Archive for the ‘Legal Theory’ Category
posted by Stephen Galoob
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 the rest of this post »
posted by Stephen Galoob
I saw a lot of interesting presentations and met many interesting folks on Day 1. I note a spirited (and sparsely attended) panel on Corey Brettschneider’s When the State Speaks, What Should it Say? that, for some inexplicable reason, was held 8:15 am.
posted by Jay Kesten
In an earlier post, I outlined an argument that – despite having attracted a fair amount of criticism – the Supreme Court’s vision of corporate political activity may have substantial normative merit from a corporate governance perspective. In this post, I’ll describe that vision in two related parts. First, whose expressive rights are being vindicated when corporations engage in political activity? And second, what internal governance structures should regulate how and when corporations speak?
The first question raises a tricky issue at the intersection of constitutional law and corporate theory. Corporations are legal fictions, albeit exceedingly useful ones. They are not self-aware, they have no conscience, and they cannot act or speak except through human beings. Yet, the law has long treated corporations as legal “persons” for most purposes, including eligibility for many (though not all) constitutional protections. This treatment poses a metaphysical question: just what sort of “person” is a corporation? To answer this question, the Supreme Court has historically relied on several theories of the corporation: the grant (or concession) theory, the aggregation theory, and the real entity theory. Briefly, the grant theory views the corporation as purely a creature of the state, having only the rights and protections provided by statute, and thus broadly vulnerable to government regulation. The aggregation theory looks past the corporate form to the individual members or shareholders exercising their freedom of associating for some legitimate business, and concludes that corporations must thus have whatever powers and privileges necessary to vindicate the rights of those underlying constituents. The real entity theory posits that corporations exist independently of their constituents or the statutes authorizing them, and are thus a distinct entity entitled to all (or at least most) of the rights of natural persons. The Supreme Court’s corporate jurisprudence has, infamously, cycled repeatedly and inconsistently through each of these theories, often employing multiple theories in the same case.
In contrast to this general indecisiveness, though, the Court’s corporate political speech cases fairly clearly adopt a version of the aggregate view. I treat the language from the cases in more detail in this paper, but the core idea – which flows from the early cases concerning corporations’ right to lobby, through Bellotti and more recently Citizens United - is that First Amendment speech rights inure to human beings. Thus, when corporations speak they do so on behalf of the human constituents acting collectively through the corporate form. As Justice Scalia explains in his Citizens United concurrence: “[t]he authorized spokesman of a corporation is a human being, who speaks on behalf of the human beings who have formed that association.”
As to the second question, the Court gives a firm but vague response: shareholders, acting through the procedures of corporate democracy, decide whether and how their corporations should engage in public debate. Yet, it’s not exactly clear what the Court means by “corporate democracy.” As a matter of corporate law, that concept is not self-defining; the proper allocation of decision-making power between managers and shareholders is one of the central, unresolved debates in modern corporate law. One can, however, glean three key principles from the Court’s decisions. First, the decision-making process is necessarily majoritarian. Some shareholders may dissent from the decision, but their remedy (if any) lays elsewhere. Second, the process must actually vindicate shareholders’ concerns. The Court concluded that shareholders need no legal protections external to corporate law because any ”abuse[s]” – referring to managerial decisions that do not accord with the majority’s desires – can be “corrected by shareholders” through this process. Finally, the Court seems to contemplate something broader than merely the representative democracy of electing the board. As Justice Powell notes in Bellotti, shareholders should be able to privately order their preferences as to corporate political activity by “insist[ing] on protective provisions” in the corporation’s constitutional documents, which would bind managerial authority ex ante.
Some claim that the combination of these criteria simply illustrates the Court’s misunderstanding of modern corporate law. Shareholder control rights within public firms are largely illusory. Even a majority of shareholders cannot insist on corporate action outside of certain limited circumstances, and the directorial election process usually leaves much to be desired in terms of disciplining management.
I argue, though, that there is a ready-made governance structure that conforms with this framework: allow shareholders to enact intra-corporate bylaws regulating corporate political activity, which (in most jurisdictions) they can do unilaterally by majority vote. In the next post, I’ll explain the mechanics of this approach, describe potential limitations arising from current jurisprudence concerning the scope of the shareholder bylaw power, and discuss pragmatic benefits to this form of private ordering.
posted by Charles Whitehead
Living in Beijing underscores the importance of change and adaptation. There is a noticeable drop in the amount of processed sugar in foods, reflecting local (and healthier) tastes. Virtually every restaurant delivers, including McDonald’s (which raises the question, if you’re going to order delivery, why McDonald’s?). And, most particularly, I recently joined the thousands of Chinese students and pensioners who weave in-and-around traffic on electric battery-powered mopeds. It is a great way to get around the city (even if some of the pensioners have a tendency to cut you off).
The same focus on change arises in the capital markets. A person who owns or sells a security is presumed to own or sell the financial risk of that security. By selling shares, for example, the costs and benefits of those shares—the rise or fall in share price—are understood to run with the instruments being sold. Changes in the capital markets, however, have begun to call that presumption into question. Increasingly, market participants can use new trading methods to sell instruments to one person, but transfer their financial risk to someone else. The result is greater complexity and new challenges to regulation and the regulators.
To what extent should the securities laws adjust to reflect those changes? The answer largely turns on the question of “identity.” Moving from modern-day Chinato to ancient Greece, the Greek historian Plutarch identified the question in his story of Theseus, the mythical king of Athens. For many, Theseus is known for slaying the Minotaur, a half-man, half-bull monster that devoured children sent to Cretein tribute to King Minos. According to Plutarch, after Theseus returned to Greece, his boat remained in Athensharbor for centuries as a memorial to his bravery.
posted by Jay Kesten
My thanks to Danielle and her co-bloggers for inviting me to share some of my thoughts. This is my first foray into blogging, and I’m thrilled to join you for awhile. I’d like to start by discussing a current project, which examines the internal governance of corporate political activity. Comments, suggestions and critiques are most welcome.
Corporate political activity has long been an exceptionally contentious matter of public policy. It also raises a hard and important question of corporate law: assuming corporations can and will engage in political activity, who decides when they will speak and what they will say? In several cases, the Supreme Court has provided a relatively clear, albeit under-developed, answer: ”[u]ltimately, shareholders may decide, through the procedures of corporate democracy, whether their corporation should engage in debate on public issues.” (First Nat’l Bank of Boston v. Bellotti, cited with approval in Citizens United v. FEC).
This corporate law aspect of the decision has attracted substantial criticism alongside widespread calls for major reforms to corporate and securities laws. Some argue that the Supreme Court misunderstands the reality of modern corporate law, insofar as shareholders have little practical ability to constrain managerial conduct. Others question why political decisions should be made by either shareholders or managers, rather than some broader group of corporate stakeholders. A third group claims that political activity is just another corporate decision protected by the business judgment rule. Thus, empowering shareholders in this regard would improperly encroach on the board’s plenary decision-making authority.
Yet, despite these concerns, there may be pragmatic and normative merit to the Supreme Court’s approach. In a current paper – “Democratizing Corporate Political Activity” – I present a case for shareholder regulation of corporate political activity through their power to enact bylaws. I’ll describe the argument in more detail in subsequent posts, but, briefly, I present three normative justifications for this governance structure. First, it may mitigate the unusual and potentially substantial agency costs arising from manager-directed corporate political activity. Second, it may increase social welfare by: (i) reducing deadweight losses and transaction costs associated with rent-seeking; and (ii) making corporations less vulnerable to political extortion. Third, if corporate speech can shape our society’s distributional rules, corporate law should not interpose an additional representative filter in the democratic process. That is, we should not assume that investors – merely by purchasing stock in a public company, often through an intermediary such as a mutual fund – grant managers the unilateral authority to engage in political activity on their behalf.
With that said, I should be clear upfront that there are important challenges and objections to each of these arguments. I will describe the main concerns as I proceed.
The next post will lay out the Supreme Court’s vision of corporate political activity, and explain why the shareholder bylaw power best fits the Court’s description of shareholder democracy in this context.
posted by Mary Anne Franks
As promised in the comments section of my last post, I offer in this post the outline of my proposal to effectively combat revenge porn. A few preliminary notes: one, this is very much a work in progress as well as being my first foray into drafting legislative language of any kind. Two, a note about terminology: while “revenge porn” is an attention-grabbing term, it is imprecise and potentially misleading. The best I have come up with as a replacement is “non-consensual pornography,” so that is the term I will use throughout this post. I would be interested to hear suggestions for a better term as well as any other constructive thoughts and feedback.
I want to emphasize at the outset that the problem of non-consensual pornography is not limited to the scenarios that receive the most media attention, that is, when A gives B (often an intimate partner) an intimate photo that B distributes without A’s consent. Non-consensual pornography includes the recording and broadcasting of a sexual assault for prurient purposes and distributing sexually graphic images obtained through hacking or other illicit means. Whatever one’s views on pornography more broadly, it should be a non-controversial proposition that pornography must at a minimum be restricted to individuals who are (1. adults and (2. consenting. Federal and state laws take the first very seriously; it is time they took consent requirements seriously as well.
Before I offer my proposal for what a federal criminal prohibition of non-consensual pornography could look like, I want to explain why looking to federal criminal law is the most appropriate and effective response to the problem. In doing so, I do not mean to suggest that other avenues are illegitimate or ill-advised. I support the use of existing laws or other reform proposals to the extent that they are able to deter non-consensual pornography or provide assistance to victims. That being said, here is my case for why federal criminal law is the best way to address non-consensual pornography, in Q&A form.
posted by Danielle Citron
Over at Jotwell, Jonathan Simon has a spot-on review of my colleague Leslie Meltzer Henry’s brilliant article, The Jurisprudence of Dignity, 160 U. Penn. L. Rev. 169 (2011). Henry’s work on dignity is as illuminating as it is ambitious. I urge you to read the piece. Here is Simon’s review:
Today American law, especially Eighth Amendment law, seems to be in the middle of a dignity tsunami. The United States is not alone in this regard, or even in the lead. Indeed dignity has been an increasingly prominent value in modern legal systems internationally since the middle of the 20th century, marked in the prominence given that term in such foundational documents of the contemporary age as the Universal Declaration of Human Rights, in the reconstructed legal systems of post-war Europe (particularly Germany), and in regional human rights treaties like the European Convention on Human Rights and the more recent European Union Charter of Rights. A stronger version of dignity seems increasingly central to reforming America’s distended and degrading penal state. Legal historians have suggested that American history — particularly, the absence of a prolonged political struggle with the aristocracy and the extended experience with slavery — rendered dignity a less powerful norm, which may explain the relative weak influence of dignity before now. Yet its increasing salience in the Roberts Court suggests that American dignity jurisprudence may be about to spring forward.
Professor Leslie Henry’s 2011 article, The Jurisprudence of Dignity, is a must-read for anyone interested in taming our penal state. Henry provides a comprehensive analysis of the US Supreme Court’s treatment of the term from the founding to the present. Henry borrows from the language philosopher Ludwig Wittgenstein the concept of a “family resemblance” and suggests that dignity as a legal term is anchored in five core meanings that continue to have relevance in contemporary law and which share overlapping features (but not a single set of factors describing all of them). The five clusters are: “institutional status as dignity,” “equality as dignity,” “liberty as dignity,” “personal integrity as dignity,” and “collective virtue as dignity.” These clusters suggest there can be both considerable reach but also precision and limits to using dignity to shape constitutional doctrine.
For much of the period between the Revolution and the middle of the 20thcentury, the meaning of dignity was confined largely to the first category, “institutional status as dignity.” Dignity by status dates from the earliest Greek and Roman conceptions, when dignity was associated with those of high status and conceptualized as anchored in that status. The United States by the time of the Constitution renounced the power to ennoble an aristocracy but shifted that hierarchical sense of dignity to the state itself and its officials. For much of the next century and a half, dignity is discussed mostly as a property of government, especially states and courts. This began to change in the 20th century, and the change accelerated significantly after World War II. Read the rest of this post »
posted by Meredith Render
It is both an honor and a great pleasure to participate in this discussion of Robin West’s brilliant book, NORMATIVE JURISPRUDENCE. There are so many ideas to laud in this work, many of which have been ably raised by other commentators within this conversation. But reflecting upon this work, I have been particularly struck (as I first was as a student) by Robin’s extraordinary capacity to illuminate aspects of our legal landscape that, while foundational and ubiquitous, remain invisible. Robin’s chalk-outline of a missing progressive normative jurisprudence calls to mind a parable told by the too-soon departed David Foster Wallace. In a commencement address at Kenyon College, Wallace told the story of two young fish out for a swim who happen upon an older fish. The older fish says: “Good morning boys. How’s the water?” After the older fish passes by them, one of the young fish turns to the other and says: “What the hell is water?”
In NORMATIVE JURISPRUDENCE, Robin offers us an opportunity to rethink the “water” of our analytic practices. Most significantly, she presents the possibility of a jurisprudence in which normative argument constitutes the “water” of our analytical practice. Normative argument, she argues, should occupy a central rather than marginalized role in our jurisprudence. Moreover, she observes that progressives’ absence from the normative table has relegated our jurisprudential conversations to an unduly narrow and adjudicatorally-obsessed preoccupation with explicating the law that we already have. This positivist analytic jurisprudence (or, in Robin’s helpful Benthamite parlance, “expository” jurisprudence) has consciously and perhaps even aggressively eschewed normative argument to the peril of the project of legal reform and the promotion of social justice. Robin’s point is not that the project of exposition should be set aside in favor of a project of developing normative/critical (or, again in Robin’s Bethamite vocabulary, “censorial”) jurisprudence, but rather that room should be made in the center stage of our jurisprudential tradition for normative/critical/censorial jurisprudence.
Yet within Robin’s rendering lies room for the hypothesis that the agnosticism that we take as a matter of course to be a basic precept of analytic jurisprudence is itself a tacit manifestation of a conception (or, more accurately, varying conceptions) of the good. Robin’s argument raises potential doubts about the capacity of our conventional analytic jurisprudence to maintain agnosticism about conceptions of the good. In this rendering, competing conceptions of the good are the “water” that our various jurisprudential projects are already immersed in. While we may have become acculturated to understanding and explaining the law in a way that is formally divorced from conceptions of the good (e.g. whether wise or not, our tort law is committed to a principle of corrective justice), is it nonetheless possible that we have, all the while, been swimming in it?
Of course this is not Robin’s principal point. Whether or not our existing analytic jurisprudence is capable of the moral agnosticism it formally espouses, Robin would have us draw our foundational moral conceptions (whatever their source or origin) out into the light where they could serve more prospective and ambitious (rather than merely descriptive and thereby modestly – in the service of continuity to past practice – prescriptive) ends. Nonetheless, the question of whether our analytic jurisprudential practices necessarily depend upon a conception (or conceptions) of the good seems to me to be an important one in light of Robin’s thesis. Not only does the question seem to be intimately tied to her overall picture of progressives’ commitment to neutrality that figures centrally in her argument, but if this hypothesis bears out, it strikes me that it has potential to significantly undermine potential pragmatic objections to Robin’s thesis. It is, therefore, a question that I think merits some attention. Read the rest of this post »
October 25, 2012 at 1:48 pm Tags: jurisprudence, legal theory, Normative Jurisprudence, positivisim, Symposium (Normative Jurisprudence) Posted in: Jurisprudence, Legal Theory Print This Post No Comments
posted by Heidi Li Feldman
…forget about it. I understand that some folks must continue to fight Constitutional battles, inside and outside the courtroom, even if just to try to hold the line against Supreme Court precedents and federal legislation that encroach on the most basic interests and freedoms people need. Note that I can mention these without reference to rights. Rights – another term that legal academics of all stripes tend to obsess about to the point of distraction from considering the very goods that recognized rights foster and protect. The goods are not the rights. Rights shelter goods and interests. If they are the only form of cover your adversaries will acknowledge, then you better pitch a rights tent. If representing the good or interest as covered by a right does not help further the good or interest, then don’t use the representation. Rights and “rights” are neither objectively problematic nor objectively wonderful. What’s important is which interests and goods we decide to foster collectively, how we decide this, and whether law is a suitable social method for fostering any given worthwhile interest or good. If law is an appropriate mechanism for the task, then there are interesting empirical questions about whether the law should be strongly interventionist, requiring very specific conduct to facilitate and foster these goods or interests, or whether it should be more subtle, creating background institutions and norms which increase the chance that these goods and interests will flourish.
Now, consider areas of law that start not from rights but from duties, areas like tort (publicly created duties, originating in common law or in legislation) or contracts (privately created duties, originating at the nexus of individual agreements and legal endorsement of certains types of agreement but not others – some agreements are endorsed or disqualified by courts, some by legislatures). Not coincidentally, torts, contract, and restitution have historically been grouped together as the law of obligations, in both Anglo and Continental traditions. And not coincidentally, these bodies of law presuppose interconnectedness and relationships. The foundational or mythic state of nature that animates contracts, torts, and restitution is one that assumes that people are always and inevitably embarking on relationships, sometimes on purpose sometimes accidentally. But whether they mean to get involved with each other or not, whether they set out to affect other people or not, people connect. Connection is basic. Then the question becomes, which sort of connections engender which sorts of obligations?
Obviously, one can argue for thinner and thicker versions of legal obligation and sometimes such arguments rely on philosophical theories like liberalism (neo or otherwise) or conservativism (neo or otherwise). But it is interesting to note that reflective legal scholars and lawyers engaged (knowingly or not) in normative jurisprudence regarding the law of obligations actually tend not to invoke the usual political philosophies that undergird and drive so much of the discourse about the Constitution. A hypothesis about what why that’s so: if our starting point for thinking about and creating law is connection – the inevitable ties that will arise among social creatures – our starting point is already complicated and textured in ways that cry out for more particularistic arguments than those generated by wholesale political theories of any stripe. Political theories that start from the individual rather than the connectedness of individuals can be more general and less nuanced because it is easier to oversimplify the individual than it is to oversimplify connection. Likewise, areas of legal discourse and practice that answer to broad political theories tend to obscure particularities that matter tremendously in the course of actual lived experiences.
Mary Anne Franks’s discussion of creepshots and outing anonymous bloggers reveals the significance of starting from assumptions of connection rather than assumptions of individuality. In our culture, the rhetoric of free speech and consent is premised on a particular Constitutional background. The minute somebody invokes the phrase “free speech” they will be heard as invoking the First Amendment and the entire kit and caboodle of the Constitution. This then spills over to and colors how “consent” and “privacy” get discussed – they are understood as subordinate matters, less important than and bounded by the explicitly Constitutionally acknowledged good of free speech. It is ironic that these are the terms of the debate about an episode in an environment so often characterized as thoroughgoingly social – the web and websites where people go to interact. If we all forgot about the Constitution, very different first questions might come to mind when thinking about creepshots. Namely, who is affected by the site and how? What sort of connections does it foster or stunt? Are these connections we collectively should concern ourselves with? Should we use law to structure the connections that inevitably arise from activity on the web? If so, what do the parties (intended or unintended) in these connections owe to one another, morally, ethically, and legally?
October 24, 2012 at 12:33 am Tags: contracts, Heidi Li Feldman, law of obligations, Normative Jurisprudence, restitution, Robin West, Symposium (Normative Jurisprudence), torts Posted in: Jurisprudence, Legal Theory, Symposium (Normative Jurisprudence), Web 2.0 Print This Post No Comments
posted by Heidi Li Feldman
“True peace is not the absence of tension: it is the presence of justice and brotherhood.” — Martin Luther King, Jr. (1955, 1958, 1961)
Dr. King spoke these words or similar ones on a number of occasions, usually when explaining the relationship between love, law, and civil disobedience. I invoke them here because of their affinity with the idea that law that successfully promotes the common good will not yield simply the absence of anarchy but the presence of fellowship.
In the first major chapter of Normative Jurisprudence, “Revitalizing Natural Law”, Robin West argues for “a reengagement of liberal and progressive lawyers with … the ethical inquiry into the nature of the common good furthered by just law.” This is a terrific project. But it is a more complicated project than either a casual reader or a sophisticated scholar might notice. There are at least two major kinds of complexity involved. One, to which West devotes some attention in the chapter, involves how to specify human good, common or individual. The other, which receives less attention, at least at this phase of the book, involves figuring out what is distinctively legal about a project to promote the common good. In this post, a bit about this second area of complexity. This is not to say that West herself does not appreciate the complexity of and need for sorting out the role of law in a quest for the common good.
West persuasively explains that just because the project of promoting the common good might also be a political one or an overall ethical one, that does not mean it is not also a legal one, a distinctively legal one, or one in which law plays a distinctive role. Throughout “Revitalizing Natural Law”, West emphasizes that achieving the common good, understood as arising from the demands of individual good, necessitates coordinated social action, of the sort law is uniquely positioned to bring about.
Individuals going it alone will not get very far in achieving their own good, notes West. A group of uncoordinated individuals who realize this problem need state-sponsored coordination, in the form of law, to ensure that each of them do better, which means that all of them will do better. Fair enough, as far as it goes. But there is a lot more to coordination, and to coordination implemented by law, than meets the eye.
“Coordination” can be understand more or less thickly. A law dictating whether to drive on the left or the right coordinates thinly. It solves a problem whose solution does not impact the good in question: keeping traffic flowing. The content of the law does not matter, what matters is having one. The activities and instrumentalities involved are understood, practically speaking, largely similarly by all the participants.
Most of the time, though, there is a thicker connection between laws governing collective action or social activity and the content of the laws themselves. Laws against polluting the environment presuppose or stipulate agreement on foundational matters, including what constitutes pollution and how to demarcate the polluters from the environment. Laws regulating research on human subjects presuppose or stipulate agreement on what is research, who is human, and what it means to be a subject of another’s study.
To approach jurisprudence as West urges means noticing and taking quite seriously the role law and legal institutions – all of them, not just legislatures, but courts and agencies and review boards and prosecutors and juries and so on – play in coordinating both the understanding and the lived actuality of the activities and instruments law references. The good is rich stuff, and to get us to it, law must make it possible for us to proceed from strategic interaction in a coordinated setting (e.g. driving on the highway) to substantive cooperation (e.g. creating a functional and legitimate banking system). That sort of cooperation rests on shared background understandings of matters basic, diverse, and particularistic. To enable such cooperation law must not only invite and permit, but also foster, collaboration on a worldview sufficiently shared so that law has a shared meaning for law makers, law appliers, law enforcers, and law abiders (not that these four actors are always distinct and separate).
The flight from ethical normativity that West identifies in Normative Jurisprudence is part of a larger flight from normativity in general – including the normativity of meaning. How much agreement on meaning do we need in order to achieve just law that furthers the common good? What sort of legal actors and institutions do we need to get that agreement? In future posts during this celebration of Normative Jurisprudence, I will continue to examine these questions. I take inquiry into them to be part of the project West urges. I also expect that there will be sharp disagreement among liberal and progressive scholars about how much shared meaning we need and what we are willing to do get it.
October 21, 2012 at 6:15 pm Tags: Heidi Li Feldman, jurisprudence, law and meaning, legal theory, Normative Jurisprudence, Robin West, Symposium (Normative Jurisprudence) Posted in: Jurisprudence, Law Practice, Legal Theory, Symposium (Normative Jurisprudence) Print This Post No Comments
posted by Brian Bix
(First,by way of full disclosure: I am one of the co-editors (along with William Edmundson) of the Cambridge University Press Series in which Robin’s book appears. Connected with that role, I had a small part to play in asking Robin to write the book for the Series, and in offering comments on the text prior to publication.)
Normative Jurisprudence surveys three prominent approaches within legal theory: natural law theory, legal positivism, and critical schools of jurisprudence (including American legal realism, feminist legal theory, and critical legal studies). Robin argues that these approaches all, at one time or another, have argued for, and offered philosophical grounds for, significant social change, but that they have all fallen away from that proper path. She holds up as examples of what theorists should do, Jeremy Bentham, who combined important work on abstract moral theory with crusading writing seeking legal and political reform, the American legal realists, whose jurisprudential work was combined with an agenda for legal and political change that they helped to realize in the New Deal, and John Finnis, whose modern work on Natural Law theory (e.g., Natural Law and Natural Rights (Oxford, 1980)) focuses on the importance of the common good, and a detailed argument about what it requires. To these role models, Robin contrasts the dry debates in analytical legal philosophy (mea culpa!), the cryptic postmodern writings of modern Left theorists (here Robin joins Martha Nussbaum and Terry Eagleton in suggesting that postmodern theorists have done more to undermine social reform than to support or motivate it), and the thin views of the common good in the secular and process-focused natural law theories of Ronald Dworkin and Lon Fuller
I think Normative Jurisprudence is a marvelous and important book. Like most books of its stature, it raises significant questions for further discussion. The one I will focus on relates to specialization and expertise in the legal academy.
One can take it as a given that individuals should work for social justice, and that this is true (other things being equal) whatever one’s training, career, or position. The question is whether there is something special about academics, legal academics, theorists, or legal theorists, such that we should expect more from them, perhaps because they have special relevant expertise. (Most of the writers for and readers of Concurring Opinions are law professors; perhaps we could begin by asking ourselves what special role we think we have (individually, or collectively as law professors) in relation to matters of policy and justice.)
Speaking as someone who writes in legal theory, but who has never played a prominent role in social reform, I feel a need to respond to Robin’s critique. I would argue that what most analytical theorists do best is analysis, and they (we) have no special expertise relating to advocating for social change. I do not think that analytical work should only be done if it can be in the service of fighting injustice (though when it can serve that cause, all the better). Similarly, critical theorists may have brilliant things to add to the discussions of the social construction of ideas and practices, and perhaps should offer those ideas even if they have little effect on the movement towards social justice (and even potentially a slight negative effect).
I see little reason to think that law professors (qua law professors) have any special insights about what the best society or most just world looks like, or what the best way is to get us there. Law professors may have some expertise on the distinctive benefits and problems of legal reform: what has tended to work well and less well in attempting reform through the law, the unintended consequences that can follow from trying to change behavior through legal rules, and so on. However, this is a limited (if still important) piece of the large and complex social justice puzzle.
There have of course always been law professors who were also great figures in legal and social reform and significant public intellectuals (Catharine MacKinnon is one obvious name that comes to mind). However, most of us continue to chip away on a smaller scale on matters closer to our training: doctrinal scholars do doctrine, and theoreticians do theory of various kinds — perhaps showing that conceptual analysis is inappropriate to determining the nature of law, proving the incoherence of legal normativity, explaining the true strengths and limits of analogical reasoning within law, and so on.
I join Robin in celebrating those people who have been able to construct theories that have played key roles in legal and social reform, and I join her also in encouraging those among current academics who have the potential to be the next Bentham or MacKinnon to work towards that goal. However, I remain doubtful that law professors are generally, by their nature or usual skill set, those best placed to be at the forefront of reform movements.
posted by Deven Desai
As the political season is in full swing and folks claim to understand SOPA, PIPA, etc., I thought I should point people to Adam Theirer’s post Mueller’s Networks and States = Classical Liberalism for the Information Age. I knew Adam a little before my stint at Google. I came to know him more while there. I do not agree with everything Adam says. Rather, he reminds me of folks I knew in law school. I disagreed with many people there, but respected the way they argued. Their points made me rethink mine and perhaps improve them. The distinction between cyber-libertarianism and Internet exceptionalism that Berin Szoka and Adam try to make is important. I am not sure it succeeds but as Adam says
They are not identical. Rather, as Berin and I argued, they are close cousins. Properly defined, cyber-libertarianism is essentially the application of traditional libertarian thinking — which is more properly defined as classically “liberal” — to Internet policy issues. Berin and I define “cyber-libertarianism” as “the belief that individuals — acting in whatever capacity they choose (as citizens, consumers, companies, or collectives) — should be at liberty to pursue their own tastes and interests online.” Internet exceptionalism, by contrast, is the belief that the Internet has changed culture and history profoundly and is deserving of special care before governments intervene. But that does not necessarily tell us what sort of philosophy or core tenants ultimately animate exceptionalism going forward. (emphasis added by me)
This last point is the reason I call out the piece. So far I have not seen anything that addresses the point in a satisfactory way. Adam and Berin face this gap and try to fill it. Agree. Disagree. That is your choice. But read the whole thing and see where you end up. One final note, I think classical liberalism as Adam defines it may be more empty than it seems. For now I cannot explain why. For that I apologize to those of that camp, but I am working on that. Oh which reminds me, Julie Cohen’s book, Configuring the Networked Self: Law, Code, and the Play of Everyday Practice, takes on this issue.
posted by Peter Swire
At the recent Security and Human Behavior conference, I got into a conversation that highlighted perhaps my favorite legal book ever, Arthur Leff’s “Swindling and Selling.” Although it is out of print, one measure of its wonderfulness is that used copies sell now for $125. Then, in my class this week on The Ethics of Washington Lawyering (yes, it’s a fun title), I realized that a key insight from Leff’s book applies to two other areas – what is allowed in campaign finance and what counts as extortion in political office.
Swindling/selling. The insight I always remember from Leff is to look at the definition of swindling: “Alice sells something to Bob that Bob thinks has value.” Here is the definition of selling: “Alice sells something to Bob that Bob thinks has value.” See? The exchange is identical – Bob hands Alice money. The difference is sociological (what society values) and economic (can Bob resell the item). But the structure of the transaction is the same.
Bribing/contributing. So here is a bribe: “Alice gives Senator Bob $10,000 and Bob later does things that benefit Alice, such as a tax break.” Here is a campaign contribution: “Alice gives Senator Bob $10,000 and Bob later does things that benefit Alice, such as a tax break.” Again, the structure of the transaction is identical. There are two likely differences: (1) to prove the bribe, the prosecutor has to show that Bob did the later action because of the $10,000; and (2) Alice is probably careful enough to give the money to Bob’s campaign, and not to him personally.
Extorting/taxing. Here is the classic political extortion: “Alice hires Bob, and Bob has to hand back ten percent of his salary to Alice each year.” Here is how it works when a federal or state government hires someone: “Alice hires Bob, and Bob has to hand back ten percent of his salary to Alice each year.” The structure of the transaction is the same – Bob keeps 90% of the salary and gives 10% to Alice. The difference here? Like the previous example, the existence of bureaucracy turns the bad thing (bribing or extorting) into the acceptable thing (contributing/taxing). In the modern government, Alice hires Bob, and Bob sends the payment to the IRS. The 10% does not go to Alice’s personal use, but the payment on Bob’s side may feel much the same.
For each of these, drawing the legal distinction will be really hard because the structure of the transaction is identical for the lawful thing (selling, contributing, taxing) and for the criminal thing (swindling, bribing, extorting). Skeptics can see every transaction as the latter, and there is no objective way to prove that the transaction is actually legitimate.
I am wondering, did people know this already? Are there citations to previous works that explain all of this? Or, perhaps, is this a simple framework for describing things that sheds some light and merits further discussion?
posted by Brett Frischmann
I am incredibly grateful to Danielle, Deven, and Frank for putting this symposium together, to Concurring Opinions for hosting, and to all of the participants for their time and engagement. It is an incredible honor to have my book discussed by such an esteemed group of experts.
Shared infrastructures shape our lives, our relationships with each other, the opportunities we enjoy, and the environment we share. Think for a moment about the basic supporting infrastructures that you rely on daily. Some obvious examples are roads, the Internet, water systems, and the electric power grid, to name just a few. In fact, there are many less obvious examples, such as our shared languages, legal institutions, ideas, and even the atmosphere. We depend heavily on shared infrastructures, yet it is difficult to appreciate how much these resources contribute to our lives because infrastructures are complex and the benefits provided are typically indirect.
The book devotes much-needed attention to understanding how society benefits from infrastructure resources and how management decisions affect a wide variety of private and public interests. It links infrastructure, a particular set of resources defined in terms of the manner in which they create value, with commons, a resource management principle by which a resource is shared within a community.
Infrastructure commons are ubiquitous and essential to our social and economic systems. Yet we take them for granted, and frankly, we are paying the price for our lack of vision and understanding. Our shared infrastructures—the lifeblood of our economy and modern society—are crumbling. We need a more systematic, long-term vision that better accounts for how infrastructure commons contribute to social welfare.
In this book, I try to provide such a vision. The first half of the book is general and not focused on any particular infrastructure resource. It cuts across different resource systems and develops a framework for understanding societal demand for infrastructure resources and the advantages and disadvantages of commons management (by which I mean, managing the infrastructure resource in manner that does not discriminate based on the identity of the user or use). The second half of the book applies the theoretical framework to different types of infrastructure—e.g., transportation, communications, environmental, and intellectual resources—and examines different institutional regimes that implement commons management. It then wades deeply into the contentious “network neutrality” debate and ends with a brief discussion of some other modern debates.
Throughout, I raise a host of ideas and arguments that probably deserve/require more sustained attention, but at 436 pages, I had to exercise some restraint, right? Many of the book’s ideas and arguments are bound to be controversial, and I hope some will inspire others. I look forward to your comments, criticisms, and questions.
April 24, 2012 at 3:05 pm Posted in: Administrative Law, Antitrust, Bright Ideas, Cyberlaw, Economic Analysis of Law, First Amendment, Google & Search Engines, Infrastructure Symposium, Innovation, Intellectual Property, Legal Theory, Media Law, Property Law, Technology, Uncategorized Print This Post No Comments
posted by Angela Harris
“I’m a self-loathing law student,” confessed one of the students in my Critical Race Theory seminar this week. Several others immediately owned up to the same affliction. I will stipulate that self-loathing is probably not an affect we all should strive to achieve. But I was heartened anyway.
Twenty-five years ago when I began teaching law, my social-justice-minded students regularly veered from rage and tears at moral wrongs to a defiant hope. They sustained themselves and one another with a faith that the arc of the moral universe is long but it bends toward justice, as Dr. King is thought to have said. And they ultimately placed their trust in law and especially the courts.
My students were not alone. Even by the mid-1980s, many of us lawyers and law professors were still recovering from the collective daze of delight induced by the Second Reconstruction and the Warren and Burger Court eras. Of course, we were already in the throes of affirmative-action backlash and judicial retrenchment; colorblind constitutionalism was shaped before our very eyes; and even as a law student I had studied Harris v. McRae in my equal protection class and learned that the formal declaration of a constitutional right is not the same as the economic security needed to exercise it. Yet the romance, the belief that getting the courts to pronounce a legal right was a mighty blow for justice, lingered on.
Maybe it was the continued influence of the post-war “idea of America as a normative concept,” as Edward Purcell put it in 1973: the incorporation throughout social and political debate of “terms that were analytically confused but morally coercive – patriotism, Americanism, free enterprise system, mission, and, most grossly, ‘we’re number one.’” In the culture of legal academia, this logic translated into a faith in the jurisprudence of legal process. In my little corner of the world we were all reading Democracy and Distrust and trying to locate neutral principles. The faith that procedural fairness, at least, could be achieved despite a lack of consensus about the good life reinforced a belief in the American rule of law as an unshakable bulwark of democratic fairness. That sentiment was entwined with a professional loyalty to the law: to have gone to law school was in itself a statement about one’s commitment to the law as the royal (I mean ”democratic”) road to justice.
So when critical legal studies, feminist legal theory, and then critical race theory hit the academy around this time, the crits (like the Legal Realists before them) were accused of “nihilism” and shown the door. Critical legal theory was not just a disloyalty to the civil rights movement but to the rule of law itself. It was subversive, in those mid-1980s days, to pass around The Hollow Hope and to insist, as the crits were loudly doing, that “reification” and “legitimation” were basic functions of legal reasoning. The trust that the system works – or, at least, could work if we got it right – was now being dubbed “legal liberalism” by the crits, and being skewered in massively long and ponderous articles about fundamental contradictions. But the critics could be challenged by asking them where their “positive program” was. And they could (sometimes) be silenced by demands that they leave the law altogether.
For the crit project seemed deeply and radically anti-law. We junior professors, reading their work and sometimes contributing to it, felt like outlaws (which brought with it a sense of being dangerous and cool, along with a sense of vulnerability heightened by our lack of tenure and the material consequences of being perceived as a nihilist). At the same time, interestingly, the practice of teaching was not too different for us as it was for our older Legal Process colleagues. It was all about puncturing our students’ illusions, showing them the indeterminacy of legal reasoning and teaching them how to surf on it, questioning the use of words like “fairness.” It was just that we had no shining neutral-principles machine to lift from the bottom of Pandora’s box at the end of the day.
I don’t mean to suggest that legal liberalism and faith in the rule of law as central to the American way ever died. At a conference at Santa Clara Law School last week on race and sexuality, some of the lawyers and academics gathered there bemoaned a “politics of civil rights” that has somehow placed marriage equality at the top of the LGBT agenda. The charge was familiar: too many lawyers and non-lawyers alike believe that “gay is the new black;” that the civil rights movement brought about racial equality and “now it’s our turn;” that if we prove we are just like them, we’ll all be free. The rush to assimilate to mainstream institutions and practices throws under the bus, as usual, those most vulnerable to premature death – those without the racial, economic, and bodily privileges (and/or the desire) to get married, move to the suburbs, and blend in.
What was different was that an alternative position, the “politics of dispossession” as Marc Spindelman named it, was also on the table – not as a stance that made one’s commitment to the law suspect from the get-go, but as an accepted ground for lawyering. When thinking about sexuality we might want to begin, under this politics, not with marriage but with the kids doing sex work on International Boulevard in Oakland, as Margaret Russell pointed out. And, after decades of critical theory, it was taken as a truth in that room — if an inconvenient one — that to do this would mean instantly coming up against poverty, racism, and violence, forms of suffering law is not well positioned to ameliorate.
In this way, lawyering for social justice is a contradiction. Not in the “nihilist” sense, the law-as-a-tool-of-the-ruling-class notion that those who want justice ought to give up their bar cards and go protest in the streets. (My friend Norma Alarcón once identified this romantic position as the desire to “be out in the jungle with Che.”) Rather, the politics of dispossession begins with recognizing that the law is not designed to go to root causes; that fundamental changes in the ground rules, which is what the most vulnerable need, come from organizing; and that lawyering isn’t useless, but that it looks different if it is prison abolition you want and not a marriage license.
More abstractly, the understanding in that room was that, as Patricia Williams said to the crits in one of the founding texts of critical race theory, law is both inadequate and indispensable in the struggle for justice. Post-legal-liberalism lawyering begins here.
What’s also new is that this commitment to living in the contradiction — accepting the tension between law and justice as a place to work rather than as a source of despair — is increasingly expressed not only by battle-scarred veterans at academic conferences but by law students. The desire to make positive social change has not gone away among my students. They still hope and expect that law can be used in the service of justice. But along with a waning of faith in the courts, they express an increasingly sophisticated awareness of the limits of the law more generally. They know, already, that justice and law are not the same. The task is no longer disillusioning them, but helping them develop the skills for finding what works and what doesn’t.
Okay, so “self-loathing” is probably not the best way to say it. But this wry recognition of the imperfection of law seems to me nevertheless an improvement over the wounded attachment to law as a portal to justice that seemed to mark so many progressive law students a generation ago. As the same student said later in the conversation that day, “That’s my contradiction, and I’m sticking to it.” There’s a wisdom there that’s heartening.
April 20, 2012 at 1:35 pm Tags: justice, legal process Posted in: Civil Rights, Conferences, Constitutional Law, Courts, Culture, Jurisprudence, Law Student Discussions, Legal Theory, LGBT, Teaching Print This Post 3 Comments
posted by Stefan Bird-Pollan
David James, Fichte’s Social and Political Philosophy: Property and Virtue. Cambridge: Cambridge University Press, 2011.
Johann Gottlieb Fichte (1762-1814) is the third most important thinker in the tradition of German idealism (Kant and Hegel vying for most important) which later morphed into Marxism and finally into Frankfurt School critical theory as well as into Rawls’ Kantian constructivism. Though idealism is a central strand in contemporary ethics, it has not has as strong an impact in political and legal philosophy where it has been eclipsed by the social contract tradition of which Kant and, to some extent, Fichte are part. However, it is James’ contention that Fichte’s idealism is indeed relevant to his theory of the state and hence to the idea of a social contract and the further vexing question of the relation between morality and right.
In the interest of clarifying what is at stake in a properly idealist understanding of Fichte’s theory of right, let me say some general things about how idealism plays into the debate. The first thing to say, perhaps is that idealism takes as its main opponent realism, the— perhaps more familiar— idea that the world is a certain way and that we, as subject must both discover and then conform our behavior to the way the world actually is. This is captured in empirical social science or socio-biology by the thought that there is an ideal, or maximally efficient, form social organization can take and it is our task to figure out what that is so that we can model actual social organization on this ideal social organization, stripping away the sorts of things which are extraneous to this efficiency. (The case of property, discussed below, shows that this is no idle comparison.)
Idealism, for methodological as well as ethical reasons, takes the opposite approach, insisting by contrast that we, as social and moral beings, construct the world we live in. That is, the social world is not a function of the arrangements of bodies (to which minds must accommodate themselves) but rather of the attitudes of mind in the sense that the social world is the result of our varying attitudes toward each other. This is captured by the familiar claim to rational autonomy which social contract theorists from Hobbes to Rawls all take as axiomatic, to some extent. The basic point is simply that it is the will itself which constructs the world in its own image. The will of others, not their bodies, is likewise the relevant entity of ethical consideration.
This idealist perspective is usually understood as a moral perspective and is to varying degrees understood as at odds with political philosophy which deals with rights, that is with how bodies are arranged. Liberalism, in the Lockean and at least some of the Rawlsian versions, is concerned to maintain a balance between morality and political organization in the sense that it takes itself to be able to abstract from contentful moral commitment in the service of universalizable commitments about how bodies should be treated. That is, its fundamental commitment is to value neutrality with regard to people’s actions which are outside the purview of security and basic necessity.
It is this sort of liberalism which James believes Fichte challenges. Though James does not put this in terms of idealism, I think it is easy enough to put the argument together from James’ book. On the Lockean view, property is something that belongs to us because we invest it with value. This means that I am free to buy and trade it, once I have made it mine. Fichte’s fundamental argument, which actually fits quite well with the neglected third part of A Theory of Justice, is to say that it is rather property which makes subjectivity possible. Putting it this way makes room for the need for a certain kind of redistribution which is meant to facilitate the adequate development of subjectivity in the first place.
posted by Samir Chopra
I would like to respond to a series of related posts made by Ken Anderson, Giovanni Sartor, Lawrence Solum, and James Grimmelmann during the LTAAA symposium. In doing so, I will touch on topics that occurred many times in the debate here: the intentional stance, complexity, legal fictions (even zombies!) and the law. My remarks here will also respond to the very substantive, engaged comments made by Patrick O’Donnell and AJ Sutter to my responses over the weekend. (I have made some responses to Patrick and AJ in the comments spaces where their remarks were originally made).
February 20, 2012 at 4:32 pm Tags: A Legal Theory for Autonomous Artificial Agents, artificial agents Posted in: Articles and Books, Cyberlaw, Legal Theory, Symposium (Autonomous Artificial Agents), Technology Print This Post 4 Comments
posted by Samir Chopra
Ugo Pagallo, with whom I had a very useful email exchange a few months ago, has written a very useful response to A Legal Theory for Autonomous Artificial Agents. I find it useful because I think in each of his four allegedly critical points, we are in greater agreement than Ugo imagines.
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February 19, 2012 at 6:40 pm Tags: A Legal Theory for Autonomous Artificial Agents, artificial agents Posted in: Articles and Books, Cyberlaw, Legal Theory, Symposium (Autonomous Artificial Agents), Technology Print This Post No Comments
posted by Samir Chopra
I want to thank Harry Surden for his rich, technically-informed response to A Legal Theory for Autonomous Artificial Agents, and importantly, for seizing on an important distinction we make early in the book when we say:
There are two views of the goals of artificial intelligence. From an engineering perspective, as Marvin Minsky noted, it is the “science of making machines do things that would require intelligence if done by men” (Minsky 1969, v). From a cognitive science perspective, it is to design and build systems that work the way the human mind does (Shanahan 1997, xix). In the former perspective, artificial intelligence is deemed successful along a performative dimension; in the latter, along a theoretical one. The latter embodies Giambattista Vico’s perspective of verum et factum convertuntur, “the true and the made are…convertible” (Vico 2000); in such a view, artificial intelligence would be reckoned the laboratory that validates our best science of the human mind. This perspective sometimes shades into the claim artificial intelligence’s success lies in the replication of human capacities such as emotions, the sensations of taste and self-consciousness. Here, artificial intelligence is conceived of as building artificial persons, not just designing systems that are “intelligent.”
The latter conception of AI as being committed to building ‘artificial persons’ is what, it is pretty clear, causes much of the angst that LTAAA’s claims seem to occasion. And even though I have sought to separate the notion of ‘person’ from ‘legal persons’ it seems that some conflation has continued to occur in our discussions thus far.
I’ve personally never understood why artificial intelligence was taken to be, or ever took itself to be, dedicated to the task of replicating human capacities, faithfully attempting to build “artificial persons” or “artificial humans”. This always seemed such like a boring, pointlessly limited task. Sure, the pursuit of cognitive science is entirely justified; the greater the understanding we have of our own minds, the better we will be able to understand our place in nature. But as for replicating and mimicking them faithfully: Why bother with the ersatz when we have the real? We already have a perfectly good way to make humans or persons and it is way more fun than doing mechanical engineering or writing code. The real action, it seems to me, lay in the business of seeing how we could replicate our so-called intellectual capacities without particular regard for the method of implementation; if the best method of implementation happened to be one that mapped on well to what seemed like the human mind’s way of doing it, then that would be an added bonus. The multiple-realizability of our supposedly unique cognitive abilities would do wonders to displace our sense of uniqueness, acknowledge the possibility of other modes of existence, and re-invoke the sense of wonder about the elaborate tales we tell ourselves about our intentionality, consciousness, autonomy or freedom of will.
Having said this, I can now turn to responding to Harry’s excellent post.
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February 19, 2012 at 3:26 pm Tags: A Legal Theory for Autonomous Artificial Agents, artificial agents Posted in: Articles and Books, Cyberlaw, Legal Theory, Psychology and Behavior, Symposium (Autonomous Artificial Agents), Technology Print This Post 6 Comments
posted by Samir Chopra
Andrea Matwyshyn’s reading of the agency analysis of contracting (offered in A Legal Theory for Autonomous Artificial Agents and also available at SSRN) is very rigorous and raises some very interesting questions. I thank her for her careful and attentive reading of the analysis and will try and do my best to respond to her concerns here. The doctrinal challenges that Andrea raises are serious and substantive for the extension and viability of our doctrine. As I note below, accommodating some of her concerns is the perfect next step.
At the outset, I should state what some of our motivations were for adopting agency doctrine for artificial agents in contracting scenarios (these helped inform the economic incentivizing argument for maintaining some separation between artificial agents and their creators or their deployers.
[A]pplying agency doctrine to artificial agents would permit the legal system to distinguish clearly between the operator of the agent i.e., the person making the technical arrangements for the agent’s operations, and the user of the agent, i.e., the principal on whose behalf the agent is operating in relation to a particular transaction.
Embracing agency doctrine would also allow a clear distinction to be drawn between the authority of the agent to bind the principal and the instructions given to the agent by its operator.
Third, an implicit, unstated economic incentive.
February 19, 2012 at 2:10 pm Tags: A Legal Theory for Autonomous Artificial Agents, artificial agents Posted in: Contract Law & Beyond, Cyberlaw, Economic Analysis of Law, Legal Theory, Symposium (Autonomous Artificial Agents), Technology, Tort Law Print This Post No Comments