May 13 2008

Lawrence B. Solum — How to Avoid Grading: Part One

Here are some things to do while you avoid grading:

• Browse some of the new and revised entries on the Stanford Encyclopedia of Philosophy:

Feminist Perspectives on Sex and Gender (Mari Mikkola)

Essential vs. Accidental Properties (Teresa Robertson)

Ethics of Stem Cell Research (Andrew Siegel)

Reliabilam (Alvin Goldman)

Spinoza's Political Philosophy (Justin Steinberg)

• Read Josh Wright's five part series on the future of law and econmics:

Part I

Part II

Part III

Part IV

Part V

• Catch up on the three brand new entires in the Legal Theory Lexicon series:

Legal Theory Lexicon 063: Interpretation and Construction

Legal Theory Lexicon 064: Possibility and Necessity

Legal Theory Lexicon 065: The Nature of Law

• Watch Geoffrey Sayre-McCord's chat with Will Wilkinson on metaethics for Bloggingheads.tv.

Lawrence B. Solum — Cain on Fair Taxation of Families

Patricia A. Cain (Santa Clara University - School of Law) has posted Taxing Families Fairly (Santa Clara Law Review, Vol. 48, No. 805, 2008) on SSRN. Here is the abstract:

This article focuses on the historical role of state marital property law in shaping the current federal tax rules regarding taxation of the family. Now that a number of states have granted status recognition to same-sex couples and granted them marital property rights, the tension between state property law and federal tax law has produced new problems. This article identifies those problems and proposes a solution that would restore uniformity and tax all families fairly.

Lawrence B. Solum — Richardson on Environmental Standards for Socially Responsible Investing

Benjamin J. Richardson (York University - Osgoode Hall Law School) has posted Socially Responsible Investment Law: Regulating the Unseen Polluters on SSRN.  Here is the abstract:

This new book argues that environmental law must target the financial sector, which sponsors and profits from environmental pillage. The rise of a system of finance capitalism has made the financial sector a crucial economic sector. A long-standing movement for socially responsible investment (SRI) has recently begun to advocate environmental standards for financiers. While the SRI movement has gained more influence in recent years, it has come at the price of jettisoning its former emphasis on ethical investment in favour of an instrumental business case approach. Some modest legal reforms to improve the quality and extent of SRI have yet to make a tangible difference. An alternative legal strategy to promote SRI for environmental sustainability is suggested based on reforming the fiduciary duties of financial institutions. Fiduciary duties tied to concrete performance standards such as sustainability indicators provide a way to restore the ethical imperatives of SRI.

This is a creative use of SSRN--the download is an advertisement and not a chapter or summary of the book.  Hmm.

Lawrence B. Solum — Bainbridge on Investor Activism

Stephen M. Bainbridge (University of California, Los Angeles - School of Law) has posted Investor Activism: Reshaping the Playing Field? on SSRN. Here is the abstract:

Shareholders of U.S. corporations historically tended towards rational apathy. Holding small blocks that were unable to affect the outcome of the vote and faced with the considerable costs associated with gathering sufficient information to make an informed decision, they adopted the so-called Wall Street Rule (it was easier to switch than fight). In the last 15 years or so, a growing number of commentators and investor activists have claimed that the rising importance of institutional investors has the potential to reshape the field by empowering shareholders to become active players in corporate governance.

This paper situates investor activism in the so-called director primacy theory of corporate governance. In so doing, it demonstrates that the separation of ownership and control typical of U.S. public corporations has significant efficiency benefits. It then argues that shareholder activism threatens to undermine the advantages of director primacy without offering significant countervailing gains.

Accordingly, the paper concludes that pending regulatory proposals to expand shareholder governance rights should be viewed with suspicion.

Lawrence B. Solum — Long on Massachusetts v. EPA

Andrew Long (University of Louisville - Louis D. Brandeis School of Law) has posted Standing & Consensus: Globalism in Massachusetts v. EPA (23 Journal of Environmental Law & Litigation, Vol. 23, No. 73, 2008) on SSRN. Here is the abstract:

In this symposium piece, I analyze potential implications of Massachusetts v. EPA for environmental litigation by focusing on the Court's approach to justiciability and EPA's non-statutory arguments. The Court recognizes interdependence of environmental systems and incorporates that recognition into standing doctrine more completely than any previous Supreme Court opinion. Further, the majority opinion virtually embraces the global scientific consensus on climate change despite EPA's assertion that residual uncertainty weighed against regulation of greenhouse gas emissions. Third, the Court directly addresses, for the first time, the relationship between domestic agency action and global environmental problems. These trailblazing aspects of the case, taken together, suggest the possibility of greater incorporation of global environmental considerations into domestic environmental litigation in areas of global concern, such as climate change or biodiversity. In that sense, Massachusetts v. EPA presents a globalism rarely, if ever, seen in Supreme Court opinions on environmental cases.

Lawrence B. Solum — Perlin & Szeli on Mental Health Law & Human Rights

Michael L. Perlin and Eva Szeli (New York Law School and New York Law School) have posted Mental Health Law and Human Rights: Evolution and Contemporary Challenges on SSRN.  Here is the abstract:

In this chapter, we will consider the question of how mental health law and human rights law first "met," and then will move on to the challenges facing those who seek to extend international rights protections to persons with mental disabilities. Our thesis is this: the issue of the human rights of people with disabilities had been ignored for decades by the international agencies vested with the protection of human rights on a global scale. A cluster of recent developments - political, legal, social and cultural - have altered the contours of the "playing field" in a such a way as to, finally, help create an environment that is potentially hospitable to a movement that "extends" (the quotation marks are intentionally provocative) human rights to this population. But these rights are often ignored, and other times granted only on paper. We contend that the cause of this is sanism: an irrational prejudice of the same quality and character of other irrational prejudices that cause (and are reflected in) prevailing social attitudes of racism, sexism, homophobia, and ethnic bigotry, that infects both our jurisprudence and our lawyering practices, that is largely invisible and largely socially acceptable, and that is based predominantly upon stereotype, myth, superstition, and deindividualization, is sustained and perpetuated by our use of alleged "ordinary common sense" (OCS) and heuristic reasoning in an unconscious response to events both in everyday life and in the legal process.

These developments are extraordinarily recent: within the legal literature, it appears that the first time disability rights was conceptualized as a human rights issue was as recently as 1993. For people with mental disabilities, in particular, the development of human rights protections may be even more significant than for people with other disabilities. Like people with other disabilities, people with mental disabilities face degradation, stigmatization, and discrimination throughout the world today. But unlike people with other disabilities, many people with mental disabilities are routinely confined, against their will, in institutions, and deprived of their freedom, dignity, and basic human rights. The challenge we face is to give life to international human rights for this population.

In our chapter, we will present a brief overview of the origins and history of mental disability law, tracing the origins of a civil-rights-protective, legal approach to this "health" issue. We will consider the "missing link" between international human rights law and mental disability law, focusing on the reluctance of mainstream human rights groups to take on the rights of persons with mental disabilities (especially those institutionalized) as a human rights issue. Next, we will trace the "discovery" and the acknowledgment of this "missing link," by examining important reports and UN documents, and the early work of important non-governmental organizations, especially Mental Disability Rights International (MDRI).

We will then consider subsequent developments and accomplishments in this field, including:
* the work of international and local advocacy organizations ,
* the impact of publicity and media coverage of human rights abuses in this arena,
* the work of a handful of heroic lawyers and judges in this area of the law,
* the relevant caselaw from regional human rights bodies, and
* the development of recent important international and domestic legislation and policy, especially the UN Convention on the Rights of Persons with Disabilities.

We will next consider the challenges that need be addressed in the 21st century, including the thorny issue of limited resources, the need for the creation of meaningful deinstitutionalization and community integration programs, and the absence (or lack of enforcement of) rights-protective mental health legislation. Along with this, we will consider what we term the "universal factors" that appear to corrupt mental disability law in virtually every nation in the world. Finally, we will focus on the pernicious and corrosive power of sanism, which arguably underlies every major challenge faced in this field, and we will conclude that, only by confronting and dealing with sanism‘s omnipresence, will be have any meaningful chance of redeeming this issue of law and policy.

Lawrence B. Solum — Semeraro on Scrutiny for Property Rights

Steven Semeraro (Thomas Jefferson School of Law) has posted Is There a Sweet Land of Property?: The History, Symbols, Rhetoric, and Theory Behind the Ordering of the Rights to Liberty and Property in the Constitutional Lexicon on SSRN. Here is the abstract:

This article critiques the property rights movement‘s position that courts should scrutinize property regulation to the same extent that they now scrutinize fundamental liberty-based claims. At its root, the debate over the proper degree of scrutiny for property rights claims is a debate about the appropriate scope of a society‘s freedom to organize and reshape itself in search of a greater good. Strict scrutiny of regulation truncates the debate, demanding that we privilege what has been to guard against the hazards of the unknown. Greater judicial deference, by contrast, frees us to seek, through governmental actors pursuing the public interest, a better, more fulfilling society at the risk that we will fail.

Reviewing an array of arguments based on (1) intellectual and social history, (2) the rhetoric of modern jurisprudence, and (3) property law theory, this article shows that the movement‘s adherents have failed to make their case for strict scrutiny of property regulation. This article‘s critical assessment of the property rights movement cannot establish that judicial deference to legislative judgment in property rights cases is necessarily morally superior to more probing scrutiny. That the property rights movement has made virtually no progress more than two decades after it began, however, casts some measure of doubt on the possibility that it ever will.

.Recommended.

I wonder what Semeraro would say to the originalists who believe that protection of property rights would have been understood as located in the privileges or immunities clause of the 14th ( with respect to the states) and the 9th (with respect to federal action)?  Neither provision receives a mention.

Christine Hurt — Catching Up on the Deal or No Deal Gambling Lawsuits

This semester has been fairly busy, so I have not been following gambling issues in the news as well as I would like.  For example, viewers of Deal or No Deal have filed lawsuits in multiple states claiming that the "Lucky Case" game is an illegal gambling game.  In some states, losers may file civil suits to recover gambling losses in illegal games.  The Lucky Case game allows at home viewers to choose which of five or so cases a prize is in (like a shell game) for money.  Viewers text in their guesses.  Texting charges apply, as well as a $.99 fee, which seems to go to NBC.  At least here in Illinois, that sounds like gambling.  However, the Georgia Supreme Court, in answering a question certified to it by the federal district court in Georgia, said that the game did not fall under its definition of "gambling contract," and so the viewers could not sue for losses.  The court left open the question whether the Lucky Case game is a lottery, however.  Fortunately or unfortunately, viewers do not have the ability to sue for losses in illegal lotteries, so unless the State of Georgia wants to prosecute NBC, the game could go on.  (In Illinois, gambling losses must be at least $50 for losers to have the right to sue for recovery.)  Because these laws vary from state to state, cases are still pending in other states, including California.

NBC seems to understand what is going on.  On the website, the Lucky Case game is listed as taking a "short break."  Another game, where viewers text in votes for the next Deal or No Deal model for a chance at a $10k price, NBC seems to be covering all bases.  First, in consideration of the $1 texting fee, voters receive Deal or No Deal computer wallpaper and a chance to win the $10k.  Second, if the viewer doesn't want to vote, they can merely enter for a chance to win the $10k for free.  By tying the $1 to the right to vote and the wallpaper, the game does not seem to require gambling consideration. 

What I thought was interesting about this Law.com story on the Georgia case was its disdain for the "colonial era Georgia statute."  I guess all old statutes are obsolete, like those for murder, burglary, etc.

Lawrence B. Solum — Wright & Manne on the Future of Law and Economics (with an update in red)

Josh Wright has posted Part V of his series on the Future of Law and Economics, which includes a reply from Henry Manne.  Here is a taste of Manne:

I really do not think that we should be bothering in law schools with either teaching or research that in some ways does no make for better lawyers or for better legal scholars (not necessarily the same thing, but again there is convergence in the long run). I do not see any reason for the law reviews to be full of arcane economic jargon that will never be used by any practicing lawyer or comprehended by any sitting judge (with some very rare exceptions). And here I get to my main point. I think that most of that is the result of the very peculiar “market” forces that operate in universities and not from any thought-out rationale of making better laws or lawyers. (See my “The Political Economy of Modern Universities”). In other words, it is part of the general pattern of professors writing for each other and not for the outside world.

Read the entire illuminating post.  As readers of LTB might guess, I disagree with the "peculiar market forces" explanation for the orientation of most research towards an audience composed of other researchers.  An alternative hypothesis is that academic research is not oriented towards profit maximization at all, but instead is characteristically oriented towards the discovery and production of knowledge.  The goal is truth, not profits.  Of course, this doesn't mean that incentives don't play a role: they obviously do, and they include fame, honor, prestige, various academic perks, in addition to monetary incentives.  But in a well-functioning academic environment these incentives are aligned towards the production of knowledge and encourage scholarly excellence.

Manne actually grasps this point when he writes, "As you [Wright] and I agree, Law and Economics has been of extraordinary value to legal education. It took it out of the doldrums of anti-intellectualism and mechanical thinking about law, and made law schools respectable partners in the greater role of universities."  (After correspondence with Larry Ribstein, I am not sure whether Manne does (or does not) grasp or agree with the idea that well-functioning universities align incentives towards the production of knowledge & encouraging scholarly excellence.  Please read Manne's full remarks for a better sense of his point.)  The law and economics movement responded to the intellectual conundrum that post-realist American legal thought had created for itself.  Attempts to synthesize the instrumentalism of the American Legal Realists with a distinctive role for doctrinal law required that legal scholars make arguments of policy and principle: the "reasoned elaboration" that was the watchword of the Law and Process school is paradigmantic in this regard.  But the skills taught in law schools (case crunching and code crunching) do not provide a methodology for making rigorous arguments about the empirical effects of legal rules or the normative criteria by which they should be evaluated.  As law professors reached out to other disciplines to make such arguments, they began to see themselves as "translators," who could synthesize the output of other disciplines and incorporate it in legal scholarship.  The problem is that such translation requires training; without adequate knowledge of the other discipline, translations were bound to be garbled and incomplete.  When law schools are located in major research universities, these garbled translations can come to the attention of the home discipline--who may sit, for example, on university-wide tenure committees.  When legal scholarship consisted of code and case crunching, such committees had to defer to the expertise of law faculties and external reviewers on the quality of the work.  Not so, when the scholarship is itself normative theory, economics, or empirical.

The next natural step in the evolution of the legal academy was interdisciplinarity.  At the most basic level, interdisciplinarity involves rigorous training in another discipline.  The most effective way for law schools to acquire scholars with such training is to hire PhDs in other disciplines, although there are many successful examples of retooling.  The difficulty with the interdisciplinary model is that it creates centripetal force: scholars whose academic training is in another discipline such as economics are hurled away from the common enterprise of studying law and are attracted by the gravitational force of the values and prestige-hierarchy of their "home" discipline.  For this reason, the interdisciplinary model is potentially unstable, and Josh Wright's series of posts examines that instability in the context of law and economics.

If this diagnosis is correct, then the legal academy stands at a crossroads.  One can imagine a variety of possible futures.  Law schools might begin to realize that the study of law must become a distinctive multidisciplinary enterprise: this is the path taken by political science, where political phenomena are studies from a variety of perspectives, including rational choice & formal modeling, empirical studies, political theory, political history, and so forth.  Or one can imagine a return to the idea of law schools as professional schools that emphasize doctrine--although this would require an intellectual foundation that justified the return to doctrinalism.  Or perhaps the legal academy will segment itself--with most law schools returning to the trade school model that emphasizes the training of practising lawyers and the law schools of major research universities functioning to produce elite lawyers, legal academics, and multidisciplinary research.  Or something else.

When we think about the the future of the legal academy, time frame is important.  Big changes are likely to seem impossible--until suddenly they are conceivable, then starting, then already a fait accompli.  Our current thinking about the future of the legal academy is shaped by institutional forces and sociology of the status quo.  That means that most legal academics assume that the professional school model will be with us forever, but interdisciplinarity is also here to stay.  The tension between these two beliefs requires an elaborate set of rationalizations--about the value of rigorous interdisciplinary work to practising lawyers and the role of legally trained law professors as translators.  These rationalizations seem like obvious truths: they function as legal academic dogmas.  But there is a funny thing about dogmas: once your faith in them is shaken, they can suddenly be cast in a new light.  Obvious truths become superstitions.  "No one can doubt" becomes "no one ever really believed."

Larry Ribstein — Hedge funds and jurisdictional competition

From Dealbook:

California has backed away from a controversial proposal to regulate hedge funds under strong opposition from its hedge fund industry. . . . California withdrew its proposal this month after many hedge fund industry officials suggested the lightly regulated investment funds could move to another state if California started regulating them.

Yes, and they would take with them all those huge houses, big cars and taxes paid by hedge fund managers. I previously discussed Connecticut's similar conundrum.

California is used to having its regulatory way because many firms can’t avoid its market. But hedge funds can operate just fine without California. So California is learning the same lesson that the U.S. did after SOX (and would learn again if it clamped down on hedge funds).

The general theory is in my Erin O’Hara’s Corporations and the Market for Law, and in our forthcoming book, The Law Market.

Robert Lawless — Why I Use AACER's Filing Statistics

Every month, I try to post on the latest bankruptcy filing statistics using data provided by a private company, Automated Access to Court Electronic Records (AACER). Recently, Jason Kilborn, a law professor at Chicago's John Marshall Law School, posted a comment asking why AACER's filing statistics were lower than the ones provided by the Administrative Office of U.S. Courts (AO). For example, AACER reported 826,665 bankruptcy filings in the 2007 calendar year, about 2.9% lower than the 850,912 filings reported by the AO.

The differences seem to stem from the AO's including a old but reopened bankruptcy case in its count of bankruptcy filings where AACER's data only counts new filings. The AO data also appear to count transferred cases. Thus, for new filings, AACER's statistics are the ones to use. Besides, as I have mentioned previously, the AO's data come out woefully late, as much as three months after the fact. AACER is able to provide timely data.

Without access to the AO's data to audit and compare their data to AACER's data, I only can say that the difference "seems" to be explained by the way the AO counts reopenings and transferred cases. But why do I hold this belief?

First, anecdotally, a few persons connected with the bankruptcy courts have suggested to me that the official AO filing data count reopenings and transfers. Second and more convincingly, Several bankruptcy courts make available filing statistics for their judicial district and with one exception, these local judicial district statistics are virtually identical to AACER's count and are far off from the AO's count. Consider the following numbers published for the 2007 calendar year as total bankruptcy filings (all AO data are from Table F as released on April 15, 2008 here):

In all of these examples, save one, the AACER number falls within 0.1% of the local court count for total bankruptcy filings. Because the bankruptcy filing count involves thousands of cases, this small percentage difference is not particularly troubling or even surprising. The one district where the local court figure differs dramatically from the AACER figure is the Northern District of Iowa. Interestingly, the Northern District of Iowa count says expressly that it counts reopenings (but is silent on transfers). In contrast, the Northern District of California site expressly says it does not include reopenings and transfers, and its figure is virtually the same as AACER's figure. One district even lays it all out. The District of Rhode Island data sheet totals to 2,767 filings for 2007 (although the sheet curiously shows a total of 2,770 filings) but then separately lists the number of transfers and reopenings. The 56 transfers and reopenings makes the local court numbers then reconcile with the AO figures. Thus, it seems pretty clear that counting transfers and reopenings is why the AO's numbers always run a few percentage points higher than the numbers from AACER.

If you've read this far, you may share my obsession with bankruptcy court data. Because I heavily use the AACER data, it was important for me to reconcile its data with the AO's data, but why should should anyone else care? First, if you are a policymaker or someone else who uses the bankruptcy filing data as some measure of economic health for the United States, you should care that the AO data overstate the true number of new bankruptcy filings by a few percentage points. This is a good lesson in being careful with the data one uses. The AO's primary mission is to provide data for the federal court system, where information about reopened and transferred cases may be important to judicial administration and workload measurements. Second, if those of us who use the bankruptcy filing data for time series analysis, one might worry about how long the AO has counted reopened and transferred cases in their bankruptcy filing data. If the data measurement was changed during the period of the time series analysis, we would have a discontinuous time series.

Sources for local bankruptcy court data:
Northern District of California; Northern District of Iowa; Southern District of Iowa; District of New Jersey; District of Rhode Island; District of South Carolina

Larry Ribstein — Hedge funds as whistleblowers

Corporate managers notoriously are tempted to fudge the truth about their firms. The law’s usual strategy is to threaten an army of gatekeepers – outside directors, corporate officers, accountants, lawyers – with criminal and civil penalties for not reporting fraud. The second line of defense is to encourage whistleblowers to come forward by protecting their jobs. SOX, of course, was big on both of these approaches. The only problem is that neither approach works very well. It seems that gatekeepers and employees are stubbornly nervous about blowing up their careers by squealing.

There is another way. Whistle-blowing is all about information. Thanks to the stock market, information is, as Gordon Gekko said, “the most valuable commodity I know of.” Most trading on information (including a lot of the “insider” trading portrayed in Wall Street) is legal, and it’s done today by hedge funds. And as Bruce Kobayashi and I argue in our Insider Trading as an Incentive Device, “outsider trading can provide incentives for socially beneficial conduct. In particular, outsider trading provides an important way to capitalize on investments in information that are not otherwise protected by the intellectual property laws.”

However, outsider trading in general, and short-selling in particular, doesn’t sit well with corporate managers. They like their investors to be patient. Short-sellers don’t wait for the managers’ brilliant strategy to pay off. Short-sellers make money by exposing managers’ lies. Firms would like to see short-sellers go to jail (as Gekko ultimately did), or at least go out of business.

The public shares this view. Whistleblowers are romantic heroes. They get to be played in movies by sympathetic actors like Russell Crowe. Short-sellers and other stock traders, on the other hand, are greedy capitalists. They get played by vest-wearing actors with greasy hair. (Apparently, according to Christine, there's even a little of this in Speed Racer, reason number 5001 for not seeing it). The unsurprising result of this political dynamic is an intermittent war against shorts, as I’ve written, e.g., here and here.

Which finally brings me to Jesse Eisinger’s flattering Portfolio column on David Einhorn, a hedge fund manager who's been engaged in a long-running battle with a company he shorted, and now has written a book about the whole affair. Eisinger portrays Einhorn as a heroic whistleblower.

Maybe Eisinger's column is a sign that the tide is turning. I’m looking for Einhorn to get a movie contract. We may even get our first hedge fund movie hero – the first step toward a sensible public policy on incentives to produce information.

   May 12 2008

Lawrence B. Solum — Kerr, Balkin, and Solove on Constitution Theory

Check out Orin Kerr's Selling Liberal Constitutionalism, Jack Balkin's What Liberal Constitutionalism Has Going For It, and Dan Solove's Constituitonalism and Legitimacy. Here is a taste from Balkin:

In fact, Scalia isn't really an originalist at all. He is what I would call a "New Deal/Brown originalist." That is, he is a conservative who accepts the New Deal and very basic elements of the civil rights revolution because all Americans have come to accept them, but insists that we go no further down that road. Scalia is not defending the framers; he's actually defending a conservative version of the constitutional status quo circa 1960. There is no particular reason to defend the Constitution of 1960 from further change. It is certainly not the framers' constitution. And it is not our Constitution.

And:

[Liberal constitutionalism's] basic principles are simple. First, we must be faithful to the constitutional text and to the basic principles of the Constitution that underlie it. Second, we must apply and adapt these principles in the text to changing times. Liberal constitutionalists from Brandeis to Brennan have made these two basic claims over and over again: Be faithful to the constitution's text and principles, and apply them faithfully to new circumstances and new challenges.

Perhaps most important, these principles aren't particularly liberal principles. They are constitutional principles that both liberals and conservatives can accept. If you wanted a slogan for a twenty first century constitutionalism, that would be a pretty good start.

Christine Hurt — Family Film Blogging: Speed Racer

Because I'm the best mom ever, I spent Mother's Day at the movies with my older two watching Speed Racer.  I have to admit that I only vaguely remember the original cartoon (which actually began as Japanese manga), but I think the main characters and the basic plot remains intact.  In a nutshell, my kids loved it.  (I guess they didn't read the NYT review first.)  The movie is very long (over two hours), but my six-year-old never squirmed.  In fact, he stood up much of the last hour, as if to get closer to the action.

And action there was.  There are frequent car racing sequences, which are a blur of color and light.  There are also several martial arts sequences.  As someone who wanders through our living room now and then, I have had the opportunity to observe video games from afar, and several scenes in the movie seemed to have been created for the primary purpose of a Speed Racer video game.  So what's not to love?  Three of the things that my son loves best, car racing (a la Cars), martial arts (a la Power Rangers), and video games were rolled up into one movie.  So, it seems like a movie made for kids.  Except its confusing.  Much of the back story of Speed's brother, Rex, is told in flashbacks superimposed on the present.  I had to explain to my kids that the movie was flipping back and forth, because they were not following.  To make it even more confusing, during the large "flashback montage," Speed Racer is in a race in which Rex held the track record.  A hologram of Rex's car is racing right in front of Speed Racer's real car.  So, the movie flips from Rex racing a decade earlier to Speed racing now to Rex's hologram racing now.  And of course, Rex and Speed look very similar.  I'm still not sure if Luke understood what the true identity of Racer X is, but I think I explained it to him.

The movie is a good Mother's Day movie.  The mother is Susan Sarandon, which is automatically a good thing.  But the movie has a lot of good family-as-team stuff.  My only regret about the movie is that my colleague Larry Ribstein wasn't there.  The movie has a lot of what Larry hates -- evil corporations stamping out the heart of the artist-driver.  Plus, it has outsider trading!  What kid's movie has as its core plot a scheme to use car racing victories as ways to manipulate stock prices for the purpose of mergers and acquisitions?

Lawrence B. Solum — Zumbansen on Law after the Welfare State

Peer Zumbansen (York University - Osgoode Hall Law School) has posted Law after the Welfare State: Formalism, Functionalism and the Ironic Turn of Reflexive Law (American Journal of Comparative Law, Vol. 56, 2008) on SSRN.  Here is the abstract:

The paper analyses the contemporary emergence of neo-formalist and neo-functionalist approaches to law-making at a time where the State is seeking to reassert, reformulate and reconceptualize its regulatory competence, both domestically and transnationally. While the earlier turn to alternative regulation modes, conceptualized under the heading of 'legal pluralism', 'responsive law', or 'reflexive law' in the 1970s and 1980s, had aimed at a more socially responsive, contextualized, and ultimately learning mode of legal intervention, the contemporary revival of functionalist jurisprudence and its reliance on 'social norms' embraces a limitation model of legal regulation. After revisiting the Legal Realist critique of Formalism and the formulation of Functionalist regulation as a progressive agenda, the paper then compares the U.S. American and German experiences with the rise of the Social Interventionist State in order to ask where law stands 'after the Welfare State' at the outset of the twenty-first century.

And from the paper:

Formal, as contrasted by substantive rationality, would claim that the law is “inherently certain and predictable”.70 Formalism, enshrined for example in the proposition of the ‘rule of law’, could be directed against arbitrary power.71 Taken as such, it would mean to resist a ‘social agenda’72 and ‘judicial activism’73 in the name of the letter of the law.74 Formalism would come to stand at the center of the magical, yet fragile construction of a ‘rule of law’, presupposing the law’s capacity to negotiate and thereby to translate, according to defined procedural rules, the different contestations and political manifestations of diverging interests in society into a reliable and predictable catalogue of ‘state action’.75 Yet, as the functions of government continued to expand, such translatory practice76 would always carry with it the danger that law would lose its center, its foothold and autonomy.77 As formalism claimed that the law could be understood from within, primarily by extrapolating a logical structure of a confined set of norms from a small set of higher-order78 principles, the need to recognize one or the other substantive basis for the edifice of formal law became just too apparent. Lawyers, writing at a time of extreme socio-economic and legal crisis, saw clearly that the association of a system of law with a particular system of political government posed dramatic challenges for any understanding of law in and of itself.79 Elaborations of the functions of the state in the context of a rapidly rising industrial society, accompanied by societal hardship and political contestation, exposed legal formalism to a sweeping challenge in the name of different values and interests. The more the state and its emanations through legislative, administrative and judicial acts would change, the more this would have a fundamental impact on law itself.80 With formal law turning functional, the covers of foundations of formalism were irrevocably drawn away.81

And one more excerpt:

Functionalism could be merely the (younger) brother of formalism, its necessary complementary and correcting feature. Formalist law would have to be functional in order to survive challenges arising from societal differentiation, political contestation, secularization and economic growth. As such, functionalism may also be understood as an outright challenge to the formalist claim to self-restriction. Functionalism would then be a fitting formula for law’s ability to survive, mainly by remaining adaptable and responsive. Functionalism in law describes the way in which the flexibilization and modernization of formal law, in reaction to an increasingly complex social environment, made up of competing interests, claims and contestations, takes place if law is to retain a steering function in the trials of society. Functionalism, thus understood, therefore designates the degree to which the law answers to requirements, customs, and necessities emerging from social practice or crystallizing out of public policy deliberations. The important feature here is that a functionalist approach in any legal area, from administrative to contract to corporate law, is based on the premise that regulation is in fact possible. What functionalism itself does not answer is who the author of regulation should be.

I need to think about this paper, but it is certainly challenging.  Highly recommended.

Lawrence B. Solum — Tamanaha on the Lexicon on the Nature of Law

Brian Tamanaha comments on the latest Lexicon entry over at Balkinization.  His thoughtful reaction prompted the following addition to my post:

In some ways, the title of this Lexicon entry is misleading, because of our focus on the "What is law?" question as it has been approached by contemporary legal philosophers.  There are other important perspectives on the nature of law that focus on law's functions rather than the the meaning of the concept or the criteria of legal validity.  For example, the sociological tradition includes important work on the nature of law by Max Weber and Niklas Luhmann.  These issues are discussed by Brian Tamanaha in the article cited in the Links section at the end of this entry.

His piece can be found here.

Lawrence B. Solum — Marmor on Pragmatics & Legal Language

Andrei Marmor (University of Southern California - Law School) has posted The Pragmatics of Legal Language on SSRN. Here is the abstract:

In most standard cases, the content of the law is tantamount to the content that is communicated by the relevant legal authority. It has been long noticed by linguists and philosophers of language, however, that the content of linguistic communication is not always fully determined by the meaning of the words and sentences uttered. Semantics and syntax are essential vehicles for conveying communicative content, but the content conveyed is very often pragmatically enriched by other factors. My purpose in this essay is to explore some of the pragmatic aspects of understanding what the law communicates. I argue that in some respects the pragmatics of legal language is unique, sometimes uniquely problematic. Exploring those problems forms one of the aims of this essay. But I suggest that we can do more than that: by drawing on the distinctions between the various pragmatic aspects of language use, we should be able to offer some generalizations about types of pragmatic enrichment that could be taken to form, or not to form, part of what is actually determined by legal expressions.

And from the text:

The pragmatic aspect of language use is typically associated with two key ideas: one idea refers to the prevalent role that context plays in understanding the content of an act of communication. The second idea is related to the distinction between what has been said or asserted, and what has only been implied or implicated.3 It is important, however, not to conflate these two issues: context may play a crucial role in our ability to understand what has been asserted whether there is any further implicated content or not. And vice versa: though it is often the case that implied content is context dependent, this is not necessarily so; there are cases in which the content implied is not particularly context- sensitive.

And a bit more:

Abstractly, the idea is this: one might think that just as we draw conclusions about the maxims that apply to an ordinary conversation from the basic cooperative objective of ordinary conversations, we should be able to draw some conclusions about the maxims that would apply to legislative speeches from the nature and objective of such communicative interactions. As we noted earlier, the Gricean maxims of conversation are normative instantiations of the general purpose of a conversation seen as a cooperative exchange of information. Legislation is a different kind of conversation. Can we not simply observe the main objectives of such conversation and then draw some conclusions about the relevant conversational maxims that would instantiate those objectives? Perhaps we can think about it in a way which is very similar to a competitive game. The purpose of competitive games is not the cooperative exchange of information; games manifest certain forms of strategic behavior. However, the rules of the game typically determine what counts as the point of the game, what kind of skills and abilities one would need to exhibit in order to play the game and play it successfully.27 Typically we can draw some conclusions from the purpose of the game about different forms of conduct in it that would be deemed permissible, and others, which would not be permissible. Consider chess, for example. Since it is an intellectual kind of competition, we should be able to conclude that chess players are not allowed to use physical intimidation as part of their tactics in the game.28 In other games, however, such as boxing, and perhaps even football, physical intimidation might be perfectly acceptable. In other words, we can draw some normative conclusions about the kind of moves players should be allowed to make, simply from the nature of the game and its general purposes. Can we extend this analogy to legislation, and try to deduce some maxims of conversation that would basically instantiate our conception of what kind of “game” legislation is, so to speak?

This is the best work I've seen on this important topic, and it is highly recommended.

Lawrence B. Solum — Book Announcement: Expounding the Constitution, Edited by Huscroft

Grant Huscroft (University of Western Ontario - Faculty of Law) has posted Expounding the Constitution: Essays in Constitutional Theory (EXPOUNDING THE CONSTITUTION: ESSAYS IN CONSTITUTIONAL THEORY, Grant Huscroft, ed., New York: Cambridge University Press, 2008) on SSRN. Here is the abstract:

Constitutional interpretation is a serious matter in any political community committed to the rule of law. Widespread disagreement about the most fundamental moral issues is to be expected, and it is bound to play itself out in the interpretation of legal rights. The essays that make up this volume - contributed by some of the most accomplished legal philosophers and constitutional law scholars in the common law world - address three pressing issues in contemporary constitutional interpretation and constitutional theory: (1) the role of moral reasoning in constitutional interpretation; (2) the legitimacy and justification of judicial review; and (3) the place of unwritten constitutional principles in the constitutional order. Although these papers reflect the jurisdictional roots of their authors, they are theoretical works of wide application rather than doctrinal accounts of the workings of the constitution of any particular jurisdiction.

Contents

Part I Morality and the Enterprise of Interpretation
1. Steven D. Smith, "What Does Constitutional Interpretation Interpret?"
2. Jeremy Waldron, "Do Judges Reason Morally?"
3. W.J. Waluchow, "Constitutional Morality and Bills of Rights"
4. Bradley W. Miller, "Justification and Rights Limitations"

Part II Judicial Review, Legitimacy, and Justification
5. Larry Alexander, "Constitutions, Judicial Review, Moral Rights, and Democracy: Disentangling the Issues"
6. David Dyzenhaus, "The Incoherence of Constitutional Positivism"
7. James Allan, "The Travails of Justice Waldron"
8. Aileen Kavanagh, "Deference or Defiance?: The Limits of the Judicial Role in Constitutional Adjudication"

Part III Written and Unwritten Constitutional Principles
9. T.R.S. Allan, "Constitutional Justice and the Concept of Law"
10. Mark D. Walters, "Written Constitutions and Unwritten Constitutionalism"
11. Jeffrey Goldsworthy, "Unwritten Constitutional Principles"

And from the Introduction:

Dyzenhaus then turns his sights on Jeffrey Goldsworthy, who has argued in favour of a moderate form of originalism. According to Dyzenhaus, no term in a constitution – not even a boilerplate term like “peace, order, and good government” in the Australian Constitution – cannot be given a new meaning by courts in the right circumstances. A judge could invoke the term “good government,” he argues, to limit the power of the Australian Parliament if it were to attempt to change the system of government by installing a dictatorship.

Judges committed to constitutional positivism are, on Dyzenhaus’s account, attempting to do the impossible. They are committed to recognizing a legislative monopoly on law-making, but they are operating in a common-law legal order. The best they can do is to attempt to curb judicial activism, which Dyzenhaus defines as the propensity of judges to affirm their interpretation of a bill of rights over the legislature’s. Even here, however, they are unlikely to be successful. Indeed, to the extent that judges discover inconsistency between legislation and their understanding of a bill of rights, they will, themselves, be activists.

The problem, in short, is that constitutional positivists have been overtaken by events. As Dyzenhaus puts it, “their understanding of their obligation of fidelity to law is inconsistent with many of the pieces of constitutional furniture in place.” In effect, he challenges them to acknowledge the need for the extensive legal reform he says is necessary to make their views tenable.

Christine Hurt — Lonely Planet Travel Writer Thomas Kohnstamm Gives New Meaning to the Phrase "Phone It In"

Forget backdating scandals and accounting scandals, a new fraud revelation is shaking the travel guide industry!  Thomas Kohnstamm, a travel writer for among other publishers, Lonely Planet, is making news by blowing the whistle on the crafting of guidebooks.  In particular, Kohnstamm claims that the payment schemes for travel writers (who contribute to guidebooks for a fee, but share no royalties and are not reimbursed for expenses) creates incentives for writers to cheat:  accept free meals and lodging, cut and paste information on tourist sights from other sources, and include information for places not personally visited.  As an outrageous example, Kohnstamm admits to not visiting Colombia while contributing to Lonely Planet's guidebook to that country.  Kohnstamm recounts the results of these agency problems in his new book Do Travel Writers Go to Hell?  A Swashbuckling Tale of High Adventures, Questionable Ethics & Professional Hedonism.

What is interesting is Kohnstamm's unapologetic non-whistleblower stance.  Kohnstamm obviously thinks guidebook publishers should pay more if they want to get more, but he also thinks that buyers of guidebooks should take them with a grain of salt.  I was listening to an interview with him on Sirius NPR, and he stressed that no guidebook is the insurer of the reader's vacation.  So, if a reader stays at a resort based on its review in the book, which turns out to be recycled for years gone by, and the resort turns out to be a dump -- that's the readers fault for being so gullible.  Interesting.

Lawrence B. Solum — Horwitz on Posner & Powell on Judging

Paul Horwitz (University of Alabama School of Law) has posted Review - Constitutional Conscience: The Moral Dimension of Judicial Decision, by H. Jefferson Powell, and How Judges Think, by Richard A. Posner on SSRN. Here is the abstract:

This is a short review of two new books on judging - Constitutional Conscience: The Moral Dimension of Judicial Decision, by H. Jefferson Powell, and How Judges Think, by Richard A. Posner. Although both books examine the same topic, and both focus largely on judicial decision making by Supreme Court Justices in the area of constitutional law, their approaches diverge significantly. Powell takes a page from virtue ethics in offering an expansive and ruminative vision of the ethical virtues and vices that characterize the judge in a constitutional case. Posner brings his economist's toolkit, supplemented by a variety of disciplinary adjuncts and a bracing dose of pragmatism, to many of the same questions. Their goals are somewhat different, and their conclusions, despite some common ties, present a striking contrast. These books may be read as complementary and not just competitive accounts. Nevertheless, I suggest that Posner's account is far more descriptively accurate, although Powell leads us, commendably, to think about the ways in which we might reconsider and revive the kinds of constitutional virtues that are at the heart of his romantic account.

And from the paper:

Despite their wildly divergent paths, though, Posner and Powell in fact share many common ties. Both, for example, share interesting and important views on how we might reform legal education – in Powell’s case, to focus more on “how constitutional questions can be resolved with integrity and their resolution expressed with clarity,” and in Posner’s to master conventional legal skills and then move beyond them and focus on the actual underpinnings of judicial decision. And although Posner might reject Powell’s approach as tending towards the “moral vanguardism” of a Justice Kennedy, he repeatedly emphasizes that some of the most important constraints on the judicial task are, “first, the desire for self-respect and for respect from other judges and legal professionals generally, which a judge earns by being a good judge, and, second (and closely related), the intrinsic satisfactions of judging, which usually are greater for a good judge than for a bad one.” So even a Posnerian judge may have recourse to the kinds of quasi-moral constitutional “virtues” that are at the heart of Powell’s work.

And a bit more:

Too much is missing from Powell’s account. Nowhere in his book do we find a serious accounting for the many real-world factors in which judicial decision making takes place: the role of law clerks as canned reasoners for judges who perforce need do little reasoning of their own; the extent to which judging is a social and collegial process rather than the purely solitary and deliberative act of a cloistered monk in a cell; the host of human motivations and limitations that drive and hem in a judge and make unlikely any effort to set down a reliable instruction manual for any would-be judicial Hercules; and any number of broader institutional factors that might add depth to his romantic view of the judiciary. His constant refrain that his picture of constitutional virtue must be true because “much of what we do and say and do in constitutional interpretation” would otherwise be meaningless, a “solemn mockery,” begs the question: What if it is? You cannot prove God’s existence by saying that life would be bleak if God did not exist; no more can Powell prove the necessity of his approach by arguing that it would be depressing to think otherwise. Posner writes that “for judges to acknowledge even just to themselves the political dimension of their role would open a psychologically unsettling gap between their official job description and their actual job”; Powell’s apparent response is, then let us not acknowledge it. But that is not a proof; he is mixing his “is” and his “ought.”

Highly recommended.

Larry Ribstein — Money

You know the best things in life are free.  But you can give them to the birds and bees.

Arthur Brooks has some worthwhile thoughts about capitalism .  Here it is in a nutshell: (1) Success makes us happy; (2) in a capitalist economy, we tend to measure success by money; so (3) money makes us happy, and more money makes us happier.

Take the case of billionaire Larry Ellison, founder of Oracle. The world’s 14th-richest man, he would need to spend more than $30 million per week, or $183,000 per hour, just to avoid increasing his wealth. Further, he would have to spend it on items with no investment qualities, meaning that, unless he sets his money on fire, or (better yet) gives it away, he simple cannot not be filthy rich. Yet he continues to slave away, earning billion after billion. Being rich, and having more than the average Joe, simply cannot be driving Larry Ellison. It is the will to succeed and create value at greater and greater heights.

Who enjoys the benefits created from the slaving of Bill Gates (worth $58 billion and counting), Warren Buffett ($62 billion), and all of America’s other success-addicted, ultra-rich entrepreneurs? We all do: As long as fortunes are earned—as opposed to stolen, squeezed from governments, or otherwise extorted from citizens—this is good for all of us. Oracle has not made Larry Ellison a rich man without any benefit to society. The firm currently has tens of thousands of employees, people with well-paying jobs to support their families. The company has introduced technology that has benefited all parts of the economy, and it has paid billions to its shareholders. And we can’t forget that Oracle has rendered generously unto Caesar, year after year: In 2007 alone, it paid $1.2 billion in corporate taxes, totally apart from the personal taxes paid by Ellison and his employees. * * *

Brooks might have added that Ellison, Gates and people like him also give lots of money away.

I have some more thoughts in the same vein.  One reason why money works so well as a success generator is because in a market economy it can get you anything you want. In other words, it’s really markets that make us happy.

Another great thing about money: in order to get it in a market economy, you have to sell things to other people. In order to do that, you need to provide them with something that increases their happiness. Compare war, for example. Now, to be sure, that gives capitalists incentives to create wants. But that’s not necessarily a bad thing. After all, if you don’t want anything, what’s going to make you happy?

Brooks concludes:

[C]apitalism is the best system to allow people to succeed on their merits in the economy—and we know that it is success that truly does bring happiness. Capitalism, moored in proper values of honesty and fairness, is a key to our gross national happiness, and we should defend it vigorously.

Lawrence B. Solum — Levy on Constitutions without Social Contracts

Jacob T. Levy (McGill University - Department of Political Science) has posted Not so Novus an Ordo: Constitutions without Social Contracts on SSRN. Here is the abstract:

Social contract theory imagines political societies as resting on a fundamental agreement, adopted at a discrete moment in hypothetical time, that both bound individual persons together into a single polity and set fundamental rules regarding that polity‘s structure and powers. Written constitutions, adopted at real moments in historical time, dictating governmental structures, bounding governmental powers, and entrenching individual rights, look temptingly like social contracts reified.

I argue in this article, however, that something essential is lost in the casual slippage between social contract theory and the practice of constitutionalism. Enacted constitutions do not come into being against the background of a state of nature of isolated individuals; and by this I do not mean to invoke the too-familiar critique of the supposedly decontextualized liberal person, but rather to critique the aspiration to decontextualize the legal and political order. Constitutions are enacted in ongoing societies (whether newly politically sovereign or otherwise) with pre-existing laws and legal systems, political organizations, cultural and linguistic and religious divisions, and norms and mores. Moreover, the practice of constitutionalism is usually, at least in part, a practice of reconciling those legacies to a new political order, of making use of those legacies to build loyalties to or counterbalances against the state (or both). Most constitutions cannot be well-understood by retrospectively characterizing them as the kind of complete and radical break with the past envisioned by social contract theory.

Contractarian blinders lead us to look for greater individualism, greater social unity, and greater coherence of principles than can actually be expected of constitutions or constitutionalism. Real constitutional orders appropriate, incorporate, and channel the histories and divisions of the societies they govern. Treating them as if they are social contracts will flatten and distort them, making those engagements with the past or with social plurality appear anomalous and encouraging their minimization.

I aim to redirect some of our attention to non-contractarian constitutionalism, or non-contractarian strands within constitutionalism, both as intellectual inheritance and as lived practice. Non-contractarian elements persisted in constitutional theory across the apparent break of the late 1700s, even though these have to some degree been lost sight of more recently; and they have persisted and should persist in constitutional practice.

And from the paper:

The de facto solution, born in French Revolutionary thought but foreshadowed in Locke and Rousseau, is that precisely one social fact from before the enactment of a contractarian constitution survives the founding moment and retains normative and juristic significance: the fact that these persons in this territory make up a political people because they are a nation.46 The counterpart in Hart’s philosophy of law is that a legal system depends on some one pre-legal social fact: a rule of recognition.

The bootstrapping problem that one cannot give a contractarian justification for the boundaries of the contracting group or of the rule of recognition, and must rely on a pre-contractarian social fact, leaves it unclear why there should be only one such fact that survives. “We, the people” and “the principle of any sovereignty resides essentially in the Nation” may be founding words of the modern constitutional tradition, but they do not constitute arguments. There is no non-question-begging reason why constitutions must derive from and ground legitimacy in a national people with pre-constitutional unity, rather than a plurality of pre-constitutional groups or institutions working or evolving together.47 Rationalist contractarians have suggested that such pluralism runs afoul of the moral priority of individuals over groups. But this distinction is illusory; the unitary pre-constitutional national people is a reified group as much as any other would be.

There is an affinity here with Joseph Raz’s argument, contra Hart and Kelsen, that a legal system may contain a plurality of rules of recognition and a plurality of socially-recognized legal sources, that they need not all be reducible to a single Grundnorm. The affinity is not an identity. Neither Hart’s rule of recognition nor Kelsen’s Grundnorm is a social contract; both are certainly compatible with, say, a legislating monarch who rules because it is generally accepted that his or her family has always done so—subject perhaps to constitutional constraints that are themselves customary rather than enacted. But in modern democracy governed by a written constitution, we will typically be thinking of non-contractarian elements of an overall constitutional order, not of a wholly non-contractarian constitution. Since a constitutional order is juristic as well as political, non-contractarian constitutionalism in such a state might depend on Raz’s argument being correct. The reasons why an Indian tribe is a valid source of law in the American context and the reasons why Wyoming is may just be different reasons, not reducible to a single master rule of recognition.48

Highly recommended.

   May 11 2008

Lawrence B. Solum — Legal Theory Lexicon: The Nature of Law

Introduction

What is the nature of law?  This question has occupired center stage jurisprudence and philosophy of law in the modern era, and has been the central occupation of contemporary analytic jurispurdence.  This entry in the Legal Theory Lexicon aims to give an overview of the "What is Law?" debate, with more specialized entries on specific aspects of the debate to follow over the next several weeks.

Historically, the answer to the question, "What is law?," is thought to have two competing answers.  The classical answer is provided by natural law theory, which is frequently characterized as asserting that there is an essential relationship between law and morality or justice.  The modern answer is provided by legal positivisim, which, as developed by John Austin, asserted that law is the command of the sovereign backed by the threat of punishment.

Contemporary debates over the nature of law focus on a revised set of positions.  Legal positivism is represented by analytic legal positivists, like H.L.A. Hart, Joseph Raz, and Jules Coleman.  The natural law tradition is defended by John Finnis.  And a new positition, interpretivism is represented by Ronald Dworkin.

In some ways, the title of this Lexicon entry is misleading, because of our focus on the "What is law?" question as it has been approached by contemporary legal philosophers.  There are other important perspectives on the nature of law that focus on law's functions rather than the the meaning of the concept or the criteria of legal validity.  For example, the sociological tradition includes important work on the nature of law by Max Weber and Niklas Luhmann.  These issues are discussed by Brian Tamanaha in the article cited in the Links section at the end of this entry.

This Lexicon entry maps the territory of the "What is Law?" controversy, and provides introductory sketches to the major positions.  As always, the Lexicon is written for law students, especially first-year law students, with an interest in legal theory.

Natural Law Theory

Natural law theory is strongly associated with classical and medieval thought, especially Aristotle, Roman jurisprudence, and St. Thomas Aquinas.  There are several challenges associated with the task of explicating natural law theory, and one of the most important tasks of this introductory entry is simply to identify these challenges.

First, there are two interrelated but distinct views that are called "natural law theory."  One is a view about the nature of morality: this view asserts that there are natural moral laws, and it is not essential to this view that it take any particular stand on the "What is law?" debate.  A second view that is called "natural law theory" is a theory about "law" as an institution or practice--that is the view that is implicated in the "What is law"" controversy.

Second, contemporary understandings of "natural law theory" have been strongly influenced by the legal positivists critique.  When the positivists articulated the theory they were criticizing, their articulations of natural law theory were neither charitable nor true to the natural law tradition.

For the purposes of this broad overview, we might use the latin phrase lex injusta est non lex as a starting point.  Natural law theory could be understood as affirming something like the following:

An unjust "law" is not a true law.

This formulation differs from a literal translation--an unjust law is not a law.  Formulated in that way, natural law theory seems to be committed to a contradiction: something which is a law (but also is unjust) is not a law.  The quotaton marks around "law" and the phrase true law make it clear that natural law theory is asserting something else, that something which might be called a "law" is not in fact a law if it is unjust.  Usually, this notion is accompanied by some explication of the characteristics that are required for status as a "true law" or perhaps "valid law."

Legal Positivism

It is difficult to know where the positivist tradition begins.  Hobbes's theory of law shares some characteristics with the theories offered by Jeremy Bentham and John Austin--both of whom are clearly in the positivist tradition.  Jeremy Bentham developed a very sophisticated version of legal positivism, but for a variety of reasons, the more influential and widely known view was that of Bentham's student, John Austin, the author of The Province of Jurispudence Determined (1861).

Austin's theory was that a given rule was a law if and only if the rule was the command of the sovereign to subjects of that sovereign backed by the threat of punishment.  A sovereign is some person or institution who is habitually obeyed in a well-defined territory, but who or which does not habitually obey any other person or institution.

Austin's positivist theory does an excellent job of explaining the rules of criminal law, which forbid certain actions and impose punishments on those who engage in the forbidden actions.  But this theory has a difficult time accounting for other aspects of law, and especially for those rules that create legal powers, such as the power to create contracts, trusts, wills, and so forth.  This difficulty is most acute with respect to rules that define the basic institutional arrangements that define the sovereign itself, e.g., the rules of constitutional law in the United States.

These deficiencies in Austin's theory prompted H.L.A. Hart to develop a more sophisticated version of legal positivism.  One feature of that theory is the distinction between primary rules (which would include criminal prohibitions) and secondary rules (which allow for the creation, alteration, and termination of primary rules).  Hart replaced the notion of a sovereign with that of a rule of recognition--a social rule that specifies what counts as a law and what does not.

Moral Facts, Social Facts, and Legal Content

The contemporary approach to these issues is the product of almost sixty years of thinking within the tradition that is sometimes called "analytic jurisprudence."  Beginning with the work of H.L.A. Hart in the 1950s, through is publication of The Concept of Law in 1961, and extending through Ronald Dworkin's critique of Hart, and the reformulation of the positivist tradition by both Joseph Raz and Jules Coleman, the basic issues and questions have gone through several transformations.

One useful way to get get at the heart of these developments is to conceive of the debate about the nature of law as centrally concerned with the relationship between social facts, moral facts, and legal content.  Our question is "What determines legal content?," where "legal content" is simply understood as the content of the legal norms.

One answer to this question takes the form: It is necessarily the case that only social facts determine legal content.  This is exclusive legal positivism--a view that is strongly associated with Joseph Raz.

A second answer to this question takes the form: It possibly the case that moral facts determine legal content, but only if social facts give the moral facts this role.  This is inclusive legal positivism--and this view is most strongly associated with Jules Coleman.

A third answer to the question takes the form: It is necessarily the case that moral facts determine legal content.  This view would include natural law theory and interpretivism--the view that is strongly associated with Ronald Dworkin.

By framing the "What is law?" debate in terms of the relationship between social facts, moral facts, and legal content, the conceptual space we get precise mapping of the conceptual space.  In the rest of this Lexicon entry, we will take a somewhat less shallow look at the three options.

Inclusive and Exclusive Legal Positivism

Exclusive legal positivism is the view that only social facts can determine legal content.  Joseph Raz famously argued for exclusive legal positivism based on the premise that law claims authority, that authority consists in displacing other reasons for actions, and therefore law must displace moral reasons for action.  (That was a very short and inadequate summary of a long and complex argument.)

Inclusive legal positivism is the view that moral facts can play a role in determining legal content, but only if there are some social facts that give the moral facts this role.  For example, a constitution might include an clause that make a moral conception of human equality a legal rule.  This would give the morality of equality a role in determining legal rights, but this role would exist because a social fact (the Constitution) made it so.

Interpretivism

The final view is "interpretivism," strongly associated with Ronald Dworkin.  For Dworkin, social facts, such as constitutons, statutes, and court decisions, do not directly determine legal content.  Instead, Dworkin believes that the content of the law is given by the theory that best fits and justifies the legal materials.  Dworkin makes this theory vivid by imagining a judge, Hercules, who is able to construct a grand theory of political morality that provides a constructive interpretation of the entire institutional history of a given society.  Because this theory is a theory of that institutional history, it is constrained.  For example, the best constructive interpretation of the institutional history of the United States will have to acknowledge that our federal legislature is bicameral and that it includes a Senate with equal reprsentation of each state.  But this constraint does not require a perfect match between a literal interpretation of every legal text and the content of the law.  So some precedents may be categorized as mistakes, and some statutory or constituitonal provisions may be given a constructive interpretation that makes them morally more attractive but does not follow every jot and tittle of the text.

Conclusion

This very brief introduction to the "What is law?" debate is necessarily incomplete and shallow.  But I hope that it gives you a general sense of the various positions that have been taken on the nature of law.

Bibliography

John Austin, The Province of Jurisprudence Determined (1861).

Jules Coleman, The Practice of Principle: In Defence of a Pragmatist Approach to Legal Theory (2001).

Ronald Dworkin, Law's Empire (1986).

John Finnis, Natural Law and Natural Rights (1980).

H.L.A. Hart, The Concept of Law (1961) (2d ed. 1984).

Joseph Raz, The Authority of Law: Essays on Law and Morality (1983).

Links

John Finnis, Natural Law Theories, Stanford Encyclopedia of Philosophy.

Leslie Green, Legal Obligation and Authority, Stanford Encyclopedia of Philosophy

Leslie Green, Legal Positivism, Stanford Encyclopedia of Philosophy.

Andrei Marmour, The Nature of Law, Stanford Encyclopedia of Philosophy.

Nicos Stavropoulos, Interpretivist Theories of Law, Stanford Encyclopedia of Law.

Brian Tamanaha, Law, Oxford International Encyclopedia of Legal History, 2008.

Related Legal Theory Lexicon Entries

Legal Theory Lexicon 032: Fit and Justification

Legal Theory Lexicon 038: The Internal Point of View

Legal Theory Lexicon 039: Primary and Secondary Rules

Legal Theory Lexicon 044: Legal Theory, Jurisprudence, and the Philosophy of Law

Larry Ribstein — Are you ready for the frivolous five?

It's a bit off topic but there was simply no resisting this.  I dare the NYT to top this.

   May 10 2008

Lawrence B. Solum — Legal Theory Bookworm

The Legal Theory Bookworm recommends The Future of the Internet--And How to Stop It by Jonathan Zittrain. Here is a description:

This extraordinary book explains the engine that has catapulted the Internet from backwater to ubiquity—and reveals that it is sputtering precisely because of its runaway success. With the unwitting help of its users, the generative Internet is on a path to a lockdown, ending its cycle of innovation—and facilitating unsettling new kinds of control.

IPods, iPhones, Xboxes, and TiVos represent the first wave of Internet-centered products that can’t be easily modified by anyone except their vendors or selected partners. These “tethered appliances” have already been used in remarkable but little-known ways: car GPS systems have been reconfigured at the demand of law enforcement to eavesdrop on the occupants at all times, and digital video recorders have been ordered to self-destruct thanks to a lawsuit against the manufacturer thousands of miles away. New Web 2.0 platforms like Google mash-ups and Facebook are rightly touted—but their applications can be similarly monitored and eliminated from a central source. As tethered appliances and applications eclipse the PC, the very nature of the Internet—its “generativity,” or innovative character—is at risk.

The Internet’s current trajectory is one of lost opportunity. Its salvation, Zittrain argues, lies in the hands of its millions of users. Drawing on generative technologies like Wikipedia that have so far survived their own successes, this book shows how to develop new technologies and social structures that allow users to work creatively and collaboratively, participate in solutions, and become true “netizens.”

And from the reviews:

Lawrence Lessig : "This book is fundamental. It will define the debate about the future of the Internet, long after we haven''t stopped it. Absolutely required reading."-Lawrence Lessig, Professor, Stanford Law School, and author of Free Culture and The Future of Ideas

Dr. Klaus Schwab : "This remarkably researched and highly entertainin