Legal Theory Blog

Sunstein & Vermeule on a

Sunstein & Vermeule on a Moral Requirement for Capital Punishment Cass R. Sunstein and Adrian Vermeule (University of Chicago Law School and University of Chicago Law School) have posted Is Capital Punishment Morally Required? The Relevance of Life-Life Tradeoffs on SSRN. Here is the abstract:

Recent evidence suggests that capital punishment may have a significant deterrent effect, preventing as many eighteen or more murders for each execution. This evidence greatly unsettles moral objections to the death penalty, because it suggests that a refusal to impose that penalty condemns numerous innocent people to death. Capital punishment thus presents a life-life tradeoff, and a serious commitment to the sanctity of human life may well compel, rather than forbid, that form of punishment. Moral objections to the death penalty frequently depend on a distinction between acts and omissions, but that distinction is misleading in this context, because government is a special kind of moral agent. The familiar problems with capital punishment - potential error, irreversibility, arbitrariness, and racial skew - do not argue in favor of abolition, because the world of homicide suffers from those same problems in even more acute form. The widespread failure to appreciate the life-life tradeoffs involved in capital punishment may depend on cognitive processes that fail to treat "statistical lives" with the seriousness that they deserve.

I am reminded of a perhaps apocryphal story about Tom Nagel (the NYU philosopher). When asked how many lives it took to justify the killing of an innocent, Nagle supposedly said, "17"--intending to demonstrate the absurdity of the question. I wonder about the claim that "government is a special kind of moral agent"--yes, special--but government only acts through individuals, who may have special roles, but are ordinary agents. Highly recommended!
Update: For more, including criticism of Sunstein & Vermeule, scroll up or surf here.

Patterson on Dworkin Dennis Patterson

Patterson on Dworkin Dennis Patterson has posted Dworkin on the Semantics of Legal and Political Concepts on SSRN. Here is the abstract:

In a recent comment on H.L.A. Hart's 'Postscript' to The Concept of Law, Ronald Dworkin claims that the meaning of legal and political concepts may be understood by analogy to the meaning of natural kind concepts like tiger, gold and water. This article questions the efficacy of Dworkin's claims by challenging the use of natural kinds as the basis for a semantic theory of legal and political concepts. Additionally, even if there are natural kinds, Dworkin's arguments for their efficacy in jurisprudence are problematic and unpersuasive. One problem for Dworkin is that his embrace of natural kinds undermines the "fit" side of his fit/justification model of adjudication. Finally, because in matters of value there is no methodological equivalent to the scientific method, there is little hope of finding hidden essences to explain the meaning of legal and political concepts.

Don't miss this! I always learn from Patterson. Highly recommended!

McCann on Nutritional Labeling Michael

McCann on Nutritional Labeling Michael McCann has posted Comparing Legal, Economic, and Legislative Approaches to Nutritional Labeling of Fast Food Items on SSRN. Here is the abstract:

This article explores four theoretical approaches to the nutritional labeling of fast food items: 1) The Voluntary Agreement Model; 2) The Free Market/Light Menu Model; 3) The Litigation Model; and 4) The Legislative Model. These models are explored in the context of the increasing frequency at which Americans consume fast food, the surging percentage of Americans who are overweight, and the recognition that more than half of all obesity-related costs are borne by taxpayers and employers. Related analysis also pertains to an application of Consumer Choice Theory to food choice. After concluding that the first three models are likely deficient in redressing related concerns, this article recommends that fast food restaurants generate full nutritional disclosure for items aimed at children 14 and under; that such disclosure replicate the format established by the Nutrition Labeling and Education Act; and that it be available at the point-of-sale.

SSRN Rankings of Tax Faculty

SSRN Rankings of Tax Faculty Check out this post on TaxProf Blog. Louis Kaplow is Number One. And if you missed it, here is the link (registration required) to the SSRN ranking of law faculty by downloads in the last twelve months.

Hadfield on the 9/11 Compensation

Hadfield on the 9/11 Compensation Fund Gillian Hadfield (The Law School, University of Southern California) has posted The September 11th Victim Compensation Fund: An Unprecedented Experiment in American Democracy (THE FUTURE OF TERRORISM RISK INSURANCE, Defense Research Institute (DRI), 2005) on SSRN. Here is the abstract:

September 11th laid bare the foundations not only of the Twin Towers in downtown Manhattan but also of American ambivalence about a central democratic institution, the civil justice system. American democracy is built on the idea that ordinary individuals can participate in governance, taking action to ensure the laws are followed by activating and indeed to some extent directing the power of the state through the judicial branch. American businesses have relied on the availability of the courts to resolve their disputes about how their losses caused by the terrorist attacks should be distributed. But Congress sought to divert non-business entities out of the courts, rushing to provide an alternative source of compensation which it would make available to those who waived their right to litigate their disputes with those who may have contributed to their losses. In collapsing the compensation (actually insurance, for compensation implies a payment from one who caused an injury to a person harmed by that injury) function of the civil justice system with its democratic function - requiring access to one be purchased through disavowal of the other - Congress contributed to the erosion of democratic commitment to litigation as an important means by which the 'rule of law' is honored. The VCF was, as the Special Master concluded, a generous expression of shared loss by the American public and served well, as the RAND study concluded, to fill the gaps in other sources of social insurance. But by tying access to that insurance to the waiver of civil litigation, the VCF went farther than it had to and farther than it should have. The problems with civil litigation - its extraordinary cost, complexity and slowness - are real, and require real solutions. But closing off the courts is not among the solutions a democratic society should entertain. Congress had the opportunity, and still does, to devise a democratic response to the problems of civil litigation. An alternative in cases of mass tragedy such as September 11th could well provide both for democratic commitments and a reasonable and contained process. Reasonably just substitutes for civil actions should, perhaps constitutionally must, provide a substitute not only for the money plaintiffs might recover through this means, but also for the opportunity civil litigation gives ordinary citizens to participate in the institutions that give meaning to the rule of law.

Marmor on Textualism Andrei Marmor

Marmor on Textualism Andrei Marmor (University of Southern California - Law School) has posted The Immorality of Textualism (Loyola Law Review, 2005) on SSRN. Here is the abstract:

In this short essay I argue that textualism, as a doctrine of statutory interpretation, is inherently deceptive and therefore immoral. Textualism is typically presented by its adherents as an interpretive practice that is motivated by respect for democracy and respect for the authority of the legislature. But in fact, textualism's preoccupation with ordinary meaning and literal application of statutes is motivated by constraining the legislature's ability to pursue broad regulatory policies. Authorities do not want to be understood literally. Authorities purport to govern, and governance requires cooperation in the spirit of its goals, not strict adherence to the letter of its directives.

A provocative thesis, given the difficulties in providing evidence for the true motivations, not of "textualism," which has none, but of its proponents, on the bench and in the academcy.

Conference Announcement: Principles of Association

Conference Announcement: Principles of Association in British History at Chicago

The Nicholson Center for British Studies at the University of Chicago presents:

Conference: "Principles of Association in British History"

Friday, April 8, 2005, 8:30am - 6pm
Classics Building (1010 E. 59th Street), Room 10

This conference will explore the links, contrasts, and similarities
between the principles that are thought to guide human association in
different areas of social life. Several renowned scholars will head the
discussion, among them Mary Lyndon Shanley (Vassar), Samuel Fleischacker
(UIC), and Avigail Eisenberg (British Columbia). Several U of C faculty
will also take part: Mary-Anne Case (Law School), Jacob Levy (Political
Science), Patricia Nordeen (Chicago College).

An inter-disciplinary event, of interest to students and scholars of
Political Science, Philosophy, History, English, Economics, Sociology,
Religious Studies, and related fields, the conference will encourage
discussions in a broad scholarly context, drawing connections between
disciplines and areas of study that are often isolated from each other.
For more information please contact Mara G. Marin at
or Víctor M. Muñiz-Fraticelli at .

Co-sponsors: The Chicago Center for Democracy, the Committee on Social
Thought, the Center for Gender Studies, and the Department of Political
Science at the University of Chicago.

Conference Schedule:

8:30 - 8:45: Opening Remarks

8:45 - 10:30: Panel 1. Politics and Association

Samuel Fleischacker, University of Illinois at Chicago
"Face-to-face Relationships in Adam Smith: Some Political Implications"

Michael Goode, University of Illinois at Chicago
“Peace Shall Move Mountains: An Examination of Seventeenth Century
Quaker Pacifism and the 1660 Declaration"

Thomas Weber, University of Chicago
“Principles of Association in Oxford Colleges between c. 1880 and 1914”

10:45 - 12:30: Panel 2. Identity and Pluralism

Avigail Eisenberg, University of British Columbia
"Mindful Neglect: Identity Politics in Liberal and Democratic Traditions"

Jacob Levy, University of Chicago
“British Pluralism, Liberalism, and Medievalism"

Jane Silloway, Northwestern University
“Rewriting the Reformation”

(Lunch Break)

2:00 - 3:45: Panel 3. Marriage, Sexuality, and the Family

Mary Anne Case, University of Chicago Law School
"The Role of the State in Marriage and in the Business Corporation"

Mary L. Shanley, Vassar College
"'Marriage Contract and Social Contract' Revisited: Persistent Dilemmas
for Liberal Theory"

Hristomir Stanev, University of Chicago
“Wayward Sexuality and Domestic Instability in Thomas Dekker’s City
Comedies”

4:00 - 5:45 : Panel 4. The Sovereign and its Subjects

Robert McJimsey, Colorado College
"Founding the Stuart Monarchy: Honor and Virtue at the Court of James I"

Victor M. Muniz-Fraticelli, University of Chicago
“‘On Resistance and Rebellion in Shakespeare"

Dana Rovang, University of Chicago
“The Head of the King: Madness, Passion and Sovereignty in
Late-Eighteenth Century England”

5:45 - 6:00: Closing Remarks

Bodie on the Future of

Bodie on the Future of the Casebook Matthew T. Bodie (Hofstra University - School of Law) has posted The Future of the Casebook: An Argument for an Open-Source Approach on SSRN. Here is the abstract:

Despite dramatic technological change, the thick, attractively-bound casebook remains ensconced as the written centerpiece of legal education. That will soon change - but its replacement has not been established. This paper argues that the legal academy should take this opportunity to implement an "open source" approach to future course materials. Guided by analysis and examples of commons-based peer production such as open source software, professors could establish electronic commons casebooks with a myriad of materials for every course. These joint databases would unshackle individual creativity while engendering collaboration on levels previously impossible. Although there may be concerns that such a project would not draw any interest, or might be swamped by too much interest, the successes of other peer-production projects demonstrate that such concerns are generally unwarranted or manageable. Copyright ultimately poses the biggest difficulty, but even that barrier can be circumvented to greater and lesser degrees. Although as yet an untried experiment, an open source approach has the potential to open a new era in legal pedagogy.

Pildes on the 2003 Supreme

Pildes on the 2003 Supreme Court Term Rick Pildes (NYU) has posted The Constitutionalization of Democratic Politics - The Supreme Court, 2003 Term (Harvard Law Review, Vol. 118, No. 29, 2004) on SSRN. Here is the abstract:

Around the world, courts in the last two decades have increasingly extended constitutional law to oversee the basic structure of democracy itself. This development constitutes a significant transformation in the object of constitutional law - a shift from the conventional individual rights and anti-discrimination focus and toward judicial engagement with the institutions and processes of democratic politics. Whether resolving disputed Presidential elections, evaluating the design of representative institutions, determining the role of political parties, assessing the financing of elections, or even managing the transition from authoritarian to democratic regimes, courts and constitutional law have now become central actors in organizing the way democracy is practiced.

The first aim of this Foreword is to make this transformation fully visible. The Foreword focuses primarily on the United States Supreme Court, where these developments are most pronounced. The Foreword then turns to assessing this new frontier of constitutional law; the Foreword argues that, thus far, courts have done both too little and too much in the way they have constitutionalized the essential structures of democracy. Courts have been insufficiently responsive to the tendency of those holding political power to structure the ground rules of democracy to entrench themselves more deeply in power. At the same time, courts have inappropriately constitutionalized, without sufficient justification, the broad rights of politics - to vote, to speak, to associate - in ways that wrongly limit the ability of democracies to experiment with new ways of organizing democratic politics. Given the disaffection with current forms of democracy expressed in many mature democracies today, this judicial tendency to constitutionalize existing democratic arrangements and freeze them in place threatens the ability of democracies to revise themselves. As courts enter this new domain, the Foreword offers a theoretical and doctrinal framework that defines the role constitutional law ought to play - more expansive in some contexts, less expansive in others - in overseeing the structure of democracy. The Foreword then applies this framework to a number of specific issues: partisan gerrymandering; the representation of diverse groups in political bodies; the legal regulation of political parties; the role of independent bodies to oversee election practices; and campaign financing.

I take special pleasure in recommending Pildes's elegant and interesting foreward to the Supreme Court issue of the Harvard Law Review.

Monday CalendarBoston University School of

Monday Calendar

Boston University School of Law: David Dana (Northwestern), "Using the Veil of Ignorance to Ensure Justice in Class Actions: A Rawlsian Approach to Adequacy of Representation" (This is the SSRN version of the paper, which may differ from the one presented at BU). Here is a taste:
In both federal and state practice, judges must certify class actions for the class actions to proceed, and must approve class settlements for those class settlements to have any legal effect.1 Judges may or may not make explicit findings regarding the adequacy of representation class members received, but even where then are no explicit findings, judicial certification of a class and approval of a class settlement arguably implies a finding of adequacy of representation.2 Why then should class members ever be able to challenge the settlement in subsequent actions? Why should they not be bound to the settlement if a court explicitly, or even just implicitly, has held that they were adequately represented in the process that produced the settlement?

To answer that question, we must first unpack the concept of “adequate representation.” Adequacy of representation in the class context cannot mean what it means in non class litigation – that the lawyer faithfully attend to the client ’s interest, advise the client of the various options available to her, and give her the opportunity to make the ultimate decisions about whether to accept or reject a settlement offer. In the non-class-action litigation context, the client is actually present, or at least could be if she so chooses. It seems reasonable, therefore, that the law hold her to the choices she made even if those choices result in different consequences from those that she anticipated.4 In the class action context, the client –the class members or at least almost all of them – are not present ; indeed, many class members are never even aware of the existence of the class litigation to which they are, in theory, a party. They are represented only virtually, by means of class representatives. And since class representatives are almost always nominal actors,5 the absent class members are in truth represented only by class counsel, acting, typically, with minimal or no real client input.


I read an earlier version of the paper, which is highly recommended!

Columbia Law & Economics: Gideon Parchomovsky, University of Pennsylvania Law School, "Patent Porfolios," Co-authored with Polk Wagner. Here is the abstract:

This article presents a new theory of patent value, responding to growing empirical evidence that the traditional appropriability premise of patents is fundamentally incomplete in the modern innovation environment. We find that for patents, the whole is greater than the sum of its parts: the true value of patents lies not in their individual worth, but in their aggregation into a collection of related patents, a patent portfolio.

The patent portfolio theory thus explains what is known as "the patent paradox": in recent years patent intensity—patents obtained per research and development dollar—has risen dramatically even as the expected value of individual patents has diminished. We find the benefits of patent portfolios to be so significant as to suggest that firms' patenting decisions are essentially unrelated to the expected value of individual patents; because patent portfolios simultaneously increase both the scale and the diversity of available marketplace protections for innovations, firms will typically seek to obtain a large quantity of related patents, rather than evaluating their actual worth. The result—which we find widely recognized in commercial circles—is that the modern patenting environment exhibits (and requires) a high-volume, portfolio-based approach that is at odds with scholars' traditional assumptions.

The implications of the patent portfolio theory are important and widespread. First, the explanatory power of the theory allows resolution of not only the patent paradox, but many of the otherwise-puzzling observable patterns in the modern patenting environment—such as firm-size differences in patent intensity and litigation rates. Second, the patent portfolio theory neatly complements the prior theories that have sought to explain modern patent value, strengthening their relationship with the reality of patenting behavior—and confirming that the value of patents has expanded beyond traditionalist notions. Third, the patent portfolio theory allows a number of important predictive insights into future trends in the patent system, allowing policymakers and scholars to frame their inquiry within a range of likely outcomes. In our analysis, the patent portfolio theory does not suggest a better, brighter future for the patent system, but does build a foundation for the important academic and policy-related work that springs from this initial treatment.