Category: Jurisprudence


Rationalizing Law

For quite a long time, extensive empirical work in psychology, sociology, and behavioral economics has been revealing that many of the law’s most cherished rules are faulty.  They are based upon mistaken assumptions about human behavior.  They are often flat out wrong.  And yet they persist.

The work of Daniel Kahneman and Amos Tversky has shown that the human mind operates with all sorts of biases and heuristics that lead to systematic errors in judgment and perception.  As Dan Ariely put it in a recent work, Predictably Irrational (2008): “[W]e are not only irrational, but predictably irrational . . . our irrationality happens the same way, again and again.” (p. xx).  Richard Thaler and Cass Sunstein describe many of these systematic blunders in human judgment in their book, Nudge (2008).

As these studies increasingly make their way into legal scholarship, they are proving that many existing legal rules don’t work as they should.  And this is more than a mere normative critique.  The rules just fail because people don’t act or think the way the law thinks they ought to.  In fact, what we’re learning about the way people act and think is often counterintuitive.  It is hard to grasp and hard to deal with.

This research should be undermining many legal rules at their very foundations.  Yet the legal rules don’t seem to be shaken despite their foundations being annihilated.

In many domains, when something is proven flat wrong, it is confronted and dealt with.  If evidence shows that bleeding the patient isn’t a good cure for disease, then we move on and stop doing it.  But in law, if the evidence shows that a rule doesn’t work, what’s the response?  Often, it is to just accept the evidence with a grin and continue on.  If science were like law, we’d be talking about how the earth is round yet continuing to behave as if it were flat.

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Trial By Battle and the Civil War

Recently I came across a great article by Cynthia Nicoletti entitled “The American Civil War as a Trial by Battle.” (28 Law & Hist. Rev. 71 (2010)).  Trial by battle was one the dispute resolution mechanisms used under the early common-law writ system (basically, the litigants or their champions fought in single combat and the winner won the suit).  The theory behind this was that God would ensure that justice would prevail (presumably based on a preponderance of the evidence, but who knows what He uses).

While this system eventually fell out of favor and was replaced by jury trial, the Civil War was often described as a trial by battle on the issue of secession.  This served the interests of both sides in the conflict. Southerners claimed that their legal reasoning was right–they just lost on the battlefield. Northerners used the metaphor because it showed that their victory was God’s will.  Indeed, Lincoln alluded to this idea in his Second Inaugural:

“If we shall suppose that American slavery is one of those offenses which, in the providence of God, must needs come, but which, having continued through His appointed time, He now wills to remove, and that He gives to both North and South this terrible war as the woe due to those by whom the offense came, shall we discern therein any departure from those divine attributes which the believers in a living God always ascribe to Him? Fondly do we hope, fervently do we pray, that this mighty scourge of war may speedily pass away. Yet, if God wills that it continue until all the wealth piled by the bondsman’s two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash shall be paid by another drawn with the sword, as was said three thousand years ago, so still it must be said “the judgments of the Lord are true and righteous altogether.”


Book Review: Ripstein’s Force and Freedom: Kant’s Legal and Political Philosophy

Arthur Ripstein Force and Freedom: Kant’s Legal and Political Philosophy (Harvard University Press; October 15, 2009; $49.95)

Though Kant has been enjoying significant critical attention in moral and political philosophy since Rawls published A Theory of Justice almost 40 years ago, Kant’s ideas have only rarely been defended as a whole. The chief problem with Kant’s view, one which Rawls shared with Kant’s immediate successor Hegel, is that the notion of the categorical imperative is essentially too abstract and must be given a more concrete grounding. Constructivism was to be the way of doing this. Rawls thus rejected Kant’s metaphysical argument for morality and replaced it with an intuitive account of our own deep intuitions about justice, to be brought out by the procedure of the original position, later to be refined by the reflective equilibrium. Thus Kantian autonomy was to be cashed out in terms of respect for persons.

Arthur Ripstein, though broadly sympathetic to Rawls’s project, believes that the formal theory of right underlying Kant’s account of law in the Doctrine of Right (the first book of Kant’s Metaphysics of Morals 1797) is not only worth preserving, but worth championing. Ripstein’s excellent book thus proposes a comprehensive reading of Kant’s legal and political philosophy which insists that we can indeed build up a coherent system of rights from the simple idea of the innate right of humanity. Philosophically speaking, such an approach would reestablish a strong link between natural rights and positive rights and hence would go some way toward solving the vexing questions left open by Kant’s moral writings as well since the doctrine of right could then be used to make more concrete that very system.

The relation between Kant’s famous categorical imperative and the Metaphysics of Morals’ innate right of humanity is shadowy. While Ripstein does not attempt to vindicate the categorical imperative, he does provide an interesting argument through which to understand the relation between the categorical imperative and the universal principle of right (the principle which the innate right of humanity is based on, see below). The central problem to be resolved here is the relation between autonomy in morality and coercion in law. For, while the categorical imperative rejects all forms of coercion (and deception), the principle of right requires coercion. How can these two principles be made coherent without, for instance, reducing right to an instrument of the categorical imperative, something akin to Rousseau’s ill-understood idea that the state can force us to be free.

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SCOTUS Chides Posner/Easterbrook in Jones v. Harris

In a gentle rebuke to two famous academic judges, Richard Posner and Frank Easterbrook, today the US Supreme Court told them a debate they were airing in a recent case was not for federal judges but for Congress.

The Court, in Jones v. Harris, unanimously vacated as erroneous Easterbrook’s opinion that went out of its way to disagree with well-settled judicial interpretations of a relatively simple federal statute. Posner’s contending opinion engaged directly with the economic and market theories on which Easterbrook drew, both judges wrongly making debate out of the wisdom rather than the meaning of the statute.

The statute says an adviser to mutual funds is “deemed to be a fiduciary with respect to the receipt of compensation for services.”   For thirty years, virtually all federal courts take that to mean adviser fees cannot be so disproportionate to services rendered as to indicate lack of an arms-length sort of bargain.    Testing that requires considering all relevant factors.

The Court affirmed that interpretation and test as correct, in an opinion written by Justice Samuel Alito. Easterbrook erred when instead saying the fiduciary duty language required only that advisers disclose fees and that no other factor is relevant. The Court indicates that his dissertation on competition in the mutual fund industry and theories of market behavior is irrelevant to federal court business in the case.

Posner’s opinion, in the form of a dissent from the Circuit’s refusal to rehear the case en banc, engaged Easterbrook directly on economic theories and views of market efficacy, including debating empirical academic studies reaching opposite conclusions. The Supreme Court rebuked both, saying their job was to apply the statute not debate its wisdom. Read More


Traditional v. Economic Analysis and Cardozo v. Posner

Scholars continue to debate the merits of traditional legal analysis compared to contemporary economic analysis of law. Each has virtues and both pose trade-offs. Adding to the extensive discourse, now available on SSRN is my new article probing the comparative appeal of these two approaches.

I offer a novel approach to the longstanding debate. I focus on judicial opinions of Benjamin Cardozo and Richard Posner. I use the context of tort law, where economic analysis has enjoyed most impressive success. I chose these two judges because their opinions appear more often than any other judge’s in current torts casebooks and they epitomize the competing methods.

My analysis led me to conclude that Cardozo’s traditional approach has the better of Posner’s economic approach. I would be delighted to hear criticism of the paper and its conclusions.


William Prosser and the Privacy Torts

I recently posted on SSRN a draft of my forthcoming article (with Professor Neil M. Richards of Washington University School of Law).  The piece is called Prosser’s Privacy Law: A Mixed Legacy, 98 California Law Review __ (forthcoming 2010).  It was written as part of a symposium “Prosser’s Privacy at 50.”

By way of background for those readers not familiar with William Prosser, he was the leading torts scholar of his generation — the undisputed king of the subject throughout the middle of the twentieth century.  And he played a profound role in shaping the privacy torts — four causes of action recognized by most states today.  His article, Privacy, 48 Cal. L. Rev. 383 (1960), still stands as one of the most influential articles in privacy law.

For this symposium, Neil and I examined Prosser’s influence and concluded that his legacy was mixed.  Here’s the abstract of our paper:

This article examines the complex ways in which William Prosser shaped the development of the American law of tort privacy. Although Prosser certainly gave tort privacy an order and legitimacy that it had previously lacked, he also stunted its development in ways that limited its ability to adapt to the problems of the Information Age. His skepticism about privacy, as well as his view that tort privacy lacked conceptual coherence, led him to categorize the law into a set of four narrow categories and strip it of any guiding concept to shape its future development. Prosser’s legacy for tort privacy law is thus a mixed one: He greatly increased the law’s stature at the cost of making it less able to adapt to new circumstances in the future. If tort privacy is to remain vital in the future, it must move beyond Prosser’s conception.

Comments are welcome.


Rethinking Free Speech and Civil Liability

I’ve been meaning to announce, but keep forgetting to get around to it, that my article with Neil Richards was recently published — Rethinking Free Speech and Civil Liability, 109 Columbia Law Review 1650 (2009).  Here’s the abstract:

One of the most important and unresolved quandaries of First Amendment jurisprudence involves when civil liability for speech will trigger First Amendment protections. When speech results in civil liability, two starkly opposing rules are potentially applicable. Since New York Times v. Sullivan, the First Amendment requires heightened protection against tort liability for speech, such as defamation and invasion of privacy. But in other contexts involving civil liability for speech, the First Amendment provides virtually no protection. According to Cohen v. Cowles, there is no First Amendment scrutiny for speech restricted by promissory estoppel and contract. The First Amendment rarely requires scrutiny when property rules limit speech.

Both of these rules are widely-accepted. However, there is a major problem – in a large range of situations, the rules collide. Tort, contract, and property law overlap significantly, so formalistic distinctions between areas of law will not adequately resolve when the First Amendment should apply to civil liability. Surprisingly, few scholars and jurists have recognized or grappled with this problem.

The conflict between the two rules is vividly illustrated by the law of confidentiality. People routinely assume express or implied duties not to disclose another’s personal information. Does the First Amendment apply to these duties of confidentiality? Should it? More generally, in cases where speech results in civil liability, which rule should apply, and when? The law currently fails to provide a coherent test and rationale for when the Sullivan or Cohen rule should govern. In this article, Professors Daniel J. Solove and Neil M. Richards contend that the existing doctrine and theories are inadequate to resolve this conflict. They propose a new theory, one that focuses on the nature of the government power involved.

In Columbia Law Review’s Sidebar, Professor Timothy Zick has a very thoughtful response piece entitled “Duty-Defining Power” and the First Amendment’s Civil Domain.


Book Review: Daniel Markovits, A Modern Legal Ethics

A Modern Legal Ethics, by Daniel Markovits.  Princeton University Press: New York 2008.  Pp. 361.  $29.95

Daniel Markovits’s A Modern Legal Ethics could change the way we think about legal ethics, although not necessarily far enough or in only the right directions.

The main argument is elegant and provocative.  Markovits contends that a central issue in legal ethics should be the “problem of integrity.”  Lawyers must be able to integrate their professional commitments into their moral lives.  This is the most important insight of the book.  Other commentators have noted the problem of integrity, but Markovits offers the most sustained and nuanced discussion.  His argument opens up new avenues for thinking about the rules governing lawyers.

On Markovits’s telling, the lawyer’s integrity is directly challenged by her professional obligations.  Good lawyering requires what, on ordinary morality, would be considered lying and cheating.  These “lawyerly vices” are endemic to the adversarial system, so they can’t be cured by tailoring the rules governing lawyers.  Neither is avoiding these vices an option, given their incompatibility with integrity.

For Markovits, there are better and worse ways to solve this problem.  Most theories of legal ethics utilize what he calls (after David Luban) the “adversarial system excuse,” or the consequentialist view that the lawyerly vices are justified as part of a legal system that is just overall.  Here, if the overall practice is justified, then the integrity issues fall away.  Impersonal approaches can only accidentally or incidentally resolve integrity problems.

Interpersonal theories of legal ethics (which he calls “Kantian” approaches) don’t fare any better.  On these approaches, principles of legal ethics are acceptable only if they fulfill specified criteria (e.g., that they could be reasonably consented to, that they could not be reasonably rejected, etc.).  Yet, Markovits argues, concentrating on fulfilling such criteria raises the same problem as with impersonal approaches: any resolution to the problem of integrity is a byproduct, rather than an important end in itself.

Markovits thinks we must take the “lawyer’s point of view” in order to solve the problem of integrity in the right way, which requires a “first-personal” approach to morality.  Markovits calls his version “role-based redescription.”  If there were a distinctive, morally worthy role for lawyering, then the lawyer could preserve her integrity by redescribing her professional obligations to lie and cheat as requirements of fulfilling this role.

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Natural Law, Imperialism, and the Birth of Free Exercise Jurisprudence

I have been researching Reynolds v. United States (1879), the Supreme Court’s first Free Exercise case, on and off for several years. For those who are interested, my paper on the topic is now available for download at SSRN. My interest in the case is historical rather than doctrinal. I am interested in what Reynolds, which held that religious polygamy was not protected by the First Amendment, and the anti-polygamy crusade that followed tell us about constitutional politics in the nineteenth century. Historians have generally situated the case within the context of the post-Civil War politics of Reconstruction. The anti-polygamy crusade kicked off by Reynolds is seen as an extension of Reconstruction into the West. I offer a new interpretation.

I began my research by asking myself what the theory of the First Amendment put before the Court by the Reynolds’s lawyers looked like. The Court — following the arguments of the Attorney General — characterized the Mormons as claiming that all religiously motivated action was exempt from the criminal law. This sort of absolutist position, the Court and the government pointed out, would allow absurd results such as the inability to criminalize religiously motivated murders. The Court, however, was knocking down a straw man. The Mormons never in fact made this claim. Rather, they argued that the First Amendment only protected religiously motivated conduct that was not malum in se, that is wrong in and of itself as opposed to being wrong merely because of the law (malum prohibitum). Actions could be judges as malum in se, they went on to argue, by appeal to a set of well-established natural law arguments. These arguments were based in part by a series of more-or-less positive analogies to non-Western legal systems. The Court responded implicitly to this argument by analogizing Mormons to Indians and the federal government to the British Raj. In other words, the Court in effect looked at “The Mormon Question” through the lens of imperialism.

This imperial analogy was more than a one-off rhetorical fillip in the Court’s opinion. It shows up all over the anti-polygamy battles, where it is important for distinguishing the situation in Utah from the situation in the Reconstruction and post-Reconstruction South. It also gets picked up on in the first generation of cases that invoke Reynolds and its progeny as precedent. These cases, known as The Insular Cases, arose in the context of the United States’ conquest of the Philippines in the Spanish American War of 1898 and addressed the question of the federal government’s authority to engage in imperialism and colonialism abroad. In these cases Reynolds was seen not as a First Amendment case as much as a case about the scope of Congressional power over a conquered people. My paper thus suggests that Reynolds and the anti-polygamy battles need to be seen not only in the context of the domestic debates over Reconstruction that proceeded them. Rather, Reynolds and its heirs must also be seen as a prelude to the international debates over imperialism that followed the Spanish American War.

For those interested, here is an abstract of the paper: Read More