Legal Theory Blog

Legal Theory Bookworm

The Legal Theory Bookworm recommends Thinking How to Live by Allan Gibbard. Here is a description:

Philosophers have long suspected that thought and discourse about what we ought to do differ in some fundamental way from statements about what is. But the difference has proved elusive, in part because the two kinds of statement look alike. Focusing on judgments that express decisions—judgments about what is to be done, all things considered—Allan Gibbard offers a compelling argument for reconsidering, and reconfiguring, the distinctions between normative and descriptive discourse—between questions of "ought" and "is."

Gibbard considers how our actions, and our realities, emerge from the thousands of questions and decisions we form for ourselves. The result is a book that investigates the very nature of the questions we ask ourselves when we ask how we should live, and that clarifies the concept of "ought" by understanding the patterns of normative concepts involved in beliefs and decisions.

An original and elegant work of metaethics, this book brings a new clarity and rigor to the discussion of these tangled issues, and will significantly alter the long-standing debate over "objectivity" and "factuality" in ethics.

And from the reviews:

In this fascinating book, Gibbard applies his development of the tools of traditional Anglo-American metaethical theory to the questions about that most basic philosophical concern: How should one live?...Gibbard's arguments are clear and illustrated with helpful examples. His final result is sure to generate disagreement, but theorists in this area must contend with his arguments.
--J. H. Barker (Choice )

Everywhere in Gibbard's impressive book opponents as well as allies have much to learn...His book is a pleasure to read, crafted with admirable care and clarity while minimizing technicality. The arguments are concise, and much has been packed into a relatively short compass, but there is a wealth of rich and suggestive detail. It is a book that deserves close study, and will stimulate and reward reflection.
--Garrett Cullity (Philosophical Quarterly )

This is a remarkable book. It takes up a central and much-discussed problem - the difference between normative thought (and discourse) and "descriptive" thought (and discourse). It develops a compelling response to that problem with ramifications for much else in philosophy. But perhaps most importantly, it brings new clarity and rigor to the discussion of these tangled issues. It will take some time to come to terms with the details of Gibbard's discussion. It is absolutely clear, however, that the book will reconfigure the debate over objectivity and "factuality" in ethics.
--Gideon Rosen, Professor of Philosophy, Princeton University (20070301)

Except available here.

Just out in paperback.  Gibbard is one of the best and deepest thinkers about metaethics.  Highly recommended.

Download of the Week

The Download of the Week is Positivism and the Inseparability of Law and Morals by Leslie Green.  Here is the abstract:

This is the penultimate draft of a paper originally presented at the Hart-Fuller at 50 conference, held at the NYU Law School in February 2008. A revised version will appear in the NYU Law Review.
The paper seeks to clarify and assess HLA Hart's famous claim that legal positivism somehow involves a `separation of law and morals.' The paper contends that Hart's `separability thesis should not be confused with the `social thesis,' with the `sources thesis,' or with a methodological thesis about jurisprudence. Hart's thesis denies the existence of necessary (conceptual) connections between law and morality. But that thesis is false: there are many necessary connections between law and morality, some of them conceptually significant. Among these is an important negative connection: law is of its nature morally fallible and morally risky. Lon Fuller emphasised the `internal morality of law,' the `morality that makes law possible'. Hart stressed that there is also an immorality that law makes possible. Law's nature is seen not only in its internal virtues, in legality, but also in its internal vices, in legalism.

Highly recommended.  Download it while its hot!

There were many fine papers this week, some others I would particularly recommend include:

Normative Methods for Lawyers by Joseph Singer

Does the Supreme Court's Current Doctrine of Stare Decisis Require Adherence to the Supreme Court's Current Doctrine of Stare Decisis  by Michael Paulsen

Pornography, Coercion, and Copyright Law 2.0 by Ann Bartow

And if I might also recommend my own paper:

Models of Internet Governance by Lawrence Solum.

Atkinson on the Duty of Obedience

Rob Atkinson Jr. (Florida State University College of Law) has posted Rediscovering the Duty of Obedience: Toward a Trinitarian Theory of Fiduciary Duty on SSRN. Here is the abstract:

Conventional theory holds that the fiduciary relationship comprises two fundamental duties, care and loyalty. This paper argues that a third duty, obedience, is more basic, the foundation on which the duties of care and loyalty ultimately rest. In place of the prevailing dualistic theory of fiduciary duty, it offers a trinitarian alternative. As the trinitarian metaphor implies, the claim here is that, properly understood, three identifiably different elements are functionally distinct yet essentially one.

The paper itself has three parts. The first, descriptive part distinguishes the duty of obedience from its derivatives, care and loyalty; identifies a strong and a weak form of the duty of obedience; and traces the role of both forms of the duty of obedience in four contexts: business corporations, private trusts, charitable trusts, and charitable corporations. The second, normative part assesses the appropriate role of the duty of obedience, especially its strong form, in each of these contexts and concludes that its traditionally large role in charities is not justified. The third and final part suggests ways in which the policies supposedly served by the strong form of the duty of obedience could be advanced without unnecessary concessions to what earlier skeptical commentators have called "dead hand control."

Somin on Bork & Censorship

Ilya Somin (George Mason University - School of Law) has posted The Borkean Case Against Robert Bork's Case for Censorship (Harvard Journal of Law and Public Policy, Vol. 31, No. 2, Spring 2008) on SSRN. Here is the abstract:

In his controversial 1996 book Slouching Towards Gomorrah, Judge Robert H. Bork argued that we must adopt extensive censorship of violent and sexually explicit media in order to combat social pathologies such as crime, welfare dependency, and illegitimacy. In this brief essay, I argue that Judge Bork's call for censorship is in tension with his own earlier influential scholarship pointing out the dangers of government economic regulation. Cultural regulation poses many of the same risks that Bork highlighted in his critiques of economic regulation and also some unique dangers of its own. Like economic regulation, cultural regulation is prone to capture by interest groups and to overexpansion. In addition, the government will often be tempted to use cultural censorship to promote its own ideology and repress opposition speech. Both American history and modern European experience support these conjectures. Moreover, events since 1996 show that censorship is not necessary to combat the social pathologies that rightly concerned Bork and other conservatives. Over the last 15 years, there have been great reductions in social pathology without any increase in cultural censorship. In the long run, conservatives and others would do well to rely on private institutions rather than government to promote desirable cultural values.

Suk on Privacy

Jeannie Suk (Harvard University - Harvard Law School) has posted Is Privacy a Woman? (Georgetown Law Journal, 2009) on SSRN. Here is the abstract:

This essay is about the representation of privacy. Focusing on several of the Supreme Court's Fourth Amendment cases regarding the police and the home, I explore judicial articulations of the meaning of private space. Several striking figures of women appear in the Justices' opinions in Kyllo v. United States, and Georgia v. Randolph, for example, and represent different conceptions of privacy that are in dialogue and conflict. To theorize privacy in the home is to imagine a woman, and the way she is imagined is bound up with the idea of the home and stakes of privacy articulated. From the lady of the house in the bath, to the lady at home receiving callers, to the battered woman, distinctive figures of women reveal peculiar fault lines in the modern meaning of privacy in an era of judicial commitment to gender equality. Even long after the gradual demise of the particular marital privacy associated with the common law of coverture, the idea of protecting women from men remains central and appears today in new and different guises that evince both change and continuity in the legal meaning of the home.

Rierson on IP Remedies

Sandra Rierson (Thomas Jefferson School of Law) has posted IP Remedies After eBay: Assessing the Impact on Trademark Law (Akron Intellectual Property Journal, Vol. 2, p. 163, 2008) on SSRN. Here is the abstract:

The Supreme Court's decision in eBay Inc. v. MercExchange, LLC, 126 S. Ct. 1837 (2006), changed the law regarding remedies in patent cases by rejecting the presumption that plaintiffs who prove that their patents have been infringed are entitled to injunctive relief. The Supreme Court held that, to obtain such relief, plaintiffs must now prove that (1) they have suffered an irreparable injury; (2) legal remedies, such as monetary damages, are inadequate to compensate for the injury; (3) the balance of hardships weighs in their favor; and (4) granting an injunction will not negatively impact the public interest.

What, then, if anything, is the potential impact of eBay on trademark law? In trademark law, like patent law (at least prior to the eBay decision), the case law reflects a strong presumption that injunctive relief goes hand-in-hand with a finding of liability, either in the form of trademark infringement or, more recently, dilution. Courts generally presume that plaintiffs suffer an irreparable harm when their trademarks have been infringed or diluted, and further that the public necessarily benefits when such infringement and/or dilution ceases to exist.

In the traditional trademark infringement case, one in which the defendant "passes off" his goods as those of the plaintiff, this remedial presumption intuitively makes sense. Both the injury to the public, who may have been tricked into buying defendant's inferior goods by his tortious imitation of plaintiff's mark, and the injury to the trademark holder, whose goodwill is consequently put at risk, will be difficult to measure and to undo. However, as trademark law has drifted from its moorings in the common law of unfair competition and morphed into a property-like right of the holder, the justification for these presumptions should be questioned. Particularly in cases which reflect a broader, propertized version of trademark law, such as cases based on a theory of initial interest confusion or post-sale confusion, application of eBay's mandate that courts review the merits of a request for injunctive relief, rather than rely upon formulaic assumptions to support the award of such relief, would be an improvement over the status quo.

Strandburg on Relational Surveillance

Katherine J. Strandburg (New York University School of Law) has posted Freedom of Association in a Networked World: First Amendment Regulation of Relational Surveillance (Boston College Law Review, Vol. 49, No. 741, 2008) on SSRN.  Here is the abstract:

Recent controversies about the National Security Agency's warrantless wiretapping of international calls have overshadowed equally disturbing allegations that the government has acquired access to a huge database of domestic call traffic data, revealing information about times, dates, and numbers called. Although communication content traditionally has been the primary focus of concern about overreaching government surveillance, law enforcement officials are increasingly interested in using sophisticated computer analysis of noncontent traffic data to map networks of associations. Despite the rising importance of digitally mediated association, current Fourth Amendment and statutory schemes provide only weak checks on government. The potential to chill association through overreaching relational surveillance is great. This Article argues that the First Amendment's freedom of association guarantees can and do provide a proper framework for regulating relational surveillance and suggests how these guarantees might apply to particular forms of analysis of traffic data.

Blair on 501(C)(3)s & Political Speech

Keith Blair (University of Baltimore - School of Law) hs posted Praying for a Tax Break: Churches, Political Speech and the Loss of Section 501(C)(3) Tax Exempt Status (Denver University Law Review, Forthcoming ) on SSRN.  Here is the abstract:

Churches in the United States, like individuals, are free to speak on any issue that they choose. However, if a church wishes to retain tax-exempt status, it must comply with the requirements of Section 501(c)(3) of the Internal Revenue Code. One of those requirements is that churches may not participate or intervene in political campaigns. Some churches, however, believe that their mission includes not just traditional religious teachings, but guidance on issue that affect the lives of their parishioners including politics. Those churches believe they are fulfilling their faith and mission when they offer this guidance.

This has caused a tension between the Internal Revenue Service, which must enforce the tax laws, and churches that feel that it is part of their mission to speak out on social issues of the day, which may include political issues. With the 2008 U.S. Presidential election already in full swing, this issue has become more visible and more contentious.

This paper examines the issues involved in churches, political speeches and tax-exempt status. It will propose that a limited exception created for churches so that they may speak freely on all issues to their congregants, including politics, during regularly scheduled religious services.

Bartow on Pornography & Copyright

Ann Bartow (University of South Carolina) has posted Pornography, Coercion, and Copyright Law 2.0 on SSRN. Here is the abstract:

The lack of regulation of the production of pornography in the United States leaves pornography performers exposed to substantial risks. Producers of pornography typically respond to attempts to regulate pornography as infringements upon free speech. At the same time, large corporations involved in the production and sale of pornography rely on copyright law's complex regulatory framework to protect their pornographic content from copying and unauthorized distribution. Web 2.0 also facilitates the production and distribution of pornography by individuals. These user-generators produce their own pornography, often looking to monetize their productions themselves via advertising revenues and subscription models. Much like their corporate counterparts, these user-generators may increasingly rely on copyright law to protect their creations in the future.

While legal scholars have addressed the copyright law's role in incentivizing the creation and consumption of creative content in general, its effect on the creation and consumption of pornography has largely been ignored. Since pornography performers are at risk of abuse by the creators of pornography, particularly those that are filmed or photographed unknowingly or those who have sexual images of themselves distributed against their wishes, it is important consider what approaches there may be to reduce that risk, including the possibility of altering the copyright framework with respect to pornography.

Copyright laws do not provide ownership interests or control mechanisms to the subjects of pornographic material, and instead permits the creators to benefit at the expense of the subjects when their participation has not been consensual. Providing this type of control - namely by requiring the creator to show that the subjects' participation was voluntary as a condition of providing copyright protection - would help reduce the risks faced by pornography performers. Promulgating a moral approach to structuring copyright protections is already one goal that is animating calls for reform of the current system. Copyright law should link the ability to register and enforce copyrights on pornographic works to the creators' compliance with a regulatory scheme designed to promote the safety and well-being of pornographic performers by confirming their consent.

As with all of Bartow's work, recommended!

Kaye on DNA Trawling

David H. Kaye (Arizona State University - Sandra Day O'Connor College of Law - School of Life Science) has posted Rounding Up the Usual Suspects: A Logical and Legal Analysis of DNA Trawling Cases (North Carolina Law Review, Forthcoming) on SSRN.  Here is the abstract:

Courts are beginning to confront a problem that has divided the scientific community - whether identifying a defendant by fishing through a database of DNA types to find a match to a crime-scene sample reduces the significance of a match. For years, the problem seemed academic. Now that the U.S. has more than five million DNA profiles from convicted offenders and suspects in a national, computer-searchable database, the question has assumed more urgency. Increasingly, individuals are being charged with crimes as a result of a match between their recorded profile and the DNA from a victim or scene of a crime. Arguing that there is no generally accepted scientific opinion on how the probative value of a match from a database trawl should be quantified, some of these defendants have moved to exclude the DNA evidence. Trial courts have ruled both ways. Appellate courts in California and the District of Columbia have rebuffed these challenges, reasoning that the general-acceptance standard for scientific evidence does not apply in this situation. Furthermore, they have held that even though the defendant was not selected randomly, the jury can be given the usual probability that a randomly selected individual will match a crime-scene sample. This Article criticizes the reasoning (but not the outcome) in these opinions. It argues that the attempts to avoid directly confronting the debate among scientists and statisticians rob the opinions of any persuasive value. Elaborating on earlier statistical analyses of the database-trawl question, it presents a more satisfactory rationale for admitting the unadjusted random-match probability.