Among the reasons this is worth reading (even if you don’t care about admiralty):

1.  Moragne goes into the history of wrongful death and explains why the common law did not provide a remedy.  The answer is that the “felony-merger” doctrine in England held that all property owned by a [...]]]> This week in my Admiralty class I taught my favorite case–Moragne v. States Marine Lines, Inc., 398 U.S. 375 (1970). This unanimous opinion, written by Justice John Marshall Harlan, held that a wrongful death action existed in general maritime law. Moragne overruled The Harrisburg, an 1886 case that followed the common law and said that there was no wrongful death remedy in admiralty. Many scholars believe that this is the best Supreme Court opinion, if by best you mean”most professional.”

Among the reasons this is worth reading (even if you don’t care about admiralty):

1.  Moragne goes into the history of wrongful death and explains why the common law did not provide a remedy.  The answer is that the “felony-merger” doctrine in England held that all property owned by a convicted murderer went to the Crown.  Thus, there could be no recovery by a private party.  Even though no such doctrine existed here, our courts blindly adopted the English rule.

2.  The Court grounds its decision to overrule its precedent by doing an exhaustive review of the erosion of the “no wrongful death” rule, by looking at state statutes, Acts of Congress, international law, and academic criticism.

3.  The Court explains why Congress’s decision to create a wrongful death remedy in international waters (in the Death on the High Seas Act) does not preclude the creation of a judicial equivalent in territorial waters where state law does not do so.  That part of the opinion involves a thoughtful discussion of federalism, statutory interpretation, and the evolution of the admiralty remedy of unseaworthiness (which I’ll talk more about next week).

4.  The Court then concludes by offering a detailed explanation about why stare decisis does not counsel in favor of sticking with precedent in this instance, largely because the current rules promotes uncertainty and leads to all sorts of inconsistent outcomes in similarly situated cases.

Take a look sometime–you’ll be glad you did.

Scalia’s theory is basically Katz (reasonable expectation of privacy) plus trespass. For Scalia, the conduct in Jones – law enforcement attaching a GPS transmitter to Jones’s car, and then tracking its movements – is a search because “The Government physically occupied [...]]]> The Supreme Court handed down its decision in U.S. v. Jones yesterday, and the blogosphere is abuzz about the case. (See Margot Kaminski, Paul Ohm, Howard Wasserman, Tom Goldstein, and the terrifyingly prolific Orin Kerr.) The verdict was a clean sweep – 9-0 for Jones – but the case produced three opinions, including a duel between Justices Antonin Scalia and Samuel Alito. Thus far, most privacy and constitutional law thinkers favor Alito’s position. That’s incorrect: Justice Scalia’s opinion is far more privacy protective. Here’s why:

Scalia’s theory is basically Katz (reasonable expectation of privacy) plus trespass. For Scalia, the conduct in Jones – law enforcement attaching a GPS transmitter to Jones’s car, and then tracking its movements – is a search because “The Government physically occupied private property for the purpose of obtaining information.” But, that’s not quite precise enough: the key is that the government must “physically intrud[e] on a constitutionally protected area.” (emphasis mine) The tricky part, naturally, is deciding what counts as such an area. Scalia disposes of Oliver (the open fields case) by emphasizing that a field “is not one of those protected areas enumerated in the Fourth Amendment.” Katz is still around for “Situations involving merely the transmission of electronic signals without trespass.”

Scalia thus wants to create magic places: spots where any governmental intrusion, with any physicality, is a search. The home is certainly such a place (see Kyllo) – Jane Yakowitz pointed out to me that this has to explain why the Court took cert in Florida v. Jardines, when we already have Caballes and Place on the books. Determining which places are magic is hard. It’s here that Scalia’s originalism does its work: Scalia wants to apply the understanding and expectations from 1791 to sort places into protected/magic and unprotected.

Alito thinks this is rubbish: his footnote 3 openly makes fun of Scalia’s contention that we can analogize the Jones facts to a constable hiding in a coach (“this would have required either a gigantic coach, a very tiny constable, or both”). His method would instead simply apply the Katz reasonable expectation of privacy test, which he rightly points out is more consonant with the Court’s jurisprudence since its rejection of the physical trespass test set out in Olmstead. This approach looks analytically cleaner, although Alito forthrightly acknowledges the circularity inherent in the reasonable expectations test – expectations derive from the law, in addition to driving it. And, of course, there is the one-way ratchet worry: the government can reduce our reasonable expectations of privacy by abusing our privacy.

Alito, though, proceeds to mess up a previously tidy picture by inventing two new considerations for Fourth Amendment analysis: the duration of the information-gathering (such as GPS tracking), and the severity of the crime. Scalia rightly smacks Alito around for this, as he fails to ground this analysis in anything remotely resembling precedent. At best, this is judicial activism, and at worst, it’s an invitation for a wave of new cases where the government tests boundaries and magnifies the threat posed by those surveilled.

I like Scalia’s approach much better. It sets out clearly that there are some spaces that get heightened privacy protection: we don’t have to engage in the weighing involved in the reasonable expectations test, so it’s cheaper, and there won’t be instances where judges decide that in fact society is willing to permit certain observations in the home, for example. Scalia’s approach is a firewall: it offers a redoubt for privacy. And, it maintains the viability of Katz in other instances. Alito’s two additional considerations point towards the worry that makes me prefer Scalia. Imagine observation of the interior of a home – say, using tiny drones – that would clearly constitute a search under the magic places theory. If the observation is fairly short, or if the crime involved is serious (drug smuggling, terrorism, child pornography), Alito’s analysis would find that there isn’t a search, and hence no need for a warrant. Scalia’s approach always forces the cops to get a warrant. That reassures me.

There are two issues that neither Alito nor Scalia deals with, although to her credit Justice Sonia Sotomayor tackles both: pervasive surveillance, and cloud computing. Pervasive surveillance involves the government’s increasing capabilities to deploy low-cost observation technology – everything from traffic cameras to facial recognition technology – and to store, index, and analyze the resulting torrent of data. Cloud computing involves the shift from maintaining information on devices we control to storing it on devices controlled by Google or Apple or Amazon. The former presents the mosaic theory that the D.C. Circuit endorsed in its opinion in Jones. The latter invites us to re-visit the third party doctrine, whereby one loses any reasonable expectation of privacy if one turns over data to someone else (unless that someone is, say, a priest or lawyer). One failing of the two major opinions in Jones is that they fail to provide any guide for how the Court thinks about these issues – other than to hope mightily that Congress will take care of it for them.

I like Scalia’s hybrid with its magic places. What our privacy rights are when we venture outside the castle walls is a topic the court reserves for another day.

Cross-posted at Info/Law.

Bird’s tenure as chief justice ended in no small part because of her perceived absolutist stance on the death penalty. Just yesterday, the California Supreme Court reversed two capital convictions, finding that the trial court had improperly discharged a juror. Was this the work of Justice Liu, reviving the spirit of the Bird court? Well, no. The unanimous opinion was authored [...]]]> Goodwin Liu now has been an associate justice of the California Supreme Court for just over three months. And while he has not yet written a majority, dissenting, or concurring opinion, the (very) early returns suggest that the comparisons between Justice Liu and former Chief Justice Rose Bird that circulated at the time of his nomination to the court may have been a tad overstated.

Bird’s tenure as chief justice ended in no small part because of her perceived absolutist stance on the death penalty. Just yesterday, the California Supreme Court reversed two capital convictions, finding that the trial court had improperly discharged a juror. Was this the work of Justice Liu, reviving the spirit of the Bird court? Well, no. The unanimous opinion was authored by Justice Carol Corrigan, a Schwarzenegger appointee.

Meanwhile, just last month the court unanimously affirmed judgments of death in two separate cases. Though neither matter raised particularly complex issues, Justice Liu’s votes in these cases belie suggestions that, if placed in a position to review capital cases, he would “overrule death penalty convictions given any excuse, no matter how far-fetched.”

I happen to be on the editorial board of a T14 law school’s law review, so I have to cite check and read articles regularly. Of those I’ve read, I can’t think of a single one I thought would be useful to a practicing lawyer. The problem is, in my experience, most seem to advocate a fundamental change in philosophy to an area of law that diverges from what precedent would suggest. To me, this seems extremely unhelpful, because A. Lower courts aren’t likely to accept a grand new theory that seems to contradict what SCOTUS is saying, B. As far as I can [...]]]> A reader of my post about the N.Y. Times critique of legal education writes, in regard to the value of legal scholarship:

I happen to be on the editorial board of a T14 law school’s law review, so I have to cite check and read articles regularly. Of those I’ve read, I can’t think of a single one I thought would be useful to a practicing lawyer. The problem is, in my experience, most seem to advocate a fundamental change in philosophy to an area of law that diverges from what precedent would suggest. To me, this seems extremely unhelpful, because A. Lower courts aren’t likely to accept a grand new theory that seems to contradict what SCOTUS is saying, B. As far as I can tell SCOTUS seems not to usually change its theory either, and C. I don’t think most policymakers tend to read law review articles.

This leads me to be inclined to believe that most law review articles are useless. Are you saying my sample is unrepresentative of what’s out there? Or do I simply have a narrower definition of usefulness? Could you perhaps suggest some articles from the past year that in your mind represented useful legal scholarship?

This commentator assumes that usefulness is the equivalent of being accepted by the courts.  I quarrel with this view for many reasons:

1. An article can have an influence on cases, even if difficult to demonstrate.  Many courts don’t cite law review articles even when they rely on them.  Judges are notorious for not being particularly charitable with citations.  They often copy verbatim parts of briefs, for example.  If a law professor relies on a scholarly work even in a minor way, the professor will typically cite to the work.  Not so for courts.

2. Most articles will not change the law.  Changing the law is quite difficult, and if most law review articles changed the law, the law would be ridiculously more dynamic than it currently is.

3. No matter what discipline or area, most of the things produced are not going to be great.  Most inventions are flops.  Most books, songs, movies, TV shows, art works, architecture, or anything produced are quite forgettable and will likely be forgotten.  Great lasting works only come around infrequently, no matter what the field.

4. Most people are forgettable too.  In the law, most practitioners and judges have been forgotten.  Only a few great ones are remembered.  Of the judges who are most well-known, it is interesting that many were more theoretical in nature and had a major impact in changing the law — typically in ways law professors might change the law.  Think of Benjamin Cardozo, who wrote many articles and books and who radically changed the law.  Think of Felix Frankfurter, a former law professor.  Think of Louis Brandeis.  Think of Oliver Wendell Holmes.  These were jurists who were thinkers.  They were readers.  They were literary.  They were writers of scholarship too.  Maybe the forgettable practitioners and judges are the ones who ignore legal scholarship.

5. The commentator’s remarks that I quoted above seems to be only focused on judicial decisions.  Legal change can occur legislatively as well as through administrative rulemaking.  A lot of legal scholarship that critiques the law can have influence in legislatures or with agencies.

6. The commentator writes: “I don’t think most policymakers tend to read law review articles.”  I doubt that the Congresspeople themselves read law review articles, but staffers might take a look where relevant.  They won’t likely read them cover to cover, but if there’s an article on point that is helpful, I believe they will read it.

7. In my own experience, I’ve found that some of my more theoretical writing has been read frequently by practitioners.  My book Understanding Privacy, for example, is a theoretical account of what “privacy” means and why it is valuable.  I base my theory on the ideas of Ludwig Wittgenstein and John Dewey, and I cite to a lot of social science literature.  More than some of my more so-called “practical” work, it is this book where I receive the most positive feedback from practitioners.  In particular, a lot of Chief Privacy Officers in business, government, and education find the book useful.

8. Legal change can be slow.  Samuel Warren and Louis Brandeis’s The Right to Privacy was a very influential law review article, spawning four privacy torts in a majority of states.  They published their article in 1890.  Ten years later, the article would have been viewed as a failure.  No courts had adopted their theory.  No legislatures had adopted their theory.  Finally, in 1902, the N.Y. Court of Appeals rejected Warren and Brandeis’s theory.  At this point, the legal scholarship naysayers would be saying that Warren and Brandeis’s article would have been a total flop.  A dozen years had passed, and a court declined to change its precedent based on the article.  But then the N.Y. legislature stepped in and recognized a privacy tort based on the article.  And slowly, other courts and legislatures followed.  This process was slow.  It took about 50 years to unfold.

I recently had the opportunity to chat with Lior about the book. 

Daniel J. Solove (DJS): What drew you to the topic of exclusion?

Lior Jacob Strahilevitz (LJS):  It was an observation I had as a college sophomore.  I [...]]]> Lior Strahilevitz, Deputy Dean and Sidley Austin Professor of Law at the University of Chicago Law School recently published a brilliant new book, Information and Exclusion (Yale University Press 2011).  Like all of Lior’s work, the book is creative, thought-provoking, and compelling.  There are books that make strong and convincing arguments, and these are good, but then there are the rare books that not only do this, but make you think in a different way.  That’s what Lior achieves in his book, and that’s quite an achievement.

I recently had the opportunity to chat with Lior about the book. 

Daniel J. Solove (DJS): What drew you to the topic of exclusion?

Lior Jacob Strahilevitz (LJS):  It was an observation I had as a college sophomore.  I lived in the student housing cooperatives at Berkeley.  Some of my friends who lived in the cooperatives told me they felt morally superior to people in the fraternities and sororities because the Greek system had an elaborate, exclusionary rush and pledge process.  The cooperatives, by contrast, were open to any student.  But as I visited friends who lived in the various cooperative houses, the individual houses often seemed no more heterogeneous than the fraternities and sororities.  That made me curious.  It was obvious that the pledging and rushing process – formal exclusion – created homogeneity in the Greek system.  But what was it that was creating all this apparent homogeneity in a cooperative system that was open to everyone?  That question was one I kept wondering about as a law student, lawyer, and professor.

That’s why page 1 of the book begins with a discussion of exclusion in the Greek system.  I start with really accounts of the rush process by sociologists who studied the proxies that fraternity members used to evaluate pledges in the 1950s (attire, diction, grooming, firm handshakes, etc.)  The book then brings us to the modern era, when fraternity members peruse Facebook profiles that provide far more granular information about the characteristics of each pledge.  Proxies still matter, but the proxies are different, and those differences alter the ways in which rushing students behave and fraternities exclude.

DJS: What is the central idea in your book?

LJS: The core idea is that asymmetric information largely determines which mechanisms are used to exclude people from particular groups, collective resources, and services.  When the person who controls a resource knows a lot about the people who wish to use it, she will make decisions about who gets to access it.  Where she lacks that information, she’ll develop a strategy that forces particular groups to exclude themselves from the resource, based on some criteria.  There’s a historical ebb and flow between these two sorts of strategies for exclusion, but we seem to be in a critical transition period right now thanks to the decline of practical obscurity in the information age.

That sounds really abstract, so let me illustrate the idea with a historical example: eighteenth century British welfare.  The population was extremely immobile.  Poor people often were born, lived, and died in a single county.  The local charities that dispensed welfare knew who was a genuine hard-luck case and who was a lout.  They could give aid to the former while refusing the latter.  Then, in the nineteenth century, rapid urbanization occurred.  Poor people suddenly became mobile, and every local dispenser of charity began encountering scores of people he had never seen before.  He could no longer separate out the deserving and the undeserving poor easily.  So dispensers of public charity in England switched to a “workhouse” model.  You were only eligible for government welfare if you live in a workhouse.  Life in the workhouses was crummy.  They were bleak.  They were crowded.  There was no booze allowed. And they put people to work if they wished to be fed.  Unable to sort effectively among different kinds of welfare-recipients, the British develop a test that the “deserving poor” were much more likely to pass.  Instead of excluding the louts from welfare, they forced the louts to exclude themselves.

Today, we’re increasingly coming to resemble eighteenth century Britain, not nineteenth century Britain.  Look at what India is doing with biometrics and databases right now.  They are using modern technologies to “turn back the clock” to the sorts of relationships between the state and the citizen that we saw in eighteenth century Britain.  And they’re correctly invoking notions of meritocracy, fairness, and efficiency to do it.

As you’ve written, there are “digital dossiers” on all of us, which are made increasingly available at very low costs.  Facial recognition software, combined with massive public and private photo databases are eroding privacy in public spaces.  DNA databases are growing.  Behavioral profiling and data mining are exploding.  Location-tracking through GPS-enabled smartphones is becoming commonplace.  So the dynamics of exclusion are shifting once again. . . away from strategies that bundle access to collective resources with disamenities that are unpalatable to members of the group targeted for exclusion.  The government and the private sector have lots of information about individuals once again, so they can sort people themselves rather than trying to induce people to self-assess and self-sort.  My book explores what’s at stake with this shift from one form of exclusion to another.  You can achieve homogeneity with either strategy, but the different strategies produce very different sets of costs and benefits for the people being excluded, the people being included, and the people doing the excluding.

DJS: What do you consider to be the most surprising or controversial implication of your theories in the book?

The most controversial idea is that the government ought to use information policy to affect private actors’ choices about whether to exclude and how to exclude.  It’s uncontroversial that the government can ban private discrimination by employers or landlords.  But we have to realize that the government can affect the incidence of discrimination through more creative tools as well.  Where the government sees employers engaged in statistical discrimination, it can supplement traditional law enforcement tools with “searchlight strategies” to publicize previously private information.  To take a salient example, we know that employers seeking to hire entry-level blue collar workers discriminate against African American males in part because they overestimate the propensity of African American males to have criminal records.  Because of this overestimation, publishing complete information about criminal histories for everyone would likely reduce the incidence of statistical discrimination, increasing the employment prospects of African American males as a group.

I extend this searchlight approach to develop a bunch of proposals for how the state can use information policy to further antidiscrimination interests.  For example, the book proposes promoting the use of Electronic Medical Records as a strategy for reducing physicians’ tendency to prescribe narcotics in a racially discriminatory way, and subsidizing Yelp and Angie’s List to make people less reliant on ethnic preferences in selecting contractors.  These strategies can supplement orthodox tools of antidiscrimination law like public enforcement and private causes of action.

Of course, this approach to combating discrimination raises all kinds of thorny questions: Should the government suppress information when doing so might reduce undesirable forms of statistical discrimination?  Once information is released, can it be revoked if its disclosure surpisingly backfires?  What should be done to weed out false information or customer feedback that are themselves influenced by racial animus?  I talk about the answers to these important questions in the book.

The book also considers whether racism prompts people to move to residential communities built around mandatory membership golf communities.  That’s another controversial hypothesis, and its part of a discussion of how real estate developers are really selecting populations of residents when they decide which amenities should be bundled into a new community. Yet those decisions about bundling go virtually unregulated by fair housing laws.

DJS: You have very nuanced views about privacy, but my sense is that you see a small role for privacy in a well-functioning society — not a large one.  Is that correct?  And you argue that we need to distinguish between instances where privacy is desirable and areas where it is counterproductive.  How are we to make these determinations?  Do you have a set of guiding factors or considerations?

I believe that privacy is an intermediate good.  It can be a means toward important ends, but is never an end unto itself.  Privacy can be undesirable when it results in racial discrimination, or cyber-bullying, or fraud, or sexual harassment in public spaces.  Privacy is worth fighting for when it facilitates human intimacy, or when it nurtures representative democracy, or when it prompts people to seek out medical attention, or when it fosters experimentation that leads to self-discovery.  A satisfying answer to the question, “What’s the benefit of more privacy?” has to be something beyond “more privacy.”  Advocates and scholars sometimes fail to appreciate this essential aspect of information privacy.

To take an example that’s particularly near and dear to my scholarly agenda, can you imagine what life would be like on our urban and suburban roadways if cars didn’t have license plates?  There’d be more “privacy.”  There’d also be a gigantic increase in unlawful, aggressive, and antisocial driving.  We’d have many more roadway accidents and fatalities.  Privacy advocates have helped kill off red-light cameras, automated ticketing for speeding based on EZ Pass or toll booth data, and other traffic safety innovations.  What important interests are being served by privacy in this context?  In the context of red-light cameras with proper data minimization controls, I don’t see any legitimate interest that privacy is serving, but I see a lot of blood on the pavement if privacy interests kill off the technology’s use. There is also the boy crying wolf problem.  Every time privacy is invoked to defend trivial interests, it weakens the force of privacy arguments in contexts where privacy protections do enormous good.

Thanks, Lior, for answering my questions.  Lior’s book is Information and Exclusion (Yale University Press 2011).  This is definitely a book for the must-read list.

I am interested in how we should think about treaties.  More specifically, I am interested in different ways we might think about treaties, and why different ways might be appropriate in different circumstances.  At one extreme we might think of treaties as establishing sacred duties, as being based on oaths with deep religious implications.  (Jeremy Waldon has a very interesting discussion of the history of this idea in his recent Charles E. Test lectures, “A Religious View of the Foundations of International Law”.)  I think that there’s a case to be made that supposed principle of international law (or of natural law, depending on one’s account), pacta sunt servanda, depends on [...]]]> (Thanks to Danielle and the Co-Op crowed for letting me stick around a bit longer.)

I am interested in how we should think about treaties.  More specifically, I am interested in different ways we might think about treaties, and why different ways might be appropriate in different circumstances.  At one extreme we might think of treaties as establishing sacred duties, as being based on oaths with deep religious implications.  (Jeremy Waldon has a very interesting discussion of the history of this idea in his recent Charles E. Test lectures, “A Religious View of the Foundations of International Law”.)  I think that there’s a case to be made that supposed principle of international law (or of natural law, depending on one’s account), pacta sunt servanda, depends on this understanding, though I won’t try to make that case here.  (If so, this would be interesting in light of fact that Hans Kelsen at one point held, I believe, pacta sunt servanda to be the “basic norm” of international law, though he later abandoned this.)

At the other extreme we might think of treaties as being similar to contracts as understood by proponents of an economic analysis of law.  This doesn’t seem plausible for some treaties, such as human rights treaties, but is not implausible in all cases, I’d argue.  Something like this seems especially plausible in the cases of treaties relating to economic activity of the sort where something like expectation damages could be applied.  Here’s an example of the sort of thing I have in mind, though others might work even better.  In the “Beef Hormone Controversy”, the WTO Dispute Settlement Body found, and the appellate body upheld, that the EU was in violation of its WTO obligations in banning the sale of U.S. and Canadian beef that had been treated with certain hormones.  The DSB authorized retaliatory tariffs against the EU, and these have been in place for some time.  We might think of these tariffs as a punishment, meant to force the EU to live up to its moral obligations under the WTO treaties, but I think it might be more fruitful to think of them as damages that the EU has decided to pay rather than fulfill its contractual obligations.  If the damages fully compensate the U.S. and Canada, then it is at least arguable that the E.U. has discharged its obligations under the treaty.  (I should note that when I suggested this line of thought to David Unterhalter, then-chairman of the WTO appellate body, at a Salzburg Seminar session, he did not like it at all, though some of the junior WTO lawyers, as well as the director of economic research for the WTO, liked it more.  Unterhalter’s objections, which I won’t go in to here, had some force, but didn’t seem to me to be decisive.)

Which view of treaties is right?  I’d argue that that is the wrong question, and that we should ask instead when and why a particular approach is right.  In particular, it seems to me that the traditional view has the most force when there is no independent body that can adjudicate disputes and try to enforce remedies, and that approaches that are closer to contract law become more appropriate when we have independent bodies that can determine damages and administer the enforcement of claims.  There are more and more such bodies in international law, so we should expect to see the way we think of treaties change, at least for some treaties.  There is a general moral we might draw from this line of thought, namely, that it will often be a mistake to ask about “the nature” of treaties (or of contracts, or of law in general) in the abstract, and that we should instead look carefully at how these ideas function in particular instances and locations.  (This line of thought has some similarity, I think, with the approach Fred Schauer describes in his paper, “The Nature of the Nature of Law”, and in a more distant way, is relevant to Schauer’s re-assessment of certain aspects of John Austin’s approach to law.)

Whatsoever is under the whole heaven is Mine. – Job 41:11 (Authorized Version)

It’s said that the Lisbon earthquake and tsunami of 1755 had a profound effect on the thought of Voltaire, Rousseau, Kant, and others. Having occurred so far from Western intellectual centers, the 2004 Southeast Asian tsunami and the 2011 Japan tsunami are unlikely to be so influential. The first fits easily into the discourse of “underdevelopment,” and evokes our pity. The second occurred in a country more “like us” in many ways, but was soon overshadowed by just one of its effects, a so-called nuclear “catastrophe” that fits easily into the discourse of energy politics and money, and that resonates with our bi-polar attitude toward technology.

While I can’t [...]]]>
תַּחַת כָּל-הַשָּׁמַיִם לִי-הוּא
– Iyov 41:3 (Tanakh)

Whatsoever is under the whole heaven is Mine.
– Job 41:11 (Authorized Version)

It’s said that the Lisbon earthquake and tsunami of 1755 had a profound effect on the thought of Voltaire, Rousseau, Kant, and others. Having occurred so far from Western intellectual centers, the 2004 Southeast Asian tsunami and the 2011 Japan tsunami are unlikely to be so influential. The first fits easily into the discourse of “underdevelopment,” and evokes our pity. The second occurred in a country more “like us” in many ways, but was soon overshadowed by just one of its effects, a so-called nuclear “catastrophe” that fits easily into the discourse of energy politics and money, and that resonates with our bi-polar attitude toward technology.

While I can’t speak to the 2004 tsunami, I did spend time earlier this month investigating the impact of the Japanese tragedy first-hand. Obviously, the effects of seeing one erased town or neighborhood after another, in three dimensions and 360 degrees, and of smelling them, and of sneezing or choking on their dust, were more than intellectual. But an unavoidable by-product of the experience is that it’s hard not to think some of our cherished intellectual positions are vain, self-serving and simply wrong. And among them, our notions of property.

I.

My first chance after the quake to visit the northern prefectures, just like that of most other people here, was during the “Golden Week” holiday period from late April to early May. Traditionally this is the peak time for recreational travel, both domestically and internationally. The shinkansen high-speed train line from Tokyo to Miyagi, Iwate and Aomori had suffered structural damage in more than 1,100 locations during the earthquake and aftershocks. Despite an initial estimated repair time of two years, it re-opened on April 30. The main highways in the region were also re-opened to civilian traffic, with greatly-reduced tolls. Tens of thousands of Japanese used their vacations to volunteer in the clean-up from the tsunami. Local authorities were overwhelmed, and wound up turning some away.

My wife and I were not quite so selfless: our priority was to see our family in Morioka, inland capital of Iwate Prefecture. This city of 300,000 had suffered some of the worst shaking anywhere in the region, but emerged mostly intact. Fortunately, too, the earthquake hadn’t woken up the active volcano that towers over the region. The damage inland was more indirect: power outages for several days, gasoline and food shortages for weeks, and a month of isolation from the country’s elaborate door-to-door delivery infrastructure, on which most Japanese households rely.

It was clear that neither staying in Morioka nor even visiting just one or two of the coastal towns most frequently mentioned in the media – the usual drill for politicians and visiting foreign dignitaries – could give an adequate idea of what had happened. One reason is that the affected coastline on the main island of Honshu was at least 500 km in length (though in light of its irregular shape, this is certainly an underestimate). Another is that the character of the coast changes radically as one travels from the Chiba peninsula in the south (which, roughly speaking, plays the role of Long Island to Tokyo’s New York City, though the NY metro population is much smaller) up to Aomori Prefecture in the north. The southern portion, including Chiba, Ibaraki, Fukushima and about 2/3 of Miyagi Prefecture, is a smooth plain. From roughly the city of Onagawa in northern Miyagi, the coast northward through Iwate and Aomori Prefectures has a deeply scalloped form known as ria, from the Spanish word for ‘river’. Although usually caused by the submergence of river valleys, in this case an undersea mountain range is being pushed upward by a subducted plate – the one that caused the March 11 quake. When a tsunami hits a ria area, it cumulates to terrible heights, but its inland progress is usually impeded by mountains. When it hits a flat area, it stays lower, but can penetrate several kilometers farther.

My wife and I spent one day visiting coastal cities and towns in Iwate, and another visiting sites in Miyagi. All told, we drove along roughly 120-150 kilometers of coast, in both the rias and the coastal plain. Eight weeks had elapsed since the tsunami, so we knew that most of what we would see would have already been highly processed by the Jietai, Japan’s Self-Defense Force (who deserve a lot more credit than they get for the tough job they’re doing). As it turns out, even those places were disturbing.

In many of the rias, the roads were open, the debris cleared down to the bare soil, and the carcasses of automobiles neatly arranged in rows. But you could still see where the ocean had bitten chunks from the walk to the seawall, whose railings were twisted or fallen away, as in Oomoto (Iwaizumi City, Iwate). In other fishing towns, giant tsunami gates still stood, with nothing left to protect behind them.

Some, though, remained terrifying despite the long lapse of time. At Ryoushichou, a village in Miyako City, Iwate, we first encountered debris scattered along the sides of the highway, high on a hill more than a kilometer from the sea. As we descended into the ria, the rubbish not only surrounded us, but was plastered against the trees and hillside retaining walls 10 or 20 meters above us. The tsunami here had been 18 meters (nearly 60 feet) high when it entered the settlement. Houses far up the hillside were destroyed. The wall of another hung flattened on a retaining wall, like a squashed bug. Close to my car window, some of the tangled mounds of refuse were planted with red flags, signifying that human remains had recently been found there. And directly in front of us, giant chunks of the roadway hung precariously over the sea.

In some denser urban areas, the signs were mixed, or even encouraging. Some familiar places in downtown Miyako, including a port-side food complex where not long ago we’d enjoyed sea-salt flavored soft ice cream, were now totally gone. Near the sea wall, we had to drive around a boat sticking into the traffic lane. But some downtown areas had been spared – it seemed that a meter or two of extra elevation had made all the difference. In others, we could see owners cleaning up even though the businesses on either side of them looked damaged beyond repair, their metal shutters banged and twisted. In downtown Kamaishi, looking up sidestreets we could see that the destruction penetrated for many blocks. Yet amid the gutted shops on one main road, someone had set out a maneki neko – a “beckoning cat,” with left arm raised to attract guests and customers.

Two days later we headed to Sendai, the capital of Miyagi. The city and environs are a sort of an oceanfront twin, or at least sibling, to California’s Santa Clara County, including a city of over 1 million, a world-class science and technology university, start-ups and agriculture. The wave didn’t reach downtown, but the surrounding plains were desolate. Thanks to help from American armed forces, the formerly inundated Sendai Airport was already functional, though the businesses around it remain broken and deserted. Many square kilometers of rice fields in the Wakabayashi-ku district lay covered with a gray, cracked, foul-smelling mud, as if the ocean had reasserted its claims on the land by licking it. Most paddies were strewn with cars and other debris; some even with boats . At least, that’s what we could see from the highway – four kilometers inland. Thanks to the highway berm, the tsunami hadn’t been able to penetrate farther; but on those sections where the road was supported by pylons, we saw damage on the landward side as well. Moments after we entered a road from the highway to the coast, police stopped us and made us turn back – access was still limited to government vehicles only.

After Wakabayashi-ku, we decided to visit the Onagawa nuclear reactor, which is located on the ocean side of a mountainous peninsula. News stories had claimed that it was undamaged by the tsunami, though post-earthquake visuals of it were rare in the media. Our route took us through downtown Ishinomaki, built on the southern delta plain of the Kitakami River, which also flows through Morioka. Driving east on a main road we noticed a dark gray line on buildings and garage doors – first appearing about 30 cm above the ground, it gradually rose to more than a meter. The mud was here too, with the smell of the ocean and worse. But the scene across the river was much more severe. Block after block of devastation, covered with the mud dust. Large and expensive-looking homes, several blocks deep from where we were driving, were mangled and shattered. Unlike what we’d seen in Miyako and Kamaishi, no signs of vitality. Just a few workers and some dazed older men riding bicycles, surveying what had been lost.

Our route east through Ishinomaki was meant to take us to the headpoint of a mountain ridge road called the “Cobalt Line,” from which we planned to take a spur road down to the reactor’s visitor center. We drove along the shore of a lagoon that had clearly overflowed its banks during the tsunami; at its eastern end was a sunken ferryboat, its windows half-submerged. But when we reached the entrance of the Cobalt Line, the police had blocked the road, and made us turn around. Only government vehicles were allowed on the road leading to the peninsula. At that moment, not far from where we idled, bodies were being buried in a mass grave – highly unusual anywhere, but especially in Japan where cremation is the norm.

Our car’s GPS navigation told us that the best way back to Morioka was to continue east to downtown Onagawa, instead of turning back the way we had come. But as we rounded the bend, we realized several things: that although we were still far up a hillside, we were entering a scene of destruction on a scale that we hadn’t yet seen; that we were the only civilian vehicle on the road; and that directly down the road ahead of us was the ocean, with nothing between us and it. We were too shaken up by the place, and too conscious that we could be interfering with the Jietai’s work, to pull over on the still-torn-up road and document the town more thoroughly.

Our first impression was that, of all the places we’d seen, this was the one that seemed as if it had been least touched during the preceding eight weeks. I later found home videos on YouTube that showed it had actually been much worse in late March — the Jietai had been working all along, but the destruction was simply extreme. All the more puzzling, then, that we’d never heard any news stories about Onagawa, even though the nearby towns of Ishinomaki, Minami-sanriku, Kesennuma and Rikuzentakata had attracted international attention. We confirmed this later with a Google search: aside from a couple of stories shortly after the tsunami, and a couple of stories obliquely mentioning some Chinese interns who had survived the town’s destruction, virtually all easily-searchable references to Onagawa for more than two months after March 14 were to generally reassuring stories about the condition of the nuclear plant, which is 7 km distant from downtown as the crow flies, and maybe double that by car. Also conspicuously absent from the media have been ground-level post-quake visuals of the plant. Our best conclusion was that the government has deliberately discouraged coverage of the destruction in Onagawa, in order not to arouse suspicions that something similarly awful had happened to the nuke that shares its name, and not to attract the curious who might want to see the reactor’s actual condition first-hand. (*)

(*) There are some press stories about the condition of Onagawa, but to find them you usually need to make a deliberate effort to search within a particular website. E.g. this Yomiuri story from mid-April came up buried deep within in the website’s search results. The May 21-22 visit to Japan of Chinese Premier Wen Jiabao (known as ‘On Kahou’ in Japanese) provided additional circumstantial evidence of information control about the town. It was well-publicized in China that Satoh Mitsuru-san, the owner of a fish processing factory in Onagawa, had led all 20 of the Chinese workers at the plant to safety from the approaching tsunami, before meeting his own death as he ran back down the hill to look after his family. The rare nuke-free appearances of the city’s name in Japanese media were often in this Chinese and human-interest context. The national Mainichi Shimbun and the Sendai-based local paper Kahoku Shimpo reported (as recently as May 12 and May 18, respectively) that Wen wanted to visit Onagawa to honor Satoh-san’s memory and kindness. In the event, Wen merely commented on Satoh-san while being interviewed and photographed far to the south in Natori, near Sendai airport. Evidently either the Japanese government blocked him from visiting Onagawa, or he complied with a request not to visit there; or else if he did visit, it was under the rather anomalous condition of a complete press blackout.

II.

Unfortunately, it is all too plausible that some political-mediatic agenda is affecting the clean-up. Japanese journalism operates under a “press club” system, which effectively means that to keep your access to government agencies and other organizations, you need to cooperate in burying information. It’s no accident that a story about TEPCO’s past actions that should have provoked outrage was released on the most invisible news day of a slow-news holiday period. Conversely, whether the government was acting on its own initiative or merely being responsive to the masukomi (as the “mass communications” estate is known here), government effort seemed to go first to the best-publicized cases. The most nightmarish places we visited were ones we’d never heard about before. And my sister-in-law, a government surgeon based in Tokyo, told us that when she was dispatched to visit communities up north, she was given a choice of only four or five of the most mediatic towns, even though she’d wanted to go to areas that were being less well-served. (*)

From its first day, the disaster has been deeply enmeshed with politics. The quake that struck in the afternoon of March 11 obliterated the morning’s news story about illegal campaign contributions to Prime Minister Kan. In the recent campaign for governor of Tokyo, the ultra-right-wing incumbent, Ishihara Shintaro (**) prefaced his run for an unprecedented fourth term by declaring that the quake was a tenbatsu – punishment from heaven – for Japan’s greed. The remark provoked an outcry, even prompting some reckless soul to deface a campaign poster (a crime here), scrawling “tenbatsu” across Ishihara’s forehead like the mark of Cain.

In an unusually perceptive article in the April 2011 Le Monde Diplomatique, American scholar Harry Harootunian points out that Ishihara’s remark was a shrewd way to blame average Japanese for their moral failings, while exonerating the political class from blame for the disaster. Visiting the sites, it’s obvious that politicians must shoulder a lot of the blame. The village of Tarou, Miyako City, had spent hundreds of millions of dollars on building tsunami walls. I stood on the innermost of them, and looked out to the ocean, quite distant. Behind me, crows were picking over the garbage-strewn ruins of a commercial center. As we drove out, we passed by several piles of refuse with red flags planted in them, to show that they contained human remains. Then we passed the monument to the tsunami of Showa 8 (1933), a sight replicated in many towns and cities along the Iwate coast. When it was erected, the local government had directed that no one should live closer to the sea than this monument. But as the years went by, the village residents put their faith in a more expensive wall — which broke on March 11. (The ocean simply overflowed the older, inner ones.) Multi-hundred-million-dollar seawalls, and the creation of business centers in historically inundated areas, don’t happen solely through the choices of private citizens.

Nonetheless, private citizens are also complicating the situation. In some towns, they’re rushing to set up temporary housing on the same ground from which their original homes were washed away – trying to create a fait accompli that will be hard to reverse. As a bengoshi (Japanese lawyer) explained to me, a problem is that many landowners feel they have an absolute entitlement to their land. The roots of this feeling lie not in any philosophy of natural right, but Meiji expediency. When imperial rule was restored in the mid-19th Century after more than 260 years of the Tokugawa shogunate (military government), the new emperor found himself short of funds. In exchange for the right to collect taxes, he surrendered imperial title to all the lands of Japan, and allowed private ownership. That still left the land concentrated in the hands of a wealthy landlord class, but the US Occupying Forces took things a step further: they initiated a land reform program that distributed almost 40% of all arable land to the tenant farmers who were working it.

It doesn’t help that the law of eminent domain isn’t as strong in Japan as in some other countries. There is a law on the books that allows governments to appropriate land for a public purpose in exchange for compensation (the Tochishuuyou-hou, Land Expropriation Act, which is authorized by Art. 29, para. 3 of the Japanese Constitution). But as years of litigation involving airports in Narita and Shizuoka, among other places, have demonstrated, the law is difficult to invoke and cumbersome to enforce. As far as I can tell, it apparently isn’t even being discussed in the present context. A proposal recently announced by the Kan administration hints that a new special law might be enacted, under which the national government would purchase land from individuals. According to press reports, localities would interact directly with the central government in effecting this scheme, by-passing the prefectural governments. If this comes to pass, no doubt it will generate inter-governmental tension and resentment for years to come.

Private citizens aren’t motivated only by a feeling of entitlement, but by practical – and social – necessity. Even if they lost their homes in the tsunami, they still need to earn a living. During the Golden Week holidays, the government broadcaster NHK presented many short documentaries abut how people in Touhoku were coping. One profiled two men in Kamaishi, a sake distributor and the owner of a fishing boat maintenance shop. The distributor pointed out that he doesn’t have any business if no one needs him. So he spends his days helping his neighbors to re-open their restaurants, before returning at night to the evacuation center where he currently lives. The maintenance shop re-opened even though no-one could pay; if fishermen can’t fish they can’t earn the money to pay the shop, either. One of the shop’s first jobs was servicing a giant crane that was used to lift boats up from the land onto which they’d been carried by the wave, and to re-deposit them in the harbor. Asked why he does it for no pay, the owner admitted self-interest plays a part, but added “Yo no tame, hito no tame – for society and for people. Otherwise the people in Kamaishi won’t have sun.” Whether these businesses should remain for the long-term in their pre-tsunami locations merits a lot of thought and debate. But the case for their re-opening in the short-term seems a strong one.

How should Japan think about the long-term? The reactive mediocrity that characterizes most Japanese politicians these days suggests that those in power, at least, simply might not. There’s a good chance the country will muddle through with an accretion of short-term measures designed to boost “productivity” and “growth,” and intended to take the country back to where it was before. Seen in this light, the Kan government’s attempts to suppress debate about nuclear power appear as nostalgic as they are frantic. But one thing they are not is benign. Even if the government sincerely believes, as many people believed before March 11, that nuclear power is necessary for Japan’s future growth, the Kan cabinet evidently also believes that anti-democratic means are justified to achieve that end. And that’s just to put the most generous spin on their actions.

(*) She’d been especially interested in visiting settlements on small coastal islands that hadn’t received any aid. From what she was told, the government’s operating assumption seems to be that they were completely overwhelmed in the tsunami, with all souls lost, and hence not worth the investment of resources. She also told us that she and many of her medical colleagues believe the dead/missing numbers to be greatly underestimated, perhaps by a factor of between two and four (i.e., up to 100,000 dead). Since official records often were lost, official estimates tend to be based on missing person reports and on bodies actually recovered. Based on personal observations of another healthcare professional in our family (who survived the tsunami in Ofunato, Iwate), only a small fraction of bodies floating in the water right after the tsunami were subsequently washed up on the beach. In many cases where all members of a family were lost to the sea, no one would have filed a report. Police won’t accept a missing persons report if the person filing lacks a close-enough relationship to the missing; this rules out filings from mere acquaintances, even though they might be the only ones to notice someone’s absence.

(**) A former actor, novelist and dandy, Ishihara is best known in the West as the co-author with Sony’s then chairman, Morita Akio, of The Japan That Can Say No (1989). Since his stiffest opposition in 2011 was a TV comedian and accused child molester who had ditched his previous job as governor of rural Miyazaki Prefecture mid-term to run for this post, many voters gritted their teeth and re-elected Ishihara anyway.

III.

The long term deserves to be re-thought more radically, and not just in Japan. The Lisbon earthquake moved many to question whether there could really be a kind and merciful divinity. Pace Ishihara, fewer people today, and almost none in Japan, are prone to such theological speculations, and even if they were, the Twentieth Century has already provided ample food for thought. But to see the condition of the coast, and to realize that the ocean rose up and covered the land everywhere, over hundreds of kilometers, more or less at the same time, is to visualize an event on a Biblical scale — or actually, on a far vaster one. The parting of the Red Sea, which the tsunami so darkly inverted, covered a stretch of just a few miles.

At a minimum, the experience of the March events should move us to realize that our relationship to this planet might be different from what we have grown up thinking it is: something along the lines of what a recent CNN promo calls “the battle to manage the earth”s resources.” Just as to see, mile after mile, the jumbled mountains of shattered houses, toppled utility poles, upended vehicles, ownerless clothes, toys and much else, all ripped out of their daily context and mangled into a new one that screams out for meaning, should make us think differently about all the things we make, we sell, and we think we need for our well-being.

One practical result should be a rehabilitation of the precautionary principle. Instead of reifying the “expectation values” of disasters, discounting them to insignificance with our estimates of their low probabilities, we should imagine and prepare for the worst, as best we reasonably can. Fortunately, support is growing for this in Japan, though it remains heretical in U.S. policy circles.

Some in Europe have developed this idea further, into an intellectual movement known as  écologie politique. In this view, precaution is couched within a larger notion of human responsibility for our actions on earth, including for our production of simply too much stuff. Building outward from this idea, and drawing on the writings of Hans Jonas, Jürgen Habermas, André Gorz, Ivan Illich, Emmanuel Levinas and others,écologie politique has developed not just an environmental ethic, but a a social and political one, based on responsibility, autonomy, solidarity and participative democracy. While the meaning of each of these terms is contestable, I’m inclined to think this might be a useful utopia to aim for.

Écologie politique, though, is too bloodless and rational to epitomize the deeper lessons of the March events. A more mythic line of thought is suggested by a passage in a recent book by Johns Hopkins political scientist Jane Bennett. Observing that politics is “often construed as an exclusively human domain,” she proposes that we consider instead “the agentic contributions of nonhuman forces … in an attempt to counter the narcissistic reflex of human language and thought. We need to cultivate a bit of anthropomorphism – the idea that human agency has some echoes in nonhuman nature – to counter the narcissism of humans in charge of the world.” Unfortunately, she doesn’t make any serious attempt to explore the practical implications of this point of view. But these few words, at least, resonated with what I’d seen.

In reflecting on anthropomorphism, it struck me that in the English-speaking world we often express impersonal agency through the image of hands. Adam Smith’s “invisible hand” may be the example that first comes to mind. John Locke provides another. Our notions of property rely on a famous passage:

Though the Earth, and all inferior Creatures, be common to all Men, yet every Man has a Property in his own Person. This no Body has any right to but himself. The Labour of his Body, and the Work of his Hands, we may say, are properly his. Whatsoever then that he removes out of the State that Nature hath provided, and left it in, he hath mixed his Labour with, and joyned to it something that is his own, and thereby makes it his Property.[The Second Treatise, § 27 (emphasis on original)]

These are literal, not figurative hands. But they’re not the only important hands in Locke. A bit later he says:

Though the Water running in the Fountain be every ones, yet who can doubt, but that in the Pitcher is his only that drew it out? His labour hath taken it out of the hands of Nature, where it was common, and belong’d equally to all her Children, and hath thereby appropriated it to himself. [Id., § 29 (emphasis in original)]

It wouldn’t be surprising if Anglo-Saxon philosophy were shaped, in part, by the disasters within its experience. Despite their destructive power, the typical calamities – tempests, tornadoes, earthquake and fire – tend to leave their debris more or less in situ, aside from the occasional cow or truck plopped down by a tornado far from where it had stood. What we own may of course disappear in smoke; yet most fires result from human agency, and human action, too, can often arrest a fire’s progress, even when it’s already touched our possessions. But few philosophers on our bookshelves ever directly witnessed a tsunami or its effects. A few days after visiting Onagawa, I found this video taken when the 18-meter tsunami hit it. During its final sequence, much of the town can be seen being pulled back into the ocean, sucked through the two large, red buildings near the waterfront (which are also visible to the right of center in the photo of the road to Onagawa, above; the road we were on goes right between them). Watching this, I could only think how ridiculous it is for us to believe that we can take anything from the hands of Nature. Those hands can take back anything, at any time – and we are always within their reach. A system of laws, an economy, and a society based on that truth, and on the understanding that we’re only borrowing even what we own, seem long overdue.

Pictures: all photos by author, except for tsunami frame captures: Hara Yoshinori. Iwate-ken photos 2011/05/04; Miyagi-ken photos 2011/05/06. To view full size, please click on picture, and then click on it again after the page reloads.

“[I]t was once upon a time ruled in the Supreme Court, in an opinion delivered by the late Chief Justice, that the enactors of laws could not give interpretation to their own enactment by what was said in-debate in the legislative body; that the law was to be construed by its own words, and not by the explanation which gentlemen make as to their purpose in introducing or supporting a bill.”

I should add that Bingham said this (or something very similar) several [...]]]> Over the next several months, I am probably going to put up a fair number of “here’s-something-interesting-that-John-Bingham said” posts.  For instance, in a debate over a statute in 1869, Bingham rejected the interpretation offered by a colleague of the provision under consideration with this observation:

“[I]t was once upon a time ruled in the Supreme Court, in an opinion delivered by the late Chief Justice, that the enactors of laws could not give interpretation to their own enactment by what was said in-debate in the legislative body; that the law was to be construed by its own words, and not by the explanation which gentlemen make as to their purpose in introducing or supporting a bill.”

I should add that Bingham said this (or something very similar) several times over his years in Congress, so I think it’s fair to say that this was a principled position rather than a debating point trotted out to obtain a result.

My contribution addresses the influence of law and economics on the sub-field of law and accounting, which I suggest takes the form of “two steps forward one step back.”  You can read a draft of my chapter (comments welcome!), available free here, accompanied by the following abstract:

Theory can have profound effects on practice, [...]]]> The hottest book of the century, on corporate law, is in production, thanks to editors Brett McDonnell and Claire Hill, both of Minnesota. As part of a series investigating the economics of particular legal subjects, overseen by Richard Posner and Francesco Perisi, this Research Handbook on the Economics of Corporate Law, promises a comprehensive canvass of the broadest definition of this field of law as it has been structured by economic theories over the past forty years.

My contribution addresses the influence of law and economics on the sub-field of law and accounting, which I suggest takes the form of “two steps forward one step back.”  You can read a draft of my chapter (comments welcome!), available free here, accompanied by the following abstract:

Theory can have profound effects on practice, some intended and desirable, others unintended and undesirable. That’s the story of the influence the field of law and economics has had on the domain of law and accounting. That influence comes primarily from agency theory and modern finance theory, specifically through the efficient capital market hypothesis and capital asset pricing model. Those theories have forged considerable change in federal securities regulation, accounting standard setting, state corporation law, and financial auditing. Affected areas include the nature of disclosure, the measure of financial concepts, the limits of shareholder protection, and the scope of auditor duty.

Analysis reveals how agency theory and finance theory often but not always point to the same policy implications; it reveals how finance theory’s assumptions and limitations are often but not always respected in policy development. As a result, while these theories sometimes produced policy changes that were both intended and desirable, some policy changes were both unintended and undesirable while others were intended but undesirable.  Examination stresses the power of ideas and how they are used and cautions creators and users of ideas to take care to appreciate the limits of theory when shaping practice. That’s vital since the effects of law and economics on law and accounting remain debated in many contexts.

Other contributions to the book similarly available in draft form are by Matt Bodie (St. Louis), David Walker (BU) and Charles Whitehead (Cornell).  The following scholars are also contributing chapters: Bobby Ahdieh (Emory), Steve Bainbridge (UCLA), Margaret Blair (Vandy), Rob Daines (Stanford), Steve Davidoff (Ohio State), Jill Fisch (Penn), Tamar Frankel (BU), Ron Gilson (Stanford/Columbia), Jeff Gordon (Columbia), Sean Griffith (Fordham), Don Langevoort (GT), Ian Lee (Toronto), Richard Painter (Minnesota), Frank Partnoy (SD), Gordon Smith (BYU), Randall Thomas (Vandy), and Bob Thompson (GT).

Volume 58, Issue 3 (February 2011)

Articles

Comments

This article is squarely opposed to views advanced by Eric Posner, Adrian Vermeule, and others that transitional justice is just a special case of “Ordinary Justice.” Paying special attention to debates about reparations, this article argues that transitional justice is extraordinary, reflecting the source and nature of atrocities perpetrated under an abusive regime, and focused on the challenges and goals that define transitions to democracy. In particular, this Article argues that transitional [...]]]> My colleague David Gray has a terrific piece Extraordinary Justice, which is now out in volume 62 of the Alabama Law Review.  Luckily, Professor Gray will be coming back as a guest blogger next month, more on that soon.  Here is the article’s abstract:

This article is squarely opposed to views advanced by Eric Posner, Adrian Vermeule, and others that transitional justice is just a special case of “Ordinary Justice.” Paying special attention to debates about reparations, this article argues that transitional justice is extraordinary, reflecting the source and nature of atrocities perpetrated under an abusive regime, and focused on the challenges and goals that define transitions to democracy. In particular, this Article argues that transitional justice is not profane, preservative, and retrospective, but, rather, Janus-faced, liminal, and transformative.

The literature on reparations in transitions is divided between critics who regard reparations as quasi-tort awards that violate basic commitments to individual fairness and those who appeal to collective responsibility, atonement, or reconciliation as special transitional justice theories. These debates have not reached a persuasive resolution because both camps fail to recognize and take full normative account of the extraordinary conditions in abusive regimes. What distinguishes pre-transitional abuses from ordinary crime is the role played by an abusive paradigm. An abusive paradigm is a combination of social norms, law, and institutional practice that utilizes a bi-polar logic to justify targeted violence. Abusive paradigms gain authority after the collapse of dynamic stability – the overlapping network of associations and oppositions that restricts violence and violent impulses in stable regimes. Once dominant, abusive paradigms rationalize and enforce a pathological status inequality that excludes those in an oppressed group from cross-secting identities, allowing abusers to regard them as appropriate targets for exclusion and abuse.

The primary task in transition is to seize the liminal moment between an abusive past and a future committed to human rights, democracy, and the rule of law in order to achieve some level of parity between victims and abusers, in part by creating or reconstituting the network of overlapping identities reflective of a dynamically stable society. Reparations and other transitional justice tools, liberated from the constraints of ordinary justice models, have a role to play in this extraordinary endeavor as sites for what Rosa Ehrenreich Brooks has called “effective norm change.” For example, symbolic reparations can provide official recognition of victims. Material reparations can provide former victims with meaningful access to spheres of public and private life once denied to them as a consequence of their status. Treating reparations as part of the extraordinary endeavor of social transformation also provides ready responses to common objections, including those prominent in debates about historical reparations.

I like to ask my Torts students what judges use as their authority for making common-law decisions.  The answer is a statute.  Every state has a law that either adopts the common law of England as of July 4, 1776 or the common law as developed when the state was a territory.  In this sense, all common-law is statutory interpretation.

You can make a related point about the Crown.  The source of Elizabeth II’s right to reign is the Act of Settlement (enacted in 1701), which was designed to resolve the succession after the childless Queen Anne died.  Among other things, it bars any Catholic from being [...]]]> Greetings from San Francisco and the AALS Conference!  I went to Alcatraz this morning.  Fortunately, I was allowed to leave.

I like to ask my Torts students what judges use as their authority for making common-law decisions.  The answer is a statute.  Every state has a law that either adopts the common law of England as of July 4, 1776 or the common law as developed when the state was a territory.  In this sense, all common-law is statutory interpretation.

You can make a related point about the Crown.  The source of Elizabeth II’s right to reign is the Act of Settlement (enacted in 1701), which was designed to resolve the succession after the childless Queen Anne died.  Among other things, it bars any Catholic from being the monarch.  Thus, the Queen is really nothing more than the head of an administrative agency with a special religious test attached and without the Chevron deference.

Organized by my colleague, Shubha Ghosh (and starring, among others, CoOp-erator Deven Desai), the goal is important:  How do we understand the intergenerational consequences of a legal regime—intellectual property—that is strongly determined by the present, but which has significant, but under-theorized, consequences for the future?  Fights about extending the term of the Mickey Mouse copyright—or any set of long-haul rights—don’t just affect my kids, but potentially their kids, their kids’ kids, and so on.  These are, in short, really fights about intergenerational equity.

I was only able to hear Michigan’s Peggy Radin (Property Longa, Vita Brevis) and Penn’s [...]]]> Yesterday, I had the all-too-brief pleasure of sitting in on the first couple of talks at the Wisconsin Law Review’s Symposium, Intergenerational Equity and Intellectual Property, here in Madison.

Organized by my colleague, Shubha Ghosh (and starring, among others, CoOp-erator Deven Desai), the goal is important:  How do we understand the intergenerational consequences of a legal regime—intellectual property—that is strongly determined by the present, but which has significant, but under-theorized, consequences for the future?  Fights about extending the term of the Mickey Mouse copyright—or any set of long-haul rights—don’t just affect my kids, but potentially their kids, their kids’ kids, and so on.  These are, in short, really fights about intergenerational equity.

I was only able to hear Michigan’s Peggy Radin (Property Longa, Vita Brevis) and Penn’s Matt Adler (Intergenerational Equity: Puzzles for Welfarists), but as expected, both provided awesome overviews of these sorts of problems.  As Radin pointed out, intellectual property (knowledge and information law generally) always involves two types of generational problems: One is temporal (my parents, me, my kids, their kids, etc.); the other is technological (my students barely know from videotape; I will never beat my daughter at any computer game).

Adler explained that it is easy (and perhaps imprudent) to dismiss the utility of welfare economics as a tool to make these sorts of decisions.  Certainly, we might say, Benthamite sums of utils could predict little for those not in existence (the future):  what would their utility function be, really?

Hope I die before you get old

Yet, he observed, robust and subtle analytic models and conceptual frameworks are being developed by the Sens and Arrows of the world, and they may (if the future is bright) help develop more equitable and effective decision tools for matters with a long temporal reach.

Those who follow state politics may find this all a bit ironic. Wisconsin’s recent election was a decisive victory for Republicans, who captured both houses of the legislature and the Governor’s office on a message which may strain the state’s motto, “Forward.”

If Republicans keep their word, tax breaks for the rich and elderly will replace education and healthcare spending for the young and unborn; fossil fuel (old tech) subsidies will replace biofuel (new tech) development; and the University may have to fight to continue its path-breaking stem-cell research, certainly a way to kill both jobs in the present and medical miracles in the future. This may be good for baby boomers, but isn’t likely so hot for their grandkids.

Hope you die before I get old

Wisconsin’s liberals are, of course, despondent over their loss of power and position.  Yet, forecasting and discounting long-term causation are among the things that make questions of intergenerational equity  so interesting and difficult.  I doubt Newt Gingrich thought in 1994 that the Contract with America would virtually assure Bill Clinton a second term, but today the former seems to have led to the latter.   Likewise, it is certain that neither Jeremy Bentham nor Pete Townshend could have predicted the duration of their memetic contributions to today’s discussions about tomorrow.  They probably just thought it was all rock and roll.

At issue are the clauses that companies now routinely include in standard form consumer contracts requiring disputes to be resolved in one-on-one arbitration. People give up the right to mount class claims in arbitration or court. Some unscrupulous companies use this as a way to cheat [...]]]> Power between enterprises and individuals hangs in the balance as the U.S. Supreme Court considers whether organizations can prevent people from banding together to challenge crooked practices that involve stealing small sums from large numbers of people. The judges and lawyers engaged in a riveting oral argument on the hot topic in a case pitting the mighty AT&T against a couple of California citizens. The case also pits the federal government against the states.

At issue are the clauses that companies now routinely include in standard form consumer contracts requiring disputes to be resolved in one-on-one arbitration. People give up the right to mount class claims in arbitration or court. Some unscrupulous companies use this as a way to cheat large numbers of people out of small amounts of money.

Companies following this route benefit from a strict federal law (the Federal Arbitration Act, or FAA) saying states cannot treat arbitration clauses differently than they treat other contracts. Courts nationally have struggled to evaluate whether these clauses pass standard contract tests of unconscionability. Yesterday’s case will determine whether those states are taking the right approach.

The principal theme of questioning probed how the Justices could tell if a state’s judges comply with the FAA’s mandate to treat arbitration clauses like other contracts. The company’s lawyer (Andrew Pincus) said it was simple: look at the general unconscionability doctrine applied to all contracts and compare it to the unconscionability doctrine applied to arbitration clauses.

In California, Pincus sees the general doctrine to ask whether: (1) at the time of contract formation, (2) based on how it affects parties to the contract, it (3) shocks the conscience. He says California courts use a special version applied to arbitration contracts looking at whether: (1) at the time dispute arises, (2) based on effects on third parties too, it (3) deviates too much from recognized litigation practice and its deterrent effects. Pincus called this an easy case.

The Justices did not appear to agree. All six who questioned him—Scalia, Sotomayor, Kagan, Ginsburg, Kennedy, and Breyer—pressed on versions of what test to apply. Pincus kept repeating variations of: compare the three prongs of California’s general doctrine to the three prongs as applied to arbitration clauses. But many problems appear and went unanswered.

Ginsburg suggested that the cases equally support the thesis that California is expanding unconscionability doctrine generally; she also hinted what everyone knew, that “shock the conscience” isn’t a test but a slogan and is not an element of today’s general unconscionability law. Kagan pointed out how law changes over time. Scalia and Kennedy stressed how contract law itself contains many principles that only apply to certain kinds of contracts and how general principles applied in particular settings look different.

(This raises a wonderful and long-vexing question: is there a single law of contracts or many different laws of contract?)

Pincus never gave a good answer about what test the Court should apply, other than reading and comparing cases. He also kept insisting that the comparison must be between the unconscionability doctrine applied to arbitration clauses and general unconscionability doctrine applicable to any contract—not just other dispute resolution clauses. He noted that the FAA endorses contract law principles that apply to “any contract” not sub-categories of contracts like “any dispute resolution contract.”

That did not seem to persuade Breyer, Ginsburg or Kagan though, who stressed that the FAA addresses hostility to arbitration compared to litigation and the California cases treat both the same. Though not offering much of a test, Pincus did toward the end hint at a test: whether the state law can be justified as valid under some “independent and adequate” ground showing that the state is not really being hostile to arbitration. That could prove to be quite a concession.

The consumer’s lawyer (Deepak Gupta) contended California law obeys the FAA’s equal footing mandate. Gupta disagrees that California applies its unconscionability doctrine in an impermissibly different way to arbitration clauses compared to any other contract. Roberts pressed on differences on when to test and whose interests to consider.

Gupta said the test is ex ante and addresses the parties to this contract, asking: when these customers signed, was the clause obnoxious, given that they would not know whether they would have a claim capable of economic enforcement only via collective action. The cases also focus on the parties to the contract, though certainly also considering the interests of non-parties. But that happens in other unconscionability cases too, such as those addressing whether exculpation provisions affect the “public interest.”

Alito probed the substance of the test, how fairness is evaluated (nicely eschewing talk of “shocking the conscience”). Why are these people better off with class rights than not, he asked. Gupta explained that, ex ante, they don’t know whether they’ll have claims to bring whose small-stakes requires collective action to warrant pursuing and for which the class action device and attorneys are essential.

But that, Alito challenged, is what makes this test of unconscionability different from general tests. What is unfair is the absence of this device to get private attorneys to take the case. Gupta countered that the ultimate problem with the clauses is how they functionally insulate companies from liability and cited kindred cases finding unconscionable clauses truncating statutes of limitation.

Sotomayor then returned to the theme of the day: what test the Court should use to distinguish legitimate from preempted state contract law approaches to arbitration clauses. Gupta stated a clear test, drawing on the Court’s approach to state law in general. The first principle is federal deference to state courts. That is subject to qualifying principles to catch obvious subterfuge based on an objective determination about the state’s faithfulness to the federal statute.

A relatively crude qualifying principle asks whether the state law is tantamount to a rule of non-enforceability of arbitration agreements. An example is a rule prohibiting jury trial waivers. That would be preempted. But that population of obvious subterfuge is extremely small. So the Court often will want to ask whether the state law is an obstacle to the federal statute (obstacle preemption).

Alito pressed on how that test enables drawing the line between, say, laws requiring using the rules of evidence in all cases from laws banning class action waivers. Alito discerned the difference as whether a law is consistent with the concept of arbitration or not: requiring evidence rules is not consistent with the idea of arbitration but insisting on the class mechanism is consistent with arbitration.

Gupta suggested that a better reconciliation uses obstacle preemption analysis to probe the state’s credibility: no state can credibly say using the rules of evidence is essential to fairness in the way all can say banning class waivers is essential to avoid allowing functional exculpation. Though both may be obstacles to arbitration in some sense, the two differ because evidence rules don’t systemically advantage either side but the class waiver clearly does. Any state claim that evidence rules are necessary for fairness in dispute resolution is not credible. The FAA protects contracts that choose a forum; it does not protect contracts that exculpate.

Many Justices seemed persuaded. Kagan probed whether the test would concentrate on a state’s purpose or its law’s effect and Gupta said both. Breyer wondered what evidence you use to apply the test about obstacles and Gupta said evidence about the state’s objective. Kennedy pushed on what the obstacle obstructs—what kind of arbitration does the federal statute envision that a state law could obstruct. Scalia said he was having trouble seeing how the class action waiver was tantamount to exculpation. Gupta stressed that the law’s prohibition applies only when the effect is to gut consumer protection that is functionally equivalent to exculpation.

In rebuttal, Pincus repeated what he said all morning about comparing the two batches of cases to see if they apply the same test. In doing so, he promised that you’ll see the test on class action waivers is not done ex ante because if you did it then you would say it is entirely fair (most claims expected then are individual, not class, and arbitration is better than court for them) and it looks to third parties who could be members of the class and that’s different from looking at the “public interest.”

The case is a close call and the outcome hard to predict. A dozen amicus briefs were filed on each side. Notably, five such briefs came from groups of law professors (in the fields of arbitration, contracts, class actions, and federal jurisdiction). Four of those briefs supported the consumers, states and class actions; only one, by a contracts group, supported the company. Yesterday’s argument touched on points raised by all groups.

Though hard to predict, the edge in yesterday’s oral argument went to Gupta. Based on what was said during the argument, I predict a 8-1 or 7-2 vote for the consumers and California, with Alito dissenting and Roberts a toss up. Thomas, who never speaks at oral argument, will vote for the consumers and state on federalism grounds, as he always does in FAA cases.

H. L. A. Hart’s The Concept of Law (1961) revitalized the field of jurisprudence in much the same way Rawls’ A Theory of Justice gave new impetus to political philosophy a decade after. A Concept of Law presented a new theory of law blending arguments from the philosophy of language and previous versions of positivism. (Rawls himself claimed to have gotten the idea of proceduralism from Hart. See A Theory of Justice, p. 48) But as is often the case, a theory needs an adversary to reveal its deepest implications. This adversary came first with Lon Fuller’s “Positivism and Fidelity to Law”, a rebuttal to Hart’s essay “Positivism and the Separation of Law and [...]]]> Joseph Raz, Between Authority and Interpretation (Oxford University Press, 2009), 424 pp.

H. L. A. Hart’s The Concept of Law (1961) revitalized the field of jurisprudence in much the same way Rawls’ A Theory of Justice gave new impetus to political philosophy a decade after. A Concept of Law presented a new theory of law blending arguments from the philosophy of language and previous versions of positivism. (Rawls himself claimed to have gotten the idea of proceduralism from Hart. See A Theory of Justice, p. 48) But as is often the case, a theory needs an adversary to reveal its deepest implications. This adversary came first with Lon Fuller’s “Positivism and Fidelity to Law”, a rebuttal to Hart’s essay “Positivism and the Separation of Law and Morals” (both 1958), and then with a series of essays by Ronald Dworkin published successively as Taking Rights Seriously (1977) and Law’s Empire (1986).

Hart’s positivism argues roughly that law and morality are at least separate in the sense that law cannot be reduced to morality. This means that we can study law scientifically without getting involved in disputes about substantive questions concerning the good. But since it is clear that in order to be obeyed, laws ought not merely to rely on force, laws require some source of authority which can only come through deliberation. Such deliberation, however, is need not be moral but can be thought of as merely normative. Hart holds that the authority of the law is provided by rules of recognition: these are secondary or meta-rules which specify the authority of law derived from particular social practices. A rule of recognition, for instance, is that, in the United States, laws are passed by congress according to a certain procedure. This specifies the way the law receives its authority but not what the law is (which is a matter of primary rules).

Much of the debate surrounding Hart’s theory has been about whether the rule of recognition could indeed do without moral support, that is, whether the separation of law and morality could be maintained. Dworkin, as Fuller had argued before him, contended that the rule of recognition could not be normative without also being moral because, in the case of legal interpretation for instance, the law will need to be extended to deal with difficult cases (a point Hart vacillated on). Extending the law can only be done through recourse to extra-legal principles of controversial political morality or policy, not already specified by law. So law is not free standing after all.

Prompted by Dworkin’s critique of Hart and positivism in general, there emerged roughly two types of responses within the positivist camp. The one, exemplified most forcefully by Jules Coleman, contended that positivism could accommodate Dworkin’s criticism by claiming that controversial moral problems could form part of the law. This position has become known as inclusive legal positivism. The other approach, the one championed most systematically by Joseph Raz (a student of Hart’s), argues that law need not seek a backstop in morality but can indeed be freestanding, as Hart maintained. This position came to be known as exclusive legal positivism.

The collection of essays under review here (dating from 1994-2006) continues the arguments Raz has made since the 70s, adding new arguments and revising old ones, may of which deal with the above problematic. The essays fall generally under the heading of law and morality, and of interpretation. For space reasons, this review will deal chiefly with the former. Raz’s papers, as does his previous work, have important implications not only for the philosophy of law but also for arguments in contemporary meta-ethics. They often take up question of normativity per se, of which law is only one instance.

One way to draw a distinction between the aspirations of natural law theory and exclusive legal positivism (henceforth just ‘positivist’) is to say that positivism is concerned not with the ground of law but with its function. That is to say, the question of legitimacy, the question of the ultimate justification of a legal system, is a question that arises not in the course of normal business but only for the philosopher or at times of great social turmoil. For the positivist, law is first and foremost a matter of getting things done within the polity. Efficiency is thus a central concern for the positivist. (It is perhaps a sign of the times that the limit case of positivism no longer commands quite the importance in contemporary jurisprudence as it did in the 50s when Hart and Fuller sparred about the question of whether Nazi law was really law.)

In the broadest of philosophical language, for the positivist, law is thus a matter of the experience of law while for the natural lawyer it is a matter, among other things, of also having a theory of the justification of law. Raz puts this point by saying that he is skeptical that the moral theories presented by, among others, Kant and Rawls, can be operationalized. (119) That is to say that a theory of morality will not be sufficient to motivate action. Rather, on Raz’s view, action precedes theory and the question of what law is, whether law in fact does have the authority is claims for itself, only becomes relevant when ambiguity about law threatens to undermine law’s authority. For the positivist, then, the thing that is most salient about the law is how well is gives people reasons for behaving as they should within the polity. Raz’s  is thus an instrumental view of law which privileges practical concerns over theoretical and philosophical ones.

A central contribution to this debate comes in Raz’s service conception of law. This approach was originally presented in The Morality of Freedom (1986) and is here revisited to accommodate objections. The service conception holds that the way law helps people get things done is by providing authority or motivation for them to comply with those laws which the society has evolved over time in order to facilitate getting along. Law gives people reasons to do things they were in doubt about being obligated to do. In this sense it has the power, championed by all positivists (from Bentham to Holmes and Hart), of making human interaction predictable. If you are wonder how fast it is safe to drive (or how fast others will be driving), all you need do is look at the sign indicating the speed limit. Someone has made that decision for you and by that very fact, you (and everyone else) are now obligated to obey it. In this sense law regulates behavior and facilitates interaction in a classical liberal vein: laws are understood as purely negative.

When challenges to a law’s authority do arise, these are settled, Raz argues, by meeting two conditions. First, the authority must be better at providing reasons for an action that apply to the person anyway than she would be able to provide for herself. Such might be the case when an expert can determine better how fast it is safe to drive than I can and it is also my interest to drive safely. Secondly, it must be better to conform to the laws as dictated by experts than to conform to my own judgment. (136-37) We might paraphrase these two conditions by pointing out that the first condition is a condition of effectiveness while the second is one of independence. That is, legal authority is legitimate only if it is both efficient and if I accept that this efficiency is worth relinquishing my own judgments in favor of those of the law. But relinquishing my power of judgment is still my choice and I can revoke it if things turn sour. Law thus functions as a type of heuristic which gives us quick answers to frequently asked normative questions. It must do so in an easily ascertainable and expedient way.

But how does the law deal with difficult cases, with cases that don’t seem to lend themselves to easy adjudication. Raz’s answer is, first, that laws evolve. Raz argues that by adopting a law, the society, through its representatives in government, can transform a (perhaps) controversial idea into a non-controversial one. Thus, by becoming a law, a reason for some becomes, ipso facto, a reason for all. (108) That is, the disagreement about what speed it is reasonable to drive becomes, by being specified by a law, an argument about the reasonableness not of the speed to drive, but about the reasonableness of the law itself. (109) It is not that the disagreement has disappeared but it has been given a shape. The disagreement has been formalized such that we can agree on what it would take to answer the moral question: either support the law or seek to repeal it. However, in the mean time, all will have to comply with it. The moral disagreement has, in a sense, been softened. This is how exclusive positivism keeps moral disputes at bay. The judicial process is a process which, through its very nature, is able to turn moral controversy into normative agreement. The law resolves disputes by pre-empting them. (110)

However, that cannot be the complete story, for the mere fact of legislation will only partially lay to rest the dispute. Some people will still be opposed to the law and seek to undo it. Raz, perhaps rather optimistically, believes that the rest of the moral controversy which lives on in the law can be overcome not through the law’s backing by the force of the state, but rather pragmatically, by its contribution to the successful life of the polis. Thus it is not power but success that determines the success of the law. This points again to the liberal ideas which underlie Raz’s jurisprudence. Raz, like Mill, believes deeply that the constitutional process itself will be able to iron out the kinks in our society. He shares with Rawls and Hart something like the idea that we can have a free-standing (non-moral) consensus about what is essential to our society. Laws are one of the ways this consensus is achieved.

Finally, let me draw out one more consequence from the above. The parliamentary system for creating laws can, on Raz’s view, as we have seen neutralize moral disagreement. It does so taking up controversial topics and turning them into law. The appeal of positivism is that through the process of legislation controversial issues are given resolutions which are universally normatively valid. Moral controversies can be deflated and, rather than being denied, be turned to the advantage of everyone. Law thus provides an answer to the question of how I can angrily object to a candidate for office and yet, after she is elected, seek fully to comply with the laws she is instrumental in passing. Positivism claims that to the natural lawyer, this transformation must remain a mystery. For the positivist, however, such a transformation merely points to the fact that social convention is, in fact, stronger than individual moral reflection.

______________________________________________________________________

Stefan Bird-Pollan is an assistant professor of philosophy at the University of Kentucky.

As Frank Pasquale noted last month, Tulane Law professor Alan Childress is successfully launching a valuable publishing program featuring modern dissemination methods for classic legal texts. Called Quid Pro books, the imprint’s most recent installation is Cardozo’s timeless work.

As most people know, judges create law, not just follow it. Cardozo’s classic provides among the best expositions of how and why this is so. General readers [...]]]> When some people still find it worth debating whether judges make law or simply follow it, we’re lucky to have a modern printing of a most venerable treatment of the subject: Benjamin Cardozo’s The Nature of the Judicial Process is now published in a contemporary format that’s easy on the eyes and the wallet.

As Frank Pasquale noted last month, Tulane Law professor Alan Childress is successfully launching a valuable publishing program featuring modern dissemination methods for classic legal texts. Called Quid Pro books, the imprint’s most recent installation is Cardozo’s timeless work.

As most people know, judges create law, not just follow it. Cardozo’s classic provides among the best expositions of how and why this is so. General readers and legal devotees alike benefit. That’s important today as there continues to be talk, including by our Chief Justice, though in the political forum of confirmation hearings, about how judges are merely like umpires calling balls and strikes.

Certainly, every law student should read Cardozo’s practical and frank masterpiece. At Cardozo Law School for decades, the School gave a copy of the paperback version of this book to members of its incoming class. Thanks to Professor Childress, now schools can give it to students in many different contemporary formats.

Substantively, this Quid Pro edition offers a wonderful new Foreword written by the world’s leading expert on Cardozo, Andrew Kaufman, Harvard Law professor (pictured at right). This offers an insightful introduction to Cardozo the man and the judge. It is a critical biographical sketch.

Prof. Kaufman highlights some of Cardozo’s most important opinions and methods that, from the moment they were written down through today, have enriched substantive law, perspectives on legal method, and the craft of judging. He also positions Cardozo’s thesis in the context of angry debates of his era around legal realism and what judges really do–debates that are equally heated today and to which Cardozo’s insights continue to speak resonantly.

Readers can obtain, for about US$4, digital versions that may be read using all current readers, like Kindle, Nook. The paperback version (about US$13) is published with features far better than any other previous edition, including the early editions published by Yale or the Dover edition. These include type set in a modern style that’s easy on the eyes; pagination that’s tied to the original edition for improved research and citation; and text presented in a format suited to Cardozo’s style that used long paragraphs.

This book is thus hard to beat, offering a great and vital read, with a smart and delightful Foreword, published in a friendly format at a cheap price. One more thing: unlike other editions, it also contains several photographs of Judge Cardozo, some of which are actually flattering!

Five years later an American doctor working in a chemical plant made a startling discovery. Several workers began complaining that alcohol was making them sick, causing most to stop drinking it entirely—“involuntary abstainers,” as the doctor, E.E. Williams, later put it. It turns out they were in contact with a chemical called disulfiram used [...]]]> Prohibition wasn’t working. President Hoover assembled the Wickersham Commission to investigate why. The Commission concluded that despite an historic enforcement effort—including the police abuses that made the Wickersham Commission famous—the government could not stop everyone from drinking. Many people, especially in certain city neighborhoods, simply would not comply. The Commission did not recommend repeal at this time, but by 1931 it was just around the corner.

Five years later an American doctor working in a chemical plant made a startling discovery. Several workers began complaining that alcohol was making them sick, causing most to stop drinking it entirely—“involuntary abstainers,” as the doctor, E.E. Williams, later put it. It turns out they were in contact with a chemical called disulfiram used in the production of rubber. Disulfiram is well-tolerated and water-soluble. Today, it is marketed as the popular anti-alcoholism drug Antabuse.

Were disulfiram discovered just a few years earlier, would federal law enforcement have dumped it into key parts of the Chicago or Los Angeles water supply to stamp out drinking for good? Probably not. It simply would not have occurred to them. No one was regulating by architecture then. To dramatize this point: when New York City decided twenty years later to end a string of garbage can thefts by bolting the cans to the sidewalk, the decision made the front page of the New York Times. The headline read: “City Bolts Trash Baskets To Walks To End Long Wave Of Thefts.”

In an important but less discussed chapter in The Future of the Internet, Jonathan Zittrain explores our growing taste and capacity for “perfect enforcement.” Readers are likely familiar with the cyberlaw mantra that “code is law.” What’s striking is that since Lawrence Lessig published Code in 1999, relatively little has been written about the dangers of regulation by architecture, particularly outside of the context of intellectual property. Many legal scholars—Neil Katyal, Elizabeth Joh, Edward Cheng—have instead argued for more regulation by architecture on the basis that it is less discriminatory or more effective. Recall that this was also Joel Reidenberg’s conclusion in “Lex Informatica” (PDF).

Zittrain’s fifth chapter returns the concern over perfect enforcement by architecture to center stage. He draws a distinction—along with Lessig, Cheng, and Gary Marx—between architectural intervention that makes detection and punishment more likely (e.g., traffic-light cameras), and architectural intervention that makes wrongful behavior more difficult or impossible (e.g., speed bumps). Zittrain identifies a third phenomenon, one perhaps closer to disulfiram in the local well, where a party secures a court order to zap the offending practice out of existence.

Zittrain worries that the shift to “tethered appliances” opens the door to too heavy a regulatory touch. He points out that perfect enforcement may lock in mistakes, dampen creativity, and upset the balance of power between government and citizen. To this litany we might add Lessig’s earlier concerns about architecture’s intransparency, seductive ease, and the fact that there can be no civil disobedience where the underlying conduct has been rendered impossible. (Rosa Parks never gets to the front of the bus. Henry David Thoreau’s tax is automatically deducted from his pay check). Or that some regulation by architecture thwarts separation of powers because there is no law for the executive to prosecute or offense for the judiciary to review.

Still, Zittrain’s question is the right one: if we have the power to switch off murder, do we really decline to use it? And what’s the harm, exactly, in bolting trash cans to the sidewalk?

Lessig used code to show that the Internet is, in fact, governable—maybe particularly so. To borrow from Chris Anderson in another context, “atoms are the new bits.” We are entering an era of unprecedented ability to manipulate the mind, body, and environment. There’s a vaccine that renders cocaine inert. There are cars that won’t start if you’ve been drinking. There are guns that won’t fire for anyone but the registered owner. We might applaud suicide nets on bridges but abhor digital rights management. But where do we draw the line? This search for a defensible distinction between good (appropriate) and bad (inappropriate) regulation by architecture will be one of the formative legal puzzles of our time. We should turn our attention to solving it.

There is a thought, though, that occurs to me, with apologies if it’s already out there.  The premise behind most arguments about interpretation is that the goal is to be faithful to the source.  Now, of course, reasonable people disagree about how to do that.  Maybe it’s textualism, maybe it’s originalism, maybe it’s living constitutionalism, etc.

There are instances, however, in which that is not an accurate description of interpretation. [...]]]> Normally I run away screaming when somebody starts discussing interpretive theory.  That’s partly because I just don’t find the subject that interesting, but another reason is that I’ve always seen an interpretative approach as nothing more than a presumption that is always riddled with so many exceptions that it’s hard to figure out what the presumption is.

There is a thought, though, that occurs to me, with apologies if it’s already out there.  The premise behind most arguments about interpretation is that the goal is to be faithful to the source.  Now, of course, reasonable people disagree about how to do that.  Maybe it’s textualism, maybe it’s originalism, maybe it’s living constitutionalism, etc.

There are instances, however, in which that is not an accurate description of interpretation.  A better characterization is that interpretation is about justifying a result that everybody wants even though it not in the source.  In other words, some exercises of interpretation are not about being faithful at all.  They are about being unfaithful.  I wonder, though I haven’t thought this through, how that changes one’s view of the best interpretive theory.

By the way, if you’re looking for an example of “unfaithfulness,” consider Bolling v. Sharpe, which is really hard to square with the legal materials available in 1954, even though everybody thinks that result was right and necessary.