Legal Theory Blog

Nelkin on Moral Luck Dana

Nelkin on Moral Luck Dana Nelkin (UC San Diego & affiliated with USD's Institute on Law and Philosophy) has the Stanford Encyclopaedia of Philosophy entry on Moral Luck posted. Here is a taste:

Moral luck occurs when an agent can be correctly treated as an object of moral judgment despite the fact that a significant aspect of what she is assessed for depends on factors beyond her control. Bernard Williams writes, “when I first introduced the expression moral luck, I expected to suggest an oxymoron” (Williams 1993, 251). Indeed, immunity from luck has been thought by many to be part of the very essence of morality. And yet, as Williams (1981) and Thomas Nagel (1979) showed in their now classic pair of articles, it appears that our everyday judgments and practices commit us to the existence of moral luck. The problem of moral luck arises because we seem to be committed to the general principle that we are morally assessable only to the extent that what we are assessed for depends on factors under our control (call this the “Control Principle”). At the same time, when it comes to countless particular cases, we morally assess agents for things that depend on factors that are not in their control. And making the situation still more problematic is the fact that a very natural line of reasoning suggests that it is impossible to morally assess anyone for anything if we adhere to the Control Principle.

Also up at the superb Stanford site Moral Cognitivism vs. Non-Cognitivism by Mark van Roojen.

Lipton on Information Policy Jacqueline

Lipton on Information Policy Jacqueline D. Lipton (Case Western Reserve University School of Law) has posted A Framework for Information Law and Policy (Oregon Law Review, Vol. 82, No. 3, 2004) on SSRN. Here is the abstract:

The information age calls for new legal and policy approaches to the ways in which we deal with information. Previous moves in this area have tended to center around developing a 'cyberlaw' or 'Internet law'. This has involved largely piecemeal attempts to gather together miscellaneous legal issues that happen to relate to digital communications technologies. No clear discernible normative framework has yet emerged.

Rather than focusing on these new technologies, any new legal and policy framework for the information age should be organized around the idea of 'information' per se, with its focus on society's interactions with various kinds of information. Such a development would require the identification and development of normative principles that will shape the development of relevant laws and policies.

This article suggests that an appropriate set of normative principles might be derived from identifying a set of 'control' and 'access' rights in relation to information. These rights could be utilized as 'organizing tools' for the development of a legal and policy framework that would help inform the development of a harmonized and cohesive set of 'information law and policy principles' for the global information age. The following discussion demonstrates how this might be achieved in theory and practice, and presents case studies to illustrate how such a law and policy framework might prove useful in informing future debate in the 'information law' area.

Ginsburg & McAdams on International

Ginsburg & McAdams on International Dispute Resolution Tom Ginsburg and Richard H. McAdams (University of Illinois College of Law and Yale Law School (Visiting)) have posted Adjudicating in Anarchy: An Expressive Theory of International Dispute Resolution (William & Mary Law Review, Fothcoming) on SSRN. Here is the abstract:

Frequent compliance with the adjudicative decisions of international institutions, such as the International Court of Justice, is puzzling because these institutions do not have the power domestic courts possess to impose sanctions. This paper uses game theory to explain the power of international adjudication via a set of expressive theories, showing how law can be effective without sanctions. When two parties disagree about conventions that arise in recurrent situations involving coordination (such as a convention of deferring to territorial claims of first possessors), the pronouncements of third-party legal decision-makers - adjudicators - can influence their behavior in two ways. First, adjudicative expression may construct focal points that clarify ambiguities in the convention. Second, adjudicative expression may provide signals that cause parties to update their beliefs about the facts that determine how the convention applies. Even without the power of sanctions or legitimacy, an adjudicator's focal points and signals influence the parties' behavior. After explaining the expressive power of adjudication, the paper applies the analysis to a range of third party efforts to resolve international disputes, including the first-ever review of the entire docket of the International Court of Justice. We find strong empirical support for the theory that adjudication works by clarifying ambiguous conventions or facts via cheap talk or signaling. We claim that the theory has broad implications for understanding the power of adjudication generally.

KaZaA Strikes Back Check out

KaZaA Strikes Back Check out the CNET story here:

A U.S. federal court has cleared the way for Kazaa file-sharing software owner Sharman Networks to sue the entertainment industry for copyright infringement, Sharman said on Friday.

Sharman, targeted by studios and record companies because its software is used to trade music and video files, has sought to turn the tables on the industry, accusing it of misusing Kazaa software to invade users' privacy and send corrupt files and threatening messages.

This should be fun!

Hasen on Slate Election law

Hasen on Slate Election law superblogger Rick Hasen has a new piece on Slate. Here is a taste:

Whoever ultimately emerges as the presumptive Democratic nominee from the front-loaded primary season can expect a pummeling from President Bush's re-election committee. That committee will have between $130 million and $200 million to spend on attack ads during Bush's own "primary season" (in which he is running unopposed by serious candidates) lasting up to the Republican convention—a convention slated later than usual to maximize the pummeling time. Bush's committee is borrowing from Bill Clinton's 1996 playbook when the Democrats used that period to run ads beating up on presumptive Republican nominee Bob Dole, though with only a fraction of the money raised by Bush's committee.

Whether supporters of the Democratic nominee will have the resources to fight back this spring and summer may depend a great deal on arcane administrative decisions to be made by the Federal Election Commission. At issue is whether pro-Democratic non-party organizations can raise large "soft money" donations to spend supporting the Democrats and pummeling Bush back. The fight to limit donations to these groups has created an odd alliance between campaign-finance-reform organizations and the Republican Party, and the coalition just may win before the FEC.

I always learn from Hasen on election-law issues. Surf on over!

Confirmations Wars Department: More on

Confirmations Wars Department: More on the Memos The Hill has a detailed report on the inner workings of the Senate Judiciary Committee in relation to the access by Republican staffers to Democratic memos on judicial selection. The story focuses on a shift in control of the committee from the leadership to Senator Hatch's personal staff. Here is a taste:

Hatch’s acquiescence to the probe seems to have shifted control of the fight over judicial nominees from the leadership, whom conservatives had convinced to take an aggressive approach, to that of his personal office.

The conservatives’ ire has focused on Patricia Knight, the chief of staff in Hatch’s personal office, who conservative staffers say is now calling the shots at the Judiciary Committee.

Hasen's Guide to Bush v.

Hasen's Guide to Bush v. Gore Rick Hasen of Election Law Blog has posted A Critical Guide to Bush v. Gore Scholarship on SSRN. Here is the abstract:

This article evaluates the emerging legal and political science scholarship created in the wake of the United States Supreme Court's decision in Bush v. Gore, the case that ended the 2000 Florida election controversy between supporters of George W. Bush and Al Gore. It surveys answers that scholars have given to four central questions: (1) Were the Supreme Court's majority or concurring opinions legally sound? (2) Was the Supreme Court's result justified, even if the legal reasoning contained in the opinions was unsound? (3) What effects, if any, will the case and the social science research it has spurred have on the development of voting rights law? (4) What does the Court's resolution of Bush v. Gore tell us about the Supreme Court as an institution?

Kamm on Just War Theory

Kamm on Just War Theory and Terrorism at UCL At University College's Colloquium in Legal and Social Philosophy, Frances Kamm presents Failures of Just War Theory and Terrorism. Here is a bit from the introduction:

This article has three parts. In the first part, I shall try to provide an overview of issues related to both terror and nonterror-killing inside and outside of standard war. It provides a framework within which we can locate some issues that will be explored in more detail in subsequent parts. The second part deals with the Doctrine of Double Effect (DDE) in standard just war theory. I criticize its prohibition on intending harm and consider cases where it is permissible, for example, to terror bomb combatants and noncombatants. Through criticism of the DDE as a way of justifying unintended noncombatant deaths, I am led in the third part to focus on (A) the relative degrees of inviolability of various types of people in intergroup conflict and (B) a better justification for the permissibility of causing some types of foreseen noncombatant deaths.

This is the famous series, hosted by Ronald Dworkin and Stephen Guest, at University College. Kamm is the first speaker of 2004!

Parry on Torture at Villanova

Parry on Torture at Villanova At Villanova law today, John Parry (University of Pittsburgh School of Law) presents Chavez v. Martinez and the Jurisprudence of Torture.

Levinson on Non-Evidence at Loyola

Levinson on Non-Evidence at Loyola Marymount At Loyola Marymount, Laurie Levenson (LMU) presents Why Looks Matter: The Impact of Non-Evidence on the Courtroom.