Category: Legal Theory

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Radical Pragmatism

Cambridge Companion to Pragmatism 01I recently posted on SSRN a book chapter I co-authored with Professor Michael Sullivan (Emory, Philosophy).  The chapter is called Radical Pragmatism and it is in The Cambridge Companion to Pragmatism pp. 324-344 (Alan Malachowski, ed. 2013).  This is a much shortened version of an earlier essay we wrote critiquing Judge Richard Posner’s conception of pragmatism.  We have tightened the argument, and this piece makes our key points much more succinctly.  Here’s the abstract:

“[P]ragmatist theory of law is, like much pragmatist theory, essentially banal.” So wrote Thomas Grey at the dawn of pragmatism’s renaissance in legal theory. Several contemporary pragmatists, as well as a number of critics of pragmatism, view pragmatism as a thin theory, more of a method than a philosophy with substantive commitments. For example, Richard Posner, one of the leading contemporary pragmatists, asserts that “pragmatism is more a tradition, attitude, and outlook than a body of doctrine” and that it has “no inherent political valence.” Likewise, Richard Rorty contends that pragmatism “is neutral between alternative prophecies, and thus neutral between democrats and fascists.”

Under this view, pragmatism generally leads to cautious common-sense policies. It is far from radical and unsettling, for it is too lacking in substantive value commitments to be otherwise. In this book chapter, we contest this account of pragmatism and offer a thicker account. Pragmatism does indeed have a political valence. It has substantive values. And, far from being banal, it is radical at its core.

You can download the chapter on SSRN.

A More Nuanced View of Legal Automation

A Guardian writer has updated Farhad Manjoo’s classic report, “Will a Robot Steal Your Job?” Of course, lawyers are in the crosshairs. As Julius Stone noted in The Legal System and Lawyers’ Reasoning, scholars have addressed the automation of legal processes since at least the 1960s. Al Gore now says that a “new algorithm . . . makes it possible for one first year lawyer to do the same amount of legal research that used to require 500.”* But when one actually reads the studies trumpeted by the prophets of disruption, a more nuanced perspective emerges.

Let’s start with the experts cited first in the article:

Oxford academics Carl Benedikt Frey and Michael A Osborne have predicted computerisation could make nearly half of jobs redundant within 10 to 20 years. Office work and service roles, they wrote, were particularly at risk. But almost nothing is impervious to automation.

The idea of “computing” a legal obligation may seem strange at the outset, but we already enjoy—-or endure-—it daily. For example, a DVD may only be licensed for play in the US and Europe, and then be “coded” so it can only play in those regions and not others. Were a human playing the DVD for you, he might demand a copy of the DVD’s terms of use and receipt, to see if it was authorized for playing in a given area. Computers need such a term translated into a language they can “understand.” More precisely, the legal terms embedded in the DVD must lead to predictable reactions from the hardware that encounters them. From Lessig to Virilio, the lesson is clear: “architectural regimes become computational, and vice versa.”

So certainly, to the extent lawyers are presently doing rather simple tasks, computation can replace them. But Frey & Osborne also identify barriers to successful automation:

1. Perception and manipulation tasks. Robots are still unable to match the depth and breadth of human perception.
2. Creative intelligence tasks. The psychological processes underlying human creativity are difficult to specify.
3. Social intelligence tasks. Human social intelligence is important in a wide range of work tasks, such as those involving negotiation, persuasion and care. (26)

Frey & Osborne only explicitly discuss legal research and document review (for example, identification and isolation among mass document collections) as easily automatable. They concede that “the computerisation of legal research will complement the work of lawyers” (17). They acknowledge that “for the work of lawyers to be fully automated, engineering bottlenecks to creative and social intelligence will need to be overcome.” In the end, they actually categorize “legal” careers as having a “low risk” of “computerization” (37).

The View from AI & Labor Economics

Those familiar with the smarter voices on this topic, like our guest blogger Harry Surden, would not be surprised. There is a world of difference between computation as substitution for attorneys, and computation as complement. The latter increases lawyers’ private income and (if properly deployed) contribution to society. That’s one reason I helped devise the course Health Data and Advocacy at Seton Hall (co-taught with a statistician and data visualization expert), and why I continue to teach (and research) the law of electronic health records in my seminar Health Information, Privacy, and Innovation, now that I’m at Maryland. As Surden observes, “many of the tasks performed by attorneys do appear to require the type of higher order intellectual skills that are beyond the capability of current techniques.” But they can be complemented by an awareness of rapid advances in software, apps, and data analysis.
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UCLA Law Review Vol. 61, Issue 4

Volume 61, Issue 4 (May 2014)
Articles

Expressive Enforcement Avlana Eisenberg 858
Insider Trading as Private Corruption Sung Hui Kim 928
Marriage Equality and Postracialism Russell K. Robinson 1010

 

Comments

Fast and Furious, or Slow and Steady? The Flow of Guns From the United States to Mexico Jessica A. Eby 1082
Parole Denial Habeas Corpus Petitions: Why the California Supreme Court Needs to Provide More Clarity on the Scope of Judicial Review Charlie Sarosy 1134

 

 

 

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Economic Dynamics and Economic Justice: Making Law Catastrophic, Middling, or Better?

Contrary to Livermore,’s post,  in my view Driesen’s book is particularly powerful as a window into the  profound absurdity and destructiveness of the neoclassical economic framework, rather than as a middle-ground tweaking some of its techniques.  Driesen’s economic dynamics lens makes a more important contribution than many contemporary legal variations on neoclassical economic themes by shifting some major assumptions, though this book does not explore that altered terrain as far as it might.

At first glance, Driesen’s foregrounding of the “dynamic” question of change over time may, as Livermore suggests, seem to be consistent with the basic premise of neoclassical law and economics:   that incentives matter, and that law should focus ex ante, looking forward at those effects.   A closer look through Driesen’s economic dynamics lens reveals how law and economics tends to instead take a covert ex post view that enshrines some snapshots of the status quo as a neutral baseline.  The focus on “efficiency” – on maximizing an abstract pie of “welfare”  given existing constraints —  constructs the consequences of law as essentially fixed by other people’s private choices, beyond the power and politics of the policy analyst and government, without consideration of how past and present and future rights or wrongs constrain or enable those choices.  In this neoclassical view, the job of law is narrowed to the technical task of measuring some imagined sum of these individual preferences shaped through rational microeconomic bargains that represent a middling stasis of existing values and resources, reached through tough tradeoffs that nonetheless promise to constantly bring us toward that glimmering goal of maximizing overall societal gain (“welfare”) from scarce resources.

Driesen reverses that frame by focusing on complex change over time as the main thing we can know with certainty.  In the economic dynamic vision, “law creates a temporally extended commitment to a better future.” (Driesen p. 52). Read More

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To Define the Beginning of Human Life or Not, That Is the Question

Twice a month I meet with some of my students for a critical reading.  In our last January meeting, we decided to commemorate Roe by re-exploring Judith Jarvis Thomson’s  seminal article A Defense of Abortion. Thomson’s defense of induced abortion by exploring our moral duties in the unrealistic case one found oneself kidnapped and plugged in to a virtuous violinist who is sick and needs one’s kidneys for nine months in order to heal has been highly criticized. Nonetheless, every time I read it or discuss it, I find how enlightening her thought experiment still is, as it confronts us with our set of moral beliefs and its incongrueties with our policy stances. Moreover, it makes me always ponder about our lack of a well-thought and coherent abortion regulating scheme.  But that is a topic for a different post. Today, I would like to concentrate on a related matter that stemmed from my discussion of Thomson’s article with my students.

By the end of our conversation my students and I were inquiring whether it was possible to assert a defense of stem cell research/therapy even taking for granted the right of life of the embryos, as Thomson did in her paper. It seemed obvious for almost all of us that using embryos for those purposes would be considered a blatant deprivation of the embryo’s right to life and an impermissible use of another person’s body; and thus, could not be sustained under Thomson’s argument. So we decided to try to come up with a scenario similar to Thomson’s violinist that could aid us in exploring the moral adequacy of stem cell research/therapy.

An appropriate thought experiment eluded our not so brilliant minds. We did not want to come up with a fallacious and common place thought experiment such as the one of the burning building test  in which one is forced to decide who to rescue first: twenty 8-cell embryos kept in a freezer or a baby in peril. We were not looking to formulate an experiment tilted to one side like the burning building test, in which the “incomplete human character” of the embryo is made self-evident by the “inescapable instinct” to rescue the “actual” human being. However, the truth is that it is quite difficult to come up, in a couple of minutes, with a reasonable possible scenario in which all the circumstances of stem cell research/therapy are replicated in a way that could sensibly help us assess our moral agency.

First, we would need to come up with a scenario in which we have a “human being” in a permanent frozen state (e.g. a cryogenized virtuous violinist) in which the conditions necessary for a successful life require a willing human host that is either related to the cryogenized violinist or has the authorization of his guardian to serve as a host for nine months.  Second, we must come up with a particular circumstance (e.g. a military operation) that would force the guardian of the cryogenized violinist to choose between using the frozen body to help in the recovery of a sick non-cryogenized human being (e.g. a  young Science Nobel laureate) whose only real, feasible and cost efficient chance to a healthy life is using that frozen body at the expense of eliminating all possible chances of an uncertain future life for the cryogenized violinist or leaving the cryogenized violinist frozen for an indefinite period of time and allowing for the sick non-cryogenized Nobel laureate to die. Finally, we would need to come up with the circumstances that led the cryogenized violinist to be treated as a surplus human being and at the same time be treated as the raw materials for the creation of future equally virtuous violinists (e.g. the practice of cloning virtuous musicians).  Furthermore, the example would need to consider the possibility of making the cryogenized violinist for the sole purpose of healing the sick non-cryogenized laureate (e.g. the possibility of the world coming to an end if the Nobel laureate does not find a solution to the problem before he dies from her sickness).

The end result is a very absurd, unrealistic and perhaps too intricate thought experiment.  Yet, exploring the limits of such an experiment may be a possible way to coming up with a defense of stem cell research/therapy even when one grants the right of life of the embryos.  Nonetheless, I would like to pose that the absurdity and illusory nature of these thought experiments suggest that we should face the inevitable: we must delimit when human life begins if we truly would like to come up with a moral/ethical regulation of stem cell research/therapy. This inescapable moral question is more evident when we contrast our legal stances and nation’s practices on issues like torture, war, death penalty, abortion, euthanasia and justification and necessity defenses.  The system is manifestly incoherent.

I do believe that a sensible answer will only come when we legally embrace the fact that life – and by extension human life – exists in a continuum. Law should echo that reality. A coherent and ethical sound system can only arise after we legally recognize that there is a point in that continuum in which life becomes human and that there are different stages before that point in which life is a subject of certain rights but not the same rights a human life is a subject thereof. Laws should define that moment and those stages. There is no moral reason to avoid doing so. As there is no ethical rationale either to treat totipotent, pluripotent, multipotent, oligopotent, unipotent cells, fully developed human beings not capable of living on their own, and born human beings in the same way.  Furthermore, our history and legal system have always made distinctions on how we treat the right to life of human beings based on particular deontological assumptions.

Our inquiry into how to regulate stem cell research/therapy should not be made under the assumption that embryos are in fact human beings and subjects of the same rights. A valid answer to this recent human reality must be based on a rigorous analysis of moral questions such as: 1. When does a life become a human life?; 2. Which type of rights is a non-human life entitled to?; 3. Are there different stages of a non-human life?; 4. Are those stages deserving of a differentiated right treatment?; 5. What are our moral duties to a human life?; 6.  What are our moral duties to a non-human life and it corresponding stages?; and 7. Under which circumstances are we relieved from those duties to human and non-human lives? These questions should be guiding our legislative process regarding scientific inquiries and not biased assumptions as to what constitutes human life.

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The Dialectics of the State: Recent Work in Hegel’s Political and Legal Philosophy

Lydia Moland, Hegel on Political Identity. Evanston, IL: Northwestern University Press, 2011.

Thom Brooks, Hegel’s Political Philosophy. Edinburg: Edinburg University Press, 2013.

Thom Brooks (ed.) Hegel’s Philosophy of Right, Oxford: Blackwell, 2012.

 

One of the hallmarks of the reception of Hegel in the last 30 years is that Hegel’s work  have inevitably been understood in the context of his great predecessor Kant. Of the books under review here it is particular the collection of essays on Hegel’s Philosophy of Right that takes this reception strategy to heart. The two books under review, rather than seeking to draw an explicit contrast between the two, rather seek to position Kant and Hegel as fighting for the same sort of embodied ideal of freedom. Freedom, of course, is said in many ways and so many of the issues that emerge in these new and interesting works concern the particular social institutions that express freedom. The thesis of this review, if reviews could have a thesis, is to show that the works in question, particularly the works by Moland and Brooks, make an important contribution to overcoming the specious divide between Kant and Hegel so that Kant and Hegel might be revealed as what they intended themselves to be doing: diagnosing the ills and promises of modernity in a way that will help us to become free.

For ease of use, and because this review covers quite a bit of ground, I have separated this review into five sections and readers might skip forward to these depending on their interest in the topics. According, section (1), System, deals with some of the larger questions raised by Hegel’s response not only to Kant but also to metaphysics itself as detailed by Brooks. Section (2), Morality discusses Hegel’s famous Kantkritik according to which Kant’s categorical imperative is an empty formalism. Section (3), Legal Philosophy concerns Brooks’s interpretation of Hegel’s legal philosophy as an ‘internalist natural law theory’, where this means essentially that Hegel is an anti-positivist who nonetheless believes that legal norms must emerge immanently from society rather than as revealed by god. Section (4) examines Hegel’s view of Government, as detailed in Brooks’. Section (5) on World History deals with Moland’s interesting proposal that Hegel’s with regard to the international political order should be characterized as an ethical cosmopolitanism in the sense that each nation state will necessarily move beyond itself toward recognition of others in as what she calls ethical cosmopolitanism rather than as a Kantian style world government.

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UCLA Law Review Vol. 61, Issue 1

Volume 61, Issue 1 (December 2013)
Articles

Against Endowment Theory: Experimental Economics and Legal Scholarship Gregory Klass & Kathryn Zeiler 2
Why Broccoli? Limiting Principles and Popular Constitutionalism in the Health Care Case Mark D. Rosen & Christopher W. Schmidt 66

 

Comments

“Let’s Have a Look, Shall We?” A Model for Evaluating Suspicionless Border Searches of Portable Electronic Devices Sid Nadkarni 148
An Article III Divided Against Itself Cannot Stand: A Critical Race Perspective on the U.S. Supreme Court’s Standing Jurisprudence Raj Shah 198

 

 

 

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UCLA Law Review Volume 60 Symposium: Volume 60, Issue 6 (September 2013) and Discourse

UCLA Law Review, Volume 60 Symposium

Twenty-First Century Litigation: Pathologies and Possibilities

A Symposium in Honor of Stephen Yeazell

 

Volume 60, Issue 6 (September 2013)
Articles

Complexity, the Generation of Legal Knowledge, and the Future of Litigation Ronald J. Allen 1384
Regulation by Liability Insurance: From Auto to Lawyers Professional Liability Tom Baker & Rick Swedloff 1412
When Courts Determine Fees in a System With a Loser Pays Norm: Fee Award Denials to Winning Plaintiffs and Defendants Theodore Eisenberg, Talia Fisher, and Issi Rosen-Zvi 1452
Symmetry and Class Action Litigation Alexandra D. Lahav 1494
Atomism, Holism, and the Judicial Assessment of Evidence Jennifer L. Mnookin 1524
Altering Attention in Adjudication Jeffrey J. Rachlinski, Andrew J. Wistrich, and Chris Guthrie 1586
Wolves and Sheep, Predators and Scavengers, or Why I Left Civil Procedure (Not With a Bang, but a Whimper) D. Michael Risinger 1620
Gateways and Pathways in Civil Procedure Joanna C. Schwartz 1652
Pleading and Access to Civil Justice: A Response to Twiqbal Apologists A. Benjamin Spencer 1710
Teaching Twombly and Iqbal: Elements Analysis and the Ghost of Charles Clark Clyde Spillenger 1740
Unspoken Truths and Misaligned Interests: Political Parties and the Two Cultures of Civil Litigation Stephen C. Yeazell 1752

 

 

Volume 61, Discourse

Discourse

Re-Re-Financing Civil Litigation: How Lawyer Lending Might Remake the American Litigation Landscape, Again Nora Freeman Engstrom 110
Of Groups, Class Actions, and Social Change: Reflections on From Medieval Group Litigation to the Modern Class Action Deborah R. Hensler 126
Procedure and Society: An Essay for Steve Yeazell William B. Rubenstein 136
What Evidence Scholars Can Learn From the Work of Stephen Yeazell: History, Rulemaking, and the Lawyer’s Fundamental Conflict David Alan Sklansky 150
Procedure, Substance, and Power: Collective Litigation and Arbitration Under the Labor Law Katherine V. W. Stone 164
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LSA Retro-Recap Days 2-3: Leisure, Law & Econ, and Liberalism

Day 2 of the conference saw a spirited panel (featuring Scott Shaprio, Ken Ehrenberg, Michael Guidice, and Brian Tamanaha) about the (ir)reconcilability of legal anthropology and sociolegal studies with analytic jurisprudence. Much of the discussion (not to mention the spirit) here concerned the appropriate definition of a “concept.” If that kind of question does not induce somnolence for you, then read on! Read More