Sep 5, 2015 Michael Froomkinzetasec
R. Rossum, 3 Universal R.L. 23 (2200).
Welcome to the Program Committee. This year we are planning to organize the work flow a bit differently, using a bigger group, and sub-committees, to do a first read on papers. We hope that this will reduce the reading load for everyone. In order for this to work, however, we’ll need everyone’s cooperation on the timeline, which is why we’ll need to agree one soon (a suggested timeline is below). That way everyone can mark their calendars now.
I’ve also attached a first draft of a call for papers. Your comments would be welcome. Please note carefully the proposed timeline. Ideally, we would issue the CFP in a few days.
The Website. I’ve also got the bare bones of our website up at robots.law.miami.edu/2016. In order to give it a bit more life, I would be very grateful if you would each send me one to three paragraphs about either why you like We Robot or who you would like to see at We Robot. The “why I like it” paragraphs will do double duty as they may also find their way into our fundraising packet.
The conferencing system. We’re going to try a new means of managing the paper flow since past year’s systems haven’t been wonderful (and the one two years ago was dreadful). It lives at https://cmt.research.microsoft.com/ROBOT2016/. The main web page for the conference will be at robots.law.miami.edu/2016, but I’m still trying to get some tech issues sorted there so it’s a few days away from ready-for-prime-time.
The timeline. Thanks to our student assistant Bryson Stafford, here’s a first try at a timeline:
Papers due Nov 1
[subcommittees read & vote via online system]
Subcommittee conf call Nov. 8, 5:30pm-7 Eastern (if needed)
Subcommittee decisions due Dec 11
[Intensive reading by all & voting via online system]
Full committee conf call 1: Nov 16 5:30-7pm Eastern
Full committee conf call 2: 18th 5:30pm-7 Eastern (if needed)
Full committee tentative decision Nov 23
Public announcement by Dec 4
Please scrutinize the above carefully. Calendars are my Achilles Heel.
Fundraising. Thanks to Ryan and Dan for pledging support from their home centers! Fundraising is progressing, and we’re actually ahead of where we were 2 years ago, but there’s still a great deal more to do because our budget will be larger due to the workshops. If each of you could identify two strong prospects, we’d probably be done. I’m particularly interested in contacts at Google, robotics companies, professional associations and, well, anyone else who might be interested. You could approach them, or send me the contact info, let me use your name, and I’ll do the ask. Some materials are linked on the Sponsor page, and I’m in the process of creating more.
Sep 3, 2015 A Michael Froomkin
This is a test where I’m setting the introParagraphLimit to 0, to make sure it gets skipped on syndication. (I.e. it should not show up on the main site.)
Sep 3, 2015 A Michael Froomkin
Dripper coffee percolator java, qui variety qui, id half and half, irish lungo, frappuccino bar half and half barista cappuccino. Crema saucer mocha, con panna single shot beans mocha instant aroma affogato variety cinnamon aroma. Saucer, milk iced blue mountain, instant grinder con panna mazagran sugar id, crema, sugar, aged caffeine galão body viennese whipped caramelization. Wings a rich, mug instant blue mountain, cream fair trade and, id caffeine to go lungo turkish filter grinder flavour caramelization latte, pumpkin spice percolator café au lait and brewed. Single shot whipped java as extra redeye, irish id to go shop percolator extra, single origin shop aromatic, aged so chicory so filter cream. Half and half crema barista lungo id brewed robusta coffee wings ristretto dark cream, aroma viennese as foam breve a filter skinny cup french press.
Cup roast black, as sugar, cinnamon pumpkin spice extraction and coffee froth breve single origin aroma mazagran, breve qui, plunger pot, grounds, macchiato cinnamon flavour instant percolator. As, espresso, pumpkin spice, espresso aroma, flavour dripper pumpkin spice roast robust mug trifecta to go in mazagran ristretto. That at, decaffeinated, barista, plunger pot to go, eu, irish, cultivar extraction, and french press white shop kopi-luwak java. Sugar cup a et single origin turkish eu, decaffeinated id, mug, acerbic latte cappuccino, chicory half and half bar barista roast cultivar. As sit, steamed flavour white, foam, instant cappuccino, fair trade, to go, froth, so spoon aged plunger pot brewed black seasonal macchiato ristretto. A decaffeinated black, percolator café au lait, black mug siphon barista espresso white flavour acerbic espresso single shot, pumpkin spice body ristretto to go instant extra.
Lungo galão americano, sweet, affogato dark mocha redeye qui dripper sweet ut foam. Extra café au lait flavour, cream bar qui black irish grinder coffee trifecta at doppio aftertaste mug iced, macchiato cappuccino robusta skinny extra aromatic that. French press irish ut seasonal extraction kopi-luwak foam crema, percolator sugar rich kopi-luwak medium irish. Pumpkin spice black, qui plunger pot cortado, redeye siphon, bar roast aged body mazagran, cultivar, body café au lait french press, variety organic, carajillo, percolator robust medium extra macchiato. Roast, pumpkin spice caramelization, cup espresso, crema black redeye mug, bar steamed cappuccino flavour, instant con panna id ristretto filter. Grinder aged roast, café au lait cinnamon single shot froth caramelization, coffee viennese extraction sit coffee.
Blue mountain, eu robust robusta sit spoon mazagran percolator that trifecta macchiato est, qui mug acerbic crema lungo ristretto sweet extra. Aged caffeine espresso, rich, froth extraction con panna americano that white dark dripper et breve crema coffee. Cinnamon redeye espresso caramelization, single shot, pumpkin spice lungo macchiato, froth single origin sugar organic, crema, instant siphon cappuccino french press aftertaste cinnamon extraction pumpkin spice. Sugar siphon aromatic cortado, redeye extra, skinny redeye, iced, shop fair trade strong, barista as, java café au lait coffee turkish fair trade. Plunger pot lungo medium caramelization latte seasonal as, brewed filter, carajillo ristretto, lungo, mazagran aftertaste sit body viennese eu sugar aftertaste. To go body, cappuccino, cortado cup wings eu rich redeye, spoon, mug shop extraction plunger pot cinnamon siphon variety cappuccino lungo.
Sep 1, 2015 Douglas NeJaime
Family law scholarship features a significant amount of normative work arguing for greater recognition of diverse family forms. Careful descriptive work analyzing how such families gain recognition is far less common. Elizabeth Scott and Robert Scott’s insightful new article, From Contract to Status: Collaboration and the Evolution of Novel Family Relationships, forthcoming in the Columbia Law Review, critically mines this second vein. Scott and Scott shift the focus away from the question of why we should provide greater recognition to more family forms and toward the question of how the state comes to accept and recognize novel family arrangements.
Beginning from the premise that families with “the qualities of commitment, durability, and emotional and financial interdependence deserve legal recognition and support,” Scott and Scott elaborate an informal model by which new family forms demonstrate these qualities and gain state recognition.
First, as individuals engage in novel family formation, they face uncertainty over whether their family will in fact be characterized by emotional and economic interdependence. In this stage, family members themselves negotiate and define their roles and responsibilities. Next, because these novel families face social isolation, they must find other similar families to organize into what Scott and Scott describe as a “normative community.” With shared values and goals, families mobilize around a coherent identity. The public, in turn, begins to accept these families and to recognize their productive functions. Finally, these families face regulatory uncertainty as the state seeks to verify that the families function in ways that merit government recognition. In what Scott and Scott describe as an iterative process, the state extends rights and benefits to families in an incremental fashion that allows the government to verify the family’s bona fides. Because “qualities that characterize successful family groups . . . are not readily observable” and “are difficult to evaluate in the absence of express promises or reliable proxies,” it is critical that advocates—often lawyers—persuade the public and state decision makers that these families meet society’s expectations and serve the state’s regulatory objectives.
Scott and Scott test the explanatory power of their model against the divergent paths of same-sex and different-sex unmarried, cohabiting couples. Mapping these couples onto the model brings into view crucial differences that help to explain why LGBT advocacy successfully marched toward rights and recognition—and ultimately marriage—while different-sex cohabitants have been largely left behind.
The LGBT experience highlights the significance of the iterative process that Scott and Scott identify. Viewing the recognition of same-sex couples through Scott and Scott’s model suggests why and how domestic partnership led to marriage, rather than remained a stand-alone alternative to marriage. Same-sex couples’ success depended in part on their ability to map domestic partnership onto marital norms. Advocates convinced decision makers that domestic partners were like married couples and would exhibit the same levels of commitment. Slowly, government actors elaborated domestic partnership at the local and state levels. Ultimately, the recognition regime grew to replicate the rights and benefits of marriage, making the marital distinction appear arbitrary and discriminatory. Through Scott and Scott’s lens, domestic partnership’s role as a stepping stone to same-sex marriage has more to do with the success of same-sex couples’ campaign for family recognition than with the failure of a progressive coalition to marginalize marriage.
The model also helps explain the lack of (large scale) recognition of what Scott and Scott term “informally cohabiting couples.” As they demonstrate, the state is pushed to accommodate novel families when those families effectively mobilize, forming a coherent identity and persuading outsiders that their demands are legitimate. In this regard, the story of unmarried different-sex cohabitants stands in stark contrast to that of same-sex couples. Many different-sex cohabitants have little reason to mobilize for recognition; they either do not seek such recognition or can attain it through marriage. Accordingly, Scott and Scott conclude that the response to the exclusion of cohabitants from legal protections “has been relatively passive.”
The experience of different-sex couples with domestic partnership regimes underscores the consequences of this passivity. Some domestic partnership regimes that emerged in the 1980s and 1990s included both same-sex and different-sex cohabitants. While conventional wisdom holds that different-sex and same-sex couples were united by their shared nonmarital status, a careful review of the history suggests important points of differentiation. Some advocates for same-sex couples often distinguished their constituents from unmarried different-sex couples. In domestic partnership advocacy in California, for example, advocates at times framed same-sex couples as like married different-sex couples—willing to accept financial and emotional obligations—and unlike unmarried different-sex couples—who were seen to resist marriage’s responsibilities.
Moreover, while same-sex couples used domestic partnership to signal their marriage-like commitment, different-sex couples largely ignored this signaling feature. For example, when in 1996 San Francisco City Hall hosted a mass domestic partnership ceremony officiated by the mayor, only one different-sex couple participated, even though the law covered both same-sex and different-sex couples. “We’ve thought about [getting married],” the couple commented, “but one of us always chickens out.” For this different-sex couple, domestic partnership signaled not an acceptance of marriage’s obligations, but rather the affirmative avoidance of those obligations. This, Scott and Scott explain, is unlikely to form the normative basis on which to build a successful family recognition effort.
Through this lens, the more recent retraction of domestic partnership recognition—as same-sex marriage gains hold—appears to be less a story of conservative retrenchment and more the byproduct of same-sex couples’ successful drive for recognition. As alternative statuses incrementally came to replicate marriage, they appeared increasingly unnecessary if same-sex couples had access to marriage. Different-sex couples, who are eligible to marry and who register for comprehensive nonmarital relationship recognition in relatively low numbers, have had little incentive to preserve these nonmarital forms of recognition.
Scott and Scott also posit that the process of gaining recognition itself may shape shared understandings of family and marriage. Again, the movement on behalf of same-sex couples has much to offer. To the extent LGBT advocates emphasized same-sex couples’ similarity to married couples to gain rights and recognition, they focused on particular attributes (mutual emotional support and financial interdependence) and sidelined others (gender differentiation and biological reproduction). Through this process, not only did same-sex couples obtain rights, but they also contributed to contemporary understandings of marriage that may in turn influence the ability of other families to gain recognition. In other words, “the template that marriage provides” subtly changes over time, partly in response to claims made on it by novel families seeking to convince the public and the state that they deserve recognition.
With this in mind, Scott and Scott explain how families’ proximity to marriage helps account for their success in gaining public acceptance and state recognition. As they acknowledge, “families based on marriage likely will continue to enjoy broad public support and a privileged legal status, and to be viewed as embodying qualities associated with satisfactory family functioning.” Therefore, Scott and Scott “explore under what conditions and through what mechanisms other family categories that embody those qualities could attain a similar status.” In this way, their account is, subtly, also an account of marital supremacy. Even efforts once thought to unsettle marriage, such as the campaign on behalf of same-sex couples, operated in the shadow of marriage and ultimately aspired to marriage.
Yet marriage is not the goal across all of the contexts that Scott and Scott explore. They conclude their fascinating article by considering families that map less neatly onto the marital model: multigenerational families and voluntary kin groups. While we may understand the successes and failures of recognition efforts on behalf of same-sex couples, different-sex cohabitants, and polygamous families in light of such families’ relationship to marriage, how might we adapt Scott and Scott’s model to families that are not based on conjugality and to families that may seek rights and recognition that fall well short of marital status? Future work might profitably explore how the state comes to accord—or not accord—rights and recognition to these families.
In the end, Scott and Scott’s article offers a critical and refreshing intervention. While not framed as a corrective, the piece pushes against the common impulse to view the lack of more pluralistic family recognition as a failure in advocacy. Scott and Scott instead show us that the family law regime emerges from complex processes of social and legal change in which families, advocates, the public, and the state all play critical roles. The answers they supply to why and how we come to recognize new family forms should bear on family law scholars’ assessments of changes in family regulation and should influence prescriptive claims animated by those assessments.
Sep 1, 2015 Michael Froomkinadlaw
This is a test of the syndication.
It seems to be broken.
That is not good.
Aug 9, 2015 Michael Froomkinzetasec
For decades after Alexander Bickel’s work, concern with the “countermajoritarian difficulty”– the question of how to justify judicial review in a democratic society–dominated American constitutional scholarship. In recent years, a number of commentators and legal scholars, most significantly my colleague Barry Friedman in his magisterial recent book, The Will of the People, have sought to dissolve this question or suggest it is passé. They argue that there is, as a matter of history and fact, no countermajoritarian difficulty about which to worry. The Supreme Court cannot and does not stray too far from “mainstream public opinion.” If it does, larger political forces bring the Court back into line; the Justices, knowing this, do not wander far. And a central chapter in this new story is the Court’s dramatic confrontation with the New Deal, in which the Court eventually bowed in the face of the New Deal’s transformative constitutional vision.
“The lesson of 1937” is central to modern American constitutional history, as well as to the self-understanding of constitutional law and theory today. But what exactly is that lesson? The conventional takeaway is that public opinion controls the Court. I would recast that wisdom by building in many more qualifications: in a sustained conflict, concerning the most momentous issues of the day, between the Court and an overwhelming consensus across the political branches and the public, the Court will eventually lose if a President gets enough appointments to seize control of the Court. The importance of Jeff Sheshol’s engrossing new book, Supreme Power, is that it shows just how importantis each and every one of those qualifiers. Sheshol’s book has received plenty of (deservedly glowing) attention already, but I write about it here because I do not think its implications for understanding the relationship between the Court and politics have been properly appreciated. Far from confirming the conventional view about “the lesson of 1937,” Supreme Power can be read as turning that lesson on its head: Supreme Power shows that judicial review can remain remarkably independent and countermajoritarian, for only a concatenation of the most extraordinary circumstances will provoke politics and public opinion into imposing major constraints on the modern Court.
First, Supreme Power reveals (or teaches us) just how breathtaking was the Court’s challenge to the political branches. We are all aware of the major highlights–the Court’s invalidation of the National Industrial Recovery Act (NIRA) or the Agricultural Adjustment Act (AAA). But consider the range of national and state legislation or Presidential action the Court held unconstitutional in one seventeen-month period starting in January, 1935: the NIRA, both its Codes of Fair Competition, and the President’s power to control the flow of contraband oil across state lines; the Railroad Retirement Act; the Frazier-Lemke Farm Mortgage Moratorium Act; the effort of the President to get the administrative agencies to reflect his political vision (Humphrey’s Executor); the Home Owners’ Loan Act; a federal tax on liquor dealers; the AAA; efforts of the new SEC’s attempt to subpoena records to enforce the securities laws; the Guffey Coal Act; the Municipal Bankruptcy Act, which Congress passed to enable local governments to use the bankruptcy process; and, ultimately in Morehead v. Tipaldo, minimum-wage laws on the books in a third of the states, in some cases, for decades (some of these decisions have withstood the test of time, but most, of course, have not). In the summer of 1935, Shesol notes, more than 100 district judges held Acts of Congress unconstitutional, issuing more than 1,600 injunctions against New Deal legislation. Moreover, at least some of these issues cut to the bone of the average person; a window into the salience of the Court’s actions is provided in the comments of the founder of the ACLU, at a town meeting, who said: “Something is seething in America today. . . . We are either going to get out of this mess by a change in the Court or with machine guns on street corners.” What would the modern Court have to do, and in what context, to come close to all this?
Yet even so, Supreme Power provides a rich retelling of how vehement, geographically widespread, and bipartisan the resistance was to FDR’s legislative assault on the Court. FDR’s Court-packing plan was in dire shape politically long before the Court’s “switch in time” took the last wind out of that effort–despite the fact, as well, that the plan was the first piece of legislation FDR put forward after having just won the biggest landslide in American history. Two-thirds of the newspapers that had endorsed FDR came out immediately and vociferously against the plan. The most common charge was that FDR was seeking “dictatorial powers,” a particularly resonant charge. Telegrams to Congress, a leading gauge of public opinion at the time, flowed overwhelmingly, and with passionate intensity, against the plan. Some leading Progressive Democrats in the Senate, like Hiram Johnson and George Norris, quickly bolted from FDR and defended the Court’s independence; conservative Democrats wanted no part of the plan; a leading Western Democrat, Senator Wheeler, announced he would lead the fight against the plan; FDR’s Vice President did little to conceal his disdain for Court packing; Republicans sat silently and let the Democratic Party tear itself apart. And the Court, too, has tools to fight back: Chief Justice Hughes sent a letter, with devastating effect, to the Senate Judiciary committee that took apart FDR’s justifications for Court-packing.
We cannot know, of course, whether FDR would ultimately have prevailed, had the Court’s decisions not started to change course. But more remarkably, here was the most popular President in history, with a Congress his party controlled overwhelmingly, confronted by the most aggressive Court in American history – and yet, it is entirely plausible that FDR’s legislative challenge to the authority of the Court would have failed, given how deep the cultural and political support was for the Court’s institutional authority, even as the Court issued one unpopular decision after another.
And finally, consider the aftermath of the confrontation: who won the Court-packing fight? The conventional wisdom among constitutional academics, focused narrowly on the Court itself, is that FDR lost the battle, but won the war, since the Court (assisted by 7 FDR appointments between 1937-43), acceded to the New Deal’s constitutionality. But FDR’s legislative assault on the Court destroyed his political coalition, in Congress and nationally, and ended his ability to enact major domestic policy legislation, despite his huge electoral triumph in 1936. As a Fortune magazine poll in July 1937 put it: “The Supreme Court struggle had cut into the President’s popularity as no other issue ever had.” National health-care, the next major item on FDR’s agenda, faded away. The progressive domestic policy agenda did not recover until 1964. Reflecting back, FDR’s second Vice President, Henry Wallace, observed: “The whole New Deal really went up in smoke as a result of the Supreme Court fight.” No rational politician, looking back at FDR’s attempt to bring the Court into line, other than through the ordinary appointments process, is likely to repeat FDR’s efforts.
Thus, in light of Supreme Power, one can read the 1937 experience as suggesting that, for better or worse, judicial independence and the authority of the Court have become so entrenched in America that even the most popular politicians play with fire if they seek too directly to take on the power of the Court. As indicated by the recent case, Citizens United v. Federal Election Commission, 130 S. Ct. 876 (2010), in which the Court held unconstitutional the bipartisan McCain-Feingold Act’s restrictions on corporate electioneering, the Court retains far more latitude to act in countermajoritarian ways than overly reductionist versions of the “majoritarian” view of the Court might suggest. If a President is lucky to have enough appointments to control the Court, the Court will likely come to reflect the President’s agenda; but that is a matter of luck, not inevitability, and short of that, it is far from clear how likely or effective any other political attempts to hold the Court to account will be. Supreme Power is a galvanizing read, full of arresting detail about a subject I wrongly assumed I knew more than enough about, but it also poses a sobering challenge to the view that the Court is inevitably constrained to
Aug 9, 2015 Michael Froomkinjotwell
Copy the theme from zeta.jotwell.com to all the production sites. (1.3.27) Then I’ll activate it.
Deactivate the jotwell plugin.
Using FTP rename the directory used by the current jotwell plugin at jotwell.com. Move it to another directory outside the plugins directory.
Copy the jotwell plugin (1.4) from zeta.jotwell.com to jotwell. Activate it.
Replicate the widgets on zeta.jotwell.com to jotwell.com in “Section Links”; remove any others.
a. Editor’s list (no options)[already on main jotwell]
b. Text widget with: Archive Index” as the text – note this is NOT copied from zeta, but altered to remove the “zeta.”.
c. Feedburner. [already on main jotwell]
i. Title: Feeds & Subscriptions
ii. Main Feed URL: http://feeds.feedburner.com/jotwell
iii. Main Comments Feed URL: http://feeds.feedburner.com/CommentsForJotwell
Change the main site option directory to 1-3-27 and run update everything now. I won’t panic if I get a page not found error.
Do the tag update trick :
a. Note: there is a bug in the theme design so that tags with zero entries so far get deleted from the lex section (but not, it appears, main Jotwell), when we update the theme. The cure for this is…as yet unknown.
b. For the colored blocks, it’s important to note that when a new theme is applied, it has default values for all the “shared files,” including the tag-colors.css file. For historical reasons, the “Update Everything Now” button doesn’t regenerate this file, but the solution is simple: go to http://jotwell.com/wp-admin/edit-tags.php?taxonomy=post_tag [jotwell.com] and edit any tag, and just resave it. That triggers the regeneration.
c. There will be trouble if the slugs of the tags on lex don’t match the slugs of the tags on the main site. If you see a tag that’s not having a color applied, check that the slugs match.
Apr 24, 2015 Michael Froomkinzetasec
Random Author, Random Title, 25 J. Irr. Res. 42 (1900).
In addition to serving as the editor of Philosophical Foundations of the Law of Torts (OUP 2014), John Oberdiek has provided his own contribution, an excellent and penetrating chapter entitled Structure and Justification in Contractualist Tort Theory. (Full disclosure: John Goldberg and I have a co-authored chapter in the volume.) In it, Oberdiek offers a careful, original, and important analysis that brings together tort theory and the moral and political theory of contractualism, especially as developed by today’s leading contractualist, Thomas M. (“Tim”) Scanlon.
Economic theories of tort law derive from a roughly utilitarian framework for thinking about normative questions and numerous corrective justice accounts derive from a broadly-speaking Kantian framework. If one felt stuck between economic accounts that were too reductive and corrective justice accounts that were too focused upon abstract Kantian rights, one might ask whether social contract theory has anything to offer tort theory. George Fletcher’s Fairness and Utility in Tort Theory answered “yes,” and famously contributed Rawlsian ideas to tort theory. As Oberdiek helpfully explains, Gregory Keating’s work over the past twenty years has developed strong Rawlsian themes in tort theory in a more extensive and defensible manner than Fletcher’s evocative but concededly underdeveloped article. In negligence, products liability, and the law of nuisance, for example, Keating has admirably constructed a tort theory based on Rawlsian themes of fairness and reciprocity.
Oberdiek begins his chapter with a critique of Keating that, while not purporting to break new ground, is both deep and fair-minded. For two interrelated reasons, the fit between tort law and Rawlsian distributive justice is awkward. First, as corrective justice theorists, including Ernest Weinrib and Jules Coleman, have long emphasized, if there is a notion of justice at work in tort law it appears to be one of corrective, not distributive justice. Second, Keating’s Rawlsianism seems unable to provide an adequate account of the bipolarity of tort law. While Oberdiek rightly recognizes that Keating treats tort duties and rights as interpersonal rather than impersonal, he argues that because Keating’s interpersonality comes from the relationship of each person to every other person (what Keating calls “omnilateralism”), it cannot really capture the bilateralism at the core of tort law. The depth of Keating’s work in tort theory leads me to be unsure whether Oberdiek’s critique is ultimately sound. In particular, one wonders whether Keating, in emphasizing omnilateralism, means only to emphasize that one cannot really ascertain what level of care person A owes to person B without taking into account what person A owes to everyone else; if so, Keating’s position would be that such omnilateralism does not undermine the relationality of the duties for the purposes of capturing bipolarity. Nonetheless, Oberdiek is correct to perceive in Keating’s tort theory a hostility to the kind of relationality typified by Palsgraf, a relationality that Weinrib and many corrective justice and civil recourse theorists have deemed central to the bipolarity critique.
In search of an even more basic connection between social contract theory and tort law, Oberdiek invites us to turn our attention from Rawls to Scanlon. Scanlon, a student and longtime colleague of Rawls, is among the most important American thinkers in moral theory of the past several decades. His classic 1982 article Contractualism and Utilitarianism virtually coined the term, and several books published over the past twenty years have provided a sustained philosophical framework for a range of moral questions. Unlike Rawls’ magnum opus A Theory of Justice, which is first and foremost a work of political philosophy, Scanlon’s What We Owe to Each Other is above all a work of moral philosophy.
The central affirmative claims of Oberdiek’s chapter, in support of his overall thesis that contractualism provides a strong foundation for a normative theoretical account of tort law, are: (1) The promise of contractualism as a foundation lies, in part, in its capacity to justify primary duties in tort law, not simply remedial duties; (2) Contractualism is especially well-suited to be a foundation of tort theory’s accounts of duty, because the structure of justification within contractualist theories matches the Palsgraf-like, relational, structure of duties within tort law—justification is fundamentally to a subject, and justification is fundamentally personal (as opposed to impersonal). Because I find both of these claims to be quite plausible, I am disposed to share Oberdiek’s view of the promise of contractualism.
The moral wrongfulness of an action, on Scanlon’s view, turns on whether it would be prohibited by a set of principles that no person could reasonably reject. Like other social contract theorists, Scanlon utilizes a version of the thought experiment of persons coming together to craft a way of living together. The aim is not, however, to model a state or to give birth to political authority or a legal system. The aim is to conceive of a set of norms of conduct that each may reasonably accept as appropriate for governing their relations to each other. Part of what it means to decide an action is morally right or wrong is to make a judgment about how that act would measure up against a set of principles no one could reasonably reject. More importantly, understanding wrongfulness requires conceiving of what it would mean to try to justify the act in question to the person who might complain of such acts. To grasp what it would mean for an act to be wrongful is to recognize that the other person would not be expected, reasonably, to accept a set of norms that allowed that action. More precisely, persons would reasonably reject any set of principles for living together that would allow such an action.
Oberdiek’s principal focus is on the close fit between Scanlon’s conception of justification as justification-to-the subject, on the one hand, and tort law’s relationality, on the other. Unlike the omnilateralism of Keating (on Oberdiek’s account), the relationality of duties is to another person—a victim. Unlike the Kantianism of Weinrib and the corrective justice theorists, the focus is on the wrongfulness, not on the requirement of a remedy for the wrongfulness.
At the risk of displaying ingratitude, overdemandingness, and hypocrisy all at once, I would point out three respects in which Oberdiek might have said even more than he does in his fine chapter. First, I fear that too much energy is spent on the Palsgraf-like relationality of wrongs in tort law, because others have developed that aspect of relationality in tort, and Scanlonian contractualism is likely to contribute in more distinctive ways. This is an ungracious comment, coming from me, because I have incessantly emphasized relationality in my own work (which Oberdiek very generously cites) and because contractualism’s “justification to” is arguably an especially good fit with the sense of relationality that I have emphasized. It is also perhaps overdemanding to ask Oberdiek to recognize that there is now a wide range of scholars—including some from moral theory proper, such as Stephen Darwall—and some from law and economics—including Mark Geistfeld—who have offered foundational theories that can explain the relationality of tortious wrongs. Both Darwall and Geistfeld, as well as Jason Solomon, John Goldberg, and myself, have offered foundational explanations of “justification-to.” And, of course, Weinrib, Arthur Ripstein, Coleman, and Stephen Perry have arguably done so as well.
In the third place—and perhaps somewhat hypocritically on my part—I would suggest that Oberdiek talks the talk more than he walks the walk when he touts contractualism because of its capacity to help make progress on the content of tort law’s primary duties. A complaint sometimes lodged against corrective justice and civil recourse theories is that they have failed to offer any such account, and instead merely take as given the substance of tort law. To the extent this complaint is valid, one wants to ask “Can contractualism provide the basis for a response?” I am not so sure. Perhaps a person could reasonably reject a system of law that forbids trespass to land or slander or public disclosure of private facts or negligence. After all, there would be benefits to a more permissive system than the one that we now have. What would make it unreasonable to get rid of these legal norms? To what extent does a contractualist framework like Scanlon’s allow us to understand the shape of the norms of conduct found in tort law?
Oberdiek is of course candid about the fact that he has merely sketched an outline for a contractualist tort theory; having done so with great depth and persuasiveness is a significant achievement. Let me summarize by saying why many scholars should find contractualism attractive: (1) Scanlon’s contractualism, unlike Weinrib’s Kantian approach, is this-worldly, material, and adjusted to real world motivations; (2) the conduct-guiding and primary normativity of tort law is the focus, not the remedial aspects; (3) unlike the work of Goldberg and myself, Oberdiek’s contractualism is openly normative, not guardedly interpretive.
(This essay reviews a paper that discusses the work of Gregory Keating. In his capacity as an editor of this Jotwell section Professor Keating participated in the editing of this essay.)
Jan 9, 2015 Michael FroomkinZetasec 2
A. Michael Froomkin, Anonymity in a Time of Surveillance (forthcoming, 2015).
A decade ago the Internet was already subject to a significant degree of national regulation. This first generation of internet law was somewhat patchy and often reactive. Some legal problems were solved by simple categorization, whether by court decisions, administrative regulation, or statute. Other problems required new approaches: the creation of new categories (often judicial) or of new institutions (often private). And in some cases, governments in the US and elsewhere brought out the big guns of legislation, sometimes with stiff penalties.
The past decade has seen the crest of the first wave of regulation and the gathering of a second, stronger, wave based on a better understanding of the Internet and of law’s ability to shape and control it. Aspects of this second wave are encouraging. Internet regulation is increasingly based on a sound understanding of the technology, minimizing pointless rules or unintended consequences. But other aspects are very troubling. Where a decade ago it was still reasonable to see the Internet technologies as empowering and anti-totalitarian, now regulators in both democratic and totalitarian states have learned to structure rules that current techniques cannot easily evade, leading to previously impossible levels of regulatory control.
On balance, that trend seems likely to continue; at the very least, the risk that it will do so is very real. One result that seems likely to follow from current trends in centralization and smarter and more global regulation is the legal restriction, and perhaps the prohibition, of online anonymity. As a practical matter, the rise of identification technologies combined with commercial and regulatory incentives have made it difficult for anyone other than the most sophisticated users to remain effectively anonymous. First wave internet regulation could not force the identification of every user and packet, but the second wave regulation is more adept, more international, and benefits from technological change driven by synergistic commercial and regulatory objectives. Law which harnesses technology to its ends achieves far more than law regulating outside technology or against it.
The consequences of an anonymity ban are likely to be negative. This paper attempts to explain how we came to this pass, and what should be done to avoid making the problem worse.
Part One of this article discusses the first wave of Internet regulation, before the year 2000, focusing on US law. This parochial focus is excusable because even at the start of the 21st Century a disproportionate number of Internet users were in the US. And, with only a very few exceptions – the greatest of which involve aspects of privacy law emanating from the EU’s Privacy Directive – the US either led or at least typified most of the First Wave regulatory developments.
The second wave of regulation has been much more global, so in Part Two, which concerns the most recent decade, the paper’s focus expands geographically, but narrows to specifically anonymity-related developments. Section A describes private incentives and initiatives that resulted in the deployment of a variety of technologies and private services each of which is unfriendly to anonymous communication. Section B looks at three types of government regulation, relevant to anonymity: (1) the general phenomenon of chokepoint regulation, and (2) the more specific phenomena of online identification requirements and (3) data retention (which can be understood as a special form of identification).
Part Three examines competing trends that may shape the future of anonymity regulation. It takes a pessimistic view of the likelihood that given the rapid pace of technical and regulatory changes the fate of online anonymity in the next decade will be determined by law rather than by the deployment of new technologies or, most likely, pragmatic political choices. It therefore offers normative and pragmatic arguments why anonymity is worth preserving and concludes with questions that proponents of further limits on anonymous online speech should be required to address.
Goaded by factors ranging from traditional public order concerns to fear of terrorism and hacking to public disclosures by WikiLeaks and others, both democratic and repressive governments are increasingly motivated to identify the owners of every packet online, and to create legal requirements that will assist in that effort. Yet whether a user can remain anonymous or must instead use tools that identify him is fundamental to communicative freedom online. One who can reliably identify speakers and listeners can often tell what they are up to even if he is not able to eavesdrop on the content of their communications; getting the content makes the intrusion and the potential chilling effects that much greater. Content industries with copyrights to protect, firms with targeted ads to market, and governments with law enforcement and intelligence interests to promote all now appreciate the value of identification, and the additional value of traffic analysis, not to mention the value of access to content on demand – or even the threat of it.
Online anonymity is closely related to a number of other issues that contribute to communicative freedom, and thus enhance civil liberties. These include the free use of cryptography, and the use of tools designed to circumvent online censorship and filtering. One might reasonably ask why, then this essay concentrates on anonymity, and on its inverse, identification technologies. The reason is that anonymity is special, arguably more essential to online freedom than any other tool except perhaps cryptography (and one of the important functions of cryptography is to enable or enhance anonymity as well as communications privacy). Without the ability to be anonymous, the use of any other tool, even encrypted communications, can be traced back to the source. Gentler governments may use traffic analysis to piece together networks of suspected dissidents, even if the government cannot acquire the content of their communications. Less-gentle governments will use less-gentle means to pressure those whose communications they acquire and identify. Whether or not anonymity is sufficient to permit circumvention of state-sponsored communications control, it is necessary to ensure that those who practice circumvention in the most difficult circumstances have some confidence that they may survive it.
Cite as: Michael Froomkin, Testing Manual Override of Attribution, JOTWELL (Jan. 9, 2015) (reviewing A. Michael Froomkin, Anonymity in a Time of Surveillance (2015, forthcoming)).
Sep 17, 2014 Michael FroomkinZetasec 2
Sample Author, Nothing Here Folks, 2013 J. Irrep. Results -12.
Let’s see what it does.
