Legal Theory Blog

Legal Theory Bookworm

The Legal Theory Bookworm recommends Retained by the People: The "Silent" Ninth Amendment and the Constitutional Rights Americans Don't Know They Have by Dan Farber.  Here is a description:

An original and wide-ranging argument for an overlooked part of the Constitution--the "subversive" Ninth Amendment--and why it is crucially important.

The Ninth Amendment lurks like an unexploded mine within the Bill of Rights. Its wording is direct: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." However, there is not a single Supreme Court decision based on it. Even the famously ambitious Warren Court preferred to rely on the weaker support of the Fourteenth Amendment's Due Process Clause for many of its decisions on individual rights. Since that era, mainstream conservatives have grown actively hostile to the very mention of the Ninth Amendment.

Daniel Farber, a law professor at the University of California at Berkeley, makes an informed and lucid argument for employing the Ninth Amendment in support of a large variety of rights whose constitutional basis is now shaky. The case he makes for the application of this unused amendment has profound implications in almost every aspect of our daily lives.

Farber is one of the most original and intersting constitutional theorists working today.

Download of the Week

The Download of the Week is Contractualism About Contract Law by Robin Kar.  Here is the abstract:

Modern contract theory is in a quandary. Whereas consequentialist theorists typically point to principles of efficiency-maximization to account for the rules of modern contract law, and deontological theorists typically point to considerations of liberty or the ordinary morality of promise-keeping, none provides a satisfying and unified account of three central and highly stable aspects of modern contract law. These are: first, the standard remedies granted for contractual breaches; second, the centrality of the consideration doctrine; and, third, the tension between legal doctrines that require courts to defer to parties' voluntary assent when determining the existence or content of contractual obligations and doctrines that allow courts to police bargains for fairness. In this Article, I argue that contractualism - especially as elaborated in connection with Stephen Darwall's recent work on the second-person standpoint - has the power to harmonize these doctrines.

In most other areas of normative inquiry, contractualism has held a solid place, but the view is conspicuously absent in most theoretical debates about modern contract law. To explain this absence, I canvass a number of reasons why contractualism might appear to be an unpromising theoretical standpoint from which to account for the rules of modern contract law. I argue that these considerations are, however, better understood as placing special constraints on the form that any satisfying contractualism about contract law must take. In the remainder of the Article, I then develop an account that meets these special constraints.

Given the robustness of efficiency-based explanations of contract law doctrine, one important constraint will be that contractualism provide a more robust explanation of doctrine than efficiency theorists can. In the substantive portions of the Article, I therefore argue that there are aspects of the standard contract law remedies - including the expectation damages remedy - that cannot in fact be fully explained or justified in terms of familiar notions like “efficient breach.” These same aspects can, however, be accounted for from within the second-person standpoint. If Darwall is right, then this standpoint commits to a contractualist account of what we owe to one another. In the remainder of the Article, I therefore develop a contractualist account of modern contract law that is, I argue, more robust than both current efficiency and promise-based theories - at least in relation to the three central doctrines under discussion.

The resulting view promises to reconcile modern liberalism with a number of modern contract law's puzzling features. It also promises to help us identify the appropriate role and limits of doctrines that allow or require courts to police private bargains for fairness. Together, these facts warrant, at minimum, further time and attention to developing the view and extending it to a broader range of doctrine. Contractualism about Contract Law should - I argue - hold a central place in theoretical discussions of modern contract law.

Very highly recommended.  Download it while its hot!

Spencer on Wrongful Convictions & Acquittals

Bruce Spencer (Northwestern University - Institute for Policy Research) has posted On Measuring the Balance between Wrongful Convictions and Wrongful Acquittals in Criminal Trials on SSRN.  Here is the abstract:

Verdicts in criminal trials can err by convicting an innocent person or acquitting a guilty defendant. Although the ideal error rates are zero, in fact verdicts rest on imperfect evidence and both kinds of errors do occur. Recent work has shown how the rates and relative numbers of both types of errors can be measured statistically both for judge verdicts and for jury verdicts (Spencer 2007). The key is to have multiple ratings of the cases, e.g., also record the judge's belief of the correct verdict in a jury trial or an expert observer's belief of the correct verdict in a non-jury trial. Analysis of a special set of state court cases in 2000-01 from four jurisdictions in a study by the National Center for State Courts (Hannaford-Agor et al 2003) suggested that approximately 7% of the jury verdicts were wrongful convictions and 10% were wrongful acquittals, with corresponding rates of 10% wrongful convictions and 1% wrongful acquittals for the judges' verdicts (Spencer 2007). Those numbers are subject to a number of limitations, not least the non-representative nature of the sample of cases, and those limitations will be reviewed not only for the analysis of the NCSC data but, more importantly, with an eye toward future studies.

Effective data collection and statistical analysis can permit monitoring the actual balance between the two types of error. Blackstone (1825) wrote “that it is better that ten guilty persons escape than that one innocent suffer”. For the NCSC cases studied, the ratios appear to be far from Blackstone's 10:1 - the estimated rates correspond to a ratio of erroneous acquittals to erroneous convictions of less than 2 for juries and less than 0.2 for judges. It is suggested that feedback from the monitoring to the justice system might foster the attainment of societally acceptable tradeoffs between the two kinds of errors.

Very interesting.  One interesting normative question arises from asymmetrical distribution of the risk of error.  Judge trials, which skew the risk of error towards wrongful conviction, might be thought procedurally unfair for this reason.  Another question concerns methodology--impartial observers without independent knowledge of the underlying facts (unfiltered by the trial) have no basis for determining whether the process actually results in correct outcomes.  Measuring correctness always requires an independent and neutral factual investigation--something that is missing from this data.

Highly recommended.

Book Announcement: Multiculturalism without Culture by Phillips

Multiculturalism without Culture Anne Phillips To read the entire book description, please visit: http://press.princeton.edu/titles/8418.html Public opinion in recent years has soured on multiculturalism, due in large part to fears of radical Islam. In Multiculturalism without Culture, Anne Phillips contends that critics misrepresent culture as the explanation of everything individuals from minority and non-Western groups do. She puts forward a defense of multiculturalism that dispenses with notions of culture, instead placing individuals themselves at its core. Cloth | $29.95 / £18.95 | ISBN13: 978-0-691-12944-0

Kar on Contractualism and Contract Law

Robin Kar (Loyola L.A.) has posted Contractualism About Contract Law on SSRN. Here is the abstract:

Modern contract theory is in a quandary. Whereas consequentialist theorists typically point to principles of efficiency-maximization to account for the rules of modern contract law, and deontological theorists typically point to considerations of liberty or the ordinary morality of promise-keeping, none provides a satisfying and unified account of three central and highly stable aspects of modern contract law. These are: first, the standard remedies granted for contractual breaches; second, the centrality of the consideration doctrine; and, third, the tension between legal doctrines that require courts to defer to parties' voluntary assent when determining the existence or content of contractual obligations and doctrines that allow courts to police bargains for fairness. In this Article, I argue that contractualism - especially as elaborated in connection with Stephen Darwall's recent work on the second-person standpoint - has the power to harmonize these doctrines.

In most other areas of normative inquiry, contractualism has held a solid place, but the view is conspicuously absent in most theoretical debates about modern contract law. To explain this absence, I canvass a number of reasons why contractualism might appear to be an unpromising theoretical standpoint from which to account for the rules of modern contract law. I argue that these considerations are, however, better understood as placing special constraints on the form that any satisfying contractualism about contract law must take. In the remainder of the Article, I then develop an account that meets these special constraints.

Given the robustness of efficiency-based explanations of contract law doctrine, one important constraint will be that contractualism provide a more robust explanation of doctrine than efficiency theorists can. In the substantive portions of the Article, I therefore argue that there are aspects of the standard contract law remedies - including the expectation damages remedy - that cannot in fact be fully explained or justified in terms of familiar notions like “efficient breach.” These same aspects can, however, be accounted for from within the second-person standpoint. If Darwall is right, then this standpoint commits to a contractualist account of what we owe to one another. In the remainder of the Article, I therefore develop a contractualist account of modern contract law that is, I argue, more robust than both current efficiency and promise-based theories - at least in relation to the three central doctrines under discussion.

The resulting view promises to reconcile modern liberalism with a number of modern contract law's puzzling features. It also promises to help us identify the appropriate role and limits of doctrines that allow or require courts to police private bargains for fairness. Together, these facts warrant, at minimum, further time and attention to developing the view and extending it to a broader range of doctrine. Contractualism about Contract Law should - I argue - hold a central place in theoretical discussions of modern contract law.

This is an important piece--integrating a sophisticated moral theory (Dawall's contractualism) with work on the normative foundations of contract law.  It avoids a vice that characterizes all too much of recent work on normative foundations--a shallow understanding of particular deontological theories.  Very highly recommended.  Download it while its hot!

Domon & Nakamura on Copyright in Developing Countries

Koji Domon and Kiyoshi Nakamura (Waseda University) have posted Unauthorized Copying and Copyright Enforcement in Developing Countries: A Vietnam Case Study (Review of Economic Research on Copyright Issues, Vol. 4, No. 1, pp. 87-96, 2007) on SSRN. Here is the abstract:

At present, Vietnam is regarded as the most notorious country regarding copyright infringement. China, joining WTO in 2001, has since implemented strict copyright measures. Even though Vietnam has laws covering intellectual property rights, enforcement is almost non-existent. We investigated how unauthorized P2P file-sharing affects copyright infringement in Vietnam. We assumed, before visiting Vietnam, that P2P file-sharing was more popular than pirated CDs and DVDs. However, few people there knew of its existence. Even when they did, they were unwilling to use it. Another astonishing fact was how pirated CDs play a role in promoting singers who relied on stage performances. Singers were not eager to support copyright enforcement. In this paper we consider these situations and explain how such behavior is commonplace in Vietnam.

Diller on Intrastate Preemption

Paul Diller has posted Intrastate Preemption (forthcoming B.U. L. Rev.) on SSRN.  Here is the abstract:

City policy experimentation is a catalyst for change at the state and national levels. From gay rights to global warming to regulating trans fats, cities and other forms of local government are adopting new and innovative policies in the wake of inaction by the higher levels of government. The legality of these policies is frequently challenged, however, by claims that a city's ordinance has been preempted by state law. Despite the crucial importance of intrastate preemption to the question of city power, it has heretofore received scant academic attention. In this paper I demonstrate how, as currently applied, intrastate preemption dampens local policy innovation, which has a negative effect on the state and national political processes. I argue that state courts, drawing on their institutional advantages, should take a new approach to intrastate preemption that facilitates good-faith policy experimentation by cities while discouraging parochial and exclusionary action.

Another example of the unjustified neglect of state constitutional law as a focus of academic attention.  (A oft-repeated complaint and a pet peeve of the great Hans Linde!)

Here is a bit more from the article:

Cities often lead in setting policy that Congressmen and state legislators have failed to address, whether due to greater policy risk aversion or fear of offending entrenched and well-financed interest groups that wield significant influence.69 Once a city or a number of cities have put an issue on the nation’s policy agenda, however, Congress or state legislatures may feel more compelled to address it.70 Cities, therefore, can serve as a “destabilizing” force in state and national policy debates, disrupting the state legislative and Congressional stasis on matters of significance.71

Very interesting & recommended!

Journal Announcement: New Issue of American Law & Economics Review

A new issue of American Law and Economics Review
has been made available:

Spring 2007; Vol. 9, No. 1

URL: http://aler.oxfordjournals.org/content/vol9/issue1/index.dtl?etoc

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Articles
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Do Harsher Prison Conditions Reduce Recidivism? A Discontinuity-based
Approach
       M. Keith Chen and Jesse M. Shapiro
       Am Law Econ Rev 2007 9: 1-29.
       http://aler.oxfordjournals.org/cgi/content/abstract/9/1/1?etoc

Sidgwick's Utilitarian Analysis of Law: A Bridge from Bentham to Becker?
       Steven G. Medema
       Am Law Econ Rev 2007 9: 30-47.
       http://aler.oxfordjournals.org/cgi/content/abstract/9/1/30?etoc

On Understanding the Increase in U.S. Patent Litigation
       Joseph P. Cook
       Am Law Econ Rev 2007 9: 48-71.
       http://aler.oxfordjournals.org/cgi/content/abstract/9/1/48?etoc

An Economic Analysis of State and Individual Responsibility Under
International Law
       Eric A. Posner and Alan O. Sykes
       Am Law Econ Rev 2007 9: 72-134.
       http://aler.oxfordjournals.org/cgi/content/abstract/9/1/72?etoc

Is There An Expressive Function of Law? An Empirical Analysis of Voting
Laws with Symbolic Fines
       Patricia Funk
       Am Law Econ Rev 2007 9: 135-159.
       http://aler.oxfordjournals.org/cgi/content/abstract/9/1/135?etoc

A Bargaining Model of Holdouts and Takings
       Thomas J. Miceli and Kathleen Segerson
       Am Law Econ Rev 2007 9: 160-174.
       http://aler.oxfordjournals.org/cgi/content/abstract/9/1/160?etoc

Optimal Discretion in the Application of Rules
       Steven Shavell
       Am Law Econ Rev 2007 9: 175-194.
       http://aler.oxfordjournals.org/cgi/content/abstract/9/1/175?etoc

Should Legal Empiricists Go Bayesian?
       Jeff Strnad
       Am Law Econ Rev 2007 9: 195-303.
       http://aler.oxfordjournals.org/cgi/content/abstract/9/1/195?etoc

Supreme Court Term Ends

The Supeme Court's term ends today. Scotus Blog has its usual superb coverage, see Court strikes down school integration plans, ends Term.

Cahill on Retributive Justice

Michael T. Cahill (Brooklyn Law School) has posted Retributive Justice in the Real World on SSRN. Here is the abstract:

There are two commonly recognized “theories” of criminal law: utilitarianism, which sees criminal law's purpose as preventing future harms; and retributivism, which sees criminal law's purpose as punishing past wrongs. One significant but little-discussed difference between the two theories relates to their relative scope: in a meaningful way, utilitarianism presents itself as a complete theory of criminal law, while retributivism does not.

Utilitarianism provides a comprehensive vision of criminal justice that can offer guidance, or at least a clear agenda, regarding both the content of criminal law and the best means for enforcing it. Retributivism, on the other hand, apparently speaks only to the criminal law's design, and not to its implementation. Retributive theory seems to say nothing about how to make the tradeoffs and compromises necessary to “do” criminal justice in the real world, whose inevitable resource constraints and other limitations prevent the system from imposing the full deserved punishment on every offender.

This article explores and evaluates the range of options for developing a real-world legal theory, as opposed to an idealized moral theory, of retributive punishment. It concludes that perhaps the only effective, or even plausible, option for doing so would be to adopt the approach of “consequentialist retributivism,” which sees desert-based punishment as a goal to maximize rather than (as other approaches would demand) a categorical ex ante commitment. Interestingly, though this seems like the most intuitively sensible way to implement retributive justice, it is the approach with the least support in the theoretical literature. Thus, this article further seeks to advance the debate by suggesting the appeal (and perhaps the necessity) of employing the hitherto neglected perspective of consequentialist retributivism.

An interesting piece.  Two observations:

1. "Utilitarianism" is not a theory of punishment: it is a comprehensive moral theory, whereas "retributivism" is a theory of punishment.  A fair comparison would be between utilitarianism and a comprehensive deontological moral and political theory, e.g., a fully developed modern Kantian or contractarian ethics.

2. Once retributivism is situated in a comprehensive deontological moral theory, the viability of "consequentialist retributivism" will be clarified.  Many comprehensive deontologies allow or require the consideration of consequences in various ways, but it seems rather unlikely that any plausible deontological theory would take the maximization of deserved punishment as an overriding goal.

I would offer more comments, but the author requests no citation to or quotation of the text itself, so these brief remarks are limited to the ideas presented in the abstract.