Legal Theory Blog

O'Hanlon on Libertarian Ideology in the Supreme Court

Stephen T. O'Hanlon (Temple University) has posted Justice Kennedy's Short-Lived Libertarian Revolution: A Brief History of Supreme Court Libertarian Ideology (Cardozo Public Law, Policy and Ethics Journal, Vol. 7, No. 1, Fall 2008) on SSRN. Here is the abstract:

This paper contends that Justice Anthony Kennedy did not initiate a libertarian jurisprudential revolution following Lawrence v. Texas. The article begins with an overview of constitutional fundamental rights jurisprudence and examines similarities with libertarian theory.

The paper then assesses the legal decisions of Justice Kennedy but concludes that Justice Kennedy is not a libertarian. This provides the basis for critiquing Professor Randy Barnett's assertion that Justice Kennedy was the instigator of a libertarian revolution in U.S. Supreme Court jurisprudence. The fact that Justice Kennedy is not a libertarian is apparent from his reasoning in the recent partial birth abortion case, Gonzales v. Carhart. The paper concludes by questioning the practical application of rigid libertarian theory to real-world judicial decision making while, at the same time, expressing concern regarding Justice Kennedy's reasoning in Carhart.

Bellamy on Repubicanism, Public Reason, & Deliberative Democracy

Richard Bellamy (University College London - Department of Political Science) has posted The Republic of Reasons: Public Reasoning, Depoliticization and Non-Domination on SSRN.  Here is the abstract:

In their different ways, republican theorists all contrast a refined political process that is orientated towards public reasoning with a pluralist reading of the competitive party electoral system to be found in most advanced democracies. They argue that the latter can subvert the former in certain circumstances, so that electoral democratic processes must be constrained and depoliticised to some extent if public reason is to prevail. They suggest that such depoliticization produces a shift away from an aggregative view of democracy as reflecting the will of the people, to a more deliberative view of democracy that seeks to formulate policies that reflect shareable public reasons concerning the common good. This paper challenges this argument. It rests on an overly pessimistic view of actually existing democracy, on the one hand, and an excessively idealised view of public reason and the deliberative processes likely to achieve it, on the other.

Lokken on Taxation of Credit Derivatives

Lawrence Lokken (University of Florida College of Law) has posted Taxation of Credit Derivatives on SSRN. Here is the abstract:

One arguably good thing about the current financial crisis is that it has broadened public understanding of the global financial system. Few people had heard of credit default swaps two years ago, but these instruments have, since then, forced themselves on the attention the most casual reader of financial news. Credit default swaps brought insurance giant AIG to its knees, and precipitated a $100 billion U.S. government bailout of the company. More recently, it has been reported that hedge fund manager John Paulson made more than $3 billion during 2008 using credit default swaps to bet against subprime mortgages. A credit default swap is a bilateral contract between a “credit protection buyer” and a “credit protection seller.” Under a typical contract, the buyer pays a quarterly fee to the seller throughout the contract term, and the seller agrees to make a payment to the buyer in the event of a default by a third person (reference entity) on debt that it has issued (reference obligation). For example, B and S might make a swap with reference to bonds issued by IBM Corp., under which B must make quarterly payments to S for five years, and S must, in the event of IBM’s default on the bonds during that five-year period, pay to B an amount equal to the excess of $10 million over the post-default value of $10 million of IBM bonds. This paper is about the U.S. taxation of credit default swaps. The tax treatment of these contracts under current law is unclear. The paper explores several possible approaches, including analyzing these swaps as contingent put options, applying the regulations on notional principal contracts to them, treating credit default swaps as insurance, and extending the mark-to-market rules to cover credit default swaps. Because the tax treatment of these transactions should reflect their financial and economic substance, the paper begins with an extended description of credit default swaps and the ways in which swaps are used in financial and investment transactions.

Dyevre on a Strategic Analysis of National Courts & European Integration

Arthur Dyevre (CEPC) has posted European Integration and National Courts - A Strategic Analysis of Judicial Behaviour on SSRN. Here is the abstract:

The present paper looks at the jurisprudence of national courts on the European law doctrines of supremacy and direct effect. Its central hypothesis is that national courts, supreme and constitutional courts in particular, try under the constraints of their institutional system to reconcile two conflicting goals: (1) the necessity to ensure the application and, hence, the supremacy of EU law on a daily basis as a direct and inevitable consequence of EU membership, and (2) the will to keep integration under control by preserving an at least hypothetical last word for the Member States and, thereby, the notion of national sovereignty. This hypothesis provides an explanation both for the overall equilibrium governing the relationship between the ECJ and national courts and for the variations in the way national judges have accommodated direct effect and EU law supremacy.

Monestier on Personal Jurisdiction over Class Action Plaintiffs

Tanya J. Monestier (Roger Williams University) has posted Personal Jurisdiction Over Class Plaintiffs: Have We Gone Down the Wrong Road? on SSRN. Here is the abstract:

Canadian courts have recently been struggling with the question of personal jurisdiction over non-resident class members in multi-jurisdictional class actions. On what basis can an Ontario court, for instance, purport to bind a class member resident in British Columbia or Quebec? The loose consensus appears to be that a court in one province has personal jurisdiction over a class member in another province where there is a "real and substantial connection" between the plaintiff class and the adjudicating forum. However, a lack of consensus in the application of the real and substantial connection test has proved problematic for parties seeking finality in litigation. In particular, defendants cannot be assured that a settlement or judgment rendered in one province will in fact be enforceable in another, since the enforcing court may conclude that the adjudicating court did not have jurisdiction over non-resident class members under its view of the real and substantial connection test. There is thus the possibility that a defendant who has proceeded on the assumption that a settlement or judgment will be res judicata, will nonetheless be required to re-litigate the claim. This ultimately undermines the "order" and "fairness" which are said to lie at the heart of the Canadian conflict of laws.

This paper suggests that it is necessary to re-think whether a real and substantial connection is needed to ground jurisdiction over a non-resident plaintiff class. The real and substantial connection test was originally developed to govern the question of when courts can assume jurisdiction over an individual out-of-province defendant. The test cannot be readily transposed outside this context. Instead of focusing on the issue of whether there is a real and substantial connection between a non-resident plaintiff class and the adjudicating forum to support the assumption of jurisdiction, courts should re-orient their analysis towards ensuring that procedural safeguards are afforded to non-resident plaintiffs. If a non-resident class member is provided with sufficient notice, an opportunity to opt out and adequate representation, an adjudicating court should be viewed as jurisdictionally competent and its judgment accorded preclusive effect. Re-conceptualizing jurisdiction in this way eliminates the possibility that an enforcing court will be able to second-guess the adjudicating court's view on whether the real and substantial connection test has been satisfied and gives defendants a measure of control over the ultimate enforceability of a class judgment or settlement.

Bable on Witte & Alexander on Law and Christianity

Paul T. Babie (University of Adelaide - Law School) has posted Looking East to the Concept of Property A Review Essay of Witte and Alexander, Christianity and Law: An Introduction (Adelaide Law Review, Forthcoming) on SSRN. Here is the abstract:

The notion that there is anything like ‘Christian law’ in the way that there is Islamic law, Judaic law, or Hindu law is little understood. Yet, increasingly, scholars, both lawyers and theologians, tell us that one finds in the Western legal tradition itself a form of Christian law, at least in origin if not contemporary operation. Christianity and Law: An Introduction explores the notion of a Christian law, demonstrating the formative influence of Christianity on the Western legal tradition. In doing so, the collection of essays makes a valuable contribution to the canon of scholarship on religious legal systems. This review essay focuses on Frank S Alexander’s ‘Property and Christian theology’. Whereas Alexander relies upon Western Christian theology, this essay offers some Eastern Christian reflections on the nature of the person and how that might alter the way in which the Western liberal concept of property is understood.

Sinai on Zabia on Arbitration

Yuval Sinai (Netanya Academic College School of Law) has posted Arbitration as an Ideal Judicial Procedure on SSRN.  Here is the abstract:

In the zabla form of arbitration in the Jewish tradition, each party chooses one judge and the third judge is chosen jointly by both parties or by the judges of their choice. Zabla arbitration suffers from a rather humble image in the modern State of Israel, and surprisingly it is the jurists, the Rabbis and the scholars of Jewish law who have contributed to this image.

Koppelman on Balkin on Constitutional Theory

Andrew Koppelman (Northwestern University School of Law) has posted Why Jack Balkin is Disgusting (Constitutional Commentary, Forthcoming) on SSRN. Here is the abstract:

Yale Law Professor Jack Balkin didn’t win friends when he announced that (1) he is now a constitutional originalist and (2) the original meaning of the Fourteenth Amendment protects the right to abortion. His claim to membership in the originalist club brought forth a small army of eager bouncers, who were sure that originalism couldn’t possibly defend the paradigmatic departure from the Constitution’s original meaning.

Balkin has indeed posed a radical challenge to the vision of law that drives the originalists – more radical than he is willing to admit. His theory is in such deep tension with a commonly held vision of the rule of law that his argument is, to put the point precisely, disgusting. But that doesn’t mean that he is wrong.

The title is over the top and in my opinion unprofessional.  The reading of Balkin and his critics is surprisingly shallow.

Program Announcement: "Law as a Moral Idea" by Simmonds at Oxford

Law as a Moral Idea: A Panel Discussion with author N. E. Simmonds
Thursday 3 December 2009 - Thursday 3 December 2009 16.00
Venue: Oxford Law Faculty Gulbenkian Lecture Theatre
Organised by Oxford Law Faculty

Speakers: Timothy Endicott, John Finnis, John Gardner, N. E. Simmonds, John Tasioulas (Chair)

In his book Law as a Moral Idea (Oxford University Press, 2007) N. E. Simmonds pursued a novel and powerful argument about the value of law and the nature of legal theory. In this panel discussion four distinguished legal and political philosophers join the author in a discussion of the book's main arguments.

Programme:

Timothy Endicott, Professor of Legal Philosophy and Dean of the Faculty of Law, University of Oxford
John Finnis, Professor of Law and Legal Philosophy, University of Oxford
John Gardner, Professor of Jurisprudence, University of Oxford,
N. E. Simmonds, Reader in Jurisprudence, University of Cambridge
John Tasioulas, Reader in Moral and Legal Philosophy, University of Oxford (Chair)

Lavine on Berman v. Parker

Amy Lavine (Albany Law School) has posted Urban Renewal and the Story of Berman v. Parker on SSRN. Here is the abstract:

The Supreme Court’s 1954 decision in Berman v. Parker serves as the foundation for much of our modern eminent domain jurisprudence, including the controversial 2005 Supreme Court decision in Kelo v. New London. But the story behind the case starts well before 1954, and it carries implications that are relevant today. It’s a story that played out in many cities across the nation, just as it did in Washington, D.C., where the case took place. It’s the story of urban decay and urban renewal.

This working paper covers the history of redevelopment in Southwest Washington, from the turn of the century to today. It discusses the City Beautiful movement and progressive housing reform in Washington, the rise of public housing and slum clearance policies, the urban renewal planning process as it played out in Southwest D.C., and the demise of urban renewal as a federal policy in the wake of its failures. The conclusion points out while we may approach contemporary economic development projects differently than we approached urban renewal in the 50s and 60s, much can still be learned from the story behind this landmark case.

Call for Papers: Harvard-Stanford International Junior Faculty Forum

HARVARD L AW SCHOOL AND STANFORD LAW SCHOOL THIRD ANNUAL INTERNATIONAL JUNIOR FACULTY FORUM CALL FOR PAPERS

Stanford Law School and Harvard Law School have established an International Junior Faculty Forum. The idea behind this is to stimulate exchange of ideas and research, among younger scholars in the academy, from all parts of the world; and to encourage younger scholars in their work. We live today in a global community‐‐ especially a global legal community‐‐ and it is important to develop legal scholarship on a transnational basis. Scholars in different countries are often divided by barriers of time and space, as well as barriers of different legal traditions and cultures. We hope that the forum will be a step in the direction of surmounting these barriers.

The papers at the 2009 Forum were on a very wide range of subjects, from the WTO to issues of Muslim marriage in South Africa to the role of lawyers in the financial crisis. The young scholars came from many different countries, and, so too, did the senior scholars. Together, six continents and a wide range of points of view were represented.

The sponsors, Harvard and Stanford law schools, are pleased to announce plans for the third International Junior Faculty Forum. The Forum will be held in October 2010 at the Stanford Law School, Stanford, California with the precise dates to be determined later. Junior scholars whose home institution is outside the United States and who have held an academic position for less than seven years, as of 2010, or whose last degree was earned less than ten years earlier than 2010 and are not U.S. citizens, are invited to apply for the 2010 session.

The first step in applying is to submit an abstract of the proposed paper. We would like these to be no more than 4 pages. Tell us what you plan to do; lay out the major argument of the paper, say something about the methodology, and what you think will be the paperʹs contribution to scholarship. We ask you to submit the abstract in English. The due date for the abstracts is January 20, 2010, although earlier submissions are welcomed. Please submit the abstract electronically to both schools‐‐ at Harvard, to Juliet Bowler (jbowler@law.harvard.edu), and at Stanford to Stephanie Basso (sbasso@law.stanford.edu). The subject line should be: International Junior Faculty Forum. The abstract should contain the authorʹs name, home institution, and the title of the proposed paper. After the abstracts have been reviewed, we will in February invite a number of junior scholars to submit full papers, electronically (in English) by May 31, 2010.

Papers may be on any legally relevant subject. We especially welcome work that is interdisciplinary. The papers can make use of any relevant approach; they can be quantitative or qualitative, sociological, anthropological, historical, or economic. The sponsoring schools would like to emphasize that they welcome papers from junior scholars from all parts of the world. No country or group of countries has a monopoly of talent. Please note that already published papers are not eligible to be considered. An international committee of legal scholars, who themselves come from across the globe, and represent many different styles and approaches, will review the papers. In the end, about ten of the papers will be chosen for presentation at the conference. And, as before, at the conference itself, two senior scholars, will comment on each paper. After the commentators give their remarks, all of the participants, juniors and seniors alike, will have a chance to join in the discussion. Meeting junior and senior colleagues, and talking about your work and theirs, may be one of the most valuable‐‐ and enjoyable‐‐ aspects of the forum. The sponsoring schools will cover expenses of travel, including airfare, lodging, and food, for each participant.

Questions should be directed to Juliet Bowler (jbowler@law.harvard.edu) or Stephanie Basso (sbasso@law.stanford.edu).

Guiora on Anticipatory Self-Defense & Terror Bombings

Amos N. Guiora (University of Utah - S.J. Quinney College of Law) has posted Pre-Empting Terror Bombings – A Comparative Approach to Anticipatory Self-Defense (Toledo Law Review, Vol. 41, 2010) on SSRN. Here is the abstract:

The extreme urgency in discussing terror bombings and anticipatory self-defense cannot be overstated. Terror bombings were responsible for the single bloodiest month for U.S. and British troops in Afghanistan (July, 2009), for the death of nine people in Indonesia (July, 2009) for the death of three policemen in Spain and for the death of countless Iraqi citizens (including August, 2009), just to name a few. This article specifically focuses on anticipatory self defense and intelligence gathering in an effort to proactively prevent terror bombings. Terror bombing is defined herein within the broadest possible parameters to include the following: dirty bombs, suicide bombings, remote controlled bombings and nuclear weapons and presents the greatest contemporary threat presently posed by terrorists. Therefore, it is critical that terror bombings are understood and effective counter-measures developed. The most effective way to understand the threat is through a detailed comparative analysis of terror bombings and the operational, policy, legislative, and judicial responses of the nations affected. In the article, I propose that the key to pre-empt, prevent and respond to the threats posed by terror bombings is stronger intelligence which is crucial in allowing nations to focus on effective anticipatory self-defense.

Karton on Party Autonomy, Choice of Law, & International Arbitration

Joshua D. H. Karton (Queen's University - Faculty of Law) has posted Party Autonomy and Choice of Law: Is International Arbitration Leading the Way or Marching to the Beat of its Own Drummer? (University of New Brunswick Law Journal, 2010) on SSRN. Here is the abstract:

National courts have restricted party autonomy in choice of law in a variety of ways. In international arbitration, on the other hand, the march of party autonomy has been unhindered. National courts have abetted this process in the international arbitration context, even as they have maintained restrictions on party autonomy in choice of law within their own legal systems. This phenomenon, combined with the gradual loosening of restrictions on party autonomy in national legal systems, has led some to claim that international arbitration is leading the nations of the world into a global choice of law regime in which party autonomy reigns. Such triumphalists look forward to the day when party autonomy is as unrestricted in national courts as it is in arbitration.

This article argues that such a day is unlikely to arrive. The different pressures and interests that shape national court litigation on the one hand, and international arbitration on the other, are likely to generate different levels of support for party autonomy in choice of law. As a result, regardless of whether more party autonomy in choice of law is preferable in all contexts, or whether it ought to have a wider scope in arbitration than in litigation, arbitrators are likely to maintain greater deference to party autonomy than will national legislatures or courts.

Blogging from Florence: Legal Philosophy Everywhere

Tonight I had dinner with Dennis Patterson (the Chair of Legal Philosophy and Legal Theory at the European University Institute in Fiesole, Italy).  We ate at Baldovino, the wonderful trattoria owned by David Gardner, the brother of John Gardner, the Professor of Jurisprudence at the University of Oxford.  Legal Philosophy Everywhere!

Legal Theory Lexicon: Overlapping Consensus & Incompletely Theorized Agreements

Introduction

As law students become more sophisticated, they begin to notice that certain debates seem to repeat themselves over and over again. Disagreements about disparate subjects--in procedure, criminal law, torts, property, and constitutional law--frequently seem to turn on the really big questions of ethics and political theory. On the one hand, the proponents of inviolate individual rights appeal to deontological premises in moral theory or liberal (or libertarian) ideas in political philosophy. On the other hand, the proponents of balancing argue from premises rooted in utilitarianism or welfarism (the economic version of utilitarian moral philosophy).

For a short time, the ability to see this pattern may be exhilarating. You begin to see big patterns that transcend courses and doctrines. But after a while, exhilaration may give way to depression. If all the great debates in legal theory boil down to debates about the deepest questions of moral and political philosophy, then the question arises, "Can we make any progress?" Because it sure doesn't look like the debates between deontology and consequentialism or between libertarians and communitarians are going to be decisively resolved any time soon.

And that is where today's Legal Theory Lexicon comes into the picture. Even if the deep debates of moral and political philosophy are irresolvable, there may be other ways to make progress in legal theory. In particular, we may be able to use the ideas of "incompletely theorized agreements" (associated with Cass Sunstein) or "overlapping consensus" (associated with John Rawls) to break the impasse on the deep questions.

The basic idea is simple. We cannot agree on the deep questions, so go shallow. Find the level at which those who disagree on the deep can nonetheless find common ground. John Rawls calls the idea of common ground by the name "overlapping consensus." Cass Sunstein calls a similar idea, "incompletely theorized agreement." But both Sunstein and Rawls express a similar intuition. When you cannot reach agreement at the deep end of the pool of ideas, head for the shallow end!

Deep and Shallow

I suspect that you've already gotten it! But just to make sure, let's work through the ideas one by one. The first idea we need is the one that I have expressed by the metaphor of deep and shallow reasons. The metaphor is based on the idea that particular applications (e.g. particular questions of legal doctrine) are at the surface, they are in the shallow end of the pool of ideas. Beneath the surface of particular issues in legal doctrine and legislative policy are deeper disagreements. Disagreements about the a surface level question (e.g. the precise contours of the mailbox rule in contract law) lead to beneath-the-surface issues (e.g. the nature of offer and acceptance) and then to still-deeper issues (e.g. the basis for contractual obligation) and finally to the deepest questions (e.g. the nature of moral obligation). You might picture a chain of reasons, stretching from the surface of legal doctrine down to the depths of political and moral philosophy.

Overlapping Consensus

John Rawls developed the idea of an "overlapping consensus" as part of the work that led up to his book Political Liberalism. The idea emerged as part of Rawls's work on what he called the problem of stability. In a society governed by Rawls's theory (justice as fairness), the guarantee of basic liberties would mean that individual citizens would be free to adopt their own views about morality and religion. As a result, Rawls argued, it was likely that a variety of comprehensive religious and moral doctrines would emerge. Rawls believed that this fact of pluralism posed a problem for his theory. How could justice as fairness be stable (or reproduce itself) given the plurality of viewpoints that is bound to emerge and persist under conditions of freedom? Rawls's answer to this question was based on the idea that divergent moral and religious conceptions of the good could (despite their diversity) converge on some common ground. That is, citizens who held a plurality of religious and moral beliefs could nonetheless agree on the constitutional essentials--the basic constitutional principles necessary for a society to satisfy the demands of justice as fairness.

This meant that different citizens would support justice as fairness for different reasons. Catholics might affirm justice as fairness for reasons found within the Catholic natural law tradition, while secular humanists might affirm the same (or similar) ideas about justice for different reasons. Although a deep consensus might on justice as fairness might be impossible, an "overlapping consensus," Rawls argued, is possible.

Incompletely Theorized Agreements

Cass Sunstein has a related but different idea. Here is a summary from his article in the Harvard Law Review:

Incompletely theorized agreements play a pervasive role in law and society. It is rare for a person, and especially for a group, to theorize any subject completely -- that is, to accept both a highly abstract theory and a series of steps that relate the theory to a concrete conclusion. In fact, people often reach incompletely theorized agreements on a general principle. Such agreements are incompletely theorized in the sense that people who accept the principle need not agree on what it entails in particular cases. People know that murder is wrong, but they disagree about abortion. They favor racial equality, but they are divided on affirmative action. Hence there is a familiar phenomenon of a comfortable and even emphatic agreement on a general principle, accompanied by sharp disagreement about particular cases.

This sort of agreement is incompletely theorized in the sense that it is incompletely specified -- a familiar phenomenon with constitutional provisions and regulatory standards in administrative law. Incompletely specified agreements have distinctive social uses. They may permit acceptance of a general aspiration when people are unclear about what the aspiration means, and in this sense, they can maintain a measure of both stability and flexibility over time. At the same time, they can conceal the fact of large- scale social disagreement about particular cases.

There is a second and quite different kind of incompletely theorized agreement. People may agree on a mid-level principle but disagree both about the more general theory that accounts for it and about outcomes in particular cases. They may believe that government cannot discriminate on the basis of race, without settling on a large-scale theory of equality, and without agreeing whether government may enact affirmative action programs or segregate prisons when racial tensions are severe. The connections are left unclear, either in people's minds or in authoritative public documents, between the mid- level principle and general theory; the connection is equally unclear between the mid-level principle and concrete cases. So too, people may think that government may not regulate speech unless it can show a clear and present danger, but fail to settle whether this principle is founded in utilitarian or Kantian considerations, and disagree about whether the principle allows government to regulate a particular speech by members of the Ku Klux Klan.

My special interest here is in a third kind of phenomenon -- incompletely theorized agreements on particular outcomes, accompanied by agreements on the low-level principles that account for them. These terms contain some ambiguities. There is no algorithm by which to distinguish between a high-level theory and one that operates at an intermediate or low level. We might consider Kantianism and utilitarianism as conspicuous examples of high-level theories and see legal illustrations in the many (academic) efforts to understand such areas as tort law, contract law, free speech, and the law of equality to be undergirded by highly abstract theories of the right or the good. By contrast, we might think of low-level principles as including most of the ordinary material of legal doctrine -- the general class of principles and justifications that are not said to derive from any particular large theories of the right or the good, that have ambiguous relations to large theories, and that are compatible with more than one such theory. [Cass Sunstein, Incompletely Theorized Agreements, 108 Harv. L. Rev. 1733, 1739-40 (1995)]

Applications

How can you use the idea of an overlapping consensus or incompletely theorized agreement? These conceptual tools are useful when you believe that you have reached a theoretical impasse at some deep level. You've identified an issue, and you can see how the issue can be traced to a deep disagreement in moral or political theory. Now, you have some choices to make. On the one hand, you can try to resolve the deep disagreement. But there is a problem with this option. The deep debates in moral and political philosophy are both ancient and persistent. The world's great thinkers have worked on these problems. If Aristotle, Kant, and Bentham were unable to come up with a knock down argument in favor of their respective moral theories, then it does seem unlikely that you will be able to resolve these debates in an article or book that is mostly focused on another topic or idea. Moreover, the current state of the art in moral and political theory involves a complex field of interconnected arguments. If you need to master these debates before you can complete your work in legal theory, then the work may never be completed.

The alternative is to see whether you can find a different level at which the dispute can be resolved. One possibility is that you can find convergence at the surface level. It seems as if deontologists and utilitarians disagree, but perhaps you can craft consequentialist arguments that converge with the arguments of fairness. Another possibility is that you will be able to find converged on what Sunstein calls "mid-level principles." For example, both consequentialists and deontologists might be able to agree that contract formation (normally) requires that both parties manifest and intention to be bound--although they would have different reasons for affirming this proposition.

Conclusion

The move to "overlapping consensus" or "incompletely theorized agreements" is one of the niftiest and most useful in contemporary legal theory. Add it your personal legal theory toolbox!

(Last revised on November 22, 2009.)

Legal Theory Bookworm

The Legal Theory Bookworm recommends On Compromise and Rotten Compromises by Avishai Margalit. Here is a description:

When is political compromise acceptable--and when is it fundamentally rotten, something we should never accept, come what may? What if a rotten compromise is politically necessary? Compromise is a great political virtue, especially for the sake of peace. But, as Avishai Margalit argues, there are moral limits to acceptable compromise even for peace. But just what are those limits? At what point does peace secured with compromise become unjust? Focusing attention on vitally important questions that have received surprisingly little attention, Margalit argues that we should be concerned not only with what makes a just war, but also with what kind of compromise allows for a just peace.

Examining a wide range of examples, including the Munich Agreement, the Yalta Conference, and Arab-Israeli peace negotiations, Margalit provides a searching examination of the nature of political compromise in its various forms. Combining philosophy, politics, and history, and written in a vivid and accessible style, On Compromise and Rotten Compromises is full of surprising new insights about war, peace, justice, and sectarianism.

And from the blurgs:

When is political compromise acceptable--and when is it fundamentally rotten, something we should never accept, come what may? What if a rotten compromise is politically necessary? Compromise is a great political virtue, especially for the sake of peace. But, as Avishai Margalit argues, there are moral limits to acceptable compromise even for peace. But just what are those limits? At what point does peace secured with compromise become unjust? Focusing attention on vitally important questions that have received surprisingly little attention, Margalit argues that we should be concerned not only with what makes a just war, but also with what kind of compromise allows for a just peace. Examining a wide range of examples, including the Munich Agreement, the Yalta Conference, and Arab-Israeli peace negotiations, Margalit provides a searching examination of the nature of political compromise in its various forms. Combining philosophy, politics, and history, and written in a vivid and accessible style, On Compromise and Rotten Compromises is full of surprising new insights about war, peace, justice, and sectarianism. Avishai Margalit's most recent book (with Ian Buruma) is Occidentalism: The West in the Eyes of Its Enemies (Penguin). His other books include The Ethics of Memory and The Decent Society. A professor emeritus of philosophy at the Hebrew University of Jerusalem, Margalit is the George F. Kennan Professor at the Institute for Advanced Study in Princeton. Endorsements: "Avishai Margalit has turned a fierce spotlight on a neglected but important area of ethics, when compromises are morally acceptable. He introduces new and compelling distinctions and illuminates a number of major issues in contemporary and recent historical events."--Kenneth J. Arrow, winner of the Nobel Prize in economics

"This book will stimulate wide discussion because compromise--when to make them, when to resist them--is a vital subject in political life, and because Avishai Margalit is universally respected for his analytical skills and moral discernment. The examples give the book historical depth and importance, and the writing is sprightly, precise, and accessible, with memorable turns of phrase. The book reeled me in and held my attention for the duration."--Michael Ignatieff, author of The Lesser Evil: Political Ethics in an Age of Terror

"This book is tremendously important for its introduction and treatment of a fundamental but neglected topic in political philosophy. It also stands out for its writing, with examples and anecdotes introducing rigorous and detailed argumentation without in any way interrupting the narrative flow."--Arthur Ripstein, University of Toronto

Download of the Week

The Download of the Week is The Transformation of the Campaign Financing Regime for U.S. Presidential Elections by Richard L. Hasen. Here is the abstract:

Since the mid-1970s, the United States system for the financing of presidential election campaigns has been a mixture of private fundraising by candidates, parties, and outside groups and optional public financing for candidates (and for political party conventions). The 2008 presidential election-with its record-breaking $1.8 billion campaign (including an astounding $745.7 million raised by then-Democratic candidate Barack Obama) (FEC 2009) - demonstrated that the current system is in the midst of a major transformation. This chapter explains how the system is changing, offers possible reasons for the transformation, and evaluates the transformation normatively.

Part I shows how the system is changing in four ways. (1) The voluntary presidential public financing system is no longer viable; candidates who opt in do so out of weakness, not strength. (2) A major share of private campaign contributions to presidential candidates in 2008 have come through campaign finance “bundlers” and from micro-donors giving very small amounts via the Internet. (3) Thanks to a U.S. federal law, Bipartisan Campaign Reform Act of 2002 (BCRA), political parties can no longer accept very large campaign contributions (“soft money”) from wealthy individuals, corporations, and labor unions to pay for political advertising. (4) Wealthy individuals, corporations, and labor unions have shifted some, though not necessarily all, of the money that used to go to political parties and to “issue advocacy” into outside groups (including so-called “527 organizations”).

Part II explains that these four changes have likely arisen from a number of factors including: (1) the failure of the U.S. Congress to update the presidential public financing system, first enacted in 1974; (2) enactment of BCRA and the U.S. Supreme Court’s shifting interpretation of the constitutionality of campaign finance law; (3) the rise of cheap political speech via the Internet; and (4) continued political polarization.

Part III explores normative implications. The potential for quid pro quo corruption of candidates appears to remain low, thanks to a series of laws imposing contribution limits. Sale of access to candidates, however, remains a feature of U.S. presidential elections even post-BCRA. From the standpoint of political equality, the transformation offers a mixed bag with somewhat offsetting effects. Thus, the collapse of the public financing system may have anti-egalitarian effects, but those effects are somewhat militated by the rise of micro-donors. The end of soft money and the rise of outside non-party political organizations in theory could lead to weakened political parties, but continued polarization of the electorate have kept parties thriving even under BCRA and the shifting constitutional ground rules of the U.S. Supreme Court.

Armstrong on Metaphor in Criminal Justice Policy

Sarah Armstrong (Glasgow University) has posted Managing Meaning: The Use of Metaphor in Criminal Justice Policy on SSRN. Here is the abstract:

This paper takes an unorthodox approach to the study of policy, by analysing the use of metaphors in policy documents. Policy language presents an important topic of study because the policy text is an increasingly important technique of governance, aiming at one level to satisfy desires for transparency and public consultation, and, at another, to translate law and norms into technical rules of everyday practice. Conceptual Metaphor Theory (CMT) provides the methodology for exploring the role metaphors play in policy texts. While metaphor is, outside of linguistics, commonly treated as an optional linguistic ornament used to convey an unfamiliar concept in terms of a familiar one, CMT claims metaphors are ever present features of language and fundamental to knowing. Analysis of metaphors in a key (Scottish) criminal justice policy text provides a case study for analysing how metaphors assist understanding a new category of offender – the serious violent and sexual offender. Equally important, the paper considers the possibility that the means of controlling such offenders – risk management – is itself a metaphor.

Glen on Posner & Sunstein on Collective Decision-Making & Foreign Law Application

Patrick J. Glen (Department of Justice, Civil Division, Office of Immigration Litigation) has posted On Learning from Nest-Seeking Honeybees and House-Hunting Ants: Collective Decision-Making and its Implications for a Condercetian Normative Theory of Foreign Law Application in U.S. Courts on SSRN. Here is the abstract:

This article presents a critique of Eric Posner’s and Cass Sunstein’s claim that Condorcet’s Jury Theorem provides a normative framework for the application of foreign law in U.S. courts. Through an examination of several biological studies testing the implications of the jury theorem in situations of consensus decisionmaking, I conclude that there are threshold, decisional, and perspectival flaws in the use of Condorcet in this context. The Jury Theorem does not provide a rationale or justification for the invocation of foreign law in any given case nor does it explain recourse to foreign law in one case but forbearance on such reliance in another. The Jury Theorem cannot adequately account for the necessary independence in the U.S. adjudicator during the decisionmaking process and thus cannot provide any touchstone basis on which or by which foreign law can be applied in U.S. courts. Finally, the schematic used by Posner and Sunstein fails to account for the fact that in many cases the U.S. will have already registered the relevant “vote” regarding the subject legal dispute. That being the case, the Jury Theorem presents no compelling argument as to why the U.S. should be made to change its vote simply because that vote places it in the minority of states. Thus, Condorcet does not provide an adequate or sufficient normative framework by which to govern the application of foreign law in U.S. courts.

Otto on Gender in International Law

Dianne Otto (University of Melbourne - Law School) has posted The Exile of Inclusion: Reflections on Gender Issues in International Law Over the Last Decade (Melbourne Journal of International Law, Vol. 10, No. 1, 2009) on SSRN. Here is the abstract:

This article reflects on gender issues in international law over the last decade, using Security Council resolutions 1325 and 1820 on women, peace and security as bookends. It describes the remarkable spread of feminist ideas throughout the UN system and illustrates the productivity that can flow from the institutional embrace of ‘emancipatory’ ideas. At the same time, the Security Council resolutions illustrate a number of major problems, which include a pattern of selective engagement with feminist ideas as they are instrumentalised to serve institutional purposes; an absence of strong accountability mechanisms; and the tendency for protective stereotypes of women to normatively re-emerge. It concludes by expressing uneasiness about lending feminist support to the hegemonic power of the increasingly emboldened Security Council, and questions what this might mean for the future of international law generally, and for feminist efforts to shape the law in particular. It argues that the past decade of feminist engagement with international law highlights the need to develop a deeper understanding of how to work with the possibilities and against the exile of institutional cooption.

Aviram on What Directors Maximize

Amitai Aviram (University of Illinois College of Law) has posted What Do Corporate Directors Maximize? (Not Quite What Everybody Thinks) (Journal of Institution Economics, Forthcoming) on SSRN. Here is the abstract:

The agency problem at the core of corporate law stems from a chronic potential conflict of interest between directors’ self-interest and that of shareholders. Corporate law views directors’ self-interest in terms of diverting welfare to directors at the expense of shareholders. Another component of directors’ self-interest – being perceived as maximizing shareholders’ welfare – is seen not as part of the agency problem but as part of the solution (aligning directors’ incentives with shareholders’).

This is true only if taking actions that maximize shareholders’ welfare is also the optimal manner for a director to be perceived as maximizing welfare. However, directors have more appealing ways to be positively perceived. In conducting bias arbitrage, directors identify risks that shareholders over-estimate, take action to address the risk, and then take credit for the “lowered” risk (i.e., shareholders’ corrected assessment of the risk).

Bias arbitrage is more attractive as shareholders’ misperception of a risk increases. The opportunity to bias arbitrage thus leads directors to address highly-misperceived risks instead of highly-remediable risks.

West on Reproductive Justice

Robin L. West (Georgetown University Law Center) has posted From Choice to Reproductive Justice: De-Constitutionalizing Abortion Rights (Yale Law Journal, Vol. 118, No. 7, pp. 1394-1431, 2009) on SSRN. Here is the abstract:

The Essay argues that the right to abortion constitutionalized in Roe v. Wade is by some measure at odds with a capacious understanding of the demands of reproductive justice. No matter its rationale, the constitutional right to abortion is fundamentally a negative right that rhetorically keeps the state out of the domain of family life. As such, the decision privatizes not only the abortion decision, but also parenting, by rendering the decision to carry a pregnancy to term a choice. It thereby legitimates a minimalist state response to the problems of pregnant women who carry their pregnancies to term and for poor parents who might need greater public support. These marginalized groups need greater community and state assistance with the demands of parenting, and the equation of reproductive justice with a right to terminate a pregnancy is in tension with a political or legal agenda for meeting those needs. The Essay then explores the possibility of creating a right to legal abortion through ordinary political means, rather than through constitutional adjudication, in such a way as not to carry these costs.

And from the paper:

By putting legal abortion in its place—that is, putting it in the context of a reproductive justice agenda pursued in the legislative arena—pro-choice advocates might find common cause with pro-life movements that responsibly seek greater justice for pregnant women who choose to carry their pregnancies to term, working families, and struggling mothers. I do not mean to suggest that progressive-feminist advocates and scholars have not been actively seeking these goals. Of course they have, and for a good long while. But at the level of theory, the pro-choice movement exists in considerable tension with those goals.89 And at the level of politics, the antipathy of pro-choice and pro-life advocates has veiled the possibility of coalitions on these issues, where interests are in fact aligned.90 Pro-life and pro-choice movements have a common interest in reducing the incidence of abortion, both by minimizing the number of unintended pregnancies and lowering the cost of mothering. They should also have a common interest in protecting the ordinary legal rights and interests of pregnant women who complete their pregnancies—rights that also are threatened by a legal regime that generally neglects the demands of reproductive justice.91 It might be time to give ordinary politics a chance to achieve common goals.

Highly recommended!

Charles Taylor & Jurger Habermas on Religion in the Public Square

Check out the Immanent Frame for a link to the audio.

Blogging from Florence: A Room With A View

I looking out the window the Seventh Floor of Dennis Patterson's apartment in the center of Florence.  I'm hear to give a lecture at the European University Institute--where Patterson holds the Chair in Legal Theory and Legal Philosophy, and I'll be blogging from this location for the next few days.  Truly, a room with a view--see snapshot!  I'll be talking to the graduate law students about the "toolkit" required for legal scholars in the Twenty-First Century.

Shanske on Enqquist v. Oregon Department of Agriculture

Darien Shanske (University of California, San Francisco - Hastings College of the Law) has posted Engquist and the Erosion of the Equal Protection Clause: An Attempt to Stop the Creep of Irrational Dicta (Hastings Law Journal, Forthcoming) on SSRN. Here is the abstract:

This article is about the erosion of the protections offered by the Equal Protection Clause resulting from the Supreme Court’s decision in Engquist v. Oregon Department of Agriculture, 128. S. Ct. 2146 (2008). Lower courts, purportedly following Engquist, have limited the reach of the Equal Protection Clause in several dozen cases in the last year. Until Engquist, it was uncontroversial that any person alleging irrational treatment by a government official could at least challenge the government official to give a reason that would satisfy rational basis review. Since the Supreme Court decided Engquist, lower courts have leapt to find that government officials cannot be found liable under the Equal Protection Clause for any action considered “discretionary.” It would be problematic if this striking curtailment of individual rights was actually required by the Supreme Court’s decision in Engquist, but the Court held no such thing, though the Court offered some expansive dicta that could be so interpreted. This article aims to counter the creep of these dicta among the lower courts and explains in particular why these dicta are not consistent with constitutional values./ul>

Furnish on Civil Jurisdiction & Tribal Courts

Dale Beck Furnish (Arizona State University - College of Law) has posted Sorting Out Civil Jurisdiction in Indian Country after Plains Commerce Bank: State Courts and the Judicial Sovereignty of the Navajo Nation (American Indian Law Review, Vol. 33, p. 385, 2009) on SSRN. Here is the abstract:

Navajo Tribal Courts Exercise Extensive Civil Jurisdiction ~ Many commentators feel that recent U.S. Supreme Court decisions curtail tribal courts’ jurisdiction over civil lawsuits, even while Congress and the federal Executive encourage Indian autonomy. Plains Commerce Bank v. Long Family Land & Cattle Co. (June, 2008) is the latest in that line of decisions. The article begins by assessing whether the case may have extended the U.S. Supreme Court limitations, and concludes that Plains Commerce Bank wastes its precedent in an extremely narrow holding, changing nothing in existing doctrine. The article then analyzes that Supreme Court doctrine in the context of the Navajo Nation’s tribal courts. Since 1958 the Navajo Nation has developed a strong court system. Prior to 1958, Arizona, New Mexico and Utah state courts exercised jurisdiction over all civil controversies involving Navajo Country. The advent of the Navajo (and other tribes’) courts has given rise to cases confronting the issue of when the states must defer their civil jurisdiction to the tribal courts. The three state courts have differing approaches to what is still a relatively new problem. Notably, Arizona’s Supreme Court has handed down some of the most extreme precedents against the civil jurisdiction of tribal courts, while New Mexico’s Supreme Court takes a balanced approach more considerate of tribal judicial sovereignty. The Navajo Nation Supreme Court, however, has a surer touch than the state courts in dealing with the issue. A series of Navajo opinions beginning in 2003 sets out a reasoned doctrine of assertive tribal court jurisdiction over civil lawsuits, carefully working within the U.S. Supreme Court precedents. The article concludes that the Navajo Nation’s tribal courts will develop a stronger and stronger role in the resolution of civil controversies in the three states its reservation touches, undeterred by anything that the U.S. Supreme Court is likely to decide.

Shany on Terror, Human Rights, & Humanitarian Law

Yuval Shany (Hebrew University of Jerusalem - Faculty of Law and Institute of Criminology) has posted Human Rights and Humanitarian Law As Competing Legal Paradigms for Fighting Terror (COLLECTED COURSES OF THE ACADEMY OF EUROPEAN LAW, HUMAN RIGHTS AND INTERNATIONAL HUMANITARIAN LAW, VOL. XIX/1, Orna Ben Naftali, ed., Forthcoming) on SSRN. Here is the abstract:

In a recent article on the interplay between international law and politics, Marti Koskenniemi wrote that "much about the search for political direction today takes the form of jurisdictional conflict, struggle between competing expert vocabularies, each equipped with a specific bias" and that "[p]olitical intervention is today often a politics of re-definition, that is to say, the strategic definition of a situation or a problem by reference to a technical idiom so as to open the door for applying the expertise related to that idiom, together with the attendant structural bias." The "war on terror" in the first decade of the Twenty First Century exemplifies such political struggles over the governing legal paradigm. Not only is the meaning of the term "terrorist" itself controversial; the legal framework governing the fight against terrorism is also highly contested, and features an intense struggle between a human rights centered "law enforcement" paradigm and a more aggressive humanitarian law based "armed conflict" paradigm. Describing the paradigm struggle in Koskenniemic terms not only reveals, once again, the potential for the strategic use of the law; it also exposes the meta-differences between human rights law and humanitarian law. The considerable political capital and legal efforts invested in jockeying between the two competing paradigms casts doubt on the increasingly common narrative of the growing merger between human rights law and humanitarian law and the irrelevance of distinguishing between the two. Moreover, it is now clearer than before that the ideological tensions between the two camps supporting the competing paradigms cannot be avoided even if a mixed paradigm were to be developed to govern the fight against terror (as is increasingly alleged). Such a development may simply lead to the channeling of the same ideological struggles that had been held over the choice of paradigm to disagreement on the contents and direction of the new mixed paradigm. In Part One of this Chapter, I describe the jurisdictional struggle between the two principal legal paradigms that purport to regulate the international fight against terror: The law enforcement and the armed conflict paradigms. Arguably, many disagreements concerning the lawfulness of specific counter-terrorism, such as targeted killings or detention without trial, are actually disagreements on the applicable legal framework and the stories on the nature of the threat of terrorism that is being offered. In Part Two, I consider the emergence of a mixed paradigm which borrows contents from both human rights law and humanitarian law. I argue that such normative cross-over illustrates the difficulty of maintaining rigid paradigmatic distinctions in light of the complexities of the fight against terror; but also that some key differences in emphasis between the two paradigms nonetheless remain. Most significantly, I argue that the development of a new mixed paradigm merely re-contextualizes preexisting jurisdictional struggles over the proper legal framework to govern the fight against terror. Part Three concludes.

Blank on International Financial Institutions & International Humanitarian Law

Laurie R. Blank (Emory Law School) has posted The Role of International Financial Institutions in International Humanitarian Law: A Report from the International Humanitarian Law Working Group on SSRN. Here is the abstract:

International financial institutions are increasingly involved in conflict situations and countries in which violations of international humanitarian law are widespread and devastating to the civilian population and the countries’ economic prospects. Many argue that structural and political concerns pose obstacles to the development of a role for IFIs in promoting adherence to and enforcement of international humanitarian law. Others, however, suggest that IFIs are well placed to make some contribution to the implementation and enforcement of humanitarian law. In addition, factoring humanitarian law violations into IFI decision-making processes can actually be essential to the effective implementation of their own mandates.

Any policy an IFI enacts in countries marked by conflict and atrocities will send a message about the institution’s level of tolerance for or abhorrence of humanitarian law violations. Because an IFI’s influence makes the very act of engagement, even if on the basis of economic considerations alone, just as symbolic as that of disengagement, placing the financial weight of the IFIs behind international humanitarian law can help to dissuade states and other actors from committing atrocities for fear of losing much-needed financial assistance. In addition, atrocities can have significant and direct economic effects that IFIs should take into consideration, including disrupting the regular functioning of the economy and hindering the reconstruction of the economy after the conflict.

A role for IFIs in the implementation and enforcement of international humanitarian law does not mean that they must always withdraw or reduce funding; rather, it requires that IFIs consider the impact of humanitarian law violations as a factor in making policy and decisions. Existing practice demonstrates that IFIs already do occasionally incorporate these concerns into their analyses and suggests several potential opportunities for IFIs to make a contribution in this area: examining the links between violations of international humanitarian law and prospects for economic growth and stability; sharing information with other international and multilateral organizations; supporting UN Security Council decisions and operations taken under Chapter VII; adopting formal conditionality policies; and applying informal conditionality in the course of daily operations.

Blank & Guiora on the Law of Armed Conflict & New Warfare

Laurie R. Blank and Amos N. Guiora (Emory Law School and University of Utah - S.J. Quinney College of Law) has posted Teaching an Old Dog New Tricks: Operationalizing the Law of Armed Conflict in New Warfare (Harvard National Security Journal, Vol. 1, 2010) on SSRN. Here is the abstract:

Current strategy in Afghanistan starkly illustrates the extraordinary challenges new warfare poses for commanders on the ground. U.S. forces fight the Taliban and al-Qaeda in Afghanistan, but must do so while above all protecting Afghan civilians from both enemy attacks and the effects of U.S. counterinsurgency operations – a difficult and complicated task.

As new warfare became a prevalent – and now predominant – form of conflict, the law did not adapt appropriately to the complicated scenarios new warfare presented. The international community continued to focus on traditional visions of combatants and civilians, notwithstanding the disconnect between that framework and the reality on the ground in new warfare. Most criticisms of the law argued that the law could no longer apply, when, in fact, such critiques simply did not examine how it could apply in a more agile way. Agility means that the law can adapt to changing circumstances and meet the needs of policymakers and commanders on the ground alike; that the law must allow room for new ways of thinking that uphold the law’s goals and principles precisely when they are under fire. To maximize that agility, we operationalize the law with a new framework and guidelines for commanders.

In traditional state vs. state conflict, applying the legal obligations of distinction and proportionality through on-the-ground guidelines was relatively simple; in new warfare, it is immensely complicated. The law of armed conflict does not presently provide commanders with the tools they need to fulfill their mission while simultaneously protecting their soldiers and innocent civilians alike. We re-categorize and re-define persons in the zone of combat to enable commanders to distinguish between innocent civilians and legitimate targets, and separate the latter group into several sub-categories: members of organized armed groups, permanent targets, recurring targets, transitory targets, and legitimate subjects of detention. Using these new categories, we provide commanders with effective tools to distinguish among persons in the zone of combat. Commanders can then determine who (and how) to target, who to detain and who to protect – the only way to meet the twin goals of mission success and protection of innocents.

Conference Announcement: Princeton Graduate Conference in Political Theory

Graduate Conference in Political Theory
Princeton University
9-10 April 2010

The Committee for the Graduate Conference in Political Theory at Princeton University welcomes papers concerning any period, methodological approach or topic in political theory, political philosophy, or the history of political thought.  Approximately eight papers will be accepted.

Each session, led by a discussant from Princeton, will be focused exclusively on one paper and will feature an extensive question and answer period with Princeton faculty and students.  Papers will be pre-circulated amongst conference participants.

The keynote address will be given by Professor Sharon Krause, Professor of Political Science at Brown University.

Submissions are due via email to polthry@princeton.edu by Monday January 4th 2010.  Please limit your paper submission to 7500 words and format it for blind review (the text should include your paper's title but be free from other personal and institutional information).  Papers will be refereed by current graduate students in the Department of Politics at Princeton.  Acceptance notices will be sent in February.

Assistance for invited participants'  transportation, lodging, and meal expenses is available from the committee, which acknowledges the generous support of the Department of Politics, the University Center for Human Values, and the Graduate School of Princeton University.

All papers should be submitted by email.  Submissions by snail mail will not be accepted.

Questions and comments can be directed to: polthry@princeton.edu

For more information, please visit the conference website at https://politicaltheory.princeton.edu/

Winkler on Free Speech & Federalism

Adam Winkler (University of California, Los Angeles - School of Law) has posted Free Speech Federalism (Michigan Law Review, Vol. 108, 2009) on SSRN. Here is the abstract:

For decades, constitutional doctrine has held that the Constitution’s guarantee of freedom of speech applies equally to laws adopted by the federal, state, and local governments. Nevertheless, the identity of the government actor behind a law may be a significant, if unrecognized, factor in free speech cases. This Article reports the results of a comprehensive study of core free speech cases decided by the federal courts over a 14-year period. The study finds that speech-restrictive laws adopted by the federal government are far more likely to be upheld than similar laws adopted by state and local governments. Courts applying strict scrutiny in free speech cases upheld federal speech laws in 56% of cases, state speech laws in 24% of cases, and local speech laws in a remarkably low 3% of cases. It turns out that one of the best predictors of whether a law impinging on speech rights will be upheld is the identity of the governmental actor who adopts the law. The reasons for this “free speech federalism” and the implications of this phenomenon for constitutional adjudication are explored.

And from the paper:

The impact of the different levels of government on free speech cases has gone unnoticed since the mid-century demise of Justice Harlan’s pro- posal for First Amendment tailoring. Although Harlan’s proposal for disparate judicial treatment of federal and state speech restrictions was for- mally rejected, in practice the level of government still matters to judicial review in more or less hidden, unrecognized ways. The empirical analysis of federal court free speech decisions offered here shows that despite the same standard of review, there is a big difference between federal and state and local laws. Federal speech laws survive more than half the time, state laws survive only a quarter of the time, and local laws almost always fail. This free speech federalism is likely attributable to some combination of federal courts deferring to federal lawmakers and the relative poor quality of law- making at the lower levels of government.

Recommended.

Dimick on Union Democracy

Matthew Dimick (Georgetown University Law Center) has posted Revitalizing Union Democracy: Labor Law, Bureaucracy, and Workplace Association on SSRN. Here is the abstract:

Do core doctrines of labor-relations law inhibit the internal democratic governance of labor unions in the United States? The subject of union democracy has recently recaptured the interest of scholars and activists interested in ways to “revitalize” the American labor movement. The contention of this Article is that that the principle of exclusive representation, work-stoppage law, and collective-bargaining law combine to directly or indirectly undermine what I call “workplace association,” a critical component in the florescence of union democracy. To make this argument, I develop a model of union democratization, formalized in the Appendix, that highlights the role of union bureaucracy and workplace association in the success or failure of union democracy. The Article then uses the model to analyze the impact of US labor law on this game of union democracy and makes comparison to Great Britain, where labor law has contrasted dramatically, with equally divergent results for union democracy.

Bhagat & Romano on Executive Compensation

Sanjai Bhagat and Roberta Romano (University of Colorado at Boulder - Department of Finance and Yale Law School) have posted Reforming Executive Compensation: Simplicity, Transparency and Committing to the Long-Term on SSRN. Here is the abstract:

This Article advances an executive compensation reform proposal that is specifically addressed to firms receiving government financial assistance and thought to pose a systemic risk, although we think that all firms should consider its adoption. Executive compensation reform should lead to policies that are simple, transparent, and focused on creating and sustaining long-term shareholder value. With these criteria in mind, we suggest that incentive compensation plans should consist only of restricted stock and restricted stock options, restricted in the sense that the shares cannot be sold nor the options exercised for a period of at least two to four years after an individual resignation or last day in office. We would permit a minor amount to be paid out to executives currently to address tax, liquidity, and premature turnover concerns that the proposal could induce. We believe that this approach will provide superior incentives for executives(and traders whose actions can substantially impact an organization) to manage firms in investors longer-term interest, and diminish their incentive to make public statements, manage earnings, or accept undue levels of risk, for the sake of short-term price appreciation. By reducing management incentive to take on unwarranted risk, our proposal would therefore also decrease the probability that public resources will be dissipated in bailouts of financial firms, particularly those deemed by public officials as “too big to fail.”

Lambert on Resale Price Maintenance

Thomas A. Lambert (University of Missouri - School of Law) has posted A Decision-Theoretic Rule of Reason for Minimum Resale Price Maintenance on SSRN. Here is the abstract:

In its 2007 Leegin decision, the U.S. Supreme Court reversed a 96 year-old precedent declaring vertical minimum resale price maintenance (RPM) to be per se illegal. The Court held that RPM should henceforward be evaluated under antitrust’s more lenient rule of reason, and it directed the lower courts to craft a structured liability analysis that will separate pro- from anticompetitive instances of the practice. Thus far, courts, regulators, and commentators have proposed four types of approaches for evaluating instances of RPM: (1) approaches focused on the effects on consumer prices; (2) approaches focused on the identity of the party initiating the RPM (i.e., manufacturer or dealer(s)?); (3) approaches focused on whether the product at issue is sold along with dealer services that are susceptible to free-riding; and (4) an approach, favored by the Federal Trade Commission, that mechanically applies factors the Leegin Court deemed to be relevant to the liability question.

Reasoning from a decision-theoretic perspective that seeks to minimize the sum of the error costs and decision costs expected to result from a proposed liability rule, this Article critiques these four sets of proposed approaches. Finding each deficient, the Article sets forth an alternative evaluative approach that would minimize the sum of decision and error costs, thereby maximizing the net social benefits of RPM regulation.

Guiora on Comparative Counterterrorism

Amos N. Guiora (University of Utah - S.J. Quinney College of Law) has posted Not "By All Means Necessary': A Comparative Framework for Post-9/11 Approaches to Counterterrorism (Case Western Reserve Journal of Int'l Law, Vol. 42, Forthcoming) on SSRN. Here is the abstract:

Counterterrorism significantly benefits from a comparativist approach. Precisely because no one country has the monopoly on effective operational measures, nation states significantly benefit from analyzing measures applied by other states confronting similar dilemmas and challenges subject to the role of law. To that end, this article examines the policies of targeted killing and administrative detention as applied in Israel and asks whether and how they are applicable to American counterterrorism. In asking this question, it is important to determine whether the two policies are relevant to the U.S. legal framework. An important consideration is how the differences between Israeli and American societies, geographies, constitutions, and strategies condition the counterterrorism policy of each country. As a result of such differences, what works in one country may not work in another. While I am an unequivocal advocate for comparative research and analysis and have sought to bring this approach to my scholarship, I am fully aware of its limitations. That said, I firmly believe that nation states can and must learn from each other. While judicial, constitutional, and societal paradigms are unique and distinct, like-minded civil, democratic states must undertake the critical effort to understand how similar countries address similar issues.

Tiersma on Jury Instructions

Peter Tiersma (Loyola Law School - Los Angeles) has posted Communicating with Juries: How to Draft More Understandable Jury Instructions on SSRN. Here is the abstract:

This manual is intended to provide practical advice to judges and lawyers who need to draft jury instructions. It begins with some general principles of clear communication. Next, it provides guidelines for the more specific task of drafting jury instructions. The last half of the manual contains some actual examples, both civil and criminal, of some traditional and plain language instructions, along with commentary on how they can be improved.

Ben-Shahar on Easterbrook on Pre-Closing Liability

Omri Ben-Shahar (University of Chicago Law School) has posted Pre-Closing Liability (University of Chicago Law Review, Vol. 77, No. 4, 2010) on SSRN. Here is the abstract:

Two years after Penzoil v. Texaco threatened to burst the seam of contract formation and find binding commitments before negotiations ended, Judge Easterbrook stitched the rupture. His landmark decision in Empro v. Ball Co. held that a letter-of-intent, which is subject to the preparation of a more comprehensive formal document, is not binding. Each party can freely walk away from it prior to the closing, without incurring any liability and without the court scrutinizing the reasons for the negotiations breakdown. Many courts have since cited and followed Judge Easterbrook’s approach. In this commentary, I argue that that this freedom to walk away from negotiations is too broad and in conflict with the ex ante interests of the parties. Intermediate liability at the pre-closing stage would induce more efficient levels of precontractual reliance, benefitting both parties. I develop one possible foundation for an intermediate liability regime and demonstrate how it would apply in the case.

Picker on Easterbrook on Copyright

Randal C. Picker (University of Chicago - Law School) has posted Easterbrook on Copyright (University of Chicago Law Review, Vol. 77, No. 4, 2010) on SSRN. Here is the abstract:

In this essay prepared in celebration of Judge Frank Easterbrook’s 25th year on the bench, I focus on what copyright students learn from him. Three of his dozen or so copyright opinions turn up repeatedly in copyright casebooks: Nash v. CBS, Inc.; Lee v. A.R.T. Co.; and ProCD, Inc. v. Zeidenberg. This is a surprising success rate for a judge from the copyright-starved 7th Circuit. Judge Easterbrook has an eye for fundamental questions, writes opinions that are brief while treating issues fully and has a distinctively lively Easterbrookian style, one that he preserves by refusing to outsource his opinions to his clerks.

Nash poses a key conceptual question: if only one person believes something to be a fact, is it a copyright fact? We confront the idiosyncratic fact, that is a claim of fact that may be believed by only one person and by no one else. Nash is casebook-worthy alone because of the factual situation it encompasses, as it is the law-school hypo come alive. The opinion nails down a key conceptual boundary question for copyright: copyright facts and actual facts may have little to do with each other.

Lee answers the age-old question: what does glue do? Annie Lee created postcards of her original art. A.R.T. Co. glued postcards to tiles and sold them. In doing so, does A.R.T. violate Lee’s exclusive right to make derivative works as set forth in Section 106(2)? Lee is a refreshingly brief opinion, little more than five columns in F3d, yet, like Nash, it poses in simple fashion a basic question about the operation of copyright. Boundary cases are particularly important because legal analysis frequently builds off of what is taken as given: if x is right, then y must follow. Lee does exactly that for derivative works, an area of increasing importance for copyright.

Finally. ProCD is one of Easterbrook’s best-known decisions, studied by contract students and copyright students alike. ProCD is the opinion that the copyright casebooks love to hate. Easterbrook validates the contract that limits the subsequent use of the ProCD database and wrestles with the tricky question of the interaction between copyright and contract.

Student learn to pay close attention to the text of the copyright statute and to appreciate how that text operates in critical boundary settings. The opinions are written with a distinctive élan, with a little bit of law and economics thrown in, though less than you might expect given Frank’s deep academic roots. Students should understand that the business of deciding cases is a different one than of engaging in an abstract academic inquiry. Easterbrook on copyright is somehow a work of interest, fun and yet discipline all at the same time.

Foley on Privatizing FDA Review of Medical Devices & Drugs

Elizabeth P. Foley (Florida International University College of Law) has posted Teaching the Elephant to Dance: Privatizing the FDA Review Process on SSRN. Here is the abstract:

Considers the implications of privatizing the Food and Drug Administration's (FDA) review of the safety and efficacy of medical devices and drugs. Concludes that the FDA's flaws - namely, a risk avoidance culture and autocratic style of regulation -- can only be accomplished by breaking the agency's monopolization of this review function.

Goodrich on Law on the Disciplines

Peter Goodrich (Yeshiva University - Cardozo Law School) has posted Intellection and Indiscipline (Journal of Law and Society, Vol. 36, Issue 4, pp. 460-480, December 2009) on SSRN. Here is the abstract:

A discipline will usually become the object of study and its relationship to other disciplines a moment of concern when its borders are precarious and its definition in dispute. Law, ‘the oldest social science’, is arguably both prior to discipline — it emerges initially and most forcefully as a practice — and without discipline, its object being potentially all human behaviour. If law is necessarily between and among disciplines, both prone to moonlighting and everywhere homeless, it will also always be in some mode of scholarly crisis. Certain conclusions follow. Law is paradoxically dependent upon other disciplines for its access to the domains that it regulates. The greater its epistemic dependency, however, the slighter its political acknowledgment of that subordination. Which allows a positive thesis: the epistemic drift of law can carry the discipline to a frank acknowledgment of the value of indiscipline both to novelty and intellection.

Mank on Summers v. Earth Island Institute

Bradford C. Mank (University of Cincinnati - College of Law) has posted Summers v. Earth Island Institute Rejects Probabilistic Standing, But a 'Realistic Threat' of Harm is a Better Standing Test (Environmental Law, Vol. 40, 2010) on SSRN.  Here is the abstract:

In Summers v. Earth Island Institute, the Supreme Court recently rejected Justice Breyer’s dissenting opinion’s proposed test for organizational standing based upon the statistical probability that some of an organization’s members will likely be harmed in the near future by a defendant’s allegedly illegal actions. Implicitly, however, the Court had recognized some form of probabilistic standing in Friends of the Earth v. Laidlaw, which found standing where plaintiffs avoid recreational activities because of “reasonable concerns” about future health injuries from pollution; Summers did not overrule Laidlaw. There is an inherent tension between the Summers and Laidlaw decisions. This Article applies the Summers and Laidlaw frameworks to the facts in Natural Resources Defense Council v. EPA (NRDC II), where the D.C. Circuit found standing because the government’s exemption from regulation of certain uses of methyl bromide, an ozone destroying chemical, would causes 2 to 4 lifetime skin cancer cases among the NRDC’s members. Both Summers and Laidlaw produce questionable results when applied to NRDC II’s facts.

The “realistic threat” test in Justice Breyer’s dissenting opinion in Summers offers a better approach to standing than either Summers’ unrealistic demand that plaintiffs precisely predict the future or Laidlaw’s focus on whether a plaintiff avoided recreational activities rather than whether the defendant’s activities caused actual harm. There was a more realistic threat of harm in Summers than Laidlaw, but the Court found standing in the latter case but not the former case. The Court’s current approach to standing for organizational plaintiffs and probabilistic risks is seriously flawed and the realistic threat test offers a more rational approach to assess which injuries are sufficiently serious for standing in Article III federal courts. Furthermore, a realistic threat test for standing is more consistent with congressional intent in enacting several citizen suit statutes that are involved in the vast majority of cases in which constitutional standing is at issue. In light of NRDC II, the Court should abandon both the Summers and Laidlaw approaches to standing and instead adopt Justice Breyer’s proposed “realistic threat” test to achieve reach more equitable and uniform standing determinations.

Epstein on NRA v. City of Chicago

Richard A. Epstein (University of Chicago - Law School) has posted NRA v. City of Chicago: Does the Second Amendment Bind Frank Easterbrook? (University of Chicago Law Review, Vol. 77, No. 4, 2010) on SSRN. Here is the abstract:

In NRA v. City of Chicago, Judge Easterbrook held that the Second Amendment, which protects the right to keep and bear arms, did not bind state governments. This article examines the reasoning that he uses to reach that result, which it contrasts with the style of argumentation that led to the opposite conclusion in Judge O’Scannlain’s decision in Norkdye v. King. Easterbrook’s approach emphasized the imperative need for lower court deference to the Supreme Court’s explicit Reconstruction Era holdings that the Second Amendment does not bind the states, even after the Supreme Court’s game-changing decision in District of Columbia v. Heller and thus gave only scant attention to the various historical authorities that O’Scannlain referred to in Nordyke. On balance it appears that Easterbrook is against incorporation on a variety of historical and federalism grounds, none of which are likely to prevail when the Supreme Court addresses the issue of incorporation when it hears the case later in the 2009 October Term.

Hasen on Campaign Financing for Presidential Election

Richard L. Hasen (Loyola Law School - Los Angeles) has posted The Transformation of the Campaign Financing Regime for U.S. Presidential Elections on SSRN. Here is the abstract:

Since the mid-1970s, the United States system for the financing of presidential election campaigns has been a mixture of private fundraising by candidates, parties, and outside groups and optional public financing for candidates (and for political party conventions). The 2008 presidential election-with its record-breaking $1.8 billion campaign (including an astounding $745.7 million raised by then-Democratic candidate Barack Obama) (FEC 2009) - demonstrated that the current system is in the midst of a major transformation. This chapter explains how the system is changing, offers possible reasons for the transformation, and evaluates the transformation normatively.

Part I shows how the system is changing in four ways. (1) The voluntary presidential public financing system is no longer viable; candidates who opt in do so out of weakness, not strength. (2) A major share of private campaign contributions to presidential candidates in 2008 have come through campaign finance “bundlers” and from micro-donors giving very small amounts via the Internet. (3) Thanks to a U.S. federal law, Bipartisan Campaign Reform Act of 2002 (BCRA), political parties can no longer accept very large campaign contributions (“soft money”) from wealthy individuals, corporations, and labor unions to pay for political advertising. (4) Wealthy individuals, corporations, and labor unions have shifted some, though not necessarily all, of the money that used to go to political parties and to “issue advocacy” into outside groups (including so-called “527 organizations”).

Part II explains that these four changes have likely arisen from a number of factors including: (1) the failure of the U.S. Congress to update the presidential public financing system, first enacted in 1974; (2) enactment of BCRA and the U.S. Supreme Court’s shifting interpretation of the constitutionality of campaign finance law; (3) the rise of cheap political speech via the Internet; and (4) continued political polarization.

Part III explores normative implications. The potential for quid pro quo corruption of candidates appears to remain low, thanks to a series of laws imposing contribution limits. Sale of access to candidates, however, remains a feature of U.S. presidential elections even post-BCRA. From the standpoint of political equality, the transformation offers a mixed bag with somewhat offsetting effects. Thus, the collapse of the public financing system may have anti-egalitarian effects, but those effects are somewhat militated by the rise of micro-donors. The end of soft money and the rise of outside non-party political organizations in theory could lead to weakened political parties, but continued polarization of the electorate have kept parties thriving even under BCRA and the shifting constitutional ground rules of the U.S. Supreme Court.

Huhn on Slaughterhouse, Bradwell, and Cruikshank

Wilson Ray Huhn (University of Akron - School of Law) has posted Legacy of Slaughterhouse, Bradwell and Cruikshank in Constitutional Interpretation (Akron Law Review, Vol. 42, No. 4, 2009) on SSRN. Here is the abstract:

The Slaughterhouse Cases, Bradwell v. Illinois, and Cruikshank v. United States, which were all decided between 1873 and 1876, were the first cases in which the Supreme Court interpreted the 14th Amendment. The reasoning and holdings of the Supreme Court in those cases have affected constitutional interpretation in ways which are both profound and unfortunate. The conclusions that the Court drew about the meaning of the 14th Amendment shortly after its adoption were contrary to the intent of the framers of that Amendment and a betrayal of the sacrifices which had been made by the people of that period. In each case the Court perverted the meaning of the Constitution in ways that reverberate down to the present day.

In these cases the Court ruled upon several critical aspects of 14th Amendment jurisprudence, including (1) Whether the 14th Amendment prohibits the States from interfering with our fundamental rights; (2) How the equality of different groups should be determined; and (3) How much power Congress has to protect the civil and political rights of American citizens - in particular, whether the 14th Amendment authorizes Congress to enact legislation to prevent mobs or other private individuals from violating people’s fundamental rights. The Court narrowly construed the constitutional principles of liberty, equality, and the power of Congress to protect civil rights.

Oliar on the IP Clause

Dotan Oliar (University of Virginia School of Law) has posted The (Constitutional) Convention on IP: A New Reading (UCLA Law Review, Forthcoming) on SSRN. Here is the abstract:

All have thus far considered the Constitutional Convention’s record on intellectual property puzzling and uninformatively short. This Article revisits that conventional wisdom. Using various methods of analysis, including a statistical hypotheses test, it solves historical puzzles that have long accompanied the events at the Convention leading to the framing of the IP Clause, and shows that hitherto neglected portions of the Framers’ debates are relevant to interpreting it. Its findings shed light on four unsettled questions of constitutional interpretation: they provide qualified support for the constitutionality of business method patents, patents for products of nature, and copyright protection for unoriginal factual compilations, and suggest that the IP Clause should be read as one unit rather than two distinct and independent powers for copyrights and patents.

Although I approached this article with some skepticism, I am now convinced that Oliar's analysis must be taken seriously and is sure to spark further debate. Highly recommended.  Download it while its hot!