Archive for the ‘Jurisprudence’ Category
The Common Law and the Monarchy
posted by Gerard Magliocca
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.
January 4, 2011 at 9:02 pm
Posted in: Jurisprudence
Print This Post
No Comments
Stalking About Your Generation
posted by Jonathan Lipson
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.
November 13, 2010 at 6:33 pm
Tags: Intellectual Property, intergenerational equity, Republicans, Wisconsin
Posted in: Conferences, Economic Analysis of Law, Intellectual Property, Jurisprudence, Law Rev (Wisconsin)
Print This Post
No Comments
Argument in Class Waiver Case Favors Consumers, States
posted by Lawrence Cunningham
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.
November 10, 2010 at 11:08 am
Posted in: Consumer Protection Law, Contract Law & Beyond, Jurisprudence, Supreme Court, Uncategorized
Print This Post
2 Comments
Book Review: Raz’s Between Authority and Interpretation
posted by Stefan Bird-Pollan
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.
November 3, 2010 at 11:43 pm
Posted in: Book Reviews, Jurisprudence, Law and Humanities, Legal Theory
Print This Post
2 Comments
Law, Education, and Hard-Driving Reform
posted by Craig Livermore
Shortly after Washington D.C. Mayor Adrian Fenty was defeated in the mayoral primary this September, Michelle Rhee resigned from her position as the Washington D.C. Schools Chancellor. In her three years in the position, Rhee had gained a national reputation as a zealous “no-excuses” reformer seeking to hold teachers and educational administrators accountable in an attempt to raise urban student assessment scores. Along with Geoffry Canada of the Harlem Children’s Zone, Rhee is spotlighted in the educational documentary Waiting for Superman as the type of reformer needed to turn around the multi-decade dysfunction and despair of urban education. However, Mayor Fenty’s political loss and Michelle Rhee’s resignation can rightly been seen as the most visible incident of a growing national educational trend to push back on hard-driving top-down reform with genesis outside of the communities which are in need of reform.
When Newark Mayor Cory Booker, New Jersey Governor Chris Christie and Facebook Founder Mark Zuckerberg (Geoffry Canada was there as well) recently appeared on the Oprah Winfrey Show to announce the $100 million donation to the Newark Schools by Zuckerberg, Oprah hinted to Mayor Booker that Rhee is a dynamic reformer who could fill the soon to be vacant position of the Newark Public Schools Superintendent. Mayor Booker affirmed Rhee’s dynamism, but quickly stated that the real genesis of reform in urban education must emanate organically from the community. It is the parents, students, and community members which must be the supermen and superwomen. And thus, on November 1, 2010, an initiative called PEN Newark (Partnership for Education in Newark) has been launched as the first stage in the utilization of the Zuckerberg donation for education reform. PEN Newark has been founded as a collaborative effort between Mayor Booker and Newark Public Schools Advisory Board of Education Chair Shavar Jeffries. Jeffries is an organic leader from Newark who ran his campaign in 2010 on a platform of community engagement. The initiative is an extensive feedback and outreach initiative. Its mission is to connect, interview, survey, and speak with all stakeholders within the Newark community concerning the types of reform the Zuckerberg donation should generate. Mayor Booker has learned this political lesson well. And, indeed, this is the model of participative and collaborative reform that is gaining momentum nationally as a reaction to hard-driving no-excuses top-down reform.
But if this is all politics and education, what does it have to do with the Law? Everything. Public education in the United States is completely constructed and defined by an interactive array of legal regulation–both policy and jurisprudence. From comprehensive federal accountability legislation such as the No Child Left Behind Act (the current iteration of the Elementary and Secondary Education Act first passed by Congress in 1965), to the interpretation of educational rights by state and federal courts, to the strong support of collective bargaining agreements by most state law makers, education is minutely regulated. For example, the New Jersey Supreme Court’s 20 Abbott v. Burke opinions have interpreted the New Jersey Constitution’s right to a “thorough and efficient education” (Article VIII, Sec. 4) to not only delineate school funding formulas which provide for vertical equity (more money for students facing greater need), but have also mandated preschool education, reform from specific educational models, facilities construction and even curricular content standards. Over the past forty years, as urban schools have increasingly struggled with low performance, inefficiency and mismanagement, and, at times, corruption, greater detail and layers of policy and jurisprudence-based regulation have been implemented. When such micro-regulation has been added to schools within communities under great stress and poverty, dysfunction has been guaranteed, and stasis has resulted.
November 1, 2010 at 1:38 pm
Tags: Education, law and education, Reform
Posted in: Education, Jurisprudence, Politics, Uncategorized
Print This Post
3 Comments
Cardozo on Judging Now In Modern Print
posted by Lawrence Cunningham
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.
Read the rest of this post »
October 26, 2010 at 12:55 pm
Posted in: Book Reviews, Jurisprudence
Print This Post
One Comment
Future of the Internet Symposium: (Im)Perfect Enforcement
posted by Ryan Calo
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.” Read the rest of this post »
September 7, 2010 at 2:58 pm
Posted in: Architecture, Articles and Books, Book Reviews, Cyber Civil Rights, Cyberlaw, DRM, Jurisprudence, Legal Theory, Symposium (Future of Internet), Technology
Print This Post
5 Comments
Unfaithful Interpretation and The Gold Clause Cases
posted by Gerard Magliocca
The other day I said that the Court must sometimes break with the view that constitutional interpretation is about being faithful. What’s my definition of unfaithful interpretation? To avoid arguing about the merits of cases that people might think were wrong or right, here’s my idea. Unfaithful interpretation is when a court declares that somebody has a right but, for prudential reasons, will get no remedy. It’s not that a remedy cannot be given (because of a statute or a doctrine) or that it’s only a partial or delayed remedy; the Court decides that it’s just a bad idea to provide any remedy. I think this is unfaithful if you assume that remedies and rights should be linked absent some contrary authority. Moreover, denying a remedy for prudential reasons undermines confidence that the legal analysis was done in good-faith.
What are some examples? Marbury, for starters. Sure, the Court said that it could not give him a remedy because that would be unconstitutional, but nobody thinks that Marshall’s reading of the statute there was anything other than a dodge. Worcester v. Georgia is another example, as the Court did not issue the mandate and thus left Worcester to sit in a Georgia jail until further notice. Ex Parte McCardle is another, as the Court could have issued an opinion on the merits in that case before the jurisdiction-stripping statute took effect but chose not to. Giles v. Harris, which I talk about in my new book on Populism, involved the Court’s refusal to give a remedy to African-Americans denied their suffrage rights in the South. The Gold Clause Cases, which will be the focus of my next Article and which I’ve posted about, is the least-well known instance of unfaithfulness.
What connects these cases? There was a deep fear among the Justices that providing a remedy would: (1) expose the Court to institutional damage; (2) lead to an adverse political outcome; or (3) both. Now, the question is, should the Court be unfaithful in these situations? Isn’t that getting dangerously close to saying that there is a higher law above the Constitution? (Judicial self-preservation? The Constitution is not a suicide pact?) Or does it suggest, as I suggested on Monday, that interpretive theory is wrong when it presupposes things like “integrity” or “fidelity?”
I’m not sure, which is why I think this might be a good paper.
UPDATE: In response to some of the comments, let me add this. Yes, the argument here is premised on the idea that rights and remedies should be linked. (After all, there must be some way of determining whether an action is unfaithful that can reach beyond a particular interpretative theory. I’m not sure that there is a better alternative.)
So the other thought is “Well, suppose my theory says that it should be followed unless doing so would lead to a bad result. In that case, I’ll refuse to provide a remedy. And if I do refuse, I’m being faithful to my theory, not unfaithful.”
That is true. Of course, it’s only true if that is your theory. Is refusing to provide a remedy evidence of support for that theory or evidence to the contrary? After all, the cases themselves don’t describe what they’re doing as consistent with some broader principle. Instead, they usually try to hide the inconsistency. Evidence of a guilty conscience, methinks. But maybe not — I’ll have to think about that.
UPDATE #2 — Perhaps this is really about interpretive “necessity” rather than “unfaithfulness.”
September 2, 2010 at 8:11 pm
Posted in: Jurisprudence
Print This Post
10 Comments
Unfaithful Interpretation
posted by Gerard Magliocca
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.
August 30, 2010 at 10:49 am
Posted in: Jurisprudence
Print This Post
12 Comments
BRIGHT IDEAS: Collins on Justice Holmes and Free Speech
posted by Daniel Solove
In his new book, The Fundamental Holmes: A Free Speech Chronicle and Reader (Cambridge University Press, 2010), Ronald Collins guides us through the free speech writings of Justice Oliver Wendell Holmes, Jr. Ron is the Harold S. Shefelman scholar at the University of Washington School of Law and a fellow at the Washington, D.C., office of the First Amendment Center.
Ron’s book contains numerous excerpts from Holmes’s great judicial opinions, correspondence, essays, and books. Far from composing the book mainly of excerpts, Ron has provided very extensive commentary and background throughout. Ron is steeped in the history of his subject and has a rich understanding of the law and theory of the First Amendment. There is no better guide to help us understand Holmes’s work and thought as it relates to free speech.
I recently had a chance to talk with Ron about the book.
SOLOVE: What inspired you to write this book?
COLLINS: Long story. It began when I was in law school and read Holmes’s 1919 free speech opinions. And then, not long afterwards, I read Max Lerner’s The Mind and Faith of Justice Holmes (1943), which fascinated me though it was quite dated by that time. This was in the 1970s when I was an impressionable law student. Several years later I met Max – incredible Renaissance man! – and befriended him and then helped him, in 1988-89, with a new and expanded edition of his Holmes book. That combined with my work in the First Amendment made this latest book a natural for me, though I don’t worship Holmes. True, he challenged my mind, and I like that sort of thing even when I disagree with someone.
SOLOVE: During the course of immersing yourself in Holmes’s writings, what is the most surprising thing you learned?
COLLINS: There are so many things; Holmes was such a complex man. Long before I began my book, I knew quite a bit about his First Amendment work, including his pre-1919 Supreme Court opinions. So, not much surprise there. I guess I would say I was quite taken by his Civil War experience and how that had such a remarkable impact on his life, jurisprudence, and view of free speech, too. It was the dye that colored everything in the beaker of his thought.
SOLOVE: Personally, what would you consider to be the five most significant writings by Justice Holmes?
COLLINS: Hard call. But here they are, in no special order:
August 30, 2010 at 10:07 am
Posted in: Book Reviews, Bright Ideas, Constitutional Law, First Amendment, History of Law, Interviews, Jurisprudence, Supreme Court
Print This Post
No Comments
Who Owns the Sky?
posted by Gerard Magliocca
I taught the first class of my Law & Technology Seminar today, and I used Stuart Banner’s terrific book on Who Owns the Sky? If you haven’t read this, you really should. He discusses how the law responded to the invention of airplanes, with respect to the rights of property owners, sovereign rights over airspace, and other issues. In part, it’s refreshing to read a book about a problem that was solved (and seems obvious now) but was not at the time. (My favorite example was the guy who argued that planes should just fly over roads and public lands, then there would be no trespass issues.)
August 26, 2010 at 6:18 pm
Posted in: Jurisprudence
Print This Post
No Comments
Is There a Constitutionally Protected Right to Use Reproductive Technologies?
posted by Glenn Cohen
A few months back Jessie Hill had a blog post entitled “My so-called right to procreate” asking about the scope of procreative liberty protected by the Constitution. I wrote about this issue in passing in a paper devoted to the opposite question, whether the constitution protect a right NOT to procreate (or what I prefer to think of as rights not to procreate, separable sticks in a bundle encompassing the right not to be a legal, gestational, or genetic parent – indeed as I pointed out there, I think the right to procreate should be similarly unbundled). In a new paper entitled Well, What About the Children?: Best Interests Reasoning, the New Eugenics, and the Regulation of Reproduction, as part of a larger project on the justifications for the regulation of reproduction I briefly address a slightly narrower issue than the one in Jessie’s post, whether there is a negative liberty fundamental right to non-interference with reproductive technology use. I thought I would set out and expand on that discussion here and see what other readers thought.
My own view is that the constitutional status of state interventions preventing access to reproductive technologies (either directly, e.g., prohibitions on access to reproductive technology for women over age 50 or through regulation, or indirectly, e.g., parental fitness screening for surrogacy users) is deeply under-determined by the existing doctrine. The only U.S. Supreme Court decision to consider whether there is a fundamental right to become a genetic parent, Skinner v. Oklahoma, 316 U.S. 535, 536-39 (1942) (finding a fundamental right that was violated by physical sterilization of individuals convicted three or more times of crimes of moral turpitude but not embezzlement) is subject to a myriad of possible interpretations especially as applied to reproductive technologies.
Here are a few:
Skinner protects as a fundamental right any use of reproductive technologies that simulates that which would be achievable by coital reproduction in the fertile individual (not, therefore, something like genetic engineering). John Robertson is the person I most closely associate with this view (although his view has considerably more nuance that I can get across here).
On the other extreme, one might argue that because Skinner itself was premised on an Equal Protection claim not a substantive Due Process one and thus there is no substantive Due Process right to Procreate at all. Cf. VICTORIA F. NOURSE, IN RECKLESS HANDS: SKINNER V. OKLAHOMA AND THE NEAR-TRIUMPH OF AMERICAN EUGENICS 165 (2008) (concluding that “both liberals and conservatives have made a mistake” in their reading of Skinner because the case was “neither argued nor decided as a case about rights in the sense that we use the term ‘fundamental right’ today).” That said, over the years the Court has lumped Skinner in with its substantive Due Process jurisprudence so often that the time may have passed for hewing to this distinction.
In between there are several other positions:
August 24, 2010 at 9:38 am
Posted in: Bioethics, Civil Rights, Constitutional Law, Family Law, Health Law, Jurisprudence, Uncategorized
Print This Post
4 Comments
Legal Fictions
posted by Gerard Magliocca
I love the following from Justice Robert H. Jackson, who was probably the greatest writer in the Court’s history (though this quote comes from his book on The Struggle for Judicial Supremacy)
“Fictions are often the hostages that the forces of movement give to the forces of retreat.”
August 24, 2010 at 8:09 am
Posted in: Jurisprudence
Print This Post
One Comment
Clarifying Commodification
posted by Glenn Cohen
I’ve found both in published work and in classroom and workshop discourse that people often mean different things when they talk about commodification concerns as an argument for blocked exchanges – e.g., forbidding the sale of kidneys from live donors, prostitution, the sale of surrogacy services, etc.
I thought it might be useful to try and sort out some of these different meanings (for those looking for a more formal discussion with citations, this old paper of mine may be useful). This is my own classification (though it builds off work by my colleague Michael Sandel among others). I will be interested to see if others think one should add to or reformulate the taxonomy. It is also worth emphasizing at the threshold that while money is the focus of most anti-commodificationist arguments that for each version barter can also give rise to the same objections.
At the top-level we can divide commodification into three large categories (the 3 C’s if you will): Coercion, Corruption, and Crowding-Out. For the purposes of this post my goal is not to evaluate these arguments, just to parse them better.
(1) Coercion:
(a) Voluntariness. This concern, also known as exploitation, is framed as concern about the voluntariness of the transaction in a way that demands more than minimal notions of consent. It is the fear that only the poor will sell organs or that only destitute women will consent to act as commercial surrogates, and argues for blocking the exchange to protect those populations. It thus depends on some empirical facts about the population the argument seeks to protect; one occasionally seeks proposals to limit organ or surrogacy services sales to people above a certain income bracket to blunt the concern. It also depends on views about the validity of blocking an exchange due to these somewhat paternalistic concerns. Thus, sometimes it is argued that it is hypocritical to block an exchange preventing a badly-off person from improving their station in life unless we are also committed to a redistributive plan that makes them as well-off as they would be if the exchange was permitted. It is important to understand that this objection is not focused on a claim that the buyer and seller are giving up unequally (in amount, see below regarding mismatches of type) valued things, the “raw deal” problem that parallels one strand of substantive unconscionability doctrine in contracts; instead, it is about the seller’s poverty and their susceptibility towards “an offer you can’t refuse” even if the good is valued fairly. While one solution to some forms of unconscionability may be to re-write the terms to be more favorable to the seller, adding extra compensation here would worsen not improve the exchange from the point of view of this objection.
(b) Access: Somewhat less frequently the objection is made almost in reverse. While the voluntariness version treats the exchange as representing a “bad” that the poorer party in the exchange suffers in one respect involuntarily, the access variant instead views the exchange as representing a “good” that only the better-off party has access to because of the existence of the market. For example, the sale of “premium” eggs is something only the wealthy will have access to, or the during Civil War the practice of commutation where one could pay three hundred dollars to avoid serving in the draft was only available to wealthier stratas of society. This objection also depends on notions of background unjust inequalities in resource distribution to get going.
Price caps may be a partial solution to either form of the coercion objection because they will lower the price to make it not-so-attractive as to make us question voluntariness (the “offer you can’t refuse”) and also move the purchase of the good into the range of access for more of the population. It is only a partial solution because it usually results in shortages. One could also imagine “mixed” systems that do better at addressing one concern than the other — so the state could be the only permitted buyer of organs and then distribute them through the current transplant system rather than willingness to pay — this would go a long way to blunting the access concern, but not necessarily the voluntariness one (and indeed might make the corruption objection below even worse).
(2) Corruption: A second version of the objection is that a market exchange “corrupts,” “taints,” or “denigrates” the things being exchanged — for instance, the argument that prostitution devalues women’s bodies by attaching a price tag to their sexuality. Cass Sunstein offers a good starting formulation of the corruption argument: an exchange is corrupting when “the relevant goods cannot be aligned along a single metric without doing violence to our considered judgments about how these goods are best characterized.” Incommensurability and Kinds of Valuation: Some Applications in Law, in INCOMMENSURABILITY, INCOMPARABILITY, AND PRACTICAL REASON 234, 238 (Ruth Chang ed., 1997). More specifically, one might suggest that there are various “spheres” (sometimes called “modes”) of valuation, and an exchange is corrupting when it ignores the differences between these spheres of valuation and forces us to value all goods in the same way. For example, exchanging children for money corrupts the value of children because money and children belong in different spheres of valuation.
As I have described in depth, that requires both a theory of sphere differentiation and a theory of what it is about exchanges that “does violence,” neither of which are that easy to articulate. For present purposes, though, I want to merely distinguish versions of the argument along two dimensions.
August 17, 2010 at 8:53 am
Posted in: Bioethics, Culture, Family Law, Feminism and Gender, Health Law, Jurisprudence, Law and Humanities, Law and Inequality, Legal Theory, Uncategorized
Print This Post
6 Comments
Hypotheticals, the Classroom, and Moral Biology
posted by Glenn Cohen
Hypotheticals are a ubiquitous pedagogical tool in both the law and philosophy classrooms. I have recently been thinking about the different functions they serve and whether they are well-suited for the weight we give them. These reflections were prompted by a conference on “Moral Biology,” hosted by the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School (which I co-direct), in cooperation with The Project on Law and Mind Sciences at Harvard Law School, the Gruter Institute, the Harvard Program on Ethics and Health, and the MacArthur Law and Neuroscience Project.
I may blog a little bit later about some other of the marvelous things I learned over these two days, but for now I wanted to concentrate on some thoughts that stemmed from a public portion of the conference that can be seen here, involving Josh Greene from Harvard’s Psychology Department, William Fitzpatrick from the University of Rochester’s Philosophy Department, Adina Roskies from Dartmouth’s Philosophy Department, Walter Sinnott-Armstrong from Duke’s Philosophy Department, and Tim Scanlon, from Harvard’s philosophy department.
At around the 43 to 50 minute mark in the video, Josh discusses Trolley Problems (which ask participants a thought experiment about whether to divert a trolley from one track to another with many versions of the hypothetical) and an experiment done on them by Fiery Cushman (and a collaborator, Switzgable I believe, I could not find the actual paper) in Josh’s lab. In the experiment, before being asked whether they would endorse the principle of double effect, ethicists with PhDs were asked to reason about variants of the Trolley problem (switch vs. footbridge) presented in different orders. The experiment found that if one varied the order in which the versions were presented (but always presented all of them,) ethicists reached different conclusions about whether they would endorse the principle. [This is Josh's description in the video, again if anyone can find the paper he is discussing I will try and like to that]. The result is surprising in that it appears even those with PhD training in ethics are susceptible to order effects in reasoning about a very fundamental issue.
As Josh concedes, and others (in the panel and in written pieces discussing his work emphasize) the fact that these ordering effects occur is not itself fatal to the enterprise of philosophical analysis using intuitions. It depends on further views about how one uses these kinds of intuitions in the analysis. For present purposes, though, I want to partially side-step that question in favor of thinking about the law classroom, and how this experiment might should us a little more careful about the way we use hypotheticals.
August 13, 2010 at 8:22 am
Posted in: Bright Ideas, Empirical Analysis of Law, Jurisprudence, Law and Humanities, Law and Psychology, Law School, Law School (Teaching), Legal Theory, Teaching, Uncategorized
Print This Post
One Comment
Doctrine as Empathetic Umpire
posted by Lawrence Cunningham
Testifying before the Senate committee reviewing his 2005 nomination as Chief Justice of the United States, John Roberts famously told those assembled that the job of being a justice is like being an umpire. The job is calling balls and strikes; not making rules up, just applying those already laid down. President Obama later rejected that analogy, when appointing both Sonia Sotomoyer and Elena Kagan to the Court, saying justices can’t be mere umpires. They need to have empathy, he said.
Each of these viewpoints contains different partial truths; both emphatically demonstrate that personality plays a vital role in the docket of the Supreme Court. This underscores the political and ideological nature of the popular cases it grapples with. In that Court and in those disputes, political theory and hence ideology often prove pivotal. It’s easy to classify justices as liberal or conservative and the Court’s direction as toward the right or toward the left.
For less politically-freighted fields of law, or where the terrain is more reliably settled, it’s less accurate to speak of judges applying law in those terms—as being a mere umpire or needing empathy. Take contract law, where doctrine itself is a kind of organic empathetic umpire.
July 27, 2010 at 10:59 am
Posted in: Constitutional Law, Contract Law & Beyond, Jurisprudence, Supreme Court
Print This Post
No Comments
Book Review: Cross’s The Theory and Practice of Statutory Interpretation
posted by Anita Krishnakumar
Frank B. Cross, The Theory and Practice of Statutory Interpretation, Stanford University Press, 2009.
True to its title, Frank Cross’s ambitious book seeks to bridge the gap that long has existed between scholarly theorizing about statutory interpretation and the actual, on-the-ground judicial practice of construing statutes. The book’s first few chapters engage in excellent analyses of four competing theories of statutory interpretation—textualism, legislative intent, interpretive canons, and pragmatism. Cross examines each of the theories in detail, reviewing and critiquing the most prominent arguments made in favor of and against each approach. These chapters are extremely well-done; they not only provide a virtual primer on the most prominent works in the field of statutory interpretation, but are infused with Cross’s own incisive take on the standard debates.
The second half of the book turns to reporting the results of an empirical study that Cross conducted analyzing a sample of 120 cases from the Supreme Court’s 1994 through 2002 terms. Cross’s study was designed, inter alia, (i) to measure the Court’s and individual Justices’ patterns of canon use for consistency with the different theoretical approaches; (ii) to test the various interpretive methodologies’ ability to constrain ideological decision-making; and, to a lesser extent, (iii) to assess the interpretive methodologies’ relative ability to command consensus on the Court. To this end, Cross coded for judicial reliance on several specific canons and interpretive tools and then grouped these canons and tools into four categories corresponding to the interpretive theories—i.e., textualism, intentionalism, canons, and pragmatism. He then measured the Court’s rates of reliance on each category of interpretive tools, the correlation between individual Justices’ ideological preferences and the ideological outcomes of cases in which the Justices referenced interpretive tools within each category, and the relationship between the interpretive tools used and the level of consensus reached by the Court in particular cases. Cross’s empirical findings can be summed up as follows:
June 14, 2010 at 6:11 pm
Posted in: Book Reviews, Jurisprudence, Legal Theory
Print This Post
No Comments
Invention . . . meet Necessity
posted by Gerard Magliocca
Justice Oliver Wendell Holmes explained (in the Northern Securities Case, a controversial antitrust case) that:
“Great cases like hard cases make bad law. For great cases are called great, not be reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment.”
Is this true? It depends what you mean by “bad law.” If you mean a decision that does not follow precedent or the usual norms of judicial behavior, then Holmes was probably right. But creativity is not always a bad thing. Marbury v. Madison, for example, is taught as a “great case” because of the political pressure that the Court faced (Madison boycotted the argument, Jefferson wouldn’t have complied with an order to give Marbury the commission). And Marshall’s opinion was certainly unorthodox. But was it bad law? Hardly, if you like judicial review.
I bring this up because I’m now writing an article on “The Obama Generation and the Supreme Court,” which will talk a fair amount about the constitutional challenge to the health care bill. In looking at past cases where the Court from one generation (e.g., the Old Court in the 1930s) collides with a new generation (the New Deal), you can see that the resulting friction often leads to bad law in the narrow sense that Holmes was talking about, but that tension also generates new ideas that become integral parts of the constitutional culture.
Great cases, therefore, probably make good law about as frequently as they make bad law.
June 8, 2010 at 8:35 am
Posted in: Jurisprudence
Print This Post
No Comments
John Yoo’s NYT Op-Ed Backfire
posted by Lawrence Cunningham
The New York Times yesterday gave most of its op-ed page to John Yoo, the Berkeley law professor who attracted odium from adversaries for writing the Bush-era legal memos seeming to condone torture as a presidential prerogative. The op-ed purports to challenge the views of Solicitor General Elena Kagan on presidential power, the tenor suggesting Yoo doubts she holds the correct views for a Supreme Court nominee.
If that is its purpose, though, the op-ed backfires, making it sound as if Kagan’s views are in the legal mainstream and Yoo’s views off in the fringe. One thus wonders why Yoo wrote the piece for publication in the Times—it is easy to understand why the Times would run it (and why Yoo would want to communicate it to like-leaning minds).
Yoo champions what he calls “the Bush administration’s theories of the unitary executive.” This refers to an interpretation of the Constitution reposing executive power exclusively in the President, unbound by Congress or courts. Yoo reads a 2001 Kagan law review article to reject finding any constitutional basis for such broad assertions of presidential power. To Yoo, this would be the mark of a bad judge, unsuited for the Supreme Court; what Yoo shows, however, is that this would be the mainstream.
May 27, 2010 at 9:53 am
Posted in: Constitutional Law, Current Events, Jurisprudence, Politics
Print This Post
8 Comments
Book Review: Rorty & Schmidt’s Kant’s Idea for a Universal History with a Cosmopolitan Aim
posted by Stefan Bird-Pollan
Amélie Rorty and James Schmidt. Kant’s Idea for a Universal History with a Cosmopolitan Aim: A Critical Guide. Cambridge: Cambridge University Press, 2009.
The collection presently under review is devoted to the understanding of Kant’s essay Idea for a Universal History with a Cosmopolitan Aim (original German title: Idee zu einer allgemeinen Geschichte in Weltbürgerlicher Absicht). Kant’s article was published in 1784 a full year before his monumental Groundwork of a Metaphysics of Morals (1785) which has for almost two centuries dominated the reception of Kant’s ethics. There is a striking difference between the two works. Idea presents us with a historical account of both the history and the continued prospects for the development of a truly moral society, while the Groundwork presents us with a theory purporting to explain to us why we are, always have been, and always will be, capable of being moral. The project of the Groundwork is thus essentially justificatory while Idea explores the conditions for the possibility of morality becoming something we actually live by rather than merely being capable of. The fact that Kant had both ideas in mind at the same time deserves to be underlined, especially given the received (but now less dominant) interpretation of Kant as a strict moralist who believes we are at all times capable of acting morally. The present collection of essays goes some way toward softening this interpretation.
Kant’s essay (only 14 pages long), included in the collection and well translated by Allen Wood, is concerned to show that human history can be understood as a plan of nature which seeks to move us toward morality, whether we intend it or not. It is part of Kant’s critical project that such a plan of nature cannot, however, be known but must remain at the level of an idea of reason. (More on this below.) Kant proceeds by way of nine propositions which outline how nature pushes us to become rational and hence moral.
May 14, 2010 at 1:24 am
Posted in: Book Reviews, Jurisprudence, Legal Theory
Print This Post
One Comment
