McCain-Feingold Decision Hold Up
The decision on the constitutionality of the BCRA is very late. Why? Rick Hasen reports on a story filed by Nina Totenberg, filled with scandal and intrigue. Read Rick's two posts in the following order:
Bertram on the Difference Principle
Chris Bertram of the valuable Junius writes:
I gave my annual lecture on Rawls's (much misunderstood) difference principle last week and in preparation I read Philippe Van Parijs's rather good essay "Difference principles" in the excellent new Cambridge Companion to Rawls. Van Parijs writes that the thought that lies behind the difference principle is that the absolute size of the social cake is not independent of the way in which it is distributed and asks why this is so. Most expositions stress the role that incentives can play in eliciting more effort and developing the skills of those with more advantages, a suggestion that is the focus of a well-known critique of Rawls by G.A. Cohen. Van Parijs rather downplays the incentive arguments and suggests instead that a more important justification is that inequalites put assets in the hands of those who can use them best and take them away from those who make poor use of them: the resulting efficiency gains are such as to eventually benefit everyone and especially the least advantaged.
Here is Chris's full post--which goes off in a different direction. Sticking to the difference principle, however, . . . G.A. Cohen's Critique of the Difference Principle
I must admit to being almost utterly mystified by the traction that Gerry Cohen's critique of the difference principle has developed. Simplifying Cohen's argument for the purpose of bloggin, the core idea is that incentives should not be necessary for citizens who have internalized the difference principle. They ought simply to be motivated by the difference principle to work so as to make the least-advantages as well off as they can be. (Among the simplifications is that I am using the phrase "well off" and not discussing Rawls's idea of the "primary goods.") But this argument both misunderstands the point of justice as fairness and would lead to absurd consequences. Cohen Misses the Fundamental Idea of Reciprocity
Cohen's argument misses a fundamental premise of the Rawls's theory. The point of justice as fairness is not to benefit one group--the least advantaged. Rather, justice as fairness requires reciprocity--all must benefit. Cohen's argument would lead to a basic structure that (with respect to the primary goods) is aimed at the benefit of the least-advantaged, with no reciprocal advantage for other groups. This same point can be made another way. If Cohen were right, everyone who was not in the least advantaged group would be obligated to adopt the welfare (loosely speaking) of the least advantaged as their own goal in life. So long as there was a least advantaged group, no one outside that group would be entitled to their own comprehensive conception of the good. No one could pursue art, music, religion, or building a better Internet as a life plan, unless their action would produce the greatest benefit for the least well off as compared to any alternative course of action. From a Rawlsian perspective, Cohen's critique self destructs.
At Florida State, Robert Hillman (Davis) does Organizational Choices of Professional Services Firms: An Empirical Study.
At NYU's Faculty Workshop series, Fred Schauer (Visiting at NYU & Harvard, Kennedy School) is on the calendar.
This evening the number of visits for Legal Theory Blog went over 10,000 for the month of March. Although a smallish number by the standards of Instapundit or the Volokh Conspiracy, it seems quite respectable for a weblog that focuses on scholarship and ideas related to legal theory.
I am usually somewhat skeptical about appropriations of Wittgenstein--especially in the post-modern vein. Along those lines and courtesy of the really super PoliticalTheory.info, here is a paper by Melinda Kovács (Rutgers, Political Science) entitled Play nice: Towards a Wittgensteinian politics. Kovács essay detours hither and yon, ending:
The politics informed by Wittgenstein, in the domains of both theory and method, is indeed slow and messy. It is also incremental, non-revolutionary, and somewhat self-conscious or even hesitant. It is humble enough to avoid claims to knowledge of the world. It calls for action but not of the global or cosmic kind. It tells us we do not exactly have the choice of whether or not we want politics – it is a game that is already going on. So we may as well play nice.
Well maybe. But think about this. By far the most influential work in the Wittgensteinian tradition that reaches normative questions has been gone in a variety of neo-Aristotelian directions. Of course, Elizabeth Anscombe go the ball rolling in her famous essay, Modern Moral Philosophy, which was recently anthologized in Roger Crisp and Michael Slote's collection Virtue Ethics: Oxford Readings in Philosophy. This line of thought has been pursued in various ways--John McDowell's work is crucial. But for my money the big important moves were made by Philippa Foot--see especially her collection Virtues and Vices and her recent Natural Goodness. And contemporary work in this vein includes Rosalind Hursthouse's important book On Virtue Ethics. For references and more, see my Virtue Jurisprudence: A Virtue-Centered Theory of Judging. It doesn't really matter who is the true heir of Wittgenstien. It does matter whether the work lives up to the almost brutal rigor and self-critical introspection that makes Wittgenstein unique among twentieth century philosophers. Play nice? I think not!
Zittrain on Internet Points of Control
Jonathan Zittrain's paper entitled Internet Points of Control somehow slipped past me a week or two ago. I heard Jonathan do an earlier version of this at Boston College in the Fall--must reading for cyberprofs and others interested in legal regulation of the Internet. Here is a taste:
The most worrisome outcome is one in which filtering [by ISPs of unlawful content] creeps into the system in an ad hoc way, without formal evaluation of the standards by which it is taking place or the criteria by which ISPs choose to accede to such filtering when the requests are informal, or an ability to fully evaluate the nature of the sites filtered. To have sources of Internet content simply disappear from the perspective of others—at first for some rather than all—portends enormous but subtle control over who can say what on a formerly free-for-all medium. The Internet’s brilliant methodology of data routing—a flexible set of intermediaries functioning in tandem yet with little central coordination—offers multiple opportunities for control that are only now coming into focus for regulators. Such control cannot be accepted, even if initiated for substantively good intentions, without the most exacting of processes to avoid abuse, including a comprehensive framework where sov-ereigns’ actions to block material are thoroughly documented and open to challenge. If carefully implemented and circumscribed, however, govern-ment mandated destination-based filtering stands the greatest chance of ap-proximating the legal and practical frameworks by which sovereigns cur-rently sanction illegal content apart from the Internet. Attention to distinct points of control, then, can force cyber-libertarians to dispense with proce-dural or jurisdictional concerns about regulation and instead either to rely flatly on theories of free speech and action that go beyond even the most liberal governments’ current allowances, or to invoke Internet exceptional-ism to explain why it should be indeed freer than its analog media counter-parts.
A must download for those interested in the future of IP on the Internet.
A Law Student Blog with a Difference
Whatever your position on the war, you will be interested in Intel Dump. The blog of UCLA law student and former Army Officer. Read his informative post on Urban Warfare.
More Hasen on Judicial Nominations
While I was Flying Up From Rio, Rick Hasen has been more good stuff on judicial nominations. Here is his post on filibustering in the context of the war. And here is a post on the nomination and possible filibuster of Priscilla Owen. Rick may need to change the name of his Blog from Election Law to Judicial Nominations.