Legal Theory Blog

Fellowship Announcement: Center for Internet & Society at Stanford

2007-08 RESIDENTIAL FELLOWSHIP
CENTER FOR INTERNET AND SOCIETY
Stanford Law School

The Center for Internet and Society (CIS) at Stanford Law School is offering a one-year Fellowship (2007-2008) to work in conjunction with its Fair Use Project and Cyberlaw Clinic on public interest litigation involving copyright and technology issues. The CIS is a leading center for the study of the relationship between the public interest, law and technology. CIS was founded by Professor of Law Lawrence Lessig and is headed by Executive Director Jennifer S. Granick.

The Fair Use Project is a new CIS initiative launched in 2006 thanks to a generous gift from Google, Inc. Headed by Executive Director Anthony Falzone, the FUP's mission is to clarify, define and expand the bounds of fair use. The FUP's primary focus is litigation. It represents clients in non-commercial and commercial cases that present compelling issues of fair use and associated principles. Similarly, it provides legal representation to documentary filmmakers who comply with recognized fair use principles, providing assistance during production as well as a commitment to provide defend them should litigation arise.

The Cyberlaw Clinic is an in-house clinic taught by CIS Executive Director and attorney Jennifer Granick. It consists of eight to twelve students assisting in the direct representation of clients in matters involving security, privacy, free speech scientific innovation and technology, as well as policy analysis and public information campaigns. Illustrative litigation includes representing a company that distributes peer-to-peer file sharing software in a lawsuit filed by the recording industry; protecting the rights of Internet publishers to speak anonymously on- line; and protecting speech interests against claims of intellectual property infringement.

The Fellow will be directly and primarily responsible for one or more of the intellectual property 'impact' cases being litigated by the FUP and/or the Cyberlaw Clinic. The Fellow will also assist on other litigation and work with students in the Cyberlaw Clinic on cases and projects on an as-needed basis. In addition, the Fellowship may provide the opportunity for the pursuit of individual research and scholarship in preparation to enter the academic teaching market.

Qualifications: 2-5 years of post-law school civil litigation experience with substantial experience in intellectual property matters; Excellent writing and analytic skills; Demonstrated ability to direct litigation of impact cases; and Demonstrated ability to work in a self-directed and entrepreneurial environment. The position is for 12 months, with the possibility of renewal for a second twelve months. The start date is flexible, anytime from July 2007 to September 2007. At least two years of post-law school civil litigation experience is required. Salary will be approximately $40,000 per year, with benefits.

Interested applicants should submit a cover letter, resume, writing sample and a list of references to:

Jennifer S. Granick
Center for Internet & Society
Crown Quadrangle
559 Nathan Abbott Way
Stanford, CA 94305-8610

Applications may also be submitted by email to the following address: granick@stanford.edu. Applicants must also apply online via the Stanford Jobs website at http://jobs.stanford.edu/find_a_job.html; Job number 23428. Applications will be accepted until the position is filled. Preferred submission deadline is January 31, 2007. For more information about the CIS and the FUP, please visit our website at www.cyberlaw.stanford.edu.

H.L.A. Hart Fellowships at Oxford

One of the very best fellowship oppotunities is provided by the H.L.A. Hart Fellowships at Oxford.  Full details are in the continuation of this post or at: http://www.univ.ox.ac.uk/cepl/fellowships.pdf.  Because the deadline is approaching, this post will float at the top of the blog for the next few days.

Farrelly on Dworkin on the Possibility of Democracy

Colin Farrelly has a report on Dworkin's lecture, "Is Democracy Possible Here?" at Oxford.  Here is a taste:

Dworkin explained that he was motivated to write this book because he is upset with the sorry state of American politics. A state where politicians trade sound bites rather than arguments. Some believe that the division among Democrats and Republicans cannot be breached and thus neither side tries to convince the other. Instead, each side tries to overcome the other side. This thus inspires a "majority rules" conception of democracy that Dworkin finds deeply troubling.

Check it out!

Picker on Posnerian Bankruptcy Magic

Randal C. Picker (University of Chicago Law School) has posted Pulling a Rabbi Out of His Hat: The Bankruptcy Magic of Dick Posner (University of Chicago Law Review, Vol. 74) on SSRN. Here is the abstract:

This essay was written for a volume celebrating Judge Richard Posner's 25 years on the bench. The article considers his opinion in Bank of America v. Moglia, which addresses the status of rabbi trusts in bankruptcy. The rabbi trust is first and foremost a tax device, a way to ensure a contigent delayed payment and yet do so without incurring current tax income to the beneficiary of the trust. But the key condition that delays the receipt of income - namely that the assets of the trust remain available to the general creditors of the entity creating the trust - means that the trust operates as an asset partitioning device and a way to protect assets for unsecured creditors from potential invasion by secured creditors. Asset partitioning is ubiquitous, and we see it in many forms, such as limited liability corporations and securitization. It is rare to see a device that works to the benefit of a changing group of general creditors. The rabbi trust, as seen in Moglia, emerges as superior to the negative pledge, which may be its closest cousin.

Werbach on Connection Rules and Network Neutrality

Kevin D. Werbach (Legal Studies Department, The Wharton School) has posted Only Connect on SSRN. Here is the abstract:

There are two kinds of legal rules for communications networks, such as the Internet and the telephone system. Interconnection rules define how and when networks must exchange traffic with each other, and non-discrimination rules prevent networks from favoring some customers' traffic over others. Each approach has unique strengths and weaknesses. The distinction has never been fully appreciated, even though regulators have imposed both requirements many times.

Non-discrimination questions predominate in communications and Internet policy today, thanks to the high-profile battle over "network neutrality" rules for broadband networks. Yet both sides in the network neutrality debate are mistaken. The central challenge of our era of digital convergence is not non-discrimination, but interconnection. Technological and marketplace developments threaten to undermine the open connectivity that feeds the Internet's extraordinary dynamism. A renewed emphasis on interconnection could better address the concerns that animate the network neutrality debate. At the same time, it could avert a disastrous balkanization of the Internet, which otherwise looms as a real possibility.

In short, non-discrimination was crucial in the old era of scarcity; interconnection is the essential input of the new age of abundance. The central mandate for the emerging field of network infrastructure policy should be the one eloquently articulated by E.M. Forster: Only connect.

Sher on Negligence, Strict Liability, and Medical Malpractice Reform

Noam Sher (Interdisciplinary Center (IDC), Herzeliya - Radziner School of Law) has posted New Differences Between Negligence and Strict Liability and Their Implications on Medical Malpractice Reform (University of Southern California Interdisciplinary Law Journal, Vol. 16, 2007) on SSRN. Here is the abstract:

The article seeks to explore previously undiscussed differences between the negligence and strict liability rules and thereby examine the required medical liability reform, if such reform is indeed required. Our main thesis is that negligence as a basis for liability entails a unique mechanism, which is essentially different than the strict liability mechanism, and is more efficient for several reasons, related to the legal function of resolving partial information problems which cause partial failure in the healthcare market. Among other things, the negligence mechanism (1) motivates the parties to a potential damages claim to invest in information gathering; (2) motivates doctors and medical institutions to adjust the appropriate medical procedures through time; (3) uses the market players' professional reputation to resolve the market's partial information problems; (4) introduces the courts as an additional oversight level; and (5) assists the law in reducing costs resulting from lack of standardization. Furthermore, the negligence rule allows the law to ensure a more efficient risk distribution. One reason for that is that it allows the law to distribute risk resulting from negligent errors separately from the risk resulting from non-negligent errors.

This thesis leads to conclusions regarding various issues, such as the required medical liability reform. Inter alia, we argue that it is inappropriate to limit the negligence mechanism's application, such as shrinking the limitation period or by imposing damage caps. We also argue for the advisability of creating and refining mechanisms to assist in resolving the market's partial information problems. For example, general imposition of mandatory disclosure in the healthcare market, similar to that which is imposed on the securities market, including the establishment of a central authority such as the SEC and supportive mechanisms such as those applied to regulating the securities market.

Buckingham, D'Angelo, and Vaughn on Associate Deans for Faculty Research

Richard Buckingham , Diane D'Angelo and Susan Vaughn (Suffolk University - Law School , Suffolk University - Law School and Suffolk University - Law Schoo) have posted Law School Rankings, Faculty Scholarship, and Associate Deans for Faculty Research on SSRN. Here is the abstract:

The authors contend that a boom in law school rankings has encouraged many U.S. law schools to take new measures to encourage and publicize faculty scholarship. The establishment of associate deans for faculty research is one such measure. The authors conducted a study to determine the number of law schools that have these dean-level positions. They argue that many law schools have established these positions as part of their efforts to improve their standing in the increasingly important rankings.

The authors begin with a historical overview of the original law school model and discuss how that model evolved over time. They focus on how those changes led to a competitive law school market that helped lay the groundwork for U.S. News & World Report and other law school rankings. They then explore numerous alternative ranking methodologies and conclude with a study of ABA-accredited law schools that have appointed associate deans for faculty research.

Conference Announcement: Behavioral Approaches to Legal Compliance at Hebrew University (Jerusalem) & Bar Ilan University

Conference: Behavioral Approaches to Legal Compliance: Social Norms, Self-Interest and Cooperation

Organized by: Yuval Feldman, Alon Harel

May 14, 2007 (Hebrew University Law Faculty)

Panel I: Methodological Issues

9:30-10:45 Avishalom Tor, University of Haifa "The Methodology of the Behavioral and Experimental Analyses of Law" Commentator Oren Gazal(University of Haifa)

11:00-12:15 Richard McAdams, University of Illinois at Urbana-Champaign "Beyond the Prisoners' Dilemma, Equity Games, Social Frames, and Law" Commentator Ehud Gutel (Hebrew University)

Panel II: Egoistic vs. Altruistic Motivation for Compliance

13:00-14:15 Dale Miller, Stanford University "The Norm of Self-Interest" Commentator Meny Mautner (Tel-Aviv University)

14:30-15:45 Alois Stutzer, University of Basel (Co-authors: Lorenz Goette and Michael Zehnder) "Active Decisions and Pro-Social Behavior: A Field Experiment on Blood Donation" Commentator Gilad Hirschberger (Bar-Ilan University)

Panel III: Importance of Social Norms in Legal Compliance

16:15-17:30 Robert MacCoun, University of California, Berkeley (Co-authors: Philip J. Cook, Clara Muschkin and Jacob Vigdor, Duke University) "Distinguishing Spurious and Real Norm Effects: Evidence from the Lab and the Schoolyard" Commentator Alon Klement (IDC Herzelia)

17:45-19:00 Francesco Parisi University of Minnesota, University of Bologna, (Co-authors Emanuela Carbonara (University of Bologna) - Georg von Wangenheim University of Kassel, Germany ) "Unjust Laws and Illegal Norm" Commentator Tzili Dagan (Bar-Ilan University)

May 15, 2007 (Bar Ilan University Faculty of Law)

Panel I: Motivations for Legal Compliance

9:30-10:45 Tom Tyler, New York University "Psychological Perspectives for Legal Compliance" Commentator Oren Perez (Bar-Ilan University)

11:00-12:15 Amir Licht, Interdisciplinary Center, Herzeliah "Law and Social Norms: Why Peoples Obey the Law" Commentator Avi bell (Bar-Ilan University)

Panel II: The Role of Biases and Social Norms in Legal Compliance

13:00-14:15 Keren and Ron Shapira, Bar Ilan University "The Constructive Value of Over-Confidence" Commentator Alon Harel

14:30-15:45 Robert Cooter, University of California, Berkeley (Co-authors: Michal Feldman, Hebrew University, Yuval Feldman, Bar Ilan University) "The Misperception of Norms: The Psychology of Bias and the Economics of Equilibrium" Commentator Adi Eyal (Bar-Ilan University)

Panel III: Experimental Study of Social Dilemmas

16:15-17:30 Rupert Sausgruber, University of Innsbruck (Co-author: Gerald Pruckner, University of Innsbruck) "Trust on the Streets: A Natural Field Experiment on Newspaper Purchasing" Commentator Yuval Feldman (Bar-Ilan University)

17:45-19:00 Doron Teichman, Hebrew University (Co-author: Yuval Feldman, Bar Ilan University) "Were all 'Legal Dollars' Created Equal?" Commentator Gideon Parchomovsky (Bar-Ilan University) Supported by Hebrew University Forum for Law and Economics, Handler Foundation, Phillip and Estelle Mizock ; Marie Currie Grant (MIRG-CT 029168) and Bar Ilan Law Faculty.

Legal Theory Lexicon: Social Welfare Functions

Introduction One of the key ideas in contemporary economic theory in general and law and economics in particular is the social welfare function. Law students without a background in economics might be put off by the fact that social welfare functions are expressed in mathematical notation, but there is no reason to be intimidated. The basic ideas are easily grasped and the mathematical notation can be mastered in just a few minutes. This post provided an introduction to the idea of the social welfare function for law students, especially first year law students, with an interest in legal theory. Here we go!

Background

Normative Economics The idea of a social welfare function is part of normative economics. There are several plausible formulations of normative economics, but almost all of normative economics begins with the fundamental idea of utility as a conception or measure of the good. Economists may disagree about the nature of utility, the relationship of utility to social welfare, and the role of welfare in public policy, but most (if not all) economists would assent to the abstract proposition that ceteris paribus more utility is a good thing. But this apparent agreement is at a very abstract and ambiguous level. There are many different ideas about what "utility" is.

Cardinal and Ordinal Interpretations of Utility One key divide is between cardinal and ordinal interpretations of utility. An ordinal utility function for an individual consists of a rank ordering of possible states of affairs for that individual. An ordinal function tells us that individual i prefers possible world X to possible world Y, but it doesn't tell us whether X is much better than Y or only a little better.

A cardinal utility function yields a real-number value for each possible state of affairs. If we assume that utility functions yield values expressed in units of utility or utiles, then individual's utility function might score possible world P at 80 utiles and possible world Q at 120 utiles. We might represent the utility function U of individual i for P and Q as follows:

Ui(P) = 80 Ui(Q) = 120

The distinction between cardinal and ordinal utilities is potentially important for utilitarianism, at least on certain interpretations. As a theory of evaluation, utilitarianism is the view that an action is the best action if and only if the action maximizes utility when compared with all possible alternative actions. For technical reasons, utilitarianism requires both cardinality and full interpersonal comparability. This point about utilitarianism is closely related to the history of welfare economics, the explicitly normative branch of economic theory.

Measurement Problems Both cardinality and interpersonal comparability pose measurement problems for economists. Even in the case of a single individual, it is difficult to reliability measure cardinal utilities. Measurements that support interpersonal comparisons are even more difficult to justify, and cardinal interpersonal comparisons seem to require the analyst (the person making the comparison) to make a variety of controversial value judgments. Market prices won't do as a proxy for utility, for a variety of reasons including wealth effects. The challenge for welfare economics was to develop a methodology that yields robust evaluations but does not require the cardinal interpersonally comparable utilities.

Pareto This is the point at which Pareto arrives on the scene. Suppose that all the information we have about individual utilities is ordinal and non-interpersonally comparable. In other words, each individual can rank order states of affairs, but we (the analysts) cannot compare the rank orderings across persons. The weak Pareto principle suggests that possible world (state of affairs) P is socially preferable to possible world (state of affairs) Q, if everyone's ordinal ranking of P is higher than their ranking of Q. Weak Pareto doesn't get us very far, because such unanimity of preferences among all persons is rare. The strong Pareto principle suggests that possible world (state of affairs) P is socially preferable to possible world (state of affairs) Q, if at least one person ranks P higher than Q and no one ranks Q higher than P. Unlike weak Pareto, strong Pareto does permit some relatively robust conclusions.

The New Welfare Economics The so-called new welfare economics was based on the insight that market transactions without externalities satisfy strong Pareto. If the only difference between state P and state Q is that in P, individuals i1 and i2 engage in an exchange (money for widgets, chickens for shoes) where both prefer the result of the exchange, then the exchange is Pareto efficient. A state of affairs where no further Pareto efficient moves (or trades) are possible is called Pareto optimal. The assumption about externalities is, of course, crucial. If there are negative externalities of any sort, then the trade is not Pareto efficient.

Weak Pareto and the Arrow Impossibility Theorem Weak Pareto plus ordinal utility information allows some social states (or possible worlds) to be ranked on the basis of everyone's preferences. A method for transforming individual utility information into such a social ranking is called a social utility function. Kenneth Arrow's famous impossibility theorem demonstrates that it is impossible to construct a social utility function that can transform individual ordinal rankings into a social ranking in cases not covered by weak Pareto, if certain plausible assumptions are made. Arrow's theorem has spurred two lines of development in welfare economics. One line of development relaxes various assumptions that Arrow made; for example, we might relax Arrow's assumption that the social ranking must be transitive (if X is preferred to Y and Y is preferred to Z, then X must be preferred to Z). The other line of development considers the possibility of allowing information other than individual, noncomparable ordinal utilities. It is this second line of development that is relevant to the use of social welfare functions in contemporary law and economics.

Social Welfare Functions Suppose that we allow full interpersonal comparability and cardinal utility information. This is sufficient to support what are called Bergson-Samuelson utility functions, which have the form:

W(x) = F (U1(x), U2(x), . . . UN(x))

Where

W(x) represents a real number social utility value for some state of affairs (or possible world) X,
F is some increasing function that yields a real number,
U1(x) is a cardinal, interpersonally comparable utility value yielded by some procedure for individual 1 for state of affairs X, and
N is the total number of individuals.

Bergson-Samuelson social welfare functions are named after Paul Samuelson and Avram Bergson.

What Are the Plausible Social Welfare Functions? There are a variety of different possible functions that can be substituted for F. Here are some of the most important possibilities:

Classical-utilitarian SWF--We could substitute summation for F, and simply add the individual utility values; this is sometimes called a Benthamite or classical-utilitarian social welfare function famously associated with Jeremy Bentham. The classical utility social welfare function can be represented as follows:

W(x)={U1(x) + U2(x) + U(3(x) . . . Un(x)}

Average-utilitarian SWF--The classical SWF adds the utilities. This raises some very interesting issues when the different states of the world (x or y) have different population sizes. When deciding whether to add additional individuals, the classical-utilitarian SWF says more is better until we reach the point where adding more actually reduces the overall level of utility. One way to avoid this implication is use the average level of utility instead of the sum, as in the following formula:

W(s){[U1(x) + U2(x) + U(3(x) . . . Un(x)]/n}

In other words, we divide the sum of utilities by the number of individuals!


Bernoulli-Nash SWF--In the alternative, we could substitute the product function (¡Ç) and multiply individual utilities. This is sometimes called a Bernoulli-Nash social welfare function, which can be represented as follows:

W(x)={U1(x) * U2(x) * U(3(x) . . . Un(x)}

Rather than adding individual utilities, we multiply them! And yes, the "Nash" in Bernoulli-Nash is John Nash of "A Beautiful Mind" fame.

What About the Problem of Interpersonal Comparison? Social welfare functions are much discussed in legal theory these days. One of the reasons for the contemporary debate over social welfare functions is that this approach has been championed by Louis Kaplow and Steven Shavell (both of the Harvard Law School). Their book, Welfare versus Fairness, has put the welfarist approach to normative economics "front and center."

One of the interesting theoretical questons about SWFs concerns the problem of interpersonal comparison. How do we get the values to plug into U1(x), U2(x), and so forth. That is, how do we compare up with a way of putting my utility and your utility on the same scale. As I understand the state of play, this is not a topic on which economists agree. Some economists believe that there is no objective way of producing interpersonally comparable cardinal utility values. But some economists believe that a third-party (the legal analyst or the economist) can do the job of assigning values to individual utilities.

Conclusion We've barely begun to scratch the surface of the many interesting theoretical issues that attend the use of social welfare functions in legal theory. Some of those issues were explored in a prior Legal Theory Lexicon entry on Balancing Tests. Even if you have absolutely no background in economics, there is no reason to shy away from the debates about social welfare functions. The notation, although at first intimidating, is actually very simple. The foundational ideas, although sometimes articulated in the jargon of economic theory, really go to fundamental questions in moral theory. I hope this post has given you the tools to begin to discuss these ideas!

Legal Theory Bookworm

The Legal Theory Bookworm recommends Idel Code, Real World: A Rule-Consequentialist Theory of Morality by Brad Hooker.  Here is a description:

What are appropriate criteria for assessing a theory of morality? In Ideal Code, Real World, Brad Hooker begins by answering this question, and then argues for a rule-consequentialist theory. According to rule-consequentialism, acts should be assessed morally in terms of impartially justified rules, and rules are impartially justified if and only if the expected overall value of their general internalization is at least as great as for any alternative rules. In the course of developing his rule-consequentialism, Hooker discusses impartiality, well-being, fairness, equality, the question of how the 'general internalization' of rules is to be interpreted by rule-consequentialism, and the main objections to rule-consequentialism. He also discusses the social contract theory of morality, act-consequentialism, and the question of which moral prohibitions and which duties to help others rule-consequentialism endorses. The last part of the book considers the implications of rule-consequentialism for some current controversies in practical ethics.

And here are some of the blurbs:

This is a lucidly written and skillfully argued book by a thoughtful, discerning, and fair-minded philosopher with an enviable command of the relevant literature. Anyone interested in consequentialism or, indeed, in ethical theory generally should read it."--William Shaw, Mind

"Scanlon did us a great service by articulating a contractualist conception of right and wrong and Hooker matches him in providing an up-to-date, up-to-the-mark version of the rule-consequentialist alternative."--Philip Pettit, Times Literary Supplement

"Hooker's book covers a lot of ground, and does so in a stimulating and often convincing way."--THEORIA, A Swedish Journal of Philosophy

"The book passes succinctly from meta-ethical innovations, through detailed comparisons with other major moral theories to a series of provocative real world applications... This is the best available interpretation of the collective strand of the Consequentialist tradition."--Tim Mulgan, Philosophical Quarterly

"Has the special virtue of being both intelligible to general readers and powerful enough to advance the subject for specialists...an indispensable resource for anyone seriously assessing the major theoretical alternatives in normative ethics."--Robert Audi, Utilitas

"All in all, Ideal Code, Real World is a truly first-rate work in moral philosophy. Hooker's writing is clear and succinct, and his argumentation is powerful. This book is a major contribution to normative moral theory, simply 'must' reading for anyone interested in ethics."--Mark Timmons, Philosophy and Phenomenological Research

"This book seems to me the best statement and defence, so far, of one of the most important moral theories."--Derek Parfit, University of Oxford

"Brad Hooker's book is excellent. It offers a novel theory. It is well argued and fun to read. I highly recommend it to my colleagues. I also think that it would be a very good book to use in an upper-division ethical theory course, or a graduate course on ethical theory."--Julia Driver, Notre Dame Philosophical Reviews

"Ideal Code, Real World is an admirably honest and intellectually rigorous attempt to defend ideal code consequentialism. The book is striking in its comprehensiveness, not that it covers everything, but that it discusses enough issues of different sorts that the discerning reader will know how to
apply the argumentative strategy to other issues. In this regard, the book should prove highly valuable in both graduate and undergraduate courses dedicated to the structure of moral theory."--George Harris, Ethics

"Very well-written, extremely clear and, given its wealth of content, wonderfully concise. It deserves to be very widely read and extensively discussed."--James Lenman, Philosophical Books

"If you think rule-consequentialism was refuted years ago, then this book will give you serious reason to change your mind. Even if you don't think that, I bet your arguments are not as good as those in Brad Hooker's book...a model of lucidity, elegance, economy, and consideration for the reader.

This book is a superb accomplishment."--Andrew Moore, Australasian Journal of Philosophy

"Hooker's writing is very concise and clear, yet technical. He demonstrates a wide knowledge of ethical theory. Scholarly and closely argued."--Choice

Let me just add that this is a superb book--both a state of the art defence of rule consequentialism and an accessible acount that will speak to legal theorists whose primary background is not in philosophy!