Category: Legal Theory


Models and Games

This seems like an auspicious occasion to announce that, following in the Larry Solum model of developing a paper from blog post to short idea piece to full-blown article, I’ve posted on SSRN the complete version of what was known in a prior iteration as “Aboutness, Thingness. . . .” The last thing to go was the old title, and the second to last were the first several paragraphs of the old introduction, I suppose because the words are like children, these particular words had been around since I first put fingers to keyboard, and, if truth be known, I thought they were really clever. But these are all aspects either of self-deception or unwillingness to make choices, and who of all people inspired me but Katie Holmes (or at least her character in Wonder Boys, Hannah Green) who observed to Michael Douglas (as Grady Tripp) that writing was about making choices and he had made none in the manuscript of his second novel.

The gist of the piece, if I were to put it blog-colloquially, is how some modes of making sense of cause-and-effect, particularly in the realm of human behavior, just plain miss the boat. In natural science, an example would be trying to explain dog behavior and conditioning at the level of physiology. That level of explanation might suffice for a physiologist who is interested in measuring muscle contractions at feeding time, but it doesn’t tell the microbiologist much, nor does it do much to explain at the level of operant conditioning. In the social sciences, the distinction would be (courtesy of historian Thomas Haskell), the difference between explanatory cause and attributive cause. If you ask the thug why he beat the old man, an answer that involves neural pathways and muscular contractions may explain cause and effect at one level, but it doesn’t make sense in the same way this answer does: “because I wanted his wallet full of money.”

The part of the piece with which I had the most fun was where I applied the foregoing to the 2003 Yale Law Journal article by Alan Schwartz and Bob Scott on contract interpretation. In a nutshell (but you will have to read the piece to see why), my claim was that their mode of explanation simply missed the boat in the same explanatory versus attributive way.

The article is Models and Games: The Difference Between Explanation and Understanding for Lawyers and Ethicists. The abstract follows the fold.

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Solum on Originalism

Over at Legal Theory Blog, Professor Larry Solum (Illinois) has a terrific post discussing a recent flurry of scholarly interest in originalist theories of constitutional interpretation. In his discussion, he has links to a number of important articles and blog posts on originalism: Brest, Powell, Scalia, Whittington, Balkin, Barnett, and Leiter. As Larry often says on his own blog: Highly recommended!


Privacy’s Other Path: Recovering the Law of Confidentiality


Dan and I have just uploaded the final published version of our article, Privacy’s Other Path: Recovering the Law of Confidentiality up on SSRN. The paper is in print in the latest volume of the Georgetown Law Journal and we’re both very excited it’s out. Our paper tells the story of how privacy and confidentiality law diverged in Britain and America after 1890, how they have begun to converge once again in recent years, and how the law of confidentiality holds great promise for American law as it continues to grapple with the problems of personal information. Here’s the abstract:

The familiar legend of privacy law holds that Samuel Warren and Louis Brandeis invented the right to privacy in 1890, and that William Prosser aided its development by recognizing four privacy torts in 1960. In this article, Professors Richards and Solove contend that Warren, Brandeis, and Prosser did not invent privacy law, but took it down a new path. Well before 1890, a considerable body of Anglo-American law protected confidentiality, which safeguards the information people share with others. Warren, Brandeis, and later Prosser turned away from the law of confidentiality to create a new conception of privacy based on the individual’s inviolate personality. English law, however, rejected Warren and Brandeis’s conception of privacy and developed a conception of privacy as confidentiality from the same sources used by Warren and Brandeis. Today, in contrast to the individualistic conception of privacy in American law, the English law of confidence recognizes and enforces expectations of trust within relationships. Richards and Solove explore how and why privacy law developed so differently in America and England. Understanding the origins and developments of privacy law’s divergent paths reveals that each body of law’s conception of privacy has much to teach the other.


Should Courts Issue Unpublished Opinions?

lawbooks1b.jpgNOTICE: This is an unpublished blog post. It may not be cited by any court or any party to any litigation.

A common practice for many courts is to issue unpublished opinions that may not be cited as precedent. These opinions are often short and consist of a few paragraphs. They are generally supposed to be limited to cases that can be resolved by clearly-established legal rules. According to one news article: “California courts of appeal issued 11,852 opinions during the 2004-2005 fiscal year. Of these, only 1,047 were published. About one-third of federal appellate-court decisions reviewed in 2002 came in unpublished opinions.” These statistics are staggering. Are there really so many cases that do not warrant having precedential value?

Unpublished opinions that may not be used for precedent raise some serious questions. Our legal system relies upon precedent, and we bristle when judges depart from precedent. Yet should we allow judges to say that some opinions are not precedent-worthy? Now that these cases are all readily available electronically, the argument that it is impossible to publish all opinions does not seem persuasive. Another argument is that it would overburden the courts if they couldn’t write unpublished opinions, which are typically very short and hastily-written. If these opinions counted, the argument goes, then judges might feel compelled to spend more time researching and writing them. But wouldn’t this be a good thing? Maybe it would yield better opinions. So by issuing an unpublished opinion, the court is basically saying: “Here’s our decision. We don’t think it’s good enough to be considered as precedent, yet your case isn’t worthy of our spending a lot of time to write such an opinion.”

But what about judicial workload? That surely is a problem, but it still strikes me as fundamentally wrong for a court to issue a decision that it believes is not adequately researched or articulated. Perhaps courts don’t believe this, but if an opinion is adequately researched and articulated, why not publish it and give it precedential value? And if the problem is excessive workload, then shouldn’t there be another way to address it?

Fortunately, in federal courts the rules are changing. In 2006, the U.S. Supreme Court voted to allow the citation of unpublished opinions.

But the practice still remains alive and well in state courts.

When I was clerking in federal circuit court before the rule change, I was surprised at the number of unpublished opinions (called “memorandum dispositions” or “mem dispos” for short). In one case, I found a memorandum disposition that addressed and resolved an open question in the circuit — yet because it was just a memorandum disposition, I couldn’t cite to it or rely upon it. So the issue had been confronted in the circuit and resolved by a panel, but that panel struck me as being lazy and didn’t want to bother to write a real opinion and resolve the issue in the circuit.

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Michael Sullivan’s Legal Pragmatism: Community, RIghts, and Democracy

book-sullivan-pragmatism.JPGIt seems as though books are the theme of my blogging this week, so I thought I’d recommend another great new book: Professor Michael Sullivan’s Legal Pragmatism: Community, Rights, and Democracy (Indiana Univ. Press 2007). From the book jacket:

In Legal Pragmatism, Michael Sullivan looks closely at the place of the individual and community in democratic society. After mapping out a brief history of American legal thinking regarding rights, from communitarianism to liberalism, Sullivan gives a rich and nuanced account of how pragmatism worked to resolve conflicts of self-interest and community well-being. Sullivan’s view of pragmatism provides a comprehensive framework for understanding democracy, as well as issues such as health care, education, gay marriage, and illegal immigration that will determine its character in the future. Legal Pragmatism is a bold, carefully argued book that presents a unique understanding of contemporary society, law, and politics.

Michael Sullivan is a professor of philosophy at Emory University and was a classmate of mine at Yale Law School. A few years ago, we co-authored an article about legal pragmatism: Can Pragmatism Be Radical?: Richard Posner and Legal Pragmatism, 113 Yale L.J. 687 (2003). Michael is one of the most brilliant people I’ve met, and his new book is terrific. Professor Bruce Ackerman’s blurb says it all: “[This book] represents a genuine breakthrough. . . . [It] will have a large influence on the course of jurisprudential reflection in the decades ahead.” Highly recommended for anybody interested in legal theory!


Law Talk: Markovits on Contracts of Adhesion

In this week’s episode I speak with Professor Daniel Markovits of the Yale Law School. Daniel writes in a variety of areas including the philosophy of law, the theory of toleration, and — most importantly — the theory of contract law. In 2004, Daniel published an ambitious article in the Yale Law Journal“Contract and Collaboration” — in which he sought to offer a new theory of contractual liability based on the integrative and pro-social effects of contracts. He is now at work on a project that applies his collaborative theory of contract to the perennial problem of contracts of adhesion. The result, as you can hear in this episode, is a critique of contracts of adhesion that is unrelated to the traditional complaints of unequal bargaining power and substantive unfairness.

You can subscribe to “Law Talk” using iTunes or Feedburner. You can also visit the “Law Talk” page at the iTunes store. For previous episodes of Law Talk at Co-Op click here.

Cell Phone Gag Rule

gag.jpgThere is big news on the net neutrality front today: Verizon Wireless has decided to block one group’s political speech from its text-message program:

Saying it had the right to block “controversial or unsavory” text messages, Verizon Wireless has rejected a request from Naral Pro-Choice America, the abortion rights group, to make Verizon’s mobile network available for a text-message program.

Note that this is not a pro-life policy, but one of blandless and depoliticization. As the Catholic Church realizes, it could well be the next to be censored or suffer degraded quality of service:

With no safeguards for net neutrality, religious groups, including the U.S. Conference of Catholic Bishops, fear that Internet service providers will discriminate against them and charge them if they want to get the same level and speed of service they now receive for their online sites when someone types in their Web address.

This latest development should put net neutrality opponents on the defensive, at least in academic circles. Brett Frischmann and Barbara von Schewick have already called into question the economic foundations of the most sophisticated defense of a laissez-faire position on the matter. But Verizon Wireless’s new policy shows that the cultural consequences of untrammeled carrier control over content may be far worse than its potential to stifle the types of efficiency and innovation economists usually measure.

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

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

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


Intellectual Privacy

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

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


Do Lawyers Know Anything?

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

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

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

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

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

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

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

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