Category: Legal Theory

1

Recovering the Legal Realists

Over at Balkinization, Brian Tamanaha (law, St. Johns) has a terrific post about debunking the caricature often painted about the legal realists. He notes that many “appear to see the Legal Realists as sort of proto- or early day Crits (members of Critical Legal Studies) who exposed the rampant indeterminacy of law and insisted that judging is inevitably infused with and shaped by the subjective views of judges.” However, he contends, this view is mistaken:

[I]t seems a mischaracterization to suggest that the Realists thought it was impossible “for judges to decide apart from their views and ideology.” Their insistence that these views come into play in certain contexts—rebutting the formalistic portrayal that they never come into play—did not mean they always (or even often) come into play. Their insistence that a narrow focus on legal rules alone cannot fully explain judicial decisions—expanding the focus to the craft of lawyering, the institutional setting of judging, the socialization of lawyers and judges into the legal tradition—does not mean that the ideological views of judges determines their decisions. Chemerinsky is right that the Realists exploded the myths of formalism, but it does not follow from this that they believed that judging is pervasively ideological or subjective. And most of the Realists were not rule skeptics in any deep sense (as Twining makes clear).

There is a fundamental reason why is wrong to see the Realists as early day Crits: the Realists believed in the law (keeping in mind that this was an amorphous and disparate group). Their goal was to improve the law. Llewellyn professed his love for the law and his pride in being a lawyer. One could hardly be more un-Critly (to coin an ugly neologism) than that. No Crit would have drafted the Uniform Commercial Code to match business practices—which Llewellyn did with great satisfaction. Moreover, while several Realists were New Dealers, their overarching emphasis on enhancing the efficiency of law and on making the law conform more closely to ongoing social behavior had a deeply conservative thrust—again, most un-Critly.

Read the full post for more. Hat tip: Kerr

The Limits of Law & Econ in IP: The Case of Digital Music

Once again, the folks at Truth on the Market have celebrated the recording industry’s efforts to assure perfect control over copyrighted content via Digital Rights Management. Free marketeers like Tyler Cowen are beginning to question DRM as a tax on consumers, and even one of the big four record companies is considering abandoning it. Untroubled by such doubts, Josh Wright and Geoff Manne push for ever more latitude for the dominant platform (iTunes) and dominant content providers (the big four recording companies).

Their posts provide classic examples of what Reza Dibadj has called the key shortcomings of conventional law & economics (L&E) reasoning. As Dibadj summarizes,

[T]hree of the most basic assumptions to the popular L&E enterprise–that people are rational, that ability to pay determines value, and that the common law is efficient–while couched in the metaphors of science, remain unsubstantiated.

Let’s take a look at how each of these assumptions drives the TOTM approach to digital music markets.

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The Burkean Paradox

burke.jpgEdmund Burke was a big defender of the worth of received institutions and prejudices. If I understand his argument correctly it goes something like this:

Society has lots of traditions, practices, and prejudices that are difficult to justify with clearly stated rationales. Sometimes we do something just because that is the way it has always been done. The fact that we don’t have a clear idea about why we have a particular practice does not mean, however, that we should feel free to change it and rationalize it at will. The fact that something has survived from time immemorial means that it may well be the incarnation of collective wisdom that exceeds our rational understanding. After all, reason is limited and we might be wrong. Accordingly, we ought to afford tradition great respect, tampering with it in favor of rational redesign only when absolutely forced.

I find this line of reasoning — call it the Burkean Argument — paradoxically powerful and utterly unpersuasive. It seems powerful to me because the two central premises of the argument seem to me to be quite clearly true. Reason is a necessarily limited instrument, and there is no denying that our deepest convictions about things could be wrong. Likewise, it seems to me that the importance of social institutions quite frequently exceeds our conscious or common-sense understanding of them. Indeed, most social science is premised on the notion that the proper understanding of human institutions exceeds our common-sense understanding of them. If this was not the case, then social science would have nothing to tell us that we didn’t already know.

The problem with the Burkean Argument is that it also strikes me as equally true that some social institutions and practices are just old. We do them because that is the way that we have done them, but they are ultimately meaningless and stupid. The problem with the Burkean Argument is that it provides us with no way of telling which institutions represent the accumulated wisdom of the ages and which institutions are just old. From the point of view of the Burkean Argument the fact that we can’t see a reason for something is not evidence that it is just old. The accumulated wisdom of the ages necessarily exceeds our attempts at argument and theorization. At the same time, the absence of a clear reason for a practice is also not evidence that it represents the accumulated wisdom of the ages. It may just be old. I don’t really see any way out of this paradox. Hence, I think that the Burkean Argument is both valid and useless.

Accordingly, it seems that we are justified in either ignoring all appeals to the Burkean Argument and blithely going forward based on our own understanding. Alternatively, we can adopt a curmudgeonly conservatism, standing athwart the path of History shouting “Stop!” Down one path lies Robbespiere, and down the other lies the defense of rotten boroughs and segregation. Take your pick.

4

The Puzzle of Altruistic Punitiveness

Let’s suppose that that a jerk does something that, while not criminal, is extremely inconsiderate and mean to me. There is only a slim possibility that I will prevail in a civil suit. Oddly I pursue the civil suit anyway. Am I crazy, stupid, or justified? One thing’s for sure, I’m in good company. Real life and laboratory experimental evidence reveal this again and again: many individuals will seek to impose some cost on the jerk despite a significant cost to themselves.

Because classical deterrence theory depends on the notion that people are rational actors who maximize their selfish returns, the practice seems odd. This is, from a deterrence perspective, a puzzling case of altruistic punitiveness. I punish the jerk at my own expense, and the deterrent benefits generated by my costly punitive action accrue largely to others.

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Island of the Crackberry Readers

lotuseaters.jpgSherry Turkle is an MIT scholar who’s written some fascinating reflections on how humans relate to computers. As director of the Initiative on Technology and Self at MIT, she’s been pretty enthusiastic about artificial intelligence (AI) and machines that (appear to) think. But she’s started to question the acceleration of these developments recently…in ways that might intrigue lawyers and just about anyone in technology-intensive industries.

Turkle’s research began as she watched children and the elderly interact with more and more sophisticated simulacra of animals:

Children approach a Furby or a My Real Baby and explore what it means to think of these creatures as alive or “sort of alive”; elders in a nursing play with the robot Paro and grapple with how to characterize this creature that presents

itself as a baby seal. They move from inquiries such as “Does it swim?” and “Does it eat?” to “Is it alive?” and “Can it love?”

As any fan of the movie AI knows, these are profound issues in themselves. Turkle worries about a society where children no longer appreciate the difference between the born and the made….and busy adults leave their aging parents with an array of sophisticated toys to entertain them, rather than visiting.

But Turkle’s latest work broadens this concern to the array of technological devices that are becoming indispensable to urban professionals. Have you ever been left “holding the bag” as a friend rifles through email messages or texts someone? If manners are “small morals,” such activities actually represent a shift in our moral lives–toward an intense connection with a cybernetwork, and away from the presence of those around us. The devices become an excuse for constant distraction. Even more importantly, we can get on a “positional treadmill” such that a device like the BlackBerry is less a form of advantage than a necessity to avoid falling behind.

Recalling Borsook’s book Cyberselfish, Turkle argues that these devices create a “new narcissism”–not mere self-concern, but narcissism in the technical sense, of persons who are so fragile they are in constant need of being “shored up.”

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Fisking Posner on Inequality

In a recent post on the B-P blog, Richard Posner addresses soaring inequality. In the U.S., “since 1980 the percentage of total personal income going to the top 1 percent of earners has risen from 8 percent to 16 percent.” He concedes a few bad effects from this situation, but ultimately concludes that, aside from upping the estate tax, nothing should be done. My favorite part of the post involves Posner’s speculation that “[m]assive philanthropy directed abroad can interfere with a coherent foreign policy;” fortunately, the administration is already on the case.

It’s astonishing how assiduously Posner ignores the work of Robert H. Frank. In 20 years of rigorous articles and books, Frank has documented over and over the ways that growing inequality harms society. Some of us in the legal profession have applied his theories; Cass Sunstein on cost-benefit analysis, Richard McAdams in Relative Preferences, and my own work on luxury health care and the rise of low-volume, high-margin business models in IP.

But in this post, and even in longer treatments of the subject, Posner ignores the leading American theorist on the consequences of economic inequality. Frank takes his libertarian critics seriously, but somehow falls under the Posner’s radar. (Even in articles published in Westlaw, where a search for [au(posner) and (“robert frank” or “robert h. frank”)] got no hits evidencing engagement with Frank’s work on inequality.)

In what follows, I try to “fisk” Posner’s account of the effects of inequality.

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Song of Jersey City

PATH Map.jpg

Rick Garnett recently wrote on “cities’ hipness competition.” According to a recent article in New York Magazine, my urban home (Jersey City) has recently won some prize:

To live [in New York now] is to endure a gnawing suspicion that somebody, somewhere, is marveling and reveling a little more successfully than you are. That they’re paying less money for a bigger apartment with more-authentic details on a nicer block closer to cuter restaurants and still-uncrowded bars and hipper galleries that host better parties with cooler bands than yours does, in an area that’s simultaneously a portal to the future (tomorrow’s hot neighborhood today!) and a throwback to an untainted past (today’s hot neighborhood yesterday!). And you know what? Someone is. And you know what else? Right now, that person just might be living in Jersey City.

It’s not just Tyler Cowen who’s rescuing New Jersey from punchline status–even the uberhip NYM is recognizing us (even if we’re shunned by NYC Bloggers). Our hospitals may be closing, but at least we’ve got a hot arts scene.

Of course, the NYM piece focuses not on all of the JC, but only on the “downtown” close to the Hudson waterfront. I live a bit further down the PATH line, in Journal Square. I think a comparison between the two areas may help us answer Rick’s question: “what law can do — e.g., zoning laws, liquor licensing, etc. — to make cities / metro areas more (or less) attractive to the young (or the old, for that matter)”? Can big urbanism work?

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Law & Technology Theory

prometheus.jpgI just wanted to plug a new forum that Gaia Bernstein, Jim Chen, and I recently launched–Law & Technology Theory. The big question we’re addressing is whether our experience of past regulation of technologies teaches generalizable lessons for future policy. Gaia has nicely summarized some of the key issues we’ll be considering:

Whether [a theory of law & technology] should have broad principles that apply to all technologies or whether it should offer narrower principles relevant to different categories of technologies?

[Can we] formulate a theory that differentiates on the basis of the social values or institutions a new technology destabilizes?

Our “virtual symposium” will host an international group of scholars with a wide range of theoretical commitments. We’ll be publishing the proceedings in the Minnesota Journal of Law, Science, and Technology this Spring. We hope you’ll consider reading and commenting as the discussion progresses. (Some of us will also be at the IASTS conference in Baltimore this February.)

By the way, on a completely untheoretical note, I have to say that the travel time involved in this symposium is great–zero! By developing a forum somewhere between a blog and a conference, we’re trying to promote a new kind of academic exchange. We hope it ends up being a bit more inclusive than the average conference circuit, which can be inhospitable to those who have a tough time traveling.

Art Credit: Elsie Russell, Prometheus (1994).

From the New Property to the New Responsibility

apple small.jpgJust as Charles Reich was a premier theorist of rights to government largesse, Peter Schuck and Richard Zeckhauser are leading exponents of the responsibilities it entails. In Targeting Social Programs, S&Z focus on the denial of benefits to “bad bets” and “bad apples:”

Bad bets are individuals who are likely to benefit little from social resources relative to other [beneficiaries]. . . . Bad apples are individuals whose irresponsible, immoral, or illegal behavior in the past—and predictably, in the future as well—marks them as unsuitable to receive the benefits of social programs.

This may sound a bit cold-hearted at first, but S&Z make a good case that, behind a veil of ignorance, we’d quite sensibly allocate resources to, say, the transplant recipient who is most likely to benefit, rather than the one who has been on the wait list the longest. They also show how often “bad apples'” worst effects are on the disadvantaged citizens near them. (For an example, see Kahan and Meares on anti-loitering ordinances.)

The West Virginia Medicaid program provides an interesting case study of “bad apple screening.” Consider the fate of one beneficiary who refuses to sign a “health responsibility contract:”

Mr. Johnson. . . goes to a clinic once a month for diabetes checkups. Taxpayers foot the bill through Medicaid . . . [b]ut when doctors urged him to mind his diet, “I told them I eat what I want to eat and the hell with them. . . . I’ve been smoking for 50 years — why should I stop now? . . . This is supposed to be a free world.”

Traditionally, there was little Medicaid could do to encourage compliance. But now, “[u]nder a reorganized schedule of aid, the state, hoping for savings over time, plans to reward “responsible” patients with significant extra benefits or — as critics describe it — punish those who do not join weight-loss or antismoking programs, or who miss too many appointments, by denying important services.” But as the article notes, “Somewhat incongruously, [Johnson] appears to be off the hook: as a disabled person he will be exempt under the rules.”

Critics claim the program is unduly intrusive: “What if everyone at a major corporation were told they would lose benefits if they didn’t lose weight or drink less?” asked one doctor. Certainly in some manifestations it could be; consider this 1997 proposal by Judge John Marshall Meisburg:

Congress should . . . consider legislation stipulating that no one can be granted disability by SSA if s/he continues to smoke against the advice of his physician, and smoking is a factor material to the disability, because such claimants are bringing illness and disability upon themselves. Such a law would reduce the burden of proof now needed to deny benefits to persons who fail to heed their doctors’ advice, and would dovetail with legislation just passed by Congress to abolish disability benefits for persons addicted to drug and alcohol. In many cases, smoking is akin to “contributory negligence” and the SSA law should recognize it as such. [From Federal Lawyer, 44-APR FEDRLAW 56 on Westlaw.]

I think S&Z frame the debate in a nuanced enough way to avoid this kind of draconian proposal. But I do have a few quibbles with the framing of their work, if not its substance.

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3

Posner, Pragmatism, and Precedent

precedent1b.jpgOver at the Chicago Law Faculty Blog, Brian Leiter has a post discussing Judge Richard Posner’s legal pragmatism. He writes:

First: Do judges actually have any obligation or duty to abide by precedents or statutes or constitutions on the pragmatic view? Or do they only have some instrumental reasons to pay some attention to these materials? The pragmatist judge, according to Posner, is “unchecked by any felt duty to secure consistency oin principle” with past official actions, i.e., court decisions and legislative enactments (241). The pragmatist judge, he says, only decides “in accordance with precedent” when that is “the best method for producing the best results for the future.” (241). Judge Posner adds that the pragmatist judge is not “uninterested” in statutes and precedents, but that is because he “regards precedent, statutes, and constitutional text both as sources of potentially valuable information about the likely best result in the present case and as signposts that he must be careful not to obliterate or obscure gratuitously, because people may be relying upon them” (242). Indeed, he refers to these sources of law as “‘authorities'” (in quotation marks) and as “merely…sources of information and as limited constraints on [the judge’s] freedom of decision.” None of this makes it sound as though there is any serious obligation for the pragmatist to abide by precedent or statute.

The pragmatic theory of precedent is actually much stronger than the above characterization. There can be strong instrumental reasons for rigidly adhering to precedent. First, establishing a firm tradition of adherence to precedent promotes consistency and serves as a limit on judicial power. Second, disrespect for precedent might undermine the political capital of the judiciary and may lead to a backlash by other branches or the public, thus undermining the judiciary’s power in the future. Third, departing from precedent gradually undermines the function of adherence to precedent, which helps establish the legitimacy of judicial decisions. Undermining this source of legitimacy renders impotent one of the primary sources of judicial power.

True, under a pragmatic theory, judges have instrumental reasons for adhering to precedent but don’t have an “obligation” to do so. These instrumental reasons may sound less absolutist than a more categorical command to obey precedent, but these reasons can be just as potent and powerful in practice.

Indeed, it is not at all clear that non-pragmatist judges are more likely to respect precedent. Non-pragmatist judges who proclaim their strict duty to precedent can readily cheat and pretend to follow precedent while cleverly manipulating it to get the results they want. A non-pragmatist judge may adopt a rather loose or creative interpretive stance toward prior caselaw or statutes, allowing her to claim adherence to precedent while at the same time taking the law in a new direction. The non-pragmatist judge will claim that this new direction is consistent with prior cases based on interpretive reasons. In contrast, the pragmatist judge might more openly acknowledge the departure from precedent and justify it with instrumental reasons for the departure. But the fact that the pragmatist judge might describe the departure in a different manner does not mean that the pragmatist judge is more likely to depart from precedent. In fact, if a pragmatist judge is committed to honestly acknowledging departures from precedent, then this could make the judge more reluctant to depart than the non-pragmatist judge who believes she can cloak her departures with skillful rhetoric.

In other words, I don’t see why pragmatist judges are likely to be less respectful of precedent or more likely to depart from it than non-pragmatist judges.

There’s also a podcast of Leiter’s discussion with Posner, which I haven’t had the opportunity to listen to.