Showing papers on "Judicial opinion published in 2005"

"Culture of life" politics at the bedside--the case of Terri Schiavo.

Abstract: The parents of Terri Schiavo, a Florida woman who was in a persistent vegetative state, objected to her husband's decision to discontinue artificial nutrition, and a protracted legal battle ensued. The Florida courts ordered the removal of Schiavo's feeding tube to provide care consistent with her wishes. The judicial decisions in the Schiavo case were consistent with legal precedent, but the interference in the case by the legislative and executive branches of the Florida and U.S. governments was unprecedented.

Legitimacy and the constitution

Abstract: TABLE OF CONTENTS INTRODUCTION I. THREE CONCEPTS OF LEGITIMACY AND THEIR OBJECTS A. Legitimacy as a Legal Concept B. Legitimacy as a Sociological Concept C. Legitimacy as a Moral Concept D. An Aside on Legal Positivism and Natural Law E. The Objects of Legitimacy Judgments II. THE LEGITIMACY OF THE CONSTITUTION A. The Relationship Between the Constitution's Moral Legitimacy and Its Legal and Sociological Legitimacy B. Assessing Ideal and Minimal Moral Legitimacy C. What Is the Constitution? D. The Limits of Constitutional Legitimacy III. JUDICIAL LEGITIMACY UNDER THE CONSTITUTION A. Judicial Legitimacy as a Legal Concept 1. The Meaning of Claims of Legal Legitimacy and Illegitimacy 2. Standards for Assessing the Legal Legitimacy of Assertions of Judicial Power B. The Sociological Legitimacy of Judicial Power and Its Exercise 1. Some Conceptual Varieties of Sociological Judicial Legitimacy 2. Assessing the Sociological Legitimacy of Judicial Power (a) The Relationship Between Institutional Legitimacy and the Substantive Sociological Legitimacy of Judicial Decisions (b) Authoritative Legitimacy and Its Limits (c) Measures of Sociological Legitimacy and the Limits of Judicial Power C. The Moral Legitimacy of Judicial Power and Its Exercise D. Three Concepts of Legitimacy: A Test Case IV. LEGISLATIVE, PRESIDENTIAL, AND ADMINISTRATIVE LEGITIMACY A. Legal Legitimacy B. Sociological Legitimacy C. Moral Legitimacy V. CONNECTIONS AND DISJUNCTIONS A. Legal Legitimacy B. Sociological Legitimacy C. Moral Legitimacy D. Conflicts and Priorities VI. CONCLUSION: THE PERSISTING IDEAL OF CONSTITUTIONAL LEGITIMACY Legitimacy is a term much invoked but little analyzed in constitutional debates. Uncertainty and confusion frequently result. This Article fills a gap in the literature by analyzing the idea of constitutional legitimacy. It argues that the term invites appeal to three distinct kinds of criteria that in turn support three distinct but partly overlapping concepts of legitimacy--legal, sociological, and moral. When we examine legitimacy debates with these three concepts in mind, striking conclusions emerge. First, the legal legitimacy of the Constitution depends more on its present sociological acceptance than on the (questionable) legality of its formal ratification. Second, although the Constitution deserves to be recognized as morally legitimate, it is only "minimally" rather than "ideally" so: it is not morally perfect, nor has it ever enjoyed unanimous consent. Third, because the Constitution invites disagreement about what it means and how it should be interpreted, many claims about the legal legitimacy of practices under the Constitution rest on inherently uncertain foundations. Significantly, however, a virtual consensus exists that at least some judicial precedents suffice to support future claims of legitimate judicial authority, even when those precedents were themselves erroneously decided in the first instance. Like the legal legitimacy of the Constitution, the legal legitimacy of precedent-based decisionmaking arises from sociological acceptance. Fourth, in the absence of greater legal and sociological consensus, judgments about many purportedly legal questions, including questions of judicial legitimacy, frequently reflect assumptions about the moral legitimacy of official action. Realistic discourse about constitutional legitimacy must therefore reckon with the snarled interconnections among constitutional law, its sociological foundations, and the felt imperatives of practical exigency and moral right. INTRODUCTION Legitimacy is a term much bruited about in discussions of constitutional law. …

Calvo's Grandchildren: The Return of Local Remedies in Investment Arbitration

Abstract: One of the purposes of investor/State arbitration is to avoid the use of local courts. Litigation in the host State’s domestic courts is often seen as lacking the objectivity that the investor desires. In addition, domestic courts are often bound to apply domestic law even if that law falls short of the standards provided by international law. The traditional international remedy in investor/State disputes is diplomatic protection. But diplomatic protection is contingent upon the exhaustion of local remedies. It does not free the investor from going to the host State’s courts. First going to the local courts of the host State meant delay and additional expense to the investor. But it also carried disadvantages for the host State. Public proceedings in the domestic courts are likely to exacerbate the dispute and may affect the host State’s investment climate. Once the host State’s highest court has made a decision, it may be more difficult for the government to accept compromise or a contrary international judicial decision. The Preamble to the ICSID Convention states that “while such [investment] disputes would usually be subject to national legal processes, international methods of settlement may be appropriate in certain cases.” It is for these and other related reasons that international investment arbitration dispenses with the requirement to exhaust local remedies, at least in principle. Article 26 of the ICSID Convention specifically does away with this traditional requirement “unless otherwise stated”.

Paraprofessional Services for Students with Disabilities: A Legal Analysis of Issues.

Abstract: Concomitant with the increase in the number of paraprofessionals assisting students with disabilities is the emergence of legal issues pertaining to the need, selection, responsibilities, preparation, and supervision of those paraprofessionals. The purpose of this article is to provide a legal analysis of administrative and judicial decisions concerning these issues and to propose guidelines for ensuring appropriate paraprofessional involvement in the educational programs for students with disabilities.

Corporate Governance Changes in the Wake of the Sarbanes-Oxley Act: A Morality Tale for Policymakers Too

Abstract: This paper seeks to draw a lesson for designing major reforms of corporate governance in the future. It recalls the key events leading to the recent seismic shift in corporate governance policies applicable to American public corporations, and identifies the four sources of policy changes – the Sarbanes-Oxley Act, new listing requirements, governance rating agencies, and tougher judicial opinions (notably in Delaware) about perennial corporate governance issues. It presents a synthetic overview of the numerous reforms, which at the most general level aim to fix the audit process, increase board independence, and improve disclosure and transparency. It pauses to identify the vast territory of unchanged corporate governance rules that are still left to state law, and then examines some of the empirical studies that bear on whether the governance reforms can be confidently predicted to have strong positive results for investors. The exercise suggests an irony: Studies about the impacts of the most costly reforms, those concerning audit practices and board independence, are fairly inconclusive or negative, while studies about proposals for shareholder empowerment and reduction of managerial entrenchment indicate that changes in these areas – which in general are only atmospherically supported by the SOX-related changes – could have significant positive impacts. Admittedly, the general evidence for mandatory disclosure does suggest that the new round of enhanced disclosures, which are only moderately costly, will have good effects. The concluding section presents and explains a new approach for the next crisisgenerated reform movement. It is based on the notion that bandwagons are unavoidable, but their motivating impact can be leveraged and their bad effects alleviated by good statutory design. In particular, legal reforms in the area of corporate governance should have bite but should also be explicitly structured to authorize and mandate (1) serious empirical study of the effects of particular regulatory changes (or existing rules), (2) periodic reassessment of regulations in light of such evidence (while also considering experience and analytical arguments, of course), and (3) explicit decisions to reaffirm or alter regulations in light of these reassessments. * Harvard University Distinguished Service Professor. This essay, which was first written for an audience of European corporate lawyers and law professors, has benefited greatly from the helpful comments of colleagues and practitioners, including Lucian Bebchuk, Marjorie Knowles, Mark Moore, Mark Ramseyer, and Paul Washington. Mistakes and misjudgments are all my own.

Passing and strategic voting on the U.S. Supreme Court

Abstract: Analyzing strategic aspects of judicial decisionmaking is an important element in understanding how law develops. In this article, we examine sophisticated voting on the U.S. Supreme Court by empirically modeling justices' decisions to pass when it is their turn to vote during conference discussions. We argue that, due to the opinion assignment norm, the chief justice may pass when one of the key conditions necessary for sophisticated voting-certainty about the views held by other justices and the agenda-is lacking. By passing, the chief can view his colleagues' votes in order to determine which vote will allow him to assign the majority opinion and, ultimately, forward his policy preferences. Using data from Justice Lewis F. Powell's conference notes, we show that the chief passes for this purpose, and that doing so is an effective strategy. In addition, we show that the senior associate justice in a case, who has a nontrivial chance of assigning the majority opinion, also passes for strategic reasons. As we expect, the data indicate that the remaining associates seem not to pass for strategic purposes. In recent years, studies of law and courts have emphasized that judges are strategic decision makers. A strategic judge is one who understands that law on the books must be translated into law in action. Put another way, strategic judges acknowledge that they cannot act independently as they attempt to establish legal policy. Thus, a strategic judge's decisions on the bench are influenced in part by the preferences or anticipated choices of other relevant decision makers. While the efficacy of legal policies articulated in decisions depends on the choices made by a panoply of implementers, judges on collegial courts must confront the importance of choices made by their colleagues on the bench. In other words, before issuing a decision a judge must gain the support of his or her colleagues in order to speak for the court. Viewing judges as strategic actors is important because it sheds light on a judge's most important task: setting legal policy. Law develops as judges make choices in the process of deciding particular cases, and to understand legal development it is critical that we explain judges' decisions. Existing research, for instance, shows that when U.S. Supreme Court justices craft majority opinions they bargain, negotiate, and compromise in an attempt to bring legal policy as close as possible to their preferred alternatives (see Epstein & Knight 1998; Maltzman et al. 2000). While most research to date has focused on the U.S. Supreme Court (e.g., Caldeira et al. 1999; Epstein & Shvetsova 2002; Hansford & Damore 2000), comparative studies of law are ripe for consideration of the strategic elements of judicial decisionmaking (see, e.g., Helmke 2002, 2003; Iaryczower et al. 2002; Epstein et al. 2001). Vanberg (2001), for example, shows that the German Federal Constitutional Court acts strategically when deciding whether to strike down legislation. In addition, state court judges in the United States act strategically in response to whether, and when, they must stand for reelection (Brace & Hall 1997). In this article, we explore how justices behave strategically when casting votes at conference. After the Supreme Court hears oral arguments in a case, the justices gather at conference to cast preliminary votes. They express their views and cast their votes, in order of seniority, beginning with the chief justice (CJ) and moving down to the most junior justice. Under this voting rule, the CJ is the first to cast a vote and, arguably, has the most at stake. Indeed, when the chief is in the conference majority the task of assigning an author to write the majority opinion falls to him. This prerogative helps him influence the Court's agenda by selecting an author whose opinion is close to his own preferences, or who will minimize the prospective policy loss if the chief's preferred outcome does not prevail (Epstein & Knight 1998; Maltzman et al. …

The legitimacy of judicial review: The limits of dialogue between courts and legislatures

Abstract: According to the theory of ‘‘institutional dialogue,’’ courts and legislatures participate in a dialogue aimed at achieving the proper balance between constitutional principles and public policies and the existence of this dialogue constitutes a good reason for not conceiving of judicial review as democratically illegitimate. This essay sets out to demonstrate that there are important limits to the capacity of insitutional dialogue to legitimize the institution of judicial review. To that end, it situates the theory of institutional dialogue within the debate over the legitimacy of judicial review of legislation within democracy and introduces a distinction between two conceptions of dialogue—dialogue as deliberation and dialogue as conversation—and examines the limits of each theory. The author does not contend that there can be no dialogue between courts and legislatures but, rather, that the kind of dialogue that would be needed to confer legitimacy on the institution and practice of judicial review does not—and cannot—exist. Consequently, the normative character of institutional dialogue theory, as conceived thus far, is ultimately rhetorical. The theory of ‘‘institutional dialogue,’’ as I shall call it, may be seen as a Canadian contribution to the debate over the democratic legitimacy of judicial review. 1 According to this theory, the courts and the legislatures participate in a dialogue regarding the determination of the proper balance between constitutional principles and public policies, and, this being the case, there is good reason to think of judicial review as democratically legitimate. It is an ongoing dialogue because the judiciary does not necessarily have the last word with respect to constitutional matters and policies; the legislatures would almost always have the power to reverse, modify, or void a judicial decision nullifying legislation and, therefore, to achieve their social or economic policy ends. Consequently the countermajoritarian objection to

When Courts Make Law: How the International Criminal Tribunals Recast the Laws of War

Abstract: Although the laws of war are frequently altered after major conflicts, the post-Cold War revision of these rules has not occurred as a result of treaty negotiations. It has, instead, resulted from the United Nations Security Council's decision to create two temporary, ad hoc tribunals and from these courts' ensuing judicial decisions. The tribunals' transformation of the laws of war provides an opportunity to assess one of the most striking phenomena of international politics in the past ten years: the judicialization of international relations. Through the history of the tribunals, this Article provides a critical evaluation of the role, character, and normative desirability of international judicial lawmaking. It argues that international judicial lawmaking is most appropriate when the relevant underlying treaties are old, where underlying conditions have changed, and where there is little prospect for the treaties' revision. The story also highlights the limitations of rational design, a dominant theoretical paradigm used to analyze international institutions. As the history of international criminal law demonstrates, international legal development is far more contingent and complex than the relatively simple model used by most rational design theorists. It thus calls into question the utility of theoretical models that do not include an account of institutional development and transformation, particularly over time. Finally, the Article argues that temporary international courts can serve a critical, if underappreciated, role in the development of new areas of international law.

The Supreme Court and Opinion Content: The Use of the Federalist Papers

Abstract: Many scholars of the Supreme Court and many justices assert the importance of the Federalist Papers. They provide important evidence of original meaning and interpretation of the Constitution, and there is evidence that there is an increase in citations to the Federalist Papers in Supreme Court opinions. While some may view this increased citation use as a positive development because it demonstrates reliance on legal authority in judicial decisions, we provide evidence that in a period marked by dissensus and controversy, the use of the Federalist Papers represents externally and internally oriented strategic attempts by the justices to add legitimacy to constitutional interpretation, and to sway colleagues. We use a combination of descriptive and multivariate techniques to examine Federalist citations from 1953 to 1995 to demonstrate our interpretation.

The Judicialization of Politics in Colombia: The Old and the New

Abstract: The scope and intensity of judicialization of politics described in this chapter may sound surprising and even incredible for those unfamiliar with Colombia. In a country associated with political violence and the drug trade, a strong tradition of judicial review may appear strange. It is as if there were two countries: one where force reigns, another based on the rule of law. In this chapter, I do not attempt to describe nor explain this paradox. I shall only recall a few basic facts. Colombia has approximately 44 million inhabitants, while guerrilla and paramilitary organizations gather 50,000 armed individuals at the most. These organizations operate mainly in the rural areas of a very large country where 75 percent of the population is urban. The impact of the guerrilla organizations on the country’s institutional processes was dramatically and tragically made evident in 1985 with the violent seizure of the Palace of Justice in Bogota, which resulted in the destruction of the premises and the death of half of the sitting magistrates of the supreme court. However, this did not prevent the supreme court from reassuming its functions two months later, nor did it prevent the strengthening of the administration of justice in general, and of constitutional justice in particular by the creation of a constitutional court, with the adoption of the 1991 constitution.

Oral Arguments and Decision Making on the United States Supreme Court

Abstract: Oral Arguments and Decision Making on the United States Supreme Court. By Timothy R. Johnson. Albany: State University of New York Press, 2004. 180p. $35.00. This book makes a persuasive thesis that the oral arguments presented in cases before the United States Supreme Court are used by the justices to help them arrive at substantive legal and policy decisions that closely parallel their preferred outcomes. Although that would seem to be logical, the author documents that many scholars who write about the Court do not share this thesis. Those scholars, such as the so-called attitudinalists, posit that oral arguments have no effect on justices' votes. In order to reinforce his thesis, Timothy Johnson uses the strategic model of decision making, namely, that justices are goal oriented, they are strategic, and they account for institutional rules. He then goes on to explain that because the briefs presented to the Court from both the litigants and from amici curiae are understandably biased in behalf of their particular points of view, the oral arguments serve to solve this problem.

Razonamientos judiciales en procesos de separación

Abstract: Judicial reasoning in parental separation and divorce proceedings: content and cognitive analysis of judicial reasoning. The Spanish legal system states that the "best interest of the child should prevail" in decisions regarding child custody and guardianship in parental separation or divorce proceedings. In order to evaluate if this legal requirement is being enforced, 782 child custody cases were selected for study. Systematic content analysis of court decisions revealed that most, 57.3%, were not motivated on any grounds; the reasoning criteria were not valid; criteria were not consistent for intergender parental custody decision-making; the father's custody was mainly based on criteria of exclusion of the mother; no follow-up of judicial decisions was undertaken to ensure compliance; information processing was task driven and involved information processing strategies "based on the exclusion of information" that was contrary to the final decision. Finally, the implications are discussed in the light of recommendations for safeguarding the best interest of the child, and for judges training.

Regulating Intimacy Judicial Discourse in Cases of Wife Assault (1970 to 2000)

Abstract: This article describes the findings of research into judicial decision making in Ontario courts in cases of intimate violence against women. Judges are condemning the violence, issuing relatively harsh sentences, and arguing that the intimate context of the violence is an aggravating factor. The analysis also reveals that judges often rely on stereotypes and traditional notions of marriage, family, and femininity. As records of decisions, the documents suggest a high level of understanding that wife abuse is a crime. As judicial discourse, they reveal how the justice system regulates intimate relationships and how traditional ideologies persist despite the harsh sentences.

The rational reconstruction of argumentation referring to consequences and purposes in the application of legal rules: a pragma-dialectical perspective

Abstract: In this paper, the author develops an instrument for the rational reconstruction of argumentation in which a judicial decision is justified by referring to the consequences in relation to the purpose of the rule. The instrument is developed by integrating insights from legal theory and legal philosophy about the function and use of arguments from consequences in relation to the purpose of a rule into a pragma-dialectical framework. Then, by applying the instrument to the analysis of examples from legal practice, it is demonstrated that the instrument can offer a heuristic and critical tool for the analysis and evaluation of legal argumentation that can ‘bridge’ the gap between more abstract discussions of forms of legal argumentation on the one hand, and legal arguments as they occur in actual legal practice on the other hand.

Rule of Law or the Rule of Politics? Harmonizing the Internal and External Views of Supreme Court Decision Making

Abstract: Law professors and political scientists generally subscribe to opposed theories of Supreme Court decision making. Law professors, to a great degree, adhere to an internal view: Supreme Court justices decide cases according to legal rules, principles, and precedents. Political scientists follow an external view: justices decide cases according to their political ideologies or preferences. This Article develops an interpretive-structural theory that harmonizes these seemingly opposed views. This interpretive-structural theory not only explains why the internal and external views often are both effective but also why, sometimes, one approach might be more effective than the other. The Article concludes by comparing the interpretive-structural theory with the “new institutionalism” that is emerging in political science.

Signaling and Precedent in Federal District Court Opinions

Abstract: Standard economic analysis of judicial behavior, at least with respect to federal judges, has to some extent foundered on the apparent success of the Constitution's framers in designing an institution where almost the whole thrust of the rules governing compensation and other terms and conditions of judicial employment is to divorce judicial action from incentives. That is, the structure takes away the carrots and sticks and the different benefits and costs associated with different behaviors which inform human action in an economic model. Nonetheless, our earlier empirical work, as well as work by others, found significant associations between promotion potential and judicial decision making in the federal district bench. This earlier work left unclear, however, how district judges might use their positions to enhance their opportunities for advancement. In this paper we examine how federal judges can use the content and outcome of their decisions to signal that they would be appropriate candidates for e...

Appellate Court Adherence to Precedent

Abstract: Why do lower courts follow precedent, or any law? Traditional rational choice theories that rely on presumptions of ideological decision making have struggled to explain the power of judicial hierarchy. This article addresses the issue in three components. The first two sections examine the conventional positive political theory explanations for circuit court adherence to Supreme Court preferences based on a risk of reversal by the Court. These sections explain how these conventional theories cannot be theoretically sustained under prevailing resource constraints. The next two sections set forth an alternative explanation that considers the possibility of judges who possess both political and legal preferences. Using linguistic theory, these sections explain how the two types of preference could interact to produce partial adherence to precedent. The final section empirically examines circuit court decision making. This analysis shows that both political and traditional legal considerations have a significant effect on circuit court decision making, while contemporaneous Supreme Court preferences exert no discernible influence. The theoretical and empirical evidence support a conclusion that lower courts adhere to the law out of an affirmative judicial preference for such adherence rather than out of a fear of reversal by a higher court.

Federal elements in the community judicial system: building coherence in the community legal order

Abstract: A shortened and adjusted version of the paper "Creating a Quasi-Federal Judicial System of the European Communities", which has been published in the Common Market Law Review.

Judicial Decision Making and International Tribunals: Assessing the Impact of Individual, National, and International Factors*

Abstract: Objective. The objective of this article is to explain judicial decision making at the International Criminal Tribunal for the Former Yugoslavia by analyzing the impact of individual, national, and international factors. Methods. We use regression and probit analysis of data on the verdicts and sentences handed down by the judges. Results. We find that international factors best explain judicial decision making, especially regarding sentencing. Conclusions. International tribunals and courts are becoming increasingly important and prevalent and it is critical that scholars better understand how their judges make decisions.

Empirically testing Dworkin's chain novel theory: Studying the path of precedent

Abstract: This article provides an empirical study of the effect of precedent on judicial decisionmaking. Precedent is much analyzed as a controlling factor for judicial decisions but rarely tested for its effect. Some have argued that reliance on precedent creates a system of path dependence of the law, which may yield undesirable herd behavior. As a framework for the study of precedent, we use Dworkin's metaphor of a chain novel, in which each deciding judge writes upon a background to which he or she must adhere, thereby influencing his decisions. This yields testable hypotheses about judicial decisionmaking. Given the considerable data on the ideological component of judicial decisionmaking, it provides a means to study the effect of precedent, as a constraint on judicial ideology. First, we examine cases of first impression, for which there is no controlling precedent, like the very first chapter of a chain novel. The hypothesis is that the absence of precedent in these cases frees judges to use their ideology to a greater degree than in other cases with precedents, and this hypothesis is confirmed. Judges render more ideological opinions in cases of first impression. The second study considers the growth of precedent over time in the context of 42 U.S.C. Section 1983 litigation. The hypothesis is that as precedents accumulate, they steadily narrow the range of judicial discretion, so the effect of ideology should dwindle over time, as might be expected from a chain novel. The data falsify this hypothesis, as ideology seems to increase somewhat as a determinant as more precedents build up. The results suggest that precedent acts as only a limited constraint on judicial decisionmaking and the path dependence of a system of stare decisis is exaggerated.

Moody Investing and the Supreme Court: Rethinking the Materiality of Information and the Reasonableness of Investors

Abstract: This Article critically analyzes the judicial decisions and reasoning of the United States Supreme Court and lower courts accepting certain defenses in securities fraud litigation. This Article develops how and why the core notions of materiality of information and the reasonable investor should be revised in light of recent empirical data, experimental evidence, and theoretical models of moody investing. This Article proposes modifying three recent developments in materiality doctrine to take into account moody investing. In particular, this Article argues that current judicial treatment of puffery is flawed because it neglects the power of puffery to alter moods. This Article also recommends modifying the judicial "total mix" analysis of the materiality of information to include a "total affect" analysis of information. Finally, this Article proposes refining the judicially created so-called "bespeaks caution" doctrine and statutory safe harbors codifying it to inquire whether so-called "meaningful caut...

‘Customary Law, Sentencing and the Limits of the State’

Abstract: The issue of customary law punishment, especially "payback", has stretched the limits of the criminal law in a range of sentencing judgements in Australia's Northern Territory. A number of judgments relating to customary law punishment are discussed in this essay. Successive Australian judicial decisions have stated that Aboriginal criminal law did not endure beyond British settlement. However, the jurisprudence of the Northern Territory does not quite reflect this position. The response of the judiciary in the Northern Territory to customary punishments has been to develop a kind of soft legal pluralism. Judges both take into account the proposed punishment, and yet do not formally condone it. The judiciary has attempted to maintain control over customary punishment while being beholden to Aboriginal communities for evidence of appropriate customary responses, and for the carrying out of the promised punishments. This leads to a complex situation where Aboriginal people are both supervised and supervisor, and the state is both in and out of control.

The Evolution of Precedent

Abstract: We evaluate Richard Posner's famous hypothesis that common law converges to efficient legal rules using a model of precedent setting by appellate judges. Following legal realists, we assume that judicial decisions are subject to personal biases, and that changing precedent is costly to judges. We consider separately the evolution of precedent under judicial overruling of previous decisions, as well as under distinguishing cases based on new material dimensions. Convergence to efficient legal rules occurs only under very special circumstances, but the evolution of precedent over time is on average beneficial under more plausible conditions.

Legal Realism as Theory of Law

Abstract: TABLE OF CONTENTS INTRODUCTION I. THE REALISTS' THEORIES OF LAW A. What Are Legal Rules? B. What Is the Prediction Theory of Law? C. Did the Realists Have a Novel Theory of Law at All? II. HART ON THE NORMATIVITY OF LAW A. Hart's Theory of Law B. Can Hart Explain the Law's Normativity? C. Shared Cooperative Activities? D. The Revenge of the Natural Law Theorist E. Non-Cognitivism and the Internal Point of View III. THE FIRST ARGUMENT AGAINST LEGAL RULES A. Legal Rules Are Causally Inert B. The First Argument and the Rejection of Vested Rights C. The First Argument and the Decision Theory of Law IV. THE SECOND ARGUMENT AGAINST LEGAL RULES A. Legal Obligation and Moral Autonomy B. The Second Argument and the Realists' Theory of Adjudication C. The Second Argument and "Mechanical Jurisprudence" V. EXPLAINING THE PREDICTION AND DECISION THEORIES OF LAW A. The Decision Theory of Law Revisited B. Bishop Hoadly C. The Prediction Theory of Law Revisited D. The Scandinavian Realists CONCLUSION INTRODUCTION The legal realist movement flourished back in the 1920s and 30s, primarily at Yale and Columbia law schools and at Johns Hopkins's short-lived Institute of Law. And yet it is often said--indeed so often said that it has become a cliche to call it a "cliche" (1)--that we are all realists now. (2) The cliche is wrong, however, for there is at least one identifiable (if not sizable) group that rejects realism--philosophers of law. To them, realism is dead, mercifully put to rest by H.L.A. Hart's decisive critique of "rule-skepticism" in the seventh chapter of The Concept of Law. (3) Hart rejected two forms of rule-skepticism advocated by the realists. It was, on the one hand, a theory of law--the view "that talk of rules is a myth, cloaking the truth that law consists simply of the decisions of courts and the prediction of them...." (4) Hart's argument here was brief, for he thought that this form of rule skepticism was an obvious failure. (5) Decisions cannot be all there is to the law, for courts deciding cases are guided by the law--by the legal rules that can be found in constitutions, statutes, regulations and past judicial opinions. The philosophical community agreed. The realists' theory of law was, in the philosophers' words, "deeply implausible," (6) "open to easy refutation," (7) and "a jurisprudential joke." (8) Hart took rule-skepticism as a theory of adjudication a bit more seriously. According to this theory, statutes and the like may be law, but they are too indeterminate to be significant influences on, or predictors of, judges' decisions. Because the law is indeterminate, judges actually decide cases on the basis of nonlegal considerations. Hart did not argue that this theory was incoherent, but he did think it was a "great exaggeration." (9) The law is indeterminate at the margins, he argued--it has what he called "open texture"--but it is not indeterminate in its core as the realists claimed. The seventh chapter of The Concept of Law has cast such a long shadow that only recently has the study of legal realism become halfway respectable in philosophical circles. A prominent example of the renewed interest in the realists is Brian Leiter's defense of their theory of adjudication against Hart's critique. (10) But Leiter, like the rest of the philosophers, has nothing good to say about their theory of law; indeed, part of his strategy for rehabilitating the realists is insisting that they did not mean to offer rule-skepticism as a theory of law in the first place. (11) I will find little to criticize in Leiter's defense of the realists' theory of adjudication. But Hart was clearly right about the realists' desire to present rule-skepticism as a genuine theory of law. (12) If the realists are to be rehabilitated, we must defend this theory. That is the goal of this Article. …

Legal Protection of Technological Measures Protecting Works of Authorship: International Obligations and the US Experience

Abstract: The ongoing transposition of the EU Information Society Directive's requirement that member States adopt of legal prohibitions of the circumvention of technological protections of works of authorship occasions this review of international obligations and their implementation in the US. This article addresses the scope of international obligations the WIPO Copyright Treaties impose on member States to protect against circumvention, as well as the US experience with the Digital Millennium Copyright Act's prohibitions on circumvention of access and copy controls. It examines the text of the statute, codified at sec. 1201 of the 1976 Copyright Act, the five years of judicial decisions interpreting the statute, and the two administrative proceedings implementing one aspect of the statutory scheme. The analysis of the DMCA and its judicial and administrative interpretation will take up three issues: 1) What technological measures does sec. 1201 protect? 2) What conduct does sec. 1201 prohibit? 3) To what extent does sec. 1201 accommodate copyright exceptions? The US experience to date indicates that legal protection for technological measures has helped foster new business models that make works available to the public at a variety of price points and enjoyment options, without engendering the "digital lockup" and other copyright owner abuses that many had feared. This is not to say that the US legislation and its judicial interpretation represent the most preferable means to making the internet a hospitable place for authors while continuing to enable lawful user conduct. But brooding forecasts and legitimate continuing concerns notwithstanding, the overall equilibrium so far appears to be a reasonable one.

Corporate Officers and the Business Judgment Rule

Abstract: This article argues that the business judgment rule - a cornerstone concept in corporate law - does not and should not extend to corporate officers in the same broad manner in which it is applied to directors. The argument proceeds along both descriptive and normative lines. After first reviewing judicial decisions, the article concludes that, notwithstanding frequent, broad assertions to the contrary, application of the rule to corporate officers is not firmly established in case law. The article next examines the policy case by assessing three conventional rationales for applying the rule to directors and concluding, on balance, that the rationales do not fully translate into the officer context. The upshot is that courts should more closely scrutinize officer conduct than they now examine director performance. Those companies not wishing to expose officers to heightened liability risks may, by decision of the board of directors, refrain from asserting rightful claims ex post, or may contract around that risk ex ante, either by eliminating liability altogether or substantially reducing it.

Comparative Institutional Analysis in Cyberspace: The Case of Intermediary Liability for Defamation

Abstract: Almost every day brings reports that Congress is considering new cyberspace-targeted laws and the courts are deciding novel cyberspace legal questions. These developments lend urgency to the question of whether a particular cyberspace legal change should come through operation of new statutes, judicial decisions, or the free market. If we can develop sophisticated analytical methods to evaluate institutional competence in cyberspace, we can vastly improve the development of cyberspace law and public policy. Comparative Institutional Analysis in Cyberspace: The Case of Intermediary Liability for Defamation promotes just such an approach. By describing and extending a recently proposed model of comparative institutional analysis, the article develops a workable framework for assessing the ideal institutional resolution of particular cyberspace legal conflicts. It also offers guidance for what to do when a particular institution has already responded in a way that is suboptimal. For example, it argues that courts should use comparative institutional analysis to guide their interpretation of cyberspace statutes. The article uses the case study of intermediary liability for third party defamation to illustrate the analytical approach. The case study recounts an important cautionary tale of the bad policy that can result when legal decisionmakers ignore comparative institutional analysis, and demonstrates how much the outcome would have been improved had comparative institutional analysis been considered.

The Formal and the Substantive Meanings of Proportionality in the Supreme Court's Decision Regarding the Security Fence

Abstract: In Beit Sourik the Israeli High Court of Justice struck down most of the planned route for the security fence to be established north of Jerusalem. The Court ruled that the military commander did not properly balance the contribution of this route to the security of the State and the extent of the injury to the rights of the Palestinian inhabitants of the area. It was therefore ruled that this route did not comply with the requirement of proportionality in its strict sense. At the same time, the Court rejected the claim of the petitioners that the motive underlying the determination of the fence's route was a desire to establish a border (a political consideration) and not a security consideration. This article criticizes the Court's line of reasoning. I argue that the Court erred in striking down the planned route of the security fence on the ground of not fulfilling the requirement of proportionality in the strict sense. The vague nature of this requirement may cause judicial decisions to assume a subjective character, thus violating the democratic principle according to which fundamental decisions should be determined by the people's elected representatives. Given the suspicious circumstances that had led to the determination of the fence's route, the Court should have applied a different kind of reasoning. Instead of balancing the State's security issues and the Palestinians rights, the Court should have carefully scrutinized whether the security purpose was authentic. Judicial review, based on these premises, increases governmental transparency and thus better complies with democratic principles.

The Role of Public Opinion in Policy Argument: An Examination of Public Opinion Rhetoric in the Federal Budget Process

Abstract: Public opinion holds great importance in democracies because a democracy, by its very definition, connotes a form of government that is responsive to the people (Williams & Edy, 1999) Alluding to such importance, Mill (1859/1975) observed the "ascendancy of public opinion" in modern democracies where "the idea of resisting the will of the public disappears more and more from the minds of practical politicians" (p 69) Bryce (1898/1927) similarly argued that in the United States, public opinion "rifles as a pervading and impalpable power, like the ether which passes through all things" (p 271) Contemporary political scientists have continued to find a strong, but often complex, link between public opinion and political decision making (Burstein, 2003) As Hanson and Marcus (1993) explain, in a democracy "everything depends on public opinion," and this is "the greatest strength--and also the chief weakness--of democratic politics" (p 6) Of course, to say that public opinion plays an important role in democratic governance begs the question of what exactly counts as "public opinion" The very meaning of "public opinion" has been contested over time (Herbst, 2001) Ancient Greeks, for example, associated public opinion with public rhetoric; in the Greek city-states the rhetoric of citizen assemblies constituted public opinion (Glynn, Herbst, O'Keefe, & Shapiro, 1999) Habermas (1962/1989) has illuminated a similarly strong connection between discourse and public opinion in eighteenth-century Europe In this particular historical context, public opinion emerged in the bourgeois public sphere Citizens created this vibrant public sphere as they came together in public spaces, such as coffee houses and salons, to discuss matters of public concern In more recent times, public opinion has lost this vital association with discourse The advent of George Gallup and modern public opinion polling techniques have transformed public opinion from a discursive process into an empirical product Today, polling has become the dominant definition of public opinion (Glynn et al, 1999) as well as a "cultural obsession" (Hogan, 1997, p 162) In response to this proliferation of polls, scholars across disciplines have attempted to reassociate public opinion with discourse In establishing this reassociation, rhetoricians have endeavored to reveal the rhetorical nature of publics For example, McGee (1975) has attempted to show how "the people are more process than phenomenon (p 242) In McGee's (1998) view, the term people actually serves as a "rhetorical device" that transforms individuals into a collectivity (p 116) Similarly, Willard (1996) has argued that publics are "rhetorically constituted" (p 228), Hauser (1999) has described publics as "emergences manifested through vernacular rhetoric" (p 14), and Olson and Goodnight (1994) have shown how a public can be "brought into being by oppositional argument" (p 272) Rhetoric not only creates and sustains publics, but also determines the very meaning of public opinion In this view, which I will refer to as the rhetorical view, public opinion is seen as "epiphenomenal, as arising out of the process of social and communicative interaction" (Lipari, 1999, p 86) This rhetorical construction of public opinion has vital implications for democratic governance (Herbst, 1998) For example, scholars have shown that rhetoric equating public opinion with poll results undermines the health of the public sphere and hence the overall health of a democracy (Goodnight, 1990; Hauser, 1999; Herbst, 1993; Hogan, 1997; Zarefsky, 1994) The rhetorical construction of public opinion also has significant implications for public policy The very nature of democratic governance necessitates an interrelationship between public opinion and public policy The rhetorical view refuses to see public opinion as an entity (citizens' individual, aggregated beliefs) outside the state that policy makers can choose to acknowledge or ignore; instead, policy argument shapes the very meaning and relevance of public opinion in the policy-making process …