Legal Theory Blog

Tuesday CalendarOxford Jurisprudence Discussion Group:

Tuesday Calendar

Oxford Jurisprudence Discussion Group: Stephen Guest, Integrity, Equality, and Justice.
Northwestern Employment Law: Christina Rodriguez, New York University Law School, "Language and Participation"
University of Chicago, Law & Economics: Mark J. Roe, Professor of Law, Harvard Law School, Delaware's Politics.
Oxford Intellectual Property Research Centre: Dr. Mira T. Sundara Rajan, INTELLECTUAL PROPERTY IN THE NEW MILLENNIUM: Copyright and Creative Freedom: Are Moral Rights the Future of Copyright Law?
Vanderbilt School of Law: Michael Vandenbergh, "Order without Social Norms: How Personal Norm Activation can Protect the Environment".

Ashcroft v. RaichIntroduction When I

Ashcroft v. Raich

Introduction When I wrote these words, I was sitting in the chamber of the Supreme Court of the United States. The last time I was in this room, I was sitting on the bench in the chair usually occupied by Chief Justice Rehnquist—that’s another story altogether. On this occasion, Rehnquist’s chair was empty, but he will participate in the decision of the case heard today--Ashcroft v. Raich.
Background The issue in Raich focuses on medical use of cannabis, authorized by a voter initiative in the State of California but prohibited by federal law. In particular, the issue is whether the federal government may prohibit the possession of home-grown, intrastate, noncommercial cannabis, the use and possession of which has been authorized by state law.
In a sense, this case has its roots in the New Deal era. In 1937, the United States Supreme Court began to expand Congress’s legislative power in the famous case of Jones & Laughlin Steel (the case involving the so-called “switch in time that saved nine”). A few years later, the Court decided Wickard v. Filburn, in which a federal limitation of wheat production was upheld as applied to a Mr. Filburn’s use of wheat on his own farm. The rationale of that case was that the general class of all wheat grown and consumed on farms on interstate commerce would be substantial, and therefore, Congress could regulate the wheat even though it was never sold in interstate commerce. In the 1950s through the 1980s, the conventional wisdom was that the Supreme Court had removed virtually all limits on Congress’s power under the Commerce Clause of the Constitution. So long as there was a “rational basis” or even a “conceivable rational basis” for Congress’s action, it would be within Congress’s legislative power. It was therefore a shock when the Supreme Court decided two cases in the 1990s that struck down federal statutes on the grounds that they were outside of Congress’s power to regulate interstate commerce.
The first of these two cases was Lopez, in which the Supreme Court struck down the Gun Free School Zones Act, a federal statute that prohibited the possession of a gun within 1000 feet of a school. The second case was Morrison, in which the Court struck down the Violence Against Women Act. These cases limited Wickard v. Filburn to regulations that involve “economic activity,” a category that the Court has never precisely defined but which seems to apply to actions that are part of a process that leads to sale or barter.
The lower courts have recently begun to apply Lopez and Morrison in “as applied” challenges to other federal statutes. Examples include: (1) a home-assembled machine gun, (2) home-made child pornography, and (3) home-grown state authorized medical cannabis. Ashcroft v. Raich gives the Supreme Court an opportunity to clarify the meaning of Lopez and Morrison and potentially, an opportunity to further limit Congress’s power or to modify its two “new federalism” decisions in a way that would make them toothless. Raich is potentially a very important case, but it also could be decided on very narrow grounds.
The Justices Enter The chamber is hushed as the Justices begin to enter, beginning with Justice O’Connor. Justice Stevens waits a few moments and then speaks, announcing that the Court will take motions of admission to the Supreme Court Bar. This quaint ritual is completed with dispatch, and Justice Stevens calls Paul Clement, the Acting Solicitor General of the United States to the podium.
Caveat The following notes on the oral argument are only notes. In some cases, I was unable to transcribe a question or answer. In almost every case, my notes use some phrases from the actual exchange, but also substitute my own words to convey the “sense” of what I heard as I understood it.
Petitioner’s Argument Paul Clement has the demeanor of a quiet and thoughtful man—an appellate lawyer’s appellate lawyer, if you catch my drift. He begins with by arguing that “Congress has comprehensively regulated drugs through the Controlled Substances Act.” No sooner does he begin, than Justice O’Connor interrupts:
O’Connor: But do not our decisions in Lopez and Morrison dictate concerns in this context?
Clement: But those decisions preserved this Court’s Darby and Wickard decisions, which validate the statute here.
O’Connor: But this substance was not in national market or in any intrastate market, unlike the activity at issue in those cases.
Clement: It would be optimistic to believe that there will be no diversion to the national market.
O’Connor: But shouldn’t we assume that California will enforce its law against the sale or transportation of marijuana for nonmedical purposes?
Clement: Marijuana is a fungible product and there is a national market in this drug.
O’Connor: Suppose there was a finding by the District Court that there was no diversion from the medical market to the illegal market?
Clement: That would be irrelevant.
O’Connor: But what would happen in my hypo?
Clement: This Court in a series of cases has made it clear that it is not the conduct of the individual plaintiff, but the class of activities that Congress has chosen to regulate that is relevant.
At this point, Justice Scalia joins the fray:
Scalia: But isn’t it the case that Congress doesn’t want interstate commerce in marijuana? How does this regulation serve that end?
Clement: Since the Lottery Case, it has been clear that Congress has the authority to ban a contraband from interstate commerce.
Scalia: But that is not the same rationale as Wickard. You rely on Wickard to prohibit marijuana in order to reduce demand for the interstate market.
Clement: The reality is that there is a 10.5 billion dollar market for marijuana.
Scalia: Suppose hypothetically, there was no diversion
Clement: The problems are parallel.
And now Justice Kennedy joins in:
Kennedy: What about the Perez case in which Congress banned loan sharking?
And Justice Ginsburg quickly follows:
Ginsburg: This not commercial activity, is it?
Clement: This is economic activity, but not commercial activity. It is like the production of wheat.
And Justice Souter now has a question:
Souter: We can’t generalize from these plaintiffs, can we? Other medical users may purchase their cannabis from the illegal market?
O’Connor: Wasn’t the wheat in Filburn in the interstate market? Not all of it was consumed on the farm.
Clement: The wheat was consumed on the farm.
O’Connor: But wasn’t other wheat from this same farm used in interstate commerce?
Clement: The disposition of the particular wheat at issue in Filburn was not certain, but the case involved wheat consumed by the farmer as his own bread.
Justice Kennedy: Is this a harder or easier case than Filburn, given that the substance here is illegal?
Clement: Easier, because Congress can prohibit contraband. Marijuana is fungible, and Congress could conclude that any island of lawful possession is a threat to regulation of the contraband. Moreover, the legitimate use has been made available to patients in the form of a THC pill, Marinol.
Ginsburg: But on this record, isn’t their evidence that the pill does not work. Would the patients have any defense if they were criminally prosecuted?
Clement: The Oakland Cannabis Buyers Club case, as we read it and some members of this Court may disagree, rejects a medical necessity defense. But there is a deeper flaw in Respondent’s position: there is a mismatch between the California law and the argument that this conduct does not involve interstate commerce. California provides a defense even to those who purchase marijuana from the illegal interstate market.
Justice Stevens now joins in.
Stevens: What class of activities is at issue here? Are you saying that there can never be an as applied challenge?
Clement: Yes, under the commerce clause, there can be no as applied challenge.
This was a hugely significant exchange. If there is no such thing as an as-applied challenge under the Commerce Clause, then the government wins. But this position seems radically implausible. In Wickard v. Filburn itself the Supreme Court analyzed the challenge “as applied” to Mr. Filburn’s conduct.
O’Connor: In Morrison didn’t we say that the Commerce Clause does not reach noneconomic activity that only affects commerce through a “but for” causal chain?
Clement: In Morrison, the activity was noneconomic.
O’Connor: Isn’t this activity noneconomic, because the marijuana here was grown for personal use?
Clement: But Wickard v. Filburn is indistinguishable.
Justice Kennedy: If we rule for the plaintiff’s wouldn’t the price for marijuana go down?
Clement: Yes, the price would go down. Congress is trying to increase the price for marijuana by creating a black market. Marinal provides a safe version of THC, and that provides a hook for the application of Congress’s Commerce Clause power. The statute trumps the individual physician’s determination that raw marijuana is medically necessary. The federal regulations do not allow doctors to make such a determination.
Stevens: Can we ignore a district court finding that marijuana is medically beneficial?
Clement: It depends. If the context is review of the scheduling decision, then the medical evidence would be relevant. The FDA has no inherent hostility to THC; it has rescheduled marinol from the schedule 2 to schedule 3.
Ginsburg: Have there been any challenges to marijuana’s position on schedule one?
Clement: Yes. Efforts have been made. The Institute of Medicine Study made it clear that smoked raw marijuna has no future as a legitimate phramaceutical. Rather, we would take the raw material and synthesize the medically beneficial ingredients. This is because smoking marijuana is harmful.
Souter: If the Respondent’s argument suceeds then we would have the question whether recreational use would be covered by our ruling. In deciding what the appropriate subclass might be, can’t we take into account the health benefits of medical marijuana?
Clement: It would not be a good idea for the courts to second guess Congress.
Respondent’s Argument Clement’s argument ended with his reservation of time for rebuttal. The oralist for the Respondent is Randy Barnett—familiar to many readers of Legal Theory Blog as a member of the Volokh Conspiracy and a distinguished constitutional law scholar. Barnett begins:
Barnett: May it please the Court, I have two points. The first point is that the activity involved here is wholly intrastate and noneconomic in nature. The second point is that regulation of this activity is not essential to a broader regulatory scheme.
Kennedy: But isn’t simple possession part of the market.
Barnett: It depends on the facts. Posession of marijuana for sale or after purchase is part of the market, but possession of home grown marijuana for personal medical use is not.
Kennedy: But isn’t marijuana fungible?
Barnett: Fungibility is at issue in this case, but the fungibility of marijuana does not speak to the question whether possession of marijuana for personal medical use is economic activity.
Justice Scalia jumps in:
Scalia: What about the Endangered Species Act? Can Congress reach possession of a individual member of an endangered species if there is no economic activity.
Barnett: That might be essential to a broader regularoty scheme, but in this case the medical use of marijuana is isolated by state law from the interstate market.
Scalia: What is the basis for narrowing the category of activity in that way?
Barnett: The State of California has narrowed the class of activity by authorizing only medical cannabis.
Scalia: But isn’t it true that among the users of medical cannabis are whole communes with lots of people in them smoking marijuana.
Justice Breyer now gets in:
Breyer: I haven’t been able to understand why it would be that Congress has no power when the state acts. Why would state regulation limit federal power?
Barnett: The federal government can only reach noneconomic activity if the state’s authorization of that activity would undermine a broader scheme for the regulation of interstate commerce. The state statute isolates medical cannabis from the larger recreational market.
Breyer: What if a state were to authorize use of cocaine or heroin or genetically modified tomatoes that Congress believed were harmful to health?
Barnett: Congress could reach such noneconomic activity if it were essential to a broader regulatory scheme.
Breyer: So you are asking us to compare the state and federal schemes and to determine whether the it is essential to the federal scheme in light of what the state scheme does. That sounds difficult for this court to do. The government is arguing in this case that large numbers of consumers will use medical marijuana, and hence that lower prices will undermine the federal scheme. We won’t know what effect the state law will have on the federal scheme. Won’t that be a mess?
Barnett: There are two points in your question. (1) whether numbers of medical users will be large, and (2) whether it will be possible to identify medical users and hence distinguish them from recreational users. On the first point, the numbers are very small. The government quotes the National Organization for Marijuana Laws for their figure of 100,000. We quote the official government figures showing the number is insignificant. These people are taken out of the illegal market by the California law.
Breyer: But isn’t the effect for Congress to decide?
Barnett: There is a threshold issue. If this is noneconomic activity, then it can only regulated if essential to a broader regulatory scheme.
Kennedy: But isn’t this just like baking bread or washing dishes, which our cases show is an economic activity?
Barnett: Those can be economic activities if they are part of a commercial enterprise, but the government’s position leads to the conclusion that washing dishes at home is economic.
Souter: Assume there are 100,000 users, under the California statute, can’t they buy it on the street? The statute does not differentiate between possession of homegrown and street-bought marijuana.
Barnett: But medical users have every incentive not buy marijuana on the street. They can be prosecuted for buying it on the street.
Souter: Couldn’t it be the case that millions of medical users would be buying marijuana on the street?
The next exchange, between Barnett and Ginsburg, explored a particularly interesting issue.
Ginsburg: If we rule for you, why wouldn’t our ruling cover someone in a neighboring state who grew their own marijuana for medical use even though the state had not authorized it?
Barnett: There are two differen answers to this question. First, assuming this Court does not create an “essential to a broader regulatory scheme” exception to Lopez and Morrison, then your ruling would reach noneconomic medical use in states that have not authorized medical cannabis use. Second, if you do recognize the “essential to a broader regulatory scheme” exception, then the question is whether the lack of authorization makes a difference. California, for example, will issue ID cards that will help to isolate medical use from the interstate market.
Ginsburg: But there are no ID cards now.
Barnett: But the Court should trust the state to take those measures necessary so that the state authorization serves its intended purpose.
And the next exchange, between Barnett and Justice Breyere was also very interesting.
Breyer: Now I think I understand your position. You are arguing that if the activity is noneconomic, then Congress can only reach it under the “essential to a broader regulatory scheme” exception. But then doesn’t the Morrison case go my way, on the theory that the regulations challenged there were essential to a broader scheme.
Barnett: That’s why the “essential to a broader regulatory scheme” exception must be interpreted narrowly—so that it is consistent with Morrison.
Justice Breyer clearly grasps the Respondent’s theory, but because he dissented in Morrison, he does not accept its underlying premises.
Breyer: But isn’t the connection to the market closer than in Morrison?
Barnett: But here, unlike Lopez where the gun was from interestate commerce, the marijuana is wholly intrastate.
In the next exchange, Barnett and Scalia disagree over the meaning of Wickard v. Filburn.
Scalia: If there had been an interstate connection in Lopez, wouldn’t we come out there other way?
Barnett: But here there is no interestate connection.
Scalia: That sounds like Wickard v. Filburn, where the family was eating the wheat they grew on their own farm.
Barnett: If the only activity relating to wheat on the Filburn farm was eating it at the family dinner table, the case would never have been brought.
Scalia: Isn’t that exactly what Wickard v. Filburn was about? I don’t think you’ve characterized that case fairly.
Barnett: The phrase “home consumed” in context meant consumed on the farm, by feeding to livestock, etc.
Breyer: But wasn’t homegrown and consumed wheat still regulated, irrespective of the particular use? The question was whether it “exerted substantial economic effect”.
Barnett: At that time, the Court was using the narrower definition of “commerce” that Justice Thomas has argued for. What we would call it today is “economic activity.” Filburn was engaged in economic action as part of a commercial farming enterprise.
Scalia: So why isn’t this economic activity?
Barnett: In Wickard v. Filburn the wheat was grown as part of a commercial enterprise and fed to livestock sold on the market.
Stevens: What is your view on the effect of the state law on the interstate market? Increase prices, no effect on prices, or decrease in prices?
Barnett: Can I choose trivial reduction of price?
Stevens: If you reduce demand, then you will reduce prices? Wouldn’t it increase prices?
Barnett: No, if you reduce demand, you reduce price.
Stevens: Are you sure?
Barnett: Yes.
Souter: Suppose that 100,000 people are in chemotherapy in California. Then couldn’t there be 100,000 users of medical marijuana?
Barnett: There could be.
Souter: If there are 34 million people in California, then there could be 100,000 people in chemotherapy.
Barnett: It is important to remember that the law confines medical cannabis use to the people who are sick and have a physicians recommendation. Wickard v. Filburn’s aggregation principle does not apply if the activity involved is noneconomic.
Souter: But isn’t the argument that it is economic activity if it has a sizeable effect on the market?
Barnett: No. The effect on the market is only relevant if it is market activity.
Souter: But in Lopez wasn’t the effect on the market much more remote than the effect involved in this case?
Barnett: The point is that economic activity and personal liberty are two different categories.
Souter: That is not a very realistic premise.
Barnett: The premise is that it is possible to differentiate economic activity from personal activity. Prostitution is economic activity, and there may be some cross substitution effects between prostitution and sex within marriage, but that does not make sex within marriage economic activity. You look at the nature of the activity to determine whether or not it is economic.
Breyer: If marijuana is medically helpful, can’t your clients go to the FDA and get it rescheduled. Then if the FDA rules against them, they can go to court and the FDA ruling can be reviewed for abuse of discretion. And if there is no abuse of discretion, then wouldn’t I believe as a judge and an individual that it is doubtful there is a medical benefit? Is medicine by regulation better than medicine by referendum?
RB: I would simply ask you to read the account of obstruction of research in the amicus brief and the Institute for Medicine report cited by both us and the government. It is true that marijuana is smoked, but that is because it saves the lives of some sick people.
Kennedy: Are prescriptions limited to cases where marijuana is life saving?
Barnett: It is limited to a list of illnesses.
Ginsburg: I have procedural question. You’ve asked for an injunction against criminal prosecutions. Isn’t there an equitable principle against enjoining criminal prosecutions?
Barnett: We’ve also asked for an injunction against the seizure of marijuana, which has occurred in this case. Such seizures put the supply at jeopordy.
Petitioner’s Rebuttal Clement then proceeded to a short rebuttal, which was not interrupted by the Court.
Clement: Respondent wishes the Court to believe that medical cannabis is hermetically sealed, but the state law is not designed to limit the class of authorized activity to the intrastate noncommercial marijuana. We have cited the NORML figure which indicates that there are 100,000 users. The Respondent’s brief indicates that .5% of the poplulation uses medical marijuana; that translates into 170,000 users. As to what conditions are covered, the last item on the list includes any other condition that gives rise to chronic and serious harm to physical or mental health. That is a very broad definition. In real world cases, the defense provided by the California law was made available to a defendant who had 19 ounces of marijuana and a scale. That case was allowed to go a jury. In a Santa Cruz case, a 250 person cooperative claimed the benefit of the law. The line between the illegal market and authorized medical use is not practical.
And with that oral argument came to a close.
Impressions Both oralists did very well. And both sides have weaknesses in their theories. Here are some specific points:
• The government’s position on the line between economic and noneconomic activity is very weak. Cross substitution of demand is a very reasonable conception of the economic for the purposes of the academic study of economics, but it is just plain silly as an interpretation of Lopez and Morrison. The Respondent’s position in oral argument—that economic activity must be part of a process leading to sale or barter—is much stronger. Under the government’s theory, virtually all human activity is economic, including the very activity at issue in Lopez and Morrison.
  
• The government’s positon on as applied challenges is also problematic. Essentially, the government seems to argue that the only permissible challenges under the Commerce Clause are facial challenges. The consequence is that the class of activity regulated is all of the activity reached by the statue. If that position is accepted by the Court, then the government wins in Ashcroft v. Raich, but the implication would be that Congress could reach any conceivable activity simply by including the regulation of that activity within a statute that also reached interestate commerce. That position might have been accepted before Lopez and Morrison, but it cannot be accepted today unless the Supreme Court wants to limit or overrule its “New Federalism” cases.
  
• The government made a very strong case for the idea that it will be hard to draw a line between medical and nonmedical uses. The examples given at the very end of Clement’s rebuttal were especially effective.
  
• The respondents were remarkably effective in the way they handled the “parade of horribles,” e.g. the possibility that a ruling for them could lead to an inability to regulate intrastate heroin, endangered species, etc. Their key move was to show that such regulations could be validated if the Court does adopt the “essential to a broader regulatory scheme” exception that was suggested in Lopez.
  
• The respondents were very strong on the economic/noneconomic distinction. Barnett’s prostitution/marriage example was especially compelling. Only Justice Souter seemed outwardly unconvinced by this line of argument.
  
• The respondents were very strong on the theory of the “essential to a broader remedial scheme” exception. Many of the justices seemed to accept that Congress only had power if the government could show that the regulation of intrastate, noneconomic, state-authorized medical cannabis was essential to regulation of the interstate recreational markiet.
Bottom Lines So how will Ashcroft v. Raich come out? I don’t know. I got a sense that O’Connor, Ginsburg, and perhaps Stevens were quite sympathetic to the respondents. Based on his questions, Justice Kennedy seemed quite favorable to the government. One would guess that Justice Thomas will be the hardest member of the Court for the government to win. One might also guess that it will be hard for the petititoners to win Souter or Bryer, who both are very skeptical of Lopez and Morrison. Justice Rehnquist is hard to call. We didn’t hear from him. One suspects he is both pro-federalism/state power and pro-federal regulation of drugs. One can imagine this case coming out 5-4 either way. Before argument, I would have said it could be 9-0 either way, but if I allow myself the dangerous pleasure of reading the tea leaves, I now think that is unlikely.

Monday CalendarColumbia Legal Theory Workshop:

Monday Calendar

Columbia Legal Theory Workshop: Jeffrey Stout of Princeton University, "The Spirit of Democracy".
NYU School of Law: Avishai Margalit (Visiting from The Hebrew University of Jerusalem) Human Dignity between Kitsch and Deification.
Oxford Moral Philosophy Seminar: Serena Olsaretti, Cambridge.
UCLA School of Law: Carol Bruch, UC Davis Law School, "Lawlessness in California's Family Courts".

Book Announcement: Covenants without SwordsCovenants

Book Announcement: Covenants without Swords

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To read the entire book description and a sample chapter, please visit:
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Covenants without Swords examines an enduring tension
within liberal theory: that between many liberals' professed
commitment to universal equality on the one hand, and their
historic support for the politics of hierarchy and empire on
the other. It does so by examining the work of two extremely
influential British liberals and internationalists, Gilbert
Murray and Alfred Zimmern.

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280 pages. 6 x 9.

Legal Theory CalendarMonday, November 29

Legal Theory Calendar

Monday, November 29
Columbia Legal Theory Workshop: Jeffrey Stout of Princeton University, "The Spirit of Democracy".
NYU School of Law: Avishai Margalit (Visiting from The Hebrew University of Jerusalem) Human Dignity between Kitsch and Deification.
Oxford Moral Philosophy Seminar: Serena Olsaretti, Cambridge.
UCLA School of Law: Carol Bruch, UC Davis Law School, "Lawlessness in California's Family Courts".
Tuesday, November 30
Oxford Jurisprudence Discussion Group: Stephen Guest, Integrity, Equality, and Justice.
Northwestern Employment Law: Christina Rodriguez, New York University Law School, "Language and Participation"
University of Chicago, Law & Economics: Mark J. Roe, Professor of Law, Harvard Law School, Delaware's Politics.
Oxford Intellectual Property Research Centre: Dr. Mira T. Sundara Rajan, INTELLECTUAL PROPERTY IN THE NEW MILLENNIUM: Copyright and Creative Freedom: Are Moral Rights the Future of Copyright Law?
Vanderbilt School of Law: Michael Vandenbergh, "Order without Social Norms: How Personal Norm Activation can Protect the Environment".
Wednesday, December 1
Florida State University, School of Law: Sanja Kutnjak Ivkovich, Florida State University School of Criminology, "A Comparative Perspective on the Police Code of Silence."
Oxford Centre for Criminology: James L. Nolan, Problem-Solving Courts: a Comparative Study of a Legal Transplant.
Oxford Institute of European and Comparative Law in conjunction with Comparative Law Discussion Group: Professor Jacques du Plessis, Duress and Undue Influence in Mixed Legal Systems and the Principles of European Contract Law.
Oxford Public International Law Discussion Group in conjunction with Financial Law Discussion Group: Lee Buchheit, The Role of the Official Sector in Sovereign Debt Workouts: the Case of Iraq.
NYU Legal History: William Novak, Visiting Professor, NYU School of Law.
Oxford Comparative Law Discussion Group in conjunction with Private and Commercial Law Discussion Group: Professor Jacques du Plessis, Duress and Undue Influence in Mixed Legal Systems and the Principles of European Contract Law.
Thursday, December 2.
Loyola Marymount University, Loyola Law School: Brian Leiter,* Joseph D. Jamail Centennial Chair in Law, Professor of Philosophy, and Director of the Law & Philosophy Program, The University of Texas at Austin School of Law, "The End of Empire: Dworkin and Jurisprudence in the 21st Century"
Yale Legal Theory Workshop: Elizabeth Warren, Harvard (Law) "The Over-Consumption Myth and the Other Tales of Economics, Law and Morality".
Stanford Law & Economics: Steven Shavell (Harvard Law School), “The Law as a Remedy for the Problem of Contractual Holdup ”.
University of Michigan, Law & Economics: Oren Bar-Gill, Society of Fellows, Harvard, Pricing Legal Options: A Behavioral Perspective.
Boston University, School of Law: Bob Bone.
George Mason University, School of Law: Dan Lin, GMU Department of Economics Ph.D. Candidate, Asset Specificity and the Organization of the Television Industry.
Oxford Public International Law Discussion Group: Sir Michael Wood KCMG, The Security Council and the Use of Force (though not Iraq 2003).
Princeton Public Law Colloquium: Michael Willrich, Brandeis University, Socializing Justice: The Urban Origins of Legal Progressivism.
Friday, December 3
Georgetown, Law & Economics: Howard Chang, University of Pennsylvania Law, School, "Cultural Communities in a Global Labor Market: Immigration Restrictions as Residential Segregation".
UCLA School of Law: David A. Sklansky, UCLA School OF law & Stephen C. Yeazell, UCLA School of Law, "Comparative Law Without Leaving Home: What Civil Procedure Can Teach Criminal Procedure, and Vice Versa"

Legal Theory Lexicon: Fact and

Legal Theory Lexicon: Fact and Value

Introduction Law students quickly learn that normative argument is an integral part of the law school experience. And sooner or later, they are likely to encounter what is called the fact/value distinction. Of course, the relationship between fact and value is a deep and complex philosophical topic. Even a survey of the basic topics would take us far afield into the heart of metaethics and across the field of normative moral philosophy. Nonetheless, we can take a quick look at three important ideas with which every legal theorist should have a basic familiarity.
Hume on Deriving an Is from an Ought The locus classicus for the distinction between fact and value is David Hume's famous observation about the derivation of an "is" from an "ought." Here is the famous passage from Hume's Treatise on Human Nature, Section 1, Book III:
I cannot forbear adding to these reasonings an observation, which may, perhaps, be found of some importance. In every system of morality, which I have hitherto met with, I have always remark'd, that the author proceeds for some time in the ordinary ways of reasoning, and establishes the being of a God, or makes observations concerning human affairs; when of a sudden I am surpriz'd to find, that instead of the usual copulations of propositions, is, and is not, I meet with no proposition that is not connected with an ought, or an ought not. This change is imperceptible; but is however, of the last consequence. For as this ought, or ought not, expresses some new relation or affirmation, 'tis necessary that it shou'd be observ'd and explain'd; and at the same time that a reason should be given; for what seems altogether inconceivable, how this new relation can be a deduction from others, which are entirely different from it. But as authors do not commonly use this precaution, I shall presume to recommend it to the readers; and am persuaded, that this small attention wou'd subvert all the vulgar [poorly reasoned] systems of morality, and let us see, that the distinction of vice and virtue is not founded merely on the relations of objects, nor is perceiv'd by reason.
What is Hume up to? One might start with the idea that Hume's point is about the form of moral arguments. If all the premises are "is" propositions, then perhaps Hume is claiming that some sort of logical fallacy has been committed if the conclusion of the argument is an ought statement. Consider this example:
Premise: Withdrawing from Iraq is a policy that would save human lives and improve the condition of the Iraqi people.
Conclusion: Therefore, the United States ought to withdraw from Iraq.
We might think that there is a missing premises, which would be of the form:
Premise: The United States policy towards Iraq ought to aim at saving lives and improving the condition of the Iraqi people."
But there is a problem with this interpretation of Hume's point. One can easily produce a version of the argument that contains only is premises, but that looks more or less valid. For example:
Premise: Withdrawing from Iraq is a policy that would save human lives and improve the condition of the Iraqi people.
Premise: The policy that would save lives and improve the condition of the Iraqi people is the most choice worthy policy.
Conclusion: Therefore, the United States ought to withdraw from Iraq.
I'm sure that you, gentle reader, have run ahead of me, and are at this very point objecting that the second premise includes a covert "ought" statement. And perhaps it does, but the point of the exericse is that Hume's point is not just about the formal qualities of moral arguments. For his point to get off the ground, it must have substantive metaethical punch--it must be grounded on some theory about what counts as a fact and what counts as a value.
G.E. Moore on the Naturalistic Fallacy The second classical source for the fact/value distinction is G.E. Moore's discussion of the so-called naturalistic fallacy and his open-question argument. The core idea of the naturalistic fallacy is that one cannot identify "goodness" with any natural property. That is, it would be a mistake to identify goodness with the natural property of pleasure or happiness or health. Why is it a fallacy? Moore thought that the fallacy could be brought out by the open-question argument. So suppose, someone says that withdrawing from Iraq would be good if and only if withdrawing from Iraq would produce more pleasure than any alternative course of action, and that this is so, because goodness just is the maximization of pleasure. Moore claims that it is nonetheless an open question whether this is so. "Is pleasure good?" is an open question, as is, "I concede that withdrawing from Iraq will produce the most pleasure, but nonetheless is is a good thing to do?" Moore's point was that if these questions are open in the sense that they are not nonsensical questions, then it cannot be the case that goodness is the maximization of pleasure. Moore claimed that for any natural property that might be used to define goodness, the open-question argument will still be available. Moore's conclusion was that goodness must be a non-natural basic property that is somehow directly perceived by some human faculty of moral intuition.
The Entanglement of Fact and Value It is not uncommon for relatively sophisticated legal thinkers to accept that the fact/value distinction is a well-established truth of metaethics, but this would be a vast oversimplification. In fact, both the Humean and Moorean versions of the fact/value distinction are hugely controversial. One relatively simple demonstration of the difficulties that face any attempt to argue that facts and values belong to two mutually-exlusive realms can begin with what the distinction between thick and thin ethical terms. (Thin ethical terms would include "right" and "good," they are thin because they don't seem to carry any particular descriptive or factual content.) A good example of a thick ethical term might be "cruel." Actions can be described as cruel, and there is likely to be a good deal of intersubjective agreement on the question whether a particular action is cruel or not. Moreover, when asked why an action is cruel, the answer will certainly include a number of fact, e.g. the action caused pain, the pain was unnecessary to accomplishment of the actions purpose, and so forth. Cruel has a clear factual component. But cruel also involves moral values. So, for example, it would be quite odd to say, "His action was cruel, but it was nonetheless good." Such an assertion would naturally lead to the question: "So what was good about it that justified the cruelty." Of course, there are many possible answers to this challenge, but one of them is not: "Oh, there was nothing else that made it good; it was just a cruel action." Contrast this to, "His action was cruel, and therefore it was wrong." Imagine now the query: "Yes it was cruel, but what was wrong with that." And now the reply, "Huh? What was wrong with it was that it was cruel. Didn't you hear me?" Anyone who believes there is a sharp line that separates the realm of facts from the realm of values must produce an account of thick ethical terms, because such terms seem to straddle the line.
Of course, there are many many thick ethical terms. For law students, the really interesting thing is that many legal concepts are closely related to (or are themselves) thick ethical terms. A good example is "murder." Whether or not an action is "murder" in the ordinary, nonlegal sense of that term is clearly a question that involves the entanglement of fact and value. "Was it murder?" leads to "Was someone killed?", "Was the killing in self defense?" and so on. If we conclude that an action was murder, then ordinarily we also conclude that the action is morally wrong--even thought in rare circumstances, murder might be morally justified. Murder is a concept in which law, fact, and value all seem to be entangled. As a law student, you might begin to look for fact/value distinctions and for the entanglement of fact and value. My guess is that you will see these ideas operating everywhere, but especially in torts and criminal law!
If thick moral terms establish the entanglement of facts and values, that is only one step towards an adequate account of the fact-value distinction. For the purposes of law students with an interest in legal theory, awareness of the issues is probably sufficient. If you develop a deep interest in the foundations of normative jurisprudence, you will want to pursue these topics in much greater depth.
Conclusion Arguments about what the law should be are normative; normative legal theory might be considered a particular branch of political and moral philosophy. So legal theorists need to be aware of the fact/value distinction. As a rule of thumb, be wary of arguments that seem to confuse facts and values or to derives oughts from ises. If you do decide to cross the line, then be aware of the criticisms that may come your way!

Many readers of legal theory blog are entering the last week of classes or are about to begin fall examinations. Good luck and best wishes!

Legal Theory Bookworm This week

Legal Theory Bookworm This week the Legal Theory Bookworm recommends A New World Order by Anne-Marie Slaughter. Here is a brief description:

Breaking new ground in international relations theory, Slaughter urges readers to lose their "conceptual blind spot" and see how the world really works. Scholars, pundits and policymakers, she writes, have traditionally seen nations as "unitary"—that is, as single entities that "articulate and pursue a single national interest." In fact, she says, we would do better to focus on government networks, both horizontal and vertical. Horizontal networks link counterpart national officials across borders, such as police investigators or financial regulators. Vertical networks are relationships between a nation's officials and some supranational organization to which they have ceded authority, such as the European Court of Justice. Networks, she says, are the solution to the "globalization paradox": The world needs global governance to combat problems that jump borders, like crime and environmental degradation, and yet most people fear—rightly, Slaughter implies—the idea of a centralized, all-powerful world government. The book both describes the here and now and plots a course for the future: Strengthening existing networks and developing new ones "could create a genuine global rule of law without centralized global institutions." The author, who is the dean of the Woodrow Wilson School of Public and International Affairs at Princeton as well as president of the American Society of International Law, is steeped in these issues and offers genuinely original thinking. Written in dense academic language, this book will not pick up many casual readers, but it will likely attain instant textbook status and generate much discussion about foreign policy and whether, as Slaughter believes, the U.S. should welcome such networks in a globalized world.

I take special pleasure in recommeding Slaughter's very fine book!

Download of the Week This

Download of the Week This week, the Download of the Week is Moral Positivism by Roger Crisp. Here is a taste from early in the paper:

Philosophical ethics is like the philosophy of religion or jurisprudence, in that it emerges out of a set of social practices with their own particular place in our lives. Without religion or law, there would be no philosophy of religion or jurisprudence; and without morality, there would be no ethics. Nearly every human society that we know of has possessed some form of morality or other – what I shall call a ‘positive morality’:
Positive Morality: An internalized set of cognitive and conative states, socially engendered and including beliefs, desires, and feelings, which leads its possessor among other things to (a) view certain actions as wrong (that is, forbidden by morality) and hence to be avoided, (b) feel guilt and/or shame as a result of performing such actions, and (c) blame others who perform such actions. Note that this definition is intended to capture the ‘core’ of positive morality as we understand it. We might imagine a set of action-guiding states consisting only in beliefs about ideals, and involving as sanctions only ‘carrots’ rather than ‘sticks’ – what Hume calls in the conclusion to his Enquiry ‘the peaceful reflection on one’s own conduct’, for example, and praise rather than blame. Our own positive morality of course contains such elements, but for the purposes of my discussion I shall take them as inessential. A positive morality may lack them, and on their own they are too distant from our conception of a morality to be thought of as essential. The central elements of a positive morality are attributions of wrongness, and the sanctions of guilt, shame, and blame.
Those familiar with the philosophy of law will already have guessed that I chose the name ‘positive morality’ advisedly, to correlate with the term ‘positive law’ as used to refer to those laws that have been created within some legal system or other, as opposed to ‘natural law’, which is not created by human beings and is independent of legal systems understood in positive terms.8 For I now want to claim that there are important analogies between positive law and positive morality.

Highly recommended! Download it while its hot!

Law & Politics Book Review

Law & Politics Book Review

THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW, by Larry D. Kramer. New York: Oxford University Press, 2004. 363pp. Hardback. $29.95 / £19.99. ISBN: 0-19-516918-2. Reviewed by John Michael Eden & John Paul Ryan.
RESTORING THE LOST CONSTITUTION: THE PRESUMPTION OF LIBERTY, by Randy E. Barnett. Princeton, New Jersey: Princeton University Press, 2003. 360pp. Cloth. $32.50 / £21.50. ISBN: 0-691-11585-0. Reviewed by Ronald Kahn.
OVERCOMING APARTHEID: CAN TRUTH RECONCILE A DIVIDED NATION? by James L. Gibson. New York: Russell Sage Foundation, 2004. 467pp. Hardcover. $47.50. ISBN: 0-87154-312-5. Reviewed by Ayo Ogundele.
PERILOUS TIMES: FREE SPEECH IN WARTIME FROM THE SEDITION ACT OF 1798 TO THE WAR ON TERRORISM, by Geoffrey R. Stone. New York: W. W. Norton & Company, 2004. 800 pp. Cloth $35.00. ISBN: 0-393-05880-8. Reviewed by Brian Pinaire.
DEVIANT KNOWLEDGE: CRIMINOLOGY, POLITICS AND POLICY, by Reece Walters. Portland, OR: Willan Publishing, 2003. 256pp. Paperback. £18.99 / US $29.50. ISBN 1-84392-029-8. Hardback. £40.00 / US $59.95. ISBN 1-84392-030-1. Reviewed by Lisa L. Miller.
THE MOTHER OF ALL CRIMES: HUMAN RIGHTS, CRIMINALIZATION AND THE CHILD BORN ALIVE, by Emma Cave. Burlington, VT: Ashgate Publishing Co., 2004. 172pp. Hardback. $84.95 / £47.50 ISBN 0-7546-2366-1. Reviewed by Rhonda L. Callaway.
LIMITING ARBITRARY POWER: THE VAGUENESS DOCTRINE IN CANADIAN CONSTITUTIONAL LAW, by Marc Ribeiro. Vancouver: UBC Press, 2004. 256pp. Hardcover. $85.00. ISBN: 0-7748-1050-5. Paper $29.95. ISBN: 0-7748-1051-3. Reviewed by Matthew Hennigar.
KNOWLEDGE POWER: INTELLECTUAL PROPERTY, INFORMATION & PRIVACY, by Renée Marlin-Bennett. Boulder and London: Lynne Rienner Publishers, 2004. 274 pp. Paperback. £16.50 / $23.50. ISBN: 1-58826-281-2. Hardcover. £45.95 / $59.95. ISBN:1-58826-256-1. Reviewed by Debora Halbert.
JUDICIAL REVIEW AND COMPLIANCE WITH ADMINISTRATIVE LAW, by Simon Halliday. Oxford and Portland, Oregon: Hart Publishing, 2004. 188 pp. Hardcover $50.00 / £25.00 ISBN: 1-84113-265-9. Reviewed by Eli Paul Mazur.

Call for Papers: Emotions, Others,

Call for Papers: Emotions, Others, and the Self

CALL FOR PAPERS

EMOTIONS, OTHERS AND THE SELF
August 25-27, 2005
Åbo Akademi University, Turku/Åbo, Finland.

The research group "Emotions and Understanding" at the Department of Philosophy, Åbo Akademi University, Turku/Åbo, Finland, invites papers for an international conference on the theme "Emotions, others and the self", 25-27 August, 2005.

THE THEME OF THE CONFERENCE
In recent years academic interest in emotions has increased in different fields such as psychology, cognitive science, education, and philosophy. In philosophy emotions are now considered to be important from many different angles, in moral philosophy as well as in philosophy of mind, philosophy of psychology, social and political philosophy, etc. The focus of philosophical discussions of emotions has often been on
whether emotions are merely feelings or whether they involve rational thinking. These discussions tend to concentrate on how emotions concern us as individuals. Rather than discussing emotions as a matter of individual experience or as a matter of rational belief, the theme of this conference is to bring out the various roles emotions have from the perspective of a life shared with other people.

Themes that may be discussed from an interpersonal perspective are: Emotions and moral concern; Emotions and personal relations; How do we understand other people's emotions?; Emotions from a feminist perspective; Emotions and the body; The other as a condition for emotional maturity and growth; Emotions, health and madness; Emotions
and self-understanding; Interpersonal emotions such as love, envy, hate, jealousy, anger, sorrow, shame, guilt etc. Also other workshop themes may come up depending on the abstracts that are submitted.

The plenary speakers of the conference include:

Lilli Alanen, (Uppsala University), author of Descartes' Concept of Mind.
John Canfield, (University of Toronto), author of The Looking Glass Self, an examination of self-awareness.
Leila Haaparanta, (University of Tampere).
Phil Hutchinson, (Manchester Metropolitan University).
Camilla Kronqvist, (Åbo Akademi).
Brian Parkinson, (Christchurch College, Oxford) author of Ideas and Realities of Emotion and Emotion in Social Relations: Cultural, Group and Interpersonal Processes.
Robert C. Roberts, (Baylor University, Texas), author of Emotions: An Essay in Aid of Moral Psychology.
Robert C. Solomon, (University of Texas at Austin), author of The Passions and About Love: Reinventing Romance for our Time.

CALL FOR PAPERS
We hereby invite workshop contributions which address questions related to the theme of the conference. Each workshop session will be 45 minutes (20 minutes for presentation, 25 minutes for discussion).We plan to make the plenary papers and the workshop abstracts available in advance on the conference website.

Please submit a 500 word abstract of the paper you wish to present by email to: tom.kettunen@abo.fi preferably as a Word document or in RTF format. DEADLINE for abstracts is 15 April 2005! Accepted authors will be notified by 15 May 2005.

We also warmly welcome participants who do not wish to give a paper.

The conference fee will be 20 EUR. For undergraduate students the conference is free of charge. The optional conference dinner will cost around 25 EUR extra.

More information will be found at:
http://www.abo.fi/fak/hf/filosofi/Research/Emotions/eos

ORGANIZERS
The conference is organized by the "Emotions and Understanding" research project at the Department of Philosophy, Åbo Akademi University, Turku/Åbo, Finland and financed by the Academy of Finland. More information about our project can be found at http://www.abo.fi/fak/hf/filosofi/Research/Emotions/emotions.php.

The members of the organizing committee are Ylva Gustafsson, Lars Hertzberg, Tom Kettunen, Camilla Kronqvist and Michael McEachrane.

CONTACT INFORMATION
Tom Kettunen
Department of Philosophy at Åbo Akademi University
Fabriksgatan 2
FIN-20 500 Åbo
Finland
email: tom.kettunen@abo.fi
tel. +358 2 215 3611

http://www.abo.fi/fak/hf/filosofi/Research/Emotions/eos