was outside of the military battlefields of Iraq and Afghanistan. This Article first describes the development of the CIA’s covert drone program. Next, this Article discusses the targeted killing of Awlaki and the legal debate inside the White House prior to the strike. Then, this Article analyzes the secret legal memo that the White House relied on to justify the strike, concluding that the CIA’s targeted killing was legal because of Awlaki was “cobelligerent” with al Qaeda.

Brettschneider on Rousseau on Punishment (Updated with New Link)

The original link led to the SSRN page, but no paper.  This updated link leads to a downloadable version.  Corey L. Brettschneider (Brown University - Department of Political Science) has posted Rights within the Social Contract: Rousseau on Punishment (LAW AS PUNISHMENT/LAW AS REGULATION, Austin Sarat, Lawrence Douglas, Martha Merrill Umphrey, eds., Stanford University Press, 2011) on SSRN. Here is the abstract:

A great deal of contemporary work on justifications of punishment has been pursued within the field of moral philosophy. Such inquires are typically concerned with the rightness or wrongness of punishment from the perspective of utilitarian or retributive moral theory, considered in isolation from the political question of legitimacy. In contrast to a broadly moral theory of punishment, a theory of punishment within the confines of political morality should address not only how those guilty of crimes deserve to be treated, but also the narrower question of which punishments the state rightly metes out. In this essay, I argue that we should turn to Rousseau as a guide in developing a theory of justifiable state punishment. Rousseau’s theory of the social contract, I suggest, demonstrates how a theory of political legitimacy might frame an account of punishment. Furthermore, I contend that Rousseau’s contractualism, while flawed, points the way forward for contemporary accounts of legitimate state punishment.

Tagari on Personal Systems of Family Law & Human Rights

Hadas Tagari (Bar-Ilan university) has posted Personal Family Law Systems - A Comparative and International Human Rights Analysis (International Journal of Law in Context, 2012) on SSRN. Here is the abstract:

This article analyzes the structures and substances of personal systems of family law based on religious affiliation within their social, political and historical contexts, explores the varied ways in which they infringe on the human rights of those governed by these systems - gender equality implicated by most - and the way international law and jurisprudence of human rights respond to these challenges. This analysis wishes to suggest that looking at the specific manifestations of personal family law systems in concrete contexts illuminates significant human rights implications which have not hither to received sufficient attention in mainstream human rights discourse, for various legal, cultural and political reasons. The contexts which this article will draw on are personal family law systems in Israel, India, Lebanon and Morocco, which comprise a varied sample of family law structures and legal, cultural, social and political contexts.

Boyd, Kysar, & Rachlinski on Noneconomic Social Science & Environmental Law

William Boyd, Douglas A. Kysar and Jeffrey J. Rachlinski (University of Colorado Law School , Yale University - Law School and Cornell Law School) have posted Law, Environment, and the 'Non-Dismal' Social Sciences on SSRN. Here is the abstract:

Over the past 30 years, the influence of economics over environmental law and policy has expanded considerably. Whereas politicians and commentators once seriously questioned whether tradable emissions permits confer a morally illicit “right to pollute,” today even environmental advocacy organizations speak freely and predominantly in terms of market instruments and economic efficiency when they address climate change and other pressing environmental concerns. This review seeks to counterbalance the expansion of economic reasoning and methodology within environmental law and policy by highlighting insights to be gleaned from various “non-dismal” social sciences. In particular, three areas of inquiry are highlighted as illustrative of interdisciplinary work that might help to complement law and economics and, in some cases, compensate for it: the study of how human individuals perceive, judge, and decide; the observation and interpretation of how knowledge schemes are created, used, and regulated; and the analysis of how states and other actors coordinate through international and global regulatory regimes. The hope is to provide some examples of how environmental law and policy can be improved by deeper and more diverse engagement with social science and to highlight avenues for future research.

Dedek on Medieval Scholastic Jurisprudence

Helge Dedek (McGill University - Faculty of Law) has posted The Splendour of Form: Scholastic Jurisprudence and 'Irrational Formality' (Law and Humanities, Vol. 5, No. 2, pp. 349-383, 2011) on SSRN. Here is the abstract:

The Western legal tradition portrays itself as a tradition of rationality. Although this tradition has its roots in the academic treatment of law at the medieval university, the medieval juridical mannerisms seem to be anathema to the Weberian ‘formal rationality.’ Scholasticism has become the synecdoche for the problems we moderns have when trying to access medieval thought. Medieval Scholastic jurisprudence seems prima facie strangely formalistic, guided by ambitions that are incomprehensible to the ‘modern mind’. Yet medieval jurisprudence is not as remote from us as it might seem at first glance. This paper aims to demonstrate that what connects the medieval and the modern jurist are aspects of legal discourse that cannot be explained in ‘rational’ terms. To this end, the paper focuses on the ‘legal aesthetics’ of the Scholastic jurists, exemplified by an inquiry into the doctrine of ‘interesse’, one of the most controversial areas of the law of damages.

Thorburn on the German Airliner Case & Constitutional Theory

Malcolm Thorburn (Queen's University (Canada) - Faculty of Law) has posted The Constitution of Criminal Law: Justifications, Policing and the State's Fiduciary Duties (Criminal Law and Philosophy, Vol. 5, p. 259, 2011) on SSRN. Here is the abstract:

This article considers the implications of the "German Airliner Case" for criminal law theory. In that case, the German constitutional court struck down as unconstitutional a law empowering state officials to order the shooting down of a hijacked plane on the grounds that the state could not order the killing of innocent civilians. Some have argued that despite this ruling, individual officials should still be entitled to claim a criminal law justification defence if they choose to shoot down a plane in such circumstances. I argue that the nature of justification defences necessarily ties them to the powers of the state to engage in such activity. And therefore if the law empowering officials to order the shooting is unconstitutional then it remains criminal and unjustifiable for an official to take matters into her own hands. Finally, I argue that both the constitutional decision and its criminal law implications are salutary.

Fellowship Announcement: Intellectual Property at Columbia

Kernochan Center Intellectual Property Fellowship

The Kernochan Center for Law, Media and the Arts at Columbia Law School (CLS) is accepting applications for a two-year fellowship opportunity for a future legal academic interested in researching and writing on intellectual property issues, particularly in the area of third-party liability and internet governance.

The fellowship will begin in September, 2012 and end in August, 2014. The fellow will have the opportunity to conduct his or her own research in the field of liability of internet intermediaries. The fellow will also be responsible for planning and implementing a conference, with the assistance of CLS faculty and staff of the Law School, on the topic of intellectual property and third-party liability, to take place at CLS in Fall 2013. The goal of the conference will be a discussion of current policy in the U.S. and abroad with an eye to proposing potential legislative solutions to current legal issues. The fellow will receive a salary of $65,000 per year, and benefits, space to work in the law school, research facilities, and opportunities to interact with CLS faculty, staff and students.

Applicants should be 2-5 years out of law school and have a background in economics, technology, sociology or other, similar discipline which lends itself to a study of internet issues. To apply, applicants should send a cover letter, resume, writing sample, proposal for scholarly research on the topic of secondary liability (5-8 pages), two letters of recommendation, law school transcript and a list of additional references by April 15 to the address listed below.

June M. Besek
Executive Director
Kernochan Center for Law, Media and the Arts
Columbia Law School
435 West 116 th Street, Box A-17
New York , NY 10027
jbesek@law.columbia.edu

Columbia is an equal opportunity and affirmative action employer.

Steiker on Garland on Capital Punishment

Carol S. Steiker (Harvard Law School) has posted Book Review: Capital Punishment and Contingency (Harvard Law Review, Vol. 125, No. 3, p. 760, 2012) on SSRN. Here is the abstract:

This book review of David Garland’s “Peculiar Institution: America’s Death Penalty in an Age of Abolition,” assesses Garland’s contributions both to the literature about the American death penalty and to the broader debate about the nature and causes of American penal exceptionalism. Garland’s perspective is considered in light of the work of James Whitman, Franklin Zimring, Michael Tonry, Nicola Lacey, and William Stuntz. After situating Garland in the larger conversation, the review goes on to illustrate and deepen Garland account of the contingency of America’s recent death penalty story by imaging three counterfactual (and extremely divergent) American death penalty stories-that-might-have-been.

Almendares & Le Bihan on Judicial Review as Democracy Enhancing

Nicholas Almendares and Patrick Le Bihan (New York University - School of Law - Politics Department and New York University (NYU)) have posted Increasing Leverage: Judicial Review as a Democracy-Enhancing Institution on SSRN. Here is the abstract:

Judicial review has been criticized as inconsistent with democratic rule as a democratically unaccountable institution (the courts) has the power to override the decisions of more democratic institutions (the legislature and executive). We show, however, that judicial review has a heretofore unappreciated democracy-enhancing effect. Namely, it has the capacity to make elected officials more sensitive to the voters' interests. We explicate this argument with a game-theoretic model with multiple policy dimensions.

The overall effect of judicial review vis-a-vis democracy is, however, ambiguous. We suggest that this ambiguity can be resolved in favor of democracy by manipulating the court's jurisdiction. Finally, our arguments demonstrate that judicial review, by virtue of its effect upon lawmakers and other elected officials, has a more pervasive effect than expected.

Raskolnikov on the Limits of Economic Analysis of Tax Law

Alex Raskolnikov (Columbia University - Law School) has posted Accepting the Limits of Tax Law and Economics on SSRN. Here is the abstract:

This Article explores the limits of tax law and economics. The inquiry is comparative. The Article argues that outside of the tax context two pivotal insights account for the general success of law and economics in explaining and possibly shaping the law. First, accepting just a few fairly simple and plausible assumptions yields clear, intuitive, powerful and widely applicable policy prescriptions. Second, the normative strand of law and economics benefits greatly from a substantial similarity between several theoretically optimal legal regimes and the corresponding actual systems of rules and sanctions. Neither insight applies in the tax setting because the tax optimization problem is uniquely complex. The optimal tax system must account for the impossibility of deterring socially undesirable behavior, provide for redistribution, and accomplish all of that on the basis of assumptions that are laden with deeply contested value judgments, pervasive empirical uncertainty, or both. Given these challenges, it is hardly surprising that the welfarist theory has a much weaker connection to the content of our tax laws and their enforcement than it does to the content and enforcement of many other legal regimes. This weakness has a profound effect on the debates about the fundamental features of our tax system. It affects many familiar arguments about anti-avoidance rules and sanctions. And it extends to evaluating outright tax evasion. In sum, every aspect of tax policy is affected by the limits of tax law and economics. At the same time, accepting these limits shifts focus to several broad research agendas where tax law and economics will continue to yield invaluable contributions to the project of improving our tax system.

Highly recommended.

Kolber on Smooth & Bumpy laws

Adam J. Kolber (NYU School of Law; Brooklyn Law School) has posted Smooth and Bumpy Laws on SSRN. Here is the abstract:

The law amplifies modest differences in conduct into wildly different legal outcomes. A reasonably prudent driver who causes an accident owes nothing, though a slightly less cautious driver may owe millions of dollars. Similarly, a person who has sufficient confidence that his partner consents to sex commits no crime, though a person with a bit more doubt may have committed rape. While it is no surprise that the law draws difficult lines, it is puzzling why the lines have such startling effects. After all, we can fine-tune damage awards and the duration of prison sentences anywhere along a spectrum.

An input and output of a law have what I call a “smooth” relationship when a gradual change to the input causes a gradual change to the output. The prior examples lack a smooth relationship. Instead, they have a “bumpy” relationship: gradual changes to the input sometimes have no effect on the output and sometimes have dramatic effects. The law is full of these bumpy relationships that create hard-to-justify discontinuities.

I argue that smooth laws are generally preferable to bumpy laws, at least when we consider phenomena like culpability and level of caution that naturally span a continuum. While considerations like cost and administrability sometimes favor bumpy laws, the law ought to be smoother than it is. Similarly, smooth theories about the law are generally preferable to bumpy theories. I argue, for example, that deterrence theories of negligence offer a smoother explanation of our discontinuous treatment of levels of caution than do some other approaches. I end by responding to recent claims by Leo Katz that any efforts to change the either-or nature of the law are doomed to fail.

Highly recommended. Download it while its hot!

Polinsky & Shavell on Optimal Damages & Litigation Costs

A. Mitchell Polinsky and Steven Shavell (Stanford Law School and Harvard Law School) have posted Costly Litigation and Optimal Damages on SSRN. Here is the abstract:

In this article we examine how the optimal level of damages depends on litigation costs. We assume that litigation costs have a fixed component and a variable component that rises with the level of damages. Our main result is that optimal damages are less than the sum of the victim's harm and the victim's litigation costs - even though damages equal to that sum would internalize the full social cost of an accident. The reason is that lowering damages reduces variable litigation costs. Indeed, optimal damages may be less than harm.

Brooks, Stremitzer, & Tontrup on the Framing Effect & Contract Bonuses & Penalties

Richard R. W. Brooks (Yale University - Law School), Alexander Stremitzer (UCLA School of Law), & Stephan W. Tontrup (Max Planck Institute for Research on Collective Goods) have posted Framing Contracts - Why Loss Framing Increases Effort on SSRN. Here is the abstract:

Recent evidence from the field (Hossain and List, 2009) suggests that contracts framed in terms of a loss (a deduction is taken for failing to meet a threshold) lead to greater effort than contracts framed in terms of a gain (a bonus is given for meeting a threshold). We investigate two explanations for this framing effect in a laboratory setting. First, we find that the loss frame communicates the expectation that achieving the bonus is the default and that our subjects comply with this expectation. Second, we find evidence for an endowment effect, even though the bonus is just a monetary payment that subjects do not even have in their possession.

Barker on P2P File Sharing & Music Purchases

George Robert Barker (Centre for Law and Economics, ANU College of Law) has posted Assessing the Economic Impact of Copyright Law: Evidence of the Effect of Free Music Downloads on the Purchase of Music CDs on SSRN. Here is the abstract:

This report examines data on the effects of Internet peer-to-peer (P2P) file sharing activities on music purchasing which was obtained from a survey commissioned by Industry Canada. The survey was designed to inform Industry Canada's policy development work and ultimately therefore support better policy decisions regarding the copyright law in Canada. In order to support its policy decisions regarding the copyright regime in Canada, Industry Canada commissioned a survey by Decima Research in 2006 which was designed to measure the extent to which peer to peer (P2P) file-sharing activities act as substitutes or complements to music purchases. Given this purpose the Decima survey asked respondents to comment on their behaviour in the absence of P2P file-sharing, as follows: Considering the songs that you downloaded for free through P2P networks during 2005 a) what % would you have purchased at paid music sites if they were not available through P2P b) what % would you have purchased as part of a music CD if they were not available through P2P After analyzing the answers to this question, I report on two key findings: 1. three out of every four respondents said that if P2P were not available they would have purchased some or all of the music which they downloaded; and 2. almost two-thirds of the hardcore P2P downloaders (those who indicated in the survey that they only acquired music by P2P) said they would have purchased one-third of the tracks they downloaded if the songs were not available on P2P network. This is estimated to amount to an average additional expense of $168 per person, adding up to hundreds of millions of dollars in extra revenue for the music industry per year from this group alone.

This analysis of survey data then suggests that P2P downloads have strong negative effects on legitimate music purchases and that P2P downloading acts as a substitute for legitimate music purchases. One might reasonably infer from this analysis that stronger copyright laws would substantially increase music purchases and music industry sales revenues and, by implication, increase artist income, industry employment, economic growth and government tax revenues in Canada. My analysis not only focuses on an important survey question which to date has not been analysed by the researchers hired by Industry Canada, it also contradicts the results of the original analysis of the data commissioned by Industry Canada, first published on Industry Canada's website in a 2007 report entitled, Don’t blame the P2P file-sharers: the impact of free music downloads on the purchase of music CDs in Canada, and then subsequently republished with changes by the authors in the Journal of Evolutionary Economics in 2013.

Ponomarev on Internet Regulation & Human RIghts

Aleksey Ponomarev (Stockholm University) has posted Balancing Internet Regulation and Human Rights on SSRN. Here is the abstract:

It’s not a secret that with the development of the Internet the transition from freedom into control can be noticed. Having been considered as a completely independent medium of communication which lays outside of any state jurisdiction according to views of "digital libertarians" in the early days of the Internet, cyberspace is becoming fully, and extensively, regulated space that we have ever known. This article aims to analyze the current instruments of Internet regulation both legal and through Internet architecture, and to find a balance between necessity of regulation in one hand and obligation to follow human right standards on the other hand. For this purpose various Internet control and censorship techniques is discussed, as well as international human rights standards which might be jeopardize by exercising of such control. In the end the attempt to strike a balance between Internet regulation and human rights is has been made.