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For Truth in Semantics
Kwame Anthony Appiah
It is odd that someone with a memory as poor as mine should remember so pricesely when he first heard mention of assertibility conditions. But I think I do. For I can remember going into Philip Pettit’s rooms in Trinity Hall when I was an undergraduate and seeing on the tiny blackboard he had there the three expressions t-c’s, a-c’s and j-c’s. Never one to miss an opportunity to avoid discussing my essay, I asked what these expressions stood for: the answer, as of course you have already worded out, is ‘truth conditions’, ‘assertibility conditions’ and ‘justification conditions’. Because I can remember this I know that from the very beginning I was taught not to assume that when someone said ‘assertibility conditions’ they were talking about evidence that warranted an assertion. Of course, for Dummett, a-c’s are j-c’s; but if I had not started off thinking of this as a substantial claim, I might never have become interested in theories that use the notion of a condition for assertion that is not that of having evidence for the belief that the assertion expresses. I think that would have been a pity, as I wrote a doctoral dissertation (1981) and then a book (1985b) that showed how such a notion solved the central questions of the semantics of indicative conditionals. On the way I became interested in Dummett’s use of the term ‘assertibility’, and this book is the product. ‘Interested’ may be too mild a word. For this book is a polemic. Though I shall make positive suggestions from time to time, my main intention is to attack the cluster of views that Michael Dummett has developed under the banner of ‘anti-realism’. I think anti-realism should be given up: given up because many of its claims are false, and the conjunction of its central claims is inconsistent. At the heart of anti-realism are three claims: (a) that standard truth-conditional theories of meaning—which Dummett has styled ‘realist’—are objectionable because such truth conditionals transcend verification, (b) that such theories are committed to bivalence, and that this entails verification-transcendence and (c) that we should therefore develop an alternative style of semantic theory, whose basic notion is not truth but assertibility. I call (a) the negative programme, and (c) the positive programme of anti-realism. This collection of ideas is of quite general interest. For (a) is related to verificationism, which is in the background of all modern analytic philosophy, and (c) derives from pragmatism, the other main tradition of modern empiricist thought. Because of this, I think, we can take a look through the lens of anti-realism at how more general issues in epistemology impinge on the philosophy of language. I think I am an empiricist: ‘empiricism’ is a broadly encompassing term. But I have three major objections to these claims. I deny (a) because it rests on a misunderstanding both of what is involved in a theory’s being verifiable and of the way that truth conditions operate in realist theories. I deny (a), that is, despite the fact that I am sympathetic to verificationism. That is my first objection. I deny (c) because assertibility-based theories entail falsehoods about meaning. That is my second. I also think (a) and (c) are inconsistent, since assertibility-based theories are verification-transcendent if truth-based theories are; so you might say my third objection is that you cannot have verificationist grounds for pragmatism. You will notice that I say nothing about (b), which Dummett has made central to his position. Dummett’s view is that bivalence entails verification-transcendence; I deny this also, because it rests on the same misunderstanding that vitiates (a). So I do not need to discuss the connection between bivalence and realism, since, as Dummett would concede, it is only if realism is verification-transcendent that bivalence is an issue. Neil Tennant has kindly shown me a manuscript of his book, Anti-Realism and Logic, where he defends the theses that in the domain of formal objects bivalence fails, and I am sympathetic to the view that anti-realism of some sort is indeed plausible there. But my concern is with empirical reality, and here, as I say, I shall argue that anti-realism is wrong. Because I think Dummett misunderstand the role of truth conditions in realist theory, I begin, in chapter 1, by giving a brief outline of what I think is the correct account. Polemic, though addressed against one position, is usually intended as an indirect defence of another. The full theory, of which chapter 1 is an adumbration, I give in Assertion and Conditionals (1985b). Chapter 2 outlines both the positive and negative programmes of anti-realism. That much is given, the stage is set for part II, which offers the arguments against Dummett’s understanding of verifiability; and part III, which argues against his pragmatist leanings. So perhaps I should say this book is a polemic preceded by a sketch of its background. In part II I try to clarify the relevant facts about verification; this is the attack on (a), the negative programme of anti-realism. Chapters 6-8, which make up the bulk of part III, are the attack on (c), the positive programme. Chapter 6 shows that anti-realism is verification-transcendent if realism is. Chapter 7 shows that a particular version of assertibility condition semantics, suggested by Crispin Wright, Dummett’s stoutest lieutenant, fails. Chapter 8 explains why no assertibility condition theory of the kind Dummett envisages could succeed. In chapter 6 I suspend my disbelief in Dummett’s notion of verification-transcendence. I do not think that the arguments there are an objection to the positive programme: I do not think that the fact that a theory transcends verification in Dummett’s sense is an objection to it at all. The force of the arguments is to prise apart the positive and negative programmes by showing that the negative programme undermines the positive one. That is why the further arguments of chapters 7 and 8 are needed to show, independently, that the positive programme fails. Dummett’s views are usually seen as a generalization of intuitionist criticism of Platonism in mathematics. I shall say little about intuitionism in se but I do argue, at various points, that mathematics is a misleading model. If that is right, my reticence about intuitionism is in order. My own view is that a realist—that is, a truth-conditional—semantics need not be objectionable on verificationist grounds, if verifiability is properly construed. Unlike most realists, my position is thus not that the truth of realism requires that we give up demanding verifiability of our theories. Whether we should demand that our theories be verifiable is another question: for the moment, I am disposed to do so—subject to caveats entered at the end of 5.5—largely because I would rather be epistemologically safe than sorry. But if we should not, that is another reason for giving up anti-realism. Conceding verificationism is in part, then, a rhetorical strategy. It is widely agreed that anti-realism is verificationist and some people have objected to it on that ground alone. If we can show that anti-realism is objectionable even if verificationist, which anti-realism clasps to its bosom, is true, that strengthens the case against it. I mentioned just now some caveats that I enter at the end of 5.5 about the possibility of a realist’s accepting some form of verificationism. These caveats have the effect of limiting verificationism to the claim that sentences ascribing certain properties to objects ought to be verifiable. I do not say there which properties these should be: but I do think it is consistent with realism to insist that this condition be satisfied for some objects by every property that is expressed by a predicate to which our semantics assigns an interpretive axiom. This, however, is a mere expression of opinion. For reasons that I shall give in 5.5, I do not think it need be part of the project of this book to argue for such a claim. In fact, the form of verificationism I assume in part I has been identified by Wright as a (weak) kind of anti-realism, and it may be as well to bear this in mind throughout part I, until I defend my doubts about this identification. But if Wright is correct, that does not weaken the force of my argument. For what I show is that, whether or not we call this form of verificationism ‘anti-realist’, it does not threaten realist semantics in the way anti-realists have argued. If I were asked what the importance of these questions is, I would say, first: the negative programme of anti-realism is verificationist, the positive programmed is pragmatist; to show that the former is consistent with realism and the latter cannot be carried out, should be of interest to many with no established interest in anti-realism in semantics. I would go on to add, however, that the persistence of the anti-realist view is one of the most serious obstacles to the acceptance of the realist programme, and it diverts much intelligence away from developing realist theories. I hold the spread of true belief and the dissipation of false belief, especially where justified by sound reasoning, to be, ceteris paribus, desirable. This book is meant as a contribution to that end. To borrow a familiar Wittgensteinian image: there is a ladder of argument here up which to climb, but when you get to the top, the ladder is only for throwing away. This book is intended to make itself unnecessary.
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Redefining the Supreme Court's Role: A Theory of Managing the Federal Judicial Process
Samuel Estreicher and John E. Sexton
Is the United States Supreme Court facing a workload crisis that threatens its capacity to perform its constitutional functions? Former Chief Justice Warren Burger and others have proclaimed the existence of such a crisis and have proposed the creation of a new national court of appeals that would promulgate nationally binding law in cases referred to it by the Supreme Court. Samuel Estreicher and John Sexton argue that what the country needs is not a new appellate court but a redefinition of the role of the Supreme Court in our society. The authors, who recently directed a large study on this topic for New York University, suggest that the volume of litigation and the pervasive reach of federal law make it impossible for the Supreme Court to be the ultimate check on error in our legal system. They propose instead that the Supreme Court should act as the manager of the national lawmaking process, overseeing the work of the federal and state courts and intervening only when necessary. Using this managerial concept of the Supreme Court, the authors develop comprehensive criteria for Supreme Court case selection - criteria that would systematize the Court's own vague and inconsistent case selection process - and then apply these criteria to each of the cases that came before the Court in a specific period. By assessing empirically the Courts "workload crisis," they find that a significant portion of the time and energies of the Supreme Court is being misdirected and that the Court has ample capacity to decide all the cases that truly require its attention.
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Human Rights Law-Making in the United Nations: A Critique of Instruments and Process
Theodor Meron
This book is an examination and critique of the methods employed by the United Nations in adopting human rights instruments. Three of the major instruments—the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination Against Women, and the International Convention on Civil and Political Rights—are selected for detailed study. The author concludes that the present system of law-making is inadequate and points to many examples of unclear provisions and of overlap and conflict within a single instrument or between instruments. In order that this important function of the organized international community—that of protecting human rights—can work effectively, improvements in law-making techniques are necessary, and the author concludes with some suggestions for reforms both of the institutions and of the process itself.
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The View from Nowhere
Thomas Nagel
Human beings have the unique ability to view the world in a detached way: We can think about the world in terms that transcend our own experience or interest, and consider the world from a vantage point that is, in Nagel's words, “nowhere in particular.” At the same time, each of us is a particular person in a particular place, each with his own “personal” view of the world, a view that we can recognize as just one aspect of the whole. How do we reconcile these two standpoints--intellectually, morally, and practically? To what extent are they irreconcilable and to what extent can they be integrated? Thomas Nagel's ambitious and lively book tackles this fundamental issue, arguing that our divided nature is the root of a whole range of philosophical problems, touching, as it does, every aspect of human life. He deals with its manifestations in such fields of philosophy as: the mind-body problem, personal identity, knowledge and skepticism, thought and reality, free will, ethics, the relation between moral and other values, the meaning of life, and death. Excessive objectification has been a malady of recent analytic philosophy, claims Nagel, it has led to implausible forms of reductionism in the philosophy of mind and elsewhere. The solution is not to inhibit the objectifying impulse, but to insist that it learn to live alongside the internal perspectives that cannot be either discarded or objectified. Reconciliation between the two standpoints, in the end, is not always possible.
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Toleration and the Constitution
David A.J. Richards
Why have the issues of religious liberty, free speech and constitutional privacy come to figure so prominently in our society? What are the origins of the basic principles of our constitutional law? This work develops a general theory of constitutional interpretation based on an original synthesis of political theory, history, law, and a larger approach to the interpretation of culture. Presenting both historical and theoretical arguments in support of a theory that affirms the moral sovereignty of the people, Richards maintains that toleration, or respect for conscience and individual freedom, is the central constitutional ideal. He discusses such current topics of constitutional controversy as church-state relations, the scope of free speech, and the application of the constitutional right to privacy, to abortion, and consensual adult sexual relations.
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How Free Are We?: What the Constitution Says We Can Do and Cannot Do
John E. Sexton and Nat Brandt
How Free Are We? tackles the complex issue of how the Constitution affects our everyday lives from the bedroom to the workplace to the voting booth. Steering clear of the legal language of the document itself, this book uses a lively question-and-answer format to address such issues as the right to die, environmental law, the rights of minors, religious freedom, the rights of homosexuals, and the evolving rights of citizens vis-à-vis the police and the courts. Each of the more than 125 entries contains both the historical background and the contemporary status of constitutional law. As a result, the book dramatizes the fact that the Constitution is a living, breathing document constantly subject to interpretation and change. Chapters include: The Making and Amending of the Constitution, Congress, The Presidency, The Supreme Court, The States, The Right to Vote, Religion, Freedom of Expression, Individual Rights, Equality, Criminal Justice, The Schools, The Workplace and The Military.
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Assertion and Conditionals
Kwame Anthony Appiah
This book develops in detail the simple idea that assertion is the expression of belief. In it the author puts forward a version of 'probabilistic semantics' which acknowledges that we are not perfectly rational, and which offers a significant advance in generality on theories of meaning couched in terms of truth conditions. It promises to challenge a number of entrenched and widespread views about the relations of language and mind. Part I presents a functionalist account of belief, worked through a modified form of decision theory. In Part II the author generates a theory of meaning in terms of 'assertibility conditions', whereby to know the meaning of an assertion is to know the belief it expresses.
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Administrative Law and Regulatory Policy: Problems, Text, and Cases
Stephen G. Breyer and Richard B. Stewart
In writing this new edition, we have tried to increase the clarity of our presentation, to deepen the discussion of certain issues, and, of course, to update the materials throughout the book. Here, we wish to call attention to three major changes. First, we have reorganized certain sections in order to promote conceptual clarity and pedagogical effectiveness. We have expanded and reorganized Chapter 4 in order to focus greater attention on the general problem of substantive judicial review of agency decisions. We explore the traditional nature of “review of fact,” “review of law,” and “review of discretion,” contrasting older and more recent cases in part to flag some of the difficulties arising out of current judicial attitudes toward “review.” We have also restructured the materials at the end of Chapter 7 to emphasize some of the principal issues raised by the effort to apply hearing rights to different program areas without attempting to provide detailed account of all the case law. Finally, we have reorganized the first part of Chapter 9 in an effort to clarify historical and contemporary problems of jurisdiction and remedies. Second, we have sought to develop further materials designed to acquaint students with the policy and institutional background of the most important types of administrative programs. We have added discussions of two additional basic types of regulation: “standard setting” (in connection with State Farm, the “air bags” case) and “screening” (in connection with the “Benzene” and “Cotton Dust” cases). With the addition of these examples the book contains a fairly complete typology of regulation, which can be taught in some depth by the interested teacher. We have also rewritten Chapter 7 to provide a more complete account of the social security disability program as an example of “mass justice.” Third, we take account of “deregulation” and, where appropriate, raise policy problems related to the “regulatory reform” that has taken place or has been proposed since the first edition. We have expanded, for example, the discussion of television regulation in Chapter 5 to take account of “deregulatory” developments. Our general aim remains the same as in the first edition. We ask the student both to understand administrative law and to think about its strengths and weaknesses in an age of regulatory reform. We have organized the book to facilitate the teaching of a traditional procedural course in administrative law. The discussions of substantive regulation and mass justice administration can be used to enrich that course or to survey the field of classical regulation, depending on the teacher’s interests and emphasis. The problems included throughout are specifically designed to facilitate classroom discussion and review of the principles and material in the particular subsection preceding the problem. We have successfully used these problems as a basis for written assignments and class presentation. Our teachers’ manual shows how we use the problems to teach our class.
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Civil Procedure: Cases and Materials
John J. Cound, Jack H. Friedenthal, Arthur R. Miller, and John E. Sexton
This Fourth Edition, which has been prepared by Jack H. Friendthal, Arthur R. Miller, and John E. Sexton, had had the benefit of many comments of colleagues from the large number of schools in which the first three editions have been used. These responses have been gratifying in confirming our own conclusion that the book is a highly successful teaching tool, regardless of the precise form of the civil procedure course being taught or of the specific material covered in it. As a result, this Fourth Edition preserves the same basic format and much of the material found in the earlier editions. Why then is a new edition necessary? Certainly a revision cannot be justified simply to achieve relatively trivial improvements or merely to replace the original text with more recent matter of similar substantive content. The reason for this volume is that since publication of the Third Edition there have been important developments in several areas of procedure (for example, jurisdiction over persons and property), which give rise to intellectually stimulating questions and policy considerations that require inclusion in a contemporary casebook. Thus, the chapter on jurisdiction has been reconceptualized and updated in light of the recent Supreme Court decisions and other developments The chapter on class actions has been substantially reworked and expanded, in recognition of the tremendous growth of litigation in that format; the chapter on res judicata and collateral estoppel has been reworked completely; and new sections, reflecting the recent amendments to the Federal Rules of Civil Procedure have been added to other chapters. In addition, a chapter has been added on alternative dispute resolution to recognize the importance of this strikingly new phenomenon. We have looked for modern cases in which the facts are interesting, in which the conflicting policies seem to be in equipoise, or in which the context has extrinsic fascination, rather than for cases whose opinions offer tight little monographs on various aspects of procedure. After all, a student’s preparation and participation in class discussion frequently are in direct proportion to the extent to which the materials are interesting and involving. The notes and questions that follow nearly every principal case have been designed for the most part to encourage deeper analysis of the problems raised in the principal cases rather than to fill the student with additional detail. At the same time, we have tried to provide sufficient and selective references to secondary sources for the student who wishes to look further. We have not aimed at a “hard” book. Civil procedure is sufficiently mysterious to law students that its ability to challenge survives best when presented in a clear and simple environment. The danger is not of patronizing students, but of losing them. In the textual survey in Chapter One, in the long note on “the nature of the trial process” in Chapter Eleven and in briefer introductions to other sections of the book, we have tried to tell students where they are going, and through extensive cross-referencing and questions we have tried to force them to review where they have been. We have not concentrated on the law of any one jurisdiction, although there is substantial emphasis on the operation of the Federal Rules of Civil Procedure, which have served as a model and focal point for serious discussion and implementation of procedural reform in a large majority of the states. In general the book operates on a comparative basis, except in contexts in which this approach has more limited utility than an in-depth exploration of a single system. A careful attempt has been made to strike a balance between exploration of underlying philosophical problems and analysis of day-to-day matters that arise frequently in office practice or in the courts. Our theory is that a mixture of both is necessary to give students a comprehensive understanding of procedure. How else can they learn why, even today, after so many years of study, revision, and reform, major proposals for alteration of adjective law are still being made, and, undoubtedly, will continue to be made in the years to come? In addition, considerable use has been made of historical material, not only when it is directly relevant to today’s system, as in the study of the right to jury trial, but also in contexts in which it is necessary for a true grasp of the basic problems. Because course in civil procedure vary greatly not only as to the hours allotted but also as to whether they are mandatory or optional and as to the year during which students are expected to take them, the materials in this edition are designed to provide maximum pedagogical flexibility. The cases and subjects covered have been selected primarily for a comprehensive, year-long course beginning in the first term of the law student’s first year; yet they may easily be divided into two or more quite different subjects to be given either as preliminary or advanced courses. The first chapter of this casebook sets forth a basic, textual statement of a procedural system’s framework, without which an understanding of any particular part of the system is difficult, if not impossible. This initial discussion defines those procedural terms necessary for comprehending legal opinions, whether they be of a procedural or substantive character. This we believe, is an important function of a course in procedure, especially when it forms part of the first year curriculum. The textual analysis, which can be assigned for study with little or no class discussion, is followed by a series of illustrative cases (some of which are changed from the Third Edition) designed to raise the basic problems of a procedural system, to illustrate the interplay among its various aspects, and to highlight many of the points in the earlier text. An effort has been made to select cases that can be handled with relative dispatch so that the introduction does not become a de factor study of the entire course. In general, Chapter One is intended to let students form some idea as to the nature of the litigation “forest” before attempting to make them master of any of its “trees.” After the first chapter, the structure of the book proceeds in a chronological fashion. The authors believe that this is the most logical way to teach civil procedure because it permits students to see the evolution and maturation of the litigation process. Furthermore, by putting personal and subject-matter jurisdiction and the materials dealing with the history of civil procedure before such subjects as pleading, joinder, and discovery, first year students are given some “breathing time” in which to absorb enough substantive law from torts, contracts, and property courses to enable them to grasp the significance of such matters as “pleading a cause of action,” “contributory negligence,” and “joint and several interests.” Finally, the authors have concluded that despite its conceptual difficulty, person jurisdiction is a much more teachable and exhilarating introduction to civil procedure than is pleading. The chapter on jurisdiction includes an extensive treatment of the federal courts. An investigation of a single system in detail seems the best way to impress students with the significance attached by courts to the concept of jurisdiction over the subject matter. The length of this material is greater than is customary in a civil procedure book, but part of it may readily be treated at the end of the course or be eliminated. We believe that without a working knowledge of such concepts as diversity of citizenship and ancillary jurisdiction, the procedural ramifications of the Erie doctrine and such indisputably procedural problems as joinder cannot be properly understood. We have concluded that to omit a plenary section on common-law pleading, the forms of action, equity, and the nineteenth century reforms (as many procedure casebook do) would only lead to the introduction of this material in driblets by lecture during the study of modern pleading and other subjects with no substantial saving in time and probably at a cost in comprehension. At the same time we have eschewed the temptation to overcompensate for the disappearance of courses in equity; we have not attempted to cover the substantive doctrines of that discipline in a historical note. Although we believe history is invaluable to the study of modern procedure, the modern pleading chapter has been planned as a choate whole, and does not require the coverage of the earlier background chapter. The materials in this volume refer to and are augmented by a Supplement, which contains not only the federal statutes and rules governing procedure, as is traditional, but also comparative state provisions. In some cases other materials, such as notes of Advisory Committees, also are included. Thus at a glance students are able to see the different solutions put forth for particular procedural problems and are induced to explore the reasons why one rule has not been universally acclaimed as “superior” and adopted by all jurisdictions. Use of the Supplement has the added advantage of permitting teachers and students to keep abreast of interesting alterations in the oftenchanging statutes and rules governing civil procedure, without constant revision of the casebook itself. Our practice has been to revise and reissue the Supplement every two years, adding recent significant cases, thereby achieving considerable flexibility at a nominal cost to students. All teachers of civil procedure are well aware of how difficult it is for students to grapple with problems in the abstract; for example in the field of pleading they may have only a vague notion of what a pleading looks like. The supplement therefore also contains a litigation time-chart and samples of the documents that might actually have formed a portion of the record. It is important to note that these samples are not designed as models to be emulated. To the contrary, they often contain defects intended to induce students to criticize them in light of knowledge they have obtained from the cases and classroom discussion. The cases and excerpts from other materials obviously have been extensively edited in order to shorten them and clarify issues for discussion. Except in a few situations, the materials from the Third Edition have not been significantly shortened in preparing the Fourth Edition. With regard to footnotes: the same numbering appears in the casebook as appears in the original sources; editor’s footnotes are indicated by letters.
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Labor Relations Law in the Public Sector: Cases and Materials
Harry T. Edwards, R. Theodore Clark Jr., and Charles B. Craver
This casebook contains more material than would normally be covered in a two or even three hour course. The authors believe that each teacher should have the opportunity for personal selection.
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Takings: Private Property Under the Power of Eminent Domain
Richard A. Epstein
If legal scholar Richard Epstein is right, then the New Deal is wrong, if not unconstitutional. Epstein reaches this sweeping conclusion after making a detailed analysis of the eminent domain, or takings, clause of the Constitution, which states that private property shall not be taken for public use without just compensation. In contrast to the other guarantees in the Bill of Rights, the eminent domain clause has been interpreted narrowly. It has been invoked to force the government to compensate a citizen when his land is taken to build a post office, but not when its value is diminished by a comprehensive zoning ordinance. Epstein argues that this narrow interpretation is inconsistent with the language of the takings clause and the political theory that animates it. He develops a coherent normative theory that permits us to distinguish between permissible takings for public use and impermissible ones. He then examines a wide range of government regulations and taxes under a single comprehensive theory. He asks four questions: What constitutes a taking of private property? When is that taking justified without compensation under the police power? When is a taking for public use? And when is a taking compensated, in cash or in kind? Zoning, rent control, progressive and special taxes, workers’ compensation, and bankruptcy are only a few of the programs analyzed within this framework. Epstein’s theory casts doubt upon the established view today that the redistribution of wealth is a proper function of government. Throughout the book he uses recent developments in law and economics and the theory of collective choice to find in the eminent domain clause a theory of political obligation that he claims is superior to any of its modern rivals.
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Labor Law and the Employment Market: Foundations and Applications
Richard A. Epstein and Jeffrey Paul
Conference papers on labour law, labour relations and the labour market in the USA—discusses the labour contract and termination of employment; comments on economic implications of labour law relating to trade unions, as well as individual workers rights and collective trade union rights; outlines some differences between labour markets, financial markets and corporate law; studies the work of comparable worth concept in the Equal Pay Act and antidiscrimination legislation; as well as UK labour law, and racial discrimination effects earlier laws.
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Civil Procedure
Jack H. Friedenthal, Mary Kay Kane, and Arthur R. Miller
This handbook, created law students, paralegals, professional fiduciaries and lawyers, offers a detailed, comprehensive treatment of the basic rules and principles of civil procedure. All of the subjects covered are likely to be presented in first year law school courses in civil procedure. It teaches what civil procedure is and how it is used in a court of law. Civil procedure is a system consisting of a set of general elements, devices and policies. Topics are presented as they occur in civil law practice: subject matter and personal jurisdiction and challenges to it; framing the issues to be tried; the parties; discovery; pretrial conference; trial preparation and process; verdicts and judgments: their binding effect, enforcement and review on appeal. The last chapter addresses specialized civil proceedings including class actions, derivative lawsuits and interpleader actions.
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Punishment and Welfare: A History of Penal Strategies
David W. Garland
This book is an original and significant contribution to the study of punishment, criminal justice and social regulation. Intended as an in-depth analysis and critique of the contradictions which affect contemporary penal policy, it traces the historical development and social significance of penal strategies, linking them to the social institutions and ideologies which they support. In the course of this investigation the book explores the relation of punishment to politics, the historical formation and development of criminology, and the way in which penal reform grew out of complex set of political projects which founded the modern ‘Welfare State’. Its analyses powerfully illuminate many of the central problems of contemporary penal policy, demonstrating how these problems grew out of the political positions and theoretical compromises which were established in the first years of the twentieth century. Punishment and Welfare deals with issues and events which have previously been neglected or misunderstood, and its arguments effectively disrupt both the old and the new orthodoxies of penal history. In particular it takes issue with those conventional penologies which describe penal reform as a beneficial product of enlightenment and welfarism, while also showing the more sophisticated arguments of Michel Foucault and his followers to be misconceived in other respects. In conducting this investigation the author has developed a method of research which combines detailed historical and textual analysis with a broader sociological vision, thus synthesizing two forms of analysis which are more often developed in isolation. The book will be of value to those working in penology, criminology and social administration, as well as to philosophers, historians and those working in the penal institutions of the welfare state.
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Regulation of Lawyers: Problems of Law and Ethics
Stephen Gillers and Norman Dorsen
Titles like “Professional Responsibility” and “Legal Ethics” do not adequately describe the subject matter of this book. It is a book about the legal profession and about the practice of law. But the book goes beyond the legal rules governing the practice of law and include rules contained in ethical codes and, to a lesser extent, behavior that springs from custom and experience. These laws, ethical rules, and customs can be discussed from three perspective. Perhaps more immediate for those about to enter on a legal career are the rules that constrain working lawyers. In such areas as competence, gees, advertising and solicitation, client secrets, conflicts of interest, negotiation, and the attorney-client relationship: what may you do, how may you behave, with confidence that your conduct will not land you before a disciplinary committee or in a civil lawsuit and, sometimes more important, will not damage your reputation among your peers? The second perspective of the course is the relationship between profession and society. The rules lawyers impose on themselves or that are imposed on them, taken together, define the nature and operation of the profession as an entity, and therefore, to an extent, the behavior of our legal institutions and the quality of our social justice. For example, a rule that allows lawyers to advertise certain kinds of information will influence the conduct of individual members of the bar. But it will also affect whether, and how, large categories of people use lawyers and the size of legal fees. Similarly, a rule that prohibits or requires a lawyer to reveal certain kinds of information about a client will control the lawyer’s conduct, but it will also affect which client populations use lawyers and how. In short, nearly every rule, whatever its source, has social and political consequences, although there is often disagreement both over what these consequences will be and whether they should be avoided or encouraged. About to go off into law practice, you may be more interested in such questions as: "How do I behave?” and “How can I stay out of trouble?” than in asking “What are the consequences to society and justice if one or another of a particular ethical rule is applied to America’s two-thirds of a million lawyers?” Still, the last question is important and, if not as immediate, will from time to time arise in the course of your professional life. Both kinds of questions, but more so the second, engender different, and sometimes vehement, responses. Why? In part because to answer them we must call upon political and moral values more fundamental than the “ethics” that inform various codes; and, of course, political and moral values of different people differ substantially, sometimes diametrically. Furthermore, in addressing these questions, we are likely to make a threshold determination, conscious or not, of the extent to which we want the answers to further our self-interest. However we couch our responses, in truth whose best interest do we mean to protect? Those of society generally? The legal profession’s? The interests of lawyers in practices like the one we have or expect to have? Those of the particular client population we serve? Our firm’s? Our own? Law school and law practice, it is sometimes said, encourage more rather than less self-interest in addressing the kinds of questions that will be raised here. At the outset we wrote that rules governing the practice of law can be discussed from three perspectives and we have so far listed two. The third is the effect of lawyers’ work on the people who do the work, that is, the effect of role on self. For example, a rule that requires silence though it means that another will suffer injustice may cause discomfort to those who must obey it. As men and women, we consider it laudable to speak up to prevent injustice to others. As lawyers, we may be forbidden to do so. Can we reconcile these two positions, not intellectually or theoretically, but personally, within ourselves? A similar point can be made with regard to the rule that requires lawyers zealously to pursue the lawful foals of their clients, even if these goals (or the legal strategies to achieve them) offend the lawyer’s values. Little has been written on the effect of role on self in the context of lawyers’ work; we shall consider some of what there is in the first and final chapters and occasionally elsewhere in the book.
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The Rights of Young People
Martin Guggenheim and Alan Sussman
The laws affecting young people of all ages are complex, controversial, and have changed rapidly over the past twenty years. The rights of a minor in trouble may differ dramatically from those of an adult from the moment of arrest to the sentence imposed. Recent cases have also changed laws in the areas of child abuse and neglect, foster care, adoption, and the termination of parental rights. Further, special laws often govern a young person's right to medical treatment, contraceptive devices, and abortion. Clearly written and authoritative, this is an essential reference book not only for young people themselves, but for all concerned parents, educators, and social and health care professionals.
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American Domestic Priorities: An Economic Appraisal
John M. Quigley and Daniel L. Rubinfeld
Domestic programs and their budgetary implications will be scrutinized closely during the 99th Congress and the second term of the Reagan administration. Can further cuts in these programs reduce massive federal deficits? Or must spending cuts be made either in social security entitlements or in defense appropriations? Can the Reagan administration succeed in shifting many public functions from the federal government to the states? Would such transfers affect public support for these programs? Is a shift away from federal responsibility and control desirable? A forthright evaluation of domestic programs was conspicuously absent during the recent election campaign. Public debate about domestic priorities during the fall of 1984 was partisan and political, with ideological statements and misinformation the rule rather than the exception. In contrast, the urgency of the issue of the federal deficit, and of the unusually high interest rates the deficits cause, will now require elected officials to pay close attention to details of the domestic budget in defining public priorities for the next term. This will require facts about program operation, analysis of program outcomes, and knowledge of the budgetary consequences of policy alternatives. This book provides the kind of analysis needed for this crucial debate about federal policy. It offers a serious and in-depth evaluation of domestic programs and priorities, with coverage of a broad range of issues, from education and welfare to urban transportation, from housing policy to environmental regulation. It supplies a framework for assessing the proposals of the New Federalism and the consequences of continued trade deficits. This book presents the views of a group of nationally prominent economists, including many who have served in policymaking positions in the administrations of both parties. It carefully summarizes the recent history of government policies and their outcomes. The authors review program priorities and offer proposals for the future. The analysis is addressed to a wide audience and is enriched by lively commentary and discussion by economists knowledgeable about each of the substantive programs. The authors present no unified opinion about what our domestic priorities ought to be. There is, however, a general consensus as to appropriate directions in a number of areas. The analysts clearly sense that we ought to move to less intrusive federal command and control and also to greater state involvement in a number of programs such as transportation, education, and the environment. The New Federalism receives substantial support in many areas, not involving poverty and welfare, from a group of economists who supported a stronger federal role a decade ago. Despite this intellectual shift, the authors present convincing evidence that the Reagan program is really a federal budget-cutting exercise in disguise. They have forceful and controversial ideas about desirable reforms. They believe that substantial reductions in expenditures would adversely affect the quality of domestic programs. The economic perspective of the authors is an important one, given the current policy debate and the budgetary emphasis. Economic analysis of the 1983 federal budget indicates that spending on national defense amounted to $201 billion, and spending on social security, veterans' benefits, and interest came to over $442 billion. With a federal budget of $820 billion and political promises not to cut defense or social security, the administration appears committed to cuts in the remaining $240 billion. It is hard to see how a deficit of roughly $200 billion can be removed by domestic cuts alone. The only options appear to be tax increases, large and growing federal deficits, or blind faith that growth in the economy will alleviate all problems. Economists familiar with programs and outcomes clear up the often confused and confusing facts. For example, authors Sheldon Danziger and Daniel Feaster demonstrate irrefutably that poverty did increase under the first term ofthe Reagan administration. From 1978 to 1983 the poverty rate increased from 11.4 percent to 15.2 percent, while real dollars of federal aid to the poor decreased by more than one percent. Commentator Jennifer Wolch shows that many of those removed from the poverty rolls were in serious need of assistance—these are the “service-dependent" poor, who suffered severely during the first Reagan term. Further budgetary cuts in welfare can only exacerbate their problems, problems which cannot be cured simply by the benefits of a growing economy. Sherman Maisel's economic analysis of housing programs clarifies the effects of current subsidy policies and of the alternative programs proposed by the administration. Housing affordability is a spreading problem, argues Maisel, despite the fact that 75 percent of federal housing subsidies go to the non-poor. John Kain claims that the most pressing domestic social problem in America is discrimination in the housing market. His detailed analysis of the 1980 Census of Housing suggests that some gains have been made in reducing residential segregation. Campaign press releases indicated that student test scores had im- proved as a result of government programs. Economist Richard Murnane provides a detailed analysis of outcomes and program effects. He finds that reading skills of students have improved over the past decade, but that math and science skills have declined substantially. How can this crisis in education be resolved, especially in light of the need for budgetary savings? Murnane argues that the program and its solution lie in the labor market for teachers and suggests some important, but inexpensive, reforms to make it operate more effectively. The economic analyses of domestic programs in this book conclude that there are real opportunities to reduce the federal deficit—by applying the principles of the New Federalism to revenues as well as expenditures in the federal domestic budget, and by reducing and redirecting intergovernmental grants. In fact, recommendations presented here suggest that a large share of the current deficit could be eliminated by such reforms. The detailed discussion and commentary that follows the papers provides thought-provoking and valuable recommendations for action.
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Environmental Protection Policy
Eckard Rehbinder and Richard B. Stewart
The Florence Integration Through Law Series is the product of a research project centered in the Law Department of the European University Institute, and as such it reflects the research interests of the Department: it is a contextual examination of European legal developments in comparative perspective. In the general introduction to the Series (published in Book One of Volume I), we explained fully the philosophy, methodology and scope of the Project. Here we wish merely to recapitulate some of the principal themes of special relevance to this Volume on Environmental Protection.
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Free Enterprise and Economic Organization: Government Regulation
Louis B. Schwartz, John J. Flynn, and Harry First
This casebook provides detailed information on free enterprise. The casebook provides the tools for fast, easy, on-point research. Part of the University Casebook Series; , it includes selected cases designed to illustrate the development of a body of law on a particular subject. Text and explanatory materials designed for law study accompany the cases.
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The Right to Food
Philip G. Alston and Katarina Tomaševski
At the conclusion of the World Food Conference held in Rome 1974 the governments of the world proclaimed “that within a decade no child will go to bed hungry, that no family will fearforits next day's bread, and that no human being's future and capacities will be stunted by malnutrition”. As that decade comes to a close the tragic reality is that little, if any, progress has been made towards meeting those goals. During the target year of 1984, as during every other year since the Conference, literally millions of children have starved to death, tens of millions have gone to bed hungry and malnutrition continues to afflict hundreds of millions of people in all parts of the world. These statistics make hunger by far the most flagrant and widespread of all serious human rights abuses. Yet, for the most part, it is a problem which has to date been perceived by most (well-fed) policy-makers, academics, human rights activists and others as a painful but inevitable fact of “life”, rather than as an abregation of all that the concept of human rights stands for. The present book is an attempt, for the first time, to make hunger a prominent issue on the international human rights agenda and to put the right to food on the agenda of national and international food agencies. In the first chapter Philip Alston provides an overview of the problem and examines the role of law - past, present and future - in promoting the eradication of hunger and malnutrition. The assumption underlying that analysis, and shared by most if not all other contributors, is that there are significant benefits to be derived from tackling hunger as a human rights issue within the framework of established norms of international law. The question of duties attaching to the right to food, which Alston considers from the standpoint of international law, is further developed from a philosophical perspective by Henry Shue. In a chapter dealing with the broad philosophical aspects of the right to food Amartya Sen establishes its validity as a basic right. This perspective is reinforced by a wide-ranging historical review undertaken by Pierre Spitz in which he shows that even in ancient times both the legitimacy of governments and their hold on power were often dependent on their ability to manage the local food system in the interests of avoiding widespread hunger. He also demonstrates that historically the occurrence of widespread hunger has usually been the result of an abuse of economic or political power. Roger Plant then traces the evolution in recent decades of Latin American policies relevant to the right to food. His analysis emphasizes the potentially explosive consequences of the institutionalized gap between political rhetoric and its legislative embodiment on the one hand and the harsh reality of widespread hunger on the other - a contradiction which has also characterized much of the approach of the international community. Other contributions deal with different aspects of the challenge of giving substance to the right to food through the creative use of law. In addressing the local and national dimensions of that challenge Clarence Dias and James Paul survey some of the practical means by which activist popular organizations can make effective use of available legal resources in order to assert the right to food of local communities. In the chapters dealing with the international dimensions particular emphasis is placed on establishing, from a jurisprudential viewpoint, that economic, social and cultural rights are full-fledged human rights and are not merely vague aspiration of limited hortatory value. This fundamentally important issue is approached from different angles by Fried van Hoof and Guy Goodwin-Gill. Finally, the chapters by Katarina Tomaševski and Gert Westerveen are devoted to the complex but eminently practical issues of how respect for the right to food might effectively be monitored through the use of social indicators and how the right to food-related obligations of states under international law could more effectively be supervised by the international community. In the final analysis, the stakes involved in efforts to give substance to the right to food are immense. Success would mean that the eradication of hunger and malnutrition would become a serious priority concern for all governments for the first time in world history. Failure would mean the continued loss of millions of human lives every year, despite the existence in the world of ample food and other resources with which to avoid such a tragedy. Moreover, if the right to food, as perhaps one of the most basic economic rights is, as a number of critics have claimed, not susceptible of implementation as a human right, then the foundations on which the past—1945 international consensus on human rights have been constructed are invalid - with all the consequences which that would imply. The present volume thus constitutes a modest first step towards the operationalization of economic human rights, beginning with the right to food. The attemps of the authors to deliver their message has been substantively assisted by the possibility to include cartoons of Plantu, Honoré and Bellenger in the book. We are indebted to the three artists and to EIP for the permission ro reprint the cartoons.
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Cases and Materials on Torts
Richard A. Epstein, Charles O. Gregory, and Harry Kalven Jr.
The fourth edition of this casebook follows by seven years the publication of the third edition, and its appearance marks the 25th year that the book has been used in first year tort classes throughout the nation. That 25 year period has been one of both continuity and change. Many of the traditional problems in the law of tort remain with us in the form in which they were first encountered by early common law lawyers. Yet in other areas we have witnessed major transformations in both the types of cases brought to litigation and in the choice of legal theories used to decide them. In 1959 the paradigm tort action was still the automobile collision. Torts against institutional defendants—products liability, and medical malpractice cases most readily leap to mind—when viewed with the benefit of hindsight, can now be said to have been still in their infancy, while mass actions, such as those involved in the so-called toxic torts lay wholly in the future. Even since 1977 the movement of events has been at a pace that called for substantial revision of the previous edition in order to keep the book suitable for contemporary use. The aims of this casebook are much the same as those of the three previous editions. The primary goal remains one of giving to the student an accurate sense of the current legal position, in this, one of the most active and important branches of the law. But this casebook would fail in its essential mission unless it accomplished two other tasks. First, it should provide the student with an opportunity to examine the processes of legal method and legal reasoning. Second, it should give the student some sense of the different systematic and intellectual approaches that have been taken to the law of torts over the years. The importance of method cannot be underestimated in legal education. A casebook—certainly this casebook—is not a reference book, much less a treatise. The standard legal curriculum, of necessity, touches on only a tiny fraction of the huge and ever growing body of substantive rules, and even many of those will change with time. The education of the lawyer of the future therefore rests on an ability to deal with a mass of legal materials, to identify the underlying assumptions, to determine possible implications for analogous cases, and, above all, to deal with the persistent uncertainty, ambiguity and at times downright confusion in the law. To help with these tasks it is essential to deal with the development of a legal principle over time, through a line of cases that illustrates its application and tests it limits. To that end this casebook contains many cases from the nineteenth century and before, even those which have long ceased to represent the current law. Likewise, in order to capture the nature of legal debate, in many principal cases we have reprinted not only the opinion of the court but that of concurring or dissenting judges. With Rylands v. Fletcher, at page 89, infra, for example, five separate opinions from three different courts are reproduced, because each adds something to the total picture. A sound legal education requires more than attention to analytical skills. The law of torts in particular is one of the richest bodies of law, and it has been examined and explored from historical and philosophical perspectives not only by the common law judges, but also by generations of academic writers. It is essential for all students to gain some sense of the diverse possible approaches to tort law, lest the constant probings of the Socratic method lead to an unhappy intellectual nihilism. The materials selected are designed, wherever possible, to allow torts to be confronted not only as a collection of discrete rules, but also as a systematic intellectual discipline. There is in the tort law today fundamental disagreement about the proper orientation toward its subject matter and about the proper choice of its key substantive rules. Speaking first to the question of general orientation, it is possible to identify there major positions. The traditional view—largely unchallenged until recent years—was to look at the law of torts as a study in corrective justice, as an effort to develop a coherent set of principles to decide whether this plaintiff was entitled to compensation from this defendant as a matter of fairness between the parties. Issues of public policy and social control were of course not absent, but they did not dominate judicial or academic attitudes either to particular cases or to general theory. Today the traditional approach is under attack from two flanks. On the one hand there is renewed insistence, which today is often expressly articulated in the cases, that the compensation of injured parties is in itself a valid end of the tort law, and that the doctrines of tort law that frustrate that objective must be hedged about with limitations or totally eliminated unless strong justification is given for their retention. The older presumption that the plaintiff had to show “good cause” to hold a defendant liable is—crudely speaking—yielding today to a newer presumption that requires the defendant to show why, with harm established, liability should not follow. The major implications of the shift in presumptions are two. Where it was once the dominant sense of the common law that losses from “inevitable accidents” were outside the tort law, toady the view is increasingly that these losses should be shifted by the law first to some particular defendant, and then by use of market mechanisms throughout the society at large. Secondly, defenses based upon plaintiff’s conduct—notable contributory negligence and assumption of risk—have received narrower interpretations in recent years, and by degrees may yet be removed from the substantive law. The second critique of the traditional approach comes from a different quarter, that of economic theory. Looking first at the tort law as a system of social control, advocates of the economic approach have generally argued that the proper function of the tort law is to lay down workable liability rules to create incentives for both individuals and firms to minimize (the sum of) the costs of accidents and the costs of their prevention. In this view of the subject, the compensation of individual parties is not an end in itself, but only a means to enlist private parties to help police, by private action, the harmful activities of others. The economic approach tends to downplay the importance of corrective justice in the individual case and compensation for individual victims of accidents, treating the first as largely incomprehensible and the second as better achieved through voluntary insurance arrangements. Until very recently its importance was largely academic, but today its influence is increasing in the decided cases. The diversity of opinions upon the proper approach to the tort law carries over to disputes about the proper substantive basis of tortious liability. From the earliest times until today courts have entertained three main theories—each subject to many variants—for recovery in tort. There is, first, recovery for harms intentionally inflicted by defendant upon plaintiff. Second, there is recovery for harms negligently—through the want of reasonable or ordinary care—inflicted upon the plaintiff. Lastly, there is recovery under a theory of strict liability, that is, for harms inflicted upon the plaintiff by a defendant who acts without negligence and without any intention to harm. In dealing with these theories it is important to keep in mind several important themes that reassert themselves throughout the law of torts. One set of issues concerns the relationships between the general approach to the law of torts and the choice of specific theories of liability in particular cases. To illustrate: when does concern for corrective justice require the use of a strict liability principle, a negligence principle, or an intentional tort principle? What about theories based upon the need for individual compensation, or upon the importance of the tort law as a means of minimizing accident costs by channeling scarce resources to their most efficient use? Second, it is important to ask what limitations upon recovery are consistent with the basic theories of liability, and with their basic orientation to subject matter. In this connection it is important to ask the extent to which a plaintiff who otherwise makes out a good cause of action should be denied recovery because of, to use the standard classification, his own conduct—be it called contributory negligence or assumption of risk—the conduct of a third party, or an act of God. Finally, it is crucial to consider what might conveniently be termed the “boundary” questions in the law of torts. As stated, any of the three theories of liability—strict liability, negligence liability or liability for intentional harms—could apply to any case involving harm. Why is it, no matter what general orientation is adopted, that one theory is chose for one particular case, while another theory is chosen for another?
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Selective Incapacitation: Does It Offer More or Less?
Stephen Gillers
Participants considered social science research indicating that a small proportion of offenders commit a large proportion of crimes and that it is possible to distinguish the high-rate serious offenders from the low-rate offenders on the basis of individual characteristics. They noted that concepts of selective incapacitation are reflected in part in current career criminal prosecution programs, in current sentencing, and in special felony offender laws. Nevertheless, participants expressed much skepticism about the ability of social scientists to identify future recidivists accurately. They also voiced concerns about the appropriateness of using employment history and juvenile records in making decisions regarding selective incapacitation, about the potential rate of inaccurate identifications of high-risk offenders, and about policies regarding low-rate violent offenders and high-rate nonviolent offenders. They concluded that the attractiveness of selective incapacitation varies with the availability of resources in that it has been advocated as a way of dealing with funding limitations. Footnotes and list of members of the Council on Criminal Justice.
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