Category: Legal Theory

Mankiw’s Fractured Fairy Tales

mr_peabody_and_sherman.jpgCome tax time, econoblogger Greg Mankiw is peddling parables about distributive justice designed to reconcile us to inequality. You see, if we tax high earners too much, they may just all flee to….well….another bar. Redistributive policies are ridiculed as gliding us down a slippery slope toward Harrison Bergeron-style taxation of height.

How to respond? Well, if there were thousands of people around who were, say, hundreds of times taller than the average person, and whose ability to consume resources were accordingly disparate, perhaps we’d try to find some way of rectifying the situation. As for “bar stool tax policy;” well, if the top guy also happened to be drinking 40% of the beer, er, income, perhaps we’d like to see him paying accordingly.

I suppose that Mankiw might say that the height paper is only an attack on “utilitarian social planner[s who] would like to transfer resources from high-ability individuals to low-ability individuals.” Only such a planner is attributed the desire to “levy a sizeable tax on height [such that a] tall person making $75,000 should pay about $4,500 more in taxes than a short person making the same income.” And perhaps he has dented “the theory of optimal taxation [according to which] any exogenous variable correlated with productivity should be a useful indicator for the government to use in determining the optimal tax liability.” But what relevance does this battle of ideal theories have for our world? Is any political party advancing the “theory of optimal taxation” Mankiw is trying to discredit?

It is easy enough to score debating points about the “impossibility” of perfect distributive justice, just as one can always dredge up Arrow’s impossibility theorem to discredit democratic procedures. But in a nation where an ever-growing number of people lack basic health insurance, and a world where tens of millions live on a dollar a day and a substantial proportion of the affluent do nothing to relieve their plight, it’s really difficult to see how reductiones ad absurda contribute to the practical decisions we have to make about distributing resources. Parlor games don’t lead to good policy.

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Postrel (and Fergie) on Egalitarian Glamour

glamor.jpgI’ve always had a love-hate relationship with Virginia Postrel’s work–so perceptive an aesthetic theorist, yet so complacent about commercial culture! But those studying IP have to come to terms with it, if only because she wrestles with a topic central to our endeavor: what is the value of those cultural products protected by copyright and trademark law? In The Substance of Style, Postrel argued that we routinely and vastly underestimate the contribution of design and beauty to our well-being. From an upcoming book proposal on Glamour, it looks like she’s about to expand and refine that argument.

Focusing on a variety of glam entities, Postrel distills three common components which “are not aesthetic elements but imaginative qualities: grace, mystery, and transcendence.” She reverentially recites a litany of products and personages that ooze glamor: Oprah, art deco, and Pre-Raphaelites all get props. To her credit, she recognizes glamour can be used for evil as well as good–she notes how Leni Riefenstahl glamorized a horrific Nazi program. But that’s just a bump on the road for a treatment that clearly wants to elevate our appreciation of glamour:

[D]espite its dangers, we would be foolish simply to reject glamour. It is too powerful to be denied, and its power can inspire good as well as evil. Although glamour has been a tool for tyrants, it has also provided an imaginative refuge for the ostracized and oppressed. . . . True sophistication lies not in rejecting or eschewing glamour—a largely futile approach—but in understanding how it works.

Note the slipperiness of the terms of evaluation here; where once “good, evil, and danger” were our guideposts, by the end of the paragraph “sophistication” becomes the summum bonum. Her discussion also reminds me of the Nussbaum-Kahan exchange in Bandes’s The Passions of Law, where Nussbaum argues for purging public life of emotions like disgust, while Kahan argues for a progressive appropriation of the concept. I think Kahan got the better of that exchange, but I’m a bit skeptical of glamor…even in the wake of books like Dream, Stephen Duncombe’s argument for tapping into “America’s collective unconscious through spectacle.”

There’s always a democratic edge to Postrel’s work, a gnawing need to establish that a new age of design, aesthetics, and glamour is a tool of self-realization for the masses. She admits that “Glamour can erode our appreciation of quotidian pleasures, and our sympathy with human limitations, exacerbating our dissatisfaction with life as it actually exists. And glamour can exclude outsiders as surely as it can dignify them.” But she always finds some way of de-emphasizing these trends, noting, for instance, that “The 1930s made glamour a truly mass phenomenon, one no longer dependent on geography or class.” (Yep, the KMart blue light special offers up glam items just as frequently as Agnes B.) For Postrel, the answer is not to beat or ignore the glamorous, but to join them: “glamour can . . . provide an essential imaginative leap toward personal achievement or social and economic progress.”

Though I should probably wait for the whole book before I pass judgment, I have to say now that I’m not buying the masstige angle. Glamour is inevitably exclusionary, the classic example of a positional good: by her own terms, the glamorous have to transcend somebody, and that’s usually the rest of us. Rather serendipitously, hip-hop diva Fergie provides a great example of this process in her video “Glamorous.”

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Your money or your life

A flurry of scholarship on Lochner v. New York surrounded its 100-year anniversary in 2005. It’s clear why Lochner gets so much attention. But as a matter of constitutional doctrine, I wonder if we pay insufficient attention to the stealth anti-Lochner, Jacobson v. Massachusetts. The two U.S. Supreme Court opinions were announced just a few months apart, Jacobson in February 1905 and Lochner in April. Both involved claims of individual liberty pitted against public health laws—a mandatory vaccination law in Jacobson, a limitation on work hours (as well as regulations of working conditions) in Lochner. But the outcomes could hardly be more different. Jacobson embraced a broad police power to use coercion to ensure public health; Lochner infamously struck down restrictions on bakers’ working hours as a violation of economic liberty. (Justice Peckham dissented in Jacobson and wrote the Lochner majority opinion; Justice Harlan dissented in Lochner and wrote the Jacobson majority opinion.) Lochner didn’t last, of course, but for a while it seemed that the state could use coercion to protect your life (or health) only if it didn’t mess with your money along the way.

I’ve been thinking about Jacobson and Lochner as I work on an article about the state’s interest in the preservation of life. Jacobson (and maybe, to some degree, the renunciation of Lochner) reflects a widespread assumption that the state has such an interest and may use coercion against citizens’ bodies to further that interest. So we see Jacobson cited in abortion cases to support the state’s interest in the preservation of fetal life, in refusal of medical care or “right to die” cases, and to support indefinite civil commitment (Kansas v. Hendricks) or indefinite detention (Justice Thomas’s dissent in Hamdi v. Rumsfeld) in the name of public safety. In fact, Jacobson has been cited by the Supreme Court more often than Lochner, and the Jacobson references are almost universally favorable while the Lochner references are usually not. A pedagogical question: Should Jacobson get more attention in constitutional law casebooks? And a political / philosophical question: Is it so obvious that the state has an interest in preserving individual lives—especially those of individuals who do not themselves wish to continue living?

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If the Law is a[n] ass, what is the state?


The famous frontispiece to Thomas Hobbes’s Leviathan depicts the head and torso of a long-haired, mustachioed man. Upon close scrutiny, it becomes evident that the man’s torso and arms are composed of tiny individual persons, crowded closely together and each looking toward the head of the composite Leviathan. The image suits Hobbes’s argument well. Hobbes argues that a sovereign should be understood as an artificial person, created by a social contract to represent each individual member of a political community. Of course, Hobbes also argues that the best sovereign is also a natural person: a single human individual who rules as an absolute monarch. But whether political sovereignty rests in a single monarch, in democratic institutions, or in some other form of government, Hobbes urges us to think of the state as a person. The metaphor is simple, accessible, intuitively appealing—and it may be inescapable. Long past the age of absolute monarchs, we still speak of states as entities that intend, and act, and are vulnerable in ways similar to the ways in which individual persons intend, and act, and are vulnerable. This conception of the state shapes American law in significant ways. For example, many questions of constitutional law turn on whether the state acted or what the state intended, and many scholars have noted incoherence in the jurisprudence of state action and state intention.

Maybe we just don’t have convincing ways of thinking and talking about states other than the language of personhood. I’m looking for alternatives, so please let me know if you have suggestions.

In a work in progress called Political Anthropomorphism, I try to escape the metaphor of the state as a person—or at least stand far enough from it to evaluate it critically. I’ll present this paper tomorrow at the annual meeting of the Association for the Study of Law, Culture, and the Humanities, held this year at Georgetown Law Center in Washington, DC. I haven’t attended ASLCH before, but the program certainly looks enticing. Those interested in legal metaphors—the law is an ass or others—may want to attend Metaphors of Power / The Power of Metaphor, where I’ll discuss Political Anthropomorphism and my esteemed co-panelists will discuss the use of metaphors in the legal discourses of marriage, tort liability, and Native American rights to sacred sites or remains. Should be fun.


Olde Fields, New Corn, and an Inscription

hlscrest.pngI have always been facinated by the confrontation between James I and Chief Justice Edward Coke over the nature of the common law. The king asserted the right to dictate the law because, he reasoned, law was simply the expression of natural reason and the king’s reason was as good as the judges. Coke responded by conceding that the law was reason, but insisted that it was an “artificial reason” that could only be gained by deep study and long experience. Coke’s response is cryptic, and historians of greater learning than I have lavished a great deal of attention on what precisely he meant in context. I take it, however, that Coke is claiming that rules built up in the law over the centuries represent a well of experience and wisdom that exceeds what we might acquire by rational construction on a tabula rasa. As it happens I am a big fan of the common law, and I tend to have more faith in judicial caususitry than in a priori philosophical speculations. In some sense, I believe in the artificial reason of the law.

Hence, I was fancinated when I ran across Felix Frankfurter’s dedication in his 1930 book The Labor Injunction. He wrote, “To Mr. Justice Brandeis, for whom law is not a system of artificial reason, but the application of ethical ideals, with freedom at the core.” The shifts in jurisprudential world views crammed into that inscription is really quite impressive. There is also a wonderful irony in the fact that Frankfurter no doubt penned these words at the Harvard Law School, which is of course covered with the law school’s crest on which are prominently displayed sheaves of wheat. The sheaves are an allusion to Coke and another of his maxims on the law: “From olde fields, springs forth new corn.” The dirt of experience and history imagined by Coke, however, strike me as quite different — less ethereal and celestial — than the “ethical ideals” for which Frankfurter praised Brandeis.


Constitutional Law & Institutional “Tailoring”: My Contrarian View

I’ve just uploaded to SSRN my latest article, which I wrote and presented as part of a February UCLA Law Review Symposium on “Constitutional Niches: The Role of Institutional Context in Constitutional Law”, Prisoners and Students and Workers – Oh, My! A Cautionary Note About Excessive Institutional Tailoring Of First Amendment Doctrine. (In January, I’d linked a blog post to a much more preliminary draft in advance of the conference; this is a much more complete draft, and editing is just starting, so I’d love any comments!)

With the Symposium focused on “The Role of Institutional Context in Constitutional Law, my paper took a slightly contrarian view, arguing that when courts tailor doctrine to the needs and characteristics of particular institutions (like public schools, prisons, and workplaces), courts tend to overstate the uniqueness of those institutions. This is dangerous in the First Amendment context, because when courts overstate the unique institutional needs of, say, prisons, they’ll end up allowing too much restriction of speech on an exaggerated “prisons are special” theory. The basis for my conclusion that courts are exaggerating, not just recognizing, institutional uniqueness is a “pL“-type risk analysis of the arguments that prisons, schools, and workplaces face unique risks from dangerous speech.


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.