Legal Theory Blog

Legal Theory Bookworm

The Legal Theory Bookworm recommends The Theory and Practice of Statutory Interpretation by Frank Cross. Here is a description:

Today, statutes make up the bulk of the relevant law heard in federal courts and arguably represent the most important source of American law. The proper means of judicial interpretation of those statutes have been the subject of great attention and dispute over the years. This book provides new insights into the theory and practice of statutory interpretation by courts.

Cross offers the first comprehensive analysis of statutory interpretation and includes extensive empirical evidence of Supreme Court practice. It contains a thorough review of the active disputes over the appropriate approaches to statutory interpretations, namely whether courts should rely exclusively on the text or also examine the legislative history. The book then considers the use of these approaches by the justices of the recent Rehnquist Court and the degree to which they were applied by the justices, either sincerely or in pursuit of an ideological agenda.

And from the reviews:

"Cross's findings, based on careful empiricism, provide a welcome contrast with the often overwrought claims of many prolific proponents of particular interpretive methodologies. This important contribution to the field will be of value both for teaching and for research."—Richard Pierce, George Washington University

"Advancing a new approach to the enduring challenge of statutory interpretation, Cross delivers a bold and provocative scholarly contribution."—Michael Heise, Cornell University

Download of the Week

The Download of the Week is The Nanny Corporation and the Market for Paternalism by Todd Henderson.  Here is the abstract:

Individuals in common pools-employees in firms, shareholders in firms, individuals in insurance plans, and citizens in a jurisdiction-want the managers of those common pools to act paternalistically toward other individuals, because this lowers the costs of being in the pool. The nanny state, which bans smoking in public places and imposes innumerable sin taxes, and the nanny corporation, which is starting to force employees to be more healthy, are simply responding to this demand. These two can thought of as competing in the "market for paternalism" to deliver paternalism to individuals that demand it.

Where nannyism is inevitable, as it is in a world in which others pay, the question then becomes which of the two sources of nanny rules - the state or the firm - is the most efficient supplier of paternalism. This essay describes numerous reasons why corporate nannies are superior to their state analogs in some cases. For instance, corporate policies are subjected to more instantaneous feedback from labor markets, which reduces overreaching but also helps solve information problems in ways likely to reduce the sum of decision and error costs.

There is, however, no theory under which the state or firm will always be superior at imposing nanny limitations on behavior. Because of this, we might expect firms to supply nanny rules when it is efficient for them to do so, say because of better monitoring, lower agency costs, or the like, and not to do so when government rules could be supplied at lower cost for a given efficacy level. The problem, however, is that there are government rules, regulations, statutes, constitutional provisions, and case law that may distort the market from efficiency. This essay makes the case for corporate nannyism and shows how government regulation may be biased without justification in favor of the nanny state.

And from the paper:

A final potential objection is the question of whether the potentially corrosive impacts of nannyism on individual and social wellbeing that have been documented are worse in the corporate or political context. Immanuel Kant described the potential dark side of nannyism in his 1784 essay, “An Answer to the Question: ‘What is Enlightment?’”132 Kant argued that the objects of nannyism were living in a perpetual state of “immaturity,” which in turn created a caste of “guardians” who would act opportunistically and to the detriment of the governed. The end result was a society of “docile creatures” and “autocratic despotism and profiteering or power-grabbing oppression.”133 Kant’s critique is in accord with latter criticisms of collectivism by F.A. Hayek and others.134 But it applies not only in cases of mass nannyism, but also in microcases, like at the firm level.

And a bit further on:

There is reason to believe, however, that the nanny state will be worse at creating docile bodies than the nanny corporation. For one, the state has a monopoly on physical violence, and therefore individuals that violate state nanny rules can have their liberty infringed. Although if calibrated correctly, this increased punishment might simply provide additional deterrence at lower cost than firms can provide, this result is highly dependent on getting the nanny rules right. There are, for example, many examples of individuals being jailed for violating state nanny regulations that seem to represent the influence of those with political power more than efficient cost internalization methods.137 In choosing the lesser of two evils—worker sheep or citizen sheep—another reason to favor corporate nannyism is that there are participation benefits in public life that might be corroded by excessive nannyism by governments. In other words, a democratic government may rely more heavily on having informed constituents who are used to educating themselves and making reasoned decisions than firms. This is because the fear of overextension that Kant worried about is less likely to come to pass in the corporate context. In addition, the barriers to adoption are much lower in the case of firms, while the market check is lower in the case of the government. So if we want lots of nanny rules with discipline, we should, ceteris paribis, choose corporations as the favored deliverer of paternalism in the market.

Fascinating & creative paper.  Highly recommended.

McCluskey on Class & the Constitution

Martha T. McCluskey (University at Buffalo - Law School) has posted Constitutionalizing Class Inequality: Due Process in State Farm (Buffalo Law Review, Vol. 56, pp. 1035-1057, 2008) on SSRN. Here is the abstract:

This essay takes a step toward building a story of economic class in U.S. constitutional law, as part of a special essay issue of the Buffalo Law Review developed from a series of workshops titled ClassCrits: Toward a Critical Analysis of Economic Inequality, sponsored by the Baldy Center for Law and Social Policy at the University at Buffalo. The essay focuses on the 2003 U.S. Supreme Court decision in State Farm Mutual Insurance Co. v. Campbell, one of a series of recent cases using the due process clause of the 14th Amendment to limit punitive damage awards against corporate defendants in tort litigation.

Many scholars analyzing economic inequality and the constitution have focused on the overt substantive questions of fundamental economic rights or equal protection for people in poverty. Instead, I argue that some of the most important doctrinal action on questions of economic class in the Constitution takes place under the rubric of procedure. First, class inequality is constitutionalized by casting substantive protections for wealthy capital owners in a procedural guise, as narrow technicalities or as neutral formal principles. Second, class inequality is constitutionalized by recasting basic procedural protections for the non-wealthy into illegitimate and anti-democratic claims to substantive rights.

On the surface, the State Farm case seems to present a fairly narrow doctrinal issue concerning punitive damages that generally seems marginal to general discussions of Constitutional economic equality rights. But beneath the narrow doctrinal issue lie assumptions about economic class that have broader implications. State Farm covertly revives the Lochner era ideology that fundamental procedural fairness requires insulating organized capital interests from government accountability or constraint. Even though U.S. doctrine has emphatically rejected the idea of heightened scrutiny for economic policies treating workers or the poor unequally, the State Farm decision surreptitiously adopts a "strict scrutiny" approach to examining economic harm to large businesses. Finally, the State Farm decision constitutionalizes class inequality by interpreting conscious class opposition to wealthy capital owners as fundamentally arbitrary and irrational.

Dillard on Child Welfare & Future Persons

Carter Dillard (Loyola University New Orleans) has posted Child Welfare and Future Persons
on SSRN. Here is the abstract:

While ethicists have delved deep into the rights and wrongs of procreating, lawyers have had little to say about the matter, stymied by practical concerns, the tendency of the law to ignore prospective children and their interests, and the misperception that a fundamental rights boundary absolutely forbids state intervention. But recently a small door has opened in this wall between law and ethics: as courts faced with having to repeatedly remove abused and neglected children from parents adjudged unfit have issued temporary no-procreation orders. As precedent builds and the possibility of ex ante regulation of procreation and parenthood grows, a moral and legal debate is developing over what duties prospective parents owe their future children and the society with which those children will interact. But increasingly the debate is a muddle of inapposite and conflicting state probation and constitutional law in search of statutory guidance. This Article attempts to cut through it, and to state the intermediate-level principle at its core:

A prospective parent has a moral and legal duty to be fit when he or she has a child, one arising from or creating correlative claim-rights shared by the state and prospective children, and a prospective parent has no liberty to have a child until he or she is fit.

Henderson on the Market for Parentalism (Paternalism)

M. Todd Henderson (University of Chicago - Law School) has posted The Nanny Corporation and the Market for Paternalism on SSRN. Here is the abstract:

Individuals in common pools-employees in firms, shareholders in firms, individuals in insurance plans, and citizens in a jurisdiction-want the managers of those common pools to act paternalistically toward other individuals, because this lowers the costs of being in the pool. The nanny state, which bans smoking in public places and imposes innumerable sin taxes, and the nanny corporation, which is starting to force employees to be more healthy, are simply responding to this demand. These two can thought of as competing in the "market for paternalism" to deliver paternalism to individuals that demand it.

Where nannyism is inevitable, as it is in a world in which others pay, the question then becomes which of the two sources of nanny rules - the state or the firm - is the most efficient supplier of paternalism. This essay describes numerous reasons why corporate nannies are superior to their state analogs in some cases. For instance, corporate policies are subjected to more instantaneous feedback from labor markets, which reduces overreaching but also helps solve information problems in ways likely to reduce the sum of decision and error costs.

There is, however, no theory under which the state or firm will always be superior at imposing nanny limitations on behavior. Because of this, we might expect firms to supply nanny rules when it is efficient for them to do so, say because of better monitoring, lower agency costs, or the like, and not to do so when government rules could be supplied at lower cost for a given efficacy level. The problem, however, is that there are government rules, regulations, statutes, constitutional provisions, and case law that may distort the market from efficiency. This essay makes the case for corporate nannyism and shows how government regulation may be biased without justification in favor of the nanny state.

And from the paper:

A final potential objection is the question of whether the potentially corrosive impacts of nannyism on individual and social wellbeing that have been documented are worse in the corporate or political context. Immanuel Kant described the potential dark side of nannyism in his 1784 essay, “An Answer to the Question: ‘What is Enlightment?’”132 Kant argued that the objects of nannyism were living in a perpetual state of “immaturity,” which in turn created a caste of “guardians” who would act opportunistically and to the detriment of the governed. The end result was a society of “docile creatures” and “autocratic despotism and profiteering or power-grabbing oppression.”133 Kant’s critique is in accord with latter criticisms of collectivism by F.A. Hayek and others.134 But it applies not only in cases of mass nannyism, but also in microcases, like at the firm level.

And a bit further on:

There is reason to believe, however, that the nanny state will be worse at creating docile bodies than the nanny corporation. For one, the state has a monopoly on physical violence, and therefore individuals that violate state nanny rules can have their liberty infringed. Although if calibrated correctly, this increased punishment might simply provide additional deterrence at lower cost than firms can provide, this result is highly dependent on getting the nanny rules right. There are, for example, many examples of individuals being jailed for violating state nanny regulations that seem to represent the influence of those with political power more than efficient cost internalization methods.137 In choosing the lesser of two evils—worker sheep or citizen sheep—another reason to favor corporate nannyism is that there are participation benefits in public life that might be corroded by excessive nannyism by governments. In other words, a democratic government may rely more heavily on having informed constituents who are used to educating themselves and making reasoned decisions than firms. This is because the fear of overextension that Kant worried about is less likely to come to pass in the corporate context. In addition, the barriers to adoption are much lower in the case of firms, while the market check is lower in the case of the government. So if we want lots of nanny rules with discipline, we should, ceteris paribis, choose corporations as the favored deliverer of paternalism in the market.

Fascinating & creative paper.  Highly recommended.

Henderson's paper is focused on a positive account, although he does have some very interesting things to say about the normative questions.  His discussion of Kant (quoted) above points to an interesting convergence of aretaic and deontological normative theory.  On the surface, one might think that a virtue-centered (aretaic) theory of legislation would approve of "Nannyism" (certainly not the most neutral descriptor!).  And there is a sense in which this is correct: virtue jurisprudence (in its NeoAristotelian) variant holds that the central end of law is human flourishing understood as lives of social and rational activity in accord with the human excellences (or virtues).  This means that one of the central purposes of the system of social organization (including both government and the economic system) should be to create conditions under which citizens will acquire the virtues--and for children, this includes "parentalism" in both its literal and figurative senses.  But for adults, it is not clear that pervasive parentalism reinforces (rather than undermines) the virtues.  As Kant argues, parentalism may undermine various intellectual and moral capacities.  To put it more colloquially, forbidding vice may undermine virtue.

Another interesting aspect of the issue is the light it sheds on the adequacy of various normative frameworks.  Aretaic normative theory focuses explicitly on preference formation--it puts the question, "What preferences are conducive to human flourishing?," on the table as a central focus of inquiry.  Kantian deontology accomplishes this in a slightly different way, via its focus on autonomy.  Some forms of consequentialism, however, make analysis of this problem exceedingly difficult.  Any form of preference-satisfaction consequentialism (e.g., Kaplow-Shavell Welfarism) is severely constrained in its ability to provide robust and illuminating evaluation of preferences themselves--although the obvious Benthamite move of differentiating between preferences that support or undermine other preferences is available.  The consequentialisms that fare best on this score or those with an objective (and therefore nonpreference-based) conception of the good (or utility): thus, Eudaimonistic consequentialism can incorporate a conception of human excellence in the conception of the good.

Read Henderson!

Blumenthal on Property in Legal Claims & Eminent Domain

Jeremy A. Blumenthal (Syracuse University - College of Law) has posted Legal Claims as Private Property: Implications for Eminent Domain (Hastings Constitutional Law Quarterly, 2009) on SSRN. Here is the abstract:

May the government use eminent domain to take a private citizen's right to sue? May the government take a citizen's right to sue and exercise it -- or even take the right to sue or a lawsuit and deliberately not exercise it? Even more controversial, may the government use eminent domain to condemn your legal claim and, consistent with its broad powers as delineated in Kelo, transfer that claim to another private party to pursue (or not)? In this Article I explore these questions, examining the Takings Clause implications of considering the right to sue as private property. I show that legal claims are private property for constitutional purposes; I show that government conduct of this sort would likely be acceptable as a "public purpose;" and I discuss what sort of "just compensation" might be appropriate when the government takes a private citizen's lawsuit. Throughout, I discuss various policy implications of considering legal claims as private property.

Tirres on Lawyers & Borderlands

Allison Brownell Tirres (DePaul University College of Law) has posted Lawyers and Legal Borderlands on SSRN. Here is the abstract:

This article explores the role of the legal profession in urban development along the U.S.-Mexico border in the nineteenth century. It argues that lawyers, through their tripartite roles as land brokers, boosters, and social engineers, were one of the primary forces in social and legal transformation during this period. Drawing from research on one particular border town, that of El Paso, Texas, this article counters prior scholarship that has largely either underplayed the role of lawyers in western development all together, or treated them merely as instruments of capitalists and cattle ranchers. Lawyers in El Paso had a direct role in the conversion of El Paso from an isolated, frontier community to a burgeoning border metropolis. A key part of this change was the shift from a cooperative multiethnic community - where Anglo Americans, Mexican Americans, and Tigua Indians shared in the governance of the county and the disposition of the law - to one that was dominated by Anglo Americans only. This article demonstrates that as El Paso became more connected to other metropolitan areas, to state and federal governments, and to transnational commercial networks, it simultaneously became profoundly more stratified by race and national identity. By looking to El Paso's legal history and the changes in its legal culture during this time of transition, we can see how deeply involved were local lawyers not just in economic growth but also in racial and cultural boundary-drawing. These findings have repercussions for how we understand both the role of the legal profession and the mechanics of urban growth and development during the nineteenth century.

Plotin on Open Access

Stephanie Plotin has posted Legal Scholarship, Electronic Publishing, and Open Access: Transformation or Steadfast Stagnation? (Law Library Journal, Vol. 101, p. 31, 2009) on SSRN. Here is the abstract:

This article uses a social shaping of technology perspective, which studies the complex interactions between technology and the culture of a discipline, to investigate the evolution of legal scholarship in the digital age, and to determine how the open access movement has influenced various forms of legal scholarship, particularly law reviews, their online companions, and legal blogs.

I just read this. Useful.

If I might get on my soapbox for a few seconds, institutional encouragement for open access should be a priority for every faculty.

Book Announcement: Kende on Constitutional Rights in South Africa & the U.S.

Cambridge University Press has published Constitutional Rights in Two Worlds, South Africa and the United States (Cambridge, 2009).  Here is a description:

The South African Constitutional Court has issued internationally prominent decisions abolishing the death penalty, enforcing socio-economic rights, allowing gay marriage and promoting equality. These decisions are striking given the country's Apartheid past and the absence of a grand human rights tradition. By contrast, the U.S. Supreme Court has generally ruled more conservatively on similar questions. This book examines the Constitutional Court in detail to determine how it has functioned during South Africa's transition and compares its rulings to those of the U.S. Supreme Court on similar rights issues. The book also analyzes the scholarly debate about the Constitutional Court taking place in South Africa. It furthermore addresses the arguments of those international scholars who have suggested that constitutional courts do not generally bring about social change. In the end, the book highlights a transformative pragmatic method of constitutional interpretation, a method the U.S. Supreme Court could employ.

And the table of contents:

1. Introduction; 2. History and background; 3. Death penalty; 4. Gender equality; 5. Gay rights; 6. Affirmative action; 7. Freedom of expression; 8. Freedom of religion; 9. Socio-economic rights; 10. Final thoughts.

And from the reviews:

"This book provides a perceptive examination and critique of important areas of the jurisprudence of the South African Constitutional Court. Professor Kende uses the South African decisions as a prism for examining the case law of courts of other democratic nations and especially the United States Supreme Court. It provides important new insights into many areas of concern to scholars, judges, practitioners and students."
--Richard J.Goldstone, Former Justice of the South African Constitutional Court

"A fascinating, original, and genuinely important book, illuminating not only the South Africa and American Constitutions, but constitutional theory and practice in general. Indispensable reading."
--Cass R. Sunstein, Felix Frankfurter Professor of Law, Harvard Law School.

Edelman on a Derivative Market for Legal Academics

Paul H. Edelman (Vanderbilt University School of Law) has posted A Derivatives Market in Legal Academia (12 Green Bag 2d 157 (2009)) on SSRN. Here is the abstract:

Building on the success of derivatives markets in the financial arena, I show how similar markets can be used to hedge risk in legal academia. Prudent use of these markets will generate cash, mitigate errors in hiring, and increase the academic prestige of law schools. In short, they can do for legal academia what they have already done to the financial world.

And from the paper:

Consider the problem of High-theory Law School (HLS). It is about to hire the BSC, but there is uncertainty as to whether he will write anything that might burnish the HLS brand. On the other side is Our Little Sisters of the Poor Law School (OLSPLS), which de- sires to advance its scholarly profile but is unable to hire any candi- dates who are likely to do so. Suppose that HLS bought a put from OLSPLS for the writing of the BSC. If the papers that the BSC writes are not very good, HLS can ship them off with any citation counts, page counts, etc., now credited to OLSPLS. OLSPLS makes some money on the front end and, even if the put is exer- cised, gets credited for some scholarship that it would not likely get any other way. HLS is protected from low quality work for a small price. The downside risk to HLS of hiring the BSC is hedged, and OLSPLS potentially gets some exposure that it would never see otherwise.

Unfortunately, Edelman fails to specify the mechanism for the transfer of scholarship on an institutional basis--but we can easily imagine the adoption of the basic model of the film industry--where films are owned by firms rather the authors (auteurs).  This suggests the possibility of the emergence of a new model within the law school, with some faculty members assuming a role analogous to the "producer" in the film industry.  Producers would assemble teams consisting of specialists.  Such a team might consist of a doctrinalist, a normative theorist, an empiricist, a modeler, a data assembler, a cite checker, and a writer (and of course, some writers would specialize in rewrites that punched up the "market value" of the article).  Each team would have a project director, who would coordinate the tasks of team members.  Rather than a byline, published scholarship would be accompanied by a set of credits, e.g.:

A Vanderbilt Law School Production
Presented by Ed Rubin
A Derivative Market in Legal Academia

The actual team members would be listed in a footnote at the end of the article.  Of course, the  writer would be one of the least important members of the production team--as their contribution is essentially fungible.