Legal Theory Blog

Change of Management For everything

Change of Management For everything there is a season. For reasons that are beyond my control and which I do not have authority to divulge, the management of Legal Theory Blog is changing hands. For details, surf here.
Update: My apologies to those of you who did not follow the link to Ciceronian Review's satirical post suggesting that LTB had been taken over by Dick Cheney. Not really.

Conference Announcement: Digital Cops in

Conference Announcement: Digital Cops in Virtual Environment--CyberCrime and Digital Law Enforcement Conference Yale Law School will be hosting Digital Cops in Virtual Environment--CyberCrime and Digital Law Enforcement Conference on March 26-28, 2004. Here is the description:

The Information Society Project at Yale Law School is pleased to announce its upcoming conference on Cybercrime and Digital Law Enforcement entitled: "Digital Cops in Virtual Environment," which will take place on March 26-28, 2004 at Yale Law School.

This ground-breaking conference will bring together policy makers, security experts, law enforcement personnel, social activists and academics to discuss the emerging phenomena of cybercrime and law enforcement. The conference will question both the efficacy of fighting cybercrime and the civil liberties implications arising from innovations in law enforcement methods of operation.

During this weekend-long conference, a distinguished group of experts will discuss how a shift to a digital environment: (1) changes the crime scene; (2) facilitates the commission of new types of crimes; (3) leads to radical changes in law enforcement methods; (4) equips law enforcement with new tools of surveillance, technological design and risk sorting systems; (5) presents challenges for the legal process; and (6) introduces new forms of social resistance through hacktivism and counter-surveillance.

Bainbridge on the SEC Shareholder

Bainbridge on the SEC Shareholder Access Proposal Stephen M. Bainbridge (University of California, Los Angeles - School of Law) has posted A Comment on the SEC Shareholder Access Proposal on SSRN. Here is the abstract:

The Securities and Exchange Commission (SEC) recently proposed a set of amendments to its proxy rules intended to provide shareholders of public corporations with a limited ability to nominate candidates for a corporation's board of directors and to have their nominee placed on the corporation's own proxy statement and card. This essay reviews the principal features of the proposal and identifies several issues remaining for resolution. The essay concludes that the SEC likely has authority to adopt the proposal, but argues that the costs the rule will impose on corporations outweigh any likely benefits from greater shareholder democracy.

Bibas on Therapeutic Judging Stephanos

Bibas on Therapeutic Judging Stephanos Bibas (University of Iowa - College of Law) has posted Using Plea Procedures to Combat Denial and Minimization (JUDGING IN A THERAPEUTIC KEY, Bruce J. Winick & David B. Wexler, eds., 2003) on SSRN. Here is the abstract:

Criminal defendants, who may be ashamed of their acts and feel guilty, are often loath to admit guilt to others or even themselves. Thus, many enter Alford or nolo contendere pleas, which refuse to admit guilt but accept punishment as if guilty. Defense lawyers and many judges and prosecutors like these pleas because they are efficient and avoid the ordeals of trials.

This book chapter criticizes Alford and nolo contendere pleas, because their efficiency comes at a steep price. The defendants who most want to use these pleas are in deepest denial, but they are the ones who most need to confront and admit guilt as a first step towards moving past it. The legal system can challenge their denials at trial, or it can allow guilty defendants to persist in it. Guilty defendants who remain in denial resist successful treatment and are much more likely to reoffend. They also deny victims closure, catharsis, and vindication. And they frustrate society's desire for clear, unambiguous resolutions and moral messages. For those defendants who cannot or will not admit guilt, the law should insist on jury trials, to vindicate the innocent and confront the guilty defendants. In short, jury trials are valuable morality plays. Alford and nolo contendere pleas short-circuit this process, exalting efficiency at the expense of key therapeutic and moral goals of the criminal justice system.

Cohen and Blavin on Internet

Cohen and Blavin on Internet Metaphors I. Glenn Cohen and Jonathan H. Blavin (Law Clerk, U.S. Court of Appeals for the First Circuit and Government of the United States of America - 9th Circuit) have posted Gore, Gibson, and Goldsmith: The Evolution of Internet Metaphors in Law and Commentary (Harvard Journal of Law and Technology, Vol. 16, No. 1, p. 265, Fall 2002) on SSRN. Here is the abstract:

This paper addresses the evolution of metaphors for the Internet and shows how they have constrained and determined the development of cyberlaw.

Within the law, metaphors mold the framework of discourse, determining the scope of appropriate questions about and answers to various social and legal problems. Courts and commentators employ metaphors as heuristics to generate hypotheses about the application of law to novel, unexplored domains. Metaphors structure the way lawyers conceptualize legal events, as they infiltrate, consciously and unconsciously, legal discourse. Under the classic formalist view of common law analogy as syllogism, analogical reasoning from precedent begins with the establishment of a rule behind a case or group of similar cases. Judges then apply the rule fairly mechanically to the case at hand to yield a result that is understood through the background of precedent. In contrast to figurative literary metaphors, highly structured analogical, metaphorical mappings may be used to make persuasive, logical arguments. Like all metaphors, however, legal metaphors possess a paradoxical quality, embodied in the constant tension between the legal metaphor's literal incongruence and metaphorical congruence with reality. Metaphors whose metaphorical congruence with reality is perceived as dominant, such as the "marketplace of ideas" metaphor in First Amendment jurisprudence and the "bundle of sticks" metaphor in Takings clause jurisprudence, will continue to have analogical value and will be perpetuated through judicial opinion and scholarly commentary. Conversely, legal metaphors erceived as having greater literal incongruence with reality, such as the slavery metaphor of African Americans as chattels, will lose their value and be discarded.

While metaphors aid humans in comprehending abstract concepts and legal doctrines, they also may limit human understanding by selectively highlighting various aspects of an issue while suppressing and marginalizing others. Unreflective use of metaphors can lead lawyers to take for granted the "realities" that metaphors enable. A bad metaphor can also simply lead to bad decision making. For example, Cass Sunstein argues that the "marketplace of ideas" metaphor has turned the right to free expression into a degraded form of commerce.

This paper seeks to explore the evolution of metaphorical inferences as applied to the Internet within legal commentary and judicial opinions. Three metaphors in particular will be examined: the information superhighway, cyberspace, and the Internet as "real" space. Given the Internet's ongoing evolution as an unstable and ever-changing technology, courts and commentators have faced perpetual difficulty in mapping metaphors to it. Changing social constructions of the Internet as necessitated by its evolving underlying technological architecture have supported, or conversely eroded, a particular metaphor's literal congruence with reality. The purpose of this paper to make transparent the different conceptions of the Internet courts and commentators are sub silentio employing, and the various sociological, technological, and ideological conceptions of the world that support them.

Semeraro on Capital Sentencing Steven

Semeraro on Capital Sentencing Steven Semeraro (Thomas Jefferson School of Law) has posted Responsibility in Capital Sentencing (San Diego Law Review, Vol. 39, p. 79, 2002) on SSRN. Here is the abstract:

The recent evidence of innocents on death row has led to a call to revisit the legal doctrine governing capital punishment. But abandoning that doctrine would be the wrong response. It fosters individual responsibility in capital sentencing by placing the participants in the process - from the legislator to the prosecutor, trial judge, and jury and ultimately to the appellate judge - in an environment in which their sense of responsibility is broadened compared to earlier capital punishment systems. By strengthening the sense of responsibility of those inside the process, we heighten our trust in their decision. Drawing on psychological research, empirical data from juror interviews, and the social theory of Vaclav Havel, this article suggests that individual responsibility - rather than the goals advanced by the Court itself (consistency and individualization) - is the key to a moral capital sentencing process.

Although modern doctrine is worth preserving, it could be improved significantly by focusing explicitly on heightening individual responsibility. This article proposes two concrete ways to improve existing doctrine: (1) require the trial judge to explain the sentencer's role to the jury in the narrative voice, a way of speaking associated with the assignment of responsibility; and (2) require heightened scrutiny of death sentences, bringing the responsibility of appellate judges in capital cases into line with the responsibility they bear in other constitutional cases.

Internet Law in Review Doug

Internet Law in Review Doug Isenberg's Internet Law Year in Review 2003 is available on Gigalaw.

More on Public Reason and

More on Public Reason and Faith-Based Prisons My post from yesterday, Public Reasons and Faith-Based Prisons, has prompted a variety of reactions. The distinguished law and religion scholar, Steve Smith, emailed comments which I've appended at the end of my original post. Rick Garnett replied to my post over at Punishment Theory. Here is a taste of Rick's post:

As for your hypo about sectarian legislative preambles -- the "Christianity is the true religion" preamble strikes me as inappropriate, though I see nothing illiberal--or unconstitutional--about a legislator supporting and arguing for the policy for that reason, assuming that the legislator sees some connection between the truth of Christianity, the proposal in question, and the common good. That the state should speak in a non-religious voice does not mean, it seems to me, that citizens and legislators must do so.

Stephen Bainbridge emails to remind me of the United States Supreme Court's opinion in Holy Trinity Church v. U.S., 143 U.S. 457 (1892), which famously (or infamously) states:

If we pass beyond these matters to a view of American life, as expressed by its laws, its business, its customs, and its society, we find every where a clear recognition of the same truth. Among other matters note the following: The form of oath universally prevailing, concluding with an appeal to the Almighty; the custom of opening sessions of all deliberative bodies and most conventions with prayer; the prefatory words of all wills, 'In the name of God, amen;' the laws respecting the observance of the Sabbath, with the general cessation of all secular business, and the closing of courts, legislatures, and other similar public assemblies on that day; the churches and church organizations which abound in every city, town, and hamlet; the multitude of charitable organizations existing every where under Christian auspices; the gigantic missionary associations, with general support, and aiming to establish Christian missions in every quarter of the globe. These, and many other matters which might be noticed, add a volume of unofficial declarations to the mass of organic utterances that this is a Christian nation.

And John Gardner (Oxford) has a marvelous comment up over at Punishment Theory. Here's a brief excerpt from Gardner:

The liberal prohibition on such government double-dealing does not entail that there is some special class of reasons which is such that governments should never rely on them. It is consistent with governments relying on reasons of utility, for example, so long as they do not conceal that they do so. It is also consistent with governments relying on reasons of respect for God or respect for art, respect for marriage, etc, so long as they do not conceal that they do so.

Finally, Kyron Huigens has a nice post including the following remark:

A reason is suitable for public debate, public policy, and law only if some empirical evidence -- available to all -- could in principle disprove the proposition. This excludes faith-based reasons for the same reason that science cannot disprove religion: like faith itself, faith-based reasons are not falsifiable in principle. This kind of belief is explicitly not premised on empirical evidence, but instead on an experience of the divine.

On this last point, it seems to me that there is a grave difficulty with Huigens's suggestion. Let me repeat the crucial sentence: "A reason is suitable for public debate, public policy, and law only if some empirical evidence -- available to all -- could in principle disprove the proposition." How would this criteria apply to the values that are conventionally used as premises in public political debate? For example, what empirical evidence could, in principle, disprove the proposition that human dignity is a very great value or that the innocent persons should not be injured or killed absent the most extraordinary justifications? Perhaps I misunderstand Huigens point. Surf on over to Punishment Theory for more!

Defending the MLA Chun the

Defending the MLA Chun the Unavoidable defends the MLA against familiar criticisms in this post. See also Invisible Adjunct, John & Belle Have A Blog and John Holbo. Here is a taste of Chun's post:

A larger point is that one of the reasons that people (especially journalists) feel like the MLA is an allowable target is because of what they perceive as the low barrier of entry. Anyone can (or should, at least) read novels, poems, short stories, etc. So why do these pretentious fops get up there and pretend they know so much better than the rest of us? Huh? HUH!?!? Relax. We do know more. It's only a delusion that makes you think that you know enough about the problems of literary interpretation to demand that its professional discourse make perfect sense to you. It's an understandable delusion, but one that you can cure yourself of quickly enough by reading everything ever written about, for example, Frank Norris over the next five or so years. Now write three hundred pages of scholarship on him that advances something new and takes into account the relevant developments in literary history and interpretation. After you've completed this exercise, which I'm sure any Chronicle journalist or average blogopath could do in record time, then you'll realize just how little is actually known about how literature works and the reason why professional attempts to analyze it are fraught with jargon and assumptions of prior knowledge.

Although I'm reasonably well informed about theories of interpretation (literary and otherwise), I really don't know much about the current state of applied literary theory--i.e. the application of literary theory to particular works or authors. So, I really don't feel qualified to enter into this debate in an informed way. I have my prejudices, but I must confess that they are most just that: Chun is right: article titles certainly are an inadequate basis to judge scholarship. Here is a question I do find interesting: What should count as "adding value" in the context of literary scholarship? Of course, the criteria will be contestable (part of literary theory itself), but contestability does not equal subjectivity. For example, should it count as a criterion for adding value that the content of the scholarship could, in principle, lead a reader to a deeper or more enriching understanding of the work in question? I'd better stop now, before I proceed deeper into the minefield.

Rorty on Habermas Richard Rorty

Rorty on Habermas Richard Rorty has a marvelous review of Jurgen Habermas's Truth and Justification on Notre Dame Philosophical Reviews. Here is a taste:

Habermas is one of the few philosophers who is as much at home with Hegel, Hamann and Heidegger as he is with Davidson, Sellars and Dummett. So he is able to move back and forth, smoothly and perspicuously, between small-scale critical analyses and insightful historical comparisons and generalizations. The result is a survey of the contemporary philosophical scene that is far more imaginative, and far more stimulating, than the sort found in books whose authors’ range of reference is limited to the last few decades’ worth of work within analytic philosophy.

And from a bit later in the review:

Habermas regards Brandom as representing “the state of the art of pragmatic approaches in analytic philosophy of language”, but thinks that Brandom’s “assimilation of the objectivity of experience to the intersubjectivity of communication is reminiscent of an infamous Hegelian move” (7-8). He reads Brandom as an arch-contextualist, whose inferentialist theory of the nature of propositional content “obliterates the distinction between the intersubjectively shared lifeworld and the objective world”. Brandom, he says, “does not rescue the realist intuitions by recourse to the contingent constraints of a world that is supposed to exist independently and for everyone” (155), and so is driven to a linguistified version of Hegel’s objective idealism.

Habermas argues that we need a concept of empirical truth that “connects the result of successful justification with something in the objective world” (42). This means keeping intact the distinction between the availability of a “justification-independent point of reference” for assertions of empirical fact and the absence of such a point of reference when we turn to moral judgments and norms. In morality, he says, we lack “the ontological connotation of reference to things about which we can state facts” (42). So he criticizes Brandom’s refusal to accept any version of the Kantian distinction between theoretical and practical uses of reason.

And finally:

Like Putnam and the late Bernard Williams, Habermas wants to naturalize and de-transcendentalize philosophy, and to disconnect morality from metaphysics. So he is willing to concede a lot of ground to Nietzsche’s polemics against Plato—and in particular to give up on the correspondence theory of truth. But he nevertheless holds on both to claims of unconditionality and to what he calls “the natural Platonism of the lifeworld”—a Platonism that insists on “a justification-transcendent standard for orienting ourselves by context-independent truth-claims” (254).

Highly recommended!