Legal Theory Blog

Legal Theory Bookworm

The Legal Theory Bookworm recommends The Health Care Case: The Supreme Court's Decision and Its Implications , edited by Nathaniel Persily, Gillian E. Metzger, & Trevor W. Morrison. Here is a description:

The Supreme Court's decision in the Health Care Case, NFIB v. Sebelius, gripped the nation's attention during the spring of 2012. No one could have predicted the strange coalition of justices and arguments that would eventually lead the Court to uphold the Affordable Care Act's principal provisions. The constitutional case against the ACA was originally written off as frivolous, but after oral argument at the Court, many predicted that the unthinkable had now become likely. When the Supreme Court delivered its complicated and fractured decision, it offered new interpretations to four different clauses in the Constitution. This volume gathers together reactions to the decision from an ideologically diverse selection of the nation's leading scholars of constitutional, administrative, and health law. They offer novel insights into the meaning of the health care decision for President Obama, the Roberts Court, and the debate over constitutional interpretation.

And from the blurbs:

"Truly one-stop shopping for anyone interested in understanding the meaning and significance of the historic health care cases of 2012. With contributions by some of the most insightful and influential thinkers in the field, this volume clarifies and expands upon what the ACA litigation did and did not signify, what it says about the legacy of the Roberts Court, and where we go from here. An invaluable read."-Dahlia Lithwick, senior editor, Slate

"This is a wonderful collection of essays about "the case of the century" by the nation's leading scholars. Each page yields new and valuable insight."-Barry Friedman, Jacob D. Fuchsberg Professor of Law, New York University School of Law

"This remarkable book shows beyond doubt that, contrary to Justice Robert Jackson's famous quip, the Supreme Court is neither infallible nor final. The health care case is over, but the argument over what it will mean has just begun. Anyone who seeks an appreciation of the stakes of that debate will find this diverse set of provocative essays indispensable reading."-Michael C. Dorf, Robert S. Stevens Professor, Cornell University Law School

Download of the Week

The Download of the Week is The Pigou-Dalton Principle and the Structure of Distributive Justice by Matthew D. Adler. Here is the abstract:

The Pigou-Dalton (PD) principle recommends a non-leaky, non-rank-switching transfer of goods from someone with more goods to someone with less. This Article defends the PD principle as an aspect of distributive justice — enabling the comparison of two distributions, neither completely equal, as more or less just. It shows how the PD principle flows from a particular view, adumbrated by Thomas Nagel, about the grounding of distributive justice in individuals’ “claims.” And it criticizes two competing frameworks for thinking about justice that less clearly support the principle: the veil-of-ignorance framework, and Larry Temkin’s proposal that fairer distributions are those concerning which individuals have fewer “complaints.” 

The Article also clarifies the relation between the PD principle and prioritarianism. Prioritarians will surely endorse the PD principle (with the “good” individual well-being), but they are also committed to a distinct axiom of separability: the moral value of someone’s well-being change does not depend upon her position relative to others. The PD principle neither implies separability, nor is implied by it. Although prioritarianism is very plausible, the case for the PD principle is yet more compelling than for the combination of that principle with separability. In discussing prioritarianism, we should differentiate between these two, logically independent aspects of the view.

Highly recommended!

Schmitz on Gender in Consumer Contracts

Amy Schmitz (University of Colorado Law School) has posted Sex Matters: Considering Gender in Consumer Contracts (Cardozo Journal of Law & Gender, Vol. 19, pp. 437-509, 2013) on SSRN. Here is the abstract:

We hear about the so-called “War on Women” and persisting salary gaps between men and women in the popular media, but contracts scholars and policymakers rarely discuss gender. Instead, dominant voices in the contracts field often reflect classical and economics-driven theories built on assumptions of gender neutral and economically rational actors. Furthermore, many mistakenly assume that market competition and antidiscrimination legislation address any improper biases in contracting. This Article therefore aims to shed light on gender’s importance by distilling data from my own e-survey of Colorado consumers along with others’ research regarding gender differences in contract outcomes, interests and behaviors. In light of this research, the Article calls for open discussion of gender in contract and consumer law. It also suggests ideas for considering research findings and the importance of context in designing financial literacy and contract education programs that acknowledge gender while honoring individuality and avoiding stereotype reinforcement.

Eleftheriadis on Democracy & the Eurozone

Pavlos Eleftheriadis (University of Oxford - Faculty of Law) has posted Democracy in the Eurozone (WG Ringe and P Huber (eds), Legal Challenges Arising out of the Global Financial Crisis: Bail-outs, the Euro, and Regulation (Oxford: Hart Publishing) (2013, Forthcoming)) on SSRN. Here is the abstract:

In December 2012 Four Presidents of the European Union (of the European Council, the Commission, the Central Bank and the Eurogroup) issued a paper outlining steps for a ‘genuine monetary union’ promising among others better democratic accountability for its institutions. This essay asks if an entity like the European Union - and the Eurozone within it - can indeed become democratic. I distinguish between two approaches to democracy, first as collective self-government or, second, as set of egalitarian institutions. The essay argues that the German Federal Constitutional Court supports the first theory and for that reason is very cautious of the idea of bringing democracy to the European Union. The collective view believes that without a single people, there cannot be self-government. The second theory accepts the primacy of domestic democracy but allows, by contrast, for international institutions of democratic accountability that support domestic democracy. I offer some arguments for this view and conclude that the four Presidents are not mistaken in endorsing the ambition of democratic accountability for the Eurozone. The European Union is a union of peoples. A union of this kind can become more democratic without seeking to become a democracy.

Mak on Moderately Pluralist Contract Theory

Chantal Mak (University of Amsterdam - Centre for the Study of European Contract Law (CSECL)) has posted The One and the Many: Translating Insights from Constitutional Pluralism to European Contract Law Theory (European Review of Private Law, Forthcoming) on SSRN. Here is the abstract:

While freedom of contract has generally been recognised as a leading principle of European contract law, national contract laws as well as EU measures show remarkable differences with respect to the limits they impose on contractual freedom in light of the public interest or common good. Whereas some private legal scholars aspire to relate all rules of private law to a single value (monist theories), others consider it impossible to find such a common denominator (radical pluralist theories). In this paper, it is submitted that a moderate pluralist theory offers the most convincing narrative to explain current developments in this field, since it defines a meta-level on which diverging ideas of contract law can be reconciled by the definition of coordinating principles. These meta-principles indicate which conception of the common good prevails in a specific case and on which level (European or national) final decision-making authority is allocated in that case. Through an analysis of examples from case law (the story of the CJEU’s Viking and Laval judgments, and the Court’s recent decision in the Aziz case) it is argued that a moderate pluralist theory also provides the most convincing normative model for the further development of European contract law.

Christie on Natural Law, Natural Rights, & Judicial Decision Making

George C. Christie (Duke University - School of Law) has posted Judicial Decision Making in a World of Natural Law and Natural Rights (Villanova Law Review, Vol. 57, No. 5, 2012) on SSRN. Here is the abstract:

This article was my contribution to a symposium celebrating the achievements of John Finnis held at the Villanova University School of Law. Finnis’ greatest work is his Natural Law and Natural Rights. I agree with Finnis’ rejection of an approach to natural law which focuses on the notion of natural rights. Finnis’ approach instead focuses on a natural law that is based on the idea that there are certain basic human goods such as the search for knowledge, the maintenance of life, the sharing of fellowship with other human beings, the capacity to enjoy aesthetic experiences, and the exercise of practical reason, to which he adds the almost universal human striving for religious meaning. I accept that human law reflects the broadly accepted human goods and goals that underline our social morality. I explain, however, that, no matter how much we might wish it were otherwise, there will of necessity be some separation between law and morality. In order that law might be predictable and capable of being applied in a coherent and objective manner, a legal system will inevitably have certain arbitrary features about it that can never be completely eliminated and which a rational person would not wish to completely eliminate. That is why a legal system can at most only succeed in achieving a high degree of formal justice. It can never deliver perfect justice.

Saunders on Federalism in Australia

Cheryl Saunders (Melbourne Law School) has posted Can Federalism Have Jurisprudential Weight (in T. Courchene, J. Allan, C. Leuprecht and N. Verrelli (eds), The Federal Idea: Essays in Honour of Ronald L. Watts, McGill-Queen's University Press (2011)) on SSRN. Here is the abstract:

This chapter addresses a paradox in the design and operation of federations. On the one hand, almost all federations empower the judiciary to resolve disputes over power between the spheres of government through the interpretation and application of a written Constitution. On the other hand, there is an apparent tendency in many federations for judicial review to favour central power over time. The chapter explores the extent to which the explanation for this tendency lies in the paucity of doctrines developed by courts in federations for the purpose of the interpretation of the constitutional division of powers, using the Australian federation as a case study. In relation to Australia it makes the well-known point that the federal context of the Constitution is specifically disapproved as a jurisprudential consideration in interpreting and applying the division of powers and explains how this and related doctrines have contributed to the effective expansion of Commonwealth power. The chapter argues that this approach to questions about the federal division of power is now inconsistent with other interpretative approaches, both to statute and to other parts of the Constitution. Quite apart from its impact on federalism, the interpretative approach to the division of powers in Australia also has an impact on the coherence of Commonwealth legislation, with implications for the rule of law. The chapter concludes with some suggestions about ways in which even minor shifts in judicial approach might produce a more credible jurisprudence. While much of the analysis inevitably focuses on Australian conditions, the chapter suggests that the effectiveness of judicial review to resolve disputes over power is an issue that merits attention in the design of new federations. To develop a more general understanding of the problems and possibilities of the jurisprudence of federalism, it calls for other country studies of this kind.

Moliterno on Lawyer Regulation

James E. Moliterno (Washington and Lee University - School of Law) has posted The Trouble with Lawyer Regulation (Emory Law Journal, Vol. 62, p. 101, 2013) on SSRN. Here is the abstract:

The American legal profession has been a backward-looking, change-resistant institution. It has failed to adjust to changes in society, technology, and economics, despite individual lawyers’ efforts to change their own practices and entrepreneurs’ efforts to enter the legal marketplace to serve the needs of middle- and lower-income clients. When change does come, the legal profession is a late-arriver, usually doing no better than catching up to changes around it that have already become well ensconced. This failure robs the society of what could be a positive role of the legal profession in time of change, and it deprives the profession itself of being as robust and successful as it could be.

Helie on Multiculturalism, Liberalism, Veils, & Harm to Women

Anissa Helie (CUNY, John Jay College of Criminal Justice) & Marie Ashe (Suffolk University Law School) have posted Multiculturalist Liberalism and Harms to Women: Looking Through the Issue of 'The Veil' (19 U.C. Davis Journal of International Law & Policy 1 (2012), pp. 1-65) on SSRN. Here is the abstract:

In response to recent mandates, prohibitions, or “choices” relating to veil-wearing by Muslim girls and women, this essay raises and responds to the question: “How should civil government treat culture- or religion-based claims of rights that clash with the norm of women’s equality?” – that question being a broadened reformulation of Susan Okin’s 1999 inquiry, “Is Multiculturalism Bad for Women?” The essay identifies social and political developments, as well as legal and theoretical developments – relating to women, religions, and governments – that have occurred in the 21st century and that demand that reformulation. Reviewing theories on the veiling controversies, and characterizing some as reflecting only partial visions, the essay embraces and argues for a re-shaped liberalism that is committedly and simultaneously feminist and anti-racist and secular.

Bowers on Effective Assistance of Plea-Bargaining Counsel

Josh Bowers (University of Virginia School of Law) has posted Lafler, Frye, and the Subtle Art of Winning by Losing (Federal Sentencing Reporter, Vol. 25, No. 2, pp. 126-130, 2012) on SSRN. Here is the abstract:

In its recent decisions, Lafler v. Cooper and Missouri v. Frye, the Court recognized defendants’ rights to effective assistance of plea-bargaining counsel. Counter-intuitively, however, it is the government that may come to benefit most from the Court’s rulings against it, not only because a well-regulated plea-bargaining market facilitates frequent and expeditious plea deals, but also because prosecutors exercise terrific control over that market. Indeed, by making plea offers that are too attractive to reasonably refuse, prosecutors may constitutionally conscript defense counsel to persuade defendants to plead guilty. Moreover, prosecutors shape the practice norms against which the competency of bargaining counsel is now measured.

Frau on Unmanned Military Systems & Human Rights

Robert Frau (European University Viadrina Frankfurt (Oder) - Law Faculty) has posted Unmanned Military Systems and Extraterritorial Application of Human Rights Law (Groningen Journal of International Law, Vol. 1, No. 1, 2013) on SSRN. Here is the abstract:

The article addresses human rights issues that arise from the use of unmanned military systems in armed conflict. It is assessed when and to what extent human rights law applies in times of armed conflict. The major focus is the question of whether or not human rights law applies extraterritorially. It is argued that it applies to a greater extent to the use of unmanned military systems than might be expected under the jurisprudence of the European Court of Human Rights. Hence, a new approach to the concept of ‘jurisdiction’ is submitted. In addition, specific scenarios, in which unmanned military systems are frequently deployed, are measured against the legal framework.

Patrick on the Persistence of the Crime of Blasphemy

Jeremy Patrick (University of Southern Queensland School of Law) has posted The Curious Persistence of Blasphemy: Canada and Beyond on SSRN. Here is the abstract:

The purpose of this dissertation is to examine the history and future of the crime of blasphemy. In the introduction, several key questions are examined: (1) What is blasphemy? (2) Why do people blaspheme? and (3) What are the real or perceived harms of blasphemy? Subsequently, Part I examines the history of blasphemy and blasphemy-like laws in six jurisdictions around the globe: England, Ireland, Australia, Pakistan, the United Nations, and the United States. The jurisdictions chosen illuminate the fact that blasphemy is a complex concept which can be regulated in a wide variety of ways. These six provide an excellent picture of the varied and diverse ways the concept of blasphemy has operated and an understanding as to why it remains relevant today. Part II of this dissertation turns away from a global, comparative examination of blasphemy and instead provides a comprehensive, in-depth study of a single jurisdiction: Canada. This sustained history of blasphemy in Canada, the first ever published, allows for a valuable snapshot of the evolution of the crime into its modern form. Part III synthesizes the research and analysis in Parts I and II to answer the fundamental questions: what is the future of the crime of blasphemy in Canada and beyond?

Tushnet on Copyright & Performance

Rebecca Tushnet (Georgetown University Law Center) has posted Performance Anxiety: Copyright Embodied and Disembodied (Journal of the Copyright Society of the U.S.A., Forthcoming) on SSRN. Here is the abstract:

The primary economic and cultural significance of copyright today comes from works and rights that weren’t contemplated by the Framers of the Constitution’s Copyright Clause. Performance — both as protected work and as right — is where much of copyright’s expansion has had its greatest impact, as new technologies have made it possible to fix performances in records and films and as cultural change has propelled recorded music and audiovisual works to the forefront of the copyright industries. Yet copyright has never fully conceptualized performance, and this has led to persistent confusion about what copyright protects.

One key problem of performance from copyright’s perspective is how to identify the creative elements that make a work of performance original and protectable, as distinguished from elements that make it a work (a fixed artifact). A major variant of this question involves authorship: who is sufficiently responsible for a work of performance to be deemed its author, and thus its default owner? In a world where works require dozens and even hundreds of people to complete them, this question will often be difficult to answer while both respecting creativity and recognizing economic imperatives. Another set of questions involves whether there are ways to recognize performers’ creative contributions without contributing to copyright’s bloat, and how to assess claims of infringement in a performance context when the alleged copying isn’t exact. This article addresses these puzzles of performance, arguing that manageability rather than creativity is generally the basis for the rights allocations and distinctions copyright law makes. The recent controversy over the film Innocence of Muslims, along with other instances in which subjects of audiovisual works claimed copyright in those works, demonstrate the limited role played by creativity in copyright law.

Highly recommended.

Esbeck on Establishment Clause Standing

Carl H. Esbeck (University of Missouri School of Law) has posted Unwanted Exposure to Religious Expression by Government: Standing and the Establishment Clause (7 Charleston L. Rev. No. 1, 2013, Forthcoming) on SSRN. Here is the abstract:

For nearly half a century the Supreme Court has relaxed traditional standards of justiciability and permitted taxpayer standing where a claimant has invoked the Establishment Clause in a lawsuit to prohibit government funding of religion. However, the Court has recently cutback such that taxpayer standing is permitted only where taxes are extracted from the claimant and money is appropriated by a legislature to fund a statutory program that directs the use of public aid for religion.

What has gone largely unremarked upon is the Supreme Court’s parallel line of reduced-rigor standing cases where an action is brought because of a claimant’s personal exposure to unwanted religious expression by the government. Typical of such cases are a challenge to prayer at the beginning of a local city council meeting and memorials in a public park depicting the Ten Commandments. In these unwanted-exposure cases the underlying claim on the merits is that the government has taken sides on a religious question. The apparent injury is largely generalized, however, resembling that suffered by nearly everyone who wants to live under a government that does not exceed its constitutional restraints. Nevertheless, the Court has permitted such reduced-rigor standing so long as the claimant is personally exposed to her government’s message and it is one with which she disagrees. The extent to which the observer is “offended” is irrelevant, as is the frequency of the exposure.

If unwanted-exposure standing comes under the same reexamination by the Supreme Court as has taxpayer standing, any resulting cutback would mean that no-establishment principles will go unexamined and thus under-enforced. That prospect ought to be received with some concern because principles of church-state separation protect religion from being exploited. The political branches of government will sometimes use religion in a manner that mixes God and Country, and that cannot but compromise religion and debase its symbols.

Dearinger on Arizona Christian School Tuition Organization v. Winn

Bryan Dearinger (United States Department of Justice) has posted The Future of Taxpayer Standing in Establishment Clause Tax Credit Cases (Oregon Law Review, Forthcoming) on SSRN. Here is the abstract:

It is unusual for scholars and litigators who work in the Establishment Clause area to agree with what the Supreme Court has done to a doctrinal topic, particularly when that topic is standing. But that is what I do in this Article. While not the first piece to substantively address the Supreme Court’s recent decision in Arizona Christian School Tuition Organization v. Winn, it is the first to support that decision and its interpretation of the much-maligned Flast v. Cohen. Winn distinguished Flast and thus rejected taxpayer standing to challenge an Arizona law permitting taxpayers to claim a tax credit for donations made to school tuition organizations that provide scholarships to children attending private religious and non-religious schools. The decision has become fodder for those displeased with the narrow scope of the taxpayer standing exception, those numbering Flast’s days or already mourning its death, and those who believe the Roberts’ Court has invoked standing to avoid deciding Religion Clause cases because a new, more permissive jurisprudence in this area is afoot.

Rejecting each of these assessments, this Article offers a more realistic appraisal of the taxpayer standing doctrine and what Winn portends for Establishment Clause tax credit challenges in the future. It advocates for Flast’s preservation, advancing a normative, conscience-based theory of taxpayer standing that recognizes government-compelled taxing and spending scenarios wherein a taxpayer’s pocketbook harm implicates the conscience injury protected by the Establishment Clause. When the Flast exception is viewed in this light, Winn presents an example of doctrinal stability, not unrest.

Any article endorsing Winn would be incomplete without confronting Justice Kagan’s superbly written dissent, which predicts the complete demise of the taxpayer standing exception. I argue that Justice Kagan exaggerates the reach of Winn by ignoring the nub of the injury in Flast, conflating the legal incidence of tax credits and government expenditures in this area, overstating the potential for underenforcement of the Establishment Clause, and incorrectly assuming that the Flast exception applies to state taxpayers in federal court. More legitimate, however, is Justice Kagan’s larger fear that Winn encourages government(s) to launder direct financial aid to religion by using tax credits in lieu of direct appropriations. I acknowledge this failure and offer three potential solutions in the tax credit arena: abandoning the rule against taxpayer standing, creating taxpayer standing by statute, or allowing such actions to be brought in a non-Article III court. Ultimately, I conclude that the Judiciary remains the best protector of the purpose and consistency of the taxpayer standing doctrine, even if it is not a perfect guardian.

Wesson & du Plessis on the Hart-Dworkin Debate & South African Legal Theory

Murray Wesson and Max du Plessis (University of Western Sydney - School of Law and University of KwaZulu-Natal - Faculty of Law (Westville Campus)) has posted Hart, Dworkin and the Nature of (South African) Legal Theory ((2006) 123 South African Law Journal 700) on SSRN. Here is the abstract:

The publication of HLA Hart's Postscript to The Concept of Law has reinvigorated a debate that dominated much of twentieth century jurisprudence. This article provides an overview and limited appraisal of Hart's Postscript, as well as a consideration of the implications of this debate for South African law. The first part of the article provides a brief account of Hart's positivism and Dworkin's early criticisms. Here we conclude that Hart gains the upper hand through his embrace of 'soft' positivism. Thereafter the article considers Dworkin's later criticisms of Hart's project, as expounded in Law's Empire. Here we suggest that Hart's central suggestion in the Postscript, that his project and Dworkin's can be reconciled, is unconvincing. More specifically, Hart does not adequately recognise the threat that Dworkin's 'semantic sting' argument poses to the 'rule of recognition'. The final part of the article discusses the continuing relevance of Dworkin's notion of constructive interpretation to South African law.

Adler on Measuring Equity

Matthew D. Adler (Duke University - School of Law) has posted Equity by the Numbers: Measuring Poverty, Inequality, and Injustice on SSRN. Here is the abstract:

Can we measure inequity? Can we arrive at a number or numbers capturing the extent to which a given society is equitable or inequitable? Sometimes such questions are answered with a “no”: equity is a qualitative, non-numerical consideration.

This Article offers a different perspective. The difficulty with equity measurement is not the impossibility of quantification, but the overabundance of possible metrics. There currently exist at least four families of equity-measurement frameworks, used by scholars and, to some extent, governments: inequality metrics (such as the Gini coefficient), poverty metrics, social-gradient metrics (such as the concentration index), and equity-regarding social welfare functions. Inequality metrics look at the population-wide distribution of income or some other valuable good. Poverty metrics focus on the extent to which individuals fall below an income threshold, or are deprived in other ways. Social-gradient metrics quantify the correlation between goods (in particular, good health) and social status. Equity-regarding social welfare functions seek to translate each individual’s bundle of attributes into a “utility” number, measuring her well-being; and then rank situations so as to give extra weight to improvements in the utility of those at a low utility level.

So which of these is the most attractive equity metric? How shall we choose among them? This Article tries to make progress on these questions. I show how all four families share a deeper unity: all satisfy the “Pigou-Dalton” principle in some form, favoring a non-leaky transfer of some valuable “currency” from those with more to those with less. The metrics differ in the specific version of the Pigou-Dalton principle that they embody: how they identify the valuable “currency,” and whether they restrict the scope of that principle. Thus, in choosing among equity metrics, we should be guided by the lodestar question: what are the grounds for specifying the Pigou-Dalton principle in this way rather than that? This question, in turn, helps us see how the diversity of current equity metrics flows from intellectual contestation about the nature and measurement of well-being, and about the conditions under which individuals are responsible for being badly off.

Highly recommended.

Depoorter on Losing & Legal Reform

Ben Depoorter (University of California Hastings College of Law) has posted The Upside of Losing (Columbia Law Review, Vol. 113, p. 817, 2013) on SSRN. Here is the abstract:

Conventional understanding in legal reform communities is that time and resources are best directed toward legal disputes that have the highest chance of success and that litigation is to be avoided if it is likely to establish or strengthen unfavorable precedent. Contrary to this accepted wisdom, this Essay analyzes the strategic decisions of litigation entrepreneurs who pursue litigation with the awareness that losing the case can provide substantial benefits. Unfavorable litigation outcomes can be uniquely salient and powerful in highlighting the misfortunes of individuals under prevailing law, while presenting a broader narrative about the current failure of the legal status quo. The resulting public backlash may slow down legislative trends and can even prompt legislative initiatives that reverse the unfavorable judicial decisions or induce broader reform.

This analysis revises some conventional wisdom about litigation. First, while it is traditionally understood that legal reform activists must persuade courts to recognize unattended rights or to confirm new rights and activist positions, the analysis here suggests that social changes can be obtained in litigation without requiring the involvement of courts as policymakers. Moreover, passive courts and judicial deference in fact strengthen the mobilizing effect of litigation by clearly shifting the burden to legislators and their constituents. Second, the dynamics of successful defeat in litigation shed new light on the costs and benefits involved with litigation. In the proposed framework, a plaintiff’s decision to litigate rests not simply on the probability of success but also on a tradeoff between the potential costs of a negative precedent and the political benefits obtained in defeat. Third, the mobilizing potential of adverse court decisions presents a fascinating conflict between the immediate interests of the actual plaintiff and of the litigation entrepreneur or intermediary that supports the litigation with an eye on the underlying long-term goals of a social cause. Finally, the potential benefits of adverse outcomes refute some of the criticisms about the limitations and downsides of pursuing social change through courts.

Wuerth on Kiobel v. Royal Dutch Petroleum

Ingrid B. Wuerth (Vanderbilt University - Law School) has posted The Supreme Court and the Alien Tort Statute: Kiobel v. Royal Dutch Petroleum Co. (American Journal of International Law, Vol. 107, 2013) on SSRN. Here is the abstract:

Alien Tort Statute litigation has generated a growing number of questions about the the scope of statute, but in Kiobel v. Royal Dutch Petroleum Co. the Supreme Court finally answered one of them: the presumption against extraterritoriality applies to the statute. Going forward, courts may apply a robust version of the presumption, effectively ending ATS litigation as we currently know it. Or, they may not. The Court’s citations to Morrison v. Nat’l Austl. Bank Ltd. suggest the former; some language in the various opinions suggests the latter. This article explores these uncertainties and also discusses additional factors that may be significant for the courts’ application of the presumption in future cases: a potential analogy between the ATS and the Sherman Act, the purpose of the ATS, and the appropriate deference to accord the executive branch in ATS litigation. Finally, it considers the significance of Kiobel to the development and enforcement of international law and argues that the uncertain course charted by the Court in ATS litigation is in many respects unexceptional.

Highly recommended.

Bernstein & Parisi on Customary Law

Lisa Bernstein and Francesco Parisi (University of Chicago Law School and University of Minnesota - Law School) has posted Customary Law: An Introduction on SSRN. Here is the abstract:

We wrote this brief essay as an introduction to the volume “Customary Law” (Elgar, 2013). We briefly review several seminal works on customary law. Although scholars in law, economics, and history have provided a wealth of research on the subject, the issues arising from the intersection of customs and the law are far from settled. The discussion is divided into three parts. Part I examines a variety of perspectives on the history of customary law. Part II considers the role and limits of customary systems in a variety of commercial settings. Along the way it focuses on defining the proper relationship between law and custom from a law and economic perspective. Part III explores the role of custom in international law, from a broad set of analytical viewpoints.

Wasserman on New York Times v. Sullivan & Jurisdiction

Howard M. Wasserman (Florida International University (FIU) - College of Law) has posted A Jurisdictional Perspective on New York Times v. Sullivan (Northwestern University Law Review, Vol. 107, No. 2, 2013) on SSRN. Here is the abstract:

New York Times v. Sullivan, arguably the Supreme Court’s most significant First Amendment decision, marks its fiftieth anniversary next year. Often overlooked in discussions of the case’s impact on the freedom of speech and freedom of the press is that it arose from a complex puzzle of constitutional, statutory, and judge-made jurisdictional and procedural rules. These kept the case in hostile Alabama state courts for four years and a half-million-dollar judgment before the Times and its civil-rights-leader co-defendants finally could avail themselves of the structural protections of federal court and Article III judges. The case’s outcome and the particular First Amendment rules it established are a product of this jurisdictional and procedural background.

Martin H. Redish has produced a lengthy record of influential and cutting-edge scholarship on civil procedure, federal jurisdiction, and the First Amendment, and has been a sharp and unforgiving critic of many of the jurisdictional rules that kept the case out of federal court for so long. It is appropriate to recognize Redish’s scholarly legacy by examining this landmark case, which sits at the intersection of his three scholarly pursuits and demonstrates why many of his arguments and criticisms are precisely correct.

van der Burg on "Forms Liberate: Reclaiming the Jurisprudence of Lon L Fuller" and "Legitimacy and Legality in International Law: An Interactional Account"

Wibren van der Burg (Erasmus University Rotterdam (EUR) - Erasmus School of Law) has posted The Work of Lon Fuller: A Promising Direction for Jurisprudence in the 21st Century on SSRN. Here is the abstract:

This is a review article of Kristen Rundle, Forms Liberate: Reclaiming the Jurisprudence of Lon L Fuller, and Jutta Brunnée & Stephen John Toope, Legitimacy and Legality in International Law: An Interactional Account. It puts both books in perspective, in the context of a modest Fuller revival since 1994.

Rundle successfully tries to reclaim Fuller from the distorted picture that arose in the wake of the Hart-Fuller debate. According to Rundle, Fuller’s most important and still highly relevant message is that we should take the form of law seriously. There is a connection between the form of law and how law approaches human agency. Rundle relies extensively on unpublished materials from the Fuller archives. This was a fortunate choice, because in those materials Fuller was often franker and clearer than in the published materials.

An interesting application of Fuller’s work is found in the field of international law, which has always been the Achilles heel of legal positivism. Jutta Brunnée and Stephen Toope have elaborated and adapted the Fullerian framework so that it provides an adequate theory of international law. In my view, they have provided a highly convincing account of the emergence of international law.

Both books share a certain bias. First, the implicit focus on legislation leads to the neglect of other forms of law, such as contract. Second, Rundle’s focus on the conversations with Hart and others, and Brunnée and Toope’s focus on The Morality of Law, results in the neglect of those publications in which Fuller tried to transcend philosophical debates and present the field of jurisprudence in a relatively impartial way. For example, in Anatomy of the Law, Fuller tries seriously to do justice to the core of truth in both legal positivism and natural law thinking, to made law and to implicit law. I argue that once we accept that law is a gradual and pluralist concept, Fuller’s work may be seen to provide a rich source of inspiration. Perhaps his work is even more relevant and productive for the legal research agenda of the 21st century than it was in the last century.

Laufer-Ukeles on Regulating Commercial Surrogacy

Pamela Laufer-Ukeles (University of Dayton - School of Law) has posted Mothering for Money: Regulating Commercial Intimacy (Indiana Law Journal, Vol. 88, No. 4, 2013) on SSRN. Here is the abstract:

The payment for gestation resulting in a child, involving months of physical involvement for the surrogate and the transferring of a being from the womb of one woman to the arms of another is the quintessential exchange in commercial intimacy. It is commercial because it involves payment for services, yet intimate because it involves physical and emotional attachments and interdependencies. In this article, I consider how to capture the many benefits that this commercial exchange that surrogacy engenders, including the documented satisfaction of surrogates and intended parents with the process and low rates of litigation, while simultaneously taking into account the high levels of intimacy and personal, emotional attachments involved, which are also well-documented in empirical sociological accounts. I lean on notions of mixed commoficiation and the descriptive work of Viviana Zelizer, among others, to argue for regulation that protects the intimacy involved in surrogacy.

In the context of commercial surrogacy, among other possible regulatory provisions, I argue that the human dignity and vulnerability of the surrogate require contemplation of the possibility of legally enforceable post-birth contact between the surrogate and the intended family. According to sociological studies, surrogates do seem to detach from the baby they carry, not considering themselves to be mothers in the formal, traditional sense, but instead transfer intimate ties to the intended family and feel strongly that their bodily contribution to the process not be discarded upon birth but valued for the essentially human engagement it involves.

This article also considers the relevance for this discussion of international surrogacy, a growing reality which should not be ignored in any modern conversation about surrogacy. By exploring the nature of international surrogacy through the most common destination of India, I describe how international surrogacy exacerbates many of the potential commodification and exploitation concerns involved in surrogacy and, therefore, should be discouraged. While the intimacy in domestic surrogacy may be captured through relationships and regulations supporting such relations, intimacy is intentionally and practically avoided in international surrogacy in problematic ways. I therefore consider what states should be doing to encourage domestic systems of surrogacy and discourage international surrogacy short of outlawing such procedures or refusing to accept babies born of international surrogacy into their borders which will only hurt the children involved.

Kochan on Aretaic Legislation & Public Choice

Donald J. Kochan (Chapman University School of Law) has posted The Mask of Virtue: Theories of Aretaic Legislation in a Public Choice Perspective (St. Louis University Law Journal, Forthcoming) on SSRN. Here is the abstract:

This Article is a first-of-its-kind application of public choice theory to recently developing theories of virtue jurisprudence. Particularly, this Article focuses on not-yet-developed theories of aretaic (or virtue-centered) legislation. This Article speculates what the contours of such theories might be and analyzes the production of such legislation through a public choice lens. Any virtue jurisprudence theory as applied to legislation would likely demand that the proper ends of legislation be deemed as “the promotion of human flourishing” and the same would constitute the test by which we would determine the legitimacy of any legislation.

As noble as virtuous behavior, virtuous laws, virtuous judging, or virtuous legislation may be, there is no reason to believe that any such theories if employed and adopted as decision rules would be any less susceptible to the debilitating realities of public choice and interest group behavior than other principles or metrics intended to guide lawmaking. We cannot expect interest groups to be virtuous in the ends sought nor lawmaking to be virtuous in the commodities offered and produced. Legislators remain subject to interest group bargaining and will manipulate a virtue-based rule for private gains through masking techniques rather than advance the concept of virtue itself. While some legislation will be drafted to seem virtuous to the public on its outside, its interior will be filled with rent seeking bounties.

Deeply interesting & highly recommended.

Matczak on Legal Rules as Complex Text Acts

Marcin Matczak (Warsaw University - Faculty of Law and Public Administration) has posted Why Legal Rules Are Not Speech Acts and What Follows from That on SSRN. Here is the abstract:

The speech-act approach to rules is commonplace in both Anglo-American and continental traditions of legal philosophy. Despite its pervasiveness, I argue in this paper that the approach is misguided and therefore intrinsically flawed.

My critique identifies how speech-act theory provides an inadequate theoretical framework for the analysis of written discourse, a case in point being legal text. Two main misconceptions resulting from this misguided approach are the fallacy of synchronicity and the fallacy of a-discursivity. The former consists of treating legal rules as if they were uttered and received in the same context, the latter consists of treating legal rules as relatively short, isolated sentences. Among the consequences of these fallacies are an excessive focus on the lawmakers’ semantic intentions and the neglect of the semantic and pragmatic complexity of rules as sets of utterances (discourses).

To redress these flaws, I propose treating legal rules as complex text acts. My paper presents the consequences of this revised approach for legal interpretation, supporting Joseph Raz's idea of minimal legislative intent.

Highly recommended.

Arlen & Tontrup on the Endowment Affect

Jennifer Arlen and Stephan W. Tontrup (New York University School of Law and Max Planck Institute for Research on Collective Goods) have posted A Process Account of the Endowment Effect: Voluntary Debiasing Through Agents and Markets on SSRN. Here is the abstract:

We contest the loss aversion theory of the endowment effect, in which the effect depends on the status of endowment alone. Instead, we propose that the nature of the trading process determines whether people resist or accept an exchange by affecting the responsibility people feel for their choice. The more they feel responsible for the decision, the more they expect experiencing regret over a negative outcome. Aversion to regret causes people to resist a rational trade and exhibit the endowment effect. In a series of experiments, we analyze two institutions that alter the trading process and reduce perceived responsibility --agency and markets. We find that both mute the endowment effect; moreover, participants intentionally use them to self-debias. Since many institutions shift responsibility, we conclude that the endowment effect is not present in many domains previously thought to implicate it. Institutional design often need not rely on paternalistic intervention.

Lyke on Diversity as a Commons

Sheldon Bernard Lyke (Northwestern University - School of Law) has posted Diversity as Commons (Tulane Law Review, Forthcoming) on SSRN. Here is the abstract:

Educational diversity arose as a shared valuable resource benefitting both universities and students in two landmark affirmative action cases — Regents of the University of California v. Bakke and Grutter v. Bollinger. This Article argues that diversity empirically resembles a commons (i.e., a shared resource). Extending this analysis exposes plaintiffs who file anti-affirmative action lawsuits — individuals like Abigail Fisher in Fisher v. University of Texas — as agents of enclosure who are trying to enclose the educational diversity commons, destroy its management structure, and privatize it for their own benefit (i.e. to gain admission into elite universities). Examining diversity and affirmative action through a common property lens reveals that the defense of race-conscious admissions policies faces a collective action problem. The interests of universities and their minority students largely overlap in their desire to protect diversity. They diverge, however, when universities refuse to employ additional equality rationales that could strengthen the defense of diversity and race-conscious admissions. This refusal facilitates anti-affirmative action efforts.

Mullenix on the Endurance of Class Litigation

Linda S. Mullenix (University of Texas School of Law) has posted Aggregate Litigation and the Death of Democratic Dispute Resolution (107 Nw. U. L. Rev. 511 (2013)) on SSRN. Here is the abstract:

Professor Redish has both anchored the modern class action in American political and constitutional theory, raising serious questions about the legitimacy of this procedural device for resolving aggregate claims. Professor Redish’s major insight is his argument that the courts and litigants have transformed the modern class action from a mere procedural device into a means for controlling and altering substantive law, in ways that he considers to be highly undemocratic.

Others, however, have suggested that the class action is dead. The article surveys accounts of the death of class actions and explains the continued endurance of class litigation ― which, it turns out ― is hard to kill off. The article then documents the changing landscape of aggregate dispute resolution, documenting a significant paradigm shift in the twenty-first century towards increased use of private claims resolution mechanisms. The article focuses on settlement classes, multidistrict litigation procedure, contractual non-class settlements, the quasi class action, and fund approaches to mass claim resolution.

Finally, the article critically evaluates this paradigm shift and concludes that Redish’s critique of class action litigation has even greater relevance in the new world of non-class, aggregate claims resolution: that Professor Redish’s critique applies with even greater force in the non-class universe. With the paradigm shift towards non-class aggregate claims resolution, the arc of history may be bending towards greater injustice ― a shift that is more significant because it is largely unbounded by rules and unmoored from judicial oversight.

Bowers on the Right to Extralegal Counsel

Josh Bowers (University of Virginia School of Law) has posted Two Rights to Counsel (Washington and Lee Law Review, Forthcoming) on SSRN. Here is the abstract:

This forthcoming essay argues that there is not one constitutionally recognized right to counsel, but two. There is a right to legal counsel and a right to extralegal counsel. The right to legal counsel applies principally to the formal domain of the criminal trial; the right to extralegal counsel applies exclusively to the informal domains of the plea bargain and guilty plea. To understand the distinction, consider the Court’s recent decisions in Lafler v. Cooper and Missouri v. Frye. An underappreciated feature of these rulings is the manner by which the Court has encouraged (and perhaps even constitutionally required) counsel to bargain “creatively” around substantive law. Specifically, the Court has signaled that prosecutors and defense attorneys — not legislators — are the system’s real policy makers, and that, accordingly, effective assistance of counsel ought to be measured against their conception of the “sound administration of criminal justice.” In the process, the Court has almost re-conceptualized the right to counsel as a constitutional entitlement to skirt legislative command — an entitlement that Justice Scalia derisively has termed a threat to the legality principle. It does not follow, however, that the Court’s two-track jurisprudential approach is misguided. Whereas the approach continues a troubling trend away from legislative and lay influence over criminal justice and toward professional executive control, it also may constitute the pragmatic (and even normatively compelled) best course in a second-best system of criminal justice that depends procedurally on horse trading and substantively on mandatory sentencing statutes that ill serve any defensible conception of proportionality or crime control.

Adler on the Pigou-Dalton Principle & Distributive Justice

Matthew D. Adler (Duke University - School of Law) has posted The Pigou-Dalton Principle and the Structure of Distributive Justice on SSRN. Here is the abstract:

The Pigou-Dalton (PD) principle recommends a non-leaky, non-rank-switching transfer of goods from someone with more goods to someone with less. This Article defends the PD principle as an aspect of distributive justice — enabling the comparison of two distributions, neither completely equal, as more or less just. It shows how the PD principle flows from a particular view, adumbrated by Thomas Nagel, about the grounding of distributive justice in individuals’ “claims.” And it criticizes two competing frameworks for thinking about justice that less clearly support the principle: the veil-of-ignorance framework, and Larry Temkin’s proposal that fairer distributions are those concerning which individuals have fewer “complaints.”

The Article also clarifies the relation between the PD principle and prioritarianism. Prioritarians will surely endorse the PD principle (with the “good” individual well-being), but they are also committed to a distinct axiom of separability: the moral value of someone’s well-being change does not depend upon her position relative to others. The PD principle neither implies separability, nor is implied by it. Although prioritarianism is very plausible, the case for the PD principle is yet more compelling than for the combination of that principle with separability. In discussing prioritarianism, we should differentiate between these two, logically independent aspects of the view.

Highly recommended!

Friedman & Lakier on "Regulate" & the Commerce Clause

Barry Friedman (New York University School of Law) & Genevieve Lakier (University of Chicago Law School) have posted 'To Regulate,' Not 'To Prohibit': Limiting the Commerce Power on SSRN. Here is the abstract:

Today it is taken for granted that Congress’s power “to regulate . . . Commerce among the several States” includes the power to shut interstate markets down. That is why, for example, Congress is understood to have the power to ban the possession and use of marijuana, even though twenty states have expressed contrary preferences, either for the medicinal or recreational use of the drug. This Article argues that as a matter of constitutional history and theory both, this familiar assumption about congressional power is wrong. First, the Article demonstrates that the original understanding, which prevailed for over one hundred years, did not grant Congress the power to ban markets. Congress could pass “helper” statutes to facilitate state choices, and it could even ban particular goods (such as diseased cattle) “in service” of the interstate market; but it could not simply prohibit all commerce in products of which it disapproved. Second, the Article demonstrates that although this understanding changed following the 1903 Supreme Court decision in Champion v. Ames, none of the reasons supporting the change justify Congress possessing the power today. Finally, this Article examines theoretical justifications for congressional power grounded in law and economics and constitutional theory to suggest that the power “to regulate” interstate commerce should not be understood to include the power to prohibit it. The argument has implications for national bans on articles and activities such as interstate gambling, drugs, raw milk products and assault weapons.

Highly recommended.

Stone Sweet on "Beyond Constitutionalism" by Krisch

Alec Stone Sweet (Yale University - Yale Law School and Yale Political Science) has posted The Structure of Constitutional Pluralism (International Journal of Constitutional Law, 2013) on SSRN. Here is the abstract:

The essay, a review of Nico Krisch's Beyond Constitutionalism: The Pluralist Structure of Post-National Law, argues that "constitutional pluralism" is a structural property of many existing and emergent legal systems.

And here is a link to the book:Beyond Constitutionalism: The Pluralist Structure of Postnational Law (Oxford Constitutional Theory).

Legal Theory Lexicon: Virtue Ethics

Introduction

The Legal Theory Lexicon already includes posts on Deontology and Utilitarianism--representing two important families of ethical theory. This week, the Lexicon provides an introduction to virtue ethics. As always, the Lexicon provides a quick and dirty summary with an eye to law students (especially first-year law students) with an interest in legal theory. Together, these three posts provide a rough and ready introduction to the three most prominent approaches to normative ethics.

What is virtue ethics?  Obviously, virtue ethics has something to do with virtue, which in this context is closely related in meaning to the English word "excellence," the Latin "virtu," and the Greek, "arete." Sometimes "virtue ethics" is also called "aretaic moral theory," using the adjective form of arete.

In moral philosophy, the virtues are the human excellences. Here is the definition offered by the distinguished moral philosopher, Rosalind Hursthouse:

Virtue ethics is currently one of three major approaches in normative ethics. It may, initially, be identified as the one that emphasizes the virtues, or moral character, in contrast to the approach which emphasizes duties or rules (deontology) or that which emphasizes the consequences of actions (consequentialism). Suppose it is obvious that someone in need should be helped. A utilitarian will point to the fact that the consequences of doing so will maximize well-being, a deontologist to the fact that, in doing so the agent will be acting in accordance with a moral rule such as "Do unto others as you would be done by" and a virtue ethicist to the fact that helping the person would be charitable or benevolent.

It might be illuminating to compare virtue ethics to deontology and utilitarianism via the following simplified formulas:

• Utilitarianism: An action is right if and only if the action will produce the best consequences as compared to the alternative actions that could be undertaken by the agent.
• Deontology: An action is right if and only if the action is either (a) required by a moral duty, or (b) allowed by a moral permission, and not (c) forbidden by a moral prohibition.
• Virtue Ethics: An action is right if and only if the action is one which a virtuous moral agent would characteristically perform under the circumstances.

Formulas are tricky, and I haven't tried to get these formulations exactly right. Instead, my aim was to paint broadly to give a sense of the basic structure of these three approaches to moral theory. Whereas, utilitarianism makes consequences (or states of affairs) and the central idea of moral theory and deontology focuses on moral rules, virtue ethics focuses on character and human excellence.

Modern Moral Philosophy

 Historically, virtue ethics finds its roots in ancient Greek philosophy, particularly in the work of Plato and Aristotle, but the contemporary revival of virtue ethics can, in a sense, be traced to G.E.M. Anscombe's article, Modern Moral Philosophy published in the journal Philosophy in 1958. Anscombe's famous article noted the well-known deficiencies and problems associated with utilitarianism and deontology and suggested that a return to Aristotle's moral philosophy might provide a fruitful alternative. This marks the beginning of what might be called the aretaic turn in moral philosophy--initiating both a return to Aristotle's theory of the virtues and the development new varieties of virtue theory.

The Virtues

 What are the virtues? One good way to answer this question is to examine Aristotle's account of human excellence. For Aristotle, the virtues are acquired dispositional qualities; they are potentialities or powers which are states of character or of mind. Aristotle characterizes the virtues as intellectual or moral, and his views can be sketched by examining these two categories.

The moral virtues are states of character concerned with choice; examples include courage, temperance and justice. Aristotle thought that virtues such as courage related to human emotion in a particular way. In the case of courage, there is a morally neutral human emotion--fear. The disposition to excessive fear (fear that is disproportionate to the situation) is the vice of timidity. The disposition to insufficient fear is the vice of recklessness. Courage is the disposition to feel fear that is proportionate to the actual threat or danger. Hence the virtue of mean is a mean between two opposed vices, timidity and recklessness. Moral virtues, says Aristotle, are acquired as a result of habit; one must act courageously in order to become courageous.

The intellectual virtues are practical and theoretical wisdom. Practical wisdom or phronesis is excellence in deliberation: the person of practical reason is able to choose good ends and the means to achieve those ends. Practical wisdom operates in realm of praxis: action in particular situations. Theoretical wisdom or sophia, on the other hand, operates in the realm of theoria; abstract thinking, science and theory. The intellectual virtues are initially developed by teaching and mature through experience.

A fully virtuous agent, then, would be someone who possesses the full complement of the moral and intellectual virtues. This may be rare, as most humans lack some of the virtues and possess others in an imperfect form.

Virtue Ethics and Human Good

 What are the implications of virtue ethics for human ends and actions? Here is a very simple (and simplified) answer. Virtue ethics counsels us to cultivate virtue--to acquire the human excellences insofar as that is possible. Virtuous agents will then aim at the right goals in life, because their intellectual and emotional makeup naturally points them towards a just and flourishing life. Thus, a fully virtuous human will characteristically act in the right way for the right reasons.

And what about those who lack full virtue? Many humans, however, lack fully virtuous characters. What counsel does virtue ethics offer those who lack the full complement of human excellence? The answer to this question can be developed in at least two ways. First, we might ask ourselves, "How would a virtuous human act in these circumstances?" This is, of course, part of ordinary human deliberation. When faced with a difficult choice situation, sometimes we think of someone whose character we admire, and ask, "How would she (or he) deal with this?" Second, we might ask ourselves, "What do the virtues counsel in this situation?" That is, we can take our understanding of the human excellences, and ask questions like, "What action would be courageous?" or "What action would accord with the virtue of justice?"

Particularism and Phronesis

 Contemporary virtue ethics is distinctive in part, because it denies something that both deontology and utilitarianism seem to affirm--that there is a decision procedure for ethics. Utilitarianism claims that there is a very simple rule (which if correctly applied) yields the morally correct action for each situation: act so as to produce the best consequences. Deontology has a similar claim: to do the right thing, simply consult the moral rules, and perform that action which is required or if no action is required, choose from among those that are permissible. Virtue ethics characteristically denies that there is any mechanical rule that generates the morally correct action. Why not? One answer to that question lies in Aristotle's idea of the phronimos, the person who possesses the virtue of practical wisdom. The phronimos has the ability to respond to the complexities of particular situations, to see what is morally salient, and to choose an action that will work given the circumstances.

Behind the virtue of phronesis or practical wisdom is an assumption about the complexity of life. Virtue ethics characteristically argues that life is more complicated than our theories and rules. It would be impossible, the virtue ethicist might argue, to write a code of rules for moral conduct. No matter how complicated the rules, situations would inevitably arise that were not covered or in which the rules produced a perverse and unintended result. Acting morally requires more than a knowledge of moral principles; it requires a sensitivity to particular situations. One way of putting this is use the metaphor of moral vision, the ability to size up a real-world choice situation, perceiving the morally relevant circumstances.

Virtue Politics and Virtue Jurisprudence

 What are the implications of virtue ethics for the questions that legal theorists ask? One starting point for an answer might be the development of "virtue politics," i.e. a political theory that builds on the foundations of virtue ethics. A virtue politics might begin with the idea that the goal of the state should be the establishment of the conditions for the development of human excellence. Thus, the aim of the legislator might be described as the establishment of a political and legal framework within which individual citizens can realize their full potential for human excellence. A virtue politics might also consider the implications of virtue theory for the design of political institutions. For example, institutions might both seek to counteract the fact that both citizens and office holders will frequently be less than fully virtuous and also to establish conditions under which legislators, executives, and judges are selected at least in part for their possession of the virtues.

What about the implications of virtue ethics for legal theory? We might call an aretaic approach to legal theory "virtue jurisprudence." Among the topics that aretaic legal theory might explore is a virtue-centered theory of judging, which describes the particular excellences required by judges. A virtue-centered theory of judging offers an account of the characteristics or excellences that make for a good judge. These include: (1) judicial temperance, (2) judicial courage, (3) judicial temperament, (4) judicial intelligence, (5) judicial wisdom, and (6) justice. We might say that a virtuous judge is a judge who fully possesses the judicial virtues. Although every theory of judging can incorporate some account of judicial virtue, a virtue-centered theory of judging makes the distinctive claim that the judicial virtues are central, i.e. that they have basic explanatory and normative significance.

In particular, a virtue-centered theory of judging would contend that a correct legal decision is a decision that would characteristically be made by a virtuous judge in the circumstances relevant to the decision. Thus, 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.

One of the judicial virtues is "judicial wisdom," the judicial form of the phronesis. If the world is too complex for a complete code of moral rules, then what about the law. Aristotle suggested that justice according to law would inevitably fall short in at least some particular cases, because the legislature must speak in relatively general and abstract language which sometimes will produce unintended consequences that are contrary to the purposes of the law. Here is Aristotle's discussion from Chapter 10 of Book V of the Nicomochean Ethics:

What causes the difficulty is the fact that equity is just, but not what is legally just: it is a rectification of legal justice. The explanation of this is that all law is universal, and there are some things about which it is not possible to pronounce rightly in general terms; therefore in cases where it is necessary to make a general pronouncement, but impossible to do so rightly, the law takes account of the majority of cases, though not unaware that in this way errors are made. And the law is nonetheless right; because the error lies not in the law nor in the legislator but in the nature of the case; for the raw material of human behavior is essentially of this kind.

Thus, the particularism that characterizes virtue ethics may translate into a concern with equity in virtue jurisprudence.

Conclusion

 While utilitarianism and deontology are well-known to legal theory, virtue ethics is only beginning to have an influence on contemporary jurisprudence. Most contemporary American legal theorists were trained before virtue ethics reached its full flower in the 1980s and 1990s, and many law professors who have broad theoretical interests are only vaguely aware of the substantial impact that virtue ethics has had on contemporary moral philosophy. Nonetheless, a theoretically inclined law student can bring virtue ethics to bear on a variety of legal problems. One good example concerns the use of the "reasonable person" standard in tort law. It is interesting that tort law frames the standard of care in negligence cases with reference to the concept of an agent (the reasonable person)--and does not use the "reasonable action" or "reasonable consequences" as the fundamental idea.

If thinking about the reasonable person in tort law is a good place to begin, virtue ethics can be applied to a variety of legal problems. Here is one suggestion. Sometimes, you will find that a strict application of the rules leads to a result that is manifestly unfair and unintended. Ask yourself: "Is this a case where a virtuous judge might choose to depart from the rule on equitable grounds?" And here is another suggestion: Whenever you find yourself dissatisfied with consequentialist or deontological approaches to the moral problems that law addresses, ask yourself, "What would virtue ethics say here?" What character traits or virtues are relevant to this problem? When you start to list the relevant virtues, you will be on your way to a virtue-theoretic analysis of the legal problem!

Related Lexicon Entries

• Legal Theory Lexicon 008: Utilitarianism
• Legal Theory Lexicon 010: Deontology
• Legal Theory Lexicon 016: Positive and Normative Legal Theory
• Legal Theory Lexicon 031: Virtue Jurisprudence

Bibliography

• Anscombe, G.E.M., Modern Moral Philosophy, 33 Philosophy 1-19 (1958), reprinted in G.E. M. Anscome, Ethics, Religion and Politics: Collected Philosophical Papers (1991).
• Crisp, Roger (ed.), How Should One Live?: Essays on the Virtues (Oxford: Clarendon Press 1996).
• Crisp, Roger and Michael Slote (eds.), Virtue Ethics (Oxford Readings in Philosophy) (Oxford: Oxford University Press 1997).
• Foot, Philippa, Virtues and Vices (Oxford: Blackwell 1978).
• Paula Gottleib, The Virtue of Aristotle's Ethics (Cambridge University Press 2009).
• Hursthouse, Rosalind, On Virtue Ethics (Oxford: Oxford University Press 1999). The single best one-volume statement of virtue ethics.
• Solum, Lawrence B., Virtue Jurisprudence: A Virtue-Centered Theory of Judging, 34 Metaphilosophy 178 (2003).
• Solum, Lawrence B., Natural Justice, 51 American Journal of Jurisprudence 65-105 (2006).
• Statman, D. (ed.), Virtue Ethics: A Critical Reader (Edinburgh: Edinburgh University Press 1997).

Links to Online Resources

• Virtue Ethics in the Stanford Encyclopedia of Philosophy by Rosalind Hursthouse. I highly recommend this as a starting point for further reading on virtue ethics.
• Ethics Updates Page on Aristotle and Virtue Ethics
• Internet Encyclopedia of Philosophy Entry on Virtue Theory
• Wikipedia Entry on Virtue Ethics.
• Wikipedia Entry on Virtue Jurisprudence
• Online Guide to Ethics and Moral Philosophy: Virtue Ethics

(This entry was last revised on May 12, 2013.)

Legal Theory Bookworm

The Legal Theory Bookworm recommends Long Wars and the Constitution by Stephen M. Griffin. Here is a description:

In a wide-ranging constitutional history of presidential war decisions from 1945 to the present, Stephen M. Griffin rethinks the long-running debate over the “imperial presidency” and concludes that the eighteenth-century Constitution is inadequate to the challenges of a post-9/11 world.

The Constitution requires the consent of Congress before the United States can go to war. Truman’s decision to fight in Korea without gaining that consent was unconstitutional, says Griffin, but the acquiescence of Congress and the American people created a precedent for presidents to claim autonomy in this arena ever since. The unthinking extension of presidential leadership in foreign affairs to a point where presidents unilaterally decide when to go to war, Griffin argues, has destabilized our constitutional order and deranged our foreign policy. Long Wars and the Constitution demonstrates the unexpected connections between presidential war power and the constitutional crises that have plagued American politics.

Contemporary presidents are caught in a dilemma. On the one hand are the responsibilities handed over to them by a dangerous world, and on the other is an incapacity for sound decisionmaking in the absence of interbranch deliberation. President Obama’s continuation of many Bush administration policies in the long war against terrorism is only the latest in a chain of difficulties resulting from the imbalances introduced by the post-1945 constitutional order. Griffin argues for beginning a cycle of accountability in which Congress would play a meaningful role in decisions for war, while recognizing the realities of twenty-first century diplomacy.

And from the reviews:

In this troubling book, Stephen Griffin persuasively demonstrates the inadequacy of the Constitution as a basis for exercising militarized global leadership. More troubling still, he shows that in pretending otherwise, successive administrations, in collaboration with Congress, have done untold damage to our political system while forging national security policies that are deeply defective. (Andrew J. Bacevich, Author Of washington Rules: America's Path To Permanent War )

Long Wars and the Constitution is one of the most important books on constitutional theory in a long time and should fundamentally reshape the debate about presidential authority to embark on wars without Congressional approval. (Sanford Levinson, Author Of framed: America's 51 Constitutions And The Crisis Of Governance)

Long awaited, important, and highly recommended.  I'm departing from my usual practice of waiting until release--Griffin's book should ship on Monday (two days from now) if ordered today.

Download of the Week

The Download of the Week is The Third Pillar of Jurisprudence: Social Legal Theory by Brian Z. Tamanaha. Here is the abstract:

Jurisprudence is generally thought to consist of two main classical rival branches — natural law and legal positivism — followed by a bunch of modern schools — legal realism, law and economics, critical theory, legal pragmatism, etc. In this essay I argue that three main branches of jurisprudence have existed, and battled, for centuries, not two, but the third goes unrecognized as such because it has traveled under different labels and the underlying connections have been clouded by various confusions. The core insights and focus of this third branch, what I call “Social Legal Theory,” trace in a continuous thread from Montesquieu, through historical jurisprudence, sociological jurisprudence, and legal realism, up to the present. This third branch, I argue, provides a contrasting/complementary perspective, in conjunction with natural law and legal positivism, which rounds out the full range of theoretical angles on law: natural law is normative; legal positivism is analytical/conceptual; and social legal theory is empirical. (Among a number of clarifications, I answer the common objection that empirically-grounded theories are not sufficiently theoretical.) The conventional jurisprudential narrative is redrawn in this essay in a way that exposes unseen connections among theoretical schools and brings into focus critical issues about the nature of law that currently are marginalized by natural law and legal positivism.

Bright & Whitehouse on the Role of Empirical Research & Housing Possession

Susan Bright and Lisa Whitehouse (University of Oxford - Faculty of Law and University of Hull - Law School) have posted The Opportunities and Challenges of Empirical Work: Housing Possession in Theory and in Practice on SSRN. Here is the abstract:

This paper explains how empirical enquiry of the kind unburdened by the pursuit of a particular hypothesis or strict adherence to scientific methods, has much to offer in terms of developing our understanding of law and, in particular, the traditionally doctrinal field of property law, providing insights into the operation of law that cannot be learned from books alone. The argument is discussed in the context of an ongoing research project by the authors that investigates whether ‘non-financial’ considerations are taken into account during the process of housing possession, looking at both owner-occupied and rented housing. The project is a broad enquiry exploring the extent to which issues other than property rights and the ability to pay are considered when it comes to losing a home, that is, matters such as the welfare of children, health problems, community networks, attachment and so on. The study is not confined to the ultimate decision making stage, when the judge decides whether or not to order possession, but looks also at how non-financial factors inform decisions made earlier on, such as whether a mortgagee thinks that the time has come to issue possession proceedings. Although the study is of possession proceedings in England, and is based around the English legal system, the purpose of this paper is not to report on the research findings but to make a point of broader significance in relation to the role of empirical research within legal scholarship.

Kwok on Kleinfeld on Enforcement & the Concept of Law

Eliot Wing Chung Kwok has posted Enforcement and Definition on SSRN. Here is the abstract:

Is enforcement necessary to law? Joshua Kleinfeld’s claim in his article Enforcement and the Concept of Law that the existence of law despite the lack of perfect enforcement proves that enforcement is not strictly necessary involves circular reasoning. Likewise, the theory he proposes as an explanation for enforcement not being strictly necessary to law, namely that law belongs to a class of social objects with a normative constitution, leads to circular reasoning. In light of these problems, this paper argues that law may have different definitions none of which can be in-and-of-itself more correct than any other, which would mean that the validity of any claim about law could only be relative to its definition.

Fiss on the Democratic Mission of the University

Owen M. Fiss (Yale University - Law School) has posted The Democratic Mission of the University (Albany Law Review, Vol. 76, No. 1, 2012/2013) on SSRN. Here is the abstract:

The university is a self-governing institution dedicated to the discovery and dissemination of knowledge. As a historical matter, universities were not borne of the democratic impulse and many of their grandest achievements are wholly unrelated to the furtherance of democracy. Yet today they function in such a way in the United States so as to enhance and strengthen the quality of its democratic system.

Democracy is a system of collective self-governance in which the people shape their public life. The leaders of government are chosen by citizens and then held accountable for their actions through a series of periodic elections. In this way, democracy exalts popular choice. It also presumes, however, that this choice is enlightened. Citizens need to understand the nature of the choices that they face, and must possess the capacity to evaluate the policies and practices of the government and its leaders. Although unenlightened choice is still a choice, that kind of choice and the democratic character of the political system that it supports are not especially inspiring or worthy of our admiration.

The university plays an important role in the process of enlightenment that democracy presumes.

Academic freedom is an important source of individual freedom, but not the only one, and the recognition of its jurisdictional limits; to confine it to the freedom to teach and the freedom to learn might strengthen its force when the free university comes under threat.