Legal Theory Blog

All the theory that fits!


This is Lawrence Solum's legal theory weblog. Legal Theory Blog comments and reports on recent scholarship in jurisprudence, law and philosophy, law and economic theory, and theoretical work in substantive areas, such as constitutional law, cyberlaw, procedure, criminal law, intellectual property, torts, contracts, etc.

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Saturday, July 31, 2004
Legal Theory Bookworm This week, I have a list of contemporary "classic" titles on utilitarianism & consequentialism:These four books form the core of an excellent library on contemporary debates about consequentialism & utilitarianism.

Download of the Week This week, the Download of the Week is Should We Value Legislative Integrity? by Andrei Marmor. Here's the abstract:
    This essay challenges the widely held view that legislative integrity is a distinct political ideal. According to this ideal, lawmakers should try to make the total set of laws they enact as morally coherent as possible. I advance two types of arguments against this ideal. First, I try to show that the ideal of legislative integrity is directly at odds with the value of pluralism and the commitment of a liberal state to respect reasonable pluralism. Second, I explore the main causes of the failure of legislative integrity in democratic legislatures, arguing that there is nothing regrettable about these causes, on the contrary, they manifest commendable aspects of democratic law making.
Download it while its hot!

Friday, July 30, 2004
Posner & Sykes on Optimal War Eric Posner & Alan Sykes have posted Optimal War and Jus Ad Bellum on SSRN. Here is the abstract:
    The laws of war forbid states to use force against each other except in self-defense or with the authorization of the United Nations Security Council. Self-defense is usually understood to mean self-defense against an imminent threat. We model the decision of states to use force against "rogue" states, and argue that under certain conditions it may be proper to expand the self-defense exception to preemptive self-defense. We also consider related issues such as humanitarian intervention, collective security, and the role of the Security Council.

Harris on Innocence Seth D. Harris (New York Law School) has posted Innocence and The Sopranos (New York Law School Law Review Vol. 49) on SSRN. Here is the abstract:
    "Innocence" can be defined in a narrow, even technical way: "[f]reedom from specific guilt; the fact of not being guilty of that which one is charged; guiltlessness." But "innocence" can also take on a larger meaning that extends beyond technicality into morality: "[f]reedom from sin, guilt, or moral wrong in general; the state of being untainted with, or unacquainted with, evil; moral purity." This broader definition conveys a larger idea that is more powerful and evocative than the former's narrow literalism. "Innocence" has played an important role in three lines of judicial decisions addressing claims of workplace discrimination: remedies decisions, decisions reviewing affirmative action in public employment, and decisions reviewing affirmative action in private employment. From the Supreme Court's perspective, the "innocent" third parties in these workplace discrimination cases are the white and male co-workers of the African-American and women workers who have been the victims of discrimination. The Supreme Court has repeatedly relied on the "innocence" of white and male workers to deprive African-American and female discrimination victims of complete relief from discrimination. This essay argues that the Supreme Court's "innocence" jurisprudence in the workplace discrimination cases represents a subtle bait-and-switch of one definition of "innocence" for the other. The white and male co-workers of the victims of discrimination are "innocents" only in the sense that they satisfy the narrower definition: "freedom from specific guilt." Nonetheless, the Supreme Court has afforded these "innocents" protection appropriate only for those who satisfy the broader, moral definition of "innocence." Thus, the Court's workplace discrimination decisions minimize discrimination and its victims while emphasizing the purported plight of "innocent" co-workers. This misuse of the power of "innocence" has deprived the victims of discrimination of complete justice. The central issue became how best to resolve a manufactured struggle between the victims of discrimination and their co-workers over jobs, promotions, and wages rather than how to eliminate the vestiges of discrimination from the workplace. The Court's answer, dictated by its re-shaping of the question, has been to constrain the lower courts and other branches and levels of government from preferring the victims of discrimination over their "innocent" co-workers in the assignment of burdens and benefits in the workplace. This essay discloses how the Supreme Court has wielded the power of "innocence" in its workplace discrimination cases. But it also responds to the Supreme Court's subtle bait-and-switch of one form of "innocence" for another with a resounding "fuhgeddaboutit!" This essay recruits America's favorite TV mob family - the Sopranos - to help in the assessment of what it means to be "innocent." Fictional New Jersey crime boss Tony Soprano, his wife Carmela, his oldest child Meadow, and only son Anthony, Jr. ("AJ") challenge the role that "innocence" plays in the resolution of disputes over workplace discrimination and help us to understand that "innocence," as defined in the only manner that befits the white and male co-workers of the victims of discrimination, is and should be irrelevant to the resolution of these disputes. In the process, the Sopranos offer a competing vision of what it means to genuinely and fully remedy workplace discrimination. It's an offer we can't refuse.

Guadamuz on the Technology Transfer Andres Guadamuz has posted The Future of Technology Transfer in the Global Village (Journal of World Intellectual Property, Vol. 3, No. 4, pp. 589-602, 2000) on SSRN. Here is the abstract:
    One of the most serious challenges facing international legal institutions in the present era of globalisation is the adoption of adequate written laws in the form of treaties, conventions, and codes that address the issues faced by the international community. There have been advances in many areas, mostly in Public International Law. However, when it comes to achieving agreement in economic and commercial issues, the record of the International community is not as positive. Many areas of the law require international conventions or treaties to provide a united front to common problems faced by most countries. Such is the case in areas of competition law, international trade, electronic commerce and intellectual property. One of the areas in desperate need of international regulation is that of creating codes of conduct for the same multinational corporations that have triggered the globalisation process. The present essay will be centred on the concept of technology transfer and on how technology is owned and transferred. Then, the efforts by the United Nations to achieve an agreement on codes of conduct for the transfer of technology will be discussed. Finally, some options for the future of Technology Transfer will be considered.

Hor on Corroboration Michael Hor (National University of Singapore - Faculty of Law) has posted Corroboration: Rules and Discretion in the Search for Truth (Singapore Journal of Legal Studies, pp. 509-542, 2000) on SSRN. Here is the abstract:
    It is easy to think of the corroboration rules as a thing of the past - something which in a few years will no longer plague the law of evidence. Yet we must not forget the apparently intractable problem which they were designed to deal with - that of oath against oath, one person's word against another. Both historically and presently, the law has had to struggle with a choice between a regime of rules or a system of discretion; and the result is a fascinating compound of rule and discretion.

Tan on Finnis Seow Hon Tan (National University of Singapore) has posted Justification in Finnis' Natural Law Theory (Singapore Journal of Legal Studies, Forthcoming) on SSRN. Here is the abstract:
    This essay examines Finnis' theory of natural law by addressing Finnis' solution to the problem of justification that besets any theory of law. It assesses the quality of Finnis' theory from its purported justification of self-evidence, and by asking if Finnis' theory adds anything of value to classical natural law discourse, the scholarship of which he purports to develop.

Thursday, July 29, 2004
Early Modern Philosophy Texts on the Web Jonathan Bennett has launched a new website ( containing versions of some classics of early modern philosophy, prepared with a view to making them easier to read while leaving the main arguments, doctrines, and lines of thought intact. He writes:
    These versions are faithful to the content of the originals, but are plainer and more straightforward in manner. They are not dumbed down. One graduate student wrote in his weblog about one of the texts: 'The arguments and even most of the turns of phrase are unchanged, but it's just plain easier to read.' To the best of my knowledge, no other student-friendly versions of early modern philosophy texts exist anywhere on the Internet.
Check it out!

Two By Marmor Andrei Marmor has two new papers on SSRN:
    Should We Value Legislative Integrity?
      This essay challenges the widely held view that legislative integrity is a distinct political ideal. According to this ideal, lawmakers should try to make the total set of laws they enact as morally coherent as possible. I advance two types of arguments against this ideal. First, I try to show that the ideal of legislative integrity is directly at odds with the value of pluralism and the commitment of a liberal state to respect reasonable pluralism. Second, I explore the main causes of the failure of legislative integrity in democratic legislatures, arguing that there is nothing regrettable about these causes, on the contrary, they manifest commendable aspects of democratic law making.
    On the Right to Private Property and Entitlement to One's Income
      In this short essay I argue that the main insight of Murphy and Nagel's book, The Myth of Ownership, that people have no right to their pre-tax income, is not supported by their claim that the right to private property is not a natural right. The non-naturalness of the right to private property, I argue, is completely irrelevant to their moral argument. The plausibility of their moral conclusion derives from the thesis (which they also seem to endorse) that people do have a right to the fruits of their labor, maintaining, however, that there is no possible conception, morally speaking, of what the fruits of one's labor are, independent of a system of legal and social norms that constitute the terms of fair bargaining, pricing, etc. People can only have a right to a fair assessment of the added value of their labor and the latter cannot make any sense independent of the entire system of norms prevailing in the relevant society. I argue that this conclusion is not affected by the nature of the right to private property.

Kerr on the Fourth Amendment & New Technologies Owen Kerr has posted The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution on SSRN. Here is the abstract:
    This article argues that courts should approach the Fourth Amendment with caution when technology is in flux. When a technology is new or developing rapidly, courts should adopt modest formulations of Fourth Amendment protections that recognize the effectiveness and institutional advantages of statutory privacy protections. The cautious approach is justified on three grounds. First, caution is consistent with existing judicial practice. The reasonable expectation of privacy test generally has been used by the courts as a term of art that remains closely tied to property law concepts. When a technology implicates privacy but not property, current judicial practice tends to avoid broad interpretations of the Fourth Amendment. Second, legislative privacy protections are significantly stronger than most commentators appreciate. The case of wiretapping is instructive. While Fourth Amendment scholars often view wiretapping as a constitutional field under Katz v. United States and Berger v. New York, wiretapping has long been a primarily statutory field. Even today, wiretapping practice is governed by statutory commands, not constitutional ones. More broadly, Congress has created a wide range of statutory privacy laws that protect privacy in developing technologies where the courts have declined to offer protection. Third, legislatures have considerable institutional advantages that enable the legislative privacy rules regulating new technologies to be more balanced, comprehensive, and effective than judicially created rules. Rapid technological change makes it difficult for courts to clarify the law. Courts also lack the institutional capacity to readily appreciate existing technology and the impact of different legal rules. In contrast, courts are well equipped to respond to technological change in the context of criminal procedure rules.

More from Barnett on the Moral Foundations of Libertarianism Randy Barnett has a post entitled More on the Moral Foundations of Libertarianism on the Volokh Conspiracy. He concludes, "separating the political (how society should be structured) from the moral (how people should live their lives) is not to deny existence or importance of the moral." And for more on this, see Will Wilkinson's Understanding Political Libertarianism.

Litigation Blogs Gail Diane Cox of the National Law Journal has a piece entitled Blogs Dot the Litigation Landscape: Lawyers using Web logs must be mindful of pitfalls on Here's a taste:
    Web sites dedicated to a specific trial are ushering in a new era of client service, said Denise M. Howell, a Web log booster and intellectual property litigator who is of counsel to the Los Angeles office of Reed Smith. "Not only is it critical to know who will try your case," Howell said. "It's important to consider who will 'blog' it." The Web log that sparked Howell's enthusiasm is devoted to a civil case, the Department of Justice's antitrust action against Oracle in San Francisco.

Lemley & Shapiro on Probabilistic Patents Mark A. Lemley and Carl Shapiro (Stanford University - School of Law and University of California, Berkeley - Economic Analysis & Policy Group) have posted Probabilistic Patents on SSRN. Here is the abstract:
    Economists often assume that a patent gives its owner a well-defined legal right to exclude others from practicing the invention described in the patent. In practice, however, the rights afforded to patent holders are highly uncertain. Under patent law, a patent is no guarantee of exclusion but more precisely a legal right to try to exclude. Since only 0.1% of all patents are litigated to trial, and since nearly half of fully litigated patents are declared invalid, this distinction is critical to understanding the economic impact of patents. The growing recognition among economists and legal scholars that patents are probabilistic property rights has significant implications for our understanding of patents in four important areas: (1) reform of the system by which patents are granted; (2) the legal treatment of patents in litigation; (3) the incentives of patent holders and alleged infringers to settle their disputes through licensing or cross-licensing agreements rather than litigate them to completion; and (4) the antitrust limits on agreements between rivals that settle actual or threatened patent litigation.

Rai on Biotechnology Research, Proprietary Rights, and Collective Action Arti K. Rai (Duke University School of Law) has posted Proprietary Rights and Collective Action: The Case of Biotechnology Research with Low Commercial Value (INTERNATIONAL PUBLIC GOODS AND TRANSFER OF TECHNOLOGY UNDER THE GLOBALIZED INTELLECTUAL PROPERTY REGIME, Jerome Reichman, Keith Maskus, eds., 2004) on SSRN. Here is the abstract:
    In areas of cumulative research such as biotechnology, broad patents on fundamental research tools have the potential to create impediments to follow-on research and development. Impediments to R&D may also be created by possible "thickets" of upstream rights. Whether such impediments actually arise in any given case is of course an empirical question. From an empirical standpoint, the net impact of recent increases in upstream biotechnology rights is far from clear. It is fair to say, however, that one standard market solution to rights thickets - the reduction of transaction costs through collective institutions that pool and exchange rights - has not emerged. Rather, in the commercial arena, significant transaction costs and licensing fees have simply become part of the cost of doing business. Although these costs may have reduced profits, foreseeable sales revenues have been sufficiently high that the profit incentive has not been eliminated. In contrast, when follow-on research is conducted in the university context, or by non-profit institutions that target the developing world, foreseeable payoffs are either highly uncertain or are clearly small. In these contexts, large transaction and licensing costs may pose a more pressing problem. However, at least in the context of low-margin research that targets the developing world, there is reason to be optimistic that the "standard" solution of collective rights management will actually work. When the follow-on research in question is of demonstrably low commercial value, there is no reason for upstream rightsholders to fear that they are foregoing large downstream rents. Thus, even though conditions in the biotechnology sector may, as a general matter, work against collective action, low-margin research should be an exception. Non-profit institutions such as universities that are highly sensitive to reputational pressures should be the easiest players to enlist. Fortunately, in both agricultural and health-related biotechnology, non-profit institutions own a significant percentage of upstream patents.

Lillquist & Sullivan on the Law & Genetics of Racial Profiling in Medicine R. Erik Lillquist and Charles A. Sullivan (Seton Hall Law School and Seton Hall University - School of Law) have posted The Law and Genetics of Racial Profiling in Medicine (Harvard Civil Rights-Civil Liberties Law Review (CR-CL), Vol. 39, No. 391, 2004) on SSRN. Here is the abstract:
    Modern medicine routinely employs race. This phenomenon, and the underlying rationale that salient biological differences exists between races, has been almost completely ignored by the law journals, although race in other contexts obsesses them. This is a serious omission since medicine’s growing acceptance of using race in both research and treatment is at least as objectionable as other "racial profiling." Further, stressing genetic racial differences triggers associations with the eugenics movement and repeated "scientific" efforts of the last century to prove the intellectual inferiority of African-Americans. From a genetic perspective, there is no such thing as race; instead race is socially constructed. But, when viewing race as an indicator of the geographic origin of one's ancestors, race can, in some limited circumstances, be characterized by differences in genetic frequencies that may have an impact on disease or its treatment, particularly when also linked to environmental or behavioral influences. Any such differences among population groups are nevertheless generally not very important from a medical perspective, although it might be sometimes appropriate to use race as a proxy for genetic (as well as environmental and behavioral) differences. The law nonetheless currently broadly proscribes the use of race, and the use of race in medicine is deeply problematic from a normative perspective because it may validate racism by confirming the salience of genetic differences. Accordingly, use of race should be severely circumscribed. It should be permissible where race-focused studies and race-based outreach are concerned, but race-based screening, as we define that term, and racial exclusion in clinical trials should not be permitted. Racial differences in treatment (including diagnostic screening) should be permissible only in the quite rare circumstances where there is a bona fide treatment rationale. Under this test, the key requirement would be a scientific basis for believing not that race was helpful in diagnosis and treatment but rather that race was the best available method at the time.

Koenig & Rustad on Environmental Crimtorts Thomas Koenig and Michael L. Rustad (Northeastern University - School of Law and Suffolk University - School of Law) have posted Toxic Torts, Politics, and Environmental Justice: The Case for Crimtorts (Law & Policy, Vol. 26, pp. 189-207, April 2004) on SSRN. Here is the abstract:
    The borderline between criminal and tort law has been increasingly blurred over the past quarter century by the emergence of new "crimtort" remedies which have evolved to deter and punish corporate polluters. Punitive damages, multiple damages, and other "crimtort" remedies are under unrelenting assault by neo-conservatives principally because, under this paradigm, the punishment for wrongdoing can be calibrated to the wealth of the polluter. If wealth-based punishment is eliminated by the "tort reformers," plaintiffs' victories in crimtort actions such as those portrayed in the movies Silkwood, A Class Action, and Erin Brockovich will become an endangered species.

Jaisingh on Recording Company Strategies & Filesharing Jeevan Jaisingh (Hong Kong University of Science & Technology) has posted Piracy on File Sharing Networks: Strategies for Recording Companies on SSRN. Here is the abstract:
    In this paper we study the impact of selling music as downloads, on piracy, and the strategies recording companies should adopt to increase profits. We find that total music sales and profit of firm is higher, and total piracy (demand on file sharing network) is lower, when the firm sells a downloadable version. We look at the firm's optimal choice of Digital Rights Management (DRM) protection, and find that revenue decreases with increased protection, and so it is optimal for the firm not to employ any DRM, in the absence of network effects. Listening to music or watching video protected by DRM is cumbersome to users. They have to download license files, there are restrictions on the number of times the file can be copied, and restrictions on the type of devices that can play the file. As a result there is a disutility to the legal consumer, because of which the firm charges lower prices. Loss in revenue due to decreased prices cannot be compensated by the increase in demand, and hence revenue decreases with higher protection. When network effects (NE) is high, and a nominal search cost is above a certain threshold, then non-zero protection becomes optimal. This result is exactly the opposite of what was found in previous research (Conner and Rumelt 1991), where protection was found to be optimal in the absence of NE, and zero protection was optimal if NE is high enough.

Wednesday, July 28, 2004
Leiter on Marx & CLS Brian Leiter has an excellent post on the relationship between Marxism and the Critical Legal Studies movement. Here's a taste:
    CLS writers...locate the source of "indeterminacy" in law in one of two sources: either in general features of language itself (drawing here--not always accurately--on the semantic skepticism associated with Wittgenstein and Derrida ); or in the existence of "contradictory" moral and political principles that they claim underlie the substantive law, understood at a suitable level of abstraction. Duxbury himself recognizes this strand of CLS, which he aptly describes as claiming, "...that liberal consciousness is somehow a false or corrupted consciousness, that there exists within liberal thought--liberal legal thought included--a tension so fundamental, so irresolvable, that it must ultimately implode and make way for radical social transformation." (455) This strategy of argument signals the rather curious intellectual pedigree of CLS, a pedigree that Duxbury does not appear to recognize. [Ed.-Most CLS writers don't appear to recognize it either, though I'm sure Unger knows!] For what CLS has done in American legal thought is to revive a certain strategy of left-wing critique that dates back to the Left Young Hegelians of the 1830's in Germany. Seizing upon the Hegelian notion that ideas are the engine of historical change, the Left Hegelians sought to effect change by demonstrating that the prevailing conservative ideas were inherently contradictory and thus unstable. To resolve these contradictions, it would be necessary to change our ideas, and thus change the world.
Highly recommended!

Balkin on a Progressive Constitution Check out this post by Jack Balkin. Here's a taste:
    The attack on the so-called "Living Constitution" that was a centerpiece of constitutional conservativism in the 1980's and 1990's was itself an attempt to make the Constitution live again in the eyes of constitutional conservatives. It was necessary precisely in order to dethrone liberal assumptions and establish a new constitutional common sense, which, like every such constitutional order in the United States, understands itself not as rebelling against the text, history and structure of the Constitution, or its deepest principles, but embracing and restoring them. The work of restoration and recovery is how American constitutionalism changes. It is, to borrow a phrase, how our Constitution is truly and always a Living Constitution.
At this level of abstraction, I find myself in agreement with Balkin. It gets tougher when we start trying to figure out what "restoration" means! Read this post!

Issacharoff & Karlan on Political Gerrymandering Samuel Issacharoff and Pamela S. Karlan (Columbia Law School and Stanford Law School) have posted Where to Draw the Line?: Vieth v. Jubelirer, Cox v. Larios, and Judicial Review of Political Gerrymanders (University of Pennsylvania Law Review, Forthcoming) on SSRN. Here is the abstract:
    A striking feature of the post-2000 redistricting is not only the continued - indeed, ever-increasing - vigor of partisan line drawing, but the array of doctrinal tools litigators and courts have invoked in attempts to rein it in: Article I; the First Amendment; the equal protection clause of the Fourteenth Amendment in a wide range of flavors; the Voting Rights Act of 1965; and a variety of state-law principles. We offer a preliminary reaction to the Court’s decisions in Vieth v. Jubelirer, 124 S.Ct. 1769 (2004), and Cox v. Larios, 124 S.Ct. 2806 (2004), that places those decisions in the broader context of the Court's failure to confront ends-oriented redistricting practices. In Vieth, four justices declared claims of excessive partisanship nonjusticiable. And yet, three of those justices were soon part of an eight-Justice majority that agreed in Larios to summarily affirm a lower court decision striking down a plan on the grounds that relatively small population deviations were constitutionally impermissible because they reflected blatantly partisan protection of Democratic incumbents while undermining Republican-held seats. Our central claims are two-fold. First, no matter how difficult judicial review of political gerrymandering claims may be, it is impossible actually to render such claims nonjusticiable. The availability of a range of unavoidable doctrinal claims means that a significant number of the partisan gerrymanders that courts find constitutionally offensive – whatever that term means, and whether it even has any agreed-upon meaning – will come before courts, and lack of candor about what courts are doing may carry its own costs. Second, the treatment of political gerrymander cases as a species of antidiscrimination claim obscures a central issue of democratic theory. The Supreme Court's initial refusal to enter the political thicket rested on its view that malapportionment suits challenge "not a private wrong, but a wrong suffered by [the state] as a polity." The Warren Court Reapportionment Cases responded by declaring that malapportionment claims "are individual and personal in nature." Ironically, both courts were half right. Claims of malapportionment are really not individual rights claims; they are claims about governmental structure. And yet, these claims are especially appropriate for judicial review. Forty years of doctrinal development has failed to take into account this central point. Partisan gerrymandering claims are treated as an assertion that a political party has been unfairly denied some number of seats. But given the near-universal practices of single-member legislative districts and incumbent protection, partisan gerrymandering cases seek essentially a reallocation of safe seats. The Court's recent opinions ignore almost entirely the question whether judicial intervention should be directed at entrenchment itself, rather than the question of who gets to be entrenched. If the Court's intervention is prompted by these latter sorts of claims, it may simply exacerbate the pathologies of our current redistricting process.

McCann on Consumer Choice Theory in Nutritional Labeling Michael A. McCann (Harvard University - Harvard Law School) has posted Economic Efficiency and Consumer Choice Theory in Nutritional Labeling (Wisconsin Law Review, November 2004) on SSRN. Here is the abstract:
    As more Americans consume fast food each year, more Americans are contracting serious diseases related to obesity. Considering that obesity ranks second behind tobacco use as the largest contributor to mortality rates in the United States, and also that it gives rise to greater publicly-funded health care expenses than does tobacco, this phenomenon begs the obvious question: To what extent does the growing consumption of fast food contribute to the obesity epidemic and the incidence of disease? If the answer indicates a meaningful contribution, a natural follow-up question then emerges: In a sensible legal system, what instruments would best ameliorate its effects? In attempting to answer these questions, this Article explores obesity as an economic occurrence, and how varying legal remedies may curtail its deleterious effects on the American economy. In doing so, this Article surveys the proportional causes of obesity, and it identifies fast food consumption as an essential element. In accordance with that finding, this Article ponders whether an absence of nutritional labeling has precipitated over-consumption, and how the law may be optimally utilized to minimize associated inefficiencies. A more specific roadmap may be constructed as follows: Part I appraises the primary determinants of obesity in the United States, as well as whether Americans knowingly contribute to their corpulence. This is an essential examination, since obesity has morphed into a material public expense, with taxpayers now bearing approximately half of the cost of the nation's girth. Through this analysis, Part I confirms the predictable: Most Americans already know that fast food consumption may impair their health. Yet, more engagingly, it also reveals that Americans often underestimate the extent of that impairment, in part because they tend to discount the negative contents of restaurant food. Accordingly, many Americans internalize a degree of risk less significant than the actual risk present, thus rendering their food decision-making process systematically optimistic. This is particularly evident amongst children, who prove uniquely sanguine. Part II then scrutinizes federal governmental choices when imposing food labeling requirements, as well as the extent of regulatory authority that has been delegated to the Food & Drug Administration ("FDA"). Significantly, the federal government has exempted all restaurants from food labeling requirements. The merits of such privilege bear query, since any exemption from product labeling presumes that consumers engage in rational assessment of associated risks. As explored in Part III, however, other relevant actors, such as the State of New York, have concluded otherwise, specifically that consumers often fail to engage in such rational assessment. While adhering to the confines of the federal labeling exemption, these actors have consummated voluntary agreements with fast food companies in hopes of efficiently engineering market incentives for nutritional disclosure. Similarly, certain industry participants, by offering "healthy" dishes, may implicitly signal the less nourishing content of their regular dishes. Thus, in order to fully evaluate the efficacy of the labeling exemption, the supplemental value of these existing and voluntary market influences must also be considered. Part IV turns to the emerging, though largely quixotic judicial remedies for Americans who have contracted obesity-related diseases, allegedly due to fast food consumption. Though such lawsuits have been dismissed as trivial by most commentators, they present an excellent vehicle for examining the comparative merits of prospective regulation and retrospective litigation. That is, they suggest something of a recurring miss: A discrete group of individuals appears uniquely inclined to over-consume fast food, thus intimating a traditional common law duty on the part of fast food companies to warn; yet, for purposes of establishing legal causation, identifying and quantifying the proportional causes for any one person's obesity and related-disease proves exceedingly difficult, if not impossible. Thus, such lawsuits continuously fail to satisfy the requisite contours of a tort claim, even though they raise meritorious concerns for social scientists and policy-makers alike. By applying Consumer Choice Theory to fast food consumption, Part V proposes a new theoretical framework that could both conceive a limited common law duty to warn of the dangers of over-consumption and, by immunizing a food seller from tort liability, reward compliance with such a duty. Specifically, this Article postulates revision of the Nutrition Labeling and Education Act of 1990 ("NLEA") to require the divulgence of nutritional information for all fast food items marketed for childhood consumption. In this narrowly tailored setting, the food decision-making process appears both uniquely optimistic and capable of correction, as parents often dictate or significantly influence the food consumption of their children, and in that particular decision-making process, they internalize an anomalously high value in nutrition and diminished tolerance of risk. In short, this form of nutritional labeling would prove uniquely efficacious. Accordingly, regulatory and judicial alternatives may be combined to most efficiently curtail the effects of fast food over-consumption on public health and tax-funded expenditures, while simultaneously removing from the American tort system a legally implausible, though factually credible claim.

Harris on the East India Company as a Deal Ron Harris (University of California, Berkeley - School of Law (Boalt Hall)) has postedThe Formation of the East India Company as a Deal between Entrepreneurs and Outside Investors on SSRN. Here is the abstract:
    The formation of chartered corporations is usually viewed as an agreement between their promoters and the State with payoffs in the form of monopoly rents, property rights, services or taxation. The present article analyzes the formation of the East India Company as a deal between two groups of investors: entrepreneurs with established interests in Asian trade who needed equity capital, and outside investors - European merchants, landowners and artisans. Insiders offered the outsiders voice, information and a unique exit option. This privately ordered institutional innovation allowed cooperation between investors in the absence of a share market in 1600 England.

Hayden on One Person One Vote Grant M. Hayden (Hofstra University - School of Law) has posted The False Promise of One Person, One Vote (Michigan Law Review, Vol. 102, p. 213, 2003) on SSRN. Here is the abstract:
    This article challenges the theoretical foundations of the right to cast an equally weighted vote. That right, most elegantly captured in the phrase "one person, one vote," was at the heart of the early reapportionment cases and has since become one of the hallmarks of democracy. One of the principal reasons for the success of the one person, one vote standard is that it appears to be a neutral or objective way of parsing out political power. Drawing on recent work in philosophy and economics on the nature of interpersonal utility comparisons, I demonstrate the normative character of the standard. I conclude that this well-settled legal principal is based upon a false promise of objectivity, one that has now come back to haunt us by divorcing the law from the reality of preference aggregation and preventing the development of a more complete theory of voting rights.

Tuesday, July 27, 2004
McCaffery & Baron Think About Tax Edward J. McCaffery and Jonathan Baron (University of Southern California Law School and University of Pennsylvania - Department of Psychology) have posted Thinking about Tax on SSRN. Here is the abstract:
    Behavioral economics and cognitive psychology have demonstrated that people deviate from ideal precepts of rationality in many settings, showing inconsistent judgment in the face of framing and other formal manipulations of the presentation of problems. This article summarizes the finding of original experiments about subjects' perceptions of aspects of tax-law design and argues for the relevance of behavioral perspectives to the understanding and improvement of real-world fiscal systems. We show that in evaluating tax systems, subjects are vulnerable to a wide range of heuristics and biases, leading to inconsistent judgment and evaluation. The prevalence of these biases suggests that there is room for skillful politicians to manipulate public opinion, and that tax-system design can be volatile on account of the possibility of eliciting preference reversals through purely formal rhetorical means. More troubling, the findings suggest a likely and persistent wedge between observed and optimal public finance systems.

Horwitz on Grutter Paul Horwitz (University of San Diego - School of Law and Southwestern University School of Law) has posted Grutter's First Amendment on SSRN. Here is the abstract:
    Most of the reaction to the Supreme Court's decision affirming the law school affirmative action policy at issue in Grutter v. Bollinger has focused on its Fourteenth Amendment implications. But Grutter also raises significant First Amendment issues. By reaffirming a First Amendment value of "educational autonomy," the Grutter Court raised a host of questions with implications not only for the constitutional law of academic freedom, but for First Amendment jurisprudence generally. This article therefore puts the Fourteenth Amendment to one side and provides a detailed analysis of the First Amendment implications of Grutter. Some of the consequences of the Court's approach in Grutter are surprising. If Grutter is read as recognizing a strong constitutional value of deference to educational decisions, a variety of ongoing constitutional controversies might be decided differently. I trace this possibility through discussions of current issues including the constitutionality of campus hate speech codes, the permissibility of single-sex or single-race education, and the current litigation over the Solomon Amendment, which penalizes schools (including law schools) that bar on-campus military recruiters. Grutter may also be read as suggesting that the Court does not value educational autonomy as such, but rather a particular vision of higher education, in which universities are valued for their contribution to democratic legitimacy. This reading, too, has significant implications. It offers a substantive vision of First Amendment values that, in many respects, is at odd with the approach taken by the Justices elsewhere in the jurisprudence of the First Amendment. And it raises deep questions about the imperfect fit between the Court's vision of academic freedom and the contested understanding of academic freedom outside the courts. My exploration of Grutter's First Amendment culminates in an extended treatment of what I consider its most powerful implication. Grutter may be read as a groundbreaking acknowledgment by the Court of the importance of what I call "First Amendment institutions" - institutions such as universities, the press, libraries, and other entities that play a central role in public discourse and democratic culture. I argue that Grutter steps away from the usual, more formalist pattern of First Amendment jurisprudence and instead recognizes that the law ought to be responsive to and respectful of the unique role these institutions play in society, and should allow them a substantial degree of autonomy to shape their own norms and practices. In that sense, this article argues for an approach to First Amendment law that builds on a growing school of scholarship advocating an experimentalist approach to constitutional law. Ultimately, the article is intended to spark a broader debate about the nature and role of First Amendment institutions within our constitutional culture and the complex relationship between constitutional law and constitutional culture. Finally, it is a plea for the inclusion of Grutter within the First Amendment canon as well as the Fourteenth Amendment canon.

Conference Announcement: Impact of the Presidential Elections
    The UCI History Department and Whittier Law School are sponsoring a conference on October 26 and 27 on the impact of presidential elections on the Supreme Court. Eric Foner and Willy Forbath, among others, will make presentations. Slots for presenters and commentators are available. Contact Dean Neil Cogal ( for further information.

New from Law and Politics Book Review
    COLLECTIVE INSECURITY: THE LIBERIAN CRISIS, UNILATERALISM, AND GLOBAL ORDER, by Ikechi Mgbeoji. University of British Columbia Press, 2004. 200pp. Paper. £16.95 / CDN$ 32.86 / US $24.95. ISBN: 0774810378. Hardcover. £53.95 / CDN$ 80 / US $80. ISBN: 077481036X. Reviewed by Ronald C. Slye.
    THE RULE OF LAW IN AMERICA, by Ronald A. Cass. Baltimore: Johns Hopkins University Press, 214 pp. 2003, Paper. $19.95. ISBN:0-8018-7441-6. 2001, Cloth $32.50. ISBN 0-8018-6728-2. Reviewed by John Brigham.
    TOWARDS JURISTOCRACY: THE ORIGINS AND CONSEQUENCES OF THE NEW CONSTITUTIONALISM, by Ran Hirschl. Cambridge: Harvard University Press, 2004. 294pp. Cloth $49.95. ISBN: 0-674-01264-X. Reviewed by Mark Rush.
    DIRECTIONS IN SEXUAL HARASSMENT LAW, by Catharine A. MacKinnon and Reva B. Siegel(eds.). New Haven: Yale University Press, 2003. 752pp. Cloth. $50.00. ISBN: 0-300-09800-6. Reviewed by Kathleen S. Sullivan.

Monday, July 26, 2004
Stout on the Nature of the Corporation Lynn A. Stout (University of California, Los Angeles - School of Law) has posted On the Nature of Corporations on SSRN. Here is the abstract:
    Legal experts traditionally distinguish corporations from unincorporated business forms by focusing on such corporate characteristics as limited shareholder liability, centralized management, perpetual life, and freely transferred shares. While this approach has value, this essay argues that the nature of the corporation can be better understood by focusing on a fifth, often-overlooked, characteristic of corporations: their capacity to lock in equity investors' initial capital contributions by making it far more difficult for those investors to subsequently withdraw assets from the firm. Like a tar pit, a corporation is much easier for equity investors to get into, than to get out of. An emerging school of theorists has begun to explore the implications of this idea for corporate law and practice. The idea is still novel enough to lack a uniformly-accepted label - in addition to the phrase capital lock-in, scholars have described this aspect of incorporation as affirmative asset partitioning, the absence of a repurchase condition, and asset separation from shareholders. Whatever label one chooses, the idea shows great promise for illuminating a variety of thorny problems that have long troubled corporate scholars and practitioners. In illustration, this essay considers how the idea of capital lock-in sheds light on three corporate mysteries: the sui generis nature of corporate directors' fiduciary duties; the rise of the large modern service partnership; and lawmakers' enthusiasm for meddling with corporate governance rules.

Brady on the Lessons of Smith Kathleen Brady (Villanova University - School of Law) has posted Religious Organizations and Free Exercise: The Surprising Lessons of Smith (Brigham Young University Law Review, Forthcoming) on SSRN. Here is the abstract:
    Much has been written about the protections afforded by the Free Exercise Clause when government regulation impacts the religious practices of individuals, and if one looks for guidance from the Supreme Court, the rules are fairly clear. Prior to 1990, the Supreme Court had long employed a balancing approach that afforded - at least in theory - significant relief. Under this approach individuals were entitled to exemptions from laws which substantially burdened religious conduct unless enforcement was justified by a compelling state interest. In 1990, in Employment Division v. Smith, the Supreme Court abandoned this balancing test for all but a few categories of cases. Under the Court's new rule, the Free Exercise Clause does not excuse individuals from compliance with neutral, generally applicable laws that are not intended to burden religious exercise. Relief is only appropriate where laws are designed to thwart religious exercise. The judicial landscape is much different when one turns to the free exercise rights of religious organizations. Government regulation frequently impacts the activities of religious groups, and clashes between religious organizations and regulators are common. Surprisingly, however, the Supreme Court has never directly addressed the scope of free exercise protections when government regulation interferes with the internal affairs of religious groups. There are cases involving religious organizations, to be sure, but in none of these cases has the Court addressed neutral government regulation that directly impinges upon internal church affairs. This article begins by identifying three possible approaches to such regulation, all of which can be supported indirectly by Supreme Court precedent. The article then examines the Supreme Court's decision in Smith for guidance in choosing from among them. For some courts and scholars, the meaning of Smith for religious groups is simple: religious groups, just like religious individuals, are not entitled to special exemptions from neutral state action. For others, however, Smith is not relevant at all to the free exercise rights of religious groups, and they look to other lines of Supreme Court precedent for appropriate standards. My examination of Smith reveals that Smith is not only relevant to an analysis of religious group rights but is also very helpful for choosing among the available options. The opinion in Smith raises a number of issues that clarify what is at stake in making this choice, and its lessons are surprising. When read carefully, Smith supports a broad right of church autonomy that prohibits government interference with internal church affairs regardless of whether the interference is intentional and regardless of whether the activities affected are religious in nature or more mundane matters.

Wilkins on Diversity David B. Wilkins (Harvard University - Harvard Law School) has posted From 'Separate is Inherently Unequal' to 'Diversity is Good for Business': The Rise of Market-Based Diversity Arguments and the Fate of the Black Corporate Bar (Harvard Law Review, Vol. 117, No. 5, March 2004) on SSRN. Here is the abstract:
    Fifty years after John W. Davis, one of America's premier corporate lawyers, took on the defense of segregation in Brown v. Board of Education as a pro bono case, corporate America appears to have firmly embraced the mantra that diversity is good for business. In this Article, I examine this surprising turn of events by investigating the rise of market-based diversity arguments in the legal profession itself. Specifically, I examine how black lawyers seeking to integrate corporate law firms have increasingly staked their claim on the contention that diversity is good for the business of law firms and clients. Although it is not surprising that diversity advocates have been drawn to such arguments, I argue that whether these claims will actually produce greater opportunities for black lawyers - and whether the resulting diversity will in turn further Brown's other goal of promoting social justice through law for all Americans - depends upon a closer examination of the connection between diversity and business than most proponents of the business case for diversity in the legal profession have been willing to undertake or even to acknowledge. As a preliminary matter, advocates must confront the profession's deep commitment to the idea that it is actually homogeneity that best serves firms and clients - a commitment that may be even harder to shake in law firms than it apparently has been in corporate America. At the same time, advocates must also be aware of the danger that market-based diversity arguments will encourage various forms of race-matching, pigeonholing, and moral evasion that can end up harming the cause of diversity by marginalizing and alienating minority lawyers. Ironically, taking note of these complexities may also hold the key to making progress on Brown's social justice goals as well. Integrating the corporate bar is a social justice issue of considerable importance. Nevertheless, if bringing diversity to the elite ranks of the American legal profession is going to do more than accentuate the yawning gap between the legal haves and have-nots, then those who come to occupy these positions of power must have normative commitments that both shape and constrain the business interests of their powerful clients. Contrary to the gloomy predictions of diversity advocates who urge abandoning social justice arguments for diversity altogether, however, there are good reasons to believe that black lawyers who maintain a normative understanding of diversity that goes beyond corporate self-interest may, paradoxically, have important advantages in building a credible business case for diversity in their own careers. This paper is part of a symposium on the fiftieth anniversary of Brown v Board of Education held at Harvard Law School on April 15, 2004 in which Richard Ford, Molly McUsic, Frank Michelman, Juan Perea, and Reva Siegel also contributed articles. The Symposium papers were published in Volume 117, Number 5 (March 2004) of the Harvard Law Review and can be obtained from the law review's web site.

Spindelman on Lawrence v. Texas Marc Spindelman (Ohio State University - Michael E. Moritz College of Law) has posted Sodomy Politics in Lawrence v. Texas (Jurist, June 12, 2003) on SSRN. Here is the abstract:
    This essay - originally published before the Supreme Court issued its decision in Lawrence v. Texas - examines the gay rights litigation strategy pursued in the case, and questions its sexual politics from a sex equality perspective.

Sunday, July 25, 2004
Ethical Internalism Check out A Problem for Ethical Internalism by Uriah Kriegel on Desert Landscapes. Here's a taste:
    Suppose Racist and Tolerant are trans-world counterparts living, respectively, in W1 and W2. Their external lives are identical. Every action performed by Racist in her life was performed at the exact same time in identical circumstances by Tolerant. Furthermore, every intention, desire, plan, or other pro-attitude Racist had was had (again, at the same time and in identical circumstances) by Tolerant. There is only one difference between Racist and Tolerant. Racist *believes* that blacks are inferior to whites, whereas Tolerant *believes* that they aren’t. That’s the only difference. Their beliefs have never issued in different actions or even intentions, since ex hypothesi their actions and intentions have been identical throughout their life. There is an intuition that Tolerant is morally better than Racist, and that she has led a morally better life. There is also the intuition that the tale of Racist and Tolerant is perfectly coherent.

Welcome to the Blogosphere . . . to the Ethical Werewolf link courtesy of the Leiter Reports.

Saturday, July 24, 2004
Legal Theory Bookworm The Legal Theory Bookworm recommends Objectivity in Law and Morals edited by Brian Leiter. Here's the blurb:
    The seven original essays included in this volume offer a sophisticated perspective on issues about the objectivity of legal interpretation and judicial decision-making. They examine objectivity from both metaphysical and epistemological perspectives and develop a variety of approaches, constructive and critical, to the fundamental problems of objectivity in morality. This is the first volume to consider the intersection between objectivity in ethics and the objectivity in law. It presents a state-of-the-art survey of live issues in metaethics, and examines their relevance to theorizing about law and adjudication.
This is the state of the art collection on this important topic. Highly recommended!

Download of the Week This week, the Download of the Week is Barnett and the Constitution We Have Lost (forthcoming University of San Diego Law Review) on SSRN by Stephen M. Griffin (Tulane). Here is the abstract:
    This is a review essay of Randy Barnett's book Restoring the Lost Constitution: The Presumption of Liberty (Princeton University Press, 2004). I consider Barnett's libertarian theory of constitutional law in three stages. In Part I, I criticize the external theory of political legitimacy that Barnett applies to the Constitution. I argue that this theory had nothing to do with the actual reasons the Constitution was accepted as legitimate when it was ratified. In Part II, I focus on Barnett's theory of constitutional interpretation and his account of the necessary and proper clause, the foundation of the presumption of liberty. I also critique Barnett's treatment of the Lochner era. In Part III, I examine Barnett's approach to governmental power under the Constitution, particularly with respect to the commerce clause and the state police power.
An earlier version of this marvelous review was delivered at the Annual Meeting of the Association of American Law School's in January. Highly recommended. Download it while its hot!

Friday, July 23, 2004
Trachtman on Cyberterrorism Joel P. Trachtman (Tufts University - The Fletcher School) has posted Global Cyberterrorism, Jurisdiction, and International Organization on SSRN. Here is the abstract:
    This paper analyzes the jurisdictional and organizational facets of international security against cyberterrorism. This is a "nested," iterative, and recursive analysis, which requires assessment or assumptions regarding goals at one level in order to move on to the next level. In order to examine the need for, and potential structure of, international cooperation to combat cyberterrorism, it is necessary first to examine several subsidiary questions. First, to what extent, and in what contexts, is governmental regulation appropriate to combat cyberterrorism? This is the first level of the subsidiarity analysis: is government action necessary? Second, to what extent, and in what contexts, is domestic government, while possibly necessary, insufficient to combat cyberterrorism? This is a second level of subsidiarity analysis: is local regulation sufficient/ is international cooperation necessary? Third, what form shall international cooperation take: should it be in the form of ad hoc or non-legal and non-organizational relationships among states, or should it be in the form of more formal law or organization? Fourth, what should be the content or responsibilities of this more formal law or organization? This paper cannot answer these questions, but it suggests an analytical framework that may be used to address these questions in a broader research project. Where regulation is called for, the next question is a choice of levels of regulation: sub-national, national, regional, international law or international organization. This paper provides a brief analysis of the problem of allocation of authority - of jurisdiction - over different components of cyberspace, both horizontally and vertically. This analysis is dependent on the particular facts of cyberspace and threats to cybersecurity. This analysis uses tools from property rights theory, regulatory competition theory, and game theory. Next, this paper examines some potential sources of analogy to the international problem of security against cyberterrorism. These sources of analogy include arrangements to control cybercrime, arrangements to control financing of terrorism, and security arrangements for ocean transport.

Josephs on Apology in International and Comparative Law Hilary K. Josephs (Syracuse University College of Law) has posted The Remedy of Apology in Comparative and International Law: Self-Healing and Reconciliation (Emory International Law Review Emory International Law Review, Vol. 18, 2004, pages 53-84) on SSRN. Here is the abstract:
    This Article explores the role of apology in both the comparative and international context, building upon the pioneering analysis of Hiroshi Wagatsuma and Arthur Rosett. From their observation of Japanese and American societies, Wagatsuma and Rosett theorize that apology made with sincerity and commitment is an effective form of dispute resolution across cultures. Lawsuits might be avoided entirely if people apologize to those they have wronged. This thesis is extended to the realm of international law and international relations. Two judicial opinions, one by a Japanese court and the other by the International Court of Justice, are offered in support of the proposition that the bombings of Hiroshima and Nagasaki constituted grave violations of the law of armed conflict. This Article proposes that the United States initiate a cycle of virtue and formally apologize to Japan for the dropping of the atomic bombs. Such action would serve to exorcise deep-seated guilt and to regain respect from the international community.

Call for Papers: Social Justice in a Changing World
    Call for Papers "Social Justice in a Changing World" Interdisciplinary Conference Graduate School of Social Sciences at the University of Bremen (GSSS) Bremen (Germany) March 10-12th, 2005 A growing number of experts in economics, political science and sociology believe that the freedom of action of the nation-state in coping with issues of distributive justice is waning. Current processes of economic privatisation and globalization shift power over distribution from the state toward 'capital' and markets. What are the implications for social justice? The conference will explore the risks and options of privatized markets and transnational regimes for social justice from different theoretical and empirical perspectives. Plenary speakers: Karen Cook; Nancy Fraser; Bo Rothstei; Joel Rogers; Leo Montada; Michael Zürn. Panels: - Education and Social Justice - 'Just' Health Care - Migration and Social Justice - Gender and Justice - 'Just' Work and Participation - Paternalism and Social Justice - Income, Wealth and Social Justice - Justice and the Global Economic Order - Social Justice and the Right to Welfare - Intergenerational Justice in the Welfare State - Justice and Global Social Policy - Social Justice: What the People Think - 'Just' Borders: Freedom of Movement, Migration and Security - Justice and Taxation - The Changing Role of the Welfare State The abstract deadline is November 30th, 2004. For more information on registration, panels, accommodation etc. please visit the conference website:

Call for Papers: Journal of Social Philosophy
    Journal of Social Philosophy Published by Blackwell Publishing on behalf of The North American Society for Social Philosophy The purpose of the journal is to facilitate communication among those interested in the topic of social philosophy without being committed to any particular school or method of philosophy. The journal is wide-ranging, peer-reviewed, and has published some of the most distinguished scholars in social philosophy. In addition to four issues per year of the Journal of Social Philosophy, institutional subscribers receive the acclaimed annual publication Midwest Studies in Philosophy, edited by Peter A. French and Howard K. Wettstein. The 2004 volume is The American Philosophers. Print ISSN: 0047-2786 Online ISSN: 1467-9833 Kathy Agne Managing Editor, Journal of Social Philosophy University of South Florida 601 4th Street S., CRI 1008 St. Petersburg, FL 33701 Content available by subscription. Free sample issue available online. See: Current Issue: Volume 35: Issue 2, June 2004

Call for Papers: Liberalism, Feminism and Multiculturalism
    Call for Papers "Liberalism, Feminism and Multiculturalism" Essays in Philosophy. A Biannual Journal Volume 7, Number 1 Issue date: January 2006 Submission deadline: 15 October 2005 Editor: Randy Cagle, Minnesota State University Journal Page: Since the publication of Rawls's "A Theory of Justice" in 1971, a number of critiques of liberal theories of justice as advanced by Rawls and others have been formulated. Recently, some of the most important critiques have come from feminist and multicultural perspectives. Some feminists have argued that liberal theories, because of their abstract models of justice and individual rights, are unable to accommodate and protect the rights necessary for women to achieve real equality with men: reproductive rights for example, or rights for women of color. Similarly, multicultural critiques accuse liberalism of being unable to make room for collective rights, particularly rights for various minority groups. This issue of Essays in Philosophy welcomes papers on all topics from feminist and multicultural critiques of philosophy as well as defenses of liberalism against such critiques. Papers regarding the relationship between liberal theories of justice and rights, and the alleged need for specific women's and minorities' rights are especially welcome. All submissions should be sent to the General Editor via Email:

Conference Announcement: The Practice of Law-making and the Problem of Difference
    Conference Announcement "The Practice of Law-making and the Problem of Difference" International Conference in Social and Political Philosophy Philosophy Department, University of Guelph Guelph, Ont. (Canada) 13-14 November 2004 This conference is an international and interdisciplinary gathering focusing on the theme of “The Practice of Law-making and the Problem of Difference”. The increasing diversity of liberal-democratic states and corresponding demands of recognition have forced political theorists of various camps to reformulate their account of how to approach the goal of solidarity. Despite variation in their accounts, the majority of these theorists hold that modern constitutions can recognize and accommodate cultural diversity. For example, liberal culturalists speak about common history and language and shared law-making as the ties that bind us in multicultural societies; critical theorists speak about the principle of universalization in constitutional norms that are sensitive to difference by virtue of procedures of law-making; and minority rights theorists invoke constitutional conventions of mutual recognition, continuity, and consent in order to accommodate cultural diversity in contemporary societies. Hence, one can speak of a convergence of political ideas around the thesis of constitution-making in diverse societies as capable of fostering solidarity. Our aim in this conference is to further explore these different perspectives, and to consider their areas of agreement and disagreement. Participants include some of the most important and influential writers on questions of constitutionalism and diversity, including James Tully, ill Kymlicka, Andrew Arato, Jeremy Waldron, Charles Taylor, Michel Rosenfeld, Douglas Moggach, Thomas McCarthy, Courtney Jung, Melissa Williams, Kenneth Baynes, Simone Chambers. Contact: Prof. Omid Payrow Shabani Philosophy Department University of Guelph N1G2W1 Guelph, ON. Canada Phone +1 (519) 824-4120 x 53201 Email: Website:

Call for Papers: Ratio Juris
    Ratio Juris: An International Journal of Jurisprudence and Philosophy of Law Published by Blackwell Publishing in conjunction with the University of Bologna Ratio Juris is a leading international journal of philosophy of law and general jurisprudence. It provides a truly international and trans-cultural forum for the communication of philosophical ideas about law and legal questions. Ratio Juris is open to scholars from all backgrounds and traditions, philosophical, political cultural and linguistic. Ratio Juris covers classical topics such as: the nature of law; law and morality; justice; rightness and natural law; law and reason; the logic of norms; artificial intelligence and law; law and language; legal obligation; rights validity and the legitimacy of law; the rule of law; legal epistemology; rules and principles; rules and acts; legal reasoning; interpretation; deontic logic and expert systems in law. Print ISSN: 0952-1917 Online ISSN: 1467-9337 Professor C. Faralli RATIO JURIS Istituto Giuridico A. Cicu Universit. di Bologna Via Zamboni 27/29 I-40126 Bologna ITALY Content available by subscription. Free sample issue available online. See: Current issue: Volume 17: Issue 2, June 2004 Date: 21 July 2004

Call for Papers: Pluralism: Exploring Critical Issues
    Call for Papers "Pluralism: Exploring Critical Issues" 2nd Global Conference Inter-Disciplinary.Net Vienna (Austria) 6-8 December 2004 This inter-disciplinary and multi-disciplinary research and publications project is a critical examination of the theme of 'pluralism' and the challenges it is posing across the world today. Pluralism has unleashed a reaction of paradigm consolidation in political, economic, social, religious and cultural areas that are having a major impact on all aspects of our lives. In particular, the theme of the second conference is "Managing Pluralism". The significance of this theme is the special importance given to finding ways to manage processes, structures and processes differently. The theme is both timely and significant as tendencies to pull in different directions are causing tremendous frustrations amongst policy makers, administrators and recipients. There is a cry for “doing things differently” but there is an intellectual vacuum that the conference is intending to fill, namely, how to do things differently in the light of existence of pluralism. The conference seeks to learn and inform from both successful and unsuccessful attempts to better manage pluralism. Pluralism in the context of this conference is conceptualized as being related to context rather than direction. It is not about differences but about alternatives. Papers, presentations, reports and workshops are warmly invited on any of the following central themes (or their combinations): 1. Knowledge Pluralism 2. Ecological Pluralism 3. Managerial Pluralism 4. Designing Pluralism 5. Political Pluralism 6. Social, Cultural and Economic 7. Religious Pluralism Papers will be considered on any related theme. 300 word abstracts should be submitted by Friday 3rd September 2004. If accepted for presentation, 8 page draft conference papers should be submitted by Friday 19th November 2004. 300 word abstracts should be submitted to the Organising Joint Chairs; abstracts may be in Word, WordPerfect, PDF or RTF formats. Dr Rob Fisher Inter-Disciplinary.Net Priory House 149B Wroslyn Road Freeland, Oxfordshire OX29 8HR Email: Dr Makere Stewart-Harawira Director, Association for Research, Analysis & Change Networking Ltd Auckland, New Zealand Email: Dr. Siva Ram Vemuri School of Law and Business Charles Darwin University Australia Email: One ISBN eBook and one themed hard copy volume is in preparation from the previous meeting of this conference project. All papers accepted for and presented at this conference will be published in an ISBN eBook. Selected papers will be developed for publication in a themed hard copy volume. For further details about the project, please go to: For further details about the conference, please go to:

Conference Announcement: The 2004 Election: What Does it Mean for Campaigns and Governance?
    October 8, 2004. The USC-Caltech Center for the Study of Law and Politics and the Initiative and Referendum Institute at USC have organized a conference called "The 2004 Election: What Does it Mean for Campaigns and Governance?" Held at the USC Law School on the eve of the election, the conference will bring leading scholars in law, political cience, economics, and public communication together with people working in politics and campaigns to discuss major trends that are evident in the November election and that will shape politics into the next decades. The conference will include a keynote address delivered by Senator Bob Graham of Florida during lunch. The day-long conference will consist of four panels on the following topics: Campaigns under BCRA; Political Communication, the Media, and the Internet; the Role of Initiatives and Referendums in the Election; and Polarized Voters and Politics. Each panel will be a mix of scholars and political commentators (including Vice-Chair Ellen Weintraub of the Federal Election Commission), and we anticipate a lively discussion among the panelists and the audience. IThe schedule of the conference at this webpage:
      Friday, October 8; USC Law School Room 1 Keynote Address: Senator Bob Graham (D-FL), to be given at lunch Panels The First Campaign under BCRA's Rules Ellen Weintraub, Vice-Chair of the Federal Election Commission D. Bruce La Pierre, Professor of Law, Washington University -- St. Louis; Counsel for Respondents in Nixon v. Shrink Missouri Government PAC David Magleby, Distinguished Professor of Political Science, BYU; Director, Center for the Study of Elections and Democracy Spencer Overton, Associate Professor of Law, George Washington University Law School Moderator: Elizabeth Garrett, Professor of Law, USC; Director, USC-Caltech Center for the Study of Law and Politics The Initiative and Referendum Process Garry South, political consultant; former Senior Political Advisor to Governor Gray Davis (D-CA) and the presidential campaign of Sen. Joseph Lieberman (D-CT) Tracy Gordon, Research Fellow, Public Policy Institute of California John Matsusaka, Professor of Business and Law, USC; President, Initiative and Referendum Institute at USC Daniel Smith, Associate Professor of Political Science, University of Florida Moderator: M. Dane Waters, Founder and Chairman of the Board, Initiative and Referendum Institute at USC Polarized Voters and Politics Mickey Edwards, Lecturer of Public and International Affairs, Woodrow Wilson School, Princeton University; former Member of the U.S. House of Representatives (R-OK) R. Michael Alvarez, Professor of Political Science, Caltech; Associate Director, USC-Caltech Center for the Study of Law and Politics Gary Jacobson, Professor of Political Science, University of California--San Diego Janelle Wong, Assistant Professor of Political Science, USC Moderator: Ann Crigler, Professor of Political Science, USC; Director, Jesse M. Unruh Institute of Politics Political Communications, the Media and the Internet David Brock, President and CEO, Media Matters for America John Fund, Editorial Board of the Wall Street Journal Thomas Hollihan, Professor and Associate Dean for Academic Affairs, Annenberg School for Communication, USC Vincent Price, Steven H. Chaffee Professor of Communication and Political Science, University of Pennsylvania Moderator: D. Roderick Kiewiet, Professor of Political Science, Caltech Concluding Cocktail Party and Watch Party for the First Presidential Debate
    For additional information, contact: Elizabeth Garrett Professor of Law, University of Southern California Law School Director, USC-Caltech Center for the Study of Law and Politics Board of Directors, Initiative and Referendum Institute at USC 699 Exposition Blvd. Los Angeles, CA 90089

Thursday, July 22, 2004
Barnett on the Moral Foundations of Libertarianism Randy E. Barnett (Boston University) has posted The Moral Foundations of Modern Libertarianism on SSRN. Here is the abstract:
    Libertarians no longer argue, as they once did in the 1970s, about whether libertarianism must be grounded on moral rights or on consequences; they no longer act as though they must choose between these two moral views. In this paper, I contend that libertarians need not choose between moral rights and consequences because theirs is a political, not a moral, philosophy; one that can be shown to be compatible with various moral theories, which is one source of its appeal. Moral theories based on either moral rights or on consequentialism purport to be "comprehensive," insofar as they apply to all moral questions to the exclusion of all other moral theories. Although the acceptance of one of these moral theories entails the rejection of all others, libertarian moral rights philosophers on the one hand, and utilitarians on the other, can embrace libertarian political theory with equal fervor. I explain how can this be and why it is a strength rather than a weakness of libertarian political theory. Conservatives, neoconservatives, and those on the left who seek to impose by force their comprehensive conception of "the good" neglect the problem of power - an exacerbated instance of the twin fundamental social problems of knowledge and interest. For a comprehensive moralist of the right or left, using force to impose their morality on others might be their first choice among social arrangements. Having another's comprehensive morality imposed upon them by force is their last choice. The libertarian minimalist approach of enforcing only the natural rights that define justice should be everyone's second choice. A compromise, as it were, that makes civil society possible. And therein lies its imperative.
Barnett is the leading exponent of libertarian legal theory. Highly recommended!

Shah & Kesan on the Role of Institutions in Shaping Communications Technology Development Rajiv C. Shah and Jay P. Kesan (University of Illinois at Urbana-Champaign - Institute of Communications Research (ICR) and University of Illinois College of Law) have posted Recipes for Cookies: The Role of Institutions in Shaping the Development of Communication Technologies on SSRN. Here is the abstract:
    The ability of communication technologies to affect societal concerns, such as privacy, is widely recognized. This paper argues a central factor in how a technology affects a societal concern stems from its institutional origin. The case study of the cookies technology, which allows web sites to maintain surveillance on its visitors, shows the differing influences of universities, firms, and consortia. Each of these institutions acted according to their own norms and processes and differentially shaped the cookies technology. The result suggests societal institutions act in a systematic and predictable fashion in shaping how communication technologies affect fundamental societal concerns.

Garnett on the State's Interest in the Development of Religious Doctrine Richard W. Garnett (University of Notre Dame - Law School) has posted Assimilation, Toleration, and the State's Interest in the Development of Religious Doctrine (UCLA Law Review, Vol. 51, No. 1, 2004) on SSRN. Here is the abstract:
    Thirty-five years ago, in the context of a church-property dispute, Justice William Brennan observed that government interpretation of religious doctrine and judicial intervention in religious disputes are undesirable because, when "civil courts undertake to resolve [doctrinal] controversies..., the hazards are ever present of inhibiting the free development of religious doctrine and of implicating secular interests in matters of purely ecclesiastical concern." This statement, at first, seems wise and fittingly cautious, even unremarkable and obvious. On examination, though, it turns out to be intriguing, elusive, and misleading. Indeed, Justice Brennan's warning presents "hazards" of its own, and its premises - if uncritically embraced - can subtly distort our constitutional discourse. This Article provides a careful and close examination of the statement's premises and implications, and concludes that, far from being a "purely ecclesiastical concern," the content of religious doctrine and the trajectory of its development are matters to which even a secular, liberal, and democratic government will almost certainly attend. It is not the case that governments like ours are or can be "neutral" with respect to religion's claims and content. As this Article shows, the content, meaning, and implications of religious doctrine are and have long been the subjects of government power and policy. Secular, liberal, democratic governments like ours not only take cognizance of, but also and in many ways seek to assimilate - that is, to transform - religion and religious teaching. And, it is precisely because such governments do have an interest in the content, and, therefore, in the "development," of religious doctrine - an interest that they will, if permitted, quite understandably pursue - that authentic religious freedom is so fragile.

Liu on Regulatory Copyright Joseph P. Liu (Boston College - Law School) has posted Regulatory Copyright (North Carolina Law Review, Forthcoming) on SSRN. Here is the abstract:
    This Article explores and examines the implications of the increasingly regulatory nature of U.S. copyright law. For many years, U.S. copyright law operated under a judicially-administered, industry-neutral property rights regime. Congress set the scope of the property entitlement, leaving the courts to enforce the entitlement and the markets to organize the production of creative works in light of the entitlement structure. In recent years, however, Congress has shown an increasing willingness to intervene more directly in the structure of copyright markets. Congress's most recent legislative efforts are far more complex and industry-specific, allocate rights and responsibilities in a far more detailed manner, and in some cases directly regulate technology and prices in the market. This Article examines and critically evaluates this trend. It first makes the descriptive claim that this kind of regulatory copyright has become increasingly the preferred, and indeed perhaps dominant, mode of copyright lawmaking. It then critically assesses both the strengths and weaknesses of this approach in the copyright law context, applying insights from the broader literature. Finally, it offers suggestions for both being more selective in deploying this mode of copyright lawmaking and improving the function of such lawmaking in cases where it is deployed.

Vanneste et al on Commons & Anticommons Sven Vanneste , Alain Van Hiel , Francesco Parisi and Ben Depoorter (Universiteit Gent , Universiteit Gent , George Mason University School of Law and Yale University - Law School) have posted From 'Tragedy' to 'Disaster': Welfare Effects of Commons and Anticommons Dilemmas on SSSR. Here is the abstract:
    Recently, a new concept, the anticommons dilemma, has been introduced in economic literature. In an anticommons property regime, multiple co-owners have the right to exclude one another from benefiting from a common resource. The economic literature has unveiled symmetry between commons and anticommons problems. Our experimental results reveal an interesting asymmetry. Anticommons situations generate greater opportunistic behavior than an equivalent commons dilemma (Study 1), and anticommons dilemmas yield a greater risk for underuse compared to commons dilemmas (Study 2). It was therefore concluded that anticommons might be considered as having even more severe and problematic consequences than the commons dilemma.

Goldberg on Tort Law for Federalists John C.P. Goldberg (Vanderbilt University - School of Law) has posted Tort Law for Federalists (and the Rest of Us): Private Law in Disguise (Harvard Journal of Law & Public Policy, Vol. 28, 2004) on SSRN. Here is the abstract:
    This essay argues in favor of understanding tort law as a law of private redress, rather than public regulatory law. Part I uses the U.S. Supreme Court's 2003 decision on punitive damages in State Farm Mut. Ins. Co. v. Campbell to demonstrate some of the weaknesses of public law conceptions of tort, and some of the strengths of a private law conception. Part II maintains that a private law model need not be associated with formalist reasoning, an elevation of common law over statute, or political conservatism.

Sanchirico & Triantis on the Verifiability of Contract Performance & the Fabrication of Evidence Chris William Sanchirico and George G. Triantis (University of Pennsylvania - Law School & Wharton School and University of Virginia School of Law) have posted Evidentiary Arbitrage: The Fabrication of Evidence and the Verifiability of Contract Performance on SSRN. Here is the abstract:
    Contract theory identifies verifiability as a critical determinant of the incompleteness of contracts. Although verifiability refers to the cost of proving relevant facts to a court, very little scholarship connects explicitly the evidentiary process to the drafting of substantive contract terms. This paper begins to explore this relationship to provide a more rigorous explanation of contract design. In particular, the paper concerns the very core of verifiability – truth-finding by a court – and examines the impact of the prospect of evidence fabrication on contracting. It thereby also explores the puzzling tolerance of the adjudicatory system for fabrication and the incentives to fabricate created by thresholds in burdens of proof. The paper suggests that, despite undermining truth-finding, evidence fabrication may be harnessed by contracting parties to improve the (evidentiary) cost-efficiency of performance incentives in their relationship.

Moore on Worthless Patents Kimberly A. Moore (George Mason University School of Law) has posted Worthless Patents on SSRN. Here is the abstract:
    This article presents the first empirical analysis of patent value by examining renewal rate data for nearly 100,000 patents. Finding that 53.7% of all patentees allow their patents to expire for failure to pay maintenance fees confirm common perceptions of patent issuance being a poor measure of innovation value. Even more interesting is the finding that patents which expire for failure to pay maintenance fees share some common identifiable characteristics. In particular, we found that renewed patents had more claims, cited more prior art, received more citations, had more related applications, had more inventors, and spent longer in prosecution. We also found that renewal rates varied both by assignee (individual versus corporation) and (foreign versus domestic) and by technology. By providing a means of systematically identifying worthless patents and their ex ante characteristics, this article compliments the author's earlier work on identifying valuable patents by comparing litigated and issued patents. Renewal rate data, however, seems a better predictor of value than litigation data as renewal rate data captures the many ways a patent may be of private value to its owner such as revenue generation via licensing or litigation, defensively, or for signaling purposes. Hence, rather than analyzing a subset of really valuable patents (those that are litigated) which may or may not be representative of all valuable patents, analysis of renewal rate data captures the population of valuable patents.

Conference Announcement: Particularism
    Dear colleague, we are writing to invite you to the 2005 Bled Philosophical Conference. The conference on "Particularism" will take place June 13-17, 2005 at the Kompas Hotel in Bled, Slovenia. The conference is organized by a team consisting of Matjaz Potrc of the University of Ljubljana, Nenad Miscevic of the University of Maribor, Danilo Suster of the University of Maribor and Mylan Engel of the Northern Illinois University and is officially included in the program of the activities of the Slovenian Society for Analytic Philosophy. A special issue of Acta Analytica will publish (selected) papers from the conference.
    Jonathan Dancy, the main proponent of moral particularism, has confirmed his participation at the conference. So a symposium on his work, including his just published book Ethics Without Principles (Oxford University Press, 2004) is one obvious topics; review of particularist criticism and the promise of positive particularism are another. An additional aim of this conference is assessing the prospect of extending particularist approach to other areas, such as aesthetics, epistemology and even metaphysics. Those interested to participate should send the title of their contribution with a longer abstract (1000-1500 words) till November 1st, 2004. They will receive the notice of acceptance by December 1st, 2004.
    Bled conferences do not possess any financial means, so we would kindly ask you to request financing from your own institution in the case you would be interested to attend. For more info see Best wishes, Matjaz Potrc and Vojko Strahovnik.

Wednesday, July 21, 2004
Blakely News & the Blogosphere Over at Sentencing Law & Policy, Doug Berman has the latest Blakely news, including links to the Solicitor General's filings! Chris Geidner has a very nice comment on the role that blogs have played in the post-Blakely fall out:
    blogs are revolutionizing -- at the least -- the way we receive our news about particular niches in which we have strong interest. I know from the weekly legal newspaper that we receive at the firm this summer. I have read (or written) a blog post about every truly interesting case in there each week. Usually a week -- or sometimes even two -- earlier. Even daily legal newspapers couldn't have contained everything, and there were no daily national legal niche newspapers.
Of course, bloggers are sometimes given to exaggerated statements about the importance of blogging, but in this case, Geidner has it exactly right. Doug Berman, Scotusblog, How Appealing, and others have made the important post-Blakely developments accessible and transparent in a way that simply would not have been possible before the Internet.

Baude on Blakely Check out Will Baude of Crescat Sententia who has a column titled Pro Circuit on the New Republic Online. Here's a taste:
    there are plenty of ways to influence the legal course of a Supreme Court decision without disobeying it. And the events of the last few weeks have put the lie to the notion that circuit court appointments don't matter in and of themselves. Because it can only rule on individual cases, not hypothetical ones, the High Court relies on lower courts to apply its logic and rules to new situations--and that gives circuit court judges the power to determine whether the logic behind any given Supreme Court ruling provokes a legal revolution or simply sputters out. Last month, in Blakely v. Washington, the Court held unconstitutional Washington state's sentencing scheme because it put too much power in the hands of judges, as opposed to juries. At the time, the opinion was somewhat overshadowed by coverage of the Court's terrorism decisions. But in recent weeks, Blakely has sparked immense activity in lower courts with far-reaching implications. The way lower courts have handled Blakely suggests just how much circuit court appointments matter.

Hiring Trends Don't miss Hiring Trends at 18 "Top" American Law Schools, posted on Monday.

Griffin Reviews Barnett Stephen M. Griffin (Tulane) has posted Barnett and the Constitution We Have Lost (forthcoming University of San Diego Law Review) on SSRN. Here is the abstract:
    This is a review essay of Randy Barnett's book Restoring the Lost Constitution: The Presumption of Liberty (Princeton University Press, 2004). I consider Barnett's libertarian theory of constitutional law in three stages. In Part I, I criticize the external theory of political legitimacy that Barnett applies to the Constitution. I argue that this theory had nothing to do with the actual reasons the Constitution was accepted as legitimate when it was ratified. In Part II, I focus on Barnett's theory of constitutional interpretation and his account of the necessary and proper clause, the foundation of the presumption of liberty. I also critique Barnett's treatment of the Lochner era. In Part III, I examine Barnett's approach to governmental power under the Constitution, particularly with respect to the commerce clause and the state police power.
An earlier version of this marvelous review was delivered at the Annual Meeting of the Association of American Law School's in January. Highly recommended. Download it while its hot!

Cueller on Sovereignty & Collective Security Mariano-Florentino Cuellar (Stanford) has posted Reflections on Sovereignty and Collective Security (Stanford Jounral of International Law, Vol. 40, No. 211, 2004) on SSRN. Here is the abstract:
    This article assesses some of international law's current contributions to international security, focusing primarily on the United Nations Charter and its associated legal doctrines emphasizing the importance of national territorial sovereignty. The article provides a doctrinal and empirical analysis of the limitations of the Charter system in dealing with some persistent problems of international security, including the existence of noncompliant states, threatening non-state actors, and normative challenges to idea of national territorial sovereignty. The article also reports data indicating that the United Nations framework has failed to contain violent international crises. It also notes that, despite the achievement it represents, the United Nations' institutional focus on preventing aggressive war largely fails to grapple with dramatic increases in the prevalence and intensity of civil war. To assess the importance of dealing with internal civil conflict in addition to aggressive war, I estimate the average length and intensity of an average civil war taking place in the mean year during the last 50 years. I find that the length has increased from just over 20 months (in the 1901-1950 period) to about 60 months (1951-1992), and intensity (measured by the number of battle deaths per hundred thousand people in the population of the country in question) has increased from under 3 (in the 1901-1950 period) to over 6 (1951-1992). The article then reviews theories supporting the claim that international law can contribute to security despite the continuing extent of global conflict and violence, and ends by discussing strategies to reform the United Nations system and enhance international law's contributions to peace. In particular, I emphasize the importance of two issues that affect international law's contributions but have not received sufficient attention. The first is the need for more empirical analysis of when domestic political bargains become sensitive to international law. The second issue concerns how international law should structure the choice between imposing collective sanctions on the people of a nation-state, or whether more targeted remedies should be used even if they involve incursions into a nation's territorial sovereignty. If international law has little to say in informing that choice, then it will have little relevance when nation-states choose among those strategies. To address both of these issues, international law scholars may have to further reexamine assumptions about national territorial sovereignty llong identified with international law.