Legal Theory Blog

Legal Theory Bookworm

The Legal Theory Bookworm recommends A Failure of Capitalism: The Crisis of '08 and the Descent into Depression by Richard A. Posner.  Here is a description:

The financial and economic crisis that began in 2008 is the most alarming of our lifetime because of the warp-speed at which it is occurring. How could it have happened, especially after all that we’ve learned from the Great Depression? Why wasn’t it anticipated so that remedial steps could be taken to avoid or mitigate it? What can be done to reverse a slide into a full-blown depression? Why have the responses to date of the government and the economics profession been so lackluster? Richard Posner presents a concise and non-technical examination of this mother of all financial disasters and of the, as yet, stumbling efforts to cope with it. No previous acquaintance on the part of the reader with macroeconomics or the theory of finance is presupposed. This is a book for intelligent generalists that will interest specialists as well.

Among the facts and causes Posner identifies are: excess savings flowing in from Asia and the reckless lowering of interest rates by the Federal Reserve Board; the relation between executive compensation, short-term profit goals, and risky lending; the housing bubble fuelled by low interest rates, aggressive mortgage marketing, and loose regulations; the low savings rate of American people; and the highly leveraged balance sheets of large financial institutions.

Posner analyzes the two basic remedial approaches to the crisis, which correspond to the two theories of the cause of the Great Depression: the monetarist—that the Federal Reserve Board allowed the money supply to shrink, thus failing to prevent a disastrous deflation—and the Keynesian—that the depression was the product of a credit binge in the 1920’s, a stock-market crash, and the ensuing downward spiral in economic activity. Posner concludes that the pendulum swung too far and that our financial markets need to be more heavily regulated.

Download of the Week

Catherine Fisk and Deborah C. Malamud (University of California, Irvine Law School and New York University - School of Law) have posted The NLRB in Administrative Law Exile: Problems with its Structure and Function and Suggestions for Reform (Duke Law Journal, Vol. 58, p. 2013, 2009) on SSRN. Here is the abstract:

This article, which is part of the Duke Law Journal Administrative Law Symposium on the administrative law of the Bush Administration, examines both the recent and longer-term history of the National Labor Relations Board (NLRB) from the perspective of contemporary debates about administrative law. The NLRB during the Bush Administration made a number of significant and controversial policy changes, both in substantive law and in its enforcement process. This Article addresses those changes with the goal of increasing the coherence and legitimacy (legal and political) of NLRB policymaking. After examining how unresolved tensions between the Wagner Act and the Taft-Hartley Act are implicated in controversial decisions of the Bush Board and the structural obstacles the Board faces in attempting to make policy through adjudication, we argue that the policy conundrums cannot be resolved without recourse to the administrative law tools - including the use of social science expertise - the agency lacks. The Article concludes with suggestions for reform that do not depend on new legislation, including that (1) the NLRB be more holistic in its regulatory approach and rely on social science expertise and Department of Labor data in both adjudication and rulemaking; (2) the executive consider across-the-board reform of agencies that rely on adjudication; (3) Congress enhance its own policy analysis in the labor field; and (4) courts of appeals and the Supreme Court assimilate review of NLRB action into the way they review all agency action and be more coherent and consistent in deferring to agency action and in drawing the line between law, fact, and policy.

Linton on Judges, Transitional Justice, & the Rule of Law

Suzannah Linton (University of Hong Kong - Faculty of Law) has posted The Role of Judges in Dealing with the Legacies of the Past (The Global Community YILJ, Vol. 9, 2009) on SSRN. Here is the abstract:

This paper examines the role that judges can play in dealing with legacies of the past in countries emerging from armed conflict, repression and situations where serious human rights violations have occurred. Criminal justice has, in some quarters, come to be denigrated for being “retributive”, and therefore unhelpful in the process of taking a country forward after the dust has settled. The author sees a serious imbalance in the sidelining of the rule of law in the current paradigm. Without wishing to romanticize the role of law or the courts, this work seeks to rebalance the discussion by bringing to light the considerable role for judges in the recalibration of a society. The author does not suggest a legal approach on its own will suffice; in fact, a purely legalistic approach to dealing with such situations is wholly inadequate. But as the international and comparative research conducted for this paper demonstrates, there is a critical role for judges in times of political change and this needs to be better utilized in order to maximize the chances of successful social change and structural reform.

Macklem on Recent Books on Cultural Rights

Patrick Macklem (University of Toronto - Faculty of Law) has posted The Law and Politics of International Cultural Rights: A Review Essay of Elsa Stamatopoulou, Cultural Rights in International Law and Francesco Francioni and Martin Scheinin (eds.), Cultural Human Rights (International Journal on Minority and Group Rights, Forthcoming) on SSRN. Here is the abstract:

Two recent books place international law at the centre of inquiries into the nature of cultural rights. The first, Cultural Rights in International Law: Article 27 of the Universal Declaration of Human Rights and Beyond, by Elsa Stamatopoulou, explores 'the concept of cultural rights by reviewing international and national legal instruments, international practice, and especially the role of UN bodies and entities in the implementation of these rights.' The second, Cultural Human Rights, is a collection of essays edited by Francesco Francioni and Martin Scheinin. Wide-ranging in scope, Cultural Human Rights includes contributions that explore the relationship between cultural rights and the state, the relationship between cultural rights and other human rights, the rights of minorities and indigenous peoples, normative justifications of human rights in general and minority rights in particular, the law and politics of cultural identity and collective memory, and various forms of cultural protection in a variety of regional and international institutional contexts. They demonstrate that understanding cultural rights in international law requires a multi-faceted approach, one that pays close attention to the historical, textual and institutional dimensions of cultural rights. They reveal, too, that international legal commitments to sovereignty and human rights are more relevant to moral and political accounts of the significance of cultural rights than they might otherwise appear.

Mantouvalou on the N. v. United Kingdom

Virginia Mantouvalou (University of Leicester - Faculty of Law) has posted N v UK: No Duty to Rescue the Nearby Needy? on SSRN. Here is the abstract:

This article discusses the deportation of a seriously ill foreign national to her country of origin, where she would face a high risk of extreme deterioration of her health due to the inadequate medical treatment. It criticises the reasoning of the judgment N. v. UK of the European Court of Human Rights, and explores the circumstances under which removal of a severely ill non-national constitutes a breach of the prohibition against inhuman and degrading treatment under the European Convention on Human Rights.

Albert on the Nonwithstanding Clause in the Canadian Constitution

Richard Albert (Boston College - Law School) has posted Advisory Review: The Reincarnation of the Notwithstanding Clause (Alberta Law Review, Vol. 45, No. 4, 2008) on SSRN. Here is the abstract:

The Notwithstanding Clause is the cornerstone of our Canadian constitutional architecture. It merges parliamentary supremacy and constitutional democracy. But the Notwithstanding Clause finds itself conceptually situated between illegitimacy and desuetude in a constitutional purgatory. This is not a promising portrait. Nonetheless, it is a blessing in disguise. The tragic failure of the Notwithstanding Clause is a fortuitous opportunity to create a new process to achieve its objectives while also remaining loyal to the intentions of its creators. That is the task I have given myself in this Article. This new process — which I call advisory review — is a new form of judicial review that is uniquely Canadian, born of Canadian roots, and consistent with Canadian constitutional traditions.

Lister on Reciprocity & Justice as Fairness

Andrew D. Lister (Queen's University) has posted Justice and Reciprocity on SSRN. Here is the abstract:

This paper addresses the question of when and why duties are conditional on compliance on the part of others, by examining the role of reciprocity in Rawls's theory of justice. In particular, it argues that the idea of reciprocity and the relational nature of distributive justice can help explain three otherwise puzzling aspects of Rawls's view: (1) his claim that justice has to be "congruent" with the good; (2) his claim that the justification of a political conception of justice depends on showing that an overlapping consensus of reasonable comprehenisve doctrines is possible, even after the freestanding argument for the political conception has been successfully completed; (3) his claim that there are no global duties of distributive justice, beyond the non-comparative duties of aid and reparation. Each of these arguments has been the subject of controversy partly because of a lack of attention to reciprocity, the paper argues, and the relational nature of Rawls's non-luck-egalitarian position.

Frieden on Net Neutrality & Freedom of Speech

Rob Frieden (Pennsylvania State University - College of Communications) has posted Invoking and Avoiding the First Amendment: How Internet Service Providers Leverage Their Status as Both Content Creators and Neutral Conduits on SSRN. Here is the abstract:

Much of the policy debate and scholarly literature on network neutrality has addressed whether the Federal Communications Commission (“FCC”) has statutory authority to require Internet Service Providers (“ISPs”) to operate in a nondiscriminatory manner. Such analysis largely focuses on questions about jurisdiction, the scope of lawful regulation, and the balance of power between stakeholders, generally adverse to government oversight, and government agencies, apparently willing to overcome the same inclination. The public policy debate primarily considers micro-level issues, without much consideration of broader concerns such as First Amendment values.

While professing to support marketplace resource allocation and a regulation-free Internet, the FCC has selectively imposed compulsory duties on ISPs who qualify for classification as largely unregulated information service providers. Such regulation can tilt the competitive playing field, possibly favoring some First Amendment speakers to the detriment of others. Yet the FCC has summarily dismissed any concerns that the Commission’s regulatory regime inhibits First Amendment protected expression.

For their part, ISPs have evidenced inconsistency in how seriously they value and exercise their First Amendment speaker rights. Such reticence stems, in part, from the fact that ISPs combine the provision of conduits, using telecommunications transmission capacity, with content. While not operating as regulated common carriers, the traditional classification of conduit-only providers, ISPs can avoid tort and copyright liability when they refrain from operating as speakers and editors of content. In other instances, the same enterprise becomes an aggressive advocate for First Amendment speaker rights when selecting content, packaging it into a easily accessible and user friendly “walled garden,” and employing increasingly sophisticated information processing techniques to filter, prioritize and inspect digital packets.

Technological and marketplace convergence creates the ability and incentive for ISPs to operate as publishers, editors, content aggregators, and non-neutral conduit providers. No single First Amendment media model (print, broadcast, cable television and telephone), or legislative definition of service (telecommunications, telecommunications service and information service) cover every ISP activity. Despite the lack of single applicable model and the fact that ISPs provide different services, the FCC continues to apply a single, least regulated classification. The inclination to classify everything that an ISPs does into one category promotes administrative convenience, but ignores the complex nature of ISP services and the potential for to harm individuals, groups and First Amendment values absent government oversight. For example, the information service classification enables ISPs to engage in price and quality of service discrimination that network neutrality advocates worry will distort a free marketplace of ideas.

This paper will examine the different First Amendment rights and responsibilities borne by ISPs when they claim to operate solely as conduits and when they combine conduit and content. The paper will show that ISPs face conflicting motivations with light FCC regulation favoring diversification into content management services, like that provided by editors and cable television operators, but with legislatively conferred exemptions from liability available when ISPs avoid managing content. The paper concludes that current media models provide inconsistent and incomplete direction on how to consider ISPs’ joint provision of conduit and content. The paper provides insights on how a hybrid model can address media convergence, and promote First Amendment values while imposing reasonable nondiscrimination responsibilities on ISPs.

Engle on Rights & Law

Eric Engle (Harvard University - Harvard Law School and Universität Bremen) has posted Taking the Right Seriously: Hohfeldian Semiotics and Rights Discourse on SSRN. Here is the abstract:

A key characteristic of contemporary legal thought is "rights discourse". I argue that most rights' discourses fail to persuade due to unscientific conceptual apparatus and mythological counterfactual views of reality. The term "right" like the term "law" is polysemic and ambiguous; due to overlap between the terms "right" and "law" most rights discourse is doomed to incoherent failure. Though most rights discourse is doomed to futility and irrelevance that isn't because of some fatal flaw in the idea of the rule of law or of logic being somehow inevitably indeterminate. A dialectics of rights is possible. Legal science can and should extirpate ambiguity, polysemicity, and confusion from rights discourse so as to compel dialectical resolution of the conflict over what is right and what rights are.

Paschal on Congressional Power to Change Constitutional Law

Richard A. Paschal (George Mason University Law School) has posted Congressional Power to Change Constitutional Law: Three Lacunae (University of Cincinnati Law Review, Vol. 77, p. 1053, 2009) on SSRN. Here is the abstract:

One of the most basic principles of American constitutionalism is that Congress cannot statutorily overturn the Supreme Court's constitutional decisions. Although it can reverse statutory decisions, Congress is not able to supersede the Court's constitutional rules because it cannot change the source of law being interpreted - the Constitution - outside of the amendment process of Article V. Given the problems with judicial supremacy for many constitutional theorists, there has been a noticeable gap in the literature on the ways in which Congress can, in fact, successfully challenge the Court's reading of the Constitution. Few scholars provide any account of how other governmental institutions or even the constitutional culture at large can directly confront and overturn a given constitutional rule.

This Article seeks to address this gap in the scholarship by highlighting three areas - three lacunae - where Congress has the ability to displace constitutional rules by statute. Congress has the power to overturn constitutional decisions in three specific areas within the federalism realm: state sovereign immunity under the Eleventh Amendment, intergovernmental tax immunity for both state and federal governments, and the Dormant Commerce Clause. This Article will demonstrate that judicial decisions on these subjects create true constitutional rules and that the acceptance of Congress's power to overturn these decisions tells us something important about our Constitution and our federalism. The existence of these three anomalies suggests that adaptability and accommodation often take constitutional precedence over theoretical purity, especially when issues of federalism are involved.

Finkelman on Brown v. Board of Education

Paul Finkelman (Albany Law School - Government Law Center) has posted The Centrality of Brown (CHOOSING EQUALITY: ESSAYS AND NARRATIVES ON THE DESEGREGATION EXPERIENCE, Robert L. Hayman, Jr., Leland Ware, eds., pp. 224-245, The Pennsylvania State University Press, 2009) on SSRN. Here is the abstract:

This article is an examination of the Supreme Court decision in Brown v. Board of Education. The Brown decision is considered by many to be one of the most important and influential decisions in the history of the United States Supreme Court. However, fifty years after Brown was decided, some scholars consider the decision to have been a failure because of its unassertive nature and failed implementation. It has been suggested that the court may have been better off enforcing the 'equal' portion of Plessy v. Ferguson’s 'separate but equal doctrine.'

Ertman on Zelizer on Intimacy & Money

Martha M. Ertman (University of Maryland Law School) has posted For Both Love and Money: Viviana Zelizer's 'The Purchase of Intimacy' (Law & Social Inquiry, Vol. 34, 2009) on SSRN. Here is the abstract:

Viviana Zelizer's latest book, The Purchase of Intimacy (2005) presents an innovative theory of how social and legal actors negotiate rights and obligations when money changes hands in intimate relationships -- a perspective that could change how we understand many things, from valuations of homemaking labor to the 9/11 Victim Compensation Fund. This essay describes Zelizer's critique of the reductionist "Hostile Worlds" and "Nothing But" approaches to economic exchange in intimate relationships, then explains her more three-dimensional approach, "Connected Lives." While Zelizer focuses on family law, the essay goes beyond that context, extending Zelizer's approach to transfers of genetic material, and concluding that her approach could point toward a more equitable resolution of disputes in and about these markets.

Cummings & Rhode on Public Interest Litigation

Scott Cummings and Deborah Rhode (University of California, Los Angeles - School of Law and Stanford Law School) have posted Public Interest Litigation: Insights from Theory and Practice (Fordham Urban Law Journal, Vol. XXXVI, 2009) on SSRN. Here is the abstract:

In the American struggle for social justice, public interest litigation has played an indisputably important role. Yet over the past three decades, critics from both the left and right have challenged its capacity to secure systemic change. The critiques have varied, but have centered on two basic claims. The first is that litigation cannot itself reform social institutions. The second related concern is that over-reliance on courts diverts effort from potentially more productive political strategies and disempowers the groups that lawyers are seeking to assist. The result is too much law and too little justice.

These critiques, although powerful in their analysis of the limits of litigation, have generally failed to adequately acknowledge its contributions and the complex ways in which legal proceedings can support political mobilization. This Article seeks to move beyond these critiques by situating the debate over public interest litigation in a richer theoretical and empirical context. In essence, our argument is that such litigation is an imperfect but indispensable strategy of social change. Our challenge is to increase its effectiveness through better understanding of its capacities and constraints. To that end, we draw on two bodies of work: research on law and social change, and research on social philanthropy. The first literature offers a detailed empirical and theoretical picture of how lawyers mobilize law to change institutional rules and redistribute power. In its empirical dimension, this research explores the ideals and practices of public interest lawyers and how their strategies are informed by where they work—non-profit public interest organizations, large firm pro bono programs, plaintiff-side law firms, and law school clinics. In its theoretical dimension, this literature draws on the sociology of law and social movements to explore the interplay between legal proceedings and political mobilization. A second body of work, which focuses on strategic philanthropy, holds important insights for how public interest organizations and pro bono programs can most effectively direct their social reform efforts.

We draw a number of lessons from this research. The first is that litigation, although a necessary strategy of social change, is never sufficient; it cannot effectively work in isolation from other mobilization efforts. Second, money matters: how public interest law is financed affects the kinds of cases that can be pursued and their likely social impact. A deeper understanding of financial constraints and opportunities in different practice contexts is therefore critical to effective reform. A third key insight is the importance of systematic evaluation. Only through more reflective assessments of the impact of litigation can we realize its full potential in pursuit of social justice.

Huntington on Happiness & Family Law

Clare Huntington (University of Colorado Law School) has posted Happy Families? Translating Positive Psychology into Family Law (Virginia Journal of Social Policy and the Law, 2009) on SSRN. Here is the abstract:

Despite the well-documented finding in the field of positive psychology that close interpersonal relationships are significantly correlated with subjective well-being and thriving communities, scholars have yet to bring together positive psychology and family law. And what is family law if not the law of close interpersonal relationships? Positive psychology and related work have the potential to inform the what, the why, and the how of family law, but realizing the potential of positive psychology as a guide for family law involves challenges. In particular, it requires translating the descriptive science of psychology into the prescriptive policies of family law. This Essay addresses this translation question by exploring the indeterminacies inherent in positive psychology and identifying productive ways forward.

Cortez on Cross-Border Health Care

Nathan Cortez (Southern Methodist University - Dedman School of Law) has posted Recalibrating the Legal Risks of Cross-Border Health Care (Yale Journal of Health Policy, Law, and Ethics, Vol. 10, No. 1, 2010) on SSRN. Here is the abstract:

The nascent scholarship surrounding "medical tourism" assumes, without much scrutiny, that foreign jurisdictions provide few legal remedies to patients, instead focusing on whether U.S. patients can sue in U.S. courts. This article tests that assumption by examining whether patients might recover adequate compensation not only in the United States, but in four common destinations: India, Thailand, Singapore, and Mexico. I analyze how each jurisdiction handles medical malpractice complaints and discuss the unique obstacles patients might face when navigating each of these systems. I conclude that U.S. patients will struggle to recover remotely adequate compensation in each of these jurisdictions. This finding is important because patients are frequently asked to waive any legal claims they might assert in U.S. courts, thus outsourcing not only the surgery, but the legal remedies as well. In fact, medical tourists are simply told not to travel overseas if they are at all concerned about their potential legal remedies. Given these findings, I suggest several ways we might reallocate the legal risks of cross-border health care so they do not fall squarely on patients. I scrutinize private sector responses to this imbalance and suggest ways the public sector can help mitigate it.

Ikemoto on Stem Cell Research

Lisa C. Ikemoto (UC Davis) has posted Eggs as Capital: Human Egg Procurement in the Fertility Industry and the Stem Cell Research Enterprise (Signs: Journal of Women in Culture and Society, Vol. 34, p. 763, 2009) on SSRN. Here is the abstract:

Science is one arena of national status competition. In competition, both scientists and scientific know-how are deployed in the effort to achieve victory. The prize varies. The meanings attached to that prize shift over time and political space. In the domestic debate about human embryonic stem cell research, one of several pro-research positions is that government funding of human embryonic stem cell research is necessary to maintain U.S. primacy in the international arena. This paper explores some of the material and normative implications of this competition for women.

In U.S. culture and in capitalist markets, science is understood as a body of knowledge separate and apart from "other" knowledge. In addition, science is privileged knowledge. Knowledge that is deemed science is valued more than, for example, social knowledge, cultural knowledge, and experiential knowledge. Science is valued more or taken more seriously than knowledge deemed to be in other categories because we impute science with neutrality, empirical underpinnings, and irrefutability. On the other hand, we both value and denigrate social, cultural and experiential knowledge as subjective, not provable, and often, emotional. Sometimes, the worst thing you can say about a claim to knowledge is that it is unscientific.

As a privileged form of knowledge, science is often positioned oppositionally with "soft" forms of knowledge - morality or politics, for example. It is also used to confer status upon those wielding scientific knowledge. Or science is paired with other forms of privilege to form a trump card of sorts against whatever is positioned opposite. Science and professionalism have trumped morality more than once in public discourse.

The ways in which science is constructed as separate and independent of "other" knowledge obscures the ways that science intertwines with cultural formations to trump its challengers. In the U.S., science has intertwined variously with imperialism, anti-communism, racism, racial equality, Social Darwinism, liberalism, etc. In national status competition, scientific innovation and technological know-how are often conflated with democratic and economic progress. That conflation informs both the U.S. domestic debate about human embryonic stem cell research and the formation of an international research enterprise sector in stem cell research.

At present, the gold rings of human embryonic stem cell research are the creation of additional cell lines and the ability to use somatic cell nuclear transfer to create tailored cell lines. Given present limitations in scientific knowledge and technological ability, these goals require human blastocysts and human eggs as the raw materials of research. These needs form a point of interface between the fertility industry and the stem cell research enterprise.

The fertility industry and research enterprise are forming at least three points of interface. The first is direct. The raw materials of research are being transferred from fertility clinics to researchers. The second and third points of interface follow from those transfers. Practices in pre-embryo creation, storage and transfer, as well as human egg procurement are well-established in the fertility industry. Fertility industry practices are shaping practices in the research sector. And emerging practices in the research context are influencing practices in the fertility industry. In addition, fertility industry practices have had normative implications, particularly for women. Stem cell research, as a subject of public discourse largely informed by the abortion debate, and as an endeavor laden with promises of both therapeutic and economic benefit, contributes to the shape and content of the gender norms at play.

Both the fertility industry and stem cell research are competitive ventures in emerging global markets. But it is stem cell research that has been cast as a means of achieving national primacy. Consider: A global market with national primacy as its prize; the means of winning the prize is an understanding of science that divorces and obscures it from its normative effects; among those effects is the use of women as a source of raw research materials, and the accompanying shifts between women, nation, and scientific commerce.

White on Judicial Reform in Mongolia

Brent T. White (University of Arizona - James E. Rogers College of Law) has posted Rotten to the Core: Project Capture and the Failure of Judicial Reform in Mongolia (East Asia Law Review, 2009) on SSRN. Here is the abstract:

Despite claims by international donor agencies that judicial reform efforts in Mongolia have been a great success, this article argues that Mongolian courts continue to grossly lack integrity, transparency, and accountability – and are perceived by the Mongolian public as more corrupt today than when donor-funded judicial reform efforts began almost a decade ago. This article further argues that the failure of judicial reform in Mongolia stems in significant part from the “capture” of donor-funded judicial reform efforts by elites within the Mongolian judicial sector. It concludes that the inherent tendency for project capture in the “institution-building” approach to judicial reform that international donor agencies favor should add to calls to limit the approach in favor of bottom-up efforts to push for meaningful judicial reform.

Poirier on Stigma & the Civil Union/Marriage Distinction

Marc R. Poirier (Seton Hall University - School of Law) has posted Name Calling: Identifying Stigma and the 'Civil Union'/'Marriage' Distinction (Connecticut Law Review, Vol. 41, 2009) on SSRN. Here is the abstract:

The Connecticut marriage equality case, Kerrigan v. Comm’r of Public Health, 957 A.2d 407 (Conn. 2008), turns on a threshold determination that the state legislature’s distinction between 'civil union' and 'marriage' creates a cognizable injury of constitutional dimension. The court’s short explanation of its conclusion hinges on two social facts. First, 'marriage' names a long-standing, complex, and revered social institution, while 'civil union' is a new name with virtually no history. Second, the 'civil union'/'marriage' distinction is framed against a historical background of stereotyping, discrimination, and prejudice against gays and lesbians. The court’s explanation, while accurate, is all too brief. This Article elaborates some aspects of everyday naming practices involving social identity and kinship, in order to assist us in understanding the injury that comes from mandating two distinct names for the core family relationship. It considers (1) the problem of family identity underlying Juliet’s 'What’s in a name' soliloquy in William Shakespeare’s play Romeo and Juliet; (2) Louis Althusser’s concept of interpellation; (3) the feminist critique of language and names, focusing in particular on the 'Miss'/'Mrs.'/'Ms.' controversy; and (4) the way in which concrete, diffuse, everyday social practices of naming and recognition are multiscalar, and interact with larger legal and social structures around recognition, dominance, and subordination. With these considerations in mind, it is easier to see that the 'civil union'/'marriage' distinction has a cultural meaning that will create a stigmatic injury by reinforcing and activating dormant, dispersed sites of stereotyping and prejudice against gays and lesbians. Moreover, the distinction will reinforce a preexisting sense of second-class status, which is arguably a violation of a broad version of a guarantee of dignity under a principle of equal protection. The 'civil union'/'marriage' distinction thus involves and facilitates name calling and identifying stigma — just as the Connecticut Supreme Court concluded.

Simon on Surveillance & Virtual Worlds

Bart Simon (Department of Sociology and Anthropology, Concordia University) has posted Playing with the Databased Self: Perfect Surveillance in the Age of Virtual Worlds on SSRN. Here is the abstract:

It’s a typical day in the operations center at Blizzard HQ. The supervisor walks in on regular shift. Shades of West World, intimations of NASA mission control – rows of computer screens flash with data scrolling by in streams in front of hunched over operators typing, talking through mics and shouting at each other. At the front of a room a series of wall size monitors displaying a map of Azeroth, the world of warcraft. The fictional geography is irrelevant. This map represents a container of so many pixels of light… clustered together, moving about.

Cohen-Almagor on Hate Speech in Israel

Raphael Cohen-Almagor (University of Hull) has posted Regulating Hate and Racial Speech in Israel (Cardozo Journal of International and Comparative Law, Vol. 17, pp. 101-110, 2009) on SSRN. Here is the abstract:

Israel is a Jewish democracy. It is founded on Halacha (Jewish law) and on liberal principles. While some segments of Jewish orthodoxy believe there is no room for freedom because all is dictated by the Almighty, liberal ideology is based on the tenets of freedom. While some segments of Jewish orthodoxy believe that all Jews are in the same boat, and must sink or swim together, liberalism believes in tolerance and in a “live and let live” attitude. The tension between the two basic foundations of Israel is noticeable and significant.

In this paper, I discuss the question whether the liberal State should prosecute people for preaching hate. After presenting both sides of argument, I argue that the State ought to weigh the costs of allowing hate speech as well as the risks involved, and balance these against the costs and risks to democracy and free speech censorship. Considering Israel’s special circumstances, its legal framework, and recent trends following Israel’s evacuation of the Gaza Strip I argue that in a perfect world we would respond to hate with education, not criminal laws. But our world is not perfect and history shows that hate speech might lead to horrible crimes. Therefore, legal intervention may be warranted to fight down racism and bigotry. At the same time we should insist on satisfying some stringent requirements before we pursue the legal avenue. The law may be appropriate but only in significant rare circumstances.

Green on Judicial Activism

Craig Green (Temple University - James E. Beasley School of Law) has posted An Intellectual History of Judicial Activism (Emory Law Journal, Forthcoming) on SSRN. Here is the abstract:

Over the past six decades, the term "judicial activism" has become an immensely popular tool for criticizing judges' behavior. Despite the term's prominence, however, its meaning is obscure, and its origins have been forgotten. This article seeks to correct such deficiencies through a detailed conceptual and historical analysis of judicial activism.

First, the article analyzes legal rhetoric, describing the post-war origins of the phrase "judicial activism," its eighteenth- and nineteenth-century prehistory, and its rise to prominence in the late twentieth-century. Second, the article rejects as incoherent modern definitions of judicial activism, and instead describes a functional "concept" of activism based on unenforced norms of judicial propriety. Because judges make many decisions without supervision by other public officials, debates over judicial role are crucial to our legal system's operation. These debates - regardless of whether they use the word "activism" - illustrate why the concept of judicial activism remains inescapably important. Third, the article offers a two-part, common-law method of determining whether particular decisions or judges are activist. This method contrasts with other ways of evaluating activism such as textualism, originalism, and jurisprudential theory. If widely adopted, the proposed approach to judicial activism might yield clearer perceptions of judicial behavior and might reduce destructive schisms between expert and non-expert discussions of judicial role.

Very interesting & recommended!

Markel & Polsky on Taxing Punitive Damages

Dan Markel and Gregg D. Polsky (Florida State University College of Law and Florida State University - College of Law) have posted Taxing Punitive Damages on SSRN. Here is the abstract:

This Article addresses two basic and important questions given astonishingly sparse attention in both litigation and in scholarship: how do and how should punitive damages and taxes intersect?

This article's normative recommendations are tethered to the policy proposals earlier outlined in two companion articles that appeared this year, Retributive Damages, and How Should Punitive Damages Work? (Cornell LR 2009; Penn LR 2009)

Additionally, we analyze some of the puzzles that emerge from study of this area even under the current law.

Monahan, Walker, & Mitchell on Social Framework Evidence

John Monahan , Laurens Walker and Gregory Mitchell (University of Virginia - School of Law , University of Virginia - School of Law and University of Virginia School of Law) hve posted The Limits of Social Framework Evidence on SSRN. Here is the abstract:

An important debate is brewing over the proper scope of expert witness testimony that purports to summarize general social science evidence to provide context for the factfinder to decide case-specific questions. In a recent article, we argued that experts who provide this 'social framework' testimony should be restricted from making any linkages between general social science research findings and specific case questions unless such linkages are supported by scientifically reliable methods and principles. A response to our article by Professors Hart and Secunda argued that experts should be given much more latitude to match the facts of a particular case to findings from social science research. In the present paper, we show that Hart and Secunda mischaracterized our arguments for restricting the scope of social framework evidence, ignored the actual practices of experts who are providing the expert opinions that we question, and misconstrued the motivations behind and likely implications of our arguments. We encourage courts to reject the approach that Hart and Secunda advocate, which would permit both plaintiff and defense experts to link general research to specific cases through nothing other than the expert’s subjective judgments and intuition.

Book Announcement & Romano on Cost-Benefit Analysis of US Participation in International Courts

Cesare P.R. Romano (Loyola Law School Los Angeles) has posted The Sword and the Scales: The United States and International Courts and Tribunals on SSRN. Here is the abstract:

The Sword and the Scales is the first in-depth and comprehensive study of attitudes and behaviors of the United States toward major international courts and tribunals, including the International Courts of Justice, WTO, and NAFTA dispute settlement systems; the Inter-American Court of Human Rights; and all international criminal courts. Thirteen essays by American legal scholars map and analyze current and past patterns of promotion or opposition, use or neglect, of international judicial bodies by various branches of the United States government, suggesting a complex and deeply ambivalent relationship. The United States has been, and continues to be, not only a promoter of the various international courts and tribunals but also an active participant of the judicial system. It appears before some of the international judicial bodies frequently and supports more, both politically and financially. At the same time, it is less engaged than it could be, particularly given its strong rule of law foundations and its historical tradition of commitment to international law and its institutions.

Contents

1. International courts and tribunals and the rule of law - John B. Bellinger, III;
2. American public opinion on international courts and tribunals - Steven Kull and Clay Ramsay;
3. Arbitration and avoidance of war: the nineteenth century American vision - Mary Ellen O'Connell;
4. The United States and the International Court of Justice: coping with antinomies - Sean D. Murphy;
5. The U.S. Supreme Court and the International Court of Justice: what does 'respectful consideration' mean? - Melissa A. Waters;
6. U.S. attitudes toward international criminal courts and tribunals - John P. Cerone;
7. The United States and the Inter-American Court of Human Rights - Elizabeth A. H. Abi-Mershed;
8. From paradox to subsidiarity: the United States and human rights treaty bodies - Tara J. Melish;
9. The U.S. and international claims and compensation bodies - John R. Crook;
10. Does the U.S. support international tribunals? The case of the multilateral trade system - Jeffrey L. Dunoff;
11. The United States and dispute settlement under the North American Free Trade Agreement: ambivalence, frustration and occasional defiance - David A. Gantz;
12. Dispute settlement under NAFTA Chapter 11: a response to the critics in the United States - Susan L. Karamanian;
13. The United States and international courts: getting the cost-benefit analysis right - Cesare P. R. Romano.

Brennan on Natural Law & Smith's "Law's Quandary"

Patrick McKinley Brennan (Villanova University School of Law) has posted The Place of 'Higher Law' in the Quotidian Practice of Law: Herein of Practical Reason, Natural Law, Natural Rights, and Sex Toys (Georgetown Journal of Law & Public Policy, Forthcoming) on SSRN. Here is the abstract:

The question of the place of higher law in the ordinary practice of law is even now dogged by the brooding omnipresence caricature. This Article seeks to introduce and apply a philosophically defensible account of natural law, the one defended by Thomas Aquinas, to various problematics of contemporary law and jurisprudence. The Article argues that such higher law is not so high as to be relevant only to sexy constitutional questions, as is often supposed, but to everything we do in law. The Article argues that liberals and conservatives alike should acknowledge both the place of natural law in the positive law and the contingent/prudential limits on judges' authority to speak the natural law directly from the bench. Much of the Article is framed as a response to Steven Smith's Law's Quandary (Harvard 2004).

Bellin on Adverse Comment on Silence

Jeffrey Bellin (Southern Methodist University - Dedman School of Law) has posted Recasting the Fifth Amendment Prohibition of Adverse Comment on Criminal Defendants' Trial Silence on SSRN. Here is the abstract:

The landmark case of Griffin v. California holds that the Fifth Amendment privilege against self-incrimination prohibits a prosecutor from arguing that a defendant's failure to testify supports an inference of guilt. In the four decades since Griffin was decided, this holding has become, in the Supreme Court's words, "an essential feature of our legal tradition," strictly limiting jury argument and instruction in state and federal criminal trials. At the same time, Griffin's doctrinal underpinnings have been strongly criticized by prominent jurists (including three current Supreme Court justices) and commentators. In light of these largely unanswered criticisms, even Griffin's contemporary defenders struggle to place the constitutional prohibition of adverse comment on defendant silence within a coherent doctrinal framework.

This article takes up that challenge, relying on a fairness rationale implicit in existing case law to construct a doctrinal defense of a limited Fifth Amendment prohibition of adverse comment on defendant trial silence. The article suggests that in a certain subset of cases, primarily consisting of those cases where a defendant declines to testify to avoid the introduction of a prior criminal record as impeachment, adverse comment on defendant silence so exacerbates the plight of the silent defendant that it rises to the level of compulsion, forbidden by the Fifth Amendment.

The analysis also reveals, however, that in the bulk of cases, a Fifth Amendment-based prohibition of adverse comment is, in fact, indefensible. For many defendants, including most prominently defendants who decline to testify because they fear that the substance of their testimony will support rather than rebut the prosecution's evidence, adverse comment on trial silence constitutes a relatively minor burden. This burden, while significant, simply cannot be analogized to the compulsion to testify that the Fifth Amendment prohibits. The article also notes that many silent defendants remain silent for reasons that are not protected by the Fifth Amendment (e.g., to avoid incriminating a third party). A Fifth Amendment bar to adverse comment on the trial silence of these defendants is also doctrinally indefensible.

Thus, while this article's thesis shores up the uncertain doctrinal footing of the constitutional prohibition of adverse comment for some silent criminal defendants, it reveals the absence of a doctrinal grounding for the prohibition with respect to numerous others. The article posits, therefore, that the current Fifth Amendment-based prohibition of adverse comment on defendant silence must be recast in a more narrowly tailored form. The article concludes by suggesting a mechanism by which a properly tailored constitutional prohibition could be implemented.

Rotunda on the Spending Clause

Kyndra K. Rotunda (Chapman University School of Law) has posted The Spending Clause (ENCYCLOPEDIA OF THE SUPREME COURT, David S. Tanenhaus, ed., Vol. 4, p. 436, MacMillan Reference USA, 2008) on SSRN. Here is the abstract:

This article discusses and analyzes Article I, Section 8, clause I of the U.S. Constitution, popularly known as the Spending Clause. It discusses and analyzes the opposing views of Alexander Hamilton and James Madison; traces and examines the history of the Spending Clause; and discusses modern interpretations and applications of the Spending Clause.

Surden on Privacy

Harry Surden (University of Colorado Law School) has posted Structural Rights in Privacy on SSRN. Here is the abstract:

This Essay challenges the view that privacy interests are protected primarily by law. Instead, I argue that much of society's privacy is protected implicitly by transaction costs. This renders a significant portion of societal privacy vulnerable when transaction-cost-reducing technologies become widely used.

I first observe that society explicitly uses and implicitly relies upon transaction costs to regulate behavior in different substantive areas. I then explore how this transaction-cost-based regulation operates in the privacy realm. Based upon the understanding that society relies upon non-legal devices such as markets, norms, and structure to regulate human behavior, this Essay calls attention to a class of regulatory devices known as latent structural constraints and provides a positive account of their role in regulating privacy. Structural constraints are physical or technological barriers which regulate conduct; they can be either explicit or latent. An example of an explicit structural constraint is a fence which is designed to prevent entry onto real property, thereby effectively enforcing property rights.

By contrast, latent structural constraints, are the secondary costs arising from the technological state of the world - transaction costs - which implicitly regulate conduct by making certain activities too difficult to engage in on a widespread basis.

Society relies upon these latent structural constraints - or transaction costs - to reliably inhibit certain unwanted conduct in a way that is functionally comparable to its use of law. For example, society has frequently depended upon the search costs involved in aggregating and analyzing large amounts of information to effectively protect anonymity. We might think of some of these inhibited behaviors -- behaviors constrained by transaction costs -- as constituting implicit "structural rights."

The regulatory aspect of latent structural constraints and transaction costs may be non-obvious to policymakers in most instances. This is because it is common to think of transaction costs as manifestations of inefficiency rather than as serving a functional role.

A focus on structural rights -- rights protected solely by the presence of transaction costs -- becomes significant because such rights are vulnerable to sudden dissipation. Emerging technologies tend to lower transaction costs in the areas where they are employed. This lowering of transaction costs may have the unintended side effect of eliminating structural rights that were regulated by the presence of transaction costs. For example, the emergence of search and data aggregation technologies may have had the unintended side effect of permitting privacy intrusions that were previously impossible due to the regulatory role of previously existing transaction costs.

This Essay describes a conceptual framework by which policymakers can explore this association between constrained behavior and latent structural constraints and suggests that they employ this conceptualization in order to identify non-obvious privacy interests which may be threatened by emerging technologies.

McGuinness on Missouri v. Holland

Margaret E. McGuinness (University of Missouri School of Law) has posted Federalism and Horizontality in International Human Rights (Missouri Law Review, Vol. 73, p. 1265, 2008) on SSRN. Here is the abstract:

This commentary to the 2008 Missouri Law Symposium, “Return to Missouri v. Holland: Federalism and International law,” critiques the intersystemic/pluralist framework as a tool for analyzing the process of international human rights norm diffusion. While I argue that intersystemic approaches are extraordinarily useful for framing case studies to better understand the increasingly horizontal process of human rights norm transmission, it has its limits. The commentary raises questions about the impact of these theoretical frames on more traditional understandings of human rights enforcement through vertical institutions (courts, commissions, committees) and on potential institutional reform at the international level. It ultimately concludes that horizontal processes can be effective in filling the enforcement gaps of vertical institutions and in affecting state human rights behavior. The future challenge is to harness horizontal processes in a way that reinforces the legitimacy of domestic and international legal mechanisms and permits international institutions to be flexible in adapting to these horizontal processes.

Finkelman on School Vouchers & Religious Liberty

Paul Finkelman (Albany Law School - Government Law Center) has posted School Vouchers, Thomas Jefferson, Roger Williams, and Protecting the Faithful: Warnings from the Eighteenth Century and the Seventeenth Century on the Danger of Establishments to Religious Communities (Brigham Young University Law Review, Vol. 2008, No. 2, p. 525, 2008) on SSRN. Here is the abstract:

This article emphasizes the threat to religious freedom and religious liberty imposed by school vouchers. The majority of private schools in the United States are associated with religious organizations. By discussing the role of separation of religion and state in the Jeffersonian era, the history of Roger Williams and three modern Supreme Court cases, this article argues that publically funded school vouchers violate the separation of religion and state and thus pose a threat to education, religion, and people of faith.

Fisk & Malamud on the NLRB

Catherine Fisk and Deborah C. Malamud (University of California, Irvine Law School and New York University - School of Law) have posted The NLRB in Administrative Law Exile: Problems with its Structure and Function and Suggestions for Reform (Duke Law Journal, Vol. 58, p. 2013, 2009) on SSRN. Here is the abstract:

This article, which is part of the Duke Law Journal Administrative Law Symposium on the administrative law of the Bush Administration, examines both the recent and longer-term history of the National Labor Relations Board (NLRB) from the perspective of contemporary debates about administrative law. The NLRB during the Bush Administration made a number of significant and controversial policy changes, both in substantive law and in its enforcement process. This Article addresses those changes with the goal of increasing the coherence and legitimacy (legal and political) of NLRB policymaking. After examining how unresolved tensions between the Wagner Act and the Taft-Hartley Act are implicated in controversial decisions of the Bush Board and the structural obstacles the Board faces in attempting to make policy through adjudication, we argue that the policy conundrums cannot be resolved without recourse to the administrative law tools - including the use of social science expertise - the agency lacks. The Article concludes with suggestions for reform that do not depend on new legislation, including that (1) the NLRB be more holistic in its regulatory approach and rely on social science expertise and Department of Labor data in both adjudication and rulemaking; (2) the executive consider across-the-board reform of agencies that rely on adjudication; (3) Congress enhance its own policy analysis in the labor field; and (4) courts of appeals and the Supreme Court assimilate review of NLRB action into the way they review all agency action and be more coherent and consistent in deferring to agency action and in drawing the line between law, fact, and policy.

Katz on Anticommons

Larissa M. Katz (Queen's University - Faculty of Law) has posted Red Tape and Gridlock (Canadian Journal of Law and Jurisprudence, Forthcoming) on SSRN. Here is the abstract:

This paper concerns the role of property theory in explaining why so many people around the world control their assets informally, without recourse to the state. According to one influential view, owners and their assets are driven to the informal sector because of deficiencies in the form of ownership on offer in the formal sphere. Where too many people have the power to veto the optimal use of a resource, we have a form of ownership, an anticommons, that is deficient. But this account of informality proceeds from an overly capacious theory of ownership. On this view, an owner’s position is incomplete if she lacks the requisite inputs for a project that represents the optimal use of an object. Further, a person counts as an “owner,” albeit one locked in an anticommons, merely if she has the power to block the ends that others are able to achieve with an object. I argue that this view of ownership leaves us unable to see that owners are in a radically different position vis-à-vis other owners with the same authority over an object than they are vis-à-vis the state or other non-owners who may be in a position to block an owner’s valuable ends. The integrity of the concept of the anticommons is undermined if we define it in terms of veto-power over the ends for which a resource is optimally suited.

In this paper, I situate the concept of the anticommons within a larger theory of ownership as agenda-setting authority. Seen this way, what is important about an anticommons is its effect on an owner’s means rather than her ends. Whereas owners of private property are never guaranteed the ability to achieve their ends, owners in an anticommons are not even guaranteed the ability to exercise their very means, their agenda-setting authority. From this revised and much narrower concept of the anticommons, what follows is that talk of “gridlock” in the formal sphere makes sense just as a normative argument about the best distribution of ownership and regulatory authority rather than a conceptual argument rooted in the idea of ownership.

Legal Theory Lexicon: Positive & Normative Legal Theory

Introduction

One of the most fundamental distinctions in legal theory is that between "positive legal theory" and "normative legal theory." This post provides a very brief introduction to the distinction, aimed at law students (especially first years) with an interest in legal theory.

The core idea of the distinction between positive and normative legal theory is simple: positive legal theory seeks to explain what the law is and why it is that way, and how laws affect the world, whereas normative legal theories tell us what the law ought to be. Thus, a positive theory of tort law might seek to explain what causal forces have produced the existing principles of tort law, whereas a normative theory of tort law would tell us what rules of tort liability would be best, right, or justifiable. Or more simply: positive legal theories are about facts and normative legal theories are about values.

Positive Legal Theory

Sometimes, the notion of positive legal theory is presented in an oversimplified way--as if there were a single, well-defined type of theory that counted as positive. In fact, the phrase "positive legal theory" is used in a variety of ways. The one thing that positive legal theories have in common is that they are not normative. Nonetheless, there are three characteristic type of positive legal theory that can be identified:

Positive Legal Theory Type 1: Doctrinal Theories--The first kind of legal theory that is called "positive" is quite simply a theory of what the content of a particular field of legal doctrine is. Thus, a theory of the freedom of speech might simply seek to explain the shape of existing first amendment doctrine. Or a theory of hearsay rule might seek to provide an account of the rule and exceptions that explains and accurately predicts particular applications of the rule. Doctrinal legal theories are responsive to questions like, "What are the principles that shape this area of the law?" or "Can these cases be explained by some underlying theory?"

Positive Legal Theory Type 2: Explanatory Theories--The second kind of legal theory to which the label "positive" is applied are explanatory theories--theories about why the law is the way it is. For example, a very simple Marxist theory might state that the content of the law can best be explained by the interests of the ruling class. Some legal economists have tried to argue that common-law rules are efficient, because there is "evolutionary pressure" on inefficient legal rules.

Positive Legal Theory Type 3: Effects Theories--The third kind of legal theories that are referred to as "positive" are theories about the consequences that will be produced by a given regime of legal rules. This is the sense of "positive theory" that is most frequently invoked by legal economists. The question --"What effects will a strict liability regime (as opposed to a negligence) regime have on the manufacturers of consumer products?"--can be answered by a legal theory that is positive in the sense that it predicts behavior but does not explicitly evaluate the desirability of the rule.

Normative Legal Theory

Normative legal theories, on the other hand, are by their nature evaluative. Thus, a normative theory of products liability law would take a stand on the question whether negligence or strict liability is the better rule. Normative legal theories tend to be entwined with more general normative theories, e.g. moral or political theories, although this is not necessarily the case. The Legal Theory Lexicon already includes entries on deontology, utilitarianism, and virtue ethics--three of the most important general normative theories that have had an influence on the law. There are three other distinctions that are important to understanding the general idea of a normative legal theory:

Ideal versus Nonideal Theory Some normative legal theories are "ideal"--that is, they are theories about what the best legal rule would be in the world in which everything was politically possible, the law could be adequately enforced, and other legal rules that interact with the subject of the theory could be adjusted to produce the best overall system. Other normative legal theories are "nonideal"--that is, they are theories that assume a variety of constraints on the choice of legal rules. For example, a nonideal theory might take into account political feasibility or it might take into account the possibility that the system would not provide an optimal level of enforcement for the rule that would otherwise be best. The Legal Theory Lexicon entry on second best explores these ideas in greater detail.

Justificatory Theories and Critical Theories Normative legal theories also vary in their "attitude" towards the status quo. You are likely to encounter normative legal theories that start with the question, "What is the best justification that be given for such and such a legal rule?" These justificatory theories have a limited purpose. They do not address the ultimate question, "What is the best legal rule?" On the other hand, many legal theories have the opposite purpose--the critique of existing legal doctrine. Thus, a critical theory might enumerate all of the criticisms that could be made of an existing legal rule--even though some of the criticisms may rest on inconsistent premises.

Normative Legal Theories, Political Philosophy, and Comprehensive Moral Theories  Another important issue concerns the relationship of normative legal theory to other normative theories, especially political philosophy, ethics, and comprehensive moral theories.  Normative political philosphy asks questions about the normative justification for the state and the normative principles that establish the ends of and limits on the content of the law.  The term ethics can be defined in various ways--but for our purposes on this , ethics might be seen as concerned with the morality of individual action outside the political sphere.  A comprehensive moral theory might encompass both ethics and normative political philosophy.  Normative legal theories have as their domain the normative evaluation of legal substance and procedure.  Normative theories about the law as a whole might be called "general normative jurisprudence."  There can also be normative theories of particular legal domains--"normative constitutional theory," "normative tort theory," and so forth.

One picture of this relationship normative legal theory, on the one hand, and moral and political philosophy, on the other, might be called "top-down."  That is, we might start with a comprehensive moral doctrine (such as utilitarianism or Kant's version of deontology).  Using the method of deduction, we might try to deduce the principles of political philosophy and ethics from a comprehensive moral theory, and the principles of normative legal theory might in turn be deduced from those of political philosophy and ethics.  The top-down approach is exemplified by some consequentialists, who argue for a comprehensive moral doctrine such as welfarism or utilitarianism and then derive normative justifications or criticisms from the comprehensive doctrine and facts about which legal rules will result in what consequences.

Another possibility is that normative legal theory is relatively independent of ethics and political philosophy.  It is at least conceivable that one might believe that the realm of interpersonal ethics is governed by a different set of principles and theories than is the law.  For example, one might espouse deontological ethics, but believe that the laws should (for the most part) be aimed at maximizing utility.

The Intersection of Positive and Normative Theory

So far, we have been assuming a fairly sharp distinction between positive and normative legal theory. And for many purposes, assuming that there is a bright line that separates normative and descriptive legal theory is a good working hypothesis. Even assuming there is such a bright line, however, there are relationships between positive and normative legal theories.

Positive Theory in the Service of Normative Theory--One relationship is clear and straightforward. Many normative theories underdetermine what the legal rules should be in the absence of substantial information about the effects of the rules. This is most obvious in the case of utilitarian theories, where information about consequences does all the real work of determining which legal rule is best. For normative theories like utilitarianism, positive theory performs an essential service. Without a positive account of the effects of a given rule choice, utilitarianism has nothing to say about what rule is best.

Positive Theory as a Constraint on Normative Theory--Another relatively noncontroversial relationship between positive and normative legal theories arises when a positive theory that explains why the law has the shape that it does, is taken as imposing a constraint on normative theory. For example, public choice theory makes certain predictions about how legislatures will act in response to various incentives. Some legal rules that might be justified by ideal normative legal theory may be considered "unrealistic" in light of positive theory. In cases like this, positive legal theory provides constraints that limit the options available to normative theory.

Interpretivism and "Law as Integrity"--There is another, more controversial, way that positive and normative legal theory can interact. Ronald Dworkin's theory of law, "law as integrity," attempts to combine the aims of positive doctrinal theory and normative theory. The idea is that a legal theory should both fit and justify the existing legal landscape. Thus, a Dworkinian theory of the freedom of speech would need to both fit the contours of the Supreme Court's decisions and justify those decisions. Of those interpretations of free speech doctrine that fit the legal topography, Dworkin maintains that judges should select that interpretation that makes the existing law, "the best that it can be." Dworkin's view of legal theory blurs the line between positive and normative legal theory--essentially combining the enterprises that I have called positive doctrinal theory and justificatory normative theory. As you might imagine, this is hugely controversial--although that is a topic for another post.

Conclusion

The distinction between positive and normative legal theories is fundamental, but once you have the terminology down, it is usually easy to apply. The tricky part comes when you are confronted with theories like Dworkin's that blur the lines between the positive and the normative. When you do, my advice is that you stay on your toes. A common mistake is to try to force interpretivist theories into either the positive or the normative. Although there may be deep reasons of legal theory that would justify such a forcing move, it will rarely be productive to start there. A better strategy is to try to understand such hybrid theories from the inside first. When you are constructing your own theories, it is always important to be sure you know whether your theory is positive, normative, or has elements of both. One of the oft-repeated questions that law professors ask of entry-level candidates giving job talks (or ambitious students writing papers) is whether their theory is positive or normative. Be sure you know the answer before the question is asked!

Related Entries

• Legal Theory Lexicon 008: Utilitarianism
• Legal Theory Lexicon 010: Deontology
• Legal Theory Lexicon 012: Virtue Ethics
• Legal Theory Lexicon 014: Fact and Value
• Legal Theory Lexicon 044: Legal Theory, Jurisprudence, and the Philosophy of Law

(This entry was last revised on June 28, 2009.)

Legal Theory Bookworm

The Legal Theory Bookworm recommends Intergenerational Justice, Edited by Axel Gosseries and Lukas H. Meyer. Here is a description:

Is it fair to leave the next generation a public debt? Is it defensible to impose legal rules on them through constitutional constraints? From combating climate change to ensuring proper funding for future pensions, concerns about ethics between generations are everywhere. In this volume sixteen philosophers explore intergenerational justice. Part One examines the ways in which various theories of justice look at the matter. These include libertarian, Rawlsian, sufficientarian, contractarian, communitarian, Marxian and reciprocity-based approaches. In Part Two, the authors look more specifically at issues relevant to each of these theories, such as motivation to act fairly towards future generations, the population dimension, the formation of preferences through education and how they impact on our intergenerational obligations, and whether it is fair to rely on constitutional devices.

And the table of contents:

Axel Gosseries and Lukas H. Meyer: Introduction: Intergenerational Justice and Its Challenges
Part I : Theories
1: Janna Thompson: Identity and Obligation in a Transgenerational Polity
2: Hillel Steiner & Peter Vallentyne: Libertarian Theories of Intergenerational Justice
3: Stephen M. Gardiner: A Contract on Future Generations?
4: Axel Gosseries: Three Models of Intergenerational Reciprocity
5: Christopher Bertram: Exploitation and Future Generations
6: David Heyd: A Value or an Obligation? Rawls on Justice to Future Generations
7: Daniel Attas: A Trans-Generational Difference Principle
8: Lukas H. Meyer and Dominic Roser: Enough for the Future
Part II : Specific Issues
9: Rahul Kumar: Wronging Future People
10: Dieter Birnbacher: What Motivates Us to Care for the (Distant) Future?
11: Krister Bykvist: Preference Formation and Intergenerational Justice
12: Gustaf Arrhenius: Egalitarianism and Population Change
13: Clark Wolf: Intergenerational Justice, Human Needs, and Climate Policy
14: Víctor M. Muñiz-Fraticelli: The Problem of a Perpetual Constitution

Download of the Week

The Download of the Week is The Substantive Principle of Equal Treatment (Legal Theory, Vol. 15, 2009) by Patrick Shin. Here is the abstract:

This paper attempts to identify a principle of equal treatment that gives specific structure to our widely shared judgments about the circumstances in which we have moral reason to object to the differential adverse treatment of others. I formulate what I call a “substantive” principle of equal treatment (to be distinguished from principles of formal equality) that describes a moral constraint on the reasons we can have for picking out individuals for differentially adverse action. I argue that this constraint is violated when an action, in view of its rationale, expresses lesser respect for the moral status of an individual under some differentiating description, compared to the respect reserved to another class of individuals who are not picked out by that description. I show that this substantive demand of equal treatment is not morally otiose and reveal the fallacy underlying accounts that have concluded otherwise.

And from the paper:

There is, to be sure, a deep connection between the noncomparative requirement of moral respect and the comparative requirement of equal respect or equal treatment. We might say that the comparative demand of equal treatment falls out of the fact that the basis of moral respect is a status that is shared by everyone to whom it is owed. We might disagree about exactly what the basis of the entitlement to moral respect is. But it seems internal to the concept that it is owed to individuals in virtue of some fundamental status – e.g., status as a moral person, a human being, rational agent, or member of a moral community – that transcends human heterogeneity and socially manifested variability. If the noncomparative requirement of moral respect stems from the implications of this status for the justification of action with regard to those who have it, we can think of the requirement of equal treatment as falling out of, and reflecting back upon, the fact that this status is shared by everyone. The basis of moral respect is, in an important way, coterminous with the basis of the substantive requirement of equal treatment.

That still leaves unanswered, though, how the requirement of equal treatment might be thought to add anything to the noncomparative requirement of moral respect. My view is that they represent different aspects of the recognition of an individual’s moral status. If we can think of the noncomparative requirement of respect as a constraint that speaks to the adequacy of particular considerations as justifications for action, then we can think of the requirement of equal treatment as a constraint that speaks to whether the reasons for an action are consistent with the fact of the moral equality of persons. So, for example, breaking a promise to someone just because you did not feel like keeping it is a violation of moral respect insofar as it involves a failure to take seriously the promisee’s entitlement to have her expectations met except on the basis of adequate reasons. But breaking a promise to someone because you have a practice of keeping only those promises you make to Caucasians is, in addition to being a violation of moral respect, also a violation of the requirement of equal treatment insofar as it is predicated on a rejection of the presumed moral equality of Caucasians and non-Caucasians. These two cases of promise-breaking thus seem to give rise to two distinct objections – one based on the noncomparative requirement of moral respect, and the other based on a comparative ideal of moral equality or equal treatment.

The fallacy in the otiosity objection is that it relies on a question-begging assumption that whenever an action involves an impermissible violation of a noncomparative entitlement, the fact of that impermissibility provides a complete explanation of the wrongness of that action. In order to fully understand this fallacy, I need to set forth what exactly the substantive demand of equal treatment – the comparative demand of equal respect – entails. Some remarks by Bernard Williams in his paper, “The Idea of Equality,” are helpfully suggestive.28 Williams proposes that the distinctive demand of equal treatment be understood as a general constraint against allowing our “fundamental attitudes” toward others to be governed by socially salient differentiating characteristics such as their social and professional status. Williams thus construes equal treatment as an unconditional demand on our attitudes toward others, but also as a demand whose force is felt as a counterweight against various comparative judgments we might be inclined to make about individuals on the basis of socially salient differentiating characteristics. On this interpretation, we can think of the idea of equal treatment as substantive in the sense that its prescriptive force is categorical or unconditional, while it is in virtue of its incompatibility with certain comparative judgments that it can be understood as a genuine norm of equality.

Equal treatment surely does not require, however, that in deciding how any individual ought to be treated, we abstract away from all socially salient characteristics that might differentiate him from others. No one thinks, for example, that equal treatment requires that jobs requiring technical proficiency be awarded without regard to characteristics that may largely or wholly be the product of social circumstance, such as the fact that one individual has more work experience than another. This is presumably because taking account of that consideration does not deprecate the moral status of the individual with less experience in any way.

What is needed, then, is a specification of the demand of equal treatment that constrains moral deliberation to respect the moral equality of individuals, while not precluding the possibility that differential treatment of them might be justified. These considerations, though very general, already suggest a way of stating a substantive principle of equal treatment. As a first pass at formulating it, consider the following proposition:


(S0) The treatment of an individual violates the requirement of equal treatment in the substantive sense when that treatment, in view of its rationale, expresses unequal respect for the moral status of that individual.


Under this principle, the requirement of equal treatment is categorical or unconditional in that its violation cannot be avoided by the selection of a comparison class determined by some more-or-less arbitrary rule of treatment.

Long awaited and highly recommended. Download it while its hot!

Cohen on "Operation Cast Lead" & Proportionality

Amichai Cohen (Ono Academic College - Law School) has posted The Principle of Proportionality in the Context of Operation Cast Lead: Institutional Perspectives (Rutgers Law Record, Vol. 35, 2009) on SSRN. Here is the abstract:

The round of fighting between Israel and Hamas that began at the end of 2008, officially known in Israel as 'Operation Cast Lead,' raises several questions regarding the applicability and contents of International Humanitarian Law ('IHL'). This article will deal with only one such question: the issue of proportionality in IHL. I begin by outlining the major claims that have arisen with regards to legality of the use of force, by both Israel and Hamas, emanating from the requirements of proportionality. The second part of this paper will delineate the existing debate as to the correct interpretation of the proportionality norm in IHL. In the third part, I will suggest the appropriate requirements of proportionality in modern armed conflicts. This article suggests that the main effect of the principle of proportionality should be understood as a requirement from the executive to act reasonably and to take into account in a professional manner the conflicting requirements. Hence, the main external requirement from the military should be based on the demand for an independent assessment of whether the military acted reasonably.

Rotunda on Guantanamo & the Geneva Convention

Kyndra K. Rotunda (Chapman University School of Law) has posted Applying Geneva Convention Principles to Guantanamo Bay (University of Richmond Law Review, Vol. 43, No. 3, p. 1067, 2009) on SSRN. Here is the abstract:

This article analyzes and discusses the procedures followed by the U.S. in Guantanamo Bay and compares those procedures to the ones that Prisoners of War (POWs) would receive in accordance with the Third Geneva Convention, Relative to the Treatment of Prisoners of War. It discusses four particular procedural areas: Combatant Status Review Tribunals (CSRTs); Annual Review Boards (ARBs); religious accommodation; and camp discipline. The article considers and dissects Official Commentary to The Geneva Conventions and also examines historical underpinnings of the laws of war. It concludes that, in many respects, detainees presently held in Guantanamo Bay receive substantially the same, or in some cases greater, procedural protections that the Geneva Conventions require for Prisoners of War.

Anderson on Influence

Heidi Reamer Anderson (Florida Coastal School of Law) has posted Allocating Influence (Utah Law Review, Forthcoming) on SSRN. Here is the abstract:

Influence peddlers, influence seekers, and government officials have a long and fascinating history. Centuries ago, those in need of government action greatly appreciated the value of 'an audience with the king' and paid handsomely for such access, to the benefit of both the influence peddler and the influence seeker. Twenty-first century influence peddlers offer influence seekers a similar service, but often do so subject to restrictions not faced by their medieval predecessors. Many of these restrictions are intended to make the whole influence exchange more 'ethical', yet public perception indicates that additional reforms are necessary. When the influence peddler is a lawyer, and the influence seeker is a client, different ethical rules may come into play depending upon the decision maker before whom influence is sought. If the decision maker resides in the legislative branch (e.g., a United States congressman), then the Lobbying Disclosure Act and similar laws impose restrictions intended to increase transparency. If the decision maker resides in the judicial branch (e.g., a state court judge), then the rules of professional conduct prohibit a lawyer from improperly influencing the judicial decision maker. If the decision maker resides in an executive or administrative agency, then 'the rules' — to the extent they apply — are not so clear. Any attempt to clarify the ethics of administrative agency influencing should start with a core principle underlying modern legal ethics — the avoidance and/or resolution of conflicts of interest. Accordingly, this Article addresses a conflict of interest — the 'allocating influence conflict' — that, to date, has escaped proper identification or analysis. In its simplest form, an allocating influence conflict emerges when: (i) a lawyer properly may, and was retained by the client to, influence an agency decision maker; and (ii) there is a significant risk that allocating influence on behalf of one client is reasonably certain to inhibit substantially the lawyer’s ability to influence the same decision maker on behalf of another client. Essentially, if a lawyer’s exercise of influence over an agency decision maker on behalf of one client could harm another client or the lawyer himself, then that lawyer likely faces an allocating influence conflict. Although allocating influence conflicts occur frequently in practice (and with particular frequency in administrative law practice), primary legal ethics sources do not explicitly address them. Similarly, although a few scholars have noted individual 'problems' that possibly could qualify as allocating influence conflicts, no scholarship has explained how to identify allocating influence conflicts or, perhaps more importantly, how to address them ethically. This lack of guidance means that many conflicts of interest are occurring without proper identification by the affected lawyer and without effective oversight from lawyers charged with enforcing ethical standards. In turn, the practical harm to clients generally is the same harm associated with all other conflicts of interest — the loss of loyalty, independent judgment, and zealous advocacy from one’s lawyer. Part I of this Article defines an allocating influence conflict. In addition to providing a basic definition, it describes the circumstances in which these conflicts typically emerge, and distinguishes the allocating influence problem from other comparatively benign resource-allocation conflicts. Part II of this Article demonstrates the pressing need to address allocating influence conflicts given their prevalence and their harmful effects on both clients and the profession. Part III demonstrates that existing ethics sources, though lacking direct recognition of allocating influence conflicts, provide the proper foundation for addressing them. Part IV addresses how to resolve allocating influence conflicts, first by showing how allocating influence conflicts fit within the existing conflict of interest framework and, second, by suggesting specific revisions to the comments to the Model Rules of Professional Conduct.

Cohen on Guzman on Rational Choice & International Law

Harlan Grant Cohen (University of Georgia School of Law) has posted Can International Law Work? A Constructivist Expansion (Berkeley Journal of International Law (BJIL), Vol. 27, 2009) on SSRN. Here is the abstract:

An increasing number of scholars have begun to apply rational choice methodologies to the study of international law. Earlier rational choice scholarship voicing skepticism about international law’s true force has since been followed by sophisticated rational choice defenses of international law. This review essay focuses on Andrew Guzman’s recent book HOW INTERNATIONAL LAW WORKS: A RATIONAL CHOICE THEORY (2008), one of the best of those defenses. In that book, Guzman develops an elegant and sophisticated account of 'reputation' and the role it can play in encouraging rational compliance with international law. Based on this account, Guzman makes a powerful case that rational choice theory does support international law’s claims of legal force and can explain how international law works. This essay lays out some of the book’s key contributions to international law scholarship. But this essay also argues that in developing his account of 'reputation,' Guzman has demonstrated the inadequacy of rational choice descriptions of how international law works. This essay lays out three specific critiques of Guzman’s rational choice account: (1) that the account has trouble explaining international practice in areas like human rights, (2) that the account takes too narrow a view of the ways international law 'works,' and (3) that rational choice may be insufficient to explain the force of reputation or to create testable hypotheses of state action. This essay concludes by using Guzman’s account of reputation to suggest a more expansive account of how international law works integrating elements of rational choice, constructivist, and liberal theories.