Category: Legal Theory

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Law Talk: Steven D. Smith and Law’s Quandary

smithsd.jpgI am happy to announce the inaugural episode of “Law Talk: The Legal Scholarship Podcast.” My guest for this episode is Steven D. Smith, the Warren Distinguished Professor of Law at the University of San Diego and the Co-Director of San Diego’s Institute for Law and Philosophy. In this episode, we discuss Steve’s book Law’s Quandary as well as his recently published lecture, “The (Always) Immanent Death of Law.” Along the way, Steve has some fascinating things to say about law, the state of legal philosophy, and what jurisprudence might (or might not) have to say to the “real” practice of law.

You can subscribe to “Law Talk” using iTunes or Feedburner. “Law Talk” is very much a work in progress, and I welcome any feedback or suggestions. You can email me at nboman-at-wm-dot-edu.

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Intellectual Privacy

Late last week, I finally sent my latest article out to the law reviews. It’s called “Intellectual Privacy,” and it’s about the ways that certain kinds of privacy protections advance, rather than inhibit, First Amendment values. I’m really excited about the project, which I believe has something useful to say about both a number of recent legal issues (involving the War on Terror and also the War on Pornography) as well as our understandings of First Amendment theory. I’m hoping to post it on SSRN shortly, but in the meantime, here’s the abstract:

The use of information about intellectual activity has become central to a wide variety of modern legal problems. In this paper, I offer a theory of intellectual privacy, the critically-important interest lurking beneath the surface of these disputes. Intellectual privacy refers to the zone of protection necessary for free thought and cognition in which individuals can make up their minds about a wide variety of issues both important and trivial. Unlike many other notions of privacy, which are in tension with free speech, intellectual privacy safeguards critical First Amendment values. First, I show how intellectual privacy has been underappreciated in a number of contemporary disputes, including warrantless wiretapping and data mining by government, private-sector uses of personal information relating to intellectual activity, and the introduction of reading habits as evidence in criminal trials. Second, I present a theory of intellectual privacy having four elements – the freedom of thought and belief, spatial privacy, the right of intellectual exploration, and the confidentiality of communications. Third, I show how and why intellectual privacy should be an essential part of our First Amendment theory, and suggest some ways in which it could be better incorporated into both constitutional doctrine and the fabric of our legal culture more generally.

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Do Lawyers Know Anything?

I recently completed a short essay that will be included in collection of papers by a group of political philosophers. My topic was the relationship between religious thought and markets. I had originally thought that I would try to write a philosophical piece myself, starting with theological and economic first principles and then relating them to one another. As I thought some more about it, however, I decided this was not such a good idea. Although I like to play at philosopher (or historian or economist…) from time to time, at the end of the day I am just a lawyer. I am slowly coming to realize that there is no intellectual shame in this.

So rather than starting with first principles, I started with two concrete disputes over property and contract and used the arguments and resolution of those cases as a way of building upward toward more generalized claims. I wrote:

Often, discussions of capitalism proceed at a very high level of generality, speaking of entire social systems. Looking at the issue through the lens of the law, however, allows us to approach it from the opposite direction, denaturing the question of capitalism into the concrete legal institutions that make markets possible. Most people ­ including those who think deeply about economics ­ have a tendency to assume that property and contract are static, simple institutions . . . . The reality, of course, is that what we mean by property and contract changes from place to place and epoch to epoch.

Hardly the most startling insight in the world, but it does raise the question of what it is that one knows when one knows the law. As a young man, Oliver Wendell Holmes, Jr. fell for Emerson and the transcendentalists in college and considered himself a philosopher. The Civil War beat the transcendentalism out of him and returning from the battlefields of Virginia he enrolled in law school. I don’t think that he ever gave up his ambition to be a philosopher, however, and a few years after graduating from law school he sent a copy of one of his first law review articles to a very aged Emerson with a letter. The letter said something to the effect that if one went far enough into the law one found one’s self doing philosophy.

Last December the First Things blog had a rambling post about whether or not lawyers are intellectuals. Although the post ultimately petered off into a random discussion of the Volokh Conspiracy, literary theory, and science fiction it raised an interesting question. After noting that engineers and journalist, while smart (at least the engineers), are not intellectuals, the post said:

Still, I’ve always imagined that the law so closely parallels intellectuals’ activity — ­the work of philosophers, theologians, and literary critics­ — that there is an intellectual tendency that exists in the legal mind by its very nature.

There is something to this, I think, but it misses the point. Philosophers and theologians (who knows what literary critics do) start with generalities and theories and only gradually — if at all — descend to the particular and the concrete. Lawyers — at least common lawyers — start with cases, the particular and the concrete and only gradually ascend the ladder of abstraction to rules, doctrine, and — perhaps — theory. As Holmes noted, one may end up in roughly the same place as the philosophers but the road travelled to that place will be different. The question is whether or not the particular route taken matters, and if so how.

In the mean time, I take solace in the fact that law profs are paid better than philosophers. The absence of intellectual respectability has its compensations.

Lilla on “The Great Separation”

Mark Lilla made an impression on me when he made the following point about intellectuals’ discomfort with “ultimate questions:”

It is not that anyone thinks that incivility, promiscuity, drug use, and irresponsibility are good things. But we have become embarrassed to criticize them unless we can couch our objections in the legalist terms of rights, the therapeutic language of self-realization, or the economic jargon of efficiency.

Lilla’s forthcoming book “The Stillborn God: Religion, Politics and the Modern West” is excerpted in the NYT Mag this week. He traces the intellectual history of western conceptions of tolerance and freedom of conscience, exploring the historical contingency of commitments most of us take as second nature.

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Objective Harms from Inequality

stretchlimo.jpgMy last three posts (on doctor rankings, SUV’s, and family-obligation discrimination) all have a common thread. They involve what economist Robert Frank calls “positional arms races”–efforts to attain a ranking or relative position whose value depends on how well others are doing.

Driving around in a small car isn’t so scary if everyone else has a small car–but if you’re in litte sedan and you’re surrounded by Escalades, you’re in trouble if there’s a crash (to put it precisely, at least four times more likely to die than if hit by a small car). Similarly, the workplace can often be a rat race with success judged by hours worked–and not necessarily quality of work, a far more difficult thing to measure. Finally, the doctor rankings are a purely positional good: no matter how good the bottom half gets, as long as the top half is better, it will always be known as the bottom half. Similarly, there are only 20 “Top 20″ law schools on any given ranking system; no matter how good the teaching & research gets among schools generally, there is an absolute limit on top spaces.

The mere fact of a positional arms race says nothing about the desirability of a given state of affairs. A well-designed doctor-ranking system might well lead to pay-for-performance rather than pay-for-procedure. Similarly, most law schools rely on a grading “curve” as a spur to excellence–even if it causes some anxiety.

But Robert Frank identifies a number of “arms races” that have hidden costs–both to those participating in them and those left behind.

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Are Survivors’ Costs a Pro-Life Issue?

The conservative Manhattan Institute recently commissioned a study of a gap in life-expectancy gains over the past 20 years. The data that inspired the study are startling:

While U.S. life expectancy increased by 2.33 years from 1991 to 2004, some jurisdictions — the District of Columbia (5.7 years), New York (4.3 years), California (3.4 years) and New Jersey (3.3 years) — led the way, while others, such as Oklahoma (0.3 years), Tennessee (0.8 years) and Utah (0.9 years), trailed the national average by significant margins.

To make a long story short, the researcher found that found that “longevity increased the most in those states where access to newer drugs . . . in Medicaid and Medicare programs has increased the most.”

Unfortunately, budgetary rules often make the federal government concentrate more on the costs of such interventions than their benefits. For example, the CBO counts “increased costs to the Medicare program for extending the life of its beneficiaries” as “survivors’ costs.” Tim Westmoreland’s fascinating article on the topic (95 Georgetown L.J. 1555, June 2007) calls this “euthanasia by budget:”

In describing why its model included costs but no savings from new access to pharmaceuticals, the Congressional Budget Office said, inter alia, “ [T]o the extent that a drug benefit helps people live longer, they may consume more health care over their remaining lifetime than they would have without the benefit.” In other words, it is still cheaper for Medicare beneficiaries to die.

One wonders if the same reasoning was behind a Texas law that permitted hospital authorities to cut off life support to a conscious woman.

I admit that Daniel Callahan has eloquently questioned the “research imperative,” and perhaps his reasoning could be extended to health care more generally. But it strikes me that in our accounting the costs and benefits of health care in this country, budgetary savings arising out of early death ought to be suspect.

RIAA’s Turn to Be a Defendant

Matthew Sag has convincingly argued that RIAA’s litigation war against downloaders is rational for the industry: it’s basically self-financing, as just about every defendant is too terrified of massive statutory damages to put up a fight. But the record industry’s declining fortunes may make its court victories Pyrrhic.

Moreover, a scorched earth litigation strategy against infringers is getting less viable as a few defendants fight back. For example, one litigant has found a creative way of subjecting RIAA’s tactics to public scrutiny:

Former RIAA defendant Tanya Andersen is now suing the major record labels and the RIAA for negligent and illegal investigation and prosecution. In a thirteen count civil suit filed in Oregon District Court, she alleges that record labels didn’t use properly licensed investigators and violated her privacy.

I’m still waiting for someone to bring the antitrust lawsuit that was forestalled by Bertelsmann’s purchase of Napster a few years ago. As Napster-slaying Judge Patel said of the RIAA’s distribution strategy then, “These ventures look bad, smell bad and sound bad” from an antitrust perspective.

Of course, given the lassitude of federal authorities, the antitrust case will be hard to make. But I look forward to more privacy challenges. As Sonia Katyal has argued,

recent developments in copyright law. . . have invited intellectual property owners to create extrajudicial systems of monitoring and enforcement that detect, deter, and control acts of consumer infringement. As a result, . . . intellectual property rights have been fundamentally altered—from a defensive shield into an offensively oriented type of weapon that can be used by intellectual property creators to record the activities of their consumers, and also to enforce particular standards of use and expression. . . .

If agencies fail to police these tactics, perhaps only individuals can fight for themselves. But as Bruce Scheier asks, why doesn’t the US have a privacy commissioner?

Hat Tip: BoingBoing.

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Rosen’s Crabbed View of Judicial Temperament

RosenBook.jpgI recently finished Jeffrey Rosen’s The Supreme Court (can you say “read” if you listened to it on your iPod?), and I found myself rather underwhelmed with Rosen’s analysis of what he took to be his central theme: judicial temperament. In many ways Rosen’s book is very good. It makes the springes of constitutional law approachable for a general audience, and provides a chatty and gossipy look at the Supreme Court that manages to provide a real sense of some of the personalities of the justices, as when he describes William O. Douglas as “a judicial lounge act.”

Rosen presents us with a white hats vs. black hats vision of the Supreme Court. The good guys are genial institutionalists like John Marshall, Hugo Black, William Rehnquist, and — most of all — John Roberts. The bad guys are brilliant loners like Oliver Wendell Holmes Jr., William O. Douglas, and Antonin Scalia. In Rosen’s book judicial temperament refers to the ability to husband and increase the legitimacy of the Supreme Court by behaving in a statesman like way and refusing to allow abstract philosophies dictate imprudent results.

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Beware of Geese Bearing Gold

goldenegg.jpgThe NYT Mag. had a tricky dilemma yesterday: how to devote an issue to rising inequality without spooking the advertisers who hock multi-million-dollar vacation condos with space for “mega-yachts.” An old bromide came to the rescue: don’t kill the goose that lays the golden egg. Echoing Arthur Okun, Roger Lowenstein warns us of a tragic choice: “how can you promote equality without killing off the genie of American prosperity?” He reminds us that the most egalitarian time in American history was that quagmire of stagflation, the seventies:

Remember that while the decade may have been a high-water mark for American egalitarianism, the country was also in its worst economic funk since the Great Depression. Unemployment and inflation were raging, growth was tepid and the stock market was depressed. An economist named Alan Greenspan termed it “the Great Malaise.”

Lowenstein argues that the “cures” for the seventies (deregulation, free trade, and financial speculation) all accelerate inequality. And if we try to look a bit more like a European social democracy, watch out: “the price for being Belgian is steep: [its] median disposable income — what people have left to spend after they pay taxes and collect welfare-type payments — is only 72 percent as high as ours.” But don’t worry–we can educate ourselves out of the gap, since “college grads make more than 40 percent more than high-school grads[, and] those with postgraduate degrees earn twice as much.”

The NYT editorial page, under a bit less pressure to sell ultraluxe adspace, has a more sober view:

New college graduates . . . have been told repeatedly that a college degree is an open sesame to the global economy. But that’s not necessarily so, according to new research by two economists at the Massachusetts Institute of Technology, Frank Levy and Peter Temin. . . . [A] college degree does not ensure a bigger share of the economic pie for many graduates. . . . [Rather,] an outsized share of productivity growth, which expands the nation’s total income, is going to Americans at the top of the income scale. In 2005, the latest year with available data, the top 1 percent of Americans — whose average annual income was $1.1 million — took in 21.8 percent of the nation’s income, their largest share since 1929.

That’s income, not wealth–and the latter measure is far more skewed. Moreover, asset inequality has grown since the housing boom put a chasm between families who bought last century and those who have to face the market now.

I’ve got a few more bones to pick with Lowenstein beneath the fold. . . .

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No Obituaries for Rorty: Where’s the Mainstream Media?

All across the blogosphere, bloggers are writing about the passing of Richard Rorty, a major American philosopher and public intellectual. He died on Friday, yet I still have been unable to find a story or an obituary by any major mainstream media entity. The lack of one made me think that perhaps the story of Rorty’s passing was in error, yet I’ve found nothing in the blogs and commentary to indicate that the story is false. Thus, I’m quite perplexed at the slowness of the mainstream media to report this story. We know within seconds that Paris Hilton has gone back to jail and we have up-to-the-nanosecond updates. Millions of words have been uttered about it. Yet hardly a word about Rorty. This is a very sad commentary about the mainstream media today.

UPDATE: Finally, three days after his death, the MSM mentions it. As pointed out in the comments, the Washington Post and New York Times have good obituaries.