There is a doctrinal tension built into the long tradition of walling off church from state, and also in the claim that this wall evinces no hostility toward the church. Of course chasing religion from the public square is hostile. The point is that it's the only means of avoiding a theocracy. The Rehnquist court has made its name by slowly chipping away at this wall. The good news for them: This case affords them a chance to do away with that messy tension once and for all. The bad news for the rest of us? The only way to do so will be to get rid of the wall altogether.
The problem, is not really with the much heralded demise of the wall of separation. Rather, the problem comes from the fact that the in Employment Division v. Smith the Supreme Court turned the Free Exercise Clause into an anti-discrimination norm. This shifted the focus of religious freedom from the private actions of individuals to the public actions of the state. We no longer ask the question of whether or not a person's private religious observances are being burdened or criminalize (Smith said it is just fine to criminalize religious observance). Instead we look at what the government is doing and fret about whether it is being neutral or discriminatory. Since government neutrality rather than individual liberty has become the base line for constitutional analysis, we can characterize issues that have virtually nothing to do with private religious activity, i.e. can I get the state to pay me to become a minister, as major free exercise events, and at the same time not bat an eye at what one would have thought was the core case of religious persecution, i.e. criminalizing a religious sacrament. That, rather the difficulties of Mr. Jefferson's metaphor, is the real issue Dahlia! -------- AUTHOR: The Lawyer DATE: 11/25/2003 11:23:00 PM ----- BODY: A GOOD OMAN RETROSPECTIVE: In the tradition of blogosphere navel gazing, I am offering here a list of "best of a goodoman" posts. Also, I am probably not going to have any time to blog here in the near future, so I wanted to a good anchor post. Here is the list in no particular order:
In our history Britain has always faced the choice between Europe and the open sea. When I am given that choice, I will always choose the open sea. If I am forced to choose between you [i.e. De Gaulle] and Roosevelt, I will always choose Roosevelt.
A remarkably clear and pithy account of at least one view of Britian's policies and interests. The event was apparently one that deeply influenced De Gaulle, who in later years would tell the story again and again to explain French policy and its ambivalent relationship with the great north Atlantic alliance. -------- AUTHOR: The Lawyer DATE: 10/16/2003 01:45:00 PM ----- BODY: RELIEF: I passed the Virginia Bar! Hurray! -------- AUTHOR: The Lawyer DATE: 10/16/2003 08:52:00 AM ----- BODY: WHY I LOVE LIVING IN ARKANSAS: I recently got a subscription to my local paper, The Arkansas Democrat Gazette (motto: Whatever Wesley Clark is doing, no matter how trivial, is front page news), which I have been enjoying immensely. Consider this gem, for example. Today's editorial page contained a column complaining about press nitpicking of Clark. The author wrote (I am not making this up):
I can't know how readers feel, but it appears to me that every time the former general from Little Rock utters a word nowadays, someone is eager to gig him like a bullfrog under the spotlight.
Now there is a phrase that I didn't get to read all that often in the pages of The Boston Globe. I find it encouraging every time I come across evidence that the entire nation isn't adopting the diction and accent of Peter Jennings (who is a Canadian anyway). Hurray for dialect! Hurray for bullfrog gigging! Go Hogs! -------- AUTHOR: The Lawyer DATE: 10/14/2003 10:36:00 AM ----- BODY: A RESPONSE: A while ago, I posted a critique of a forthcoming article by David Hoffman and Kaimi Wenger. David was kind enough to respond to my meanderings. Here are his comments in full:
I've read your recent blog-review of the article I co-authored with Kaimi Wenger, "Nullificatory Juries". I thought your comments were quite interesting (although I disagree, to be sure, regarding your conclusions), and I thank you for your kind words. Kaimi may be posting a response on his blog. I would too, but I'm an anonymous participant in a blog *somewhere*. I thought I'd write you directly about the topic. I think you've mischaracterized the main thesis statement of our paper. The fault could be the article's, still a working draft. It was our intention to make the central point the comparison between criminal and civil nullification, to enable an insight into what kind of future might result from the behavioral experiments regarding human behavior. Behavioralists make two core observations: (1) "cognitive biases = widespread irrationality"; and (2) people deliberately reject of efficiency. In an earlier essay (2003 Ill. L. Rev. 507), I pointed out that observation #1 doesn't get you all the way to an emergent need for paternalism, because the observation is simple common sense. Observation #2 gets you to paternalism in a hurry, but is founded on an impoverished idea of what the law should be about. The article is not an attack on Sunstein's substantive idea (that anti-utilitiarianism may inspire paternalism), it is an attack on his procedural posture (that the data requires reform now). I also do not think the article judges legal ideas based on their demographic receptions (indeed, the article is explicitly agnostic about the demographic data). Our point is that given what happened in the criminal jury context, one would expect that defenders of juries will have a hard time effectively responding to critiques of juries on the basis that hey behave wildly. The idea of the "out of control" jury is resonant among legal academics and policymakers. What is needed, therefore, is a way to test whether juries are really acting irrationally, by suggesting a few justifications for their rejection of law, and then measuring real world juries against those standards. Our position is, at the bottom, a criticism of the normative move that behavioralists have embraced. If I write a follow-up piece (with Kaimi perhaps), I doubt it will be a normative one (although you never know). The data just is not yet there.
DISMALIS: What are you working on there Juris? JURIS: I am trying to come up with a philosophical theory that justifies contract law. DISMALIS: Psssggg! What a waste of time! Philosophers have been talking for two thousand years and have made virtually no progress on anything. You would be better served to sit down and start using social scientific methods to understand the real consequences of particular rules. I am working a paper that explains why reliance damages are efficient in the catfish futures market. JURIS: First, it isn't fair to say that philosophy has made no progress at all. There have been some real advances in our understanding. Second, I don't think there even is a catfish futures market. DISMALIS: That is because you live in New England and like to pretend that you are living in Oxford. Neither place has catfish, barbecue, or good college football. As for your first point, give me one example of real progress? JURIS: Well...um....we no longer think that the mind-body problem can be solved by understanding the pituitary gland. DISMALIS: Res ipsa loquitur. JURIS: Besides, I agree with you that we ought to understand the actual consequences of legal rules, but I don't see how understanding the consequences standing by itself tells us whether a rule is a good or bad. I mean, don't we need some sort of normative theory to justify labeling an outcome as good or bad? DISMALIS: It isn't obvious to me that we need complex normative theories. I mean, philosophers don't seem all that much more moral than the rest of us. Besides, efficiency is a pretty good thing. It is easy for you to sit in your neo-gothic ivory tower and pooh-pooh wealth creation but impoverishing someone for the sake of an abstraction seems pretty inhumane to me. Much better to make things efficient and worry about normative stuff through the taxing and welfare regime. JURIS: But I didn't say that I am interested in impovershing people. Furthermore, it seems that you want to offer up efficiency as a normative criteria without doing the heavy lifting of justifying it. That's cheating. Furthermore, I don't think it works to send normative questions over to the tax people. Ye gods! Have you ever met a tax professor! Furthermore, I am not necessarily talking about distributive justice. If we are going to force people to do something – and when we grant damages for breach of contract we are in effect putting a gun to the breacher's head and saying "we are going to take some of your stuff now" – oughtn't we to be able to justify it. After all in a liberal polity the use of government force is a prima facie deprivation of liberty that needs to be justified. DISMALIS: "Oughtn't"? You really do want to be at Oxford. "Liberal polity"? What kind of real intellectual work can this kind of a concept do? It is too vague and too big. In the end you are just making a bunch of vacuous assertions to a vacuous conclusion. Besides, your force-needs-justification-ploy isn't going to fly with me. The breacher only has stuff to be taken away because we put a gun to everyone else's head and say "don't take his stuff." The real question is what are the consequences of giving the breacher stuff and taking it away when he breaches. JURIS: Now you are sounding all critty on me. Be careful, they don't like your kind much. DISMALIS: Not at all! I am simply pointing out that talking about things in terms of force and justification ain't too useful. It seems that you get involved in all sorts of circular and pointless arguments. I would much rather get down to the nitty-gritty of the catfish futures market. JURIS: Sigh. This conversation isn't going anywhere. Would you like to go over to the humanities building and heckle the literary critics with me? DISMALIS: You're on!
UPDATE: Special thanks to Sasha and Garrett for editorial assistance. -------- AUTHOR: The Lawyer DATE: 10/09/2003 11:34:00 AM ----- BODY: A PLEA FOR CONTRACTS HELP: As the devoted readers of this blog may know, I recently graduated from law school. Having gotten my juris doctorate, I've come rather quickly to the rather obvious realization that I don't know much of anything. Some day, I want to escape from the rigors of "real" employment and become a law professor. One of my main interests is contracts. This is where you come in. I have embarked on a reading program to either read or at least familiarize myself with all of the major discussions in contract law theory. So, as is also apparent from my last couple of entries, I have been reading a lot of law review articles. If you know anything about contracts scholarship and have some suggested reading, I am all ears. Please email me suggestions! My email address is email@example.com. Thanks!! -------- AUTHOR: The Lawyer DATE: 10/08/2003 10:08:00 AM ----- BODY: WHY I AM NOT BUYING NULLIFICATORY JURIES: I just finished reading "Nullificatory Juries" (forthcoming from Wisc. L. Rev.) by my friend Kiami Wenger and David Hoffman. I am ultimately agnostic about the punitive damages debate at the heart of this article (I need to know something about the subject to have an opinion), but I have to admit that there were parts of this paper that bothered me. The target of the paper is Cass Sunstien. Here is the basic argument (as I read it). Sunstien thinks that punitative damage awards ought to be made on the basis of cost benefit analysis. However, behavioral research suggests that juries will not engage in cost benefit analysis even when instructed to do so. (Shocking!) Sunstien's solution is to take the decision away from juries and put it in the hands of bureacrats. Wenger and Hoffman are horrified (no more platonic guardians please!) and want to defend juries. So they are offer a couple of lines of attack. First, they make some gratitious attacks on the rational actor paradigm in law and economics. Strictly speaking these asides are irrelevant. Here is why. The behavioralist critique of the rational actor model mainly serves to show why markets reach inefficient outcomes if not tempered by paternalistic regulations. The whole point of the critique is that efficiency is good, but markets are inefficient. Wenger and Hoffman, however, want to attack the whole idea of efficiency, which is an elite, white male construct being rammed down the throats of ordinary – and as often as not minority – folks who have more deontological, retributivist notions of fairness. The only work that the behavioralist critique could be doing is to show that juries are applying efficiency based instructions improperly because of cognitive biases, etc. However, it turns out that this is not the argument Wenger and Hoffman are making either. Rather they are claiming that juries are simply rejecting the substantive instructions they are being given. Thus, in the end, it seems that behavioralism does no work in the Wenger and Hoffman argument at all. Second, they suggest that efficiency critiques of punitive damages share some of the same characteristics with formalist, rule of law critiques of jury nullification. They correctly point out both attacks share many of the same rhetorical tropes, but I think that if you push below the surface there isn't all that much similarity. Of course, the equation of law and econ with Langdellism is itself a venerable trope of the CLS movment – see, e.g., Gary Minda, Post-Modern Legal Movements – but I am not sure that it really works. The 19th century formalists were primarily motivated by a particular vision of the law as a self-contained and completely autonomous intellectual discipline. Crit historians have argued that this was largely a screen behind which a bias in favor of economic elites was at work. There is probably some truth to this kind of argument, but ultimately I don't think that it carries the day. It cannot explain something like the strange life of the doctrine of consideration, which was formalized so as to make contract law internally self-sufficient, but in practice led to all sorts of commercial inconviences for economic elites. (Remember, sister Antillico was the not only person to be shafted by the doctrine of consideration.) In contrast, the law and econ movement very explicitly denies the autonomy of legal argument. To the extent that legal economists argue in favor of stuff like formal predictability it is not because of some commitment to the rule of law (particularly in some abstract, Langdellian sense) but rather because they want to lower transaction costs, etc. In other words, their reasons are consequentialist and vaguely utilitarian. Third, Wenger and Hoffman take an ambivalent and ultimately critical view of rule of law arguments themselves. My riff on formalism above is a bit unfair, in that they do much more than label rule of law arguments as formalist and move one. (Interestingly, this is a move that Sunstien has been known to make, see, e.g., his Univ. of Chi. L. Rev. article "Must Textualism be Defended Empirically.") However, they ultimately conclude that the rule of law is too vacuous to be doing any real work. At the same time, they suggest that jury nullification can go "too far" and really offend the rule of law after all. The notion that the rule of law is too vague to do any real work in legal theory and its use is therefore a kind of decleration of intellectual bankruptcy seems like a fairly common trope in legal scholarship these days. However, I am deeply skeptical of this move. First, there are theorists who have offered pretty elaborate definitions and defenses of the rule of law – see, e.g., Lon Fuller, Frederick Hayek, Randy Barnett, John Rawls, etc. Thus, one might argue for predictability in the use of government coercion on the basis of the liberal premise that citizens ought to be able to order their own affairs to pursue their own ends. One might be skeptical of jury nullification because juries are ultimately silent wielders of power, in contrast judges must offer reasoned justifications of their opinions. We would thus limit juries because in a liberal polity government force ought to be justified by public reasons. These kinds of arguments could be multiplied. My point is not that any of these arguments are slam dunks against Wenger and Hoffman claims, but rather that they are non-vacuous claims that both do more than invoke empty slogans or simply act as a screen for elite, utilitarian, economic arguments. Ultimately, I think that the article is using jury nullification as a way of talking about two the issue of the proper justification for punitive damages. Wenger and Hoffman clearly think that punitive damages ought be awarded on the basis of some deontological notion of retribution. This is a fair, non-trivial substantive position to take. However, they seem to have already conceded the substative law to the dreaded legal economists. Having given up on articulating and defending a substantive theory of punitive damages, they simply want to defend the ability of juries to ignore substantive law that is discredited by virtue of being economic, utilitarian, white, and male. As is clear, I don't ultimately buy the arguments put forth in this paper. However, it is definitely an interesting, provacative and well put together piece. Wenger and Hoffman do a good job of framing the various debates and tease out some interesting connections between different strands of seemingly unrelated argument. For example, there discussion of what is a nullificatory jury and what the justifications for it might be is really good. Furthermore, there is a sense that the kind of ". . . and they should have also talked about" criticisms that I make in the paragraph above are unfair. After all, you have to end the article some place. I am hoping that the paper on retribution and punitive damages is in the works... -------- AUTHOR: The Lawyer DATE: 10/08/2003 08:13:00 AM ----- BODY: WHAT DO LAW AND ECON THEORIES OF CONTRACT EXPLAIN?: I just finished reading Jody Kraus's article "The Methodological Commitments of Contemporary Contract Theory" in The Oxford Handbook of Jurisprudence and Legal Theory. (An earlier version of the paper is available via SSRN here.) Kraus makes a fairly persuasive argument that one of the things that separates economic and autonomy theorists of contracts is a differing conception of what it is that contract theory should be explaining. According to Kraus, autonomy theorists (Fried, Barnett, Benson) are primarily interested in explaining the doctrinal reasoning in cases and finding a compelling normative justification for that reasoning. Law and econ scholars, in contrast, are interested in explaining the outcomes in particular cases. I am not sure that this divide exists quite as sharply as Kraus makes it out. For example, it seems that Barnett's work on promissory estoppel is an attempt provide a normative justification for case outcomes unrelated to what the doctrinal reasoning actually says. (Recap: Barnett argues that recent promissory estoppel cases, despite what they say, are not really about reliance but actually consist of a new rule enforcing all promises in a commercial context that evidence an intent to be bound.) Still, I think that Kraus's basic point is illuminating. Here is my question: in what sense are law and econ theories explaining case outcomes. Much of the law and econ scholarship that focuses on cases seems to consist of a series of arguments about how the results in the cases are -- or are not -- efficient. Now, it seems that there are three ways that this could count as an explanation. First, the fact that contract cases reach efficient outcomes could be a normative justification for contract law. Second, the fact that contract cases reach efficient outcomes could be one part of a larger, positive theory. Third, the fact that contract cases reach efficient outcomes could be an interesting coincidence. It seems to me that often law and econ theory amounts to the third proposition. Now, I think that efficiency could be a very important part of a normative justification. Wealth and prosperity matters, and we ought to care if legal regimes generate wealth creation or retard it. On the other hand, I am not willing to admit that wealth creation is some uber value, and I suspect that most law and econ scholars would actually agree with me. Thus, what we need is some normative theory of which efficiency is a part. However, I would submit that most law and econ scholars do not offer such a normative theory, and as a result their explanation of contract case outcomes is an incomplete justificatory theory at best. The second option seems to have been abandoned as a serious part of the law and econ research agenda. During the first wave of law and econ scholarship in the 1970s, it seems that there was considerable interest in offering positive theories of why it is that judges produced common law rules that led to efficient outcomes. People posited differing incentive structures between judges and legislatures to account for the seemingly serendipitous efficiency of the common law. This project seems to have been abandoned. I can't think of a recent law and econ paper I have read that purports to offer a positive theory of why courts reached efficient outcomes in particular cases. Thus, it seems that the law and econ explanation is, in some sense, not an explanation of case outcomes at all. Rather, it seems to simply show (or not show, depending on if you are persuaded) that courts reach efficient outcomes. However, there is an odd sense in which the cases and the theories are running parallel to each other without any explicit theoretical link. -------- AUTHOR: The Lawyer DATE: 10/07/2003 02:07:00 PM ----- BODY: LEITER CLAIMS IMMORTALITY: Read all about it here. Just skip to the end for Leiter's claims about Leiter. -------- AUTHOR: The Lawyer DATE: 10/01/2003 04:14:00 PM ----- BODY: WE ARE ALL BEING RULED BY 16th CENTURY SPAINISH MONKS!: At least that seems to be the thesis of James Gordley, "Enforcing Promises," 82 Cal. L. Rev. 547 (1995), which I just finished reading. Gordley's historical thesis -- laid out in greater detail in his book I am told -- is that many of our basic concents in contract law were invented by a group of Spainish, late-scholastic philosophers and jurists in the 1550s. These guys were interested in providing an Aristotlean/Aquinian theoretical justification for the basic structure of Roman contract law. According to Gordley, their ideas migrated north into the pages of Pufendorf and Gortius and from there jumped the North Sea to invade the English Reports and, eventually, American law. Gordley's really audatious claim, however, is that the Scholastics' theories continue to provide the best account of current American contract cases:
Aristotle was constantly defending his principles by pointing out that they could explain the actions of people who acted in accordance with these principles but could not formulate them abstractly. One can imagine his pointing to the American case law as a vindication of his ideas liberality and communitive justice.
Admittedly, one can imagine such a thing, but the real question would be whether or not Aristotle was actually right about the case law. I am doubtful. Despite the clever ways in which Gordley ducks and weaves, at the end of the day his theory seems to run up against the general refusal to enforce gift promises, and the hard fact that the American doctrine of unconscionability doesn't seem to be anywhere near as powerful as it would have to be in order to fit Gordley's theory. Still, it is a fun ride... -------- AUTHOR: The Lawyer DATE: 9/23/2003 12:53:00 PM ----- BODY: SPAM IN THE HOUSE OF LORDS: The truth is out. Wearing 17th century style wigs while discussing modern legal issues does lead to misunderstandings. Thomas Jefferson seems to have been right about the link between wigs ("judges ought not to look like mice smothered in oakum") and the quality of justice. During a recent debate in the House of Lords regarding anti-spamming legislation, one of their lordships asked:
Will the Minister explain how it is that an inedible tinned food can become an unsolicited email, bearing in mind that some of us wish to be protected from having an email?
As it happened, the Minister was unable to explain the link. Fortunately, the readers of this blog do not need to suffer in such ignorance. "Why?" you ask. Because yours truely, in his first ever published legal article -- 115 Harv. L. Rev. 931 (2002) -- tracked down the answer to this question. The term "spam" finds its origin in a Monty Python skit in which the vile meat product appears in huge, unexpected, and unasked for quantities. Hence the link to email. Should their lorships require further discussion, I can also suggest that they look at Washington v. Heckel, 24 P.3d 404 (Wash. 2001), which contains an extensive discussion of the history of the term. -------- AUTHOR: The Lawyer DATE: 9/22/2003 12:02:00 PM ----- BODY: JUST LEAVE DAUBERT WHERE IT IS PLEASE: Brian Leiter has been obsessed of late with the Texas text book wars. However, I was surprised when he let loose recently againt Francis J. Beckwith, who has argued inter alia that creationism in the text books does not violate the Establisment Clause, McLean v. Arkansas notwithstanding. My surprise came because I know Francis J. Beckwith as one of the more well informed (and industrious) philosophical critics of Mormon theology. (For the record: while I think Beckwith is relatively well informed, I don't think he is anywhere near as well informed as he thinks he is.) I had no idea he did law as well! So I took a look at an article Beckwith recently published (26 Harv. J.L. & Pub. Pol'y 456), laying out his arguments for making creationism constitutionally permissible. What struck me as interesting was how he mounted his challenge against the huge scientific agreement in favor of evolution. What to my wondering eyes should appear but . . . (drum roll) . . . Daubert! Since judges don't defer to peer review and the like in the case of evidence law, why should they care what scientists say about -- well -- science? The problem, of course, is that Daubert is exhibit one about why courts ought to defer to scientists on questions of science. I hardly think that one should make the case that brought us breast implant litigation (aka "Junk science in the service of mass tort pirates!") as the poster boy of your defense. It is bad enough that we have Daubert lying around in our evidence law. Please, let's keep it out of our Establishment Clause jurisprudence, which is already a big enough mess as it is thank you very much (e.g. somewhat please reconcile Lemon and Marsh for me)! -------- AUTHOR: The Lawyer DATE: 9/22/2003 08:54:00 AM ----- BODY: FOR JIM: This post is for Jim, my brother-in-law, a recovering actor. Sound isn't everything, and I am looking forward to the DVD. -------- AUTHOR: The Lawyer DATE: 9/17/2003 07:12:00 PM ----- BODY: COMMUNITIES AND EXPLOITATION: Actual, gainful employment has limited my blogging time, but I did want to throw out my two (or three) cents worth on a very interesting exchange between Jacob Levy and Russell Arben Fox. You can check out Russell's post here. It has links back to Levy's original collumn. The basic gist of the joust is that Levy argues that many arguments for policies based on the need to maintain communal solidarity lead inevitably to concrete forms of exploitation. In reply, Russell posts:
To reply to fully shared burdens by saying "I'm being picked on!" means you have already reduced all your fellow citizens to mere potential pickers. Am I saying that if the draft existed on the level I am describing it that no individual would ever feel herself abused by it? That those who suffer losses in some collective project wouldn't ever assess those losses in terms of individual costs (time, money, opportunity, life)? Of course not--solidarity is never (and shouldn't ever be imagined to be) the same as uniformity. But it would mean that fighting in a war, even dying in a war, couldn't be described in terms of "exploitation." Achieving the goal of "partiotism" or "social consensus" (not to mention "national survival") could not then be fairly described as an individual being used as a means, being subjected to a collective end. Rather, the shared community itself would be the means and the ends.
Now I can understand Russell's argument to the extent that he is making the claim that the mere fact that a person feels subjectively picked on does not ipso facto mean that they are being exploited. I am at a loss, however, as to how one is to make sense of the statement that "the shared community itself would be the means and the ends." Surely what is needed is an argument about why the particular unpleasantness a person suffers is particularlly justified. Put another way, we need an argument that explains why a person properly should be used as a means to this particular end. However, I don't see that denying the existence of this ends-means trade off by reifying the community gets us much of anywhere. Read the exchange. Fun stuff... -------- AUTHOR: The Lawyer DATE: 9/04/2003 08:25:00 AM ----- BODY: LEITER LOSES IT: The (apparently) sane Brian Leiter has gone off the deep end and accused Harvard Law School of -- I am not making this up -- "right wing political correctness." The comment comes in a post criticizing HLS for, among other things, left wing political correctness, and I can understand how the urge to fairness might lead one to a kind of "pox on both your houses" criticism. However, at the very least the criticism ought to be grounded in -- well -- reality. Having just survived three years at HLS, I can safely say that while many of the criticisms that Lieter offers are valid, right wing PC is not one of Harvard Law's sins. -------- AUTHOR: The Lawyer DATE: 9/03/2003 11:37:00 AM ----- BODY: IS THERE AN AWARD FOR THIS SORT OF THING?: I have come across the most incoherent thing that has ever been posted in response to my blog. Check it out here. Warning: the author seems to have an extreme aversion to complete sentences or coherent thoughts. But who am I to complain... -------- AUTHOR: The Lawyer DATE: 8/29/2003 08:51:00 AM ----- BODY: A POSTSCRIPT: What lawyer or law student doesn't think fondly of Hawkins v. McGee, 146 A. 641 (N.H. 1929), the famous "hairy hand case" in which a doctor was held to have breached a contract to provide his patient with "a perfect hand one hundred per cent good." The case achieved an even greater level of fame when it formed the subject for the opening scene of The Paper Chase. At work today, I learned that Dr. McGee's contractual troubles did not end with his defeat in the New Hampshire Supreme Court. Having paid Hawkins's (paltry, in my humble opinion) damages, he then turned to his malpractice carrier for indemnification. In McGee v. United States Fidelity & Guaranty Co., 53 F.2d 953 (1st Cir. 1931), the court ruled that the insurance company did not have to pay up. It seems that McGee's policy contained a condition requiring that he not undertake any special obligations with regard to medical services without pre-clearance from the insurance company. McGee's promise to the happless Hawkins thus took his botched operation out of the policy. There is some part of me that feels better knowing that even if McGee wasn't hit too hard for mutilating poor Hawkins's hand that at least he was forced to pay for it out of his own pocket. -------- AUTHOR: The Lawyer DATE: 8/16/2003 01:21:00 PM ----- BODY: RESPONDING TO CHAD: Chad Flanders does me the honor of replying to my last post on Audi. He defends Audi by arguing that alienation need not be a “subjective” concept, pointing out as counter examples Marx's theory of labor or the possibility of being alienated from God or “the truth” without knowing it. I appreciate what Chad is saying, but ultimately I think that this defense is little more than an equivocation. Surely it is true that alienation can be used in many senses, including ones that do not entail any subjective awareness of the alienation. However, I don't think that Audi is concerned with anything so metaphysical as spiritual integrity or the relationship one the worker to the product of his labor. Rather, I take Audi to be making a straight forward consequentialist argument: Violations of his surrogacy theory lead to alienation on the part of citizens that in turn leads to undesirable social consequences, e.g. unhealthy divisiveness, political unrest, violence, etc. The move to consequentialism, in my mind, requires that Audi's theory adopt some notion of subjective alienation in order to make the link from his thought experiment to actual social conditions. Now it might be that there is some mechanism by which coercive policies that do not satisfy Audi's surrogacy theory lead to bad social consequences. It might even be the case that in a bid to sound erudite, continental, and vaguely existential we could call this mechanism “alienation” without referring to the actual subjective responses of individual citizens. Perhaps we could even use a French or German translation of the term “alienation” in order to deepen the effect. However, I don't think that Audi is doing anything so hoity-toity as this. Rather, I think the he is simply arguing that violations of his surrogacy theory piss people off in socially dangerous ways. My only point is that there is no logical reason for thinking that this is the case. At best it seems to me that Audi at this point is engaged in arm-chair sociology masking as philosophy. -------- AUTHOR: The Lawyer DATE: 8/16/2003 08:13:00 AM ----- BODY: MY OLD JOB WITHOUT THE SUBCITING: I have been asked by The Journal of Law and Religion to be a peer reviewer, which ought to be fun. -------- AUTHOR: The Lawyer DATE: 8/14/2003 08:51:00 PM ----- BODY: AUDI'S ALIENATION: The side bar not withstanding, I am not really reading Audi anymore (I will fix it some time). I am actually reading David Ibbetson's A Historical Introduction to the Law of Obligations, which is quite fun if you want to be a contract law geek when you grow up. However, I would like to pick a bone with at least one argument that Audi makes. One of the philosophical problems that Audi touches on in passing is how one justifies coercion in a liberal state. He offers what he calls a surrogacy theory. The argument's basic claim is that the only sort of coercion that is justified is the kind of coercion that forces people to do things that they would have decided to do anyway were they fully informed and rational. This seems to me like a variation on the old liberal idea of consent. Behind the language about rationality and justification, I think that we have an old fashion social contract idea. However, like all social contract theories from Hobbes and Locke to Rawls, it rests on a fictious idea of consent. What matters is not real, emperical consent but rather hypothetical consent under a set of carefully controlled philosophical conditions. I don't have any objection to this approach per se (at least the point of this post is not to criticize it). However, I do find it odd where Audi then goes with this argument. He claims that a surrogacy notion of coercion must be embraced because otherwise citizens will feel alienated and excluded from the political community. Here is where I have to get off the wagon. Alienation of the kind that Audi seems to be discussing only operates -- it seems to me -- as a useful concept if we are talking about actual, emperical, subjective feelings of alienation. By invoking an emperical concept to prop up his thought experiment driven surrogacy theory, Audi is eliding over the fact that there is no reason to suppose that his thought experiment has anything to do with the actual, subjective reacation of citizens. Let me illustrate with just three examples. Suppose that coercive policy X could be adequately justified to a fully informed, rational person. Dogberry (a citizen) is not, however, fully informed. He does not know about smaggles, and without a full knowledge of smaggles policy X makes no sense. As a result, Dogberry simply feels bullied and alienated. Dogberry has a friend named Verges who is also a citizen. Verges is a plodding, pedantic sort of guy and he knows all there is to know about smaggles. The problem is that he is just a little dumb. He gets tripped up in policy arguments, commits various logical fallacies and is generally confused once he is asked to analyze his vast collection of facts. As a result, he does not "get" the rational argument in support of policy X and -- like Dogberry -- feels deeply alienated. Finally, there is Angelo, a citizen, who is a bit of religious zealot and for purely a-rational (or perhaps irrational) reasons feels that policy X is very, very evil. When he is coerced by the policy he also experiences alienation. Hopefully by now you can see my problem with the way that Audi tries to link his idealized policy justifications to "alienation." It may be that idealized, philosophically controlled conditions will yield proper answers to policy questions. However, it doesn't seem possible to reason from the mere fact of acceptance in such an idealized situation that the policy will not in fact produce alienation within an actual body of citizens. Nor does it follow that non-alienating policies would always be accepted in the ideal situation. There is no reason to suppose that Dogberry, Verges and Angelo -- each operating under their respective mental handicaps -- might not agree on policy Y that while unjustifiable to a rational and fully informed hypothetical person is nevertheless much less alienating to real people. -------- AUTHOR: The Lawyer DATE: 8/11/2003 09:01:00 AM ----- BODY: HETERODOX MARRIAGES AND LEGAL PLURALISM: Gay marriage has cropped up of late as a topic in the blogosphere. It strikes me that there is an interesting historical parallell here that might be worth mentioning in passing. During the 19th century Mormon polygamists also faced the problem how to give some legal status to heterodox marriages. They came up with a somewhat interesting solution. Under the laws of the State of Deseret (the name of the Mormon commonwealth in the Great Basin before its formal incoporation into the United States) and the Territory of Utah there was no direct acknowledgement of polygamous marriages. Rather, the Mormon Church was granted a corporate charter that gave it the power, inter alia, to solemnize marriages, and the state was then instructed to recognize those marriages. The state's authority over marriage was further undermined by the fact that virtually all issues of family law -- divorce, custody, alimony, child support, etc. -- among 19th century Mormons were resolved by ecclesiastical courts. Thus, the legal problem of alternative marriage schemes was solved by limiting the state's power over marriage and fostering a kind of legal pluralism. Of course, the issue of what counted as "the state" in 19th century Utah is pretty complicated. To some extent, I suspect result of the gay marriage battles will also hinge on legal pluralism. Different states will adopt different regimes, and I suspect that DOMA (which seems fairly clearly unconstitutional) and Lawrence notwithstanding the federal government will stay out of the issue. What is intersing is that while federalism allows us some measure of legal pluralism, our idea of law is still so closely tied to the idea of exclusive territorial jurisdiction that we have a hard time conceptualizing parallell legal systems in the same place. As Harold Berman demonstrates in Law and Revolution, however, western legal thought was not always so unimaginative. -------- AUTHOR: The Lawyer DATE: 8/07/2003 06:52:00 PM ----- BODY: MORE ON RAND: Chad Flanders charitably (no Randian he) offers me "a few arguments, free of charge (and which I hope aren’t merely ways of falling back on the “Judeo-Christian” ethic that Nate cites in passing)." As he points out, my main objection to Rand below is more aesthetic than substantive. What bugs me about Rand is the plodding earnestness of it all as much as the (as Chad points out) incoherent substance. (I suppose that means that I have essentially Nietzchian reasons for rejecting Nietzche.) On the other hand, having run in some of the same intellectual circles as Chad, I can honestly say that "some of my best friends are Randians." -------- AUTHOR: The Lawyer DATE: 7/25/2003 12:05:00 AM ----- BODY: WHY I AM NOT A RANDIAN: Check out this article from Capitalism Magazine in which the author defends Martha Stewart from the attacks of the "Tall Poppy Syndrome" afflicted American media. The argument is that Martha is hated because she has succeeded. I share the article's skepticism about insider trading laws, and I am willing to be persuaded that Martha has been unfairly targetted. On the other hand, I enjoy Martha Stewart jokes. Furthermore, I find the Ayn Rand inspired Jeremiad against charity and concern for the poor a bit chilling. The author writes:
We have been told for centuries that the weak, the incompetent, the most down-and-out bums on the street are the most worthy objects of our moral concern--while the highest achievers are at best the bum's servants, at worst his exploiters. The result is an upside-down morality, a code in which the better you are, the worse you are. The more you achieve, the more you are hated.
Now I am willing to admitt that a certain amount of the fervor behind calls for social justice is plain old fashion envy, but this seems like a remarkably silly and callous dismissal of the Judeo-Christian ethic of charity. This is the sort of stuff that keeps my free market sympathies from spilling over into Ayn Rand silliness. More to the point, for the all the evangelical fervor of Randians the idea was not initially hers. Nietzche wrote about the "slave morality" in The Genealogy of Morals long before Rand inflicted her hideously long and pompous novels on the world. Besides brevity and priority, Nietzche has another advantage over Rand. He is a good writer with a sense of humor. No one ever accused Ayn Rand of poking fun at herself. Compare that with Nietzche's withering sarcasm at the expense of philosophers (like Nietzche) in the opening pages of Beyond Good and Evil. -------- AUTHOR: The Lawyer DATE: 7/24/2003 11:42:00 AM ----- BODY: MY FATHER IS FAMOUS: Check out this article in which my father (an art historian) holds forth on the history of Utah landscape painting. Interesting stuff! -------- AUTHOR: The Lawyer DATE: 7/23/2003 09:42:00 AM ----- BODY: DOES JUDGE KOZINSKI HAVE A HOMEPAGE?: There is a Kozinsky.com, although it is written in some Eastern European language (Romanian?) and doesn't seem to be run by the Judge. Facinatingly, however Eugene Volokh does provide a link to this recent article by the Judge. The article it turns out is posted on a URL calling itself server.kozinski.com, although a link directly to that site produces nothing. So what is the relationship between everyone's favorite 9th Circuit judge and the mysterious URL of the same name? Email me if you know! UPDATE: Through a bit of online detective work Kaimi Wenger reveals that the domain name in question (server.kozinski.com) is owned by Yale Kozinski, who -- as it turns out -- is Judge Kozinski's son. -------- AUTHOR: The Lawyer DATE: 7/18/2003 02:54:00 PM ----- BODY: SIMPLY THE BEST DEFENSE OF LAWRENCE YET: This paper by Randy Barnett is simply the best defense that I have read thus far of Lawrence. I am not sure that I buy Barnett's argument, and I am skeptical that the Court will follow through on the libertarian implications that Barnett draws out of Kennedy's decision. However, Barnett's analysis does have the virtue of charity in that it takes what looks like a very muddy, results-driven fundemental rights case and turns it into a clean holding with potentially sweeping implications for constitutional law. Simply put, Barnett is arguing that Lawrence is going Lochner one better, annoucing that the Court will no longer grant a presumption of constitutionality to any law that infringes upon liberty (as opposed to liscense). If I get some more time, I will blog a bit more about this. For now, just READ IT! Also, if I were on the articles committee of a major law review I would immediately contact Barnett and ask for this piece. -------- AUTHOR: The Lawyer DATE: 7/17/2003 12:25:00 PM ----- BODY: THE VIETNAM STORY: Speaking of the hold that particular narratives have (see "Evangelical Brights" infra), David over at OxBlog has this to say:
Yet in spite of . . . compelling alternatives, the WaPo decided to favor the least plausible explanation of Bush's falling numbers: the supposed quagmire in Iraq. It is precisely this sort of indefensible decision which highlights the lasting impact of the Vietnam mindset on American journalists. Our media is so invested in the Vietnam narrative of hit-and-run guerrillas, disappointed GIs and homefront dissent that it turns every war into Vietnam. At times, this Vietnam mindset results in coverage that is decidedly liberal. Yet in this instance, the quagmire prism favors those conservatives and realists who believe that America has no business rebuilding war torn nations and promoting democracy abroad. Thus, it isn't politics in the partisan sense of the word that determine how the media cover foreign affairs. Instead, there is an unconscious ideology -- derived from a self-absorbed interpretation of American political history -- that leads journalists astray.
One can only hope that as the baby-boomers slowly wend their way into retirement, we will be spared the intermidable rescripting of the the 1960s onto current events. The question of course is what will the scripts of the media be when it is dominated by folks of my own generation? Deranged, sex-obsessed special prosecutor relentlessly hounds great president who was just doing what everyone does? We'll see... -------- AUTHOR: The Lawyer DATE: 7/16/2003 11:13:00 AM ----- BODY: A BUSINESS PLAN: Check out the website tortfeasor.com. This is a business whose sole product, as near as I can tell, is a t-shirt emblazoned with the word "tortfeasor." According to Unlearned Hand, however, all of the "cool law students" are wearing them. I will have to take his word on this since, I was not a cool law student. Indeed, I don't think that I even knew any cool law students, if such a thing exists. All of the law students I knew in law school were either hopeless geeks, embittered English majors who brooded a great deal about "selling out," or both. -------- AUTHOR: The Lawyer DATE: 7/15/2003 09:13:00 AM ----- BODY: EVANGELICAL BRIGHTS: Daniel Dennett (Tufts, Philosophy) has a rather breezy piece in the NYT calling for "Brights" -- essentially atheists and other philosophical naturalists -- to stand up, be counted, burnish their image, and make their political clout be felt. I mainly agree with Chad Flake who argues that:
For one, it seems silly on its face to form a political coalition around holding certain metaphysical beliefs, as if Wittgensteinians of the world should unite in support of their metaphysical agenda (“we demand all Supreme Court nominees to say where they stand on the private language argument”). But Brights pushing for political clout is, more importantly, a political blunder.
What struck me however was how quickly Dennett, in a bid to make naturalism powerful, meaningful, and desirable, fell back on essentially religious tropes and imagery. Consider this story. He writes:
I recently took part in a conference in Seattle that brought together leading scientists, artists and authors to talk candidly and informally about their lives to a group of very smart high school students. Toward the end of my allotted 15 minutes, I tried a little experiment. I came out as a bright.
Now, my identity would come as no surprise to anybody with the slightest knowledge of my work. Nevertheless, the result was electrifying.
Many students came up to me afterwards to thank me, with considerable passion, for "liberating" them. I hadn't realized how lonely and insecure these thoughtful teenagers felt. They'd never heard a respected adult say, in an entirely matter of fact way, that he didn't believe in God. I had calmly broken a taboo and shown how easy it was.
The structure of the narrative follows a simple evangelical pattern. The believer -- in a moment of courage -- testifies of his belief. There is a powerful, almost palpable feeling of excitment. Those hearing the Word are converted. Their eyes are open and they thank the daring evangelist. In short, Dennett is offering up a pale version of St. Peter on the day of Pentecost. Somehow, I still find the narrative in Acts 2 more "electrifying." -------- AUTHOR: The Lawyer DATE: 7/12/2003 07:38:00 PM ----- BODY: BLOGGER INCOGNITA: I have a friend full of interesting things to say. He is finishing up a Ph.D in political philosophy from the University of Chicago and will be enrolling in Yale Law School (it isn't Harvard, but the architecture is nicer). He also has a blog on which he says interesting things. However, according to my friend, the blog is not ready to "go public," and he therefore doesn't want links or public knowledge of its URL. This kind of premortal existence for blogs is something that I find a bit puzzling. What precisely is the criteria for deciding when to "go public"? To whom is the blog addressed if one is trying to limit traffic to the site? -------- AUTHOR: The Lawyer DATE: 7/08/2003 04:47:00 PM ----- BODY: MORE ON COKE, TRADITION AND CUSTOM (Warning: Post for the Hard Core Law Geek): Gary O'Connor of Statutory Construction Zone fame offers the following criticism of my post on Sir Edward Coke and the Lawrence decision:
In responding, I presume that what Mr. Oman refers to as “the Cokian position” is actually a reflection of the idea of custom in the English common law. I also presume that when he refers to “a much thicker notion of ratification, one that can only exist when practices prove themselves over long periods of time and across many subcommunities,” he is referring to what is usually called “tradition.”
There is little question that the idea of “custom” plays a large role in English common law history. However, it may be a mistake to presume that “custom” in the English common law sense is coextensive with the notion of tradition as used in American legal discourse. As noted below, the English common law notion of “custom” may be considerably narrower than, and distinct from, the idea of “tradition.”
First, there were quite specific requirements for determining whether something qualified as a custom (requirements that probably would not apply to a “tradition”). Blackstone lists the following “necessary requisites” (the following quotations are from the Introduction to the COMMENTARIES, the section “Of the Nature of Law In General”:
“That it have been used so long, that the memory of man runneth not to the contrary. So that if any one can shew the beginning of it, it is no good custom.”
“IT must have been continued. Any interruption would cause a temporary ceasing: the revival gives it a new beginning, which will be within time of memory, and thereupon the custom will be void.”
“IT must have been peaceable, and acquiesced in; not subject to contention and dispute. For as customs owe their original to common consent, their being immemorially disputed either at law or otherwise is a proof that such consent was wanting.”
“CUSTOMS must be reasonable; or rather, taken negatively, they must not be unreasonable. Which is not always, as sir Edward Coke says, to be understood of every unlearned man's reason, but of artificial and legal reason, warranted by authority of law.”
“CUSTOMS ought to be certain.”
“CUSTOMS, though established by consent, must be (when established) compulsory; and not left to the option of every man, whether he will use them or no.”
“LASTLY, customs must be consistent with each other: one custom cannot be set up in opposition to another. For if both are really customs, then both are of equal antiquity, and both established by mutual consent: which to say of contradictory customs is absurd.”
It is fairly easy to see that this is a pretty demanding test and that this idea of custom is quite a bit narrower than the idea of a tradition. Traditions do not have to be ancient, can be interrupted, can be the subject of contention and dispute, need not be reasonable or certain, are generally not compulsory, and need not be consistent with each other.
Second, one might think that the place to look for a “tradition” would be among the people (Mr. Oman refers to the “thick reality of social practice”), not judges. However, Blackstone makes clear that customs are to be determined by judges: “how are these customs or maxims too be known, and by whom is their validity to be determined? The answer is, by the judges in the several courts of justice. They are the depositary of the laws; the living oracles, who must decide in all cafes of doubt, and who are bound by an oath to decide according to the law of the land.” Note also that judges are to determine whether a custom is “reasonable.”
Third, a “custom” is not necessarily something that exists “across many subcommunities.” Blackstone notes that there are two kinds of custom: general customs (“which are the universal rule of the whole kingdom”) and particular customs (“which for the most part affect only the inhabitants of particular districts”). A frequently-cited example of the latter was the custom of gavelkind in Kent—i.e. a local exception to the general rule of primogeniture.
So the idea of custom in the English common law may provide a useful, if somewhat rough, analogy for use in discussions about American constitutional law. However, one should recognize that it can be quite different from what people usually call “tradition” in these kinds of legal discourses.
One might also need to recognize that the English common law idea of custom might not be as conservative a force as some might expect. Theodore Plucknett, in his frequently-cited A CONCISE HISTORY OF THE COMMON LAW (p. 307-14) refers to the “Flexibility of Custom,” notes that the middle ages show us “bodies of custom of every description, developing and adapting themselves to constantly changing conditions,” and when discussing feudal customs, states that “with the progress of history, therefore, we see the constant growth of new custom.”
One example of the use of a kind of custom to produce great changes in the law is Lord Mansfield’s incorporation of commercial custom into the common law—a move that was hardly regarded as conservative at the time. See DAVID LIEBERMAN, THE PROVINCE OF LEGISLATION DETERMINED: LEGAL THEORY IN EIGHTEENTH-CENTURY BRITAIN 99-121 (2002).
--The Eclectic Option. The Court might not try to systemitize and generalize the new concept of legitimacy. We might end up with a laundry list of forbidden interests without a unifying general account. Of course, academics and lawyers will try to find a pattern, even if the Court provides few clues.
--The Libertarian Option. The Court might take Justice Kennedy's discussion of liberty, morality, and harm seriously. If so, then the Court would be moving in the direction of constitutional libertarianism.
--The Public Reason Option. The Court might move in a Rawlsian direction, distinguishing between those interests that can be derived from public reason and those which rest on sectarian doctrines or particular moral theories.
I have two points to make in response. The first is that on the best reading of the Court's holding -- one adopted by Jack Balkin as well as Larry Solum himself -- Kennedy's discussion of "legitimate state interests" is dicta. Here is why. If the Court has held that there is a fundemental right to homosexual intimacy free from state coercion, then the proper standard of review for any law burdening that right is strict scrutiny. If this is the test that is actually being applied, then the discussion of "legitimate state interests" is really a rhetorical trope. The Court in effect is saying that "Not only is the Texas interest not compelling it is not even legitimate!" There are problems with this reading of course. First, it would seem that the Court never actually got around to applying the level of scrutiny they should have applied and we are left with an opinion that solves a core issue by ipse dixit. Second, this reading makes the relationship between the Court's opinion and Romer somewhat problematic. However, once one conceptualizes the law at issue in Romer as being a burden on the right announced in Lawrence (this is a stretch to be sure, but I am trying to reconcile the cases) then it seems that Romer was not applying rational basis scrutiny either. Of course just because it is dicta doesn't mean that it doesn't matter. My second point is response to Solum is that his post elides over a real tension about how legitimacy is established. It seems that we can either look to Agreement or to Reasons. Agreement, it seems, is the democratic standard whereby the government is legitimate when it is consented to by its citizens. In a second best world where unanimity is not possible we opt for democratic institutions. Reason is the liberal standard (using liberal philosophically rather than politically) whereby government action that conforms to certain conceptual norms is legitimate. Notice that these two approaches can exist independently of one another and at cross purposes with one another. Conceptually impermissible government action may in fact be agreed to and vice versa. In the end I think that the distinction between Reason and Agreement is a more useful why of looking at the divide between Scalia and Kennedy than is the concept of morality. It is a mistake to reduce Scalia's approach to some form of reason based legitimacy. His discussion of morality is not meant to lay out a conceptual basis for legitimating morals based legislation because it is morals based legislation. Rather it is meant to prove that morals based legislation has been consented to. In contrast Kennedy seems to be groping towards a conceptual scheme of the kind suggested by Solum. (My vote is for public reason rather than libertarianism.) Of course, drawing the distinction doesn't solve the issue. It may be that Scalia's vision of consent or Kennedy's vision of public reason collapse under scrutiny. However, I do think that this divide -- rather than that between pro- or anti- morality -- is the place to begin the scrutiny. -------- AUTHOR: The Lawyer DATE: 7/05/2003 12:11:00 PM ----- BODY: EQUITY IS AS EQUITY DOES: In the spirit of my last post, I am feeling very medieval today. It turns out that in the Commonwealth of Virginia the distinction between law and equity remains alive and well. Thus, in learning procedure I get to learn not only law but also the mysteries of chancery. Law school -- of course -- creates the impression that all legal systems are built on the model of the federal courts, with the merger of law and equity and the Federal Rules of Civil Procedure. Not so! So I get to learn about subpeonas in chancery, petions for review, and other such exciting things. So here is the real question: Is there any functional reason to require one set of procedures when you are seeking one set of remedies and an entirely different set of procedures for a closely related but different set of remedies? I didn't think so... -------- AUTHOR: The Lawyer DATE: 7/01/2003 10:19:00 AM ----- BODY: LAWRENCE AND LORD COKE: The blogosphere has been churning out streams of commentary on Lawrence at an amazing rate. Since the substance of those opinions having been exhaustively analyzed by people with greater insight (and wit) than me, I will refrain (for now) from saying anything. However, I do find that discussion of history that swirls through the case fascinating. The sodomy case presents a historical issue, with Kennedy laboring mightily to show that maybe the prohibition of homosexual sexuality isn't so historically rooted after all, and Scalia causticly (and correctly) pointing out that none of the historical data cited by the majority undermines the basic proposition that there is a long standing historical tradition of criminalizing “unnatural” sexual practices, which has at the very least generally included homosexual sodomy. In his dissent Scalia framed the issue in terms of whether or not a fundamental right to homosexual sodomy was deeply embedded in our history. Kennedy was – characteristically – less clear in his opinion, but he seems to be interested in a somewhat similar question, although he defines the right at issue – liberty in intimate associations – at a higher level of generality than does Scalia. Both sides, implicitly or explicitly are looking to historical practice as a ground (or at least a partial ground) for unenumerated legal rights. My question is why should history provide such a ground at all? It seems that we have at least three theories here. The first is what I would call and expectation theory. Passed practice creates expectations around which people order their lives and so we don't want to disappoint these expectations. Kennedy obliquely invokes this idea in his discussion of stare decisis, and makes it explicit in his defense of Roe in Casey. The second theory is what I call Burkean. Here the idea is that long historical practice somehow instantiates wisdom that cannot be easily articulated or rationally grasped. Individual human minds are limited in their understanding, but a community, which persists over many human lifetimes, can embody the wisdom of centuries of experience in its institutions (broadly conceived). We tamper with them at our peril. The third theory is what I call Cokian. The reference is to Sir Edward Coke. Coke argued that historical practice was entitled to legal force because customs and practices that universally persisted over long periods of time were consented to by the people in a way that conferred upon them unique legitimacy. Coke and the great historical jurists of the seventeenth century who followed him – Selden and Hale – are in some sense transitional figures between the legal ideology of the late middle ages and the birth of modern liberalism in the 18th century. Thus one might view their theory of consent as a kind of half baked groping toward true democracy, a second best theory of consent adopted in the absence of democratic institutions like universal suffrage or elected legislatures in the modern sense. However, I think that there is a deeper point to Coke's theory. One can argue that the consent created by the institutions of democracy – voting, legislation, etc. – is actually a thin and episodic kind of consent. It depends on the vagaries of shifting coalitions, the manipulation of decision procedures, and the swirls of momentary public opinion. In contrast, a Cokian consent rests on a much thicker notion of ratification, one that can only exist when practices prove themselves over long periods of time and across many subcommunities. Rather than conceptualizing consent in formalistic terms, the Cokian position looks to thick reality of social practice. As is obvious by this point, I find the Cokian notion to be the most interesting. I think that it is the one that is implicit in Scalia's dissent in Lawrence as well as the fundamental rights jurisprudence that he invokes. What is interesting, however, is whether or not it will persist. The Cokian position presupposes a great deal of social patience and a fairly low level of social change. Whether or not it continues to be tenable in a society of rapid change and short, impatient attention spans remains to be seen. Certainly, Roe, Casey, and now Lawrence suggest that it is not. In an era where history is telescoped and social patience is seen as apathy in the face of injustice (a not unfair criticism in many cases), I suspect that we lack the ability to wait for a truly Cokian custom or practice to develop. We are thrown back on formalized democracy and whatever it is that Kennedy is doing in the majority in Lawrence. I can't help but feeling a sense of loss. Still, three hundred years isn't such a bad run for a legal idea. -------- AUTHOR: The Lawyer DATE: 6/29/2003 09:55:00 PM ----- BODY: CONTRACTING AROUND YOUR FUTURE SELF OR IN PRAISE OF PENALTY CLAUSES: The always fun and interesting Sasha Volokh has a fascinating round up of the debates in the latest issue of Regulation regarding smoking and hyperbolic discounting. The best thing to do is simply read Sasha's post here. Here is the gist of the issue. You engage in some behavior -- smoking in this case -- that gives you pleasure now but has costs later. (I am at a loss as to why smoking is supposed to be pleasurable, but I will stipulate.) The idea is that you want to start quitting but you want to do it tomorrow. This seems like a rational position to take. But here is the kicker. When tomorrow rolls around it turns out that tomorrow has become today and you’re really don't want to quit until later. Thus the utility maximizing life plan laid out by the self of today gets consistently frustrated by the self of tomorrow. The argument is that the future self is imposing externalities on the present self. The optimal solution is to force the future self to internalize these externalities through tobacco taxes. Cute, eh? As Sasha points out, hyperbolic discounting provides a ready made case for utilitarian paternalism because forcing the future self to pay up will maximize the utility of the present self. What present self could be opposed? Of course it gets a bit more complicated. Sasha writes:
[T]he true question is whether the government is justified in forcing people to do things in a way that makes them happier today. Utilitarian paternalism. The correct answer has to deal with, at least, two issues:
(1) Maybe not everyone would be made better off, because maybe some people aren’t hyperbolic discounters; this involves the Hayekian question of how you even know people’s preferences, and the more standard question of whether it’s justified to impose these taxes even on those who wouldn’t be helped by them.
(2) And even if everyone would be helped, it is morally appropriate for the government to tie people to the mast, or does a dignified human existence require that people find their own ways to overcome their self-control problems?
It seems like the answer to the first issue is a commitment mechanism. If we are afraid that across the board tobacco taxes will frustrate the plans of those whose discount functions simply place a low value on the future it seems that we can do one of two things. First, we can try to create a regulatory mechanism that amasses the correct information about what people really wants and regulates them accordingly. This of course is impossible, so the next best solution will be to try to generalize about the population as a whole and provide some rough and ready intermediate tax. Messy and inefficient. The second solution is to allow people to effectively commit their future selves. Those who really do want to quit tomorrow will be able to do so and those who simply don't care (or don't care much) about cancer in the future will be allowed to puff away their shortened -- but presumably utility maximized -- lives. According to Sasha the economists in the debate have dismissed this solution as pragmatically unworkable. However, I fail to see what this is so. Suppose that I enter into a contract whereby I sell to someone my commitment not to smoke in the future (or at least to start quitting). We have here a valid contract -- offer, acceptance, consideration. The problem comes when I breach. What will be the other parties’ measure of damages? Answer: the expectation value of my performance to them. This is not going to be all that much because, as it turns out, my self -- in particular my past self -- is the primary beneficiary of the contract. (I am willing to admit that there are major procedural difficulties in allowing my past self to intervene as a third party beneficiary.) We thus have a binding contract that will probably not be performed because as it turns out it isn't worth much. Indeed, the fact it isn't worth much means that it probably won't be entered into. After all, why would the other party want to buy my promise not to smoke in the first place? One solution to this would be to change the conditions of the original promise that I offered. I would promise not to smoke and I would promise to pay some bounty if I breach. I could even promise to pay the other side’s attorneys fees. Now we have a workable solution. I can commit my future self. My promise will have some value -- basically the breach bounty that I offer discounted by time and the probability that I will actually quit. One can imagine lawyers buying up a portfolio of these promises. Some people will carry through on them and some people will not. The lawyer can collect from smokers who renege on their promise to quit. All is well! Actually, not quite. The problem is that the modified version of the contract outlined in the paragraph above is unenforceable because it contains a penalty clause. The bounty is nothing more than a promise to pay some penalty if I breach my promise. Thus, in order for commitment to get around the problem of hyperbolic discounting all we need to do is change a single doctrine of contract law. The prohibition against penalty clauses generally gets justified by legal economists like Posner by invoking the concept of efficient breach. If people can get a better deal by breaching and paying damages so much the better. The prohibition against penalty clauses is thus justified by a steely eyed analysis that refuses to allow nonsense about the sanctity of promises or the will binding itself to justify inefficient over deterrence. Hyperbolic discounting seems to provide a justification for penalty clauses that also avoids the metaphysical non-sense about promising by appealing to the same pragmatic, utility maximizing analysis. But does it really? Commitment seems to get us around Sasha's second question -- hey we aren't coercing anyone we are just enforcing contracts, right? -- but, alas, it simply restates it. The question now becomes whether we are morally justified in allowing a present self to coerce a future self. Why prefer one over the other? If I had a perfectly cogent answer to that question, I would bottle it and sell it. -------- AUTHOR: The Lawyer DATE: 6/28/2003 10:02:00 PM ----- BODY: VIRGINIA HITS HARD: By and large we do not punish people for failure to pay their debts. For better (or for worse) debtors' prisons seem to be a thing of the past. We let jilted creditors attach property, but you are not going to be able to get a contempt citation or other punitive action against a deliquent debtor. The one major exception to this is child support, a form of debt that you will be punished for not paying. In Virginia (as I am learning for the bar exam) the Commonwealth has cut loose with the full panoply of punitive measures: imprisonment, revoking drivers or professional lisenses, and (my favorite) the loss of recreational lisences. That's right. Virginia hits dead-beat dads where it really hurts. Miss your child support checks and you ain't huntin' or fishin' . . . -------- AUTHOR: The Lawyer DATE: 6/28/2003 04:07:00 PM ----- BODY: CONTRACTS: Professor Gordon Smith has an interesting post here on the contract with American Debt Management. It turns out that ADM is "helping" debtors out of debt by asking them to take their available cash and pay it to ADM rather than to their creditors. Smith also has an interesting analysis of the mechanics and tactics of the ADM contract. Kudos to Smith (and others) for operating a non-con law obsessed blawg. -------- AUTHOR: The Lawyer DATE: 6/20/2003 11:50:00 AM ----- BODY: ENRON AND KLEPTOCRACY: I recently had an exchange with an acquaintance on the topic of “liberation.” I was a bit confused about what the term was supposed to refer to but given the context it seemed to have vaguely Marxist, Spirit of 1968 overtones. It turned out that I was right and further elaboration produced a list of evils: Big Government, Big Business, the CIA, Enron, American pressure on enlightened Latin American countries bent on expropriating American investments, etc. One of the things that struck me as interesting was that my acquaintance linked American pressure on nationalizing governments overseas and Enron together in the catalog of evils. For the record, I am no fan of the often heavy handed American intervention in the internal politics of nations south of the border. However, it seems to me that to the extent that the governments of these nations are – or at any rate were – engaged in the expropriation of corporate assets that they were engaged in precisely the same evil as Enron. What exactly did Enron do that was so despicable? At the end of the day they lied to investors who, as a result, lost huge amounts of money. Now if the investors were simply the proverbial fat cats, then I wouldn't be too outraged. Those who can drop a couple of million bucks into a hedge fund or a VC firm are going to get by just fine. However, most securities are not held by rich individuals. By far the single largest group of stock holders in America is pension funds. This is why Enron was such a travesty. Thousands of people lost their life savings and their hope for the future in Enron's collapse. It is the wide dispersal of ownership of securities – particularly through institutionalized investors like pension funds – that makes something like Enron so poignant. Little people are hurt when corporate value is wasted or destroyed. Now think about the banana republic that decides to nationalize the local assets of some American multinational. So long as the target is conceived of as “a big corporation,” then moral outrage seems overstated. (Note: this doesn't mean that one might not still criticize the action on functional grounds, e.g. ex post expropriation may pay for the nationalizer but it can create devastating ex ante incentives) However, once we unpack the realities of the joint stock company the issue becomes more complicated. The assets taken ultimately belong to shareholders and given the realities of stock ownership many, many of those shareholders will be precisely the same “little guys” that fuel moral outrage against Enron. This, of course, hardly ends the conversation. The hard core nationalization apologist may argue that even the littlest of the little American little guy is a rich fat cat by local standards and that such a wealth transfer would still be justified. Alternatively, one might claim that mutlinationals are so huge that the real impact of a little expropriation around the edges won't really hurt anyone that much. Furthermore, even if one acknowledges that expropriation hurts “little guys” worthy of moral concern, it still doesn't follow that one is justified in sending the CIA south to assassinate someone. What gets me, however, is the selective way in which the corporation is reified – being treated as a some self-existing moral actor in some rhetorical contexts and as an almost invisible flow-through to victimized shareholders in other contexts. -------- AUTHOR: The Lawyer DATE: 6/15/2003 12:54:00 PM ----- BODY: WHIGGISH HISTORY?: Here is another thought on legal history. Generally speaking legal history, particularlly when told by modern lawyers, tends to be quite whiggish. Since Maine we have thought about progression from primative forms of law to more enlightened ones. Think of Maine's posited progression from fiction to equity to legislation or from status to contract. Certainly modern tort law is taught in fairly whiggish terms. We learn that there used to be barbaric common law doctrines like contributory negligence or the fellow servant rule that we have since been saved from by enlightened jurists like Cardozo or Trainor. However, as I study for the bar I was struck by at least one area in tort law that seems to have come full circle: workers' comp. Some of the very earliest European legal "codes" are early medieval Germanic laws. It is easy to read these codes in whiggish terms, shuddering at the easy acceptance of trial by combat or ordeal. Among these codes are seemingly crude lists of precise amounts to be paid for certain injuries. So many pieces of gold if you put out another's eye, so many pieces for an arm, and so on. How quaint and barbaric?! Aren't we all glad that we live in a civilized society where such issues are treated contextually as a matter of argument, evidence, and deliberation?! Thank goodness for the development of trial by jury and the rejection of such an aridly formalistic and heartless approach to compensation for human suffering?! Well not quite. One opens the workers' comp schedules and finds . . . a list of prices for body parts. It seems that we are not so far from the Teutonic forests after all... --------