Education Moulds

Edwin S. Fruehwald (Hofstra University – School of Law) has posted Reciprocal Altruism as the Basis for Contract on SSRN. Here is the abstract:

Behavioral Biology illuminates the basis of contract. Behavioral biologists believe that genes are selfish; they are only interested in their survival. However, reciprocal altruism – "I’ll scratch your back if you scratch mine" – provides a basis for cooperation among humans that promotes survival. If two humans cooperate in obtaining and allocating resources, they will have greater resources and a greater chance to survive and reproduce, thus continuing their genes. Contract law reflects and reinforces this reciprocal altruism from our evolutionary past.

Connected with reciprocal altruism is a human instinct for equity in reciprocal exchanges. Humans can detect unfair situations and rectify them. Evolutionary fairness is reflected in the contract rules of frustration, unconscionability, and mistake, as well as the good faith duty in performance and unconscionability. Also connected with reciprocal altruism is the need to punish cheaters. In contract law, cheaters-those who breach the contract-are punished through contract remedies. Finally, contract law helps deal with the evolutionary problem of time-shifted rationality, where individuals value what they have over what they can gain in the future.

Part II of this paper will discuss traditional theories of contract law, including the objective theory of contract formation, deontological and consequentialist approaches, redistributive theories, and more recent theories by Professor Solan (contract as agreement) and Professor Markovits (contract as collaboration). Part III will introduce behavioral biology and explain reciprocal altruism and related doctrines, such as cheating and time-shifted rationality. It will also show that neuroscientific studies support the existence of reciprocal altruism and related behavioral mechanisms. Part IV will then analyze the relationship between reciprocal altruism and contract law. It will argue that reciprocal altruism is the best explanation for the formation of contracts, compare reciprocal altruism as the basis of contract to the theories discussed in Part II, examine the other necessary element for contract validity – consideration – under reciprocal altruism, and give a justification for courts to enforce contracts under reciprocal altruism. Part V will demonstrate that contract damages are the glue for reciprocal altruism and that expectation damages are the proper measure of damages under this approach. Finally, Part VI will deal with reciprocal altruism and other contract issues-gap filling, unallocated risks, good faith in performance, and unconscionability.

Source: Lawrence Solum

The Center for Children, Law & Policy is hosting Child Centered Jurisprudence and Feminist Jurisprudence: Exploring the Connections and the Tensions on Nov. 14th at the University of Houston Law Center from 8:30am to 12:30pm. We typically make video of the conference available afterwards through YouTube. The resulting papers will be published in the Houston Law Review.

More Information in our Conference Announcement: http://www.law.uh.edu/center4CLP/events/feminist-child-centered-jurisprudence-conference-2008/announcement.pdf

Featured Speakers

§ Prof. Annette Ruth Appell, Associate Dean of Clinical Affairs and Professor of Law, Washington University School of Law
§ Prof. Martha Albertson Fineman, Robert W. Woodruff Professor of Law, Emory University School of Law
§ Prof. Martin Guggenheim, Fiorello LaGuardia Professor of Clinical Law, New York University School of Law
§ Prof. Angela P. Harris, Professor of Law; Executive Committee Member, Center for Social Justice, Boalt Hall, UC Berkeley
§ Prof. Barbara Bennett Woodhouse, David H. Levin Chair in Family Law and Director of the Center on Children and Families at Levin College of Law, University of Florida

§ With Commentary by Prof. Ellen Marrus, Co-Director, Center for Children, Law & Policy, George Butler Research Professor of Law, University of Houston Law Center, Prof. Laura Oren, Co-Director, Center for Children, Law & Policy, Law Foundation Professor of Law, University of Houston Law Center

Conference Details

§ Date: Friday, November 14th, 2008

§ Location: University of Houston Law Center

§ Event Time: 8:30 a.m. to 12:30 p.m.

§ Registration Cost: Pre-Registration $25, after November 1st increased to $50, Free for Students

§ CLE: 2.75 Hours

Website: http://www.law.uh.edu/center4CLP/events/feminist-child-centered-jurisprudence-conference-2008/

Source: Lawrence Solum

The Center for Children, Law & Policy is hosting Child Centered Jurisprudence and Feminist Jurisprudence: Exploring the Connections and the Tensions on Nov. 14th at the University of Houston Law Center from 8:30am to 12:30pm. We typically make video of the conference available afterwards through YouTube. The resulting papers will be published in the Houston Law Review.

More Information in our Conference Announcement: http://www.law.uh.edu/center4CLP/events/feminist-child-centered-jurisprudence-conference-2008/announcement.pdf

Featured Speakers

§ Prof. Annette Ruth Appell, Associate Dean of Clinical Affairs and Professor of Law, Washington University School of Law
§ Prof. Martha Albertson Fineman, Robert W. Woodruff Professor of Law, Emory University School of Law
§ Prof. Martin Guggenheim, Fiorello LaGuardia Professor of Clinical Law, New York University School of Law
§ Prof. Angela P. Harris, Professor of Law; Executive Committee Member, Center for Social Justice, Boalt Hall, UC Berkeley
§ Prof. Barbara Bennett Woodhouse, David H. Levin Chair in Family Law and Director of the Center on Children and Families at Levin College of Law, University of Florida

§ With Commentary by Prof. Ellen Marrus, Co-Director, Center for Children, Law & Policy, George Butler Research Professor of Law, University of Houston Law Center, Prof. Laura Oren, Co-Director, Center for Children, Law & Policy, Law Foundation Professor of Law, University of Houston Law Center

Conference Details

§ Date: Friday, November 14th, 2008

§ Location: University of Houston Law Center

§ Event Time: 8:30 a.m. to 12:30 p.m.

§ Registration Cost: Pre-Registration $25, after November 1st increased to $50, Free for Students

§ CLE: 2.75 Hours

Website: http://www.law.uh.edu/center4CLP/events/feminist-child-centered-jurisprudence-conference-2008/

Source: Lawrence Solum

Michael Steven Green (College of William and Mary – Marshall-Wythe School of Law) has posted Two Fallacies about Copyrighting Factual Compilations (INTELLECTUAL PROPERTY PROTECTION OF FACT-BASED WORKS: COPYRIGHT AND ITS ALTERNATIVES, Robert Brauneis ed., Edward Elgar Press, Forthcoming ) on  SSRN.  Here is the abstract:

In this essay, I identify two fallacies concerning the copyrightability of factual compilations. The first is that facts cannot be copyrighted because they are not independently created. I argue that once facts are properly understood as content, rather than reality, the independent creation requirement does not stand in the way of their copyrightability.

The second is the fallacy of division. This occurs when one wrongly takes what is true of a whole to be true of some or all of its constituents. An example is the assumption that if we are conscious, some or all of our cells must be conscious as well. The fallacy of division expresses itself in copyright law in the assumption that if a factual compilation is copyrightable, there must be some constituents of the compilation that are copyrightable as well. Since the individual facts out of which the compilation is composed cannot be these copyrightable constituents, courts assume that they are instead the compilation’s selection and arrangement of facts. 

I argue that such an approach to factual compilations is incoherent. Under the pressure of analysis, selections and arrangements themselves dissolve into uncopyrightable components – the submethods out of which selections and arrangements as a whole are composed. One can consider selections and arrangements to be copyrightable only if one sets aside the fallacy of division and looks at selections and arrangements in the aggregate to determine their copyrightability, without attempting to find some component of them that is copyrightable. But once one has set aside the fallacy of division with respect to a compilation’s selection and arrangement, there is no reason not to do the same with respect to its factual content. 

I call an approach that determines the copyrightability of a compilation by looking to the collective factual content communicated by the compilation, rather than the compilation’s selection and arrangement, the collective fact approach. The collective fact approach is in keeping with the way that fictional works are treated under copyright law. Although the individual elements out of which a novel’s plot, scenes, and characters are composed are unprotected, no one would say that the copyrightable part of a novel is its selection and arrangement of these elements. One determines copyrightability by looking to the collective content of the novel itself – its plot, scenes, and characters. A factual compilation, I argue, should be assessed on the basis of whether its collective factual content is copyrightable.

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Source: Lawrence Solum

David H. Kaye (Arizona State University – Sandra Day O’Connor College of Law – School of Life Science) has posted Probability and Individuality in Forensic Science Evidence on SSRN.  Here is the abstract:

Day in and day out, the testimony of criminalists reflects the paradigm of positive, uniquely specific identification of fingerprints, DNA profiles, bullets, handwriting, and other trace evidence. Commentators from other disciplines have called for a "paradigm shift" that would replace talk of individualization with statements of probabilities or would exclude certain testimony pending better research on the ability of analysts to perform as claimed. With rare exceptions, however, the courts have failed to perceive the gap between optimistic theory and hard proof, and they have accepted weak forms of validation. Now that Congress has called on the National Academy of Sciences to "disseminate best practices and guidelines concerning the . . . analysis of forensic evidence," a new opportunity to reassess the long-entrenched claims of individualization is at hand. This essay seeks to contribute to such a reassessment by examining the arguments of two of the most powerful critics of this aspect of forensic science, Professors Michael Saks and Jay Koehler. The "individualization fallacy" they describe implicates issues in philosophy, logic, mathematics, psychology, and statistics. This essay argues that contrary to one possible reading of their work, there is no rule of logic or ontology that prevents individualization and that testimony as to uniqueness is acceptable in some situations. It suggests a combination of evidentiary rules and practices to avoid the excesses of the current form of testimony.

Source: Lawrence Solum

Darrell A. H. Miller (University of Cincinnati College of Law) has posted State DOMAs, Neutral Principles, and the Mobius of State Action (Temple Law Review, Forthcoming) on SSRN.  Here is the abstract:

This essay uses the Mobius strip as a mathematical metaphor for how state "defense of marriage amendments" (DOMAs) can twist the Shelley v. Kraemer contribution to state action doctrine. It argues that Shelley’s core insight — that judicial enforcement of private agreements can constitute state action and must meet federal Fourteenth Amendment commands — can be used by state judiciaries to hold that state judicial enforcement of private agreements between same sex-couples is a species of state action forbidden by state DOMA. As explored in this essay, the potential doctrinal contortion of Shelley by state DOMAs is at once a testament to the law of unintended consequences, a cautionary tale about state experimentalism, and comment on the aspiration and limits of neutral principles of adjudication.

Source: Lawrence Solum

Introduction

American law students learn about formalism instrumentalism early on—although those particular terms may not be introduced explicitly in classroom discussion. Many law students hunger for “black letter law,” for legal rules that can be learned and applied to the facts in a more or less determinate fashion. But in most law school classrooms, this hunger is not satisfied. Instead, the discussion is likely to focus on another set of questions: What should the rule be? What is the purpose of the rule? Would the application of the rule to these facts serve its purpose? Does that rule make sense? And so on. Of course, different professors have different ideas about what makes for good legal rules. Some emphasize good consequences—perhaps as defined by the economic concept of efficiency. Others might emphasize considerations of fairness or distributive justice.

In constitutional law, “black letter law” sometimes seems to disappear entirely. Instead, there is a Supreme Court that seems to act as some sort of super-legislature, resolving the great questions of the day, whether it be “Who shall be President?” or “May states criminalize gay sex?” or “Shall abortion be legal?” Moreover, students quickly learn that the constitutional text is not much of a barrier to a result that the Court really wants to reach. An obvious example is Bolling v. Sharpe in which the Supreme Court applied the substance of the equal protection clause to the federal government—even though it is unmistakably clear that the 14th amendment applies only to the state.

But even today (and in some ways, especially today), law students are likely to be exposed to another set of ideas about the law. They may have a rather old fashioned professor who insists on discussing cases or statutes as if they did provide rules that decided cases. Some students encounter constitutional law professors who insist on the “original meaning” of the Constitution—discussing lots of history (and fewer cases) than their colleagues. In some courses, students run into professors who talk about “plain meaning” approaches to statutory interpretation.

In other words, the legal academy is divided in its allegiance to various forms of legal formalism and legal instrumentalism. This entry in the Legal Theory Lexicon introduces the formalism-instrumentalism debate. As always, the discussion is aimed at law students—especially first year law students—with an interest in legal theory.

Legal Formalism

What is legal formalism? The terms “formalism” and “formalist” are thrown around quite a bit, but they turn out to be surprisingly difficult to define. In fact, many law students and even some legal academics have only a very vague notion as to what “legal formalism” really means. You may have heard something like the following

Legal formalism? That’s “mechanical jurisprudence,” when a judge decides a case without thinking about the consequences or the purpose of the rule.

In other words, “legal formalism” is sometimes used as pejorative label for unthinking and unintelligent legal reasoning.  We can do better than that. Let’s begin with some of the things that scholars or judges who self-identify as formalists say:

• Judges should apply the law and not make it.
• There are legal rules that constrain what legal actors may lawfully do.
• There is a difference between following the law and doing what you think is best.
• Judges should decide cases in accord with the text of the applicable constitutional or statutory provision or with the holding of controlling precedents

This list go on and on, but you get the general idea. The core idea of formalism is that the law (constitutions, statutes, regulations, and precedent) provide rules and that these rules can, do, and should provide a public standard for what is lawful (or not). That is, the core of legal formalism entails a commitment to a set of ideas that more or less includes the following:

1. The law consists of rules.
2. Legal rules can be meaningful in the sense that they have semantic content or linguistic meaning.
3. Legal rules can be applied to particular facts.
4. Some actions accord with meaningful legal rules; other actions do not.
5. The standard for what constitutes following a rule vel non can be publicly knowable and the focus of intersubjective agreement.

Contemporary legal formalism is particularly prominent in two areas, constitutional law and statutory interpretation. In constitutional law, formalism is associated with “originalism,” the view that the constitution should be interpreted in accord with its “original meaning.” In statutory interpretation, formalism is associated with the “plain meaning” theory—that statutes should be interpreted so that the words and phrases have their ordinary meaning. Plain meaning approaches are also associated with the view that legislative history should not be used, especially if it would result in an interpretation that differs from the text of the statute.

Legal Instrumentalism

Legal instrumentalism is one of the ideas that are strongly associated with American legal realism—the great movement in legal thought that is usually associated with Oliver Wendell Holmes, Jr.—as a sort of parent—and with figures like Roscoe Pound, Karl Llewellyn, Felix Cohen, and Jerome Frank. Like formalism, instrumentalism is often ill defined, but most instrumentalists would agree on the idea that legal rules should be interpreted in light of their purposes. When applying the letter of the law would undermine its purpose, then the rule should be interpreted so that it does not apply. And likewise, if the spirit of the law would be served by its application, then judges should give the rule an expansive interpretation. Some instrumentalists may go beyond this, and argue that judges should sometimes nullify statutes that are bad policy or create judge-made rules, when that would serve the ends of good policymaking.

The Realist Critique of Legal Formalism

It is easy to see how realists or instrumentalists would critique legal formalism. If a formalist judge follows the plain meaning of a statute, that might lead to its application even in cases where it would be harmful and contrary to the intentions of its drafters. This is “unthinking” or “mechanical jurisprudence. Moreover, some realists argued that legal formalism was actually as sort of fraud. Judges don’t really follow the plain meaning—the argument goes. Rather, so-called formalist judges really decide on the basis of their own policy preferences and then dress up the results in the language of legal formalism. Ideology does the work; legal formalism dresses it up so that it looks pretty.

The Modern Revival of Legal Formalism or Neoformalism

Despite the sustained realist critique, legal formalism has been making a come back of late. One reason for the comeback is a realization that extreme versions of instrumentalism make it very difficult to know what the law is, in advance of a judge’s decision in a particular case. The point of hard law (determinate legal rules which draw relatively “bright lines”) is that they provide certainty, stability, and predictability to the law. Purposes provide less guidance, and different judges are likely to have different opinions about what the true purposes of the rule may be.

Political ideology has also played a role in the formalist revival. Some (but not all) formalists are especially disturbed by the results reached by the Warren and Burger Courts in prominent constitutional cases—like Roe v. Wade. Some of these critics may see legal formalism as a judicial philosophy that can rationalize the dismantling of these controversial precedents.

Because the terms "formalism" and "formalist" carry a lot of baggage, some contemporary formalists prefer to use the term "neoformalism" as a label for their position.  Likewise, some contemporary originalists refer to "the new originalism" to distinguish their position from others that are called "originalist."

Conclusion

The debate between formalists and realists is lively and fundamental, but frequently conducted in a fairly simplistic manner. The best advice I can give for approaching this debate is to be careful about how the conceptual territory is mapped and the terms are defined. Much of the seeming disagreement between formalists and instrumentalists flows from different conceptions of where the dividing lines lie.

Related Entries

The Rule of Law
Originalism
Rules, Standard, and Principles
Textualism

Bibliography & Links

Brian Z. Tamanaha, Law as a Means to an End: Threat to the Rule of Law (Cambridge University Press 2006).

Larry Alexander, Law and Formalism.

Neoformalism, Wikipedia.

Lawrence Solum, The Supreme Court in Bondage: Constitutional Stare Decisis, Legal Formalism, and the Future of Unenumerated Rights

(This entry was last modified on September 27, 2008.)

Source: Lawrence Solum

The Legal Theory Bookworm recommends Philosophy and Real Politics by Raymond Geuss. Here is a description:

Many contemporary political thinkers are gripped by the belief that their task is to develop an ideal theory of rights or justice for guiding and judging political actions. But in Philosophy and Real Politics, Raymond Geuss argues that philosophers should first try to understand why real political actors behave as they actually do. Far from being applied ethics, politics is a skill that allows people to survive and pursue their goals. To understand politics is to understand the powers, motives, and concepts that people have and that shape how they deal with the problems they face in their particular historical situations.

Philosophy and Real Politics both outlines a historically oriented, realistic political philosophy and criticizes liberal political philosophies based on abstract conceptions of rights and justice. The book is a trenchant critique of established ways of thought and a provocative call for change.

And a blurb:

In this new study, Raymond Geuss mobilizes the strength of analytical philosophy to subvert the theoretical premises of contemporary political philosophy. He replaces its fixation on ideal norms and its abstraction from real confrontations with an orientation toward contexts of action and a rigorous concentration on the importance of political power. It is fascinating to see the result: a political philosophy that is once again a kind of intellectual craft, historically situated and locally engaged. (Axel Honneth, J. W. Goethe University, Frankfurt )

I’ve been a big fan of Geuss since his early book, The Idea of a Critical Theory.

Source: Lawrence Solum

The Download of the Week is Means and Ends in Politics and Law: An Essay in Honor of Cass R. Sunstein by Richard Pildes.  Here is the abstract:

In both constitutional law and public policy, Cass Sunstein’s work has entailed a search for the largest common denominator that justifies government action. In constitutional theory, Sunstein developed the concept of "incompletely theorized agreements" as a model for how judges ought to decide cases. In public policy analysis, Sunstein’s work has reflected a similar commitment to maximizing consensus and reducing conflict. While Sunstein’s conception of minimalist adjudication has been thoroughly explored, less attention has been paid to the underlying political vision that structures his view of the proper role of the state and the desirable forms of public policymaking.

In this tribute, I explore and challenge the structure of Sunstein’s political vision. Two ways of seeing this vision exist. The first is the way in which Sunstein presents it: as a profound new alternative capable of transforming current politics and transcending political polarization and conflict. Sunstein himself calls his vision "a real Third Way," a post-partisan conception that provides a synthesis of Franklin Delano Roosevelt’s New Deal liberalism and Ronald Reagan’s new conservatism. The second way is almost diametrically the opposite. Perhaps this conception actually reveals how chastened and minimalist political aspirations are limited to being in our era. 

Based in behavioral law and economics, the centerpieces of Sunstein’s political vision are default rules and information disclosure. This is a vision focused on changing the means by which government acts. This focus, however, then raises the question: how much can or should politics focus primarily on the means of government action, rather than what ends government ought to pursue? Or, to the put the question in terms of Sunstein’s own stated ambitions, can it really be the case that the major political critique of the New Deal that was effectively launched in the Reagan years was simply a critique about the means of public policy, as opposed to the proper role of the state and the ends for which government ought to act? Should we see Democrats and Republicans, liberals and conservatives, as so divisively polarized today merely because they disagree about what means government ought to use in pursuing policy objectives – objectives that, we are presumably to believe, all sides actually share? If this vision actually is the "real Third Way" in contemporary politics, it is worth asking what that tells us about the possibilities for democracy today.

Highly recommended.

Source: Lawrence Solum

Georgetown University Law Center, Columbia Law School, University of Southern California Center for Law, History & Culture, and UCLA School of Law invite submissions for the seventh meeting of the Law & Humanities Junior Scholar Workshop to be held at Georgetown University Law Center in Washington, D.C. on June 7 & 8, 2009.

PAPER COMPETITION:

The paper competition is open to untenured professors, advanced graduate students and post-doctoral scholars in law and the humanities; in addition to drawing from numerous humanistic fields, and welcomes critical, qualitative work in the social sciences. Between five and ten papers will be chosen, based on anonymous evaluation by an interdisciplinary selection committee, for presentation at the June Workshop. At the Workshop, two senior scholars will comment on each paper. Commentators and other Workshop participants will be asked to focus specifically on the strengths and weaknesses of the selected scholarly projects, with respect to subject and methodology. Moreover, the selected papers will then serve as the basis for a larger conversation among all the participants about the evolving standards by which we judge excellence and creativity in interdisciplinary scholarship, as well as about the nature of interdisciplinarity itself.

Papers should be works-in-progress between 10,000 and 15,000 words in length (including footnotes/endnotes), and must include an abstract of no more than 200 words. A dissertation chapter may be submitted but we strongly suggest that it be edited so that it stands alone as a piece of work with its own integrity. A paper that has been submitted for publication is eligible so long as it will not be in galley proofs or in print at the time of the Workshop. The selected papers will appear in a special issue of the Legal Scholarship Network; there is no other publication commitment. The Workshop will pay the travel expenses of authors whose papers are selected for presentation.

Submissions (in either Word or Wordperfect, no pdf files) will be accepted until January 9, 2009, and should be sent by e-mail to:

Center for the Study of Law and Culture
culture@law.columbia.edu

Columbia Law School
435 W. 116th Street
New York, N.Y. 10027

Please be sure to include your contact information. For more information: Tanisha Madrid, 212.854.0692 or culture@law.columbia.edu. The full text of the Call for Papers is available at:
http://www.law.columbia.edu/center_program/law_culture/lh_workshop.

Source: Lawrence Solum