Legal Theory Blog

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

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

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

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

Highly recommended.  Download it while its hot!

Legal Theory Lexicon: Positive and Normative Legal Theory

Introduction

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

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

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

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

Positive Legal Theory

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

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

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

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

Normative Legal Theory

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

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

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

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

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

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

The Intersection of Positive and Normative Theory

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

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

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

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

Conclusion

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

Related Entries

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

Bibliography

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

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

Legal Theory Bookworm

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

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

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

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

Download of the Week

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

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

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

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

Highly recommended. Download it while its hot!

Van Baren on the Targeted Killing of Anwar Al-Awlaki

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

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

Brettschneider on Rousseau on Punishment (Updated with New Link)

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

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

Tagari on Personal Systems of Family Law & Human Rights

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

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

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

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

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

Dedek on Medieval Scholastic Jurisprudence

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

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

Thorburn on the German Airliner Case & Constitutional Theory

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

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

Fellowship Announcement: Intellectual Property at Columbia

Kernochan Center Intellectual Property Fellowship

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

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

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

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

Columbia is an equal opportunity and affirmative action employer.

Steiker on Garland on Capital Punishment

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

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

Almendares & Le Bihan on Judicial Review as Democracy Enhancing

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

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

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

Raskolnikov on the Limits of Economic Analysis of Tax Law

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

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

Highly recommended.

Kolber on Smooth & Bumpy laws

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

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

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

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

Highly recommended. Download it while its hot!

Polinsky & Shavell on Optimal Damages & Litigation Costs

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

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

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

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

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

Barker on P2P File Sharing & Music Purchases

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

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

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

Ponomarev on Internet Regulation & Human RIghts

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

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

Wright & Diveley on Expert Agencies & Generalist Judges

Joshua D. Wright (George Mason University School of Law) & Angela Diveley have posted Do Expert Agencies Outperform Generalist Judges? Some Preliminary Evidence from the Federal Trade Commission on SSRN. Here is the abstract:

In the context of U.S. antitrust law, many commentators have recently called for an expansion of the Federal Trade Commission's adjudicatory decision-making authority pursuant to Section 5 of the FTC Act, increased rulemaking, and carving out exceptions for the agency from increased burdens of production facing private plaintiffs. These claims are often expressly grounded in the assertion that expert agencies generate higher quality decisions than federal district court judges. We call this assertion the expertise hypothesis and attempt to test it. The relevant question is whether the expert inputs available to generalist federal district court judges translate to higher quality outputs and better performance than the Commission produces in its role as an adjudicatory decision-maker. While many appear to assume agencies have courts beat on this margin, to our knowledge, this oft-cited reason to increase the discretion of agencies and the deference afforded them by reviewing courts is void of empirical support. Contrary to the expertise hypothesis, we find evidence suggesting the Commission does not perform as well as generalist judges in its adjudicatory antitrust decision-making role. Furthermore, while the available evidence is more limited, there is no clear evidence the Commission adds significant incremental value to the ALJ decisions it reviews. In light of these findings, we conclude there is little empirical basis for the various proposals to expand agency authority and deference to agency decisions. More generally, our results highlight the need for research on the relationship between institutional design and agency expertise in the antitrust context.

Highly recommended.

Robinson on Conditions of Lawlessness & Natural Law

Paul H. Robinson (University of Pennsylvania Law School) has posted Natural Law & Lawlessness: Modern Lessons from Pirates, Lepers, Eskimos, and Survivors on SSRN. Here is the abstract:

The natural experiments of history present an opportunity to test Hobbes' view of government and law as the wellspring of social order. Groups have found themselves in a wide variety of situations in which no governmental law existed, from shipwrecks to gold mining camps to failed states. Yet the wide variety of situations show common patterns among the groups in their responses to their often difficult circumstances. Rather than survival of the fittest, a more common reaction is social cooperation and a commitment to fairness and justice, although both can be subverted in certain predictable ways. The absent-law situations also illustrate the dependence of social order and cooperation on a group's commitment to justice.

The insights from the absent-law situations have implication for several modern criminal justice issues, including the appropriate distributive principle for criminal liability and punishment, restorative justice programs, the movement to promote non-incarcerative sanctions, transitional justice and truth commissions, the use-of-force rules under international law, the procedures for fairness in criminal adjudication, and crime-control policies in fighting organized crime and terrorism.

Recommended.

Tillman on Teachout & Amar on the Foreign Emoluments Clause

Seth Barrett Tillman (National University of Ireland, Maynooth (NUI Maynooth) - Faculty of Law) has posted Either/Or: Professors Zephyr Rain Teachout and Akhil Reed Amar – Contradictions and Reconciliation on SSRN. Here is the abstract:

The Foreign Emoluments Clause is a constitutional backwater. So much so, that there is no substantial discussion of this clause in any federal adjudication (although the Office of Legal Counsel has regularly opined on it). Backwaters, however, have an unappreciated and significant virtue. They allow us to discuss our precommitments, assumptions, and methodological positions free from the distractions of the great political issues of the day – issues which naturally tend to divide us in ways which may be unconnected to the merits. Simply put, backwaters allow us to freely debate the merits of contestable worldviews. That is what I propose to do here.

Both Professors Zephyr Rain Teachout and Akhil Reed Amar have discussed the Foreign Emoluments Clause in their recent publications. Amar is an originalist, perhaps the most influential American originalist of the late twentieth century; Teachout, although, perhaps, not an originalist per se, regularly writes in an originalist mode – parsing drafting history, text, structure, precedent, and history – in search of a public (or, perhaps, an intended) meaning contemporaneous with ratification. Both Teachout and Amar might be fairly characterized as left-of-center, but both are also clearly in the academic mainstream. Both Teachout and Amar’s publications are actively cited, if not widely acclaimed, and my own view is that citations and public acclaim vastly underestimate the influence of these two scholars. (However, as do all mere humans, both Teachout and Amar stray into some truly puzzling errors from time to time.) Indeed, there are now several publications that cite both Teachout and Amar.

Interestingly, each takes a position in regard to the Foreign Emoluments Clause which is in clear conflict with the position taken by the other. The stakes here involve more than the contours, scope, purpose, and original public meaning of the Foreign Emoluments Clause (which, in itself, is not an entirely minor thing).

If Amar is correct, then Teachout must be wrong, and it follows that Teachout’s views in regard to congressional power to limit election-related speech and spending are (if not flatly wrong) something that must be carefully reconsidered in light of Amar’s contrary position.

On the other hand, if Teachout is correct, then Amar must be wrong, and it follows that Amar’s views in regard to constitutional structure, intratextualism, and the meaning of coordinate language in other constitutional clauses are (if not plainly wrong) something that must be closely reexamined in light of Teachout’s contrary teachings. This paper will explore that conflict, and, then, I will attempt to reconcile the two positions.

Interesting!

Marmor on Conceptual Analysis in Law

Andrei Marmor (University of Southern California - Gould School of Law) has posted Farewell to Conceptual Analysis (in Jurisprudence) on SSRN. Here is the abstract:

I have two main purposes in this essay: First, to show that conceptual analysis is not nearly as central to legal philosophy as typically assumed. The main methodological thrust of analytical jurisprudence, and in particular of legal positivism, is reductionism, not conceptual analysis. Consequently, the main objections to legal positivism are best seen as arguing against the possibility of reduction. Second, I aim to show that the interpretivist challenges to analytical jurisprudence bark up the wrong tree in this respect, and actually fail to engage with the methodological stance they aim to replace. Along the way I offer a partial defense of reductionism and the limited essentialism that comes with it.

And from the paper:

The type of reduction discussed in legal philosophy, however, is not of this semantic kind.18 Rather, it is a metaphysical or constitutive form of reduction. The idea of a metaphysical reduction is to show that a distinct type of phenomenon is actually constituted by, and fully reducible to, some other, more foundational type of phenomenon. In our case, the idea is to show that law is constituted by social practices that can be fully explained by the way people actually behave, the kind of beliefs they share about their behavior, and the attitudes and dispositions that they exhibit in the relevant contexts. In short, we try to reduce one type of facts to some other, more foundational type of facts.

Constitutive or metaphysical reduction is not about concepts. It is about the nature of things – that is, about the actual properties of objects or phenomena and their constitutive elements. Consider, for example, the debates about the reduction of biology to chemistry and physics. The question here is whether we can fully explain the phenomena manifest in the biological sphere in terms of chemical reactions and physical properties. This is not a philosophical debate about the meaning of concepts deployed in the biological sciences. The success of a reductionist explanation is not determined by how successful the theory is in explaining our use of language. The criteria of success are determined by the question of how complete an explanation of biological phenomena in terms of chemical and physical theories can be. The explanation we seek is of the observable phenomena, not of the use of concepts in a given setting.

Highly recommended.

Rothstein on Schwartz on the Theory of Evidence

Paul F. Rothstein (Georgetown University Law Center) has posted Response Essay: Some Observations on Professor Schwartz's 'Foundation' Theory of Evidence (Georgetown Law Journal Online, Vol. 100, 2012) on SSRN. Here is the abstract:

Professor David Schwartz's A Foundation Theory of Evidence posits an intriguing new way to look at Evidence. It asserts that offered evidence must meet a tripartite requirement before it can be relevant. The tripartite requirement is that the evidence must be "case-specific, assertive, and probably true." His shorthand for the tripartite requirement is that evidence must be "well founded." Hence, he calls his theory the "foundation theory of evidence" and claims this foundation notion is so central to evidence law that it eclipses in importance even relevance itself. The tripartite requirement inheres in the very concept of evidence and relevancy, he says, and although there are only a few evidentiary areas where the Federal Rules of Evidence and their state progeny specifically require something analogous to this requirement, he finds the requirement almost universally applied in trials across the country by judges' rulings (going by a variety of other names) and in decisions by parties about what evidence to offer as a practical matter.

This response essay addresses two of Schwartz's most intriguing and central contentions: (1) that almost all evidence must be "case-specific," "assertive," and "probably true"; and (2) that scholars who say there is no such thing as conditional relevance - that it is an incoherent concept - are wrong: conditional relevance exists and is widespread. The two are linked in Professor Schwartz's view because it is the tripartite requirement in (1) that often make evidence "conditionally relevant" as asserted in (2) - that is, irrelevant unless something is shown to establish that it complies with the elements of the tripartite requirement.

Recommended.

Traum on Immigration Law & Due Process

Anne R. Traum (University of Nevada, Las Vegas, William S. Boyd School of Law) has posted Constitutionalizing Immigration Law on its Own Path (Cardozo Law Review, Vol. 33, No. 2, p. 491, 2011) on SSRN. Here is the abstract:

Courts should insist on heightened procedural protections in immigration adjudication. They should do so under the Fifth Amendment’s Due Process Clause rather than by importing Sixth Amendment protections from the criminal context. Traditional judicial oversight and the Due Process Clause provide a better basis than the Sixth Amendment to interpose heightened procedural protections in immigration proceedings, especially those involving removal for a serious criminal conviction. The Supreme Court’s immigration jurisprudence in recent years lends support for this approach. The Court has guarded the availability of judicial review of immigration decisions. It has affirmed that courts are the arbiters of constitutional issues (including due process) and criminal statutory interpretation. The Court has accorded agency deference on matters of agency expertise, which does not include interpretation of criminal law and convictions. And the Court has created generally applicable procedural protections in order to minimize court interference with substantive immigration policy. Guided by these core concepts, courts are poised to develop procedural protections for immigrants in removal proceedings that are tailored to the institutional interests at stake and protective of immigrants. By constitutionalizing immigration on its own path, courts may also avoid some of the pitfalls of a Sixth Amendment–based criminal-rights model.

Adler on Fact Finding in Gay Rights Litigation

Libby Adler (Northeastern University - School of Law) has posted Just the Facts: The Perils of Expert Testimony and Findings of Fact in Gay Rights Litigation (Unbound: Harvard Journal of the Legal Left, Vol. 7, No. 1, pp. 1-54, 2011) on SSRN. Here is the abstract:

Judge Vaughn Walker made eighty separate factual findings in Perry v. Schwarzenegger, many of them facts about gay people drawn from the testimony of plaintiffs’ experts – and many are contradictory. The plaintiffs called experts who testified that gay people are virtually indistinguishable from straight people, arguing that “like things should be treated alike.” The plaintiffs also called witnesses, however, who depicted gay people as a discrete class, defined by a coherent and consistent set of distinguishing traits. Plaintiffs used expert testimony to demonstrate that gay people have a higher prevalence of depression, substance abuse and suicidality due to the stress of anti-gay discrimination. Plaintiffs also called experts, however, to substantiate the psychological fitness of gay people to maintain stable and satisfying relationships and raise well-adjusted children. The paper shows how pro-gay litigators and a sympathetic judge relied on contradictory images of gay people and imports a key insight from queer theory to illuminate the peril of such an unstable representation: None of these “facts” is logically tethered to the pro-gay cause. The paper also argues that expertise has a history of performing a depoliticizing function in law, one that can help to legitimate counter-majoritarian action. Rights perform a similar function. Both are to be distinguished sharply from politics, which is ordinarily reserved for legislative arenas. To justify a judicial intrusion into a state marriage law requires a discourse of neutrality, which both scientific expertise and constitutional rights argumentation provide. The two discourses converge in Perry to powerful legitimating effect, but they leave us with a highly unstable, internally riven gay subject. The importation of queer insights into legal analysis, especially insights regarding the chronic instability of the gay subject, can help us to understand the likely recurrent consequences of a law reform strategy focused on “equal rights,” especially in judicial settings, which elicit discourses such as expertise and rights precisely because they aspire to neutral legal correctness.

Program Announcement: Masters Degree in Legal Philosophy at Rutgers

ANNOUNCEMENT
MASTERS DEGREE IN LEGAL PHILOSOPHY

The Rutgers University (New Brunswick) Philosophy Department, in conjunction with the Rutgers Camden and Newark Law Schools, is now accepting applicants for a coordinated degree program: a Master’s in Legal Philosophy.

Applicants must have completed at least one year of law school and must either be enrolled in law school or have completed their J.D. An application should include (1) a letter by the student indicating why (s) he is interested in the M.A.; (2) a transcript from the schools the applicant is attending or has attended; (3) one or more letters of reference that speak to the applicant’s ability to do work in philosophy or legal theory; and (4) a writing sample that demonstrates the applicant’s proficiency in philosophy or legal theory. Applicants need not take the GREs; the LSAT will suffice. International applicants should include a TOEFL score.

To be awarded the M.A. a student must successfully complete 30 credits and write a thesis. Up to 8 of the 30 credits can be transferred from the applicant’s law school. The law courses that would be counted toward the M.A. must be approved by the Program Director in the Department of Philosophy. Over a two-semester period of study in New Brunswick, persons admitted would consult with the Program Director on a plan of study that consist of at least 5 philosophy courses (for a total of 15 or 16 credits) and a Master’s Thesis jointly supervised by the Program Director and an appropriate faculty member in the Philosophy Department or at one of the Rutgers Law Schools. It is realistic to expect that diligent students would be able to complete the degree program in one year (and perhaps an additional summer to finish the thesis).

The Rutgers Philosophy Department is regularly ranked among the very best in the world and includes many internationally known specialists in several central areas of philosophy. The Department and its faculty can be accessed at the Department’s website at http://philosophy.rutgers.edu/

Douglas Husak, the current Program Director, is Editor-in-Chief of two leading journals in philosophy of law: Law and Philosophy and Criminal Law and Philosophy (co-edited with Antony Duff). The faculty at both the Camden and Newark Law Schools include several of the nation’s leading scholars in the field of law and philosophy, and Camden is the home of the Institute for Law and Philosophy: see http://lawandphil.rutgers.edu/welcome-institute-law-and-philosophy

Applications should be sent to http://gradstudy.rutgers.edu/apply.shtml and supplementary material should be uploaded through https://grad.admissions.rutgers.edu/Credential/ .

Inquiries about the program can be directed to Prof. Husak or Ms. Mercedes Diaz, the Graduate Program Administrator.

Horwitz on Ties in Church-State Conflicts (and elsewhere)

Paul Horwitz (University of Alabama School of Law) has posted Law, Religion, and Kissing Your Sister on SSRN. Here is the abstract:

This paper was written as a commentary chapter for a forthcoming book titled "Matters of Faith: Religious Experience and Legal Response" (Austin Sarat, ed.). The book is based on a conference held at the University of Alabama School of Law in October 2011. Five papers were presented at that conference: on the principal issues discussed, the result was a stark 2-2 tie (with the fifth paper, by a historian, valuable in itself but not taking sides on the disputed matters.) Given the normative orientation of legal scholars, the normal course of business would be to say who is right. But this comment instead focuses on a broader but perennial question: the nature of "tie games" in law and legal scholarship in the area of law and religion.

Church-state conflicts, given the contested and incommensurable issues they involve, are particularly prone to end in ties. That fact has recently encouraged some scholars (myself included) to focus more on the "tragic" nature of church-state law, and the moral remainders that are inevitable in this field, than on the "comic" search for a single value or approach that might resolve some of these disputes once and for all. From that perspective, rather than try to "break the tie," there may be more value in considering why church-state issues are prone to end in ties, and what if anything we ought to do or feel about it.

In this short paper, I first examine the principal papers and oral discussion at the Matters of Faith conference, which dealt primarily with two issues - the Hosanna-Tabor litigation and the ministerial exception, and the question of whether government may strip tax-exempt status and other subsidies or privileges from churches that engage in "invidious discrimination" - and argue that they end clearly in a deadlock. I then discuss several common methods employed by scholars in the field to resolve these deadlocks, and argue that they are all unsuccessful. The tie remains. Finally, for purposes of analogy, I address another arena in which ties, and the breaking of ties, is common: sports. The similarities and differences between sports and law offer a useful way of thinking about the deadlock in law and religion. I argue that in law and religion, unlike in sports, tiebreaking mechanisms are both necessary and impossible. I conclude with some thoughts on what we might do to at least reduce the moral remainders inherent in church-state conflict, and find ways of keeping the participants involved in the law "game" without creating or further alienating illiberal groups within society. The paper is still in draft, and comments are welcome.

Very interesting & recommended.

Gallanis on Trust Law

Thomas P. Gallanis (University of Iowa - College of Law) has posted The New Direction of American Trust Law (Iowa Law Review, Vol. 97, No. 1, 2011) on SSRN. Here is the abstract:

This article is a revised version of the Shirley A. Webster Lecture in Wealth Transfer Law given by the author at the University of Iowa. The article explores the central tension in the law of trusts between the rights and interests of the settlor and the rights and interests of the beneficiaries. In navigating these, the law of trusts has at times taken a position more favorable to the settlor and at other times a position more favorable to the beneficiaries. The article offers a descriptive and normative analysis of where American trust law has been and where it is going. The article argues that American trust law, which had previously moved in the direction of favoring the settlor, is moving in a new direction, with a more balanced recognition of the rights and interests of the beneficiaries. The article further argues that this new direction is appropriate and welcome.

Hamilton on Sex Crimes & Mental Disorders

Melissa Hamilton (University of South Carolina - School of Law) has posted The Law and Paraphilias: Sex Crimes (Re)Constructed as Mental Disorders on SSRN. Here is the abstract:

The contemporary policy perspective underlying criminal and civil laws regarding sex crimes is based on a presumption of disease. The law has turned to psychiatry for evidence that sexual offenders suffer from mental disorders that can explain their offending. Thus, mental health professionals regularly testify as experts in legal cases about the existence of paraphilias. Paraphilias generally are considered mental disorders of sexual deviance that are dysfunctional, such as pedophilia, sexual sadism, exhibitionism, frotteurism, and the more amorphous category of “paraphilia not otherwise specified.” In the law, paraphilia diagnoses can have significant consequences to the liberty and privacy interests of the individuals being evaluated, particularly in relation to the application of sexual predator laws and in sentencing and parole decisions. Unfortunately, for a variety of reasons, mental health experts are commonly assessing paraphilias based almost exclusively on the individual’s history of sexual offenses. As a result, sex crimes have become conflated with diagnoses of paraphilias, and vice versa. This article examines the social, logical, and scientific bases for the diagnostic validity of paraphilias and questions whether they can legitimately assist legal decisions to justify incapacitation.

Allen on Felon Disenfranchisement through Administrative Practices

Jessie Allen (University of Pittsburgh - School of Law) has posted Documentary Disenfranchisement (Tulane Law Review, Vol. 86, p. 389, 2011) on SSRN. Here is the abstract:

In the generally accepted picture of criminal disenfranchisement in the United States today, permanent voting bans are rare. Laws on the books in most states now provide that people with criminal convictions regain their voting rights after serving their sentences. This Article argues that the legal reality may be significantly different. Interviews conducted with county election officials in New York suggest that administrative practices sometimes transform temporary voting bans into lifelong disenfranchisement. Such de facto permanent disenfranchisement has significant political, legal, and cultural implications. Politically, it undermines the comforting story that states’ legislative reforms have ameliorated the antidemocratic interaction of felony disenfranchisement and the “war on crime’s” high and racially disproportionate conviction rates. Even if confined to only a few states, permanent disenfranchisement in a postwar-on-crime society may be politically significant in those jurisdictions. Legally, such disenfranchisement challenges the doctrinal impenetrability of a United States Supreme Court decision that has long blocked federal challenges to voting bans based on criminal conviction. Culturally, the local election practices I describe reveal something about the role of written text in our legal system. The permanent enforcement of nominally temporary voting bans is accomplished through election officials’ demands for nonexistent eligibility documents from people with criminal convictions — the practice I call “documentary disenfranchisement.” I propose that those demands both reflect and construct a deep cultural understanding that law enacts status changes through the vehicle of written text, changes that can only be undone by more positive text. This performative view of legal language is recapitulated in recent federal court decisions blocking challenges to felony disenfranchisement. Ironically, those courts’ constitutional interpretations look more like the county election boards’ demands for documents than the reasoning of the Supreme Court decision they purport to follow.

Recommended!

Ruhl on Contracts Formed at a Distance

Giesela Ruhl (Friedrich-Schiller-University Jena) has posted Distance Contracts (MAX PLANCK ENCYCLOPEDIA OF EUROPEAN PRIVATE LAW, Jürgen Basedow, Klaus Hopt & Reinhard Zimmermann, eds., Oxford University Press, 2012) on SSRN. Here is the abstract:

The article deals with distance contracts in European distance contract. It explores the problems underlying these contracts and the strategies applied under European Law to solve these problems.

Richman on the Production of Contracts by Law Firms

Barak D. Richman (Duke University - School of Law) has posted Contracts Meet Henry Ford on SSRN. Here is the abstract:

Legal scholars and legal educators view contracts as a welfare-maximizing (or optimal risk-allocating) device for two or more parties. Because we cling to this principal-driven paradigm, we think of lawyers only as the proverbial “transaction cost engineers,” the loyal agents of parties to a transaction. And whenever we observe contracts that appear to be suboptimal, we blame agency costs.

We instead should apply the literature on organizational economics to understand the production of contracts by the modern law firm. This literature better illustrates how law firms organize, why they produce the products they do, and why those products sometimes exhibit strangely inefficient features. These inefficiencies are not the consequence of agency costs or a lack of attorneys’ fidelity to their clients; they instead illustrate the limits — and, indirectly, the strengths — of large organizations. Indeed, observing that legal products do not perfectly match contemporary needs might be no less provocative than observing that Detroit is long overdue to produce high-mileage cars.

Hockett, Alpert, & Roubini on Economic Recovery

Robert C. Hockett (Cornell University - School of Law), Daniel Alpert, & Nouriel Roubini (Leonard N. Stern School of Business - Department of Economics; National Bureau of Economic Research (NBER)) have posted The Way Forward: Moving from the Post-Bubble, Post-Bust Economy to Renewed Growth and Competitiveness on SSRN. Here is the abstract:

We argue that the U.S. economy is presently mired in a particularly tenacious, Fisher-style debt-deflation rooted in long term secular trends in the domestic and global economies. Global productive capacity has steadily outpaced global absorptive capacity for several decades now, and the latter will not catch up with the former for a good many years to come -- if ever. In order to avert long-term Japanese-style stagnation at home and quite possibly slowdown and slump worldwide, the U.S. will have both (a) to eliminate private sector debt-overhang from 'both sides' of the same, and (b) to act in concert with other nations to reverse and eliminate persistent trade imbalances once and for all. We accordingly describe and prescribe a detailed economic recovery program comprising three 'pillars.' The first is a robust public infrastructure investment plan to compensate for retrenchment-rooted lags in consumer demand. The second is a comprehensive mortgage debt restructuring plan including bridge loan assistance, principal reduction, and 'rent to own' components for mortgage debtors facing three distinct kinds of distress. The third includes medium and long term fiscal and currency policy reforms designed first to recycle trade surpluses into demand stimulus where presently needed, and ultimately to prevent any recurrence in future of imbalances such as have characterized global trade over the past several decades.

Smith on Cognitive Science & the Economics of Legal Concepts

Henry E. Smith (Harvard Law School) has posted On the Economy of Concepts in Property (University of Pennsylvania Law Review, Vol. 160) on SSRN. Here is the abstract:

Legal concepts, like concepts generally, help economize on information. Conventional wisdom is correct to associate conceptualism with formalism, but misunderstands the role concepts play in law. Commentators from the Legal Realists onward have paid insufficient attention to the distinction between intensions – functions from worlds to categories – and extensions – the categories themselves. Concepts that pick out the same category can differ greatly in terms of information costs. This Article applies some tools of cognitive science to explore the economics of legal concepts. As in cognitive science, we expect simplicity of description and generality of explanation to coincide. Specifically, both the mind and the law can be regarded as information-processing devices that manage complexity and economize on information by employing concepts and rules, the specific-over-general principle, modularity, and recursiveness. These devices work in tandem to produce the economizing architecture of property. The cognitive theory is then applied to longstanding puzzles like the role of baselines such as nemo dat (“one can give that which one does not have”) and ad coelum (“one who owns the soil owns to the heavens above and the depths below”), the notion of “title,” and the function of equity as a safety valve for the law. The cognitive theory also allows one to reconcile reductionism and holism in property theory as well as static and dynamic explanations of the contours of property.

Highly recommended.

O'Neill on the Argumentative Theory in Cognitive Science & Law

Timothy P. O'Neill (John Marshall Law School) has posted Law and 'The Argumentative Theory' (Oregon Law Review, Forthcoming) on SSRN. Here is the abstract:

Cognitive scientists Hugo Mercier and Dan Sperber recently introduced what they call "The Argumentative Theory." Scientists such as Steven Pinker and Jonah Lehrer have hailed it as an important breakthrough in understanding human behavior. Jonathan Haidt believes that the new theory has solved "one of the most important puzzles in psychology."

The puzzle is this: Why are human beings so good at reasoning in some situations and so hopelessly wrong in others? Mercier and Sperber provide an elegant answer: It is because the function of reasoning is not to arrive at the "right answer," but rather to find support for a conclusion the reasoner has already intuited. In a nutshell, reasoning is not intended to discover truth; rather, its role is to win arguments with other people.

Mercier and Sperber's empirically-supported argument reflects what theorists such as Jerome Frank, Richard Posner, and Stanley Fish have long contended about legal reasoning: that conclusions drive reasoning and not vice versa.

Yet ironically, recently-appointed Supreme Court justices such as Elena Kagan, Sonia Sotomayor, and John Roberts have adamantly contended --- at least at their confirmation hearings --- that simple application of law should drive legal decisions.

This Essay examines why, at the very time cognitive scientists are offering increasingly sophisticated analyses of reasoning, the views offered by these recent appointees to the Supreme Court should be so simplistic. It goes on to suggest what both judges and lawyers can learn from the Mercier-Sperber theory.

Recommended!

Legal Theory Lexicon: Transparency

Introduction

Sooner or later, most law students encounter the idea that "transparency" (as opposed to "opaqueness") is (all else being equal) a desirable characteristic in markets, procedures, and governance institutions (both private and public). But what is "transparency" and why is it a good thing? This entry in the Legal Theory Lexicon provides a very brief introduction to the concept of transparency for law students (especially first-year law students) with an interest in legal theory. The basic idea of transparency is simple: things go better when processes are open. Markets function best when transactions are public and terms are disclosed. Judicial processes work best when they are visible to the participants and the public. Governments work best when both inputs to decisions and the meetings in which decisions are made are public. This post provides a brief introduction to the idea of transparency in a few important contexts.

Transparency and Democratic Process 

Why should the processes of democratic decisionmaking be transparent? There are so many different answers to this question that one hardly knows where to begin, but we might start by distinguishing between answers that rely on consequentialist reasoning and those that appeal to ideas about rights, fairness, or legitimacy. The consequentialist case for transparency in government usually rests on the idea that opaque processes are likely to facilitate corruption or capture. Corruption is more likely because secret decisionmaking facilitates rent-seeking (soliciting bribes) by public officials; transparency processes make bribery more difficult and increase the likelihood that it will be exposed. "Capture" is the term used to describe domination of a regulatory process by the interests who are supposed to be regulated. When lawmaking (or administrative rulemaking) is done in secret, there is a greater likelihood that the information flow will be one sided.

The process that led to the formation of the Bush Administration's energy policy provided a good example of debates over the pros and cons of transparency in government. The administration developed its energy policy through non-transparent procedures. Vice-President Cheney met in private with a variety of interest groups, and the records of the meetings were not made available to the public. Critics charged that this secrecy allowed oil and coal interests to dominate the decision-making process to the detriment of the public interest. The administration defended the process, arguing that public processes would have inhibited free and frank discussion of the issues by the various interest groups. Whether or not this argument was correct in this particular context, it illustrates an important point. Transparency in government comes at a price. Transparent processes may be inefficient--what can be done in private in minutes may take hours in public. Transparent processes may also distort decision-making, forcing political actors to pander to public opinion at the expense of good policy.  And transparency may inhibit rather than facilitate the free flow of information--unpopular truths may be discussed behind closed doors but avoided in the sunshine.

The case for transparency in government need not rest on consequences. It might also be argued that transparent government is required by the rights of citizens to meaningfully participate in democratic self-government. If public officials conduct business in private, then it becomes more difficult for citizens to make meaningful decisions at the ballot box.  This deontological foundations of the values of transparency are likely to be rooted in theories of procedural justice and the role of democracy a conception of the political equality of citizens.

Transparency in the Market and the Boardroom

The case for transparent markets is simple. Efficiency requires information. Efficient pricing, for example, requires that buyers know what they are buyng and sellers know what they are selling. "Buying a pig in a poke" is simply a colorful way of expressing the idea that a nontransparent transaction has occurred. Transparency may be especially important in capital markets.  Securities regulation in the United States rests on the assumption that mandatory disclosure of accurate financial information will lead to investor confidence and facilitate efficient financial markets. Without transparency each investor would face either uncertainty or enormous information acquisition costs. Efficient capital markets produce enormous benefits, because they enable resources to be allocated to their highest and best use. Finally, transparency in corporate governance aims to prevent management from appropriating wealth owned by stockholders.

There are, however, situations in which transparency is inconsistent with efficient markets. Trade secret law, for example, aims at the opposite of transparency. The theory is that the ability to keep secrets creates an incentive to develop new ideas, inventions, and processes; disclosure would allow competitors to appropriate the new idea without compensation, and hence would reduce the incentives for the creation of new knowledge. Similarly, corporations are not required to disclose business strategies and tactics.

Transparent Judicial Procedures

Civil litigation and criminal trials provide a final context in which transparency is an important value. When we think about the transparency of judicial procedures, there are two different groups for whom the process may be transparent or opaque. The first group is comprised of litigants (plaintiffs/defendants in civil litigation and defendants in criminal litigation). The second group consists of the public at large. Most legal systems place a higher value on transparency to participants than on transparency to the public. While it is not unusual for a hearing to be closed to the public, it is very unusual for a judicial proceeding to exclude the parties themselves. But there are important exceptions to this rule. Deliberations by both judges and juries are usually opaque.

Thus, even the defendant in a criminal case is not allowed to observe the deliberations of the jury. A similar rule applies to judicial deliberations. For example, the conferences of an appellate court (e.g. the United States Supreme Court) are conducted in the strictest secrecy, as are the communications between among judges and between judges and their clerks. In these contexts, the thought is that open deliberations would actually distort the decision making process, leading to worse rather than better decisions.

Connections with Normative Legal Theory

As should be clear by now, debates about transparency in law connect with larger debates in normative legal theory.  The case for transparency in a given context may rest on either utilitarian or deontological considerations.  And the case against transparency, likewise, might be grounded in a right to privacy or on the basis of benefits of secrecy.  As is frequently the case, some debates about transparency do not get very far, because the participants are operating on the basis inconsistent premises about the kinds of values that should guide legal choice.  One way to move past this kind of impasse might involve appeal to public reasons--reasons that draw on values that are accepted in the public political and legal culture that do not directly invoke comprehensive moral conceptions (like Bentham's utilitarianism or Kant's deontology).

Conclusion

Concern with process is ubiquitous in legal theory, and processes can be transparent or opaque. As a law student, you might begin to ask yourself about the effect of legal rules on transparency. Does this rule make the process more transparent or more opaque. When you encounter rules that render processes opaque, always ask why? There may be an answer to the question, but then again, there may not.  One way to deal with this problem involves conceptual ascent--moving directly to address the underlying value conflict.  Another solution may involve the attempt to refocus the discussion in a way that involves public reasons--reasons that appeal to public values that do not directly depend on comprehensive moral or political theories.

Related Lexicon Entries

• Legal Theory Lexicon 008: Utilitarianism
• Legal Theory Lexicon 009: Public Reason
• Legal Theory Lexicon 010: Deontology
• Legal Theory Lexicon 023: Procedural Justice

Bibliography

• Mark Fenster, The Opacity of Transparency (March 15, 2005).
• Benjamin E. Hermalin and Michael S. Weisbach, Transparency and Corporate Governance (May 20, 2005).
• Elizabeth Garrett and Adrian Vermeule, Transparency in the Budget Process (September 3, 2006)

(This entry was last revised on January 22, 2012.)