SSRN seems to be functionally normally, and I will resume abstract posts.
Mark W. Bennett (U.S. District Court (Northern District of Iowa)) has posted Confronting Cognitive 'Anchoring Effect' and 'Blind Spot' Biases in Federal Sentencing: A Modest Solution for Reforming a Fundamental Flaw (Journal of Criminal Law and Criminology, Vol. 104, No. 3, p. 489, 2014) on SSRN. Here is the abstract:
Cognitive "anchoring effect" bias, especially related to numbers, like sentencing guidelines ranges, is widely recognized in cognitive psychology as an extremely robust and powerful heuristic. It is a cognitive shortcut that has a strong tendency to undermine judgments by "anchoring" a judgment to an earlier disclosed number, the anchor. Numerous studies prove anchoring bias produces systematic errors in judgment in wide-ranging circumstances, including judgments by experts— doctors, lawyers, real estate agents, psychologists, and auditors — as well as a variety of decisions by foreign and American federal and state judges. The anchoring effect occurs even when the anchor is incomplete, inaccurate, irrelevant, implausible, or even random. Roughly corresponding in time with the developing understanding of the anchoring effect, federal sentencing has undergone a revolution from judges having virtually unlimited discretion, to virtually no discretion, and back to considerable discretion, as the Federal Sentencing Guidelines went from mandatory to advisory in a single monumental U.S. Supreme Court decision, United States v. Booker, 543 U.S. 220 (2005). Surprisingly, since judges were granted much greater discretion in Booker, the length and severity of federal sentences, for the most part, has not changed. This remains true despite long-standing, persistent, and widespread dissatisfaction among federal district court judges with the Guidelines and the length of sentences. This Article argues that this is because judges’ sentences are subconsciously anchored by the calculated Guidelines range. This Article offers a simple, modest, and practical solution that requires no change in existing law by the Supreme Court or Congress. It simply requires rearranging the numerical anchoring information in the presentence report and adding additional relevant numerical information to counteract the anchoring effect of the Guidelines. If federal district court judges are educated about the effect of cognitive anchoring and their own bias-based blind spots to it — their improved awareness can only enhance the fairness of sentencing.
Peter L. Lindseth (University of Connecticut School of Law) has posted The Eurozone Crisis, Institutional Change, and 'Political Union' (Franklin Allan, Elena Carletti, and Joanna Gray, eds., POLITICAL, FISCAL, AND BANKING UNION IN THE EUROZONE? (Wharton Financial Institutions Center Press 2013)) on SSRN. Here is the abstract:
This contribution reflects on the prospects of various forms of "political union" in the EU in the wake of the Eurozone crisis. To do so, it uses a theory of institutional change operating along three dimensions: functional, political, and cultural/ideological.
The chapter recognizes that the concept of political union is notoriously slippery, ranging from the quite limited notion prevailing among European leaders — as exemplified by meanings Angela Merkel has given to the term in various public pronouncements — to the more robust notion advanced by European federalists such as Jürgen Habermas. The former largely limits the prospects of political union to increased supranational discipline over national budgets but not any significant fiscal transfer mechanisms, debt-mutualization, or the supranationalization of taxing, spending, or borrowing power under the authority of some kind of European federal "government." The latter calls precisely for greatly augmented taxing, spending, and borrowing capacity at the EU level, as well as a deep legal and political transformation of the European Parliament and European Commission into an autonomous legislature and government of the Eurozone. The aim is to legitimize the expanded fiscal authority of the EU, which federalists see as a crucial necessity.
This chapter argues that Merkel’s conception of the prospects of political union comes much closer to the sort of reconciliation between the functional, political, and cultural dimensions of institutional change that has animated the process of European integration for more than a half-century. Despite the fervent hopes of federalists stretching back sixty years, European integration has remained a process of largely instrumentalized rather than idealized supranationalism. Regulatory powers have been transferred to achieve certain defined functional demands of interdependence, but the locus of political legitimacy for those powers has never been properly supranationalized (i.e., rendered autonomous of the members states, as in a genuinely federal system). This tension between supranational regulatory power and national democratic and constitutional legitimacy has shaped the deeper grammar of European governance for nearly a half century, and it will likely continue to do so in the wake of the Eurozone crisis.
Federalists may well be right that, today, the optimal solution to the Eurozone crisis is the shift of full-blown fiscal capacity to a strongly legitimated European political "government" — a "political union." But history (not just of European integration but of the modern administrative state upon which it builds) strongly suggests that institutional change is never simply a consequence of functional demands. It also entails a complex process of political and cultural/ideological contestation, in which functional demands are satisfied to the greatest extent possible, but the outcome remains recognizable in light of conceptions of legitimacy inherited from the past. And in the case of integration, those conceptions of legitimacy continue to pull toward national institutions, even as functional demands of interdependence — and the resolution of the Eurozone crisis — continue to demand the shift of regulatory power to the supranational level.
Stu Marvel (Emory University School of Law) has posted Polymorphous Reproductivity and the Critique of Futurity: Toward a Queer Legal Analytic for Fertility Law (Jindal Global Law Review, Vol.4 2013 Issue.2/ Law, Culture and Queer Politics in Neoliberal Times) on SSRN. Here is the abstract:
This article aims to develop a queer legal analytic through which we can engage the complexities of reproductive technology use by queer subjects. It first seeks to reconcile the divide between legal scholarship and queer theory in accounting for the use of reproductive technology by LGBTQ people. It maps a queer legal analytic that can engage articulations of the reproductive family and explores how child-bearing and reproduction have been envisioned by leading scholars within queer theory. It then argues that these visions have fallen short and offers new conceptual frames to encompass the variety and multiplicity of what is referred to as queer biokinship. My argument is that the intrinsically messy queer parenting projects of assisted reproduction demand a re-thinking of the alignments and arrangements pursued under the frame of biological kinship. Instead, the polymorphous reproductivity of queer biokinship can be understood as challenging the central mythology of heterosexual normativity and genital reproduction. Further, by centring the queer reproductive family at the heart of our analysis, we are able to demand access to state-led subsidies that can help mitigate the ruthless logics of medical privatization. A queer perspective offers an extraordinarily useful intervention into the legal morass of assisted reproduction as it allows us to de-naturalize the procreative certainty of erotic coupling and determine where, how and on what grounds queer legal rights around assisted reproduction can and should be staked.
Nicholas Bagley (University of Michigan Law School) has posted Medicine as a Public Calling (Michigan Law Review, Vol. 114 (2015 Forthcoming)) on SSRN. Here is the abstract:
The debate over how to tame private medical spending tends to pit advocates of a single-payer approach against those who would prefer to harness market forces to hold down costs. When it is mentioned at all, the possibility of regulating medicine as a public utility is dismissed as a political impossibility — or, worse, as anathema to the American regulatory tradition. Yet there is a rich history in the United States of subjecting private businesses that wield undue power to economic regulation. Growing out of an ancient common law practice of imposing special duties on innkeepers and common carriers, the body of law governing the regulation of “public callings” had evolved by the early twentieth century into a comprehensive challenge to the principles of laissez faire.
The rise of the modern medical industry in the years after the Second World War prompted the enactment of federal and state laws emerging from this tradition and directed at the business of medicine. Although the last two decades of the twentieth century saw many of these laws give way to a resurgent belief that market forces ought to guide the distribution of health-care services, an important strain of the law has always treated modern medicine as a public calling. Now that the Affordable Care Act has eased concerns about the uninsured, a stubborn set of economic problems in the medical industry — supply imbalances, access restrictions, and abusive and discriminatory pricing — may spur renewed interest in laws reflecting the principles of public utility regulation. Indeed, nascent interest in such laws suggests that we may already be heading that direction.
John F. Pfaff (Fordham University School of Law) has posted The War on Drugs and Prison Growth: Limited Importance, Limited Legislative Options (Harvard Journal on Legislation, Forthcoming) on SSRN. Here is the abstract:
Many commentators argue that the War on Drugs has played a major role in the four-decade long explosion in US incarceration rates, but in this paper I demonstrate that these claims do not generally rest on sound empirical footing. The direct incarceration of drug offenders explains only about 20% of prison growth (compared to over 50% for violent offenders), and drug convictions do not appear to drive parole revocations nor act as prior felonies that trigger harsh repeat offender laws for subsequent non-drug offending. Furthermore, drug offenders also appear to comprise only about 20% of those flowing through prison, which could be a more accurate measure of the War on Drugs' impact, since drug offenders generally serve disproportionately short sentences and thus may be under-represented in the one-day prison counts that are standard metric of prison's scope.
That said, the War on Drugs could still matter, but in more indirect -- and much harder to measure -- ways. Drug enforcement could contribute to overall social instability in high-crime, high-enforcement communities, or at least to the perception of instability, in ways that may trigger more enforcement by police and prosecutors, even if crime rates are relatively low and falling. Furthermore, while prior drug offenses do not appear to trigger formal recidivist statutes, they may alter prosecutorial charging decisions for later non-drug offenses, but prosecutorial charging behavior is currently impossible to measure with existing data.
Finally, even though the War on Drugs has played only a secondary role in prison growth, there are over 200,000 people in state prison every day on drug charges, and states appear eager to reduce the scope of drug-related incarcerations. So I conclude by considering some of the options available to states. I point out that the leading contenders -- decriminalization and sentence reduction -- will likely have little effect, since few offenders are in prison on marijuana charges (the only drug for which decriminalization is currently feasible), and all drug offenders serve relatively short sentences, well below the statutory maximums. I then consider broader options, such as proposals that target the financial incentives prosecutors have to send offenders, including drug offenders, to prison. I also touch on the implications of adopting broader definitions of "drug offenders," such as those who commit violent or property crimes either to support drug habits or in the course of selling drugs.
Michael Asimow (Stanford Law School) has posted Five Models of Administrative Adjudication on SSRN. Here is the abstract:
Regulatory and benefit-distribution schemes give rise to large numbers of individualized disputes between government agencies and private parties. Every country needs a system of administrative adjudication to resolve such disputes accurately, fairly, and efficiently. Generally such systems provide for three phases — initial decision, administrative reconsideration, and judicial review. However, the details of the various systems are bewilderingly diverse. This article proposes a methodology for classifying such systems. It identifies four key variables: combined function agencies or separate tribunals, adversarial or inquisitorial procedure, judicial review that is open or closed, and judicial review by generalized or specialized courts. The article identifies five models in common use around the world that involve different combinations of these variables. Finally, the article discusses the utility of transplants from the administrative adjudicatory system of one country to another.
Michael L. Smith (University of California, Los Angeles (UCLA) - School of Law) has posted Regulating Law Enforcement's Use of Drone: The Need for State Legislation on SSRN. Here is the abstract:
The recent rise of domestic drone technology has prompted privacy advocates and members of the public to call for the regulation of the use of drones by law enforcement officers. Numerous states have proposed legislation to regulate government drone use, and thirteen have passed laws that restrict the use of drones by law enforcement agencies. Despite the activity in state legislatures, commentary on the drones tends to focus on how courts, rather than legislative bodies, can restrict the government’s use of drones. Commentators call for wider Fourth Amendment protections that would limit government surveillance. In the process, in-depth analysis of state drone regulations has fallen by the wayside.
In this article, I take up the task of analyzing and comparing state laws regulating the government’s use of drones. While the oldest of these laws was enacted in 2013, the thirteen laws passed so far exhibit wide variations and noteworthy trends. I survey this quickly-expanding list of laws, note which regulations are likely to constrain government drone use, and identify laws that provide only the illusion of regulation.
I advance the thesis that the judiciary is ill-suited to address the rapidly-developing area of drone technology. Long-established Supreme Court precedent leaves the judiciary with very little power to curtail government drone use. And were the judiciary to attempt the task of restricting law enforcement’s use of drones, the solutions proposed would likely be imprecise, unpredictable, and difficult to reverse. In light of these concerns, privacy advocates and law enforcement agencies alike should support the regulation of government drone use by state legislatures, and should look to existing laws in determining what regulations are ideal.
Linda H. Edwards (University of Nevada, Las Vegas, William S. Boyd School of Law) has posted Book Review: 'The Good Lawyer: Seeking Quality in the Practice of Law' (Legal Communication & Rhetoric: JALWD, Vol. 11, p. 185, Fall 2014) on SSRN. Here is the abstract:
In their first collaboration, “The Happy Lawyer,” the writing team of Nancy Levit and Doug Linder tackled a crucially important subject: how to have a happy life in the law. As part of that project, they interviewed more than two hundred lawyers about what makes them happy in their jobs. Levit and Linder noticed that happy lawyers nearly always talked about doing good work. Curious about the connection, the authors turned to recent research in neuroscience and learned, not to their surprise, that a key to a happy life is, indeed, the sense of doing good work. It is our good fortune that in their second collaboration, “The Good Lawyer,” Linder and Levit have turned their attention to unpacking what it means to “do good work” in the law.
“The Good Lawyer” has many uses. It would be an excellent supplemental text for any law school course teaching professionalism, such as Professional Responsibility, Clinic, Legal Writing, or Externship. As part of the externship experience, students could use the text in their reflective writing requirement. Parts of it could be assigned as reading in typical doctrinal courses where the professor is consciously integrating skills and values, as recommended by the Carnegie Report. It would be an excellent basis for a CLE on lawyering & professionalism. It could be a useful part of a law firm’s orientation for its newer associates. Finally, it makes for stimulating reading for individual lawyers seeking to improve their own practice.
Hannibal Travis (Florida International University College of Law) has posted Patent Alienability and its Discontents (Tulne Journal of Technology & Intellectual Property, Vol. 17, 2014) on SSRN. Here is the abstract:
This article analyzes the Innovation Act, which passed the U.S. House of Representatives on a promise to deal with the problem of "patent trolls" or non-practicing entities (NPEs). The article surveys the NPE controversy from a variety of perspectives, including the history and theory of transactions in real property. Part II raises several economic issues relevant to the proposed NPE legislation, including the need for owners to alienate the legally-enforceable rights they acquire, and the dynamic benefits of property alienability notwithstanding short-term administrative costs. Part III describes a decade of reforms that led up to the Innovation Act, with a particular focus on critiques of patent enforcement in general and NPEs in particular. Part IV responds to these concerns by surveying legal doctrines that may blunt the allegedly adverse effects of patent litigation. The article concludes that current efforts may not be as beneficial to innovation as has been advertised. Recent interpretations of the Patent Act of 1952, including CLS Bank and KSR in particular, provide adequate tools with which the courts may address the alleged abuses by NPEs.
Adam Patrick Murray (University of Washington School of Law) has posted California Falls into the Sea: Pacific Merchant Shipping Assoc. v. Goldstene & State Authority to Regulate Beyond the Territorial Sea on SSRN. Here is the abstract:
To comply with the Clean Air Act, California regulates the content of certain vessel fuels up to 21 miles beyond its seaward border. Even though this regulation governs vessels regardless of citizenship, and the U.S. already enforces a different international fuel standard in the same area, the Ninth Circuit upheld the laws because they address a dire local pollution problem. Much analysis has focused on whether the Ninth Circuit got the preemption analysis right. This paper focuses on a more fundamental question: What, if anything, gave California the authority to regulate non-citizen conduct seaward of the state line? The background details the 2011 decision in Pacific Merchant Shipping Association v. Goldstene and briefly explains the recent history of ocean sovereignty. The analysis section launches from a 1947 case holding that states have no intrinsic authority to regulate seaward of their shores. This paper then reviews the major legal turning points discussed in Goldstene to find out if any justify the geographic extension of California’s regulatory authority. The paper concludes with a proposed amendment to the Act to Prevent Pollution from Ships that preserves maritime harmony and uniformity in vessel emission standards.
Christopher J. Walker (Ohio State University (OSU) - Michael E. Moritz College of Law) has posted Faithful Agency in the Fourth Branch: An Empirical Study on Agency Statutory Interpretation (Stanford Law Review, Vol. 67, Forthcoming) on SSRN. Here is the abstract:
The Constitution vests all legislative powers in Congress, yet Congress grants expansive lawmaking authority to federal agencies. Such broad delegation creates a principal-agent problem in the modern administrative state. As positive political theorists have long explored, Congress intends for federal agencies to faithfully exercise their delegated authority, but ensuring fidelity to congressional wishes is difficult due to asymmetries in information, expertise, and preferences that complicate congressional control and oversight. Indeed, this principal-agent problem has a democratic and constitutional dimension, as the legitimacy of administrative governance may well depend on whether the unelected regulatory state is a faithful agent of Congress. Despite the predominance of lawmaking by regulation and the decades-long application of principal-agent theory to the regulatory state, we know very little about whether federal agencies are faithful agents.
This Article is the first comprehensive investigation into this black box of agency statutory interpretation. The Article reports the findings of a 195-question survey of agency rule drafters at seven executive departments (Agriculture, Commerce, Energy, Homeland Security, Health and Human Services, Housing and Urban Development, and Transportation) and two independent agencies (Federal Communications Commission and Federal Reserve). Of the 411 officials sent the survey, 128 responded, and their responses shed considerable light on the tools and approaches they use to interpret statutes and draft regulations. The findings uncovered both challenge some theories on agency statutory interpretation while reinforcing others. As Congress, courts, and scholars gain more insight into how federal agencies use interpretive rules, legislative history, and judicial deference doctrines in agency statutory interpretation, the principal-agent relationship between Congress and federal agencies should improve as should the judicial branch’s ability to monitor and faithfully constrain lawmaking in the Fourth Branch.
Nicholas Quinn Rosenkranz (Georgetown University Law Center) has posted Bond v. United States: Can the President Increase Congress's Legislative Power by Entering into a Treaty? (New York University Journal of Law and Liberty, Vol. 8, pp. 228-259, 2013) on SSRN. Here is the abstract:
The proposition that treaties can increase the power of Congress is inconsistent with the text of the Treaty Clause, the Necessary and Proper Clause, and the Tenth Amendment. It is inconsistent with the fundamental structural principle that "[t]he powers of the legislature are defined, and limited." It implies, insidiously, that that the President and the Senate can increase their own power by treaty. And it implies, bizarrely, that the President alone -- or a foreign government alone -- can decrease Congress's power and render federal statutes unconstitutional. Finally, it creates a doubly perverse incentive: an incentive to enter into foreign entanglements simply to increase domestic legislative power.
John Oberdiek (Rutgers, The State University of New Jersey - School of Law - Camden) has posted Perfecting Distributive Justice on SSRN. Here is the abstract:
Luck egalitarianism’s ascent has focused attention on the role that individual choice plays in distributive justice, for the theory invests fundamental moral significance in the distinction between choice and luck. But the theory’s supposed signal virtue has also been the target of withering criticism. Most prominently, Elizabeth Anderson has argued that the foundational role that the theory accords to the distinction between choice and luck is fatal to the theory. In what G. A. Cohen aptly calls her “broadside” against the theory, Anderson categorically – and I believe persuasively – rejects the role that luck egalitarianism accords to choice so conceived.
While Anderson and those who have followed her lead make a convincing case that the luck egalitarian account of distributive justice fails, however, it would be a mistake to dismiss the importance of choice to distributive justice on the force of those criticisms. For what luck egalitarianism valorizes and Anderson denigrates is a particular – and particularly formal – conception of choice. Indeed, it is striking that although the formal fact or authenticity of people’s choices is the sine qua non of luck egalitarianism, the actual substance or content of people’s choices is strictly irrelevant according to the view. Anderson quite rightly criticizes luck egalitarianism’s crime of commission, consisting in making so much of whether a distributive outcome can be traced to individuals’ choices. But in my view, luck egalitarianism is no less guilty of a crime of omission, for it fails to give due regard for what choices are made. Anderson, interestingly, is equally guilty of this charge. It is my aim here to substantiate these claims and thus to argue that distributive justice must take seriously the substance or content of individuals’ choices: specifically, justice demands that the state should indemnify people against distributive disadvantages that individuals suffer in virtue of choosing to pursue worthwhile activities.
My aim is to make the case for a novel conception of distributive justice, turning not on the authenticity of people’s choices but on the substantive content, and specifically the value, of their choices. This marks out my view as perfectionist. While general political perfectionism has been examined and defended in detail, its implications for distributive justice have been largely overlooked. The goal of this essay, then, is to correct that oversight by sketching a liberal perfectionist account of distributive justice.
Blake Hudson and T. M. Hardig (Louisiana State University, Baton Rouge - Paul M. Hebert Law Center and University of Montevallo) have posted Isolated Wetland Commons and the Constitution (Brigham Young University Law Review, 2014, Forthcoming) on SSRN. Here is the abstract:
Isolated wetlands provide great ecological and economic value to the United States. While some states provide protection for isolated wetlands, a great many do not. These wetlands are also left outside the ambit of federal wetland regulatory protections under the Clean Water Act, with its murky jurisdictional reach. Notwithstanding jurisdictional questions under current federal statutes, the U.S. Supreme Court has gone so far as to call into question the constitutionality of federal isolated wetland regulation. This article makes a normative argument that, in the absence of state programs providing holistic isolated wetland protections, federal action is needed. The article further provides the legal foundation — despite doubts manifested by the nation’s highest court — for the constitutionality of federal isolated wetlands regulation. This legal foundation is based upon commons analysis, which ties developers of isolated wetlands — those engaged in interstate commerce — to isolated wetlands within a single act of appropriation. Such acts of appropriation are economic transactions that in the aggregate substantially affect interstate commerce—thus meeting one of the tests established by the Supreme Court for determining the constitutionality of federal legislation.
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.
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:
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.
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.
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
Links to Online Resources
(This entry was last revised on September 28, 2014.)
The Legal Theory Bookworm recommends Minilateralism: How Trade Alliances, Soft Law and Financial Engineering are Redefining Economic Statecraft by Chris Brummer. Here is a description:
Economic diplomacy is changing. The multilateral organizations that dominated the last half of the twentieth century no longer monopolize economic affairs. Instead, countries are resorting to more modest "minilateral" strategies like trade alliances, informal "soft law" agreements, and financial engineering to manage the global economy. Like traditional modes of economic statecraft, these tools are aimed at both liberalizing and supervising international financial policy in a world of diverse national interests. But unlike before, they are specifically tailored to navigating a post-American (and post-Western) world where economic power is more diffuse than ever before. This book explains how these strategies work and reveals how this new diplomatic toolbox will reshape how countries do business with one another for decades to come.
And from the reviews:
"Chris Brummer's core message is that multilateralism is giving way to minilateralism. As the era of American hegemony draws to a close and as the institutions that once dominated the multilateral era (the WTO, the World Bank and the IMF) find themselves constrained by a more complex environment, new institutions and smaller networks are developing, much as the first small, furry mammals quietly appeared at the end of the Age of Dinosaurs. Brummer incisively connects the dots between financial, trade and monetary regulation, charting the growth of these new bodies. ... This is an eye-opening and elegantly written tour, as history and economics interact, new institutions evolve, and soft law seeks to hold the new networks together."
John C. Coffee, Jr, Adolf A. Berle Professor of Law and Director of the Center on Corporate Governance, Columbia Law School
"Chris Brummer has brought several seemingly disparate trends in the global financial system together under the useful umbrella of minilateralism. In doing so, his lively and engaging writing style gives life to the details of global governance and financial engineering. Most importantly, however, instead of just celebrating the new status quo, he identifies minilateralism as a response to globalization that when improperly managed can create as many problems as it solves."
Anne-Marie Slaughter, President and CEO, New America; and Bert G. Kerstetter '66 University Professor of Politics and International Affairs, Princeton University
"Professor Brummer ably captures the recent evolution from standard-setting and consensus building via large, multilateral institutions promoting universalist principles, to norms established via smaller coalitions focused on addressing the particularist needs of like-minded partners. Few books tackle so many topics so clearly and elegantly, and bundle them into one compelling narrative. Moving from the regulation of coins in medieval Europe to today's international money supply and the rise of the Chinese RMB, and from Venetian trade strategy to today's WTO, Minilateralism offers a compelling history and theory of how economic diplomacy works. For standard-setters looking to understand their role in the global economy, a must read from a top expert in the field."
Ethiopis Tafara, Vice President and General Counsel, International Finance Corporation, World Bank Group
The Download of the Week is Originalism as a Theory of Legal Change by Stephen E. Sachs. Here is the abstract:
Originalism is usually defended as a theory of interpretation. This Article presents a different view. Originalism ought to be defended, if at all, not based on normative goals or abstract philosophy, but as a positive theory of American legal practice, and particularly of our rules for legal change.
One basic assumption of legal systems is that the law, whatever it is, stays the same until it's lawfully changed. Originalism begins this process with an origin, a Founding. Whatever rules we had when the Constitution was adopted, we still have today -- unless something happened that was authorized to change them, under the rules as they stood at the time. We require claims of constitutional change to provide this kind of historical accounting; and a wide variety of approaches -- "conservative" and "liberal," from precedent to post-Founding practice -- are and could be defended as products of the Founders' law. These practices show an implicit commitment to a deeply originalist premise: that our law today consists of their law, the Founders' law, plus any lawful changes.
If this account is right, then what's important about the Constitution isn't what its text said, but what its enactment did -- what it contributed to American law at the Founding, as preserved to the present day. Rather than look to original intentions, original public meaning, and so on, we should look to the original law -- the law that was added by the enactment of each provision, under the legal rules governing interpretation at the time. This "original-law originalism" helps us to understand, and hopefully to resolve, longstanding constitutional debates: originalists and nonoriginalists ought to disagree about today's law, while different schools of originalists ought to disagree about the law of the past.
The claim that we still take the Founders' law as our own, as lawfully changed, is a claim about current society; it might be true or false. This Article merely argues that, if it is true, it's the best reason to be an originalist -- and, if it's false, the best reason not to.
Highly recommended. Download it while its hot!
Michael Mannheimer (Northern Kentucky University - Salmon P. Chase College of Law) has posted Gideon, Miranda, and the Downside of Incorporation on SSRN. Here is the abstract:
The U.S. Supreme Court decisions in Gideon v. Wainwright and Miranda v. Arizona are cut from the same cloth. Each was the result of the Court’s frustration with the tedium of case-by-case analysis, and so each represents a broad, bright-line rule. Gideon dictated that in all serious criminal cases, the defendant is entitled to counsel, ending the muddled, multi-factor analysis of Betts v. Brady. Miranda dictated that in all custodial interrogations, the suspect is entitled to counsel and to be informed of that right and his right to remain silent, purporting to settle three decades of lack of clarity in the jurisprudence of coercive interrogations.
And both Gideon and Miranda are widely perceived as failures. Miranda, a contentious 5-4 decision once decried by conservatives as having gone too far, has spawned a jurisprudence widely recognized by liberals as anemic. In the overwhelming majority of cases, warnings are given and a waiver obtained, and courts in such cases are highly unlikely to rule that a confession was coerced irrespective of what occurred following warnings and waiver. Gideon, once a warmly greeted unanimous decision, is now almost uniformly looked upon as representing a promise unfulfilled. In large part, this is a result of Strickland v. Washington, whose test to determine whether counsel was constitutionally ineffective prevents courts from disturbing convictions except in the most extreme cases, where counsel’s actions can have no conceivable strategic justification.
This Article argues that the perceived failings of these two doctrinal lines spring from the same source: the use of very strong presumptions that sharply constrain judicial discretion. Miranda evolved into a rule establishing a virtually irrebuttable presumption that statements resulting from a custodial interrogation are uncoerced if they are preceded by warnings and waiver. Gideon evolved into a rule establishing a virtually irrebuttable presumption that if the defendant had an attorney, that attorney performed adequately to protect the defendant’s rights. As a result of each rule, judges are largely prevented from sifting through the messy facts of individual cases.
This Article further argues that these later developments cannot be explained exclusively in crass political terms, as the result of more conservative Courts cutting back on rights granted by the liberal Warren Court. Rather, they were largely the result of the incorporation agenda of the Warren Court itself. By its nature, incorporation favors bright-line rules, as contrasted with the nebulous standards of fundamental fairness analysis. Gideon and Miranda represent two such rules. But bright-line rules typically do not entirely replace nebulous, multi-factored standards. Rather, rules often either move standards to other places in the analysis or generate the need for entirely new standards. Thus, multi-factored standards persisted after Gideon and Miranda, in the form of the tests used to determine whether counsel was reasonably effective and whether an interrogation was coercive despite the provision of Miranda warnings. But because the Court had fully bought into incorporation by the end of the Warren Court era, and because incorporation exerts a strong preference for rules over standards, the Court was required to erect further rules to support the structure it had begun to build in the 1960s. These “scaffolding” rules, in the form of the heavy presumptions mentioned above, were advanced by liberal and conservative members of the Court alike.
Daniel Peat (University of Cambridge) has posted Review of ''Partly Laws Common to All Mankind': Foreign Law in American Courts' by Jeremy Waldron (Cambridge Law Journal, Forthcoming) on SSRN. Here is the abstract:
Book review of "Partly Laws Common to All Mankind": Foreign Law in American Courts: Foreign Law in American Courts' by Jeremy Waldron.
Sara Ross (York University - Osgoode Hall Law School) has posted Your Day in 'Wiki-Court': ADR, Fairness, and Justice in Wikipedia's Global Community on SSRN. Here is the abstract:
Wikipedia has quickly become the largest volume of collected knowledge on the planet, but it is also one of the busiest centers for dispute resolution in the world. From small groups of individuals negotiating article changes on “talk pages”, to the involvement of hundreds of people in the formation of the community consensuses needed to implement new policies, to the use of binding arbitration to create final conflict resolutions, the Wikipedia community has developed a complex network of norms and rules that funnel all disagreements and intractable differences through a series of progressively more involved dispute resolution processes. I provide an overview and analysis of the dispute resolution processes used by the community and will look to the successes and limitation of these processes. A number of flaws will be identified including the ability for vocal minorities to dominate the Wikipedia community consensus. A systemic bias will be identified in the behavioural landscape of the community and, finally, it will become apparent that there is room for growth in the website’s inclusiveness, primarily through addressing the logistical realities of a potential user’s access to the time, materials, and knowledge needed to become a contributing member of the Wikipedia community.
Glenn Harlan Reynolds (University of Tennessee College of Law) has posted Don't Fear the Leaker: Thoughts on Bureaucracy and Ethical Whistleblowing on SSRN. Here is the abstract:
In this brief Essay, I argue that rather than trying to eliminate leaks entirely, which experience demonstrates is impossible, we should instead try to channel leaks so that they provide the maximum benefit to transparency while reducing risks to national security and other secrecy concerns. I also offer some preliminary suggestions about how to accomplish this goal.
My brilliant and learned colleague, Dan Ernst, has a post on Legal History Blog that is ostensably an announcement of a conference on "The New Doctrinalism" at Penn, but in fact is an eloquent and insight-packed short essay on the relationship of legal realism to doctrine. I urge you to read it.
Ming-Sung Kuo (University of Warwick School of Law) has posted In the Shadow of Judicial Supremacy: Putting the Idea of Judicial Dialogue in Its Place (Ratio Juris, Forthcoming) on SSRN. Here is the abstract:
I aim to shed theoretical light on the meaning of judicial dialogue by comparing its practice in different jurisdictions. I first examine the practice of dialogic judicial review in Westminster democracies and constitutional departmentalism in American constitutional theory, showing the tendency toward judicial supremacy in both cases. Turning finally to continental Europe, I argue that the practice of constitutional dialogue there is reconciled with its postwar tradition of judicial supremacy through the deployment of proportionality analysis-framed judicial admonition. I conclude that constitutional dialogue may take place amid the judicialization of constitutional politics, albeit in the shadow of judicial supremacy.
John Tehranian (Southwestern Law School) has posted Playing Cowboys and Iranians: Selective Colorblindness and the Legal Construction of White Geographies (University of Colorado Law Review, Vol. 86, 2015 Forthcoming) on SSRN. Here is the abstract:
This Article examines the selective invocation of colorblindness in legal and political discourse and argues that the trope has served as a powerful vehicle for the creation, perpetuation and patrolling of white geographies — spaces characterized by an implicit hierarchy privileging white racial identity. After assessing the new rhetoric of race in the Age of Obama, the Article focuses on identifying and deconstructing the modern paradox of colorblindness jurisprudence. On the one hand, the courts have increasingly hewed to a colorblind vision of the Constitution when weighing the permissibility of race-based admissions and hiring programs for traditionally disadvantaged minorities. And, yet, on the other hand, when confronted with invidious racial targeting — in the name of patrolling our borders, keeping our streets safe from crime, or protecting the homeland from acts of terrorism — the obstreperous advocates of the categorically colorblind Constitution go strikingly silent.
Drawing upon the examples of S.B. 1070 (Arizona’s “show-me-your-papers” immigration law), H.B. 2281 (Arizona’s legislation outlawing ethnic studies programs in public schools) and a series of racial profiling cases interpreting the Supreme Court’s Brignoni-Ponce decision, this Article argues that the discriminate entreaty for post-racialism has, in fact, helped consolidate subordination practices in critical social, economic and political spaces. In the end, therefore, while we are colorblind in theory, we are color bound in fact. Government regularly uses race in a variety of troubling contexts. Indeed, the very same courts that tell us that we have a colorblind Constitution have also held that one’s Latino appearance is a relevant factor in determining reasonable suspicion for an immigration sweep, one’s Middle Eastern heritage is a perfectly suitable consideration when ascertaining whether transportation of a passenger is ‘inimical to safety,’ and one’s African-American descent can serve as an acceptable indicia of criminality without running afoul of the Fourth Amendment. At a minimum, these practices call into question our fealty to notions of colorblindness that have dominated legal and political discourse in recent years. More perniciously, however, the resulting uneasy gestalt perpetuates long-standing inequities (and forges new ones) by empowering a racialized social geography that continues to privilege white identity.
Courtney G. Joslin (University of California, Davis - School of Law) has posted Federalism and Family Status (Indiana Law Journal, Forthcoming) on SSRN. Here is the abstract:
The myth of family law’s inherent localism is sticky. In the past, it was common to hear sweeping claims about the exclusively local nature of all family matters. In response to persuasive critiques, a narrower iteration of family law localism emerged. The new, refined version acknowledges the existence of some federal family law but contends that certain “core” family law matters — specifically, family status determinations — are inherently local. I call this family status localism. Proponents of family status localism rely on history, asserting that the federal government has always deferred to state family status determinations. Family status localism made its most recent appearance (although surely not its last) in the litigation challenging Section 3 of DOMA. This Article accomplishes two mains goals. The first goal is doctrinal. This Article undermines the resilient myth of family law localism by uncovering a long history of federal family status determinations. Although the federal government often defers to state family status determinations, this Article shows that there are many circumstances in which the federal government instead relies on its own family status definitions. The second goal of this Article is normative. Having shown that Congress does not categorically lack power over family status determinations, this Article begins a long overdue conversation about whether the federal government should make such determinations. Here, the Article brings family law into the rich, ongoing federalism debate — a debate that, until now, has largely ignored family law matters. In so doing, this Article seeks to break down the deeply-rooted perception that family law is a doctrine unto itself, unaffected by developments in other areas, and unworthy of serious consideration by others.
Caitlin E. Borgmann (CUNY School of Law) has posted Abortion Exceptionalism and Undue Burden Preemption (Washington and Lee Law Review, Vol. 71, p. 1047, 2014) on SSRN. Here is the abstract:
This Article discusses the tendency of some lower federal courts to interpret the undue burden standard of Planned Parenthood of Southeastern Pennsylvania v. Casey as essentially occupying the field of potential constitutional claims whenever abortion is involved. Thus, where litigants have alleged constitutional claims other than, or in addition to, undue burden violations, courts have either changed how they normally analyze these constitutional claims or they have even completely foreclosed the application of other doctrines on the grounds that the undue burden standard subsumes or displaces these claims. This Article illustrates this phenomenon in the context of three types of non-undue-burden claims that have been asserted against some abortion restrictions: bodily integrity, equal protection, and the right against compelled speech. Undue burden preemption, I argue, flies in the face of the Court’s recognition that “[c]ertain wrongs...can implicate more than one of the Constitution’s commands.” Where multiple constitutional violations are alleged, the Court’s normal approach is to examine each constitutional provision in turn. There is one well-established exception to this general rule, the “Graham doctrine.” This doctrine provides that, when a litigant asserts a substantive due process claim, and where the Court finds that another more specific constitutional provision applies, the Court analyzes the claim under the more specific provision to the exclusion of substantive due process. This Article argues that undue burden preemption, far from being justified by the Graham doctrine, turns that doctrine on its head.
Andrew Koppelman (Northwestern University School of Law) has posted Passive Aggressive: Scalia and Garner on Interpretation (Boundary 2: An International Journal of Literature and Culture, Vol. 41, Summer 2014) on SSRN. Here is the abstract:
Antonin Scalia’s coauthored treatise on legal interpretation is also a melodrama, with sharply drawn good guys and bad guys. The hero is the Faithful and Impartial Judge, the servant of Democracy. The argument is weak and inconsistent with Scalia’s actual practice as a judge. The book nonetheless nicely accomplishes what it is trying to do. Scalia is one of the authors, to be sure, but he is also the protagonist of a narrative. The author’s preeminent concern is seeing to it that you perceive the protagonist as the author intends: as the champion of judicial restraint, against all those liberal oligarchs. If you buy the story of Virtuous Scalia, that empowers Judicial Activist Scalia.
Nicholas Quinn Rosenkranz (Georgetown University Law Center) has posted Bond v. United States: Concurring in the Judgment (Cato Supreme Court Review, pp. 285-306, 2014) on SSRN. Here is the abstract:
Bond v. United States presented the deep constitutional question of whether a treaty can increase the legislative power of Congress. Unfortunately, a majority of the Court managed to sidestep the constitutional issue by dodgy statutory interpretation. But the other three Justices — Scalia, Thomas, and Alito — all wrote important concurrences in the judgment, grappling with the constitutional issues presented. In particular, Justice Scalia’s opinion (joined by Justice Thomas), is a masterpiece, eloquently demonstrating that Missouri v. Holland is wrong and should be overruled: a treaty cannot increase the legislative power of Congress.
Robert Anderson IV (Pepperdine University School of Law) & Jeffrey Manns (George Washington University Law School) have posted The Delaware Delusion (North Carolina Law Review, Forthcoming) on SSRN. Here is the abstract:
Delaware dominates the market for company incorporations, which places one of America’s smallest states in charge of determining the corporate governance framework for most public and private companies. The unresolved question is the basis for Delaware’s appeal compared to other states. We set out to test empirically the two leading schools of thought which hold that Delaware’s appeal lies either in its superior legal regime that enhances shareholder value better than other states or in Delaware’s protectionist appeal in adding “managerial value” by entrenching corporate managers at shareholders’ expense. We apply an innovative technique to show empirically that both the “race to the top” and “race to the bottom” schools of thought are based on false assumptions because Delaware law adds no value compared to other states. Our “merger reincorporation” approach leverages the fact that each inter-state merger forces the acquirer to assess the merits of Delaware law when choosing the state of incorporation for the surviving company. This fact creates the opportunity to gauge the market’s assessment of the value of Delaware law relative to that of other states by comparing the pre- and post-acquisition value of acquirers and targets in a cross-section of intra- and inter-state mergers. We analyzed an eleven year data set of mergers (from 2001 to 2011) and found that financial markets place no economically consequential value on Delaware law relative to that of other states, which contradicts both of the leading schools of thought. This result suggests that lawyers are engaging in default decision-making based on Delaware’s past preeminence, rather than actively weighing the value-added Delaware and other states offer to their clients. Lawyers appear to turn to Delaware because it is the law they are most familiar with; they assume markets value Delaware law; and they regard Delaware as a safe default which would trigger no pushback from corporate managers. To break up herding effects among lawyers and spur lawyers to assess this opportunity to add value to transactions, we argue policymakers should introduce “shareholder say” on the state of incorporation. Empowering shareholders to vote on retaining or changing the state of incorporation would subject this decision to greater scrutiny and give shareholders the opportunity to address this principal-agent failure. This approach would dampen Delaware-centric herding and foster greater state competition.
John D. Bessler (University of Baltimore - School of Law) has posted Foreward: The Death Penalty in Decline: From Colonial America to the Present (Criminal Law Bulletin, Vol. 50, No 2, 2014, pp. 245-262) on SSRN. Here is the abstract:
This Article traces the history of capital punishment in America. It describes the death penalty's curtailment in colonial Pennsylvania by William Penn, and the substantial influence of the Italian philosopher Cesare Beccaria -- the first Enlightenment thinker to advocate the abolition of executions -- on the Founding Fathers' views. The Article also describes the transition away from "sanguinary" laws and punishments toward the "penitentiary system" and highlights the U.S. penal system's abandonment of non-lethal corporal punishments.
Martijn W. Hesselink (University of Amsterdam - Centre for the Study of European Contract Law (CSECL)) has posted Post-Private Law? (Varieties of European Economic Law and Regulation, Liber Amicorum for Hans Micklitz, K.P. Purnhagen & P. Rott (eds.), pp. 31-43) on SSRN. Here is the abstract:
In 2012, Hans Micklitz presented a report (Gutachten) for the German lawyers’ association (Deutscher Juristentag), which was recently published also in English, in which he asked the question: ‘Do consumers and businesses need a new architecture of consumer law?’ Micklitz answers the question of whether there is a need for a new design of consumer law positively. Consequentially, he proposes to reshape consumer law into a special law. In this short contribution to a Festschrift in his honour, I take issue with that proposal and with the main reasons Micklitz offers in its support.
Brian S. Clarke (Charlotte School of Law; Washington & Lee University School of Law) has posted ObamaCourts? The Impact of Judicial Nominations on Court Ideology (Journal of Law and Politics, Vol. 30, No. 2, Forthcoming ) on SSRN. Here is the abstract:
The federal Courts of Appeals are the courts of last resort for the vast majority of contested legal issues and decide the cases that are of the greatest importance for the development of the law in the United States. Presidents seek to leave their political and ideological marks on these courts through their judicial nominations. But what happens when a new president nominates judges to a Court of Appeals with a collective ideology different than his or her own? What near term effect do these new judges have on the overall ideology of the Courts of Appeals on which they serve? Given the body of precedent each Court of Appeals builds over years and decades, can new judges have a meaningful impact on the overall ideology of a Court of Appeals in the near term?
This paper seeks to begin answering these questions by engaging in the first ever quantitative analysis of the near term impact of a president’s successful judicial nominees on the ideology of a federal Court of Appeals. Specifically, this study analyzes the outcomes of all of the labor and employment law decisions of the U.S. Courts of Appeals for the Fourth Circuit (the study group) and the Eighth Circuit (the control group) from 2004, 2006, 2008, 2010, and 2012 to determine what impact President Obama's six (6) successful first-term nominees to the Fourth Circuit bench had on that court's collective ideology.
The results of this study show a statistically significant shift in the Fourth Circuit's overall ideology toward the stereotypically "liberal" end of the ideological spectrum in 2010 and 2012 as President Obama's nominees took their seats. As these results illustrate, new judges can have a significant impact on the ideology of a Court of Appeals in the near term and can even alter the court’s overall ideology.
W. Kip Viscusi (Vanderbilt University - Law School) has posted Pricing Lives for Corporate Risk Decisions (Vanderbilt Law Review, May 2015, Forthcoming) on SSRN. Here is the abstract:
The 2014 GM ignition switch recall highlighted the inadequacies of the company’s safety culture and the shortcomings of regulatory sanctions. The company’s inattention to systematic thinking about product safety can be traced to the hostile treatment of corporate risk analyses by the courts. This Article proposes that companies place a greater value on lives at risk than they have in previous risk analyses and that they be given legal protections for product risk analyses. Companies’ valuations of fatality risks and regulatory penalties have priced lives too low. The guidance provided by the value of a statistical life, which is currently $9.1 million for transportation policies, establishes an appropriate price for lives from the standpoint of corporate safety decisions, regulatory sanctions, and punitive damages. The valuation of defect-related deaths may, however, be even greater than that of preventing fatalities through safety improvements so that the value of a statistical life may establish a floor for the appropriate penalties for safety-related defects.
Christopher Essert (Queen's University Faculty of Law) has posted A Theory of Legal Obligation (Forthcoming in Sciaraffa and Waluchow, eds, The Legacy of Ronald Dworkin) on SSRN. Here is the abstract:
I propose a theory of legal obligation, which I call the Simple Theory, according to which for me to be legally obligated not to do some action is just for it to be the case that, from the legal point of view, the reasons for me not to do that action defeat any reasons for me to do it. I show how the Simple Theory accounts for some central intuitions about the normativity and preemptiveness of legal obligation, how it dovetails nicely with recent work about precedential reasoning, and how it responds to Dworkin's arguments about legal principles in Model of Rules I. I also discuss the Simple Theory in light of so-called one-system views about the nature of law such as that defended by Dworkin in Justice for Hedgehogs, and close with some thoughts about normative powers and the value of law. This is to be a chapter in a forthcoming collection on the legacy of Ronald Dworkin.
Randy J. Kozel (Notre Dame Law School) has posted Second-Best Stare Decisis on SSRN. Here is the abstract:
If Supreme Court Justices differ over the proper interpretation of the Constitution, can they nevertheless agree about the treatment of constitutional precedent?
The Supreme Court’s existing doctrine of stare decisis has much to recommend it. Yet the Court’s jurisprudence is confounded by the Justices’ varying interpretive philosophies. No doctrine of stare decisis can succeed unless it finds a way to mitigate the effects of methodological disagreement. For stare decisis to promote the stability and impersonality of law, it requires an analytical framework that is tailored for operation in a second-best world of interpretive pluralism.
This Article develops a new theory of second-best stare decisis. Second-best stare decisis emphasizes doctrinal factors whose content does not depend on adherence to any particular interpretive methodology. The second-best approach also incorporates structural solutions, such as supermajority voting requirements, to promote collaboration across methodological lines. Finally, second-best stare decisis pursues compromises that emphasize the common ground among divergent methodologies in their treatment of judicial precedent. The result is a reconceptualized doctrine of stare decisis that seeks to transcend interpretive disputes and underscore the Court’s status as a unified institution working across time — an institution that is something different, and something greater, than its individual members.
Andrew Kull (University of Texas Law School) has posted A Consideration Which Happens to Fail (Osgoode Hall Law Journal, 51(3), Forthcoming) on SSRN. Here is the abstract:
Recent English commentary employs the timeworn expression “failure of consideration” in an unprecedented way. It can now designate an expansive residual category of grounds for restitution: at its fullest, “the failure to sustain itself of the state of affairs contemplated as a basis” for a transaction by which one party is enriched at the expense of another. (Because the result is plainly to incorporate a civilian-style “absence of basis” test within common-law unjust enrichment, the new “failure of consideration” carries an incidental implication for Canadian restitution law: if Garland v. Consumers’ Gas really announced a shift from common-law “unjust factors” to civilian “absence of basis,” the change may not make that much difference.) Contrasting approaches to “failure of consideration” illustrate a broader difference in attitudes toward “restitution in a contractual context”: English law looks “off the contract” in situations where US law finds answers in the contract itself.
Ben Boer and Ian Hannam (University of Sydney - Faculty of Law and University of New England, Australian Centre for Agriculture and Law) has posted Developing a Global Soil Regime (International Journal of Rural Law and Policy, 2014, Forthcoming) on SSRN. Here is the abstract:
From the 1960s onwards, the global community became much more aware of the phenomena of air and water pollution and land contamination. Moreover, over the last three decades, the issues of climate change, loss of biodiversity, desertification, drought, and land degradation have become much more prominent. Each of these phenomena is often linked in one way or the other. However, while biodiversity loss and climate change have garnered close attention in the realm of international environmental law, soil, as the primary basis for all terrestrial biodiversity, has until recently been largely ignored in international fora and by national governments, and represents a substantial gap in global policy making and international legal instruments on the environment. Soil, as a vital biological resource demands attention on the same level as biological diversity and climate change. The effects of the increase in human population on the world, especially in terms of the decline in food and water security, indicates that soil has ecological limits and that these limits vary according to the variations within different ecosystems and cultural relationships with soil. There is an increasing imbalance in the production of food due to the difference in the rate of degradation of soils and their functions and the rate of their regeneration. The question of food security has gained extra focus with the appointment in 2014 of the UN Special Rapporteur on the Right to Food.
There is an urgent need to promote a change in attitude of those who work in relevant international institutions, as well as national government officials and legislators about the vital importance of soil. They need to be reminded that soil is a basic physical foundation of human development and plays a major role in sustaining all societies though agriculture, grazing, forestry and maintenance of water sources. To avoid the catastrophic effects of serious and widespread land degradation, national and international legal frameworks for the protection of land and soil are required that are based on a clear understanding of the technological, sociological, economic and ecological issues that affect soil. National and international environmental law regimes to promote the conservation and sustainable use of soils must be seen as an integral part of the overall framework of environmental law, policy and management. This article explores the elements that should form the basis of a global instrument for the conservation and sustainable use of soils and sets out the premise for the community of nations to support the negotiation and drafting of such an instrument. It does so in light of the recent discussion on the introduction of a specific provision in the United Nations Sustainable Development Goals on the question of land degradation and land degradation neutrality and the work of the United Nations Independent Expert on Human Rights and the Environment, and the appointment in 2014 of the UN Special Rapporteur on the Right to Food.
Sonja West (University of Georgia School of Law) has posted The Stealth Press Clause (48 Ga. L. Rev., 729 (2014)) on SSRN. Here is the abstract:
When it comes to the cases that most affect the press, the Supreme Court seems to be taking a one-for-all-and-all-for-one stance. The reasons for this approach are varied. One suggestion is that the Court is adopting a reading of the Press Clause that protects the technology of mass communication and not particular speakers. Another sees it as in keeping with a view of the Press Clause that simply protects an individual right for everyone — not just a select group — to publish his or her speech. A third view is that it is a practical necessity to lump all speakers together in order to avoid a messy definitional problem of who does and who does not receive certain rights or protections.
In this piece, however, I pause to push back on the conventional wisdom that the Court actually has refused to view the press as constitutionally special. Contrary to what we have been told, I contend the Supreme Court has indeed recognized the press as constitutionally unique from nonpress speakers. The justices have done so implicitly and often in dicta, but nonetheless they have continually and repeatedly treated the press differently. While rarely acknowledged explicitly, this “Stealth Press Clause” has been hard at work carving out special protections for the press, guiding the Court’s analysis and offering valuable insights into how we should view the contributions of the press.