Archive for the ‘Law and Humanities’ Category
The Relationship Between Theory and Practice
posted by Daniel Solove
The longstanding attacks on legal scholarship all seem to assume a particular relationship between theory and practice, one that I believe is flawed. Recently, I responded to one such critique. There are others, with Justice Roberts and many other judges and practitioners claiming that legal scholarship isn’t worth their attention and isn’t useful to the practice of law.
It seems to me that those making these critiques assume that the primary value of legal scholarship should be to (1) describe current legal doctrine to make legal research easier for practitioners; or (2) influence an immediate and direct change in the law. In an earlier post, I argued that #2 above is an unreasonable standard. Legal change is slow, and rarely will one article have a direct influence. Rarely does one thing have a direct influence — change typically occurs more through an indirect influence by numerous sources. Only in the movies or in simplistic historical accounts will we see one article or book lead to dramatic changes. Of course, it occasionally happens, but rarely.
In this post, I want to tackle claim #1. The treatise writers and doctrinal legal scholarship of yesteryear has diminished, though it isn’t gone. Last I checked, there were quite a lot of treatises written by quite a lot of law professors. But there is today a lot more theoretical scholarship. Is this scholarship valuable if it doesn’t help in legal research?
The answer is yes for many reasons:
1. As with all humanities, the value of any particular work is hard to quantify. What’s the value of Kafka’s The Trial or works by Shakespeare? What’s the value of reading history? What’s the value of learning things that don’t have direct application to one’s career? I believe there’s a lot of value. Reading these works opens up new ways of thinking, sparks new ideas, and helps people understand the world differently. This can indirectly affect one’s legal practice skills by enhancing creativity, improving one’s writing style, or making one see the facts of a case in a different light. It is interesting that many of the great jurists were also avid readers of literature. Indeed, many of the great thinkers and writers throughout history had wide-ranging intellectual interests and reading habits. Would people like Benjamin Franklin or Thomas Jefferson be as creative if they had more narrow and workmanlike intellectual exploration? Probably not. Would Justice Holmes have been as great without his love of the humanities? I doubt it.
2. There is a value in critiquing legal decisions and laws, even if the critique winds up remaining in dissent. Why do justices bother to write dissents? After all, it often takes decades if not 40-50 years for the Supreme Court to change the law. They write dissents in the hope that one day the Court will see things differently. They write them to make a record. There is a value in criticizing legal opinions and laws even if it doesn’t immediately result in a change. Indeed, many of the critiques of legal decisions and laws that I read in legal scholarship are very powerful ones. Courts and lawmakers should pay more attention, as the scholarship often reveals logical flaws in reasoning, clear errors in applying precedent, assumptions that are based on faulty facts, assumptions that are wrong based on empirical evidence, or assumptions that are contrary to widely-accepted conclusions in science or social science. Courts and legislatures may hide their heads in the sand, but that shouldn’t be a justification for criticizing legal scholarship — it should be a basis for criticizing courts and lawmakers.
November 26, 2011 at 5:31 pm
Posted in: Law and Humanities, Law School (Scholarship), Legal Theory
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The Usefulness of Legal Scholarship
posted by Daniel Solove
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.
November 26, 2011 at 4:19 pm
Posted in: Jurisprudence, Law and Humanities, Law Practice, Law School (Scholarship), Legal Theory
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Q&A with Lior Strahilevitz about Information and Exclusion
posted by Daniel Solove
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.
September 28, 2011 at 11:17 pm
Posted in: Book Reviews, Bright Ideas, Jurisprudence, Law and Humanities, Law and Psychology, Legal Theory, Privacy, Sociology of Law
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Constitutional Protestantism or Constitutional Televangelism
posted by Joey Fishkin
I appreciate Doug taking up questions from my earlier post and I think he’s right about the central role elites play in interpreting constitutional texts.
I think this is yet another area where Jack’s analogy (or really, Sandy Levinson’s analogy, which Jack credits generously) between constitutional faith and religious faith, between the Bible and the Constitution, is highly instructive. The Protestant idea that we all can read and interpret the Word for ourselves is just that—an idea. It is an important idea for reasons I’ll say something about in a second, but it’s somewhat aspirational. One can, and some people do, believe in the authority or even the inerrancy of the Bible without reading it much (or at all). It is also possible to read it without understanding it very well. Most people today report that they find Biblical text hard to understand (although the irony is not lost on me that the survey I just linked to saying so was conducted by the Vatican).
Luckily, if you have a hard time reading or understanding your Bible or your Constitution, help is on the way! Many experts and leaders—elites, as Doug says—stand ready to help by offering interpretations, often complete with textual citations, that ordinary people can understand (and there is no need for most people to actually go look up the citations). Very often these authorities offer their interpretations in a manner that is charismatic, memorable, and convincing. Their interpretations are all the more convincing when they happen to square with one’s own pre-existing beliefs about what the Bible or Constitution ought to say or mean.
So does all this mean the Protestant idea has no practical effect? Quite the contrary. The Protestant idea has an extremely important effect. The normative premise that we all are able to read and interpret the text for ourselves means that we do not have to trust the priests in the temple; we do not have to trust the Justices who emerge from behind the curtain of the Court. We get to decide for ourselves who to trust, whose interpretive authority to respect. This is, as Jack says, a great theology for dissent. We can decide we agree with people who say that on a particular question, all nine Justices got it wrong.
This is why Jack’s conception of constitutional Protestantism is linked in a such a deep way with his account of the role social movements play in constitutional change. But in my view, the mechanism by which constitutional Protestantism empowers social movements to make constitutional changes has little to do with ordinary people literally reading the constitutional text and coming up with their own interpretations of its meaning. Read the rest of this post »
August 2, 2011 at 9:21 pm
Posted in: Constitutional Law, Constitutional Redemption Symposium, Law and Humanities, Religion
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What kind of constitution is the subject of this book?
posted by Joey Fishkin
First, thanks to Danielle and Jack for the opportunity to participate in this symposium. I’m happy to do it because I think this is a fantastic book.
Among many other things, this book offers a particularly well-developed story about the role that stories play in constitutional argument and constitutional change. I thought I’d start there, because that piece is at the foundation of the argument of the book. Also it has the fun property that once you start thinking in its terms, you start seeing examples everywhere. Indeed you see these moves even in debates that are not, explicitly, constitutional debates.
And this raises an interesting question: to what extent is this book about faith in the Constitution, and to what extent is it, instead, about faith and redemption in something like the broad political/constitutional project of the United States? It is hard to separate these things. But let’s look at places where the two might plausibly come apart. Jack (citing Mark Graber) notes that in recent years, among liberals, the canonical example of a policy problem the constitution does not address is the distribution of income and wealth (132-33). So let’s begin with the stories we tell about fiscal policy.
Last April, President Obama made a speech on the deficit and fiscal policy in which he offered a defense of Medicare, Medicaid, and unemployment insurance, along with Social Security. He said: “From our first days as a nation, we have put our faith in free markets and free enterprise as the engine of America’s wealth and prosperity. More than citizens of any other country, we are rugged individualists, a self-reliant people with a healthy skepticism of too much government. But there’s always been another thread running through our history -– a belief that we’re all connected, and that there are some things we can only do together, as a nation.” After discussing such collective projects as schools, science, the military, and the interstate highway system, Obama argued that Medicare, Medicaid, unemployment insurance, and Social Security were part of this “American belief that we are all connected,” which is in part a “conviction that each one of us deserves some basic measure of security and dignity.” He argued, “We are a better country because of these commitments. I’ll go further – we would not be a great country without those commitments.”
Rick Santorum sharply criticized these comments in a speech in June. Santorum quoted the lines above and responded, “Ladies and gentlemen, America was a great country before 1965!” When the applause died down, he continued: “Social conservatives understand that America is a great country because it was founded great. Our founders, calling upon, in the Declaration of Independence, the Supreme Judge, calling upon Divine Providence, said what was at the heart of American exceptionalism. In the Declaration of Independence it said ‘We hold these truths to be self-evident, that all men are created equal and endowed by our Creator with certain inalienable rights.’ You see, our founders understood that we were going to take the principles, Judeo-Christian principles, that had been out there for centuries, and we were going do something radical. We were actually going to found a government upon these principles.”
August 1, 2011 at 2:49 pm
Posted in: Constitutional Law, Constitutional Redemption Symposium, Law and Humanities
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Constitutional Redemption: Narratives, Historical and Fictional
posted by Josh Chafetz
It’s an honor to be here, commenting on Jack’s hugely impressive and erudite work of constitutional scholarship. If you haven’t read it yet, the most useful thing I can say to you is to stop reading what I have to say and go read what he does. I especially admire his discussion of the role of narrative in constitutional argument, and it is that part of the book that I’d like to focus on. I should say at the outset that I don’t have any criticisms—and I may not even have any comments!—to make. Really, what I have are some questions. (And I don’t mean that in the standard, law professor-y “I’m going to make my comments and then add a question mark at the end” sense. I really don’t have answers for these questions.)
Jack lays out his own narrative of constitutional development at pages 18-23. It is a powerful narrative, one that describes American constitutional development as a slow and always-incomplete attempt to redeem the promise of the Declaration of Independence, which Jack understands as embodying an attack on “the social structure of monarchy” (p. 23), or, even more ambitiously, a “demand for social equality” (p. 22). There is a great deal to find appealing in this narrative, and its brevity should not lead us to underestimate its potency (as, I think, Adrian Vermeule did in his review of the book).
Others may wish to comment on the lessons Jack draws from this narrative, or even on its historical accuracy. But that’s not my interest here. Instead, I’m interested in why the narrative’s claim to historical accuracy is important in the first place.
August 1, 2011 at 10:17 am
Posted in: Constitutional Law, Constitutional Redemption Symposium, Law and Humanities
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At the Brainwash
posted by Brian Frye
In Exit Through the Gift Shop (2010), the anonymous British artist Banksy documented the transformation of Thierry Guetta from a used clothing salesman and amateur videographer into the art star “Mr. Brainwash.” The film is a droll sendup of the art world, culminating in Guetta’s wildly successful monster art show, which consists exclusively of asinine Banksy knockoffs. Among other things, Guetta’s artwork prominently features reproductions of an iconic photograph of 80s rappers Run-D.M.C. For example, “Old Photo” (pictured) combined the Run-D.M.C. photograph with an anonymous 19th century photograph.
June 14, 2011 at 9:37 pm
Posted in: Intellectual Property, Law and Humanities
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Thoughts on an Earthquake: Narratives and Governance
posted by Andrew Sutter
[Attorney and journalist Andrew J. Sutter is the only foreign member of the Iwate Prefecture Bar Association. He lives most of the year in central Tokyo. We've invited him to give his perspective on recent events in Japan. --FP]
There’s been a joke making the rounds of Tokyo during the past week or so: The government announces in the morning that there could be a sudden blackout sometime by early evening, since power capacity is down and the demand is already very near to capacity. In America, the blackout happens, and stores get looted. In China, the blackout happens and no one notices, since they’re already a common occurrence. In France the blackout happens, and people start to make love. In Germany the blackout happens, and no one cares, because everyone has solar power. In Japan, millions of Japanese conscientiously reduce power consumption, so the blackout is avoided – and then people are pissed off because the blackout didn’t happen as announced.
Aside from showing the gentleness of the Japanese sense of satire, it’s a true story, based on events in Tokyo exactly one week after the Touhoku (northeastern Japan) earthquake. The joke arrived on my wife’s cell phone about an hour or two after officials rescinded the warning.
The joke also shows a certain trust in the government and in the reliability of its pronouncements. More about this below the fold.
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March 28, 2011 at 9:05 pm
Posted in: International & Comparative Law, Law and Humanities
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Key Performance Indicators: Power as Knowledge
posted by Frank Pasquale
There is an excellent review essay by Simon Head on the future of British universities in the NYRB. It discusses the Strategic Plan of the Higher Education Funding Council for England (HEFCE), including the “Research Assessment Exercise (RAE) led every six or seven years.” As of 2008, panels of 10 to 20 specialists in 67 fields evaluate work during RAEs. As the author explains,
The panels must award each submitted work one of four grades, ranging from 4*, the top grade, for work whose “quality is world leading in terms of originality, significance and rigor,” to the humble 1*, “recognized nationally in terms of originality, significance, and rigour.” The anthropologist John Davis . . . has written of exercises such as the RAE that their “rituals are shallow because they do not penetrate to the core.”
I have yet to meet anyone who seriously believes that the RAE panels—underpaid, under pressure of time, and needing to sift through thousands of scholarly works—can possibly do justice to the tiny minority of work that really is “world leading in terms of originality, significance and rigour.” But to expect the panels to do this is to miss the point of the RAE. Its roots are in the corporate, not the academic, world. It is really a “quality control” exercise imposed on academics by politicians; and the RAE grades are simply the raw material for Key Performance Indicators [KPIs], which politicians and bureaucrats can then manipulate in order to show that academics are (or are not) providing value for taxpayers’ money.
Imagine “needing to sift through thousands of scholarly works” in short order; what a bizarre process. There are many critics of RAE; this essay is particularly worth reading because it connects the dots between corporate-speak and the new academic order:
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March 4, 2011 at 5:27 pm
Posted in: Civil Rights, Culture, Education, Law and Humanities, Philosophy of Social Science
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UCLA Law Review Vol. 58, Issue 3 (February 2011)
posted by UCLA Law Review
Volume 58, Issue 3 (February 2011)
Articles
| Good Faith and Law Evasion | Samuel W. Buell | 611 |
| Making Sovereigns Indispensable: Pimentel and the Evolution of Rule 19 | Katherine Florey | 667 |
| The Need for a Research Culture in the Forensic Sciences | Jennifer L. Mnookin et al. | 725 |
| Commentary on The Need for a Research Culture in the Forensic Sciences | Joseph P. Bono | 781 |
| Commentary on The Need for a Research Culture in the Forensic Sciences | Judge Nancy Gertner | 789 |
| Commentary on The Need for a Research Culture in the Forensic Sciences | Pierre Margot | 795 |
Comments
| What’s Your Position? Amending the Bankruptcy Disclosure Rules to Keep Pace With Financial Innovation | Samuel M. Kidder | 803 |
| Defendant Class Actions and Patent Infringement Litigation | Matthew K. K. Sumida | 843 |
February 25, 2011 at 1:19 pm
Posted in: Bankruptcy, Civil Procedure, Constitutional Law, Courts, Criminal Law, Criminal Procedure, Current Events, Economic Analysis of Law, Empirical Analysis of Law, Evidence Law, History of Law, Indian Law, Intellectual Property, International & Comparative Law, Jurisprudence, Law and Humanities, Law and Inequality, Law and Psychology, Law Practice, Law Rev (UCLA), Psychology and Behavior, Race, Sociology of Law, Supreme Court
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A2K, Practice, Nonknowledge
posted by Marcus Boon
Congratulations to all involved on the publication of the A2K volume! I think A2K is a provocative way of framing some contemporary debates around knowledge, information, community, property, intellectual or otherwise. It feels like every week brings us some new shift which is being linked to A2K issues: Tunisia; Egypt; WikiLeaks to name just a few. In many of these situations, what’s at stake is the way that knowledge is legally characterized as property: state property; private property etc. And the ways in which our ability to reproduce and disseminate knowledge radically shifts our understanding of what an object or subject of knowledge is, bringing into being new publics and new kinds of archive.
For me, the point made at the end of Amy’s introduction, about the need to separate “knowledge” from “information” is a key one, in that if all knowledge is rendered as information and more specifically information stored and passed around in digital data networks, then knowledge has already been reified or turned into a commodity. Perhaps I might even wonder if there was a more fundamental kind of access than “access to knowledge” that was at stake in contemporary struggles about intellectual property. For example if communities and individuals are constituted by practices of copying, things like pleasure, affect, relation are all there, even “being”. It’s always possible to instrumentalize those things are forms of knowledge or “ethical know how” as Buddhist neurologist Francisco Varela termed it. But it may be the case that something important gets lost if one overemphasizes knowledge at the expense of other forms of being in the world.
In my own work, I’ve emphasized the importance of practice as being important in itself, regardless of the “content”. How do we defend particular practices of copying that may or may not be centered on knowledge production but which nonetheless are culturally significant? There’s an important body of work in critical theory, from Bataille and Blanchot through Agamben and Nancy on the importance of “nonknowledge” and “unworking” (désoeuvrement). These concepts can seem very abstract and removed from the concrete struggles of social activists, but I wonder to what degree they might be helpful in thinking and making spaces where openness and sharing prevail, spaces that can’t necessarily be defined in advance as public domain or commons etc.
February 3, 2011 at 9:47 am
Posted in: Intellectual Property, Law and Humanities, Philosophy of Social Science, Symposium (Access to Knowledge)
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Book Review: Hirschl’s Constitutional Theocracy
posted by Anna Su
Ran Hirschl, Constitutional Theocracy (Harvard University Press, 2010), pp.249, $45.00
Religion-state relations have always been a staple topic in comparative constitutional law scholarship. This is, however, the first work that takes a broad and comprehensive overview of a not-so-new but largely ignored landscape which Ran Hirschl calls “constitutional theocracy.” This term describes and at the same time, zeroes in on the basic issue that form part of every dilemma with regard to the proper relationship between religion and state. How does one reconcile divine and man-made law?
In this counterintuitive, rich and fascinating book, Hirschl identifies the prevalence of a new form of political phenomenon called a constitutional theocracy which he situates at the intersection between a pure theocracy and a liberal constitutional democracy. According to him, constitutional theocracy has four elements: first, it adheres to elements of modern constitutionalism including judicial review, second, there is usually an established state religion, third, the religion and its corresponding texts are considered sources of state legislation, and lastly, parallel religious tribunals exist alongside the civil adjudication system.
The conventional understanding is that we should view this development with caution. Hirschl identifies that view with local secular elites who see religion with disdain, both for its seeming irrationality and its propensity for unpredictability. Paradoxically, the solution that secular elites came up with is to embrace this development. To constitutionally incorporate religious symbols and directives is ultimately the most prudent and rational response to the pressures brought about by the rise of political religion. For one, it facilitates the deployment of various means of political control, such as delegation and cooptation. To get from one to the other, Hirschl’s previous work on the origins and consequences of new constitutionalism offers a clue.
In Towards Juristocracy, Hirschl advanced the hegemonic preservation thesis in which threatened political elites who seek to preserve or enhance their hegemony empowered the judiciary to decide even highly political matters in order to insulate policy-making processes from the vicissitudes of democratic politics. One can see similar themes at play in his new book, particularly the divide between secular elites and the religious masses, and the peculiar role of constitutional courts in managing political hot potatoes, which, in this setting, refers to religion.
December 6, 2010 at 3:51 pm
Posted in: Book Reviews, Law and Humanities, Politics, Religion
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College Preparedness, Law, and the Structure of Standards
posted by Craig Livermore
The Pathway of Preparedness
There is a current debate concerning whether the standard of college preparedness should be written into the structures of education law. The college preparedness argument has been rising to the fore due to the revisions to the current version of the Elementary and Secondary Education Act-popularly known as the No Child Left Behind Act (NCLBA)-proposed in the Obama Administration’s “Blue Print for Reform.” President Obama’s suggested revisions would replace the current NCLBA math, English language arts, and science proficiency standards as a means of evaluating schools with various other measurements, including whether students at schools are being prepared to be “college and career ready.” The proposed change to the legal federal assessment standard is driven by the administration’s view that post-secondary education is essential to individual, communal, and national competitiveness in the Twenty-First Century. President Obama has announced the goal of regaining the global lead in the proportion of the citizenry obtaining post-secondary degrees by 2020. In the realm of education, law is increasingly being relied upon to create incentives, structures and values which have traditionally been thought to be in the realm of private production. The traditional conception of the public school is properly being recast from a provider of information and skill, to the central institution in communal renewal.
However, the federal focus on college preparedness, as with many educational initiatives of the Obama administration, has received criticism. Critics of this emphasis argue that college preparedness is a one size fits all category which will inevitably stigmatize students without the ability or proclivity to attend college, and thus contribute to greater levels of failure and higher school drop out rates due to psychological pressures. Such critics contend that there are many solid middle class trade careers of value which can be viable options for students without the skill level or desire for college. However, defenders of college preparedness are often concerned with a specific context-the inadequacy of our educational systems to address the needs of dis-empowered minority groups, especially in the urban context. College preparedness champions often believe that critics do not fully understand and/or acknowledge the causation of the extreme racial disparities in educational outcomes.
November 11, 2010 at 2:32 pm
Tags: College Preparedness, Education, Education Law, Education Policy, Higher Education, Minorities and Education, Obama administration, Policy, Race and Education
Posted in: Civil Rights, Culture, Current Events, Education, Law and Humanities, Law and Inequality, Race, Uncategorized
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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
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What Will Future Generations Condemn us For?
posted by Frank Pasquale
In the Washington Post, Anthony Appiah takes up this topic. He mentions the US prison system, the treatment of animals in things like CAFOs, and isolation of the elderly. The article reminded me of a recent podcast with William Gibson, where the renowned futurist would predict only that future generations would “regard us with contempt” for all the opportunities we missed.
Projecting future mores is a difficult task. Consider this prophecy from 1918, authored by sociologist Herbert Stewart:
It may turn out that the life of idiotic ostentation makes humanity quite as despicable as the life of a drunkard, and that the image of God is less defaced in a saloon of the Bowery than in those jeweled birthday parties for dogs with which the New York Four Hundred disgust all civilized mankind. That much of this is, in the face of the world’s needs, an enormity for which all defense is mere shamelessness no conscientious person will deny. . . . Take the advertisement of a present-day ‘millionaire’s hotel,’ with the assurance it gives of ‘the very last word in sumptuousness.’ Is this not one of the features of our time upon which we all trust that a wiser age will look back, not only with condemnation, but with a sense of nausea?
We’re still waiting for that wiser age to arrive.
September 27, 2010 at 9:33 pm
Posted in: Economic Analysis of Law, Law and Humanities, Law and Inequality, Uncategorized
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Chatroulette, Julia Child, and the Virtues of Virtual Friendship
posted by Glenn Cohen
A Hispanic teenager listening to music through headphones, a masturbating man, 3 young caucasian women (probably American), two young middle eastern men dressed in army fatigues and a child with a kafiah covering his face shouting something in Arabic and smiling, another masturbating man, 3 japanese young women.
This was what I saw in ten minutes of Chatroulette, an intriguing web site that anyone with a webcam can try. I wanted to try it and blog about it after reading an interesting article in the New Yorker on its teenage Russian founder. You turn on your webcam and are randomly paired with someone else on the site with their webcam on, to whom you can chat vocally or by typing. Either party can push a button that spins the wheel again at any time to be connected with a new partner, and there is no penalty for doing so.
Perhaps 31-year-old law professors are not the favored species in this realm, but I was “nexted” almost immediately in each of the cases except the middle eastern men at whom I started laughing and they laughed back as well. At some point, though, I felt uncomfortable enough myself that I ended the interaction.
Chatroulette is only the newest and strangest instantiation of a phenomenon I’ve been thinking about – virtual friendship. Can one be friends with someone that one has never met, and what kinds of benefits do this form of friendship offer over or to compliment non-virtual friendship? In recently watching Julie and Julia, I was struck by a scene where Julia meets up with the woman, Avis, she has been writing throughout the film. We discover that the two women have never actually met in person despite being extremely close; they have just been pen pals for years.
The disadvantages of virtual friendship are pretty straightforward, but what might the advantages be? Total honesty if it retains an air of anonymity or removal from one’s social circle? The ability to compose oneself (like a piece of music), that is present a very specific slice of oneself? Many people I’ve talked to of a certain age (usually under 35, those who have had socializing technologies for some period of their youth) have had a virtual friend or two at some point. These relationships, however, do not seem very long-lived, certainly not like the decade long correspondence of Avid and Julia. Is that just because our social circles are thicker or there is more competing stimuli than in earlier periods?
To add a legal angle on chatroulette, after seeing Robin Wilson present her paper on Sex Play In Virtual Worlds at a conference this summer, I wondered whether the masturbating men on the site might be subject to criminal liability in some jurisdictions if some of their viewers turned out to be children. Robin (she’ll correct me if I have this wrong) was of the view that on Second Life or other virtual environments that don’t even involve actual images of actual people, under existing doctrine in some states adults can be criminally liable for sexually suggestive remarks and virtual activities. Under existing doctrine this is true even if those minors represent themselves as adults, the perpetrator has a good faith belief they are adults, and even if the service has an 18+ policy (even if enforced by something like requiring a credit card). If that’s right, the comparably less virtual and less regulated domain of chatroulette would seem to be full of potential criminal liability. I am neither a criminal law nor a cyberlaw scholar so I will be curious what those with more expertise think….
September 3, 2010 at 9:06 am
Posted in: Anonymity, Criminal Law, Cyber Civil Rights, Cyberlaw, Law and Humanities, Media Law, Technology, Web 2.0, Weird
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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
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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
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Prop 8, Gays, Homosexuals, and What is In a Name
posted by Glenn Cohen
Like many, I was glued to the blogosphere waiting for the decision in Perry v. Schwarzenegger yesterday, the Prop 8 decision. One seemingly superficial issue I have been interested in is how the court would refer to the class to which the plaintiffs belonged: as “gay” men and women or homosexuals?
I actually first started thinking about this a few months ago. A wonderful midwest law school in a smaller city invited me to a conference and arranged to have a student pick me up at the airport. This was unusually gracious, and I appreciated it, but a funny thing happened on the ride. I asked the student about the city, and what it was like to live there, etc. The student at one point said to me: “Oh, and we have a really vibrant homosexual community.”
I was a little amused that he focused on this element of the city, though perhaps something I said had primed him, or this was just a testament to the perceived role of gays in the rise of the creative classes and a city’s hipness factor. What surprised me the most, though, was actually his language — his use of the term “homosexual” in a positive way. My own anecdotal experience is that people use the term “homosexual” when they want to ascribe negative connotations, and “gay” when they want a more neutral or positive ones. A quick (and very unscientific) google search of the terms “homosexual marriage” and “gay marriage” this morning seems to confirm this.
On this view it is unsurprising, then, that Judge Walker in the Perry opinion repeatedly refers to the plaintiffs and their group as “gays and lesbians”. What is more surprising is that I expected I would find a split in usage between Justice Kennedy and Scalia’s majority and dissenting opinions in Lawrence v. Texas, with “homosexual” being dominant in the Scalia’s opinion. Interestingly, both opinions use “homosexual.”
So here are a few questions I am thinking about: Was my initial instinct that which term to use reflects a political valence correct? Does it instead reflect something else? Geography (think of the student driving me)? Age? A change in time over which term is more acceptable, a little bit like the way the term “handicapped” has given way to “disabled” to “people with disabilities”? Is the usage of “homosexual” by people who do not want to expand rights for the group a subtle attempt to bring the “sex” (in the intercourse sense) back into people’s minds? Which word do you use in the classroom? Would Lesbian, Gay, and Bisexual students be offended by the term “homosexual,” and if so, is that a good reason not to use it?
August 5, 2010 at 11:26 am
Posted in: Civil Rights, Constitutional Law, Current Events, Feminism and Gender, Law and Humanities, Law School, Law School (Teaching), Law Talk, Supreme Court, Uncategorized
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UCLA Law Review Vol. 57, Issue 5 (June 2010)
posted by UCLA Law Review
Volume 57, Issue 5 (June 2010)
Articles
| Introduction to the Symposium Issue: Sexuality and Gender Law: The Difference a Field Makes | Nan D. Hunter | 1129 |
| Elusive Coalitions: Reconsidering the Politics of Gender and Sexuality | Kathryn Abrams | 1135 |
| The Sex Discount | Kim Shayo Buchanan | 1149 |
| What Feminists Have to Lose in Same-Sex Marriage Litigation | Mary Ann Case | 1199 |
| Lawyering for Marriage Equality | Scott L. Cummings Douglas NeJaime | 1235 |
| Sexual and Gender Variation in American Public Law: From Malignant to Benign to Productive | William N. Eskridge, Jr. | 1333 |
| Sticky Intuitions and the Future of Sexual Orientation Discrimination | Suzanne B. Goldberg | 1375 |
| The Dissident Citizen | Sonia K. Katyal | 1415 |
| Raping Like a State | Teemu Ruskola | 1477 |
| The Gay Tipping Point | Kenji Yoshino | 1537 |
July 5, 2010 at 7:12 pm
Posted in: Articles and Books, Constitutional Law, Current Events, Feminism and Gender, History of Law, Immigration, Law and Humanities, Law and Inequality, Law and Psychology, Law Practice, Law Rev (UCLA), Law School, Legal Theory, Politics, Psychology and Behavior, Supreme Court
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