Yearly Archives: 2009

Eclectic Decision Theory

Itzhak Gilboa, Questions in Decision Theory (August 2009).

Itzhak Gilboa is a prominent economist who has made large contributions to decision theory, including the theory of decisionmaking under uncertainty (as opposed to risk) and the use of case-based or analogical strategies of reasoning, both of which are important topics for legal theory.  In this unpublished paper, Gilboa offers a relatively informal and accessible overview of conceptual and empirical problems in and with decision theory.  Gilboa writes as a sympathetic and informed critic from within, rather than a hostile critic from without, which gives his analysis all the more weight.

Gilboa provides an introduction to five theoretical questions currently troubling the field: the status and nature of the rationality assumption, the meaning of “probability” and the limits of the Bayesian approach to probability, the meaning of “utility” and the relationship(s) between utility and notions such as well-being and happiness, the choice between rules and analogies as strategies of reasoning, and the problem of group decisionmaking, including the key question whether and when groups make better or worse decisions than the individuals who constitute them (“the wisdom of crowds” versus “the madness of crowds”).  All five sections are highly illuminating, but I will discuss only one, which is Gilboa’s treatment of probability and uncertainty.  The issues are central for legal and political decisionmaking, in which information costs are high and experiments – natural or otherwise – are usually unthinkable, so that certainty is rare. Continue reading "Eclectic Decision Theory"

Historians of the Singular: Lawyers, Judges, and the Work of Factual Construction

Gregory J. O’Meara, S.J., The Name is the Same, But the Facts Have been Changed to Protect the Attorneys: Strickland, Judicial Discretion, and Appellate Decision-Making, 42 Val. U. L. Rev. 687 (2008).   (BePress Draft Version; SSRN draft version)
Jonathan Simon

Jonathan Simon

Gregory J. O’Meara, S.J., an Assistant Professor at Marquette University Law School, has written a breakthrough article on role of fact interpretation in the judicial construction of criminal law rules that is likely to escape the attention of many criminal law teachers and practitioners who would benefit from it.   On the surface it purports to be a careful doctrinal analysis of the Supreme Court’s hidden expansion of the ineffective assistance of counsel doctrine, in defiance of the Anti-Terrorism and Effective Death Penalty Act’s (AEDPA), 28 U.S.C. Sec. 2254(d)  (2008), prohibition on even the Supreme Court using Habeas cases to make new legal rules.   From Strickland v. Washington, 466 U.S. 668 (1984), to the most recent cases, Wiggins v. Smith, 539 U.S. 510 (2003); Rompilla v. Beard, 545 U.S. 374 (2005), O’Meara shows that the Court continues to express loyalty to the logic of the Strickland rule.   However, when the analysis is extended to the facts of recent cases, O’Meara shows convincingly that the Court has found relevant facts explicitly treated as irrelevant in Strickland.  Readers who get a bit farther in discover that the article is also a rather copious introduction to the late continental philosopher and theorist of narrative, Paul Ricoeur.   Unfortunately, neither of these highly technical subjects is likely to attract the general teacher or practitioner of criminal law, but this is precisely who should read the article.

Indeed, the discussion of AEDPA, as important as it is for capital lawyers, is really only a case study of a very important argument about the role of factual construction in legal change.   Drawing on the work of Anthony Amsterdam and Jerome Brunner, Minding the Law (2000),  O’Meara sets out to convince lawyers of something many practitioners appreciate but which law students (and teachers) strenuously resist, i.e., the idea that facts rather than law are primary craft of legal advocacy (or judicial construction).   As O’Meara compelling demonstrates with the Strickland line of cases is that rigid controls on law leave judges free to change norms by expanding their vision of relevant facts.   There are parallels with Mark Kelman’s classic article Interpretive Construction in the Substantive Criminal Law, 33 Stan. L. Rev. 591 (1982).   Kelman identified a number of techniques by which courts routinely rework facts, for example, time framing which stretches or shrinks the time frame in which the defendant’s actions are considered.   In this article, O’Meara reaches into the formidable and largely legally unplumbed depths of the late philosopher Paul Ricoeur, to develop a systematic analysis of how facts get changed.   Ricoeur analyzes the work of non-fiction writers as a three stage process.   The first stage is one of “documentation” in which a factual archive established.   The second stage is one of explanation, in which certain facts from this archive are selected.   In this process, a key dimension is the “scale” in which facts are framed.   Since scale in narrative can be subtle (unlike in architecture or engineering), narratives can be significantly shifted by resetting the scale (or density) with which facts are explained.   The third phase, that of narration, is where the scaled array of facts are connected with a set of “because” clauses which weave a causal story into them.   While many legal scholars influenced by Robert Cover have attended to the importance of narration, few have noticed the earlier work of scale setting which largely determines the range of causal explanations that will seem relevant.   By bringing out this missing dimension of narrative work, O’Meara has advanced a systematic understanding of fact exegesis in law. Continue reading "Historians of the Singular: Lawyers, Judges, and the Work of Factual Construction"

Straight Talk About Game Gods

Joshua A.T. Fairfield, The God Paradox, 89 B. U. L. Rev. 1017 (2009).

Joshua Fairfield’s The God Paradox takes an unambiguous normative proposition—that operators of online networks should operate those networks in ways that mirror common carrier principles—and justifies that proposition in unmistakably pragmatic terms:  Doing so may or may not make users of those networks better off, and may or may not make society better off.  But it will clearly make the operators themselves better off, because reducing their control over user behavior is likely to reduce their risks of liability.  That’s the “paradox.”  Indirectly, that approach will benefit users and society.

The article situates its “less control means less risk of liability” argument in the context of multiplayer online videogames and other virtual worlds, which are operated by firms that refer to themselves, in context, as “game gods”:  both formally and functionally, the operators claim the power to monitor and control all aspects of individual user or player experience, including both online behavior and communication with other users.  In part “game gods” justify this power in terms of maintaining the artistic and competitive integrity of the game environments.  That justification is not addressed in this article.  In part the “gods” justify this power in terms of self-interest:  Control reduces liability.  Maintaining an acceptably low risk of liability is essential to maintaining the gods’ incentive to supply the game environments. Continue reading "Straight Talk About Game Gods"

An Invitation to a Global Discussion on the Legal Profession

An invitation from the Legal Profession Section Editors
Tanina Rostain

John Flood and Tanina Rostain

As legal profession scholars have observed, law practice is being reinvented at an ever-accelerating speed the world over.  Legal services are being routinized, commoditized, outsourced, disaggregated, reassembled, computerized, and unbundled—among associates, law firm partners, solo practitioners, contract lawyers, paralegals, law consultants, temporary law workers, websites, and online shared platforms.  In the corporate realm, multinational companies demand that their lawyers be available to provide services 24/7 in every corner of the globe.  In the meantime, lawyers representing individuals, non-profits, and NGOs increasingly use new technologies and transnational resources and strategies to develop more effective and efficient models of service delivery.  Despite this rapid pace of change, many lawyer regulatory regimes lag behind and continue to hew to a model of regulation tied to geographical jurisdiction and domestic legal norms.

In recent years, the field of the legal profession has benefitted from a proliferation of research by scholars seeking to understand the many changing dimensions of the legal profession.  Researchers have drawn on a broad range of social science disciplines, methodological approaches, and multilingual proficiencies to investigate legal practice(s) in a wide variety of geographic settings. Continue reading "An Invitation to a Global Discussion on the Legal Profession"

Meet the Editors

Section Editors

The Section Editors choose the Contributing Editors and exercise editorial control over their section.  In addition, each Section Editor will write at least one contribution (“jot”) per year.  Questions about contributing to a section ought usually to be addressed to the section editors.


Professor Alison Christians
University of Wisconsin School of Law Continue reading "Meet the Editors"

Meet the Editors

Section Editors

The Section Editors choose the Contributing Editors and exercise editorial control over their section. In addition, each Section Editor will write at least one contribution (“jot”) per year. Questions about contributing to a section ought usually to be addressed to the section editors.


Professor A. Michael Froomkin
University of Miami School of Law Continue reading "Meet the Editors"

Meet the Editors

Section Editor

The Section Editors choose the Contributing Editors and exercise editorial control over their section.  In addition, each Section Editor will write at least one contribution (”jot”) per year.  Questions about contributing to a section ought usually to be addressed to the section editors.


Professor Patrick O. Gudridge
Associate Dean
University of Miami School of Law Continue reading "Meet the Editors"

Meet the Editors

Cyberlaw Section Editors

The Section Editors choose the Contributing Editors and exercise editorial control over their section. In addition, each Section Editor will write at least one contribution (”jot”) per year. Questions about contributing to a section ought usually to be addressed to the section editors.


Professor James Grimmelmann
New York Law School Continue reading "Meet the Editors"

Meet the Editors

Legal Profession Section Editors

The Section Editors choose the Contributing Editors and exercise editorial control over their section. In addition, each Section Editor will write at least one contribution (”jot”) per year. Questions about contributing to a section ought usually to be addressed to the section editors.


Professor John Flood
University of Westminster School of Law Continue reading "Meet the Editors"

Meet the Editors

Section Editors

The Section Editors choose the Contributing Editors and exercise editorial control over their section.  In addition, each Section Editor will write at least one contribution (”jot”) per year.  Questions about contributing to a section ought usually to be addressed to the section editors.


Professor Caroline M. Bradley
University of Miami School of Law Continue reading "Meet the Editors"