February 25, 2005

Absolute

Posted by Ted

Scott Lemieux at Lawyers, Guns and Money has an interesting (and to me, convincing) case against Justices Thomas and Scalia, regarding California’s unofficial policy of bunking new inmates by race for the first 60 days. The court found, in a 5-3 decision, that the practice must stop unless it can meet the “strict scrutiny” standard. “As a result, the 9th U.S. Circuit Court of Appeals must now scrutinize the 25-year-old policy for hard evidence that it is necessary and works — a burden that will be hard to meet.” Thomas and Scalia dissented.

Says Lemieux:

The big problem is that it is egregiously inconsistent with (Thomas’s) previous reasoning in affirmative action cases, in which both he and Scalia (who joined Thomas’s dissent here) have argued that the “Constitution” is color-blind, with no exceptions.

Here’s Thomas in Grutter v. Bollinger. If segregation can, in extreme cases, be defensible, then surely the Court should defer to university officials (as well as the United State military and many Fortune 500 corporations) who deem that simply considering race as one factor among many accomplishes crucial goals, right? The answer, of course, is “no”…

Not only do Thomas and Scalia find that the “color-blind” Constitution permits state-mandated racial segregation, they don’t even believe the policy should be subject to strict scrutiny. “The Constitution is color-blind….unless you’re a prisoner, in which case racial classifications don’t even require heightened scrutiny” is a risibly untenable position.

Personally, I’m more than a little uncomfortable with racial segregation of prisoners, and it’s not obvious to me how the policy would reduce violence. However, I’m willing to accept that California’s prison officials know more than I do, and would have been willing to give them leeway; I’m making the assumption that the prison system showed evidence of the policy’s effectiveness to the circuit court. Luckily, I’m not philosophically wedded to colorblindness as an absolute good.

February 17, 2005

Changes in legal publishing

Posted by Micah

Last week, a dozen of the top American law journals announced their commitment to reducing the length of law review articles. The Joint Statement concerning this policy is available here. A number of journals have already adopted policies to implement the goals behind this statement. The so-called Virginia Experiment (see the link on Short-Article Policy), which began a year ago, sets a presumptive word limit at 20,000 words and effectively caps articles at 30,000 words. Harvard Law Review has recently adopted similar language, with a 25,000 word preference and a 35,000 word limit. These policies will have serious implications for what is published at Virginia and Harvard. Far less constraining, but nevertheless significant, are policies adopted by Columbia Law Review and the University of Pennsylvania Law Review, both of which have set presumptive word caps at approx. 35,000 words. Other journals will probably adopt similar policies in the near future.

From the perspective of academics in non-legal disciplines, these words caps may seem absurdly generous. Most peer-review journals won’t accept articles over 10,000 words. And, to be clear, these limits are ceilings. Most law reviews regularly publish “essays”—really just normal length articles—that are far below these numbers.

One would think that this is all relatively uncontroversial and rather long overdue. And there has been some positive feedback from legal bloggers. Orin Kerr quotes the Joint Statement rather approvingly, and Larry Solum gives it a characteristic very interesting!

Reactions elsewhere have been more critical. At the Conglomerate, Victor Fleischer (UCLA Law) argues that law review articles have to be long because student editors aren’t educated enough to understand them without lengthy introductions. This view is echoed by Stephen Bainbridge (here) and also Solum (here).

A few responses:

First, it is obvious that law students are not competent to evaluate certain types of articles. Many law professors who lack specialization in the relevant fields would be equally incompetent. But that can’t explain why law review articles average more than 30,000 words. Even if you write a 10,000 word introduction (the length of the introductory chapter for my doctoral dissertation), that leaves you with 20-30,000 words to make an argument. That’s two or three times the length of articles published in other fields.

Second, it doesn’t take 10,000 words to situate an article. Most articles, including technical pieces, just don’t need that kind of set-up. What’s more, a lengthy introduction won’t be of much use to an editor in evaluating the contribution of the article. And editors know that. They consult with faculty on articles that appear well-written but that they don’t fully understand.

Third, if an article is very technical, then it probably doesn’t belong in a general law review. There are specialized journals, some of which are even peer reviewed, that are more appropriate venues for publication.

Another canard regarding article length: student editors balloon articles with footnotes. This may have been true in the past, and I’m willing to assign some of the blame to student editors who are footnote happy. At this point, though, faculty should hold editors to word length policies by resisting the addition of notes where they aren’t necessary. If anything, the Joint Statement should provided additional leverage on this front. That’s assuming, however, that students are primarily responsible for ridiculously long footnotes. And I’m increasingly skeptical about that. I’ve spent the last year watching editors at Virginia attempt to cut footnotes (especially those with massively redundant citations). Their efforts have met with strong resistance from some authors. Once you’ve invested in so much work researching an article, and once you’ve written it up, it’s hard to let things go. I’m sure there is enough blame here to go around, but, as I’ve argued before explanations for the extraordinary length of law review articles are not confined to the predilections of student editors.

The Joint Statement should go a long way toward debunking the idea that student editors prefer more “substantial” articles. It’s just not true. We would much rather publish shorter pieces that make their points and move on. There is a change of thinking that has happened about all this. It has been taking place for a few years now. The Joint Statement reflects that change, as do the policies of the journals mentioned above. A lot of deliberation went into that announcement. It isn’t easy to coordinate between the leading journals of a dozen of the leading law schools. That they were able to come together on this issue should be some indication of how pervasive the problem is and how resolute the journal editors are in meeting it.

January 10, 2005

Don't Blame the Law Students [redux]: A Reply to Hunter

Posted by Micah

Dan Hunter recently posted a paper called Walled Gardens on SSRN. Although the paper has received some attention from legal bloggers (here and here), it’s been all praise so far. Hunter argues that law reviews should allow open access to the papers they publish. And what legal academic could disagree with that? As Hunter says, academics are interested in the widest possible dissemination of their ideas.1 And free or open access certainly promotes the value of spreading information and ideas.

Hunter’s basic position is that law reviews should permit and indeed encourage authors to self-publish. Journals should also make articles available on-line for free consumption. I’m generally sympathetic to this position. I’ve only published one paper (forgive the shameless plug), but it’s not easy to get access to it. It’d certainly be nice if everyone could read it for free. But I’ve also spent most of the last year working for a law review, and, from the perspective of a student editor, I think Hunter’s criticisms are somewhat harsh. I also think he underestimates the long-term costs of doing business—even on-line. What follows is a first pass at Hunter’s argument. I put these thoughts forward tentatively, and I hope they’ll be received that way. I think Hunter’s paper is important and provocative. It raises lots of interesting questions about what (legal) academic publishing should be like, especially in a paper-free world. But those questions appear to me far more open than Hunter sometimes suggests.

First, to show that there is, in fact, a problem with restrictive access in law review publishing, Hunter presents some survey evidence to suggest that law reviews don’t already publish their articles on-line or allow professors to post on SSRN. From what I’ve learned about law reviews over the last two years, I’m generally skeptical about Hunter’s survey. As new as these issues are, there is likely to be considerable flux in the positions of many, if not most, law reviews. First, although it is celebrating its tenth anniversary, SSRN has only recently (within the last couple years) come into its own as the primary means of self-publishing in legal academia. Law students—and indeed the faculty who teach them—are just beginning to appreciate its importance. In this regard, Hunter’s article may help to raise awareness, which indeed is its stated purpose. Second, Hunter presents little evidence indicating that top journals pose a serious obstacle to posting on SSRN. One would expect a much larger outcry from faculty if the problem were as serious as Hunter says it is. But I suspect that, at this point, most reviews don’t object much, if at all, to authors who want to self-publish. (And I’ve never heard of a law review asking a professor to remove an article from his or her own website—although I’d be interested to know if there are such cases.) Third, as for publishing their own material on-line, many journals simply haven’t devoted the resources to on-line publishing. I would venture that this is a matter of institutional neglect rather than an effort to stymie access. It’s not that student editors are trying to restrict access to articles (although some might). They just don’t have the money, time, or technical ability to meet demands of on-line publishing and archiving. Where Hunter sees a malicious network of greedy commercial databases and complicit law reviews, my hunch—and that’s all it is right now—is that law reviews simply lag behind in technological development. After all, most law reviews are student organizations with very little institutional memory, low funds, and enormous paper-publishing responsibilities. As professional as their product may be, these are not paid organizations. (So it might help to lighten up on the criticism some.) Many reviews are facing the issue of open access for the first time, and I have little doubt that they will make important adjustments. But professors and the academic community still expect a professional hard copy journal—and on time.

Here I might note that, for the most part, this generation of students could care less whether something appears in print. We’d happily move to a paper-free world.2 But the fact is that many, if not most, legal academics are still unwilling to accept offers from journals that publish exclusively on-line. This will no doubt change in the near future. But, as I argued in response to Posner, the criticisms here are somewhat misdirected. After repeatedly informing us about his anger toward the California Law Review, Hunter offers some polite suggestions about what legal academics and law schools should do to make open access possible. Academics shouldn’t sign copyright agreements that are restrictive; they should post their papers on-line; and “deans, faculty and law librarians should begin discussing open access amongst themselves and with their law review.” Since the bulk of costs to law reviews stems from their printing responsibilities, I find it rather strange that Hunter isn’t also angry with his fellow academics about their unwillingness to publish on-line and only on-line. Certainly, this is one of the greatest obstacles to the Revolution. Instead of framing the issue almost entirely in terms of what law reviews must do, it might help to start by asking legal academics to give up the paper-fetish. Here’s a start: no more off-prints.

Up to this point, I haven’t really addressed Hunter’s main arguments for open access legal publishing. I’ve just tried to put things in a slightly different perspective. Insofar as Hunter is arguing that law reviews should permit authors to post their work on SSRN, I think his article will probably be obsolete before it is published. But the long-term effects of an open access policy, and its sustainability, are a different matter. As Hunter notes, the major objection from law reviews is that open access destroys their source of funding from commercial databases and subscriptions. Hunter has two responses:

1. There is no substitution effect from open access publishing. SSRN is not in competition with commercial databases. The fact that people download from SSRN doesn’t pose a threat to the interests of commercial databases, and so it doesn’t pose a threat to the law reviews that rely on those databases for revenue. So law reviews will not lose income by allowing open access. If law reviews think there is some danger here in loss of funding, it is only because they have been duped by Lexis or Westlaw.

2. Even if law reviews lose income, law schools or authors should pay the relatively small costs of open access publishing. Public access to scholarship is sufficiently valuable, and sufficiently in line with other interests (mainly reputational) of law schools and law reviews, that they should foot the bill if it turns out that open access diminishes commercial returns.

In short, law reviews won’t lose any money, and, even if they do, law schools should pay the costs of publication. I’d like to think that both of these claims are true, but I’m not fully convinced by Hunter’s arguments for them.

1. Perhaps law reviews will continue to make money from commercial databases because of low or non-existent substitution effects. But as search technologies improve, it is also likely that competition from open access publishing will increase. I’m also not convinced that some level of competition isn’t already in place. I would guess that most hits on SSRN for legal papers are by law professors, law students, or other academics and bloggers. Those sufficiently sophisticated to access SSRN also probably have relatively easy access to commercial databases (though I might be wrong about that). They use SSRN instead because it’s more convenient, because they saw the paper there first, or because they’ve linked to the paper from a source on-line. Furthermore, people who read papers on SSRN don’t usually re-read them in their canonical form. So I think, in the long term, there is real competition from SSRN. It may not be serious now, but I doubt Lexis and Westlaw have misunderstood the threat.

2. Hunter argues that even if open access has costs, law schools should pay them. Given that law professors have the most to gain from publication, one might think that they should pay for publication. One can imagine an argument like the following: the salaries of law professors at top schools are vastly disproportionate to those of other academics in other non-professional disciplines. Even considering the costs of education, law professors have significantly greater incomes over their tenures. They can reasonably be expected to pay for their share of publication costs. I’m not sure Hunter would disagree with this proposal. In exchange for law reviews granting open access, law faculties should enter into long-term contracts to guarantee their funding. But is this a good idea? Is it a good idea for those being published to control the purse strings of those doing the publishing? Since law reviews aren’t peer reviewed, I think financial independence is important. But even where peer review exists, there ought to be some level of insulation.

Another point: I would expect libertarians to raise an objection here. In effect, Hunter is proposing that legal institutions pay for publication costs, if there are any. For public institutions, this means the taxpayer gets the bill (or, I suppose, funding comes out of the salary of the faculty). The question becomes: should legal academic publishing be publicly financed for the purpose of providing open access? I don’t have any philosophical problems with answering “yes.” But I’m not sure it’s such an easy case for libertarians.

Hunter’s likely response would be that taxpayers already pay for access because they pay for subscriptions to journals. If access were free, then they wouldn’t have to pay for (on-line) subscriptions. Assume, for the moment, that without such subscriptions, law reviews also wouldn’t make any money. Law schools would have to pay the entire costs of publication. This situation seems open to free-riding. Everyone would have access, but only those who publish will pay. Maybe reputational costs will drive law schools to subsidize journals, but I’m not sure they’ll fund the diversity of journals that currently exists. That might not be a bad thing. Some people think there are currently too many law journals. But Hunter favors the widest possible dissemination of ideas, and a reduction in the number and diversity of journals should be unwelcome news. As things stand, many top-tier journals are financially self-sufficient. This makes it possible for law schools to fund numerous other journals. If all law schools had to fund all journals, some of those schools would probably consolidate their efforts to produce a quality flagship journal. They might decide that less prestigious journals simply aren’t worth the money. This would produce an overall reduction in published scholarship. This is all highly speculative, but I’m not sure it’s any more speculative than Hunter’s claims about what the world would be like under open access. If we assume that law reviews remain a significant part of publishing in legal academia, we need to know more about the actual costs of publication—even in a paper-free world. And it would help to begin theorizing in non-ideal terms about what it would be like for law schools to have nearly complete control over the financing of the institutions that publish the ideas they produce.

1 Actually, I’m not sure it’s true that, as Hunter says, “Scholars seek the widest possible distribution and impact of scholarly work” (p. 7). Or at least that is not all that they seek. Another plausible hypothesis is that legal academics are interested in the widest possible dissemination of their ideas to those who (they think) are in a position to appreciate their ideas and (perhaps?) enhance their reputations. If you don’t think this is the case, consider X, who is faced with the following publishing opportunity: (a) X can publish with journal J1 which has the highest possible reputational value but a significantly lower readership, or X can publish with journal J2, which has medium or low reputation value but significantly larger readership. Is it obvious X chooses option (b)? Maybe reputational value and size of readership track each other, but that is not always the case. It won’t be where reputation is based on demonstrating technical expertise to a small audience of elite scholars. (Consider the fact that law professors are much more likely to write law review articles that span hundreds of pages, rather than books or popular articles that might disseminate their most important ideas to much larger audiences.)

2 See, for example, the Virginia Journal of Law & Technology (VJOLT), which publishes exclusively on-line and is a great example of open access publishing. It’s also worth noting that VJOLT is supported by authors and readers who are more likely to see the value of publishing exclusively on-line. In that sense, they’re in the vanguard of legal publishing. It would be interesting to know more about how their funding is structured.

December 17, 2004

"The real threat the the life of the nation"

Posted by Chris

From Lord Hoffmann’s remarks in the judgement by the House of Lords (PDF, 102 pages) that the British government is wrong to detain foreign terrorist suspects indefinitely without trial :

This is a nation which has been tested in adversity, which has survived physical destruction and catastrophic loss of life. I do not underestimate the ability of fanatical groups of terrorists to kill and destroy, but they do not threaten the life of the nation. Whether we would survive Hitler hung in the balance, but there is no doubt that we shall survive Al-Qaeda. The Spanish people have not said that what happened in Madrid, hideous crime as it was, threatened the life of their nation. Their legendary pride would not allow it. Terrorist violence, serious as it is, does not threaten our institutions of government or our existence as a civil community….

[S]uch a power in any form is not compatible with our constitution. The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve. It is for Parliament to decide whether to give the terrorists such a victory.

November 25, 2004

Voting dogs

Posted by Chris

Via Butterflies & Wheels I came across the following ludicrous and offensive argument against gay marriage from Keith Burgess-Jackson, the self-styled AnalPhilosopher :

I have said in this blog many times that the very idea of homosexual marriage is incoherent, which is why I put the word “marriage” in quotation marks. I do the same for dog “voting.” If we took our dogs to the polls and got them to push levers with their paws, they would not be voting. They would be going through the motions of voting. It would be a charade. Voting is not made for dogs. They lack the capacity to participate in the institution. The same is true of homosexuals and marriage.

Richard Chappell at Philosophy etc says nearly all that needs to be said about Burgess-Jackson’s “argument”, so I wouldn’t even have bothered mentioning it if I hadn’t been in conversation on Tuesday with the LSE’s Christian List whose article “Democracy in Animal Groups: A Political Science Perspective” is forthcoming in Trends in Ecology and Evolution . List draws on Condorcet’s jury theorem (previously discussed on CT here ) to shed more light on research by Conradt and Roper in their paper Group decision-making in animals , from Nature 421 (155—8) in 2003. Conradt and Roper have this to say about animal voting:

Many authors have assumed despotism without testing, because the feasibility of democracy, which requires the ability to vote and to count votes, is not immediately obvious in non-humans. However, empirical examples of ‘voting’ behaviours include the use of specific body postures, ritualized movements, and specific vocalizations, whereas ‘counting of votes’ includes adding-up to a majority of cast votes, integration of voting signals until an intensity threshold is reached, and averaging over all votes. Thus, democracy may exist in a range of taxa and does not require advanced cognitive capacity.

[Tiresome, humourless and literal-minded quasi-Wittgensteinian comments, putting inverted commas around “voting” etc. are hereby pre-emptively banned from the comments thread.]

November 19, 2004

Contempt

Posted by John Quiggin
There’s a story I read somewhere of a judge interrupting an unsatisfactory witness and asking
Are you trying to flaunt your contempt for this court ?
to which the witness replies
Oh, no Your Honour! I’m trying to conceal it.
I was reminded of the story by this NYT editorial, which accuses a Rhode Island judge of abusing the contempt power to pursue a vindictive campaign against a reporter, Jim Taricani, but then fails to name the judge in question. A one-minute Google search reveals that the judge in question is Chief U.S. District Judge Ernest Torres Given that it was defending the right of reporters to publish the truth without fear or favor, what exactly did the NYT have in mind here?

October 25, 2004

Don't Blame the Law Students: A Reply to Posner

Posted by Micah

In his recent article Against the Law Reviews, Judge Richard Posner repeats a number of long-standing criticisms directed against student-edited law journals. There isn’t really anything in his article that he hasn’t said before in other places.1 Posner thinks students choose the wrong pieces, do a bad job of editing them, and generally diminish the quality of legal scholarship. He thinks the system of legal publishing should be reformed by placing law journals under the control of faculty. Although Posner is certainly right to question the lack of peer review in legal academia, he (1) puts the blame for the current system in the wrong place, (2) underestimates the ability of students to do quality work, (3) ignores the opportunity costs to law students of working on journals, and (4) proposes only meager reform.

Before continuing, a couple disclaimers: first, although I currently work for, and indeed help to manage, a student-edited law review, the views expressed are solely my own. I do not pretend to represent the views of my law review or any of its members.

Second, in addition to being an editor on a law review, I am also part of what Posner calls “the rarefied set of Ph.D.s who go to law school for a J.D.” (I don’t pretend to speak for any of them either.) I don’t think having a doctorate gives me any special expertise in my capacity as an editor at the journal. But it probably explains my strong sympathy for Posner’s claim that legal academia should move to a peer review system.

I think most reflective law students recognize the advantages of a peer review system and understand the many absurdities of the system in which they work. But they do their best, and they deserve some recognition for trying to improve legal scholarship. The students who inherit this system are under a lot of pressure to participate in it if they want to remain competitive. They are only in positions of power on law reviews for a very short time, and, once they enter those positions, their work load is tremendous. They are also understandably concerned about upholding the reputations of their respective institutions and the law schools with which they are affiliated. From my experience, students perform their jobs admirably. Nothing I say here should put their commitment to quality scholarship in question.

With those disclaimers, here are some thoughts on Posner’s criticisms:

1. Posner spends too much time blaming law students for not being educated or experienced enough to recognize good articles and improve them. He should have spent his allotted space blaming tenured faculty for not doing enough to change the current system. Towards the end of his article, Posner says, “One would like to see the law schools ‘take back’ their law reviews, assigning editorial responsibilities to members of the faculty.” That sentence is conveniently vague. The “law schools” should take back their law reviews? Who, exactly, are the law schools? Posner must know that the only people with power to implement reform are tenured faculty. But that won’t happen because the inertia behind the current system of student-edited reviews is ultimately based on the interests of the faculty. Rather than place the blame where it lies, Posner suggests that law students and law firms are at fault. Both value the current system because it provides a signaling mechanism for students and their employers. But if law reviews didn’t exist, students would find other ways to signal their competitiveness. The dean’s list would matter more, or moot court, or public service, or work in various legal clinics—which much more closely approximate work at most law firms than does editing a law review.

Consider another example of Posner’s blame-shifting. Posner faults students for the ridiculous length of legal articles. But most articles are submitted at lengths well over 25,000 and frequently over 40,000 words. Authors sometimes submit articles that would otherwise be considered full length book manuscripts at 80,000 words or send “two-part” articles that are easily the length of an average monograph. Posner complains that student editors add unnecessary footnotes to articles. But when a submission is already 40,000 words long, and often badly researched or cited (even by the most minimal standards), what’s another 5000 words below the line? The article was already 30,000 words too long. And if the piece really ought to be 50,000 words long, then it’s time to start working on a book.

It’s true that law professors submit long articles in part because law reviews will publish them. But law reviews publish short articles, too. Some law reviews have started to institute word caps, but many law professors do what they can to avoid this and will negotiate at length with editors for more words. Faculty, especially those without tenure, frequently argue that they need more space to incorporate the many suggestions they receive while work-shopping their articles. They have strong incentives to expand the length of their articles. Having invested so much in a 40,000 word manuscript, why not add 10-20,000 words for the sake of completeness? But consider what would happen if tenure committees announced that they were no longer interested in reading articles over, say, 10-15,000 words. The average length of law review articles would drop dramatically. Moreover, such a move might foster a change in the norms of legal academic publishing. What counts as a good “tenure” article has become the standard for all law review articles: 70 single-spaced pages and 250-350 footnotes. That is the target. Change the tenure standard, and everything else changes with it.

2. Posner overstates the decline in quality that results from student editing. Good quality material is being published. His problem is that everything else gets published, too. But, at worst, this creates a large efficiency cost. I think Posner would be hard pressed to give examples of good articles—i.e., those that might otherwise have been accepted by peer reviewed journals—that (a) didn’t get published, or (b) were made worse by the process. Most authors simply refuse to make changes they think will diminish the quality of an article. After all, what real leverage do student editors have? At worst, students don’t improve articles. Still, many law professors will tell you that, at top tier schools, editors do a decent job of providing comments. They spend far more time thinking about arguments than many peer review referees, and the time tradeoff often translates into quality comments. That isn’t always true, but, then, it isn’t always true that peer review comments are helpful, either.

3. Posner is so obsessed with the academic costs of the law review system that he doesn’t consider the opportunity costs to students. He complains that, “[t]o student editors, the cost of an author’s time is zero,” but does Posner value the time of students? An average top-tier law review has a staff of about 80 students. Instead of engaging in pro bono work or their own research, those students spend—and this is a very conservative estimate—7000 hours per year editing the work of law professors. Now multiply that across the dozens, if not hundreds, of law journals out there. Imagine if all that time were spent building houses for Habitat for Humanity (or, for lawyerly types, Buildable Hours), or in clinical environments learning to practice law, or, for those so inclined, in graduate-level legal research.2 There are great opportunity costs, and, if we’re assigning blame, then the faculties and administrations of law schools should accept their fair share.

4. Finally, consider Posner’s proposal for reform:

Students would still work and write for the reviews, but they would do so under faculty supervision. Their care in citation checking would be valued by the authors, but the tendency toward poor judgment and thoughtless impositions on authors would be held in check. Doubtless it is too much to hope for such a reform.

Posner’s idea is that students will still do all the thankless grunt work of researching for professors. They just won’t have any control over it anymore. But I assume this new system would continue to confer prestige on top students. Otherwise, few of them—perhaps (to indulge in a bit of Posner’s cynicism) only those who need recommendations to continue as legal academics—would do the work. Now, one might argue that Posner is simply recommending what currently holds in other academic disciplines: graduate students do research for their professors. But there are large differences between most graduate students (especially Ph.D students) and most law students at top-tier schools. First, law students pay nearly $50,000 a year to go to school. That’s a lot of money to spend researching for professors you don’t even know. Second, they have much less time in school than graduate students. Arguably, that time could be much better spent learning how to be a good lawyer, or working in one’s community, which, in turn, advances the legal profession’s commitment to public service.

Posner’s suggestion of reforming law reviews into 80-person research staffs for professors is a meager proposal for reform. Why not go farther? Just abolish law reviews altogether in favor of a peer review system. Assign prestige to students who do excellent work in the classroom, in clinics, in public service, or in their own research. Imagine this: professors do their own research, check their own cites—or pay people to do it for them. As Posner says, “Doubtless it is too much to hope for such a reform.”

Posner doesn’t actually give any plausible suggestions for realistic reform. He just thinks faculty should take over. If that’s unrealistic, and he obviously thinks it is, then maybe he could have suggested something more constructive. If student-edited law reviews are here to stay, then our energies are better focused on more modest changes to the current system. Consider five possibilities: (1) articles should be limited, even if arbitrarily, to no more than 10-15,000 words, including footnotes. (Anything longer makes quality editing difficult, even for teams of well-intentioned students. Who volunteers to edit a 45,000 word article for a total stranger?); (2) faculties should volunteer to review articles (and to their credit, all the faculty I have worked with have been very supportive in reviewing submissions); (3) law reviews should streamline their editing policies (e.g., by eliminating silly requirements for parentheticals, as Posner suggests), (4) law reviews should move to blind review and (5) perhaps even to single-submission policies. These last two changes would be difficult to accomplish because of collective action problems. They would also delay publication by months, but both would improve the overall quality of publications. These sorts of reforms, some of which are being implemented piecemeal by different journals, are within the realm of possibility. Faculty can encourage them, but not by telling students that they aren’t cut out for the work they do. That doesn’t move the ball forward. It just makes good students feel bad about doing jobs that everyone—including the academy, the bar and the bench—expects them to do.

Calls for abandoning law reviews are counterproductive unless faculty are committed to occupying the field. It may be lamentable that law school faculties and administrations are unwilling to confront the large scale collective action problems they face in the current law review system. No top tier school is willing to dismantle its law journal(s) for fear of disadvantaging its students, upsetting alumni, and eliminating all that free labor. But there are other options. Legal academics can establish peer-review journals in areas where they don’t already exist (something which Posner has done quite successfully), or they can work with students to make much needed changes. Given his view that student-edited law journals are going to be around for the foreseeable future—a prediction about which I am actually far more pessimistic—it is unfortunate, and somewhat ironic, that Posner ignores more pragmatic prospects for reform.

1 How could I resist? See Richard Posner, The Future of the Student-Edited Law Review, 47 Stanford L. Rev. 1131 (1995).

2 Brian Leiter seems to agree. Though he doesn’t say much about where changes are supposed to come from, or who is repsonsible for all this.

September 02, 2004

Copyright question

Posted by John Holbo

The Republicans are dismayingly insane. Moving right along, I’m wondering whether, when copyright gets extended - as it did with Bono - works get taken out of the public domain and made private IP. That is, when copyright went from life + 50 to life + 70 some public domain works that had passed the 50 mark, but not the 70 mark, ceased to be public domain? Has this created legal trouble or controversy? Suppose I made (and copyrighted) an edition of a recently liberated public domain work that, when the hammer of copyright extension fell, ceased to be such. Would my edition, legally produced during a window of opportunity, cease to be legal? Never mind whether I am a retroactive pirate - a time bandit, if you will. Can I continue to publish my work because I produced and copyrighted it during a window of opportunity?

In short, does Congress have the right not just to extend copyright but to re-enclose the public domain? And if Congress has the right to re-enclose the public domain, is there any limit to that power (apart from the fact that it could only reassign rights to the distant descendents of authors and creators - you know, so as to foster science and the useful arts.)

UPDATE: Oh, the wikipedia tells me that no expired copyrights were reinstated. This does imply that the life + 70 term is not strictly definitive. There are works that fail that test that are actually public domain? So the date of Bono - 1998 (?) - becomes quite crucial for calculating whether a given work is public domain?

2nd UPDATE: This recent decision (June 19, 2004), “Luck’s Music Library, Inc. v. Ashcroft” (PDF) (via this page), seems to establish Congress’s power to remove works from public domain retroactively. Although I guess Bono did not actually do anything of the sort. Interesting.

June 10, 2004

Suprema Lex

Posted by Henry

Jack Balkin on the torture memo.

The stench of corruption permeates the pages of this report. Legal minds, blinded by ideology, and seduced by power, have willingly done the Administration’s dirtiest work— apologizing for torture and justifying violations of the most basic human rights. They have mangled the law and distorted the Constitution, manipulating legal sources to maximize power and minimize accountability. It is the sort of legal reasoning that twists law to destroy the Rule of Law. It is the sort of legal reasoning that brings shame on our nation and our people. It is the sort of legal reasoning that makes me ashamed to be a lawyer.

As Jim Henley says, what is troubling is not only the memo’s attempt to provide legal cover for torturers, but the arguments that it uses to back up its claims. The memo argues that the Constitution grants the President “complete discretion” to determine how enemy combatants should be questioned, without Congressional oversight, and that “laws that seek to prevent the President from gaining the intelligence he believes necessary to prevent attacks on the United States” are unconstitutional. In short, the President can do whatever he sees fit to protect national security - his powers are unbounded on issues that touch on war-making. This fits into a more general line of administration argument - as witness the US administration’s claim that it can unilaterally designate a US citizen as an “enemy combatant” and deny him basic rights.

There’s a precedent for this kind of argument, and it’s not a very reputable one - Carl Schmitt’s theory of emergency powers. Schmitt was a notorious skeptic of parliamentary democracy; Oren Gross has a nice short article that lays out his views. Schmitt argues that war - the existence of peril to the state - provides an exception that allows for the law to be side-stepped by politics. In his later work, he suggests that it is the sovereign who decides not only how to deal with an exception, but also what an exception is.

The precise details of an emergency cannot be anticipated, nor can one spell out what may take place in such a case … The most guidance the constitution can provide is to indicate who can act in such a case. If such action is not subject to controls, if it is not hampered in some way by checks and balances, as is the case in a liberal constitution, then it is clear who the sovereign is. He decides whether there is an extreme emergency as well as what must be done to eliminate it.

Emergency powers, under this interpretation, aren’t limited by the existing constitutional order - instead, the sovereign may unilaterally decide what is, or is not necessary, given the emergency. In Gross’s exegesis of Schmitt.

The result is that the sovereign is not only the one who decides on the exception, but also the one who definitely decides whether the normal situation actually exists. It is only the sovereign dictator who can authoritatively distinguish the exception from the normal and decide whether to take state action. At the same time, Schmitt considers sovereignty and the powers attached to it as indivisible. Thus, one cannot say that only part of the sovereign’s powers are operational at any given moment. Subject to the personal decision of the sovereign dictator, the sovereign’s unlimited powers may be put to use at any time. No external, objective limitations may be imposed on the exercise of these powers. Hence, should the sovereign dictator so desire, his unlimited powers - originally designed to apply to the exceptional case - may come to control the norm, indeed be the norm.

Schmitt states baldly the underlying argument of the torture memo and indeed of the administration’s contentions regarding Padilla - that in cases where the security of the state is threatened, the sovereign should have unlimited discretion in his efforts to defend the public interest. This is a tough argument to make in a constitutional system like that of the US, which is based on checks and balances. The drafters of the torture memo square this circle by arguing that these checks and balances don’t apply to war-making. The problem is that the US administration is claiming not only that it can deviate from the law, but that it can also decide when such deviations are appropriate without reference to anyone else. Schmitt draws this argument to its logical conclusion - these powers effectively allow the sovereign to remake the constitutional order as he sees fit to defend national security. Even apart from the specific issue at hand (torture), this should give pause to defenders of the current administration. The notion that the President has complete discretion to break laws in his role as Commander in Chief is a fundamental and direct challenge to basic democratic principles and to the notion of limited government. This should not only be highly offensive to left-wingers, but to any libertarians who are worth their salt.

May 10, 2004

Time to repeal Godwin's Law ?

Posted by John Quiggin
What kind of America-hating lefty would seize on an isolated incident like this?
Three weeks ago in Highland Park, Texas, Mrs Dolly Kelton was arrested and handcuffed for failing to pay a traffic ticket after her car was stopped for having an expired registration. I doubt that Mrs Kelton was a threat to the safety of the arresting officer. She is 97 years old.
then follow up with this ?
We handcuff her… because some Western societies, and America in particular, use these procedures as a way of softening up the accused by humiliation and to underline the power of the authorities.
What kind of slippery-slope argument do you think is going to follow?

The answer is not what (I hope) you thought.

The quotes are from Barbara Amiel in the Telegraph and the lesson she draws that since it’s acceptable to terrify and humiliate old ladies accused of minor traffic offences1, it must be even more acceptable to inflict any kind of torture on Iraqis accused of being “murderous guerillas”, (or perhaps of knowing, or being related to, or being inhabitants of the same country as, such guerillas).

Faced with this kind of viewpoint being put forward in a major newspaper, it’s hard to see how Godwin’s Law can stay in place for long. Certainly I can’t think of any analysis of Amiel’s argument that would not lead rapidly to a violation.

1 Note the implicit assumption that, if it’s done by American law authorities, it must be acceptable.

May 07, 2004

The cost of legislation

Posted by Chris

The UK’s new Sexual Offences Act (2003) came into force this week. This is the law which criminalizes whole swathes of normal behaviour (such as teenagers kissing ). But we’re not supposed to worry about that because the Home Office will issue guidance to the Crown Prosecution Service not to proceed in such cases (and to block any private prosecutions). There’s something disturbing about legislators legislating with the prior intention of issuing guidance not to apply the law, and there’s a lot disturbing about the content. But that isn’t the only remarkable fact. I read the following in a rather good piece in the Independent by John Spencer, Professor of Law at Cambridge:

despite conducting “extensive consultations” and a formal review that consumed £17,500 of public money on research and £31,025 on conferences, the Home Office devised the new law without troubling to obtain or consider any solid information about what is normal in the sex lives of children and young persons.

The review document also contains the following disarming statement: “We also tried to test the opinion of some young people and, at a fairly late stage in the review, had discussions with some Year 10 and Year 11 pupils (aged between 14 and 16) at one school (sadly lack of time meant we could not undertake a wider consultation).”

Despite Spencer’s “despite”, the figure of £48,525 means the Home Office spent nothing on research into this important area. And they only had time to interview a few kids in one school! Unbelievable.

May 05, 2004

Send Lawyers, Guns and Philosophers

Posted by Brian

While all the epistemologists were safely tucked away in Moscow, Massachusetts tried to slip some unreasonable provisions into its draft death penalty statutes.

One of the major recommendations is raising the bar for a death penalty sentence from the normal legal standard of guilt “beyond a reasonable doubt” to a finding of “no doubt about the defendant’s guilt.” (New York Times)

Normally when you use an unqualified phrase, you can be understood as making a tacitly qualified claim. When I say “There are no students in X’s seminar” I might be saying that there are no enrolled students, or there are no Brown students, or there are no undergraduate students, or some combination of these, depending on the context. (I’ll bracket here philosophical concerns about just how this tacit qualifying works. Suffice to say that everyone thinks that somehow, at some level, it does.)

But when you deliberately omit a qualifying phrase, it is clear you mean to include things that don’t satisfy the qualifier. E.g.

A: Are there any enrolled students in X’s seminar?
B: There are no students in X’s seminar.

In this case, B’s claim clearly means there are no students, enrolled or not enrolled, in X’s seminar. So when Massachusetts deliberately drops the qualifier ‘reasonable’ from the standards, they clearly mean to say that the standard of guilt is that there are no doubts, reasonable or unreasonable, about the defendent’s guilt.

And that’s where the philosophers come in. We may not have many practical uses, but we can come up with unreasonable doubts at the drop of a hat. Are you sure the defendent intentionally killed the victim? Well, are you sure there are such things as intentions at all? Indeed, are you sure that other people exist? Are you sure you’re not a brain in a vat? Or being deceived by an evil demon? On the most plausible young earth creationist story I know, the earth was created as is when I woke up this morning, which would seem to tell against the guilt of all those accused of crimes before today.

If prosecutors have to rule out these unreasonable doubts before getting a capital conviction, I don’t like their chances. The good news is that there are philosophers for hire here. I forsee three kinds of business opportunities.

The first involves being available to be an expert witness to present these unreasonable doubts. Unfortunately I don’t think there will be much money in this, since practically anyone who has taken epistemology 101 could do it, so the marginal wage here might be low.

The second involves being an expert for the prosecution, arguing that we can resolve these doubts. Perhaps we have direct awareness of the external world, and of the guilt of the defendant. Perhaps our words rule out the possibility that the defendent is innocent via some semantic externalist argument or other. Perhaps the brain in a vat hypothesis is too lacking in style to be taken seriously. There are plenty of options here, and there’s certainly an advantage for skilled philosophers in this profession, so the marginal wage might be a little higher.

The third involves coming up with even newer sceptical doubts that are immune to the epistemological strategies of the second kind of philosopher. Here’s I think where the real money could be. Because this job involves not only a certain level of philosophical ability, but also an overly active imagination, an unhealthy disrespect for the philosophical achievements of the last century (particularly in regard to responses to scepticism) and a willingness to get on stage and talk with a straight face about sceptical possibilities so outlandish that even Descartes would have blushed. That’s a rare combination of ‘skills’, if that’s the right word to use, but I think it’s probably a job I can manage. And I’m prepared to work for as little as $500 per hour, plus expenses. Any defence lawyers looking for philosophical hires should leave a note in the comments section.

April 29, 2004

Pitcairn

Posted by Chris

The ever-fascinating Head Heeb summarizes the Pitcairn case (full judgement here in PDF ). Mutiny, treason, adventure, sex, Lord Haw-Haw and legal positivism: it’s all there, along with the European Convention on Human Rights. Enjoy.

March 17, 2004

2 Bed, 1 Bath, Appalling Vista, £3,000/year

Posted by Kieran

Can someone in the UK confirm the accuracy of this report? (Via Jim Henley.)

WHAT do you give someone who’s been proved innocent after spending the best part of their life behind bars, wrongfully convicted of a crime they didn’t commit? An apology, maybe? Counselling? Champagne? Compensation? Well, if you’re David Blunkett, the Labour Home Secretary, the choice is simple: you give them a big, fat bill for the cost of board and lodgings for the time they spent freeloading at Her Majesty’s Pleasure in British prisons. On Tuesday, Blunkett will fight in the Royal Courts of Justice in London for the right to charge victims of miscarriages of justice more than £3000 for every year they spent in jail while wrongly convicted … spokesmen in the Home Office say it’s a completely “reasonable course of action” as the innocent men and women would have spent the money anyway on food and lodgings if they weren’t in prison. The government deems the claw-back ‘Saved Living Expenses’.

Is this a step in the calculation of compensation money prior to paying it to the victims, or an attempt to grab some of that money back after the fact? (Is that distinction even relevant?) The sang froid of the British Legal Establishment never ceases to amaze. Maybe they could take it out of Lord Denning’s estate. He said he wanted to be remembered in good works.

February 27, 2004

The abuse/mention distinction

Posted by John Holbo

When philosophy of language attacks!

February 12, 2004

"Digital Cops in a Virtual Environment"

Posted by Eszter

Check out this conference on cybercrime and digital law enforcement to be held at the Yale Law School next month. It’s being organized by folks at the Information Society Project and features a list of interesting speakers from related fields. Some of them are frequent bloggers (Balkinization, Discourse.net) so hopefully we’ll get to read about it as it happens. It’s not too late to get a spot on a panel (or a publication in a related special issue of IJCLP and YJOLT) thanks to a paper-competition [pdf] they are having.

February 09, 2004

Gearty on Hutton

Posted by Chris

Human rights barrister Conor Gearty stole the show at the recent Oxford Political Thought Conference, with a brilliant, witty and well-informed speech. He has an article on Hutton in the new London Review of Books. His view doesn’t exactly coincide with my own, but it is a fascinating look at the changing public reputation of judges, their relations with the media, why this judge and not that one gets picked for an inquiry. It is hard to decide on the most quotable bit, so this will have to do:

One of the more mystifying aspects of the Hutton process was the media’s treatment of Hutton himself, before the publication of his report, as an Olympian demigod, hovering above the fray, fastidious in his search for truth and justice. His appearance and extraordinary accent have helped; the media love caricature, and here was a judge who seemed to have walked into the limelight directly from the 1950s. But underpinning the blind trust that was placed in him, and which has now rebounded so badly, was a more general enthusiasm for the judiciary which is all the more remarkable for having been so recently acquired and for being (as far as the commitment to media freedom is concerned) largely without foundation.

It is not so long ago that judges were the most maligned group in the entire body politic. Their naked partisanship during the miners’ strike, the Spycatcher debacle, and then the succession of miscarriage of justice cases of the late 1980s and early 1990s had established the senior judiciary in the eyes of most people (and particularly in the eyes of the media) as inclined to authoritarianism, unaccountable in their exercise of power and entirely out of touch. The refusal of judges to give any interviews, under cover of antiquated ‘rules’ which a long forgotten lord chancellor had invented, compounded the sense that they were all, or almost all, malevolent recluses.

January 28, 2004

Drugs and Deterrence

Posted by Kieran

Mark Kleiman notes that the Arrestee Drug Abuse Monitoring (ADAM) program has been killed. This was a useful dataset on patterns of drug-use amongst criminals. In his post, Mark quotes John Coleman, a former bigwig at the DEA, who says

The importance of ADAM always has been its stark statistics showing the large percentage of criminals high on drugs and alcohol at the time of their crimes. ADAM surveyed arrested felons and then drug-tested them to confirm their statements about drug use. It was all voluntary but showed, nonetheless, extraordinary levels in some cases of drug use by criminals.

This confirms my non-expert belief that there’s a great deal of evidence telling us that a big chunk of violent crime happens when the perpetrators have been using alcohol or some other drug. People under the influence of drugs tend to have a diminished capacity for rational decision-making. This makes me skeptical about, e.g., fiendishly clever analyses of the rational deterrent effect of prison sentences on crime rates. It’s not that there’s anything wrong with the detail of such analyses per se, it’s that they throw away reliable knowledge before they begin. Ignoring information of the sort that ADAM provides may make an elegant theory of crime more tractable, but it makes a true theory of crime less likely.

December 18, 2003

Soham

Posted by Chris

I’ve been scanning the press coverage of the Britain’s Soham murder trial to see whether anyone has asked a very obvious question. So far, commentary seems to be concentrating on the failure — if it was a failure — of the Humberside police to pass on details of the ten allegations of sex crimes that had been made against Ian Huntley. (Anyone who has had experience of Britain’s Data Protection Act will sympathise with the police when they declare themselves confused about which records they were allowed to retain, and how much they were allowed to disclose.) But the dilemma of policy and principle is obvious: on the one hand there was information that could have prevented the murders; on the other hand, it seems wrong to allow mere allegations that have not been tested to be a barrier to someone getting a job. The question nobody seems to be asking, though, is why didn’t the earlier allegations go anywhere?

And there seems a worrying possible answer to that question. In today’s target culture, neither the police nor the Crown Prosecution Service will proceed with an case unless they think they stand a very good chance of success. To risk failure is to risk bad statistical outcomes. In other words, maybe Huntley was able to continue his career of rape and under-age sex because the threshold at which the authorities will now initiate a prosecution is set too high.

December 07, 2003

Punishment theory

Posted by Chris

Welcome to Punishment Theory , a new blog on philosophy and the criminal law featuring some eminent scholars.

November 05, 2003

Too curmudgeonly

Posted by Micah

In a series of posts (here and here) and comments, the Curmudgeonly Clerk has attacked Dahlia Lithwick, who writes Supreme Court commentary at Slate. In particular, the Clerk doesn’t like this column, in which Lithwick tries to explain why Justice Scalia, unlike many other judges and justices, frequently speaks out about the most controversial issues of the day. Suffice it to say, the Clerk doesn’t like Lithwick’s diagnosis. In fact, he disagrees with it so much that he’s decided Lithwick no longer deserves to be treated civilly.

In particular, the Clerk is taking flak for this comment:

Lithwick does not provide any explication of the supposed “law” in question [concerning when judges should recuse themselves from cases]. Legal details are not her forte, which may explain why she writes about the law rather than practices it.

A couple things, here. First, Lithwick wasn’t arguing that Scalia’s public comments (about the Lawrence case) were illegal. So legal details weren’t the issue. The Clerk seems to be looking for law where none is needed. (As a law student myself, I can sympathize.) Here is what Lithwick actually said:

There is, to be sure, an important difference between Scalia’s remarks on the Pledge case and his recent skewering of the Lawrence decision . . . There is nothing wrong, technically, with his subsequent comments condemning the decision in Lawrence . The case is already decided, and his intemperate comments were mild compared to his scorching written dissent.

The word “technically” above is important. Lithwick is asking whether commenting publicly about controversial issues is an appropriate thing for justices to do. And she’s also asking what motivates Justice Scalia, in particular, to take this role upon himself. Both of these, I think, are interesting questions—and people can reasonably disagree about Lithwick’s answers.

Second, I don’t think the Clerk shows that Lithwick is wrong in her view about Scalia, which boils down to the claim that he comments in public because, like the academic he was, he values consistency of principle and candor, and because he thinks that, as a member of an embattled cultural group (large as it may be), he feels he has a duty to speak out about the issues that matter to him. Now, Lithwick obviously disagrees with Scalia’s message, and she suggests that it’s a dangerous one. But even if that makes her partisan, or politically biased, it doesn’t make her, as the Clerk suggests, ignorant of the law or lazy. And it says absolutely nothing about her ability as a practicing lawyer. That type of personal criticism is totally unwarranted.

I think the Clerk is missing out on what lots of other people see in Lithwick’s writing—that she’s playful, often tongue-in-cheek, less predictable than many commentators (see her comment on the 9th Circuit’s decision to halt the California election), and that she makes general reading about the Supreme Court enjoyable for a large lay audience. She’s not writing legal briefs; nor does she pretend to. She’s writing journalistic columns about Supreme Court politics. And they’re usually pretty funny, sometimes racy, and always interestingly written. If the Clerk disagrees with her positions, that’s fine. But he’s wrong to question her legal credentials. Instead of digging himself deeper into his personal attack, he should simply have admitted that he went too far. Every once in awhile, careful bloggers do that.

October 09, 2003

Dworkin on the "war on terror"

Posted by Chris

Via Larry Solum , I see Ronald Dworkin’s Rights and Terror (pdf). Dworkin provides both a useful catalogue of the Bush administration’s restrictions on the rights of both citizens and non-citizens of the US since September 11th. He concedes that many of those detained fail to fit into the models provided either by the traditional laws of war or the criminal law. It is incumbent on us, therefore, to think through what justice requires in this new situation. The Bush administration, though, has not done so.

The Bush administration and their supporters say that a new structure, which they call a new balance, is necessary. But they propose not a new structure but none at all: they assume the privileges of both models and the constraints of neither.

October 06, 2003

Guantanamo

Posted by Chris

I tuned into the BBC’s Panorama last night, which consisted of an investigation into Camp Delta at Guantanamo and also the conditions under which detainees are held in Afghanistan itself. Whilst Panorama can be a sensationalist programme with a definite agenda, the specific allegations made can’t easily be wished away or dismissed as biased or malicious. Many of these are familiar to people, but I was sufficiently engaged by the broadcast to want to rehearse them here. I’m going from my memory of the programme, so I may have missed some details. The points raised included:

That numbers of people have been detained in Guantanamo after being denounced by their enemies and business rivals as a means of settling petty scores. (When the baselessness of the charges against them became clear, they were simply dumped back in Afghanistan to pick up their lives as best they could.)

That people have been arrested and handed over to the US in other sovereign states (Pakistan, the Gambia, and Bosnia) and have been denied habeas corpus and other remedies available in the legal systems of those countries.

That those detained in Guantanamo have no clear legal status and are denied access to the legal remedies available either in international law or US law. This as a result of the fact that the US will not recognize them as POWs and uses the fact that Guantanamo is in Cuba (though wholly under US control) to deny them access to the US courts.

That the prospect of trials under US military procedure with right of appeal only to the President of the US (who has already publicly declared the detainees to be “bad people”) is a breach of the human rights of the detainees and of natural justice. (And some of the trials under these flawed procedures may issue in the death penalty.)

That conditions in Camp Delta, confined to cages, punished for talking to one another, subject to lights all night long, and without news or the prospect of have cases determined in the foreseeable future, places intolerable stresses on the inmates. This may amount to torture, legally speaking. There have been over 30 suicide attempts in Guantanamo.

Children as young as 13 are held in Guantanamo.

That if Camp Delta is bad, detention in Afghanistan is worse, that detainees there may not get access to the Red Cross at all, that there have been deaths certified as “homicide” by US military doctors and that those deaths do not appear to be being vigorously investigated.

Representatives of the US government who appeared on the programme defended these methods and procedures on the basis that the United States needs to defend itself against international terrorism. So it does. But it is manifestly obvious that the ways in which these detentions fall short of what is required by international law and by the human rights of the detainees cannot be justified by the right of self defence. For example, to give these people proper access to legal representation, to try them according to procedures that meet minimal standards or fairness and to give them the expectation that all of this would happen within a reasonable timescale would hardly threaten the national security of the US or of any other country involved in the Afghan coalition.

Both liberals and libertarians affirm a universality of basic rights: rights pertain to humans as such. Many of people who think of themselves as liberal or libertarian supported the war in Afghanistan partly in the name of that universalism. One of the consequences of that universalism has to be that we also champion the human rights of our enemies, and of those who seek to destroy us. That said, numbers of those in Guantanamo may not be our
enemies at all, just the victims of vengeful neighbours who coveted their shop, their house or their farm.

July 30, 2003

Ethical naturalism redux

Posted by Chris

In a comment to one of Brian’s earlier posts on ethical naturalism, I mentioned that Jerry Cohen’s argument that ethics must (ultimately) depend on fact-insensitive principles seemed to me to threaten the naturalist position (at least as Brian had formulated it). Larry Solum - who started this whole conversation - now has an extensive discussion of Cohen’s view (scroll down) as expressed in the latest Philosophy and Public Affairs. Larry thinks that even if Cohen is right, an Aristotelian naturalism might survive. I’m not sure what to think about that yet. One thing worth noticing about Cohen’s view is that even though most of the discussion is about ethics, it applies to normative principles quite generally. This being so, it ought to apply to such principles in other domains (including epistemology and the theory of rational action) and that if it threatens naturalism in ethics it also threatens naturalistic programmes in those areas.

July 09, 2003

Legitimacy

Posted by Chris

Larry Solum’s Legal Theory Blog is one of the jewels of the blogosphere. One of his most recent posts is a discussion of the tangled notion of “legitimate state interests” in the US legal system. Here’s his specification of the project:

What makes some state interests “legitimate” and others “illegitimate”? That thorny question is the topic of this post. Here is my strategy. We shall begin with a bit of history, discussing the historical origins of the phrase “legitimate state interest” in jurisprudence from the turn of the century, the New Deal, and the modern era. Next, we shall take a closer look at Lawrence, investigating in depth the idea that the state lacks a legitimate interest in promoting morality. Then, we shall back up and interrogate the concept of “legitimacy.” In the end, we will ask the question: does the notion of a “legitimate state interest” do any useful work in constitutional law?