Legal Theory Blog

Legal Theory Bookworm This week,

Legal Theory Bookworm This week, I have a list of contemporary "classic" titles on utilitarianism & consequentialism:

• Consequentialism and Its Critics by Samuel Scheffler.
  
• The Rejection of Consequentialism: A Philosophical Investigation of the Considerations Underlying Rival Moral Conceptions (Clarendon Paperbacks) by Samuel Scheffler
  
• Utilitarianism and Beyond, edited by Amartya Sen & Bernard Williams
  
• Utilitarianism : For and Against by J. J. C. Smart & Bernard Williams

These four books form the core of an excellent library on contemporary debates about consequentialism & utilitarianism.

Download of the Week This

Download of the Week This week, the Download of the Week is Should We Value Legislative Integrity? by Andrei Marmor. Here's the abstract:

This essay challenges the widely held view that legislative integrity is a distinct political ideal. According to this ideal, lawmakers should try to make the total set of laws they enact as morally coherent as possible. I advance two types of arguments against this ideal. First, I try to show that the ideal of legislative integrity is directly at odds with the value of pluralism and the commitment of a liberal state to respect reasonable pluralism. Second, I explore the main causes of the failure of legislative integrity in democratic legislatures, arguing that there is nothing regrettable about these causes, on the contrary, they manifest commendable aspects of democratic law making.

Download it while its hot!

Posner & Sykes on Optimal

Posner & Sykes on Optimal War Eric Posner & Alan Sykes have posted Optimal War and Jus Ad Bellum on SSRN. Here is the abstract:

The laws of war forbid states to use force against each other except in self-defense or with the authorization of the United Nations Security Council. Self-defense is usually understood to mean self-defense against an imminent threat. We model the decision of states to use force against "rogue" states, and argue that under certain conditions it may be proper to expand the self-defense exception to preemptive self-defense. We also consider related issues such as humanitarian intervention, collective security, and the role of the Security Council.

Guadamuz on the Technology Transfer

Guadamuz on the Technology Transfer Andres Guadamuz has posted The Future of Technology Transfer in the Global Village (Journal of World Intellectual Property, Vol. 3, No. 4, pp. 589-602, 2000) on SSRN. Here is the abstract:

One of the most serious challenges facing international legal institutions in the present era of globalisation is the adoption of adequate written laws in the form of treaties, conventions, and codes that address the issues faced by the international community. There have been advances in many areas, mostly in Public International Law. However, when it comes to achieving agreement in economic and commercial issues, the record of the International community is not as positive. Many areas of the law require international conventions or treaties to provide a united front to common problems faced by most countries. Such is the case in areas of competition law, international trade, electronic commerce and intellectual property. One of the areas in desperate need of international regulation is that of creating codes of conduct for the same multinational corporations that have triggered the globalisation process. The present essay will be centred on the concept of technology transfer and on how technology is owned and transferred. Then, the efforts by the United Nations to achieve an agreement on codes of conduct for the transfer of technology will be discussed. Finally, some options for the future of Technology Transfer will be considered.

Harris on Innocence Seth D.

Harris on Innocence Seth D. Harris (New York Law School) has posted Innocence and The Sopranos (New York Law School Law Review Vol. 49) on SSRN. Here is the abstract:

"Innocence" can be defined in a narrow, even technical way: "[f]reedom from specific guilt; the fact of not being guilty of that which one is charged; guiltlessness." But "innocence" can also take on a larger meaning that extends beyond technicality into morality: "[f]reedom from sin, guilt, or moral wrong in general; the state of being untainted with, or unacquainted with, evil; moral purity." This broader definition conveys a larger idea that is more powerful and evocative than the former's narrow literalism.

"Innocence" has played an important role in three lines of judicial decisions addressing claims of workplace discrimination: remedies decisions, decisions reviewing affirmative action in public employment, and decisions reviewing affirmative action in private employment. From the Supreme Court's perspective, the "innocent" third parties in these workplace discrimination cases are the white and male co-workers of the African-American and women workers who have been the victims of discrimination. The Supreme Court has repeatedly relied on the "innocence" of white and male workers to deprive African-American and female discrimination victims of complete relief from discrimination.

This essay argues that the Supreme Court's "innocence" jurisprudence in the workplace discrimination cases represents a subtle bait-and-switch of one definition of "innocence" for the other. The white and male co-workers of the victims of discrimination are "innocents" only in the sense that they satisfy the narrower definition: "freedom from specific guilt." Nonetheless, the Supreme Court has afforded these "innocents" protection appropriate only for those who satisfy the broader, moral definition of "innocence." Thus, the Court's workplace discrimination decisions minimize discrimination and its victims while emphasizing the purported plight of "innocent" co-workers.

This misuse of the power of "innocence" has deprived the victims of discrimination of complete justice. The central issue became how best to resolve a manufactured struggle between the victims of discrimination and their co-workers over jobs, promotions, and wages rather than how to eliminate the vestiges of discrimination from the workplace. The Court's answer, dictated by its re-shaping of the question, has been to constrain the lower courts and other branches and levels of government from preferring the victims of discrimination over their "innocent" co-workers in the assignment of burdens and benefits in the workplace.

This essay discloses how the Supreme Court has wielded the power of "innocence" in its workplace discrimination cases. But it also responds to the Supreme Court's subtle bait-and-switch of one form of "innocence" for another with a resounding "fuhgeddaboutit!" This essay recruits America's favorite TV mob family - the Sopranos - to help in the assessment of what it means to be "innocent." Fictional New Jersey crime boss Tony Soprano, his wife Carmela, his oldest child Meadow, and only son Anthony, Jr. ("AJ") challenge the role that "innocence" plays in the resolution of disputes over workplace discrimination and help us to understand that "innocence," as defined in the only manner that befits the white and male co-workers of the victims of discrimination, is and should be irrelevant to the resolution of these disputes. In the process, the Sopranos offer a competing vision of what it means to genuinely and fully remedy workplace discrimination. It's an offer we can't refuse.

Tan on Finnis Seow Hon

Tan on Finnis Seow Hon Tan (National University of Singapore) has posted Justification in Finnis' Natural Law Theory (Singapore Journal of Legal Studies, Forthcoming) on SSRN. Here is the abstract:

This essay examines Finnis' theory of natural law by addressing Finnis' solution to the problem of justification that besets any theory of law. It assesses the quality of Finnis' theory from its purported justification of self-evidence, and by asking if Finnis' theory adds anything of value to classical natural law discourse, the scholarship of which he purports to develop.

Hor on Corroboration Michael Hor

Hor on Corroboration Michael Hor (National University of Singapore - Faculty of Law) has posted Corroboration: Rules and Discretion in the Search for Truth (Singapore Journal of Legal Studies, pp. 509-542, 2000) on SSRN. Here is the abstract:

It is easy to think of the corroboration rules as a thing of the past - something which in a few years will no longer plague the law of evidence. Yet we must not forget the apparently intractable problem which they were designed to deal with - that of oath against oath, one person's word against another. Both historically and presently, the law has had to struggle with a choice between a regime of rules or a system of discretion; and the result is a fascinating compound of rule and discretion.

Early Modern Philosophy Texts on

Early Modern Philosophy Texts on the Web Jonathan Bennett has launched a new website (www.earlymoderntexts.com) containing versions of some classics of early modern philosophy, prepared with a view to making them easier to read while leaving the main arguments, doctrines, and lines of thought intact. He writes:

These versions are faithful to the content of the originals, but are plainer and more straightforward in manner. They are not dumbed down. One graduate student wrote in his weblog about one of the texts: 'The arguments and even most of the turns of phrase are unchanged, but it's just plain easier to read.' To the best of my knowledge, no other student-friendly versions of early modern philosophy texts exist anywhere on the Internet.

Check it out!

Two By Marmor Andrei Marmor

Two By Marmor Andrei Marmor has two new papers on SSRN:

Should We Value Legislative Integrity?
This essay challenges the widely held view that legislative integrity is a distinct political ideal. According to this ideal, lawmakers should try to make the total set of laws they enact as morally coherent as possible. I advance two types of arguments against this ideal. First, I try to show that the ideal of legislative integrity is directly at odds with the value of pluralism and the commitment of a liberal state to respect reasonable pluralism. Second, I explore the main causes of the failure of legislative integrity in democratic legislatures, arguing that there is nothing regrettable about these causes, on the contrary, they manifest commendable aspects of democratic law making.
On the Right to Private Property and Entitlement to One's Income
In this short essay I argue that the main insight of Murphy and Nagel's book, The Myth of Ownership, that people have no right to their pre-tax income, is not supported by their claim that the right to private property is not a natural right. The non-naturalness of the right to private property, I argue, is completely irrelevant to their moral argument. The plausibility of their moral conclusion derives from the thesis (which they also seem to endorse) that people do have a right to the fruits of their labor, maintaining, however, that there is no possible conception, morally speaking, of what the fruits of one's labor are, independent of a system of legal and social norms that constitute the terms of fair bargaining, pricing, etc. People can only have a right to a fair assessment of the added value of their labor and the latter cannot make any sense independent of the entire system of norms prevailing in the relevant society. I argue that this conclusion is not affected by the nature of the right to private property.

Kerr on the Fourth Amendment

Kerr on the Fourth Amendment & New Technologies Owen Kerr has posted The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution on SSRN. Here is the abstract:

This article argues that courts should approach the Fourth Amendment with caution when technology is in flux. When a technology is new or developing rapidly, courts should adopt modest formulations of Fourth Amendment protections that recognize the effectiveness and institutional advantages of statutory privacy protections.

The cautious approach is justified on three grounds. First, caution is consistent with existing judicial practice. The reasonable expectation of privacy test generally has been used by the courts as a term of art that remains closely tied to property law concepts. When a technology implicates privacy but not property, current judicial practice tends to avoid broad interpretations of the Fourth Amendment.

Second, legislative privacy protections are significantly stronger than most commentators appreciate. The case of wiretapping is instructive. While Fourth Amendment scholars often view wiretapping as a constitutional field under Katz v. United States and Berger v. New York, wiretapping has long been a primarily statutory field. Even today, wiretapping practice is governed by statutory commands, not constitutional ones. More broadly, Congress has created a wide range of statutory privacy laws that protect privacy in developing technologies where the courts have declined to offer protection.

Third, legislatures have considerable institutional advantages that enable the legislative privacy rules regulating new technologies to be more balanced, comprehensive, and effective than judicially created rules. Rapid technological change makes it difficult for courts to clarify the law. Courts also lack the institutional capacity to readily appreciate existing technology and the impact of different legal rules. In contrast, courts are well equipped to respond to technological change in the context of criminal procedure rules.