Legal Theory Blog



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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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Links for Legal Theory Blog

--Lawrence B. Solum (My Homepage at the University of Illinois)

--My College of Law Directory Page

--My Philosophy Department Directory Page

--Email me

--Legal Theory Annex
(All the theory that does not fit.)

--Legal Theory Lexicon
(Basic concepts in legal theory for first year law students.)

--My Publications on SSRN

Noteworthy Posts

Hiring Trends at 18 "Top" American Law Schools

2005-06 Report on Law School Entry Level Hiring

2004-05 Report on Law School Entry Level Hiring

2003-04 Report on Entry Level Hiring

Legal Theory Bookclub: Lessig's Free Culture

Getting to Formalism

Water Wells and MP3 Files: The Economics of Intellectual Property

Do Humans Have Character Traits?

Naturalistic Ethics

The Case for Strong Stare Decisis, or Why Should Neoformalists Care About Precedent?
Part I: The Three Step Argument
Part II: Stare Decisis and the Ratchet
Part III: Precedent and Principle

Fear and Loathing in New Haven

A Neoformalist Manifesto

Understanding the Confirmation Wars: The Role of Political Ideology and Judicial Philosophy

Breaking the Deadlock: Reflections on the Confirmation Wars

Going Nuclear: The Constitutionality of Recess Appointments to Article III Courts

Archives

09/01/2002 - 10/01/2002 01/01/2003 - 02/01/2003 02/01/2003 - 03/01/2003 03/01/2003 - 04/01/2003 04/01/2003 - 05/01/2003 05/01/2003 - 06/01/2003 06/01/2003 - 07/01/2003 07/01/2003 - 08/01/2003 08/01/2003 - 09/01/2003 09/01/2003 - 10/01/2003 10/01/2003 - 11/01/2003 11/01/2003 - 12/01/2003 12/01/2003 - 01/01/2004 01/01/2004 - 02/01/2004 02/01/2004 - 03/01/2004 03/01/2004 - 04/01/2004 04/01/2004 - 05/01/2004 05/01/2004 - 06/01/2004 06/01/2004 - 07/01/2004 07/01/2004 - 08/01/2004 08/01/2004 - 09/01/2004 09/01/2004 - 10/01/2004 10/01/2004 - 11/01/2004 11/01/2004 - 12/01/2004 12/01/2004 - 01/01/2005 01/01/2005 - 02/01/2005 02/01/2005 - 03/01/2005 03/01/2005 - 04/01/2005 04/01/2005 - 05/01/2005 05/01/2005 - 06/01/2005 06/01/2005 - 07/01/2005 07/01/2005 - 08/01/2005 08/01/2005 - 09/01/2005 09/01/2005 - 10/01/2005 10/01/2005 - 11/01/2005 11/01/2005 - 12/01/2005 12/01/2005 - 01/01/2006 01/01/2006 - 02/01/2006 02/01/2006 - 03/01/2006 03/01/2006 - 04/01/2006 04/01/2006 - 05/01/2006 05/01/2006 - 06/01/2006 06/01/2006 - 07/01/2006 07/01/2006 - 08/01/2006 03/01/2011 - 04/01/2011

Blogosphere

New: --PrawfsBlog
(Group BLog)


--Balkinization
(Jack Balkin)

--Crescat Sententia
(Group Blog)

--Crooked Timber
(Group Blog)

--De Novo
(Group Blog)

--Desert Landscapes
(Group Blog)

--Discourse.Net
(Michael Froomkin)

--Displacement of Concepts
(Group Blog)

--Election Law
(Rick Hasen)

--Freedom to Tinker
(Ed Felten)

--The Garden of Forking Paths

--How Appealing
(Howard Bashman)

--Instapundit
(Glenn Reynolds)

--Is That Legal?
(Eric Muller)

--Law & Society Weblog
(Group Blog)

--The Leiter Reports
(Brian Leiter)

--Lessig Blog
(Lawrence Lessig)

--Marstonalia
(Brett Marston)

--Paper Chase @ Jurist
(Bernard Hibbitts)

--Political Arguments
(Group Blog)

--ProfessorBainbridge.com
(Stephen Bainbridge)

--Pea Soup
(Group Blog)

--Punishment Theory
(Group Blog)

--The Right Coast
(Group Blog)

--SCOTUS Blog
(Group Blog)

--Sentencing Law and Policy
(Douglas Berman

--Statutory Construction Zone
(Gary O'Connor)

--TaxProf Blog
(Paul Caron)

--Volokh Conspiracy
(Group Blog)

Websites of Interest

+Arts and Letters Daily

+Conference Alerts

+Daily Whirl

+fa.philos-l

+Economic Theory News

+Encyclopedia of Law and Economics

+Jurisprudence and Social Policy Program (U.C. Berkeley) eScholarship Repository

+Law and Politics Book Reviews

+Metapsychology Book Reviews

+Notre Dame Philosophical Review

+Online Papers in Philosophy

+PoliticalTheory.info

+SSRN Most Recent Uploads

More Blogs of Interest

--Althouse
(Ann Althouse)

--Asymmetrical Information
(Jane Galt)

--bIPlog
(Group Blog)

--The Blawg Review
(Group Blog)

--Brad DeLong

--The Buck Stops Here
(Stuart Buck)

--Copyfight
(Group Blog)

--A Copyfighter's Musings
(Derek Slater)

--The Curmudgeonly Clerk

--Daniel Drezner

--Discriminations
(John and Jessie Rosenberg)

--Eastmania
(Wayne Eastman)

--EveTushnet.com
(Eve Tushnet)

--Freespace
(Timothy Sandefur)

--Furdlog
Frank Field

--Ideoblog
(Larry Ribstein)

--The Importance Of
(Ernest Miller)

--The Indiana Law Blog
(Marcia J. Oddi)

--Infothought
(Seth Finkelstein)

--IPKat
(Jeremy Phillips and Ilanah Simon)

--Law and Economics Blog
(Greg Goelzhauser)

--Law Dork
(Chris Geidner)

--Law Meme
(Group Blog)

--Lee Blog
Edward Lee

--Legal Ramblings
(Steven Wu)

--Lenz Blog
(Karl-Friedrich Lenz)

--Letters of Marque
(Heidi Bond)

--The Light of Reason
(Arthur Silber)

--Matthew Yglesias

--philosophy.com
(Gary Sauer-Thompson )

--Public Defender Dude

--Rodger A. Payne's Blog

--Southern Appeal
(Group Blog)

--Strange Doctrines/A>

--Susan Crawford blog

--A Taxing Blog
(Group Blog)

--That's News to Me
(Group Blog)

--Thoughts Arguments and Rants
(Brian Weatherson)

--Three Years of Hell to Become the Devil

--The Trademark Blog
(Martin Schwimmer)

--Troppo Armadillo
(Ken Parish)

--Technology 360

--Tutissima Cassis
(Nate Oman)

--Unlearned Hand

--Weatherall's Law
(Kim Weatherall)

--WENDY.SELTZER.ORG
(Wendy Seltzer)

--yin
(Tung Yin)

Legal Theory Programs & Websites

--Arizona State Committee on Law and Philosophy

--Cambridge Forum for Legal and Political Philosophy

--Columbia Law School Center for Law and Philosophy

--Columbia Legal Theory Workhsop

--Georgetown University Law Center--Colloquium on Constitutional Law and Theory

--Jurisprudence and Social Policy Program (U.C. Berkeley)

--Kadish Center for Morality, Law, and Public Affairs (U.C. Berkeley)

--NYU Colloquium in Legal, Political and Social Philosophy

--Oxford Jurisprudence Discussion Group

--Oxford Legal Philosophy

--Oxford Centre for Ethics & Philosophy of Law

--Queen's University Belfast Forlum for Law and Philosophy

--Rutgers Institute for Law and Philosophy

--UCLA Legal Theory Workshop

--University of Pennsylvania Institute for Law and Philosophy

--University College London: Colloquium in Legal and Social Philosophy

--University of Chicago Law And Philosophy Workshops

--University of Chicago: John M. Olin Program in Law and Economics Workshop

--University of San Diego Institute for Law and Philosophy

--University of Texas Law and Philosophy Program

--Yale Law School: Legal Theory Workshop

Links to Law School Workshops

+Australian National University Faculty Events

+Boston University

+Buffalo

+Columbia Center for Law and Economic Studies

+Florida State

+Fordham

+George Mason

+George Washington--IP Workshop Series

+Georgetown Colloquium on Intellectual Property & Technology Law

+Georgetown Law Workshops

+Georgetown Law and Economics Workshop

+Georgetown Law & Economics Workshop Series

+Hofstra

+University of Illinois

+Lewis & Clark

+Loyola Marymount

+New York University

+NYU Legal History Colloquium

+Northwestern Law Colloquium

+Oxford Law Events

+Rutgers, Camden

+Stanford Center for Internet & Society

+Stanford Law School Olin Series

+UCLA Colloquium

+UCLA Legal History Workshop

+UCLA Tax Policy

--University of Chicago: John M. Olin Program in Law and Economics Workshop

+University of Michigan Law and Economics

+University of San Diego Colloquium Series

+University of Texas Colloquium Series

+Vanderbilt Scholarly Programs & Events Calendar

+Villanova

+Washington & Lee Faculty Workshops

+Yale Law, Economics & Organizations Workshop

Calendars & Events

+Aristotelian Society

+British Society for Ethical Theory

+Conference Alerts

+Events in Analytic Philosophy in Europe (and Overseas Countries)

+The Philosophical Calendar

+Philosophy Now Calendar

+Political Science Online Upcoming Conferences

+SSRN Professional Announcements

Other Programs

--Australian National University, Research School of Social Science, Philosophy Seminars

--Boston University Philosophy Colloquia

--Brown University Philosoophy Upcoming Events

George Mason Workshop in Philosophy, Politics, and Economics

--Harvard University, Philosophy Colloquia

--MIT Philosophy Colloquia

--New York University, Philosophy Events

--Oxford: Events at the Faculty of Philosophy

--Princeton University: Philosophy Department Talks

--Princeton University: Political Philosophy Colloquium

--Princeton University: Public Law Colloquium

--Princeton University: Seminar in Law and Public Affairs

--Tulane Philosophy and Center for Ethics & Public Affairs Seminars

--University College, London: Political Theory Seminars

--University of Arizona Philosophy Colloquia

--University of Bristol Philosophy Research Seminars

--University of California at Berkeley Philosophy Events

--University of California at San Diego Philosophy Colloquia

--University of Chicago Political Theory Workshop

--University of London, School of Advanced Study, Philosophy Programme

--University of Manchester Politics & Philosophy Research Seminars

--University of Melbourne Philosophy Events

--University of North Carolina: Philosophy Speakers

--University of Pennsylvania: Philosophy Colloquiua

--University of Pittsburgh Philosophy Calendar

--Yale Philosophy Department Talks

Some Legal Theorist Homepages

--Robert Alexy (Christian Albrechts University Kiel)

--Randy Barnett (BU)

--Brian Bix (Minnesota)

--Jules Coleman(Yale Law & Philosophy)

--Ronald Dworkin(NYU & University College)

--John Finnis(Oxford and Notre Dame)

--John Gardner (Oxford)

--Brian Leiter (Texas)

--Micahel Moore (Illinois)

--Dennis Patterson (Rutgers, Camden)

--Stephen Perry (NYU)

--Richard Posner (University of Chicago & USCA7)

--Joseph Raz (Oxford and Columbia)

--Jeremy Waldron (Columbia

More to come!

Journals Specializing in Legal Philosophy

--American Journal of Jurisprudence

--The Journal of Philosophy, Science, and Law

--Law and Philosophy

--Law and Social Inquiry

--Legal Theory

--Oxford Journal of Legal Studies

Legal Theory Resources on the Web

Entries from the Stanford Encyclopedia of Philosophy

+Austin, John

+justice, distributive

+justice, as a virtue

+legal philosophy, economic analysis of law

+legal reasoning, interpretation and coherence

+legal rights

+liberalism

+libertarianism

+naturalism in legal philosophy

+nature of law

+nature of law, legal positivism

+nature of law, pure theory of law

+republicanism

From the Oxford Handbook of Jurisprudence

+Natural Law Theory: The Modern Tradition

From the Oxford Handbook of Legal Studies

+Law as an Autonomous Discipline

From the Examined Life

A Critical Introduction to Liberalism

Papers & Articles

+Virtue Jurisprudence

Organizations

+American Political Science Association(APSA)

+American Society for Political and Legal Philosophy (ASPLP)

+Association of American Law Schools(AALS)

+Internationale Vereinigung fur Rechts und Sozialphilosophie(IVR)

+Law and Society Association

+Midwest Political Science Association (MPSA)

My Postal Address
Lawrence B. Solum
University of Illinois College of Law
504 East Pennsylvania Ave
Champaign, IL 61820
USA



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Saturday, December 31, 2005
 
Legal Theory Bookworm The Legal Theory Bookworm recommends Hegel: Elements of the Philosophy of Right by Georg Wilhelm Fredrich Hegel. A classic! As an undergraduate, I took a graduate seminar on Hegel's philosophy of right with Josh Cohen. It is an immensely rich text--one that deserves serious attention from legal theorists. Here's a blurb:
    This book is a translation of a classic work of modern social and political thought. Elements of the Philosophy of Right, Hegel's last major published work, is an attempt to systematize ethical theory, natural right, the philosophy of law, political theory, and the sociology of the modern state into the framework of Hegel's philosophy of history. Hegel's work has been interpreted in radically different ways, influencing many political movements from far right to far left, and is widely perceived as central to the communitarian tradition in modern ethical, social, and political thought. This edition includes extensive editorial material informing the reader of the historical background of Hegel's text, and explaining his allusions to Roman law and other sources, making use of lecture materials which have only recently become available. The new translation is literal, readable, and consistent, and will be informative and scholarly enough to serve the needs of students and specialists alike.

Posted by Lawrence Solum at 12/31/2005 06:39:00 AM

 
Download of the Week The Download of the Week is Contract as Statute by Stephen J. Choi and G. Mitu Gulati. Here's the abstract & you can scroll down to Friday for some comments:
    Formalists contend that courts should apply strict textual analysis in interpreting contracts between sophisticated commercial parties. Sophisticated parties have the expertise and means to record their intentions in writing, reducing the litigation and uncertainty costs surrounding incomplete contracts. Moreover, to the extent courts misinterpret contracts, sophisticated parties may simply rewrite their contracts to clarify their true intent. We argue that the formalist approach imposes large costs on even sophisticated parties in the context of boilerplate contracts. Where courts make errors in interpreting boilerplate terms, parties face large collective action problems in rewriting existing boilerplate provisions. Any single party that attempts to change a boilerplate term will face a large market discount for deviating from the market standard. In such situations, a court erroneous interpretation that reduces overall contracting surplus may persist in an industry. We also contend that taking a more contextual approach, including evidence on course of conduct and industry custom, to contract interpretation will not ameliorate the difficulties inherent in the interpretation of boilerplate terms. The specific parties to a boilerplate contract often have no understanding of what the disputed boilerplate clause means. Where such parties attempt to supply their own ex post understandings, they may not represent the interests of the entire industry that relies on the particular boilerplate clause. We provide a new approach to the interpretation of boilerplate terms between sophisticated contracting parties. Courts should bypass an inquiry into the understanding of the parties to the current contract and instead go back to the point in the past when the disputed clause first became part of the boilerplate. Much like the enacting legislative body for a statute, the original drafting parties provide the best source of information on the original meaning of boilerplate contract terms. The original drafting parties will have spent the most time and resources in negotiating the contract term (and thus represent a true "meeting of the minds"). In a market populated with sophisticated parties on all sides, the drafting parties necessarily must balance the interests of all sides for a contract term to gain at least initial widespread acceptance in the industry. The drafters will also enjoy an expertise advantage over any court attempting to interpret a term. Taking a historical approach to the interpretation of boilerplate terms will create an incentive for standard setters to arise in industries comprised of sophisticated contracting parties to supply boilerplate terms and a detailed historical record of the meaning of the terms.
Download it while its hot!

Posted by Lawrence Solum at 12/31/2005 06:36:00 AM

 
Breyer beats out Scalia Check out So, Guy Walks Up to the Bar, and Scalia Says... in today's New York Times. Here's a taste:
    The New York Times, building on Professor Wexler's pioneering work, analyzed the available transcripts for the term that began this October. The mood under Chief Justice Roberts has brightened, the analysis found, with the average number of justice-generated laughs per argument rising to 2.9 from 2.6 the previous term. In the current term, the Times analysis found, there has also been movement in the funniness-of-individual-justices department. Justice Breyer has taken the lead, at 28 laughs, edging out Justice Scalia, with 25. They also tied in the largest-number-of-jokes-in-a-single-argument category, each squeezing five into a single hour.

Posted by Lawrence Solum at 12/31/2005 04:51:00 AM

Friday, December 30, 2005
 
Choi & Gulati on Contract as Statute Stephen J. Choi and G. Mitu Gulati (New York University - School of Law and Georgetown University Law Center) have uploaded Contract as Statute to SSRN. Here is the abstract:
    Formalists contend that courts should apply strict textual analysis in interpreting contracts between sophisticated commercial parties. Sophisticated parties have the expertise and means to record their intentions in writing, reducing the litigation and uncertainty costs surrounding incomplete contracts. Moreover, to the extent courts misinterpret contracts, sophisticated parties may simply rewrite their contracts to clarify their true intent. We argue that the formalist approach imposes large costs on even sophisticated parties in the context of boilerplate contracts. Where courts make errors in interpreting boilerplate terms, parties face large collective action problems in rewriting existing boilerplate provisions. Any single party that attempts to change a boilerplate term will face a large market discount for deviating from the market standard. In such situations, a court erroneous interpretation that reduces overall contracting surplus may persist in an industry. We also contend that taking a more contextual approach, including evidence on course of conduct and industry custom, to contract interpretation will not ameliorate the difficulties inherent in the interpretation of boilerplate terms. The specific parties to a boilerplate contract often have no understanding of what the disputed boilerplate clause means. Where such parties attempt to supply their own ex post understandings, they may not represent the interests of the entire industry that relies on the particular boilerplate clause. We provide a new approach to the interpretation of boilerplate terms between sophisticated contracting parties. Courts should bypass an inquiry into the understanding of the parties to the current contract and instead go back to the point in the past when the disputed clause first became part of the boilerplate. Much like the enacting legislative body for a statute, the original drafting parties provide the best source of information on the original meaning of boilerplate contract terms. The original drafting parties will have spent the most time and resources in negotiating the contract term (and thus represent a true "meeting of the minds"). In a market populated with sophisticated parties on all sides, the drafting parties necessarily must balance the interests of all sides for a contract term to gain at least initial widespread acceptance in the industry. The drafters will also enjoy an expertise advantage over any court attempting to interpret a term. Taking a historical approach to the interpretation of boilerplate terms will create an incentive for standard setters to arise in industries comprised of sophisticated contracting parties to supply boilerplate terms and a detailed historical record of the meaning of the terms.
This is a very interesting (and highly recommended) article. I have a few questions and comments:
  • Choi & Gulati equate the consideration of "intent" with "a more statutory approach," but I should think that the debates over the role of intentions and "plain meaning" that exist in the statutory context are quite similar to those which exist in contract law.
  • On the surface there is a mismatch between the Choi and Gulati's recognition that alterations in boilerplate are costly and their call for a focus on the "original intent of the drafters" of the boilerplate in question. Indeed, the very same question--what intent should govern boilerplate--arises in the statutory context.
  • From the example of pari passu clauses in sovereign debt contracts, Choi & Gulati argue "a single court attempting to interpret the meaning of a commercial boilerplate term used in a single contract can generate long-lasting and disruptive consequences for the rest of the market using the same boilerplate term." I was certainly persuaded, but I should think that this example does not clearly supports focus on the intent of the original drafters. What is needed is an interpretive approach that will produce stable meanings that can be the focus of wide intersubjective agreement. So long as these two criteria are met, contracting parties will be in a position to select boilerplate with confidence that it's meaning will not vary over time or among different judges. But a focus on intention is exactly the wrong methodology to achieve this result. The intentions of the original drafters of boilerplate are subjective states. New evidence about the intentions results in new meanings. Because the divining of subjective intentions is always an uncertain guessing game, different judges may calibrate them differently. And to the extent that we rely on intentions, evidence of the intentions of the original drafters is likely to be older and more sketchy than evidence of contemporaneous intentions.
  • By way of contrast, focus on public meaning (or the publicly available meaning) of boilerplate seems more likely to produce intersubjective agreement among adjudicators. And a strict rule of stare decisis seems the obvious candidate for the preservation of stable meanings.
  • Choi & Gulati assert, "The first interpretive method that a court is likely to apply is textual analysis, looking at the language of the contract. Formalists would have courts stop at the text itself as the sole source of interpretive authority, applying tie-breaking rules where the text is ambiguous. Further, formalists view all clauses in the contract as dated as of the time that the contract was signed." Well, for all I know, some formalists do take this poisiton. (They provide no citation or supporting evidence for this assertion.) But I should think that it is simply flat-out wrong to identify this position as somehow inherent in "legal formalism" as a position in general jurisprudence. Indeed, I am not sure that it is even coherent to imagine a court would "stop at the text itself," and almost any sophisticated formalist theory of interpretation will require a consideration of the context in which language is used.
  • Perhaps the problem here is that Choi and Gulati don't really define what they mean by formalism--always a mistake, I think.
Quibbles aside, I was immensely impressed by this paper, as I always am by Choi and Gulati's intelligent and provocative work. What else can I say, but download it while its hot!

Posted by Lawrence Solum at 12/30/2005 12:55:00 PM

 
Thai on Justice Stevens Joseph T. Thai (University of Oklahoma - College of Law) has uploaded John Paul Stevens (Encyclopedia of American Civil Liberties, Routledge, 2006) to SSRN. Here is the abstract:
    This entry for the forthcoming Encyclopedia of American Civil Liberties examines the life and work of Justice John Paul Stevens. As the article relates, in Stevens' three decades on the Supreme Court, he has established himself as a highly independent thinker distinguished for his originality and lack of ideology. A prolific writer, Stevens’ opinions have evinced a dedication to restrained decision making in the common law tradition of case-by-case adjudication, a deep faith in the judicial exercise of reason and judgment, and a profound commitment to fulfilling the Constitution’s fundamental purposes, including especially its promise of liberty.

Posted by Lawrence Solum at 12/30/2005 12:51:00 PM

Thursday, December 29, 2005
 
Call for Papers: Computers, Freedom, & Privacy
    CFP2006: The Sixteenth Conference on Computers, Freedom & Privacy L'Enfant Plaza Hotel Washington, DC, USA May 2-5, 2006 CALL FOR PROPOSALS The Program Committee of the Sixteenth Conference on Computers, Freedom, and Privacy (CFP2006) seeks your proposals for innovative conference sessions and speakers. The Computers, Freedom & Privacy Conference has been a leading venue for public debate on the future of privacy and freedom in the online world for a decade and a half. Each year, key representatives from government, business, education, and non-profits including the legal, law enforcement, security, media, consumer, and individual hobbyist communities have gathered together to anticipate policy trends and issues and to help map the future of society in the online world. Attendees will meet again this coming May to address cutting edge questions and issues in computing, freedom and privacy. CFP has been held in different cities over the years, from San Francisco to Toronto to Chicago to Austin. This year the conference once again will be held in Washington, D.C., which continues to offer an unusual mix of policy and legal experts and resources to draw upon. This conference will not be limited to discussions of United States-based parties and interests, however -- consistent with its history, CFP expects to draw participants and events from around the world, addressing the forces that continue to shape the global Internet as well as well as other issues raised by our increasingly pervasive technological environment. As always, the conference hopes to examine the role the Internet is playing in democratic activism at all levels: local, national, and global. We welcome proposals on all aspects of computers, freedom, and privacy. We strongly encourage proposals that explore some of the most important issues facing the Internet and freedom, including: intellectual property and intellectual freedom; copyright versus technologies that make copying cheap or free; global activism; technology and monopoly; voting technology and democracy; technology and weapons; ICANN and Internet governance; borders and censorship; digital divide; biometric systems; consumer privacy; wireless privacy and security; hacktivism; digital rights management and privacy; public records and private lives. We are seeking proposals for tutorials, plenary sessions, workshops, technical demonstrations, and birds-of-a-feather sessions. We are also seeking suggestions for speakers and topics. Sessions should present a wide range of thinking on a topic by including speakers from different viewpoints. Complete submission instructions appear on the CFP2006 web site at: http://www.cfp2006.org All submissions must be received by January 31, 2006. Proposals will be reviewed by the CFP2006 Program Committee and Advisory Board. The Program Committee will notify submitters of the status of proposals no later than March 1, 2006.

Posted by Lawrence Solum at 12/29/2005 03:22:00 PM

 
Anand on Sarbox & Corporate Governance Anita I. Anand (Yale Law School) has posted An Analysis of Enabling vs. Mandatory Corporate Governance Structures Post Sarbanes-Oxley on SSRN. Here is the abstract:
    I argue that firms have incentives to adopt corporate governance practices in the absence of a legal requirement to do so. I further contend that a partially enabling governance regime, and particularly one coupled with mandatory disclosure of a firm's governance practices, is likely to yield a high level of compliance at lower direct costs to the issuer than a wholly mandatory regime. While a wholly mandatory structure may yield slightly better compliance, its other benefits are uncertain and its costs are likely much higher. I seek to push the boundaries of existing comparative corporate governance scholarship by arguing that the enabling/mandatory dichotomy informs analyses of corporate governance regimes across countries.

Posted by Lawrence Solum at 12/29/2005 03:16:00 PM

 
Perez on Linkage & the WTO Oren Perez (Bar-Ilan University, Faculty of Law) has posted Multiple Regimes, Issue Linkage and International Cooperation: Exploring the Role of the WTO (University of Pennsylvania Journal of International Economic Law, Spring 2006) on SSRN. Here is the abstract:
    The article questions the validity of the emerging 'linkage narrative'. The notion of linkage seeks to replace the themes of conflict and animosity, which have dominated the 'trade and ...' debate, with a tale of synergy and mutual-support. While the idea that linking distinct regimes, such as the WTO and Multilateral Environmental Agreements, may yield synergistic benefits is intuitively compelling, it also suffers, the article argues, from various blind spots which make its actual feasibility doubtful. The article exposes these blind spots by situating the 'linkage' hypothesis - as it is articulated in the economic and game theory literature - in a richer theoretical framework which recognizes the institutional complexities and ideological divergences that characterize the contemporary international system. It is argued that realizing the synergic potential of cross-regime linkage requires policy makers to develop pragmatic responses to these blind-spots. The article then moves from the theoretical plane into the muddy waters of WTO jurisprudence, discussing how the idea of linkage - in the context of the trade and environment debate - is dealt with under the WTO rulebook and the Doha negotiation processes (commenting also on the results of the Hong Kong summit). The article concludes by outlining several institutional mechanisms which should facilitate the creation of stable and mutually reinforcing links between the trade and environment domains. While the article focuses on the trade-environment nexus, its theoretical insights are relevant to other domains as well.

Posted by Lawrence Solum at 12/29/2005 03:12:00 PM

 
Mootz on Neitzsche Francis Joseph Mootz III (Pennsylvania State University - The Dickinson School of Law) has posted Responding to Nietzsche: The Constructive Power of Destruktion (Law, Culture and the Humanities, 2006) on SSRN. Here is the abstract:
    As a student of Hans-Georg Gadamer, and later a translator and important commentator on Gadamer's philosophy, P. Christopher Smith is widely acknowledged to be a leading hermeneutical philosopher. In a series of works, Smith has argued that Gadamer provides an important corrective to Nietzsche's caustic critical challenges, but that Gadamer's hermeneutics has no relevance for legal theory because law is just the manifestation of will to power. In this paper I argue that Smith misunderstands the nature of legal practice. Starting with a re-reading of the debate between Gadamer and Jacques Derrida about the legacy of Nietzsche's philosophy, I argue that Gadamer responds to Nietzsche's challenge in a manner that is exemplified in the critical dimensions of legal practice. Using the example of family law that Smith offers, I contend that Smith underestimates the critical and interpretive elements inherent in legal practice and captured in Gadamer's philosophy. I conclude that Gadamer offers a persuasive answer to Nietzsche's challenge.

Posted by Lawrence Solum at 12/29/2005 03:09:00 PM

Wednesday, December 28, 2005
 
Concerence Announcment: European Socio-Legal Conference
    FIRST EUROPEAN SOCIO-LEGAL CONFERENCE European Ways of Law To be held in Oñati July 6-8, 2005 http://www.iisj.es/antbuspre.asp?cod=2382&nombre=2382&prt=1 The title of this conference assumes special European characteristics not only – which is obvious – of law in the books but also of law in action. Styles of regulation, styles of adjudication, the role of the state, as well as legal cultural behaviour may differ considerably from the American way of law or from socio-legal particularities in other world regions. The purpose of the conference is a broad view of the socio-legal enterprise to include law's relations with all the social sciences; a multi-cultural outlook, a strong focus on attracting young researchers and enabling them to meet like-minded scholars, and a contribution to a real strengthening of European identity in socio-legal studies. The emphasis on Europe will be strong but not exclusive: comparisons with non-European legal cultures are welcome and submissions on law and society topics unrelated to the general theme will also be considered. The event will be richer if participants are free to propose papers on topics that go beyond the conference theme and present possibly unexpected developments. The academic responsibility for the event lies with the IISL Scientific Director Volkmar Gessner, assisted by an advisory board: Reza Banakar (Oxford), Joxerramon Bengoetxea (San Sebastián), Anne Boigeol (Paris), Roger Cotterrell (London), Vincenzo Ferrari (Milano), Hakan Hyden (Lund), David Nelken (Macerata), Vittorio Olgiati (Urbino), Stefan Parmentier (Leuven), Grazyna Skapska (Krakow), András Sajo (Budapest), Boaventura de Sousa Santos (Coimbra), Lisa Webley (London), Gerd Winter (Bremen). The IISL as an institution of the Research Committee of the Sociology of Law of the International Sociological Association is committed to global exchanges on the basis of strong local and regional scientific communities. It believes more in informal networks than in formal organisations. There is no intention to foster as a consequence of the conference the creation of formal associations for the sociology of law in Europe or elsewhere. The 2005 conference program - to be developed mainly in reaction to incoming session and paper proposals - will consist of Plenary Sessions with some keynote speakers Featured Sessions organised by the IISL Workshops (organised on the basis of incoming papers) Work in Progress (dissertations, reports on research commissioned by public authorities). Although the official language will be English, sessions may be held in other European languages if a sufficiently large audience can be expected (the papers presented will have to provide an English summary). The Oñati Institute has held big conferences before and has the infrastructure and the experience for organizing them. Only accommodation may become a problem. It can be resolved by early registration of participants. A preliminary program on this webpage will be accessible and updated regularly as soon as the paper and session proposals are coming in. For further information: IISL (Meetings) Antigua Universidad Apartado 28 20560 Oñati (Gipuzkoa) - Spain Tel.: +34 943 71 88 89 Fax: +34 943 78 31 47 E-Mail: malen@iisj.es

Posted by Lawrence Solum at 12/28/2005 06:59:00 AM

 
Duncan on Remorseless Children Martha Grace Duncan (Emory University - School of Law) has posted 'So Young And So Untender' Remorseless Children and the Expectations of the Law (Columbia Law Review, Vol. 102, p. 1469, 2002) on SSRN. Here is the abstract:
    A nine-year-old speaks with apparent callousness as he walks by the body of the girl he has killed. A fourteen-year-old jokes about “body parts in her pocket” after bashing in her mother’s head with a candlestick holder. And a fifteen-year-old laughingly names his accomplice “Homicide” after participating in a robbery that culminated in the victim’s death. Seemingly remorseless acts such as these can have a crucial impact on the way a child or adolescent fares in the juvenile justice or criminal system. Yet, when one looks closely at what the courts interpret as indicators of remorselessness - taking into account psychological findings about the developmental stages, sociological theories about the code of the street, and literary portrayals of the paradoxes of the human mind - these indicators often appear ambiguous, the courts’ interpretations problematic. This article employs psychology, sociology, and literature to investigate the expectation of remorse in the juvenile and criminal justice systems. More specifically, it presents seven in-depth case studies of juveniles who were charged with murder or attempted murder and whose apparent lack of remorse played a salient role in the legal process. Through these case studies, the article challenges the law’s assumption that any decent, redeemable person, regardless of age, will exhibit sorrow and contrition after committing a heinous crime. Beyond challenging the courts’ ability to interpret the emotional state of a juvenile, the article questions the validity of remorse as a predictor of future character. Drawing on Biblical and literary examples and the psychoanalytic theory of the superego, the article suggests that remorse, as the most agonizing form of guilt, may actually undermine the ability to “turn one’s life around” and begin anew.

Posted by Lawrence Solum at 12/28/2005 06:55:00 AM

 
Richman, Weinstock and Mehta on Rockingham County v. Luten Bridge Co. Barak D. Richman , Jordi Weinstock and Jason Mehta (Duke University School of Law , Duke University - School of Law and Harvard University - Harvard Law School) have posted A Bridge, a Tax Revolt, and the Struggle to Industrialize: The Story and Legacy of Rockingham County v. Luten Bridge Co. on SSRN. Here is the abstract:
    Rockingham County v. The Luten Bridge Company is now a staple in most Contracts casebooks. The popular story goes as follows: Rockingham County entered into a contract with the Luten Bridge Company to build a bridge over the Dan River. Shortly after work commenced, the County repudiated the contract. Nonetheless, the Luten Bridge Company continued with its construction project and sued the County for the entire bill. Judge John J. Parker, the long-time chief judge of the Fourth Circuit, ruled in the famous 1929 opinion that the County was liable only for the costs up until the time of breach plus the anticipated profit, a sum of approximately $1,900, and not for the entire bill that was closer $18,000. The case is used to illustrate the "duty to mitigate," where a party to a contract against whom a breach has occurred is obligated to mitigate the damages resulting from that breach In this article, we revisit the history of this famous case. Examining original sources related to the case, the contemporary history, and the lives of those involved, we reveal that the case arose during, and sharply illustrates, Rockingham County's struggle to industrialize. The dispute emerged within a heated tax revolt that pitted the county's farmers against its mill owners and constituted a microcosm of the larger political conflict - endemic throughout North Carolina and the south - over investing in the public improvements necessary to promote industrialization. The Fourth Circuit opinion that transpired from the dispute offers many lessons and insights into the era's history, its legal issues challenges, and the development of the common law. We do our best to bring the rich story to life and to understand its lessons. Section I of the paper documents the case's current importance in contract law, and Section II describes in detail the political and legal fights that culminated in Judge Parker's 1929 opinion. Section III then examines the true contemporary significance of the opinion. We reveal that Judge Parker's real objective was to enable North Carolina counties to enter into enforceable contracts to enable municipal development and facilitate industrialization, and that the ruling on mitigating damages was merely an afterthought. Section IV then examines the process through which the opinion, despite Judge Parker's intents, lost its original significance but later became immortalized to establish the mitigation principle.

Posted by Lawrence Solum at 12/28/2005 06:54:00 AM

 
Rosenfeld on Derrida's Ethical Turn, Terrorism, and Enlightenment Michel Rosenfeld (Cardozo Law School) has posted Derrida’s Ethical Turn and America: Looking Back from the Crossroads of Global Terrorism and the Enlightenment (Cardozo Law Review, Vol. 27, 2006) on SSRN. Here is the abstract:
    Derrida has denied that he has taken an ethical turn in the 80’s and 90’s. This article argues, however, that Derrida’s deconstruction of the ethical implications of major moral, social or political issues, such as law and justice, friendship, hospitality, forgiveness, the death penalty and most recently global terrorism, does result in an ethical turn. This turn leads Derrida to articulate an ethics of difference which focuses on diversity and the other and America as compared to Europe stands for greater diversity and looms as Derrida’s and Europe’s “other”. In contrast to Derrida’s America is Habermas’s Europe, his Kantian ethics of identity and his clear place in modernism and the project of the Enlightenment. Many, including Habermas have accused Derrida of having repudiated the legacy of the Enlightenment - a serious charge which would make Derrida’s unequivocal condemnation of global terrorism appear as theoretically unfounded. Derrida has rejected this charge and claimed to be a true heir of the Enlightenment taken in its full historical dimension replete with internal contradictions. Moreover, Derrida’s ethical assessment of global terrorism lead him to turn away from America and to return for good shortly before his death to Europe. The article examines Derrida’s claim, traces his intellectual return to Europe, and asseses how his ethics of difference fares as compared to an ethics of identity in dealing persuasively with the ethical issues raised by global terrorism.

Posted by Lawrence Solum at 12/28/2005 06:53:00 AM

 
Goldberg on Wood v. Lucy, Lady Duff-Gordon Victor P. Goldberg (Columbia Law School) has posted Reading Wood v. Lucy, Lady Duff-Gordon with Help from the Kewpie Dolls on SSRN. Here is the abstract:
    In Wood v. Lucy, Lady Duff Gordon, Cardozo found consideration in an apparently illusory contract by implying a reasonable effort obligation. Unbeknownst to Cardozo, Wood had agreed to represent Rose O’Neill, the inventory of the kewpie doll in an earlier exclusive contract. Wood sued O’Neill two months prior to entering into the Lucy arrangement. That contract included an explicit best efforts clause. The failure to include such a clause in this contract was, quite likely, deliberate, suggesting that Wood was trying to avoid making a binding commitment to Lucy. The paper examines both the kewpie doll and Lucy contract in some detail. It then goes on to argue that the decision’s role in finding consideration is probably minimal–it would be easy enough for the parties to provide an alternative source of consideration if they desired. The mischief of the opinion is its impact on contract interpretation. The UCC and some common law courts have taken to imposing a vague effort standard on promisors, even if there exists an explicit source of consideration.

Posted by Lawrence Solum at 12/28/2005 06:52:00 AM

Tuesday, December 27, 2005
 
Berman on the End of Conflicts Harold Berman (Emory University - School of Law) has posted Is Conflict of Laws Becoming Passe? An Historical Response (BALANCING OF INTERESTS: LIBER AMICORUM PETER HAY ZUM 70. GEBURTSTAG, Hans-Eric Rasmussen-Bonne, Richard Freer, Wolfgang Lüke, Wolfgang Weitnauer, eds., Verlag Recht und Wirtschaft GmbH, 2005) on SSRN. Here is the abstract:
    Now that virtually all the nations of the world have come together in a world economy and an emerging world society, and universal bodies of law are gradually being created to help support that economy and society, the question has arisen whether the scope of both conflict-of-laws and comparative law will now gradually be substantially reduced. A response to that question raises the further question, what is the basic purpose of conflict-of-laws? Is it to preserve the autonomy of diverse legal systems or is it to help to harmonize them? A historical answer to that question is presented in this short essay. It appears that conflict-of-laws doctrines emerged in the West in the late eleventh and twelfth centuries drawn not, as is usually said, from Roman law but rather from the canon law of the Roman Catholic Church, and that their basic purpose was not primarily to support the reciprocal application of the diverse bodies of law but rather to harmonize the laws of diverse jurisdictions that co-existed in the West. The fact that different results would be reached by the application of one or another body of laws was subordinated to the fact that all the different bodies of law had a common purpose, namely, to achieve justice. Thus conflicts rules were not originally, and should not now be, applied primarily in order to preserve the autonomy of competing laws but primarily in order to achieve common goals of justice.

Posted by Lawrence Solum at 12/27/2005 05:14:00 AM

 
Gervais on IP, Trade, & Development Daniel J. Gervais (University of Ottawa - Common Law) has posted Intellectual Property, Trade & Development: The State of Play (Fordham Law Review, Vol. 74, pp. 505-535, 2005) on SSRN. Here is the abstract:
    This Article considers, first, available economic, social, and cultural analyses of the impact of intellectual property protection in developing countries. Economics provides a useful set of analytical tools and are directly relevant, in particular since the successfully arranged marriage of IP and trade rules after which it became inevitable that IP rules would be measured using an economic yardstick. The Paper also considers the claim that making proper intellectual property policy is impossible or inherently unreliable because theoretical models are inadequate or valid empirical data unavailable. Against this backdrop, the Article then examines the emergence of the World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). TRIPS added a significant level of comfort for multinational corporations deciding when and where to export to new markets or expand research and development efforts. The Article also considers the Doha Ministerial Declaration of November 2001 and follow-up work on access to medicines. In the second Part, this Article discusses recent economic analyses of the impact of IP protection on bilateral trade flows and foreign direct investment (FDI). Wherever possible, lessons about the right level of intellectual protection for developing countries are drawn. Recent efforts in the World Intellectual Property Organization (WIPO) and the WTO are also discussed. In a third and final part, the Article looks at the current quest for a balanced approach and suggests ways in which such a balanced IP regime could be constructed, as part of a broad, knowledge-oriented economic development strategy.

Posted by Lawrence Solum at 12/27/2005 05:13:00 AM

 
Haynes on Prosecuting Traffickers Dina Francesca Haynes (University of Nevada, Las Vegas - William S. Boyd School of Law) has posted Used, Abused, Arrested and Deported: Extending Immigration Benefits to Protect the Victims of Trafficking and Secure the Prosecution of Traffickers (Human Rights Quarterly, Vol. 26, No. 2, May 2004) on SSRN. Here is the abstract:
    Organized crime rings exploit 700,000 to 4 million new victims of human trafficking each year, often luring them across borders where they are more vulnerable to abuse. Trafficking in Southeastern Europe is a relatively new phenomenon, fueled by the dissolution of the former Soviet Union, as well as the presence of international peacekeepers who have sometimes exacerbated the problem. Both domestic and international anti-trafficking laws, by virtue of their nature as government created legislation, focus largely on a law enforcement agenda, failing to adequately addresess immigration options that could serve to protect the victim and in so doing provide better evidence with which to prosecute the traffickers for their crimes.

Posted by Lawrence Solum at 12/27/2005 05:11:00 AM

 
Roberts on Jurisdiction Stripping Caprice L. Roberts (West Virginia University College of Law) has posted Jurisdiction Stripping in Three Acts - Three String Serenade (Villanova Law Review, Vol. 51, 2006) on SSRN. Here is the abstract:
    As interbranch tension reaches a fever pitch, legislators seek to tighten screws on the judiciary. Congressional backlash against disfavored court opinions includes threats to impeach judges, establish judicial inspectors general, weaken life tenure, and strip federal jurisdiction over certain constitutional cases. Two current jurisdiction-stripping bills seek to preclude all federal review of the Defense of Marriage Act and recitation of “under God” in the Pledge of Allegiance. The Senate recently approved a third bill that strips military prison detainees such as those at Guantanamo Bay of all but one civilian federal forum. This Article explores separation-of-powers tension through an experiential meditation on a hypothetical conversation involving one representative of each branch of government. In the tradition of Professor Hart’s seminal dialogue, this three-act play, set in a power-broker restaurant, addresses whether Congress possesses plenary power over federal jurisdiction and, if so, the wisdom of exercising it. Where pertinent, the restaurant server, “Vox Populi,” injects an opinion reflecting perspectives of “the people.” The characters engage in precedential battles, play scholarly trump cards, sound predictions of (dire) consequences, employ philosophical theories, and craft real-world solutions. Thematically, each branch constitutes a set of strings that, with the other two branches, forms one guitar-like instrument. One out-of-tune branch ruins the melody of government. If indelicate hands turn the tuners too tight, the strings could snap (i.e., constitutional crisis). The manner in which the branches conduct themselves in crisis moments will leave an indelible mark on the functioning of our democratic government. Thus, each branch must attune itself to the motivations of, and realities faced by, the other branches. All must retune their instrument when intense strife threatens ideal balance.

Posted by Lawrence Solum at 12/27/2005 05:10:00 AM

Monday, December 26, 2005
 
Weekend Update On Saturday, the Legal Theory Bookworm recommended Democratic Autonomy: Public Reasoning about the Ends of Policy by Henry Richardson, and the Download of the Week was Beyond Cost-Benefit Analysis in Financial Regulation: Process Concerns and Emotional Impact Analysis by Peter H. Huang. On Sunday, the Legal Theory Lexicon entry was on Originalism.
Best wishes to everyone for a joyous holiday season!

Posted by Lawrence Solum at 12/26/2005 05:22:00 AM

 
Meehan on Patentable Subject Matter Dr. Michael Meehan (Stanford Law School) has posted The Handiwork of Nature: Patentable Subject Matter and Laboratory Corporation v. Metabolite Labs on SSRN. Here is the abstract:
    The patent statutes establish that “any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof [can be patented.]” Whereas, the wording of the statute is broad, it is nonetheless well-established that mathematical algorithms, laws of nature, natural phenomena, and abstract ideas cannot be patented. The Supreme Court, in interpreting the patent statutes, has consistently held that such discoveries “are not the kind of ‘discoveries’ that the statute was enacted to protect.” In a recent Federal Circuit case, Metabolite Labs., Inc. v. Laboratory Corp. of Am. Holdings, the court held claim 13 of Metabolite’s 4,940,658 patent valid. The claim has two limitations: “[1] assaying a body fluid for an elevated level of total homocysteine; and [2] correlating an elevated level of total homocysteine in said body fluid with a [vitamin B] deficiency . . . .” The Federal Circuit ruled that “[t]he correlating step is a simple conclusion that a [vitamin B] deficiency exists vel non based on the assaying step.” The court also found that every time a doctor orders any total homocysteine level assay, whether it is patented by Metabolite or is part of the prior art, and merely thinks about the natural relationship between elevated homocysteine level and vitamin B deficiencies, she directly infringes claim 13. The Supreme Court has granted certiorari on this case and should overturn the decision. As it stands, the ruling would set a precedent that those who discover laws of nature can obtain patents on methods comprising [1] collecting data related to a law of nature and [2] thinking about the law of nature. Such patents, especially when taken in aggregate, have the potential to stifle the practical application of science. Such a result would be antithetical to the patent system’s goal of promotion of the useful arts. In this paper, I argue that Metabolite’s claim 13 is unpatentable because it is drawn to a law of nature in view of Parker v. Flook and Diamond v. Diehr. I then argue that, even if claim 13 were not a patent on the law of nature, it precludes all practical use of the law of nature and therefore is unpatentable under Gottschalk v. Benson and Diamond v. Diehr. I further argue that claim 13 is unpatentable because it merely claims what the Funk Bros. Seed Co. v. Kalo Inoculant Co. and Diamond v. Chakrabarty courts termed the “handiwork of nature.”

Posted by Lawrence Solum at 12/26/2005 05:21:00 AM

 
Green on Subsidies & Environmental Norms Andrew James Green (University of Toronto - Faculty of Law) has posted You Can't Pay Them Enough: Subsidies, Environmental Law and Social Norms (Harvard Environmental Law Review, Vol. 30, No. 2) on SSRN. Here is the abstract:
    Governments' choice of instrument to address environmental concerns affects not only the relative prices faced by individuals making choices but also their norms or values. This effect on values is important because some argue that traditional instruments (such as taxes and regulations) are insufficient to address new environmental concerns such as climate change. Instead they argue that individuals must change their values - how they view the environment and its relationship to humans. This paper uses the social norms literature from law and economics to examine the impact of one instrument - subsidies - on values in the context of climate change. Climate change is particularly difficult for social norms to address because of its large number, negative payoff nature. Further, law and economics tends to take values as given and does not fully address the internalization of norms or values. This paper discusses the potential impact of government policies both on norms or values that are externally enforced (such as through reputation) and on internalized norms. It argues that governments should consider the impact of instrument choice on both types of norms or values and that subsidies may have a negative impact on environmental norms or values, depending on how they are implemented.

Posted by Lawrence Solum at 12/26/2005 05:21:00 AM

 
Oestreicher-Singer and Sundararajan on Valuing Digital Rights Gal Oestreicher-Singer and Arun Sundararajan (New York University - Leonard N. Stern School of Business and New York University - Leonard N. Stern School of Business) have posted Are Digital Rights Valuable? Theory and Evidence from eBook Pricing on SSRN. Here is the abstract:
    The effective management of digital rights is the central challenge in many industries making the transition from physical to digital products. We present a new model that characterizes the value of these digital rights when products are sold both embedded in tangible physical artifacts, and as pure digital goods, and when granting rights permitted by one's digital rights management (DRM) platform may affect the extent of digital piracy. Our model indicates that in the absence of piracy, digital rights should be unrestricted, since a seller can use its pricing strategy to optimally balance sales between physical and digital goods. However, the threat of piracy limits the extent to which digital rights should be granted: the value of digital rights is determined not only by their direct effect on the quality of legal digital goods, but by a differential piracy effect that can lower a seller's pricing power. When the latter effect is sufficiently high, granting digital rights can have a detrimental effect on value -- our model indicates that this kind of effect is more likely to be observed for digital rights that aim to replicate the consumption experience of physical goods, rather than enhancing a customer's digital experience. We test the predictions of our analytical model using data from the ebook industry. Our empirical evidence supports our theoretical results, showing that four separate digital rights each have an economically significant impact on ebook prices, and establishing that the digital rights which aim to replicate physical consumption while increasing the threat of piracy are the ones that have negative impact on seller value. We also show that if the pricing of a digital good is keyed off that of an existing tangible good, optimal pricing changes for the former should be more nuanced, rather than simply mirroring changes in the price of the latter, and we discuss the effect of the technological sophistication of potential customers on optimal pricing and rights management. Our results represent new evidence of the importance of an informed and judicious choice of the different digital rights granted by a DRM platform, and provide a new framework for guiding managers in industries that are progressively being digitized.

Posted by Lawrence Solum at 12/26/2005 05:20:00 AM

 
Basheer on Baazee Shamnad M. Basheer (University of Oxford - Oxford Intellectual Property Research Centre (OIPRC)) has posted Baazee, Bajaj, and Bailing out the Law (BAAZEE, BAJAJ, AND BAILING OUT THE LAW, Economic Times, February 5, 2005) on SSRN. Here is the abstract:
    With Avinash Bajaj out on bail and an intervening Tsunami, the noise around the Baazee case has all but died out. The issues that it brought into sharp focus however still await resolution - in particular, the issue pertaining to online intermediary liability. We thought this an opportune time to bring back this case into public focus. We noticed that the ‘law’, which for good or for bad, continues to occupy centre stage in this debate has not been articulated clearly enough - and in fact in many instances has been wrongly stated. Writers have either let their emotions get the better of their propensity to objectively lay down the law or have not been bothered with associating themselves with what they consider to be the trivialities of the law. Our task is therefore a fairly modest one - to try and articulate the law in a manner that would provide a decent enough spring board to engage in broader policy debates.

Posted by Lawrence Solum at 12/26/2005 05:19:00 AM

Sunday, December 25, 2005
 
Legal Theory Lexicon: Originalism
    Introduction There are many different theories of constitutional interpretation, but the most controversial and also perhaps the most influential is "originalism"--actually a loosely-knit family of constitutional theories. The idea that courts would look to evidence from the constitutional convention, the ratification debates, The Federalist Papers, and the historical practice shortly after ratification of the Constitution of 1789 (or to equivalent sources for amendments) is an old one. This post provides a very brief introduction to "originalism" that is aimed at law students (especially first-year law students) with an interest in legal theory.
    The Originalist Revival No one scholar or judge can deserves credit for originalism as a movement in constitutional theory and practice, but in my opinion one of the crucial events in the originalist revival was the publication of Raoul Berger's book, Government by Judiciary in 1977 by Harvard University Press. As you can guess from the title, Berger's book was very critical of the Warren court (and its aftermath in the 70s). One of the key responses to Berger was the publication of The Misconceived Quest for the Original Understanding by Paul Brest in 1980. Brest's article initiated an intense theoretical debate over the merits of originalism that continues today. At various points in time, both sides have claimed the upper hand, but at the level of theory, the case for originalism has always been contested.
    Originalism is not an ivory tower theory. It has had a profound influence on the practice of constitutional interpretation and the political contest over the shape of the federal judiciary. President Reagan's nomination of Robert Bork (an avowed originalist) was one key moment--with his defeat by the democrats seen as a political rejection of originalism. The current Supreme Court has at least three members who seem strongly influenced by originalist constitutional theory--Chief Justice William Rehnquist and Associate Justices Antonin Scalia and Clarence Thomas.
    The final chapter of the originalism debate in legal theory has yet to be written--and perhaps it never will be. But one last set of developments is particularly important. In the 70s and early 80s, originalism was strongly associated with conservative judicial politics and conservative legal scholars. But in the late 1980s and in the 1990s, this began to change. Two developments were key. First, Bruce Ackerman's work on constitutional history suggested the availability of "left originalism" that maintained the commitment to the constitutional will of "We the People" but argued that the constitution included a New Deal constitutional moment that legitimated the legacy of the Warren Court--We the People: Foundations, published in 1991. Second, Randy Barnett (along with Richard Epstein, the leading figure in libertarian legal theory) embraced originalism in an influential article entitled An Originalism for Nonoriginalists. Ackerman and Barnett represent two trends in originalist thinking: (1) the political orientation of originalism has broadened from conservatives to liberals and libertarians, and (2) the theoretical structure of originalism has morphed and diversified from the early emphasis on "the original intentions of the framers." After the publication of Paul Brest's Misconceived Quest one heard talk that originalism was dead as a serious intellectual movement. These days one is more likely to hear pronouncements that "we are all originalists, now."
    Original Intentions Early originalists emphasized something called the original intentions of the framers. Even in the early days, there were disputes about what this phrase meant. Of course, there were debates about whether the framers (a collective body) had any intentions at all. And there were questions about what counted as "intentions," e.g. expectations, plans, hopes, fears, and so forth. But the most important early debate concerned levels of generality. The intentions of the framers of a given constitutional provision can be formulated as abstract and general principles or as particular expectations with respect to various anticipated applications of the provision. Most theorists will assent to this point, which flows naturally from the ordinary usage and conceptual grammar of the concept of intention. The difficulty comes because the different formulations of intention can lead to different results in any given particular case. For example, the intention behind the equal protection clause might be formulated at a relatively high level of generality--leading to the conclusion that segregation is unconstitutional--or at a very particular level--in which case the fact that the Reconstruction Congress segregated the District of Columbia schools might be thought to support the "separate but equal" principle of Plessy v. Ferguson. Perhaps the most rigorous defender of the original intentions version of originalism has been Richard Kay in a series of very careful articles.
    Yet another challenge to original-intent originalism was posed by Jefferson Powell's famous article, The Original Understanding of Original Intent, published in 1985. Powell argued that the framers themselves did not embrace an original intention theory of constitutional interpretation. Of course, this does not settle the theoretical question. The framers, after all, could have been wrong on this point. But Powell's critique was very powerful for those who insisted that constitutional interpretation must always return to origins. A certain kind of original-intent theory was self-defeating if Powell's historical analysis was correct. Moreover, some of the reasons that Powell identified for the framers' resistance to originalism were quite powerful. Especially important was the idea that "secret intentions" or "hidden agendas" had no legitimate role to play in constitutional meaning. In the end, however, Powell's article actually had the effect of turning originalism in a new direction--from original intention to original meaning.
    Original Meaning The original-meaning version of originalism emphasizes the meaning that the Constitution (or its amendments) would have had to the relevant audience at the time of its adoptions. How would the Constitution of 1789 have been understood by an ordinary adult citizen at the time it was adopted? Of course, the same sources that are relevant to original intent are relevant to original meaning. So, for example, the debates at the Constitutional Convention in Philadelphia may shed light on the question how the Constitution produced by the Convention would have been understood by those who did not participate in the secret deliberations of the drafters. But for original-meaning originalists, other sources become of paramount importance. The ratification debates and Federalist Papers can be supplemented by evidence of ordinary usage and by the constructions placed on the Constitution by the political branches and the states in the early years after its adoption. The turn to original meaning made originalism a stronger theory and vitiated many of the powerful objections that had been made against original-intentions originalism.
    The concept of original meaning originalism in its modern incarnation has been attributed to Justice Scalia, who is reported to have introduced the idea in a series of lectures in the 1980s; his essay, Originalism, The Lesser Evil, published in 1989, focuses on "original understanding" rather than "original intent." The idea has also been traced to a brief mention in Robert Bork's The Tempting of America, but Bork did not develop the idea extensively. Original-meaning originalism was develped more extensively by Justice Scalia in his opening essay in A Matter of Interpretation. Although the distinction between original meaning and original intent can be found in a variety of early contemporary sources including an article by Robert Clinton in 1987, the systematic development of original-meaning originalism is a relatively recent phenomenon. Original meaning originalism receives its most comprehensive explication and defense in Randy E. Barnett's new book, Restoring the Lost Constitution: The Presumption of Liberty--a systematic development of the original meaning approach and critique of the original intention theory.
    Regime Theory Yet another important twist in originalist theory is emphasized by the work of Bruce Ackerman: a twist that I shall call "regime theory." The foundation for regime theory is the simple observation that the Constitution of the United States was adopted in several pieces--the Constitution of 1789 was supplemented by a variety of amendments. And of these amendments, the three reconstruction amendments (the 13th, 14th, and 15th) are of especial importance--because of the significant structural transformation they work in the relationship between the powers of the national government and the powers of the states. Interpreting the whole Constitution requires an understanding of the relationship between the provisions of 1789 and those adopted during Reconstruction. Some regime theorists argue that the interaction between these two constitutional regimes has the implication that provisions adopted in 1789 take on a new meaning and significance after the Reconstruction Amendments were adopted.
    Ackerman's own version of regime theory includes a fascinating and important challenge for originalists of all stripes. Ackerman emphasized the fact that both the Constitution of 1789 and the Reconstruction Amendments were adopted through processes that were extralegal under the legal standards the prevailed at the time. The Articles of Confederation required unanimous consent of all the states for constitutional amendments and for complicated reasons, it seems likely that the Reconstruction Amendments were of dubious legality if strictly judged by the requirements set forth for amendments in Article V. Ackerman's conclusion was that the Constitution derives its legitimacy, not from the legal formalities, but from "We the People," when mobilized in extraordinary periods of constitutional politics. Perhaps the most controversial conclusion that Ackerman reaches is that the New Deal involved another such constitutional moment, in which "We the People" authorized President Roosevelt to act as an extraordinary Tribune, empowered to alter the constitutional framework through a series of transformative appointments. If one accepts this view, then one might begin to ask questions about the "original meaning" of the New Deal--a kind of originalism that would surely not be embraced by the conservative proponents of originalism in the 70s and early 80s.
    Originalism and Precedent Whither originalism? Given the ups and downs of originalism over the past three decades, making long-term predictions seems perilous indeed. But I will make one prediction about the future of originalism. We are already beginning to see originalists coming to grips with the relationship between original meaning and precedent--both in the narrow sense of Supreme Court decisions and the broader sense of the settled practices of the political branches of government and the states. Already, originalists of various stripes are beginning to debate the role of precedent in an originalist constitutional jurisprudence. Given the conferences and papers that are already in the works, I think that I can confidently predict that the debate over originalism and stare decisis will be the next big thing in the roller-coaster ride of originalist constitutional theory.
    Bibliography This very selective bibliography includes some of the articles that have been influential in the ongoing debates over originalism.
    • Bruce Ackerman, We the People: Foundations (Harvard University Press 1991) & We the People: Transformations (Harvard University Press 1998).
    • Randy Barnett, An Originalism for Nonoriginalists, 45 Loyola Law Review 611 (1999) & Restoring the Lost Constitution (Princeton University Press 2004).
    • Raoul Berger, Government by Judicary (Harvard University Press 1977).
    • Robert Bork, The Tempting of America (Vintage 1991).
    • Paul Brest, The Misconceived Quest for the Original Understanding, 60 Boston University Law Review 204 (1980).
    • Robert N. Clinton, Original Understanding, Legal Realism, and the Interpretation of the Constitution, 72 Iowa L. Rev. 1177 (1987).
    • Richard Kay, Adherence to the Original Intentions in Constitutional Adjudication: Three Objections and Responses, 82 Northwestern Univeristy Law Review 226 (1988)
    • Jefferson Powell, The Original Understanding of Original Intent, 98 Harv. L. Rev. 885 (1985).
    • Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849 (1989)
    • Antonin Scalia, A Matter of Interpretation (Princeton University Press 1997)
    • Lawrence Solum, Originalism as Transformative Politics, 63 Tulane Law Review 1599 (1989).
    • Keith E. Whittington, Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review (Kansas 1999).

Posted by Lawrence Solum at 12/25/2005 08:51:00 AM

Saturday, December 24, 2005
 
Legal Theory Bookworm The Legal Theory Bookworm recommends Democratic Autonomy: Public Reasoning about the Ends of Policy by Henry Richardson. Here's a blurb:
    What would our decision-making procedures look like if they were actually guided by the much-discussed concept of "deliberative democracy"? What does rule by the people for the people entail? And how can a modern government's reliance on administrative agencies be reconciled with this populist ideal? What form must democratic reasoning take in the modern administrative state? Democratic Autonomy squarely faces these challenges to the deliberative democratic ideal. It identifies processes of reasoning that avert bureaucratic domination and bring diverse people into political agreement. To bridge our differences intelligently, Richardson argues, we cannot rely on instrumentalist approaches to policy reasoning, such as cost-benefit analysis. Instead, citizens must arrive at reasonable compromises through fair, truth-oriented processes of deliberation. Using examples from programs as diverse as disability benefits and environmental regulation, he shows how the administrative policy-making necessary to carrying out most legislation can be part of our deciding what to do. Opposing both those liberal theorists who have attacked the populist ideal and those neo-republican theorists who have given up on it, Richardson builds an account of popular rule that is sensitive to the challenges to public deliberation that arise from relying on liberal constitutional guarantees, representative institutions, majority rule, and administrative rulemaking. Written in a nontechnical style and engaged with practical issues of everyday politics, this highly original and rigorous restatement of what democracy entails is essential reading for political theorists, philosophers, public choice theorists, constitutional and administrative lawyers, and policy analysts.

Posted by Lawrence Solum at 12/24/2005 08:27:00 AM

 
Download of the Week The Download of the Week is Beyond Cost-Benefit Analysis in Financial Regulation: Process Concerns and Emotional Impact Analysis by Peter H. Huang. Here is the abstract:
    This Article advocates that regulators should go beyond cost-benefit analysis to analyze process concerns and emotional impacts of alternative policies. This Article analyzes such affective benefits as investor confidence, faith, and trust in securities markets, and such affective costs as depression, financial anxiety, and investment stress, all of which non-affective cost-benefit analysis fails to sufficiently address. This Article also examines a number of general conceptual and measurement issues regarding affective benefits and costs. This Article focuses on how such issues arise with such regulations as mandatory securities disclosures; gun-jumping rules for publicly registered offerings; financial education or literacy campaigns; statutory or judicial default rules and menus; and statutes that provide for continual reassessment and revision of regulation. All these regulations affect investor sentiment and thus reinforce how and why incorporating affect into cost-benefit analysis enhances financial and securities regulation.

Posted by Lawrence Solum at 12/24/2005 08:26:00 AM

Friday, December 23, 2005
 
Macklin on the Safe Third Country Agreement Audrey Macklin (University of Toronto - Faculty of Law) has posted Disappearing Refugees: Reflections on the Canada-US Safe Third Country Agreement (Columbia Human Rights Law Review Vol. 36, pp. 365-426, 2005) on SSRN. Here is the abstract:
    Refugees are vanishing from the territory of wealthy industrialized nations. I do not mean that refugees are literally disappearing. Despite the best efforts of western governments to deter them, thousands of asylum seekers do manage to arrive and lodge refugee claims each year. I refer here not to the legal and material reality of refugees, but rather to the erosion of the idea that people who seek asylum may actually be refugees. This dispiriting turn in public sentiment is enabled by a series of legal and popular conjunctions that produce what I call the discursive disappearance of the refugee.This erasure performs a crucial preparatory step toward legitimating actual laws and practices that attempt to make them vanish in reality. While such policies can never entirely succeed in preventing entry, they may reduce numbers, and they can and do consign a growing proportion of entrants to the illegal category. This article explores one such legal instrument designed to constrain the movement of asylum seekers, namely the Canada-U.S. Safe Third Country Agreement (Agreement). The Agreement was negotiated by Canada and the United States as part of a package of post-9/11 measures, is presented as furthering security, and is modeled on the Dublin Convention (now the Dublin II Regulation) of the European Union. It requires asylum seekers to lodge their refugee claims in the first country of arrival. In other words, asylum seekers on the U.S. side of the border who are attempting entry into Canada will be deflected back to the United States and vice versa. I will use the preamble to the Agreement to illustrate how the legal text tacitly profits from the popular blurring of asylum seekers and ‘illegals’. I will also consider the extent to which the Agreement is likely to advance the principles and objectives attributed to it.

Posted by Lawrence Solum at 12/23/2005 06:24:00 AM

 
Horwitz on Blogs and the Law Paul Horwitz (Southwestern University School of Law) has posted Or of the [Blog] on SSRN. Here is the abstract:
    This paper, a contribution to a symposium on blogs and the law, examines the legal and constitutional status of blogs. Specifically, it offers three ways of looking at the relationship between blogs and the Press Clause - and, not incidentally, of looking at the Press Clause itself. First, drawing on recent historical work, I suggest that we might view the Press Clause through either the free press or open press models that historically have applied to that provision. Viewing the Press Clause through the open press model makes a home for blogs in the Press Clause, but dilutes the content of the rights that might be available, for blogs or anyone else, under the Press Clause. Second, I suggest that we might view the Press Clause from a functional perspective, protecting those activities that are at the heart of what we consider to be the social value of journalism. This approach does manage to give some content to the press right, and to extend it to journalists working in the old and new media alike; but it fails to fully capture the qualities that we value in either the established press or the blogosphere. Finally, I argue that we might view the Press Clause specifically, and the First Amendment generally, in institutional terms, identifying those speech institutions that contribute in unique and important ways to public discourse and granting them considerable autonomy to act according to the norms and practices that define and give value to each First Amendment institution. Under this approach, both the established news media and the blogosphere may find substantial protection under the Press Clause, although the content of the rights available to each institution will be different, based on the distinct nature of each institution. I argue that this approach, although in some ways it may appear to be the most radical of the three visions of the Press Clause I offer, is both normatively attractive and closer to current First Amendment doctrine than one might assume. Ultimately, although my conclusions differ significantly from his, I suggest that there may yet be life in the arguments made by Justice Stewart in his famous article on the Press Clause.

Posted by Lawrence Solum at 12/23/2005 06:22:00 AM

 
Donohue & Wolfers on Empirical Evidence in the Death Penalty Debate John J. Donohue III and Justin Wolfers (Yale Law School and University of Pennsylvania - Business & Public Policy Department) have posted Uses and Abuses of Empirical Evidence in the Death Penalty Debate (Stanford Law Review, Vol. 58, December 2005) on SSRN. Here is the abstract:
    Does the death penalty save lives? A surge of recent interest in this question has yielded a series of papers that purport to show robust and precise estimates of a substantial deterrent effect of capital punishment. We assess the various approaches that have been used in this literature, testing the robustness of these inferences. Specifically, we start by assessing the time series evidence, comparing the history of executions and homicides in the United States and Canada, and within the United States, between executing and non-executing states. We analyze the effects of the judicial experiments provided by the 1972 Furman and 1976 Gregg decisions and assess the relationship between execution and homicide rates in state panel data since 1934. We then revisit the existing instrumental variables approaches and assess two recent state-specific execution moratoria. In each case, we find that previous inferences of large deterrent effects based upon specific samples, functional forms, control variables, comparison groups, or IV strategies are extremely fragile and that even small changes in specifications yield dramatically different results. The fundamental difficulty facing the econometrician is that the death penalty - at least as it has been implemented in the United States - is applied so rarely that the number of homicides that it can plausibly have caused or deterred cannot be reliably disentangled from the large year-to-year changes in the homicide rate caused by other factors. As such, short samples and particular specifications may yield large but spurious correlations. We conclude that existing estimates appear to reflect a small and unrepresentative sample of the estimates that arise from alternative approaches. Sampling from the broader universe of plausible approaches suggests not just reasonable doubt about whether there is any deterrent effect of the death penalty, but profound uncertainty - even about its sign.

Posted by Lawrence Solum at 12/23/2005 06:15:00 AM

 
Maillard on the Pocahontas Exception Kevin Noble Maillard (Syracuse University College of Law) has posted The Pocahontas Exception: American Indians and Exceptionalism in Antimiscegenation Law on SSRN. Here is the abstract:
    This article addresses the treatment of Native American ancestry as a curious exception to the threat of racial impurity. Virginia’s Racial Integrity Act of 1924 aimed to prevent all interracial marriages in the state between white and nonwhite persons. This antimiscegenation statute sought to eradicate stealth intrusions of tainted blood into the white race, which proponents believed to be threatened “by the quagmire of mongrelization.” Exempted from this racial policing regime were those influential whites, the “First Families of Virginia,” who proudly claimed Native American ancestry from Pocahontas. For a statue with racial purity as its obsession and mantra, how does this exceptionalism hold? Why would Native American ancestry, as opposed to others, pass as acceptable nonwhite blood and good law? Even in our contemporary era, why do claims of the “Cherokee Princess Grandmother” not invoke multiraciality? This disparity calls for a critical inquiry of the miscegenistic exceptionalism accorded to American Indians. With increasing numbers of Americans freely and lately claiming Native ancestry, we may ask why such affirmations do not meet the triumvirate of resistance, shame, and secrecy that regularly accompanies findings of partial African ancestry. This paper contends that antimiscegenation laws relegate Indians to existence only in a distant past, creating a temporal disjuncture to free Indians from a contemporary discourse of racial politics. I argue that such exemptions assess Indians as abstractions rather than practicalities. These practices bifurcate treatments of Indian blood, either essentializing a pre-modern and ahistorical culture, or trivializing this ancestry as inconsequential ethnicity.

Posted by Lawrence Solum at 12/23/2005 06:14:00 AM

Thursday, December 22, 2005
 
Koplow on Lethal Weapons David A. Koplow (Georgetown University Law Center) has posted Tangled up in Khaki and Blue: Lethal and Non-Lethal Weapons in Recent Confrontations (Georgetown Journal of International Law, Vol. 36, p. 703, 2005) on SSRN. Here is the abstract:
    Too often, military and law enforcement authorities have found themselves constrained by inadequate weaponry: the tools available to them, in addressing confrontations with entrenched opponents of various sorts, are either too weak (not sufficing to disarm or defeat the enemy) or too strong (generating unacceptable “collateral damage” in harming innocent people or property). An emerging category of “non-lethal weapons” carries promise for resolving this dilemma, proffering deft new capabilities for disabling, dissuading, or defeating opponents without inflicting death or permanent injury. Some primitive non-lethal weapons (such as truncheons, tear gas, and water cannon) have long been staples in the inventories of police and military forces in the United States and other countries. More sophisticated options (e.g., electronic stun guns or pepper spray) are becoming more common and are increasingly employed in a variety of law enforcement and security situations. Most dramatically, an array of much more sophisticated technologies (including directed energy beams, calmative chemicals, and foam sprays that seal buildings or make an area impassively slippery) are being developed, and could emerge for use by soldiers and police in the near future. These augmented capabilities carry both immense promise and grave risks: they expand the power of law enforcement and military units, enabling them to accomplish assigned missions with greater finesse and reduced casualties. But they may also be misused, they may proliferate to malign applications, and they may inspire leaders to over-rely upon a myth of “bloodless combat.” This article explores the emerging world of non-lethal weapons by examining a series of case studies – recent real-world scenarios from three diverse confrontations around the world in which the availability of a modern arsenal of non-lethal weapons might have made a difference, enabling a more successful outcome in the face of deeply entrenched opposition.

Posted by Lawrence Solum at 12/22/2005 07:02:00 AM

 
Gibbons & Grabau on Linguistic Minorities Llewellyn Joseph Gibbons and Charles M. Grabau (University of Toledo - College of Law and Independent) has posted Protecting the Rights of Linguistic Minorities: Challenges to Court Interpretation (New England Law Review, Vol. 30, No. 227, 1996) on SSRN. Here is the abstract:
    The trial judge has the duty to supervise and conduct judicial proceedings so as to afford all parties a fair and impartial trial to the end that justice may be served. Courtsand scholarly commentators recognize that inadequate or improper court interpretation creates problems of constitutional dimensions.Often some parties are denied a fair and impartial trial because judges are either insensitive to the necessity of a qualified court interpreter to protect the rights of a non-English speaker - a linguistic minority - or act as if they have no control over the interpreter, and consequently over the proceeding. While the focus of this article is on the use of court interpreters in a criminal proceeding, the principles discussed and the suggestions made are generally applicable to any civil or administrative proceeding requiring an interpreter. This article will discuss the statutory and constitutional rights of defendants and witnesses to have access to a court interpreter, court interpreter qualifications, ethical issues in court interpreting, and some common problems that frequently occur during judicial proceedings. Throughout the article there are suggestions that will facilitate the proper use of court interpreters. The article concludes with a recommendation for increased awareness by judges, attorneys, and other participants in the legal system of the unique role a professional court interpreter serves in promoting equal access to the courts, and a recommendation that states adopt uniform court interpreter certification programs.

Posted by Lawrence Solum at 12/22/2005 07:00:00 AM

 
Drobac on Adolescent Consent Jennifer Ann Drobac (Indiana University School of Law - Indianapolis) has posted 'Developing Capacity': Adolescent 'Consent' at Work, at Law, and in the Sciences of the Mind (Journal of Juvenile Law & Policy, Vol. 10, No. 1, 2006) on SSRN. Here is the abstract:
    No national consensus exists concerning adolescent capacity to consent to sex. The law gives differing legal significance to adolescent “consent” to teen-adult sex depending upon a variety of factors. In response to an increase in teen sexual harassment cases, this Article examines three subject areas that should inform the debate over the actual meaning of adolescent consent: adolescent development, adolescent sexuality, and child/adolescent sexual abuse. First, new neuroscientific and psychosocial science data suggest that adolescent physical and psychosocial development continue into the third decade of life. Studies reveal that adolescents’ activities influence their physical brain development and growth. In other words, adolescents “hard-wire” their experiences into their brains. Second, statistics regarding adolescent sexuality indicate that teens are having sex that is not always completely voluntary. Moreover, parents are often unaware that their children are having sex. Finally, evidence demonstrates that child sexual abuse can permanently and physically disable youth. This Article suggests that the new scientific and statistical evidence should prompt law reform pertaining to teen capacity and consent. It concludes that while adolescents need to exercise their decision-making skills as they mature, they still need protection from adult sexual predators. As the Supreme Court’s recent decision in Roper v. Simmons suggests, we should not presume full capacity where science indicates adolescents are immature and still developing capacity. This Article recommends, in particular, that sexual harassment law should be revised to make teen consent to workplace sex with an adult supervisor voidable by the minor. Courts should find teen-adult sex unwelcome as a matter of law, when the minor alleges sexual harassment. This Article recommends a strict liability civil response to teen sexual harassment, whether or not the teenager once consented to sex with the adult supervisor.

Posted by Lawrence Solum at 12/22/2005 06:52:00 AM

 
Huang on Cost-Benefit Analyhsis in Financial Regulation Peter H. Huang (Temple University - James E. Beasley School of Law) has posted Beyond Cost-Benefit Analysis in Financial Regulation: Process Concerns and Emotional Impact Analysis on SSRN. Here is the abstract:
    This Article advocates that regulators should go beyond cost-benefit analysis to analyze process concerns and emotional impacts of alternative policies. This Article analyzes such affective benefits as investor confidence, faith, and trust in securities markets, and such affective costs as depression, financial anxiety, and investment stress, all of which non-affective cost-benefit analysis fails to sufficiently address. This Article also examines a number of general conceptual and measurement issues regarding affective benefits and costs. This Article focuses on how such issues arise with such regulations as mandatory securities disclosures; gun-jumping rules for publicly registered offerings; financial education or literacy campaigns; statutory or judicial default rules and menus; and statutes that provide for continual reassessment and revision of regulation. All these regulations affect investor sentiment and thus reinforce how and why incorporating affect into cost-benefit analysis enhances financial and securities regulation.

Posted by Lawrence Solum at 12/22/2005 06:50:00 AM

Wednesday, December 21, 2005
 
Hatcher on Anime Online Jordan S. Hatcher (University of Texas at Austin) has posted Of Otaku and Fansubs: A Critical Look at Anime Online in Light of Current Issues in Copyright Law (Sript-ed, Vol. 2, No. 4, 2005) on SSRN. Here is the abstract:
    The advent of digital technology and increased global connectivity has, to put it mildly, caused some ripples for the entertainment industry specifically and copyright law generally. In the aftermath, many are searching for new ways to incorporate the benefits of digital copies and the internet while minimizing the harms. To some, the anime industry and its fans offer examples of how an industry can benefit and even grow from allowing copyright infringement. This article examines the anime industry in-depth with this suggestion in mind and places the industry among current copyright policy debates, such as those suggested by Lawrence Lessig.

Posted by Lawrence Solum at 12/21/2005 07:53:00 AM

 
GIbbons on Naughty Bytes Llewellyn Joseph Gibbons (University of Toledo - College of Law) has posted Digital Bowlderizing: Removing the Naughty Bytes (Michigan State Law Review, Vol. 167, 2005) on SSRN. Here is the abstract:
    During the Victorian era, the prevailing delicacy of the age inspired Dr. Thomas Bowdler and his sister to edit Shakespeare's plays to make them suitable for 'family reading'. All off-color jokes and sexual matter were removed. The word bowdlerize entered the language as a synonym for militant prudery. Luckily for Dr. Bowdler and his sister, the works of Shakespeare were clearly in the public domain. The modern Dr. Bowdlers and their accomplices do not share Dr. Bowdler's luck, however. When they abridge modern digital works to remove content that is offensive to the conscience of their constituencies, their reward for this public service is allegations of, and possible liability for, copyright infringement. Other modern Bowdlers modify software by deleting portions of code to add new capabilities. These deletions are often only shocking to the artistic license or the pocketbook of the copyright owner. Yet, these deletions convey significant advantages to the user or consumer of bowdlerized works. These technologies not only support militant prudery, but they also may add new functionality and capabilities that expand consumer choice. The legal rights being asserted by copyright owners represent a common threat to the use of copyrighted works in the private sphere. Digital bowdlerization makes available works inherent in cultural literacy to all, regardless of age or delicacy of conscience.

Posted by Lawrence Solum at 12/21/2005 07:42:00 AM

 
Shepherd on Fee Shifting George B. Shepherd (Emory University School of Law) has posted The Impacts of the European Rule for Fee-Shifting on Litigation Behavior (BALANCING OF INTERESTS: LIBER AMICORUM PETER HAY ZUM 70. BEBURTSTAG, Hans-Eric Rasmussen-Bonne, Richard Freer, Wolfgang Luke and Wolfgang Weitnauer, eds., Verlag Recht und Wirtschaft GmbH, 2005) on SSRN. Here is the abstract:
    In honor of the international range and sophistication of Peter Hay's scholarship, this essay examines the impact of an important procedural rule that differs in Europe and the United States: shifting of attorneys fees in litigation. Existing studies suggest that, compared to a regime of no fee-shifting as in the United States, fee-shifting will have an ambiguous affect on the amount of litigation. In contrast, my analysis suggests that fee-shifting as actually practiced in many European countries will tend unambiguously to reduce the amount of litigation. It appears that actual experience in European courts confirms this theoretical prediction.

Posted by Lawrence Solum at 12/21/2005 07:40:00 AM

 
Call for Papers: Action, Ethics, and Responsibility
    9th annual Inland Northwest Philosophy Conference Topic: Action, Ethics, and Responsibility Dates: March 31-April 2, 2006 Location: Moscow, ID & Pullman, WA The Inland Northwest Philosophy Conference is a topic-focused, interdisciplinary conference, co-sponsored by the Philosophy Departments at the University of Idaho and Washington State University. Keynote Speaker: Frances Kamm, Harvard Other participants include Robert F. Allen, Hilary Bok, Randolph Clarke, John Martin Fischer, Caspar Hare, Elizabeth Harman, Sarah McGrath, Alfred Mele, Michael Moore, Derk Pereboom, Paul Russell, Carolina Sartorio, Saul Smilansky, Angela Smith, Peter van Inwagen, David Widerker, and David Zimmerman. Essays of up to 12 double-spaced pages in length (30-40 minutes reading time) will be accepted until January 10, 2006. Please send one electronic copy (standard word processing program) to morourke@uidaho.edu and two hard copies of your submission to the following address: Inland Northwest Philosophy Conference Department of Philosophy University of Idaho Moscow, ID 83844-3016 Please prepare submissions for blind review. Individuals will be notified of decisions regarding submissions in February. Accepted papers will be eligible for publication in volume seven of Topics in Contemporary Philosophy, an edited volume to be published by the MIT Press, pending editorial review. For information about the series, please visit http://mitpress.mit.edu/catalog/browse/browse.asp?btype=6&serid=147 Graduate students and individuals in other disciplines are welcome to submit essays. In addition, there will be a session devoted to undergraduate work on this topic; please mention this to interested undergraduates. Chairs and commentators are also needed. If you are interested, please indicate areas of competence. Additional information about this conference can be obtained at our website: http://www.class.uidaho.edu/inpc

Posted by Lawrence Solum at 12/21/2005 07:09:00 AM

Tuesday, December 20, 2005
 
H.L.A. Hart Fellowships at Oxford
    Applications are now open for the 2006-7 H.L.A. Hart Visiting Fellowships at the Centre for Ethics and Philosophy of Law in Oxford. The CEPL website is http://www.univ.ox.ac.uk/cepl The fellowship advert is at http://www.univ.ox.ac.uk/news.html#hla
      The Oxford Centre for Ethics and Philosophy of Law (CEPL) invites applications for up to four short-term HLA Hart Visiting Fellowships to be held at University College, Oxford, during the academic year 2006-7. CEPL was founded in 2002 as a collaboration between three neighbouring colleges of the University of Oxford (Corpus Christi College, Merton College, and University College). It exists to encourage and support advanced work in moral, political, and legal philosophy, not only in Oxford but also nationally and internationally. CEPL occupies attractive shared premises in Merton Street, in the heart of the University’s historic centre, next to the University’s Philosophy Faculty and Library. More detailed information about CEPL is available on its website at http://www.univ.ox.ac.uk/cepl/ CEPL’s HLA Hart Visiting Fellowship Scheme is aimed at philosophers on sabbatical leave from other institutions who wish to spend a period of time working in Oxford, normally for the duration of one extended university term (up to eleven weeks), although consideration will also be given to applications for Fellowships spanning two consecutive terms. The Oxford terms are known as Michaelmas (early October to mid-December), Hilary (early January to late March), Trinity (mid-April to end June). The Long Vacation starts in early July, until late September, and applicants should bear in mind that during this period there are few academic events. The Fellowships are unsalaried, but attract a housing allowance of up to £800 per calendar month, depending on circumstances. Successful applicants will be provided with an attractive office in the Centre. They will also enjoy full use of University College’s nearby academic and social facilities, on the same basis as other College Fellows, including meals at common table. The College and the Centre will normally have just one Visiting Fellow in residence at any one time, but special arrangements may be possible for those working on joint projects, or in other exceptional circumstances. Visiting Fellows are expected to engage in advanced philosophical work in Oxford during the period of their Fellowship, and to participate in the common academic life of the legal, political and moral philosophy communities, as appropriate. CEPL welcomes applications from philosophers at a relatively early stage of their careers as well as from senior and well-established philosophers. Applicants should send a brief CV, a statement of the research plan to be pursued during the period of the Fellowship, details of the term(s) which the applicants would like to spend in Oxford (Michaelmas, Hilary, Trinity, Long Vacation), and the names and contact details of two academic referees to the Academic Administrator, University College, Oxford, OX1 4BH (tel: +44 1865 286565, fax +44 1865 276790; email jane.hornsby@univ.ox.ac.uk) to reach her by Wednesday 18 January 2006. Candidates should ask their referees to write to the Academic Administrator by the same date. Applicants and their referees are encouraged to submit all material electronically to the dedicated email address vf@univ.ox.ac.uk. Informal enquiries from those interested in Visiting Fellowships may be directed to Professor John Gardner (john.gardner@law.ox.ac.uk) or Professor John Broome (john.broome@philosophy.ox.ac.uk).

Posted by Lawrence Solum at 12/20/2005 04:48:00 AM

 
Call for Papers: Philosophy & Cognitive Science
    CALL FOR PAPERS & LAST ANNOUNCEMENT XVI Inter-University Workshop on Philosophy and Cognitive Science Invited Speaker: Richard Moran (Harvard University, USA) Valencia, Spain. March 27th-29th, 2006 http://www.uv.es/~phronesi/interuniversity2006/index.htm PRESENTATION The Inter-University Workshop on Philosophy and Cognitive Science was created in 1989 with the aim of enhancing the development of original research in philosophical questions related to the empirical research in cognitive science. Philosophical discussions encouraged by this workshop have focused on problems in philosophy of mind, philosophy of language and epistemology. The workshop is hosted by a different Spanish university each year and is organized with the support of the Spanish Society of Analytical Philosophy (SEFA). The workshop tries to make easier the incorporation of young researchers to these areas of debate by facilitating the contact with prominent philosophers. These are invited to give three lectures during the workshop; about ten other people are invited to discuss different aspects of his/her work with contributed papers blindly reviewed by the scientific committee of the workshop. During the last 14 years, influential philosophers such as Daniel Dennett, Jerry Fodor, Fred Dretske, Ruth Millikan, Tyler Burge, John Searle, Jaegwon Kim, Christopher Peacocke, François Récanati, Barry Stroud, John McDowell and Robert Brandom have been invited to the workshop. The 16th edition of the Workshop will be held in the University of Valencia, organized by the Phronesis Group. The invited speaker on this occasion will be the American philosopher Richard Moran (Harvard University), who has published papers on metaphor, on imagination and emotional engagement with art, and on the nature of self-knowledge. A book Authority and Estrangement: An Essay on Self-Knowledge, was published by Princeton University Press in 2001. Recent publications include "The Expression of Feeling in Imagination", Philosophical Review 103 (1994), pp. 75-106; "Interpretation Theory and the First-Person", Philosophical Quarterly 44 (1994), pp. 154-73; "Self-Knowledge, Discovery, Resolution, and Undoing", European Journal of Philosophy 5 (1997), pp. 141-61; and "The Authority of Self-Consciousness", Philosophical Topics, 1999-2000. CALL FOR PAPERS The organizing committee invites the people interested in those topics discussed in R. Moran's work to submit his/her contributions. Preferably, complete papers, though the submission of long abstracts (not less than 1500 words) will also be accepted for review. Each submission will be sent for blind selection to two members of the Scientific Committee. The deadline for the submission of the papers is January 10th, 2006. The program of the workshop will be published in this web around March 1st, 2006. The organization expects to be able to cover accommodation and boarding expenses of all speakers. CORRESPONDENCE AND SUBMISSIONS
      Josep E. Corbí josep.corbi@uv.es Manolo Garcés manolo.garces@uv.es José Luis Pérez López jose.luis.perez@uv.es
    Address & Phone:
      Department of Metaphysics and Theory of Knowledge Faculty of Philosophy University of Valencia Avda. Blasco Ibañez, 30 E-46010-VALENCIA (Spain) Tel. (34) 963 86 48 48 Fax. (34) 963 86 44 32

Posted by Lawrence Solum at 12/20/2005 04:43:00 AM

Monday, December 19, 2005
 
Call for Papers: Comparative Law Work in Progress
    Michigan-Illinois Workshop: Comparative Law Work in Progress Announcement and Call for Papers Jacqueline Ross (University of Illinois College of Law) and Mathias Reimann (University of Michigan Law School) are organizing a comparative law workshop to discuss work in progress. This workshop will be established jointly by the University of Illinois College of Law and the University of Michigan Law School and will be co-sponsored by the American Society of Comparative Law. There is no regular opportunity for comparative law scholars in the United States to meet and discuss their work in any depth. The scholarly programs of the meetings of the American Society of Comparative Law are chosen and organized by the respective host schools and aim at the presentation of finished papers on a given topic. While there is some opportunity to present work in progress, there is little opportunity for sustained discussion. The meetings of the Comparative Law Section at the AALS Conference each January are also dedicated to a specific topic and usually exhaust themselves in the presentation of papers with little substantive discussion. There is a thus a need for a forum in which comparative law work in progress can be explored among colleagues in a serious and thorough manner that will be truly helpful to the respective authors. The Workshop: Comparative Law in Progress will fill that need. It will involve up to six papers during a two-day period. If more than six papers are submitted for discussion, the organizers will jointly decide which ones to accept, giving preference to younger scholars. The participants will consist of the respective authors, one commentator on each paper, faculty members of the host institution, particularly those with expertise in comparative law and research, and others interested in attending. The overall group will be kept small enough to sit around a large table and to allow serious discussion (20 people maximum). The papers will not be presented at the workshop. They will be distributed two weeks in advance and every participant must have read them before attending the meeting. The commentator will present a 10 to 15 minute introduction and critique, leaving at least one hour for discussion. There are no plans to publish the papers. Instead, it is up to the authors to seek publication if, and wherever, they wish. The first Workshop will take place on April 21-23, 2006 at the University of Michigan Law School. It will be an experiment. If it works as intended, it will then take place on a regular basis, once or twice a year, depending on the amount of interest. For the time being, its venue will alternate between the University of Michigan Law School in Ann Arbor and the University of Illinois College of Law in Champaign. The Workshop will be funded by the host school and by the American Society of Comparative Law. Authors of papers and commentators will be reimbursed for their travel expenses and accommodation up to $ 600.00. Interested authors should submit papers either to Jacqueline Ross (jeross1@law.uiuc.edu) or Mathias Reimann (purzel@umich.edu) by February 15, 2006. "Work in progress" means scholarship that has reached a stage at which it is substantial enough to merit serious discussion and critique but that has not yet appeared in print (although it may have been accepted for publication). It includes law review articles, book chapters or outlines, substantial book reviews, and other appropriate genres. Our objective is not only to provide an opportunity for the discussion of scholarly work but also to create an opportunity for comparative lawyers to get together for two days devoted to nothing but talking shop, both in the sessions and outside. We hope that this will create synergy that fosters more dialogue, cooperation, and an increased sense of coherence in a discipline badly in need of it. Jacqueline Ross Mathias Reimann

Posted by Lawrence Solum at 12/19/2005 10:46:00 PM

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