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, April 30, 2005
 
Legal Theory Bookworm The Legal Theory Bookworm recommends Brennan and Democracy by Frank Michelman. I take special pleasure in this recommendation, both because Michelman was my contracts professor (along with Lea Brilmayer, creating a real "odd couple" experience) and because he is surely one of the most intelligent and thoughtful constitutional theorists of our time. Here is a blurb:
    In Brennan and Democracy, a leading thinker in U.S. constitutional law offers some powerful reflections on the idea of "constitutional democracy," a concept in which many have seen the makings of paradox. Here Frank Michelman explores the apparently conflicting commitments of a democratic governmental system where key aspects of such important social issues as affirmative action, campaign finance reform, and abortion rights are settled not by a legislative vote but by the decisions of unelected judges. Can we--or should we--embrace the values of democracy together with constitutionalism, judicial supervision, and the rule of law? To answer this question, Michelman calls into service the judicial career of Supreme Court Justice William Brennan, the country's model "activist" judge for the past forty years. Michelman draws on Brennan's record and writings to suggest how the Justice himself might have understood the judiciary's role in the simultaneous promotion of both democratic and constitutional government. The first chapter prompts us to reflect on how tough and delicate an act it is for the members of a society to attempt living together as a people devoted to self-government. The second chapter seeks to renew our appreciation for democratic liberal political ideals, and includes an extensive treatment of Brennan's judicial opinions, which places them in relation to opposing communitarian and libertarian positions. Michelman also draws on the views of two other prominent constitutional theorists, Robert Post and Ronald Dworkin, to build a provocative discussion of whether democracy is best conceived as a "procedural" or a "substantive" ideal.
Highly recommended!

Posted by Lawrence Solum at 4/30/2005 07:02:00 AM

 
Download of the Week The Download of the Week is The Art of Reading LOCHNER by Rebecca L. Brown. Here is the abstract:
    This essay argues that the Repudiation of Lochner v. New York is an event that has been cloaked in mystique and power, the very uncertainty of which has led to a kind of paralysis in the realization of constitutional aspiration. Yet because of its largely incorporeal nature, the meaning and implications of this important event have largely eluded focused critique and reevaluation. Those with a mind to question or rethink the Repudiation have focused their efforts primarily on revisionist accounts of Lochner itself. These are helpful in highlighting the possible meanings of the Repudiation, not descriptively, but normatively. They invite us to think about what we wish to consider ourselves to have repudiated with Lochner - a question that has, incredibly, not been adequately debated.
And here is a bit more from the article:
    Generally speaking the Repudiation is understood to have declared that what the Court in Lochner did was triply wrong: (A) it was incorrect as constitutional doctrine; (B) it was illegitimate as judicial behavior; and (C) it was fueled by inappropriate motivations. Although separable, the three prongs of this devil’s trident are not unrelated. The doctrinal error lay in recognizing a right to liberty of contract not specified in the text of the Constitution. The illegitimacy charge is the most complicated of the attacks on Lochner. Depending on the critic, the decision was illegitimate (not simply wrong) because the Court xceeded the proper scope of judicial authority by placing itself into the role of egislator or policy-maker,9 or because the content of the rights recognized under he Court’s due process formulations was too “meaningless and circular” to be pplied in a principled manner.10 Another version of the illegitimacy critique puts ctivism at the top of the list of sins, either alone or in combination with other eatures of Lochner, such as lack of firm textual basis or activism based on what ight be said to be legislative, rather than judicial, judgments. The critique from otivation attributes the errors of doctrine and legitimacy to the Court’s eactionary resistance to progressive “social legislation designed to relieve nequalities in the industrial marketplace.” 11 Perhaps the most damning of all, his charge brands the justices as unprincipled ideologues who turned their policy references into constitutional law.
And finally:
    In a representative democracy, where much power is placed in the hands of lawmakers answerable to many different constituencies, generality of law (an idea sounding in equality) is an essential safeguard for liberty. This explains why Pierce v. Society of Sisters and Meyer v. Nebraska survived the Repudiation, despite their otherwise discredited recognition of substantive content in due process, their own facts exemplifying better than any hypothetical how threats to equality are threats to liberty, and vice versa. It explains why judicial review limited to representation einforcement alone, an effort to use courts in the protection of equality but not iberty, is doomed to under-enforce constitutional justice without some injection of ubstantive obligations in the duty to represent. Lochner has provided a focal oint for a discussion of liberty and equality. Thus understood, the lliterative “Lochner,” long linked to legacies, lessons, laissez-faire, iberty, and labor law, has a new comrade, propitiously entitled Lawrence. lthough thirty years ago a leading scholar complained that “Lochner and Roe are twins,” the distinction of a strong family resemblance to Lochner belongs to Lawrence. This observation is cause, not for complaint, but for celebration that the wo strands of constitutional justice, liberty and equality, intertwined in Lochner and then rent asunder by decades of constitutional angst at the hands of the Repudiation, have been permitted to come together again in the law of the land.
Highly recommended!

Posted by Lawrence Solum at 4/30/2005 06:51:00 AM

Friday, April 29, 2005
 
Friday Calendar
    Derek Jinks, U. of Arizona School of Law, "Reciprocity and the Laws of War".
    University of Texas, School of Law: David Blight, Yale University, Department of History, "The Theft of Lincoln in Scholarship and in Public Memory".
    Vanderbilt Legal Theory Workshop: David Dana, Northwestern University Law School, "Adequacy of Representation after Stephenson".
    Northwestern University School of Law: Law and Positive Political Theory Conference: Legal Doctrine and Political Control, Day 1
      10:00–11:45am, Session 1
        • Charles Cameron and Lewis Kornhauser, “A Team Model of Appellate Law Creation” • Paul Rubin, Hugo Mialon, and Joel Schrag, “Judicial Hierarchies and the Rule-Individual Tradeoff.” • Tonja Jacobi and Emerson Tiller, “Legal Doctrine and Political Control.” Discussants: Eric Posner Rui de Figueiredo Mathew McCubbins
      1:15-3:00pm, Session 2
        • Lee Epstein, Charles Cameron, Andrew Martin, and Jeff Segal, “Strategic Defiance of the U.S. Supreme Court” • Tracey George and Jeffrey Berger, "From Defense to Offense: A Revised Strategic Account of Appellate Judging" • Joseph Smith, “Distributing Power by Deciding Cases: Explaining Supreme Court Deference to Administrative Action” Discussants: John de Figueiredo Christopher Zorn Max Schanzenbach
      3:30pm-4:45pm, Session 3
        • Eric Talley, “Equilibrium Expectations and Legal Doctrine” • Jide Nzelibe, “A Positive Theory of the War Powers Constitution” Discussants: Lewis Kornhauser John McGinnis

Posted by Lawrence Solum at 4/29/2005 03:55:00 AM

 
Zipursky on Punitive Damages Benjamin C. Zipursky (Fordham University School of Law) has posted A Theory of Punitive Damages (Texas Law Review, Forthcoming) on SSRN. Here is the abstract:
    A contemporary theory of punitive damages must answer two questions: (1) what place, if any, do punitive damages have in the civil law of tort, given that they appear to involve an idea of criminal punishment? (2) why are punitive damages subject to special constitutional scrutiny, as in the Supreme Court's decision in BMW v. Gore, if they really are part of the civil law of tort? The article offers a theory that can answer both of these questions. Punitive damages have a double aspect, corresponding to two senses of "punitive." Insofar as they pertain to the state's goal of imposing a punishment upon a defendant who merits deterrence or retribution, they have a criminal aspect. Insofar as they pertain to the plaintiff's "right to be punitive," they have a civil aspect. Drawing upon the theory of civil recourse that the author has developed as a challenger to corrective justice theory, the article explains what a "right to be punitive" means. It then uses the recourse theory of punitive damages to support a rational reconstruction of the Supreme Court's constitutional jurisprudence of punitive damages. When a case can be understood as involving principally a plaintiff's right to be punitive, heightened constitutional scrutiny is not appropriate. However where, as in BMW v. Gore, the state is essentially imposing punishment, the excessiveness of a damages award is properly scrutinized under heightened constitutional standards.

Posted by Lawrence Solum at 4/29/2005 03:48:00 AM

 
Wuerth on Authorizations for the Use of Force Ingrid B. Wuerth (University of Cincinnati - College of Law) has posted Authorizations For the Use of Force, International Law, and The Charming Betsy Canon (Boston College Law Review, Vol. 42-6, 2005) on SSRN. Here is the abstract:
    International law has figured prominently in several on-going disputes around actions of the U.S. military in Afghanistan, Iraq, Guantanamo, and here in the United States, but the precise relationship between international law and President's war powers has nonetheless gone largely unexplored. This Article seeks to clarify one important aspect of that relationship: the role of international law in determining the scope of Congress's general authorization for the use of force. Recent cases, including Hamdi v. Rumsfeld, 124 S. Ct. 2633 (2004), have confirmed the importance of congressional authorization to the Court's construction of the President's war powers. International law can, in turn, play an important role in how courts interpret the scope of general authorizations for the use of force by Congress. The plurality opinion in Hamdi illustrates this point, but unfortunately relies on international norms without sufficient attention to their content or their relationship to the authorization provided by Congress. This article identifies and defends a better approach: courts should presume that general authorizations for the use of force do not empower the President to violate international law. Such a presumption is consistent with long-standing tools of statutory interpretation reflected in the so-called Charming Betsy canon, does a good job of maximizing the presumed preferences of Congress, advances separation of powers in a number of ways, and promotes several normative values that favor the use of international law as an interpretive tool.

Posted by Lawrence Solum at 4/29/2005 03:44:00 AM

 
Brandser on Victorian Censorship & Birth Control Kristin Brandser (University of Cincinnati - College of Law) has posted Law, Literature, and Libel: Victorian Censorship of 'Dirty Filty' Books on Birth Control (William & Mary Journal of Women and the Law, Vol. 10, p. 533, 2004) on SSRN. Here is the abstract:
    This article considers the increasing challenge of the fair allocation of scarce public health care resources by focusing on services for women and girls. It considers different ways of thinking about fairness in health care reform, the role of courts in promoting fairness, and the use of affirmative action measures to remedy health disparities. The health of individuals and populations is shown to be affected by clinical services, the organization and functioning of health systems, and underlying socio-economic determinants. Different theories of justice are addressed that affect assessments of fairness, considering availability, accessibility, acceptability of and accountability for services. The transition in judicial dispositions is traced, from deference to governmental resource allocation decisions to evidence-based scrutiny of governmental observance of constitutional and human rights legal obligations. The appropriate use of affirmative action measures to improve equality in health status is explored, given the increasingly unacceptable disparities in health among subgroups of women within countries.

Posted by Lawrence Solum at 4/29/2005 03:43:00 AM

 
Ahdieh on Norm Transformation Robert B. Ahdieh (Emory University School of Law) has posted The Role of Groups in Norm Transformation: A Dramatic Sketch, In Three Parts (Chicago Journal of International Law, Vol. 6, No. 1, p. 233, 2005) on SSRN. Here is the abstract:
    Legal scholars, as well as economists, have focused limited attention on the role of coordinated groups of market participants - committees, clubs, associations, and the like - in social ordering generally and in the evolution of norms particularly. One might trace this neglect to some presumptive orientation to state actors (expressive law) and autonomous individuals (norm entrepreneurs) as the sole parties of interest in social change. Yet, alternative stories of social ordering and norm change might also be told. Dramatic recent changes in the contracting practices of the sovereign debt markets offer one such story. Using the latter by way of illustration, this essay explores the potential role of groups as mechanisms of norm transformation. In appropriate circumstances, it suggests, groups may offer an intermediate path of change between regulatory mandate and decentralized markets. Where a pattern of private behavior is at once inefficient but resistant to decentralized market change, groups may effectively stand in for the market - relying on private rather than public incentives to define outcomes, yet offering an infrastructure of coordination lacking in a pure market dynamic. Building on this conception, the essay offers a potential framework for the analysis of groups - as market substitutes in their internal dynamics, as market-mediating in their external interactions, and, most counter-intuitively, as contributing to norm change not exclusively through their strength, but also through their weakness.

Posted by Lawrence Solum at 4/29/2005 03:42:00 AM

 
Cook on Fairness in Health Care Reform Rebecca J. Cook (University of Toronto - Faculty of Law) has posted Exploring Fairness in Health Care Reform (Journal for Juridical Science Vol. 29, No. 3, pp. 1-27, 2004) on SSRN. Here is the abstract:
    This article considers the increasing challenge of the fair allocation of scarce public health care resources by focusing on services for women and girls. It considers different ways of thinking about fairness in health care reform, the role of courts in promoting fairness, and the use of affirmative action measures to remedy health disparities. The health of individuals and populations is shown to be affected by clinical services, the organization and functioning of health systems, and underlying socio-economic determinants. Different theories of justice are addressed that affect assessments of fairness, considering availability, accessibility, acceptability of and accountability for services. The transition in judicial dispositions is traced, from deference to governmental resource allocation decisions to evidence-based scrutiny of governmental observance of constitutional and human rights legal obligations. The appropriate use of affirmative action measures to improve equality in health status is explored, given the increasingly unacceptable disparities in health among subgroups of women within countries.

Posted by Lawrence Solum at 4/29/2005 03:41:00 AM

 
Brown on Dworking & Constitutional Theory Rebecca L. Brown (Vanderbilt Law School) has posted How Constitutional Theory Found Its Soul: The Contributions of Ronald Dworkin (EXPLORING LAW'S EMPIRE, Oxford University Press, 2005) on SSRN. Here is the abstract:
    Like rain falling to a parched earth, Ronald Dworkin's early work lighted upon a field of constitutional thought desiccated by embarrassment over Brown v. Board of Education. From a distance of a half century, it is difficult to appreciate the profound chagrin that had arisen from what now seems a simple judicial declaration of equality. Yet the decision had hurled the world of constitutional theory into decades of existential angst, leading it, temporarily, to lose a grasp on its soul. This essay explores some ways in which Dworkin's frank discussion of rights as well as his thick notion of equality helped restore optimism and aspiration to the constitutional project when it was in dire need of uplifting. It also traces effects of Dworkin's work in some of the constitutional decisions of the Supreme Court.

Posted by Lawrence Solum at 4/29/2005 03:40:00 AM

 
Conference Announcement: Nature in the Kingdom of Ends
    NATURE IN THE KINGDOM OF ENDS Where are we taking nature? Were is nature taking us? A Conference in Selfoss, Iceland, June 11th and 12th 2005 Respecting others for what they are rather than treating them simply as instruments is one of the fundamentals of human morality. The philosopher Immanuel Kant expressed this in the following words: “Act in such a way that you treat humanity, whether in your own person or in the person of another, always at the same time as an end and never simply as a means”. And sometimes Kant says that rational beings are citizens in the kingdom of ends. But why only rational beings? The title “Nature in the Kingdom of Ends” indicates that nature should also belong to the kingdom of ends, that it is deserving of respect and that one should never treat it simply as a means but always also as an end. The object of the conference is to consider the place of nature in the contemporary world and its appearances in different aspects of human life. When we ask about sources of values, we are asking questions about the basic frames which we set for our lives; the surroundings in which we live, the projects that we undertake, and the goals we set ourselves. Here we find the roots of ethics and art. Ecological crises, climatic changes, and natural catastrophes have made us increasingly aware of the place of man, as a living creature, in a fragile natural environment which constrains human life in various ways. But, at the same time, nature has appeared as a source of values opening up new ways for creative and meaningful life. This status of nature is reflected in new trends in art and ethics. Culture – art – nature Complex relations between art and nature are one of the characteristics of contemporary art. The distinction between art and nature has become increasingly blurred at the same time as the ancient dichotomy of culture and nature has become controversial. It is the inner space, the interstices between disciplines, the challenging discourse between the triple, culture – art – nature, that has become a locus, a place for creative richness, that has generated some of the most exciting artworks created during the last decades. Ethics Ideas about the proper object of moral philosophy underwent radical changes in the last decades of the 20th century. Philosophers began discussing nature as an independent source of moral values, rather than a mere stage for moral life which, in the end, derives its value from relations between humans. Nature and modernity The new circumstances of art and ethics have forced us to recognize the dual nature of humans as natural and cultural creatures. We are forced to look at humans as a unified whole with these two sides, which often conflict.

Posted by Lawrence Solum at 4/29/2005 03:24:00 AM

 
Conference Announcement: What Is Autonomy?
    What is Autonomy? Venue: Academy of Fine Arts, Kolkata Date: 29-30 July 2005 Conference Statement
      In the first decade of the twentieth century where we live in, autonomy has become one of the major concerns of our social and political existence. Right to autonomous life is now a political, cultural, and social call of both individual and the groups - a rare conformity that points to the critical importance of the problematic of autonomy in the agenda of critical thinking. As is currently understood, the notion of autonomy, both as something that belongs to human beings and human nature, and as something that is the source or basis of morality, that is, duty, is bound up inextricably with the philosophy of our time. The term began to be applied primarily or even exclusively in a political context, to “civic communities” possessing independent legislative and self-governing authority. Then the term was taken up again in the context of individual rational persons that is in the context of their individual rights and existences, for their individual modes of behaviour. In the background of the upsurge of anti-colonial movements the term gained new perspectives and meanings, which would now imply not only new rights, but also new responsibilities (autonomy of whom, for whom, in respect to what?). It became the emblem of group rights, in particular minority rights. In time the idea of autonomy became not only the standard of rights or responsibilities, but also an issue of governmentality - something that denotes transaction, government, negotiation, and relating to others on the basis of set rules. So we have now the questions: If autonomy has been emblematic of rights, does it take into account the gendered nature of the term? Can we trace the birth of the autonomous subject? What are the relevant constitutional and juridical thoughts shaping the universe of autonomy? Why is autonomy, an idea that holds universal attraction for mass politics, related to so much violence? Is autonomy one more regulated term, or is the concept autonomous, so that we can speak of autonomy of the autonomies? And, is private property, to go the fundamentals, a problematic for autonomy? What is autonomy without access to resources? On the other hand, if forms of ownership of resources determine autonomy, what is left of autonomy as a norm? If we relate the concept of autonomy to the more familiar notions of freedom or self-determination, we can locate in this case the questions of responsibility and the conditions of freedom. Autonomy generally is held as a valued condition for persons in liberal cultures. We uphold autonomous agents as the exemplar of persons who, by their judgment and action, authenticate the social and political principles and policies that advance their interests. But the sceptic may ask if we are not being “blinded” by the ideal of autonomy, and therefore the question, what happens if we value autonomy too much? In autonomous action the agent herself directs and governs the action. But what does it mean for the agent herself to direct and to govern? In the context of the emerging demands for group autonomy, the further question to be probed is if this is not now the occasion to investigate and re-envision the concept of democracy with the norm, principles, and various forms of autonomy and more importantly in a way, where the standards of minimal justice become the foundation for a new democratic outlook inscribed by practices of autonomy perched on understanding of each other. Accommodation becomes the form of responsibility for the agency that wills autonomy. In the history of thought reason has co-opted our conception of autonomy. Given this history, it can be argued that the task is now to set autonomy free. But the question is how? Surely, the problem is in the way the self defines the claims for autonomy, the way in which it relegates the issue of justice and understanding from considerations of autonomy. Law becomes in such conditions the most assured site of autonomy, and the juridical arrangement handed down from the top becomes the only possible form of autonomy. The paradox is then: if we are governed by reason in what we choose and how we choose, that means that we subject ourselves to reason in this business of what and how we choose; we are not in that case autonomous. Yet, if we say that we are not governed by reason but by desires and passions, then in that case we are not governing ourselves in what we choose, and we are not therefore autonomous. The way out of the closure has to be sought in historical understanding of the way in which the two principles of autonomy and accommodation have worked in political life, and the way in which standards of justice have negotiated the relation between autonomy and accommodation. We require both historical and analytical understanding of the issue for such a critical enterprise. We require moreover deeper and rigorous understanding of the geo-political and ethno-political grounds on which the call for autonomy is now articulated and which modulate the self’s understanding of the norm. Similarly the need is to inquire into the ethical grounds on which the call for autonomy is given and practices of autonomy continue. The purpose of the conference is to inquire into conditions and dimensions of autonomy, their historical nature, and their political significance in terms of enriching democracy.
    The conference will be held in Kolkata, India, on 29-30 July 2005. Structured around panel discussions, the conference will deal with six themes, which will form the panel sub-themes: The Birth of the Autonomous Subject (Panel Convenor: Samir K. Das – samir@mcrg.ac.in) Autonomy as an Idea for Mass Politics (Panel Convenor: Sanjoy Barbora – xonzoi@hotmail.com) Laws of Autonomy (Panel Convenor: (Sabyasachi Basu Ray Chaudhury – sabyasachi@mcrg.ac.in) Feminism as a Resource for Autonomy (Panel Convenor: Paula Banerjee – paula@mcrg.ac.in) Autonomy of the Autonomies (Panel Convenor: Sanjay Chaturvedi – sanjay_1999_99_99@yahoo.com) Access, Ownership and Resources – Private Property as A Problem of Autonomy (Panel Convenor: Arun Kumar Patnaik - akpatnaik@satyam.net.in) Various experiences on movements for autonomy will be discussed in the context of the sub-themes. The conference is part of a research and dialogue programme on autonomy, which CRG has been conducting with the support of the Ford Foundation. Interested paper contributors may contact the panel convenors. Inquiries are welcome and all other inquiries can be addressed at mcrg@mcrg.ac.in Registration charge for the conference is Rs. 100/ per person. Copies of the papers will be available on payment of photocopying charge and on the CRG website. Panels will be finalised by 30 April 2005, and papers will have to be submitted by 30 June 2005. The conference will not have general travel support fund. But it will provide full accommodation for the participants during their stay for the conference. In case of partial or exceptional travel support inquiries can be addressed to panel convenors or at mcrg@mcrg.ac.in The Conference on “What is Autonomy?” will be the first in a series of annual conferences that CRG will hold on critical thinking in India. Organising Committee: Members: Samir Kumar Das, Paula Banerjee, Sanjay Barbora, Sanjay Chaturvedi, Arun Kumar Patnaik, and Sabyasachi Basu Ray Chaudhury, Convenor: Ranabir Samaddar Director: Mahanirban Calcutta Research Group FE 390, Sector 3, Salt Lake City, Kolkata 700106, India Ph: 91-33-23370408 Fax: 91-33-23371523 Email: ranabir@mcrg.ac.in / mcrg@mcrg.ac.in

Posted by Lawrence Solum at 4/29/2005 03:15:00 AM

Thursday, April 28, 2005
 
Cox on Partisan Gerrymandering Adam Cox (University of Chicago Law School) has posted Partisan Gerrymandering and Disaggregated Redistricting on SSRN. Here is the abstract:
    Courts and scholars have long struggled over whether and how to police partisan gerrymandering. For all the disagreement about how to resolve these questions, however, there has been one consistent point of concurrence - that courts should treat congressional gerrymanders and state legislative gerrymanders identically. Constitutional jurisprudence and legal scholarship have always assumed that these two types of gerrymanders pose the same problems and are subject to the same solutions. Last Term in Vieth v. Jubelirer, the Court entrenched this assumption in constitutional doctrine. This Article demonstrates that, contrary to the conventional view, congressional and state legislative gerrymanders raise distinct conceptual, normative, and constitutional questions. State legislative gerrymanders differ from congressional gerrymanders in a crucial way: a state legislative gerrymander affects the composition of the entire legislative assembly, while a congressional gerrymander affects the composition of only a small part of the legislature. This difference is significant because the standard contemporary accounts about why partisan gerrymanders are harmful describe harms that turn on the structure of representation in the legislative assembly as a whole - not on the consequences of redistricting for a small subset of the legislature. Such legislature-wide harms can be identified by a court reviewing a state legislative gerrymander, because the court assesses the redistricting plan that affects the composition of the entire legislature. But a court reviewing a single state's federal congressional gerrymander cannot identify such harms. The Article argues that the Justices' efforts in Vieth to directly identify the existence of harms caused by Pennsylvania's alleged congressional gerrymander were therefore misguided. If courts are to police congressional partisan gerrymanders, they instead need to develop strategies for state-level intervention that reduce the risk of congress-wide injuries.
I just finished reading this very interesting piece--which raises some very interesting questions about the nature of the harm caused by partisan gerrymandering. Highly recommended!

Posted by Lawrence Solum at 4/28/2005 01:24:00 PM

 
Tax Symposium Over at TaxProf Blog, Paul Caron reports:
    The most recent issue of the Canadian Journal of Law & Jurisprudence (Vol. 18, No. 1, 2005) contains a wonderful collection of tax articles by a dazzling array of American and international tax scholars assembled by Guest Editor Edward J. McCaffery (USC).
Go to TaxProf blog for the papers & abstracts.

Posted by Lawrence Solum at 4/28/2005 05:00:00 AM

 
Thursday Calendar
    Yale Legal Theory Workshop: Jennifer Nedelsky, University of Toronto (Law), "Legislative Judgment And The Enlarged Mentality: Taking Religious Perspectives":
      Hannah Arendt outlined a preliminary theory of judgment in her lectures at the New school and in various essays. But she did not live to write the volume she had planned on judgment as the final volume to her work on thinking and willing1. In my earlier work, I have built upon her theory of judgment, primarily by looking at its implications for judgment in the judicial context2. Here, I return to her own primary interest, political judgment. In this essay, I look at the importance of judgment for two of the central functions of the legislature in a constitutional state: the legislature as a locus of collective deliberation about the common good and the legislature as a participant in the ongoing, dynamic, and contested definition of core constitutional values. These functions are, in turn, linked to a third issue: the link between the ordinary practices of citizens and what we can hope for from a legislature.
      The central concept in Arendt’s theory, which she borrowed from Kant, is the enlarged mentality. Briefly put, what distinguishes judgment from both subjective preference and provable truth claims, is that judgment involves reflection on the question at hand from the standpoint or perspective of others. Judgment as such remains subjective, it cannot compel the assent of others as truth claims can. But it can claim validity with respect to other judging subjects. It is the use of the enlarged mentality, the consideration of others’ perspectives, that makes this validity possible. It is this exercise that distinguishes mere private opinion from valid judgment.
    Fordham University School of Law: Sean J. Griffith, Associate Professor of Law, University of Connecticut School of Law, Visiting Associate Professor of Law, University of Pennsylvania School of Law (2004-05), "Good Faith Business Judgment: a Theory of Rhetoric in Corporate Law Jurisprudence":
      This Article develops a theory of rhetoric in corporate law jurisprudence. It begins by examining a recent innovation in Delaware case-law: the emerging principle of “good faith.” Good faith is an old notion in law generally, but it offers to bring significant change to corporate law, including realignment of the business judgment rule and a shift in the traditional balance between the authority of boards and the accountability of boards to courts. The Article argues, however, that good faith functions as a rhetorical device rather than a substantive standard. That is, it operates as a speech-act, a performance, as opposed to a careful method of analysis. To explain the sudden appearance of good faith, this Article articulates a model of corporate law rhetoric. Courts invent rhetorical devices to loosen corporate law doctrine and increase judicial review of board decision-making in response to scandals and other extra-legal pressures operating upon the judiciary. These pressures stem largely from the twin threats of corporate migration and federal preemption, both of which imperil the primacy of the Delaware judiciary as a corporate law-maker. In periods of crisis and scandal, the judiciary employs rhetorical devices to reduce these pressures, typically with the effect of increasing board accountability, only to return, once the pressure recedes, to a position of board deference. After finding several examples of this pattern in corporate law history, this Article argues, ultimately, that regular movement back and forth along the authority/ accountability spectrum is an essential feature of corporate law jurisprudence and that understanding the rhetorical devices that permit this movement is necessary to complete any account of what corporate law is and how it works.
    Georgetown Workshop on Transnational Legal Issues: Marc Spindelman, "Homosexuality’s Horizon"
    University of Texas, School of Law: David Blight, Yale University, Department of History, "Healing or Justice: Has Civil War Memory Divided or Unified America?"

Posted by Lawrence Solum at 4/28/2005 04:16:00 AM

 
Ribstein Asks "Why Corporations?" Larry E. Ribstein (University of Illinois College of Law) has posted Why Corporations? (Berkeley Business Law Journal, Vol. 1, p. 183, 2004) on SSRN. Here is the abstract:
    This article suggests that reform of the governance of publicly held firms might appropriately include a move from the corporate to the partnership form. The corporate form is susceptible to regulation, rigidly centralized and not readily adaptable to firms' varying circumstances. These features are unsuitable for new economy firms that rely on markets and networks rather than integration. Partnership's greater flexibility and freedom from government interference arguably make it a better choice than corporation for many publicly held firms. Thus, the persistence of incorporation may owe more to politics and regulation than to efficiency. The rigidity of the corporate form makes it easier to regulate and therefore provides more rent-seeking opportunities for politicians and interest groups than if parties could freely choose their business form. Taxation of corporate distributions reduces owners' incentives to take control of corporate earnings through partnership-type firms. Also, by protecting managers' power, preserving the corporate form co-opts the interest group that is best able to lobby for change. However, new corporate tax rules, increased federal regulation of corporate governance and the changing nature of U.S. business may give firms new incentives to use the partnership form. Lawyers may be the agents of change, as they have been in promoting partnership-based business forms for closely held firms.

Posted by Lawrence Solum at 4/28/2005 04:15:00 AM

 
Sunstein on Irreversible & Catastrophic Harms Cass R. Sunstein (University of Chicago Law School) has posted Irreversible and Catastrophic (Cornell Law Review, Forthcoming) on SSRN. Here is the abstract:
    As many treaties and statutes emphasize, some risks are distinctive in the sense that they are potentially irreversible or catastrophic; for such risks, it is sensible to take extra precautions. When a harm is irreversible, and when regulators lack information about its magnitude and likelihood, they should purchase an option to prevent the harm at a later date - the Irreversible Harm Precautionary Principle. This principle brings standard option theory to bear on environmental law and risk regulation. And when catastrophic outcomes are possible, it makes sense to take special precautions against the worst-case scenarios - the Catastrophic Harm Precautionary Principle. This principle is based on two foundations: an appreciation of people's failure to appreciate the expected value of truly catastrophic losses; and an understanding of the distinction between risk and uncertainty. The Irreversible Harm precautionary Principle must, however, be applied with a recognition that irreversible harms are sometimes on all sides of social problems, and that such harms may be caused by regulation itself. The Catastrophic Harm Precautionary Principle must be applied with an understanding that in some cases, eliminating the worst-case scenario causes far more serious problems than it solves. The normative arguments are illustrated throughout with reference to the problem of global warming; other applications include injunctions in environmental cases, genetic modification of food, protection of endangered species, and terrorism.

Posted by Lawrence Solum at 4/28/2005 04:14:00 AM

 
Posner on Political Trials Eric A. Posner (University of Chicago Law School) has posted Political Trials in Domestic and International Law on SSRN. Here is the abstract:
    Due process protections and other constitutional restrictions normally ensure that citizens cannot be tried and punished for political dissent, but these same restrictions interfere with criminal convictions of terrorists and others who pose a non-immediate but real threat to public safety. To counter these threats, governments may use various subterfuges to avoid constitutional protections, often with the complicity of judges, but when they do so, they risk losing the confidence of the public, which may believe that the government targets legitimate political opponents. This paper argues that that the amount of process enjoyed by defendants in criminal trials reflects a balancing of these two factors: their dangerousness, on the one hand, and the risk to legitimate political competition, on the other hand. Political trials are those in which the defendant’s opposition to the existing government or the constitutional order is the main issue. The paper discusses various ways in which governments and judges adjust process protections, so that a public threat can be countered while the risks to political competition are minimized. International trials are also discussed within this framework.

Posted by Lawrence Solum at 4/28/2005 04:08:00 AM

 
Brown on Reading Lochner Rebecca L. Brown (Vanderbilt Law School) has posted The Art of Reading LOCHNER (NYU Journal of Law & Liberty, Summer 2005) on SSRN. Here is the abstract:
    This essay argues that the Repudiation of Lochner v. New York is an event that has been cloaked in mystique and power, the very uncertainty of which has led to a kind of paralysis in the realization of constitutional aspiration. Yet because of its largely incorporeal nature, the meaning and implications of this important event have largely eluded focused critique and reevaluation. Those with a mind to question or rethink the Repudiation have focused their efforts primarily on revisionist accounts of Lochner itself. These are helpful in highlighting the possible meanings of the Repudiation, not descriptively, but normatively. They invite us to think about what we wish to consider ourselves to have repudiated with Lochner - a question that has, incredibly, not been adequately debated.

Posted by Lawrence Solum at 4/28/2005 04:07:00 AM

 
Competition Announcement: The Mental & the Normative
    THE PHILOSOPHICAL QUARTERLY PRIZE ESSAY COMPETITION 2005 - £1500 The Mental and the Normative The Philosophical Quarterly invites submissions for its 200 international prize essay competition, the topic of which is 'The Mental and the Normative'. A longstanding problem in meta-ethics has been to understand the relation between non-normative judgements about straightforwardly factual matter and normative judgements relating to how we ought morally to act. A similar problem arises outside the sphere of ethics, though it has not received anything like the same attention. It is hard to deny that we are subject to requirements of reason. There is the familiar idea that we ought to avoid inconsistent beliefs, and it seems plausible that we are subject to a requirement relating to taking the means necessary to carry out our intentions. If these requirements are expressed in terms of what we ought to do - in normative terms - how should such ought-statements be conceived, and what grounds or makes sense of them? Are they grounded in intrinsic features of believing or intending - perhaps in constitutive aims of believing or intending? If so, what does this tell us about our mental life? If not, how else are they to be understood? Essays should not be longer than 8,000 words. They should be typed in double spacing and conform to the usual stylistic requirements (see inside back cover). Three copies of each essay are required and these will not be returned. All entries will be regarded as submissions for publication in The Philosophical Quarterly, and both winning and non-winning entries judged to be of sufficient quality will be published. The closing date for submissions is 1st November 2005. All submissions should be headed 'The Mental and the Normative Prize Essay Competition' (with the author's name and address given in a covering letter, but NOT in the essay itself) and sent to: The Executive Editor, The Philosophical Quarterly, University of St Andrews, KY16 9AL

Posted by Lawrence Solum at 4/28/2005 03:51:00 AM

Wednesday, April 27, 2005
 
Wednesday Calendar
    No events for today.

Posted by Lawrence Solum at 4/27/2005 04:48:00 AM

 
Brown Confesses to Flaws Rebecca L. Brown (Vanderbilt Law School) has posted Confessions of a Flawed Liberal (Rebecca L. Brown, THE NEW FIRST AMENDMENT AND THE MEANING OF LIBERALISM/CONSERVATISM, The Good Society, June/July 2005) on SSRN. Here is the abstract:
    This essay, a contribution to a discussion group, briefly explores different conceptions of liberalism that might explain apparent inconsistencies between classic liberal positions and current constitutional views of liberal theorists.

Posted by Lawrence Solum at 4/27/2005 04:41:00 AM

 
Gillette & Scott on International Sales Law Clayton P. Gillette and Robert E. Scott (New York University Law School and University of Virginia School of Law) have posted The Political Economy of International Sales Law on SSRN. Here is the abstract:
    The United Nations Convention on Contracts for the International Sale of Goods, or CISG, has been adopted by more than 60 countries in an effort to harmonize the law that applies to international sales contracts. In this paper, we argue that the effort to create uniform international sales law ("ISL") fails to supply contracting parties with the default terms they prefer, thus violating the normative criterion that justifies the law-making process for commercial actors in the first instance. Our argument rests on three claims. First, we contend that the process by which uniform ISL is drafted will dictate the form that many provisions take. Second, we contend that the legal form dictated by the drafting process has significant substantive consequences, particularly for the policy objectives of uniform ISL. That leads to our third claim. We predict that in order to achieve uniform ISL that is widely adopted, those involved in the drafting process will systematically promulgate many vague standards that contracting parties would not choose for themselves. These defaults cannot be justified as the inevitable cost of achieving an optimal level of uniformity. If the products of a uniform ISL are default terms that parties do not want, then the underlying justification for the law-making function - reduction of contracting costs - vanishes. We find significant correspondence between our predictions about the drafting of uniform international sales law and the CISG. The CISG was drafted by parties whose objectives did not necessarily coincide with those of the commercial actors whose conduct the treaty was intended to regulate. The result is a variety of vague standards and compromises that appear inconsistent with commercial interests. We also illustrate the ways in which the CISG avoided potential correctives to these problems. We conclude by suggesting that commercial actors involved in international sales would prefer to choose governing law from among legal regimes that compete to supply parties with more desirable substantive terms.

Posted by Lawrence Solum at 4/27/2005 04:36:00 AM

 
Bell & Parchomovsky on Property & Federalism Abraham Bell and Gideon Parchomovsky (Bar-Ilan University, Faculty of Law and University of Pennsylvania Law School) have posted Of Property and Federalism on SSRN. Here is the abstract:
    This Essay proposes a mechanism for expanding competition in state property law, while sketching out the limitations necessary to protect third parties. The fact that property law is produced by the states creates a unique opportunity for experimentation with such property and property-related topics as same-sex marriages, community property, adverse possession and easements. The Essay begins by demonstrating the salutary effects of federalism on the evolution of property law. Specifically, it shows that competition among states has created a dynamic property system in which new property institutions replace obsolete ones. The Essay then contemplates the possibility of increasing innovation and individual choice in property law by inducing state competition over property regimes. Drawing on the scholarly literature examining state competition for corporate law and competition over the provision of local public goods, the Essay constructs an open property system that creates an adequate incentive for the states to offer new property regimes and allows individuals to adopt them without relocating to the offering state. This Essay also has important implications for the burgeoning literature on the numerus clausus principle, under which the list of legally permissible property regimes is closed. The Essay argues that in a federalist system, it is socially desirable to expand the list of property forms to include certain out-of-state forms.

Posted by Lawrence Solum at 4/27/2005 04:33:00 AM

 
Sklansky on Police and Democracy David A. Sklansky (University of California, Los Angeles - School of Law) has posted Police and Democracy (Michigan Law Review, 2005) on SSRN. Here is the abstract:
    This Article explores the connections between ideas about American democracy and ideas about the police. I argue that criminal procedure jurisprudence and scholarship on the police over the past half-century have roughly tracked, in a delayed fashion, developments in democratic theory over the same period. The most important of these developments were, first, the emergence during the 1950s of the pluralist theory of democracy, an unusually rich and resonant account that emphasized the roles of elites, interest groups, and competition in sustaining American democracy; and second, beginning in the 1960s, the gradual shift away from this theory and toward accounts of democracy emphasizing popular participation, community, and deliberation. Democratic pluralism had helps make sense of several interrelated hallmarks of criminal procedure and police studies in the Warren and Burger Court eras: the focus on the group psychology of the police; the concern with police discretion and the reliance on judicial oversight; the emphasis on personal dignity; the attraction to second wave police professionalism; the embrace of modernity; the centrality of consensus; and the disregard of institutional structure. The subsequent shift away from pluralism finds reflection in several themes in contemporary criminal procedure: the enthusiasm for community participation; the premium placed on transparency; the distrust of elites and expertise; the preoccupation with legitimacy; and the retreat from modernity. Other features of criminal procedure jurisprudence and scholarship today - the continued treatment of the police as a breed apart, the persistent de-emphasis of institutional structure, and the relative inattention to issues of equality - reflect important points of continuity between pluralism and the theories that supplanted it. Our ideas about policing could benefit from a more rounded understanding of democracy - an understanding sensitive to those aspects of democracy that have to do less with collective self-rule than with traditions of resistance to illegitimate hierarchy, and mindful of the core insights of democratic pluralism, 1960s-style participatory democracy, and eighteenth-century political economy. I investigate, in a tentative fashion, how such an understanding of democracy might affect our thinking about five important issues in contemporary law enforcement: community policing, racial profiling, police privatization, police personnel practices, and public disclosure of law enforcement practices.

Posted by Lawrence Solum at 4/27/2005 04:31:00 AM

 
Driesen on the Neutrality of Cost-Benefit Analysis David M. Driesen (Syracuse University - College of Law) has posted Is Cost-Benefit Analysis Neutral? (University of Colorado Law Review, Vol. 77, 2006) on SSRN. Here is the abstract:
    Cost-benefit analysis (CBA) owes much of its appeal to its image as a neutral principle for deciding upon the appropriate stringency of environmental, health, and safety regulation. This article examines whether CBA is neutral in effect, i.e. whether it sometimes makes regulations more stringent or regularly leads to weaker health, safety and environmental protection. It also addresses the question of whether CBA offers either an objective value-neutral method or procedural neutrality. This Article shows that CBA has almost always proven anti-environmental in practice and that, in many ways, it is anti-environmental in theory. It examines the practice of the Bush Administration using a representative data set and shows that Office of Management and Budget review produced numerous anti-environmental, health, and safety changes and no pro-protection changes in the rules in the data set. It also reviews "prompt letters," which CBA proponents cite as examples of CBA producing more regulation, rather than less. These letters have never prompted any fresh regulatory action and rarely have any basis in CBA. Finally, this article shows that the anecdotal information relied upon to show that CBA sometimes has strengthened rules prior to the Bush Administration provides little or no support for the view that CBA has a neutral effect. The most common legal formulation of a cost-benefit test, that the costs should not exceed the benefits of regulation, acts a one-way ratchet, demanding that some regulations become less stringent, but never demanding greater protection of health, safety, or the environment. Nevertheless, one can discern some reasons why some analysts look at CBA as neutral in the apparent even-handedness of the optimality criterion, which has more influence in the academy than in practice. Even this criterion, however, does not act neutrally relative to all existing alternative criteria. Furthermore, the value choices in choosing methods for quantifying benefits make objective value neutral CBA a theoretical impossibility.

Posted by Lawrence Solum at 4/27/2005 04:28:00 AM

Tuesday, April 26, 2005
 
2005 Entry Level Hiring, Interim Report Updated as of April 28, 7:20 a.m. PDST
116 schools have reported so far.
Based on the most recent information I've received, there are still a few schools that will make decisions in the next two weeks or so. Unless I hear of schools that plan to take even longer, I will close the books around the middle of May. Please note, I still need additional information about an outstanding rumour about Syracuse (see end of this post). Finally, if you know of a law school that will not make any entry-level hires that is not listed, please drop me an email: lsolum@sandiego.edu.
The fine print: For my purposes, someone hired from a non-tenure-track position (e.g. a VAP) to a tenure-track position counts as an entry level hire. Hires to temporary positions or to non-tenure-track positions are not included. I am standardizing the terminology for certain disciplines; for example, government, politics, political theory, and political science are all listed as "political science." I am tracking hires made during the 2004-05 academic year--so a hire made in Fall 2004 will be listed, even if the candidate starts in Spring 2005 & a hire made in Spring 2004 will not be listed, even if the candidate starts in Fall 2005.
The most complete version of the data reported here is in an excel spreadsheet. Although I update the various statistics (e.g. number of placements per school) on a regular basis, I do not check this against the spreadsheet every time I add a name. Some reports are confidential--and for this reason, the statistics do not yet match the list, although the two will eventually be in sync.
In the JD/LLB placement tournament, the current leaders are:
    Harvard 35 Yale 21 Columbia 11 NYU 10 Chicago 8 Michigan 6 Stanford 6 Berkeley 5 UCLA 5 Virginia 5 Duke 4 Tel Aviv 4 Georgetown 3 Penn 3 Texas 3 Cornell 2 George Washington 2 Kansas 2 Minnesota 2 Northwestern 2
73 of the 153 candidates on whom I have confirmed data have (or will soon get) advanced degrees beyond the first degree in law (JD in the U.S.; LLB or other elsewhere). 30 of these are PhDs or DPhils. Of those, 9 are in Political Science (including politics and government), 4 are in Philosophy, 3 each are in History and Economics, and 1 each are from Classics, English, Environmental Studies, International Relations, Law, Molecular Biology, Policy Analysis, and Social Policy. There are also five candidates with SJD, bringing the total number of advanced doctorates to 34 (there is one candidate with both an SJD & a PhD). The numbers are based on my complete data set, which includes some candidates whose placement is not yet public. Here are the reports & rumours to date:
    Akron
      Sarah Cravens, JD Washington & Lee, Mphil Cambridge (Classics)
      Richard Lavoie, JD Cornell, LLM NYU (Tax)
      Stefan Padfield, JD Kansas
    Alabama
      Michael Pardo, JD Northwestern
    American University
      Lynda Dodd, JD Yale, PhD Princeton (Political Science)
    Arizona
      Darian Ibrahim, JD Cornell
      Barak Orbach, LLB Tel Aviv, SJD Harvard
    Arkansas-Little Rock
      New: Sharon Reece, JD Hofstra, LLM NYU
      New: Robert Steinbuch, Columbia, MA Penn (Political Science)
    Barry University
      D. Aaron Lacy, JD Florida, LLM American
    Berkeley
      New: Ken Bamberger, JD Harvard
      Newest: Erin Murphy, JD Harvard
    Brooklyn
      Chris Serkin, JD Michigan
    Cardozo
      Rick Bierschbach, JD Michigan
      Eric Pan, JD Harvard, MSc Edinburgh (European and International Politics)
      Julie Suk, JD Yale, DPhil Oxford (political science-politics)
    Catholic
      New: Heather Elliott, JD Berkeley, MPhil Yale (Political Science)
    Chapman
      Newest: Ernesto Hernandez, JD George Washington, LLM Georgetown
      Newest: Henry Noyes, JD Indiana-Bloomington
      Newest: Lawrence Rosenthal, JD Harvard
    Charleston
      John Simkins, JD Duke, LLM Duke (International & Comparative)
    Chicago
      New: Jacob Gersen, JD Chicago, PhD Chicago (Political Science)
      Todd Henderson, JD Chicago
      New: Tom Miles, JD Harvard, PhD Chicago (Economics)
    Chicago-Kent
      New: Bernadette Atuahene, JD Yale, MPP Harvard
    Cincinnati
      New: No entry level hires
    Colorado
      Miranda Perry, JD Chicago, LLM NYU (Tax) Laura Spitz, JD British Columbia, LLM Cornell
    Columbia
      New: Elizabeth Emens, JD Yale, PhD Cambridge (English)
    Cornell
      New: No entry level hiring
    Denver
      Michael Mireles, JD McGeorge, LLM George Washington (Intellectual Property)
      Viva Moffat, JD Virginia, MA Virginia (History)
    Drake
      Ellen Yee, JD Minnesota
    Emory
      Newest: No entry level hiring
    Florida
      Andrea Matwyshyn, JD Northwestern, PhD Northwestern (Social Policy)
      Lee-ford Tritt, JD NYU, LLM NYU (Tax)
    Florida International
      Hannibal Travis, JD Harvard
    Florida State
      Dan Markel, JD Harvard, MPhil Cambridge (Political Science)
    Fordham
      Youngjae Lee, JD Harvard
      John Pfaff, JD Chicago, PhD (candidate)Chicago (Economics)
    George Washington
      Roger Fairfax, JD Harvard, MA University of London (History)
    Georgetown
      New: Greg Klass, JD Yale, PhD New School (Philosophy)
    Georgia
      Bobby Bartlett, JD Harvard
      John Neiman, JD Harvard
      Jason Solomon, JD Columbia
    Golden Gate
      New: Eric Christiansen, JD NYU, MA Chicago (Religious Studies)
    Hastings
      Ethan Leib, JD Yale, PhD Yale (Political Science)
    Harvard
      New: Adriaan Lanni, JD Yale, PhD Michigan (Classics)
      New: Jed Shugerman, JD Yale, PhD (Candidate) Yale (History)
    Hofstra
      Bennett Capers, JD Columbia.
    Howard
      Aderson Francois, JD NYU
    Illinois
      Ekow Yankah, JD Columbia, BCL Oxford
    Iowa
      Katherine Porter, JD Harvard
    Indiana, Bloomington
      Joshua Fairfiled, JD Chicago
    Indiana, Indianapolis
      Newest: No entry level hiring
    Kansas
      Andrew Torrance, JD, Harvard, PhD Harvard (Biology)
    Kentucky
      Newest: Nicole Huberfeld, JD Seton Hall
    Lewis & Clark
      Juliet Stumpf, JD Georgetown
    Louisiana State University
      New: LeeAnn Lockridge, JD Duke
    Loyola-Chicago
      John Bronsteen, JD Yale
    Loyola-LA
      Lee Petherbridge, JD Penn, PhD, Baylor (Molecular Biology)
      Kimberly West-Faulcon, JD Yale
    Marquette
      No entry level hires
    Maryland
      Kelly Casey, JD Georgia
    Miami
      Stephen Vladeck, JD Yale
    Michigan
      Gil Seinfeld, JD Harvard
    Michigan State
      No entry-level hires
    Minnesota
      Allan Erbsen, JD Harvard
      William McGeveran, JD NYU
    Missouri-Columbia
      Newest: Rigel Oliveri, JD Stanford
    Mississippi College
      Michael McCann, JD Virginia, LLM (Candidate) Harvard
    Nebraska
      New: Susan Franck, JD Minnesota, LLM University of London
    Nevada
      Michael Guttentag, JD Yale, PhD (candidate)RAND (Policy Analysis)
    New England
      Victor Hansen, JD Lewis & Clark, LLM JAG School (Military Law)
    New York Law School
      Newest: No entry level hiring
    New York University
      New: Oren Bar-Gill, LLB Tel Aviv, PhD Tel Aviv (Economics), SJD Harvard
    North Carolina
      Newest: No entry level hiring
    North Dakota
      Kirsten Dauphinais, JD Columbia
      Wenona Singel, JD Harvard
      Douglas Smith, JD Texas
    Northern Illinois
      Newest: No entry level hires
    Notre Dame
      Alejandro Camacho, JD Harvard
      Lloyd Mayer, JD Yale
      O. Carter Snead, JD Georgetown
    Ohio State
      Michelle Alexander, JD Stanford
    Oklahoma City
      Marc Blitz, JD Chicago, PhD Chicago (Political Science)
      Newest: Carla Spivack, JD NYU, PhD (candidate) Boston College (English).
    Penn
      Bill Burke-White, JD Harvard, PhD Cambridge (International Relations)
    Quinnipiac
      Jeffrey A. Meyer, JD Yale
    Pepperdine
      No entry level hires
    Richmond
      Shari Motro, JD NYU
    Roger Williams
      Jared Goldstein, JD Michigan
      Timothy Kuhner, JD Duke, LLM Duke
    Rutgers-Camden
      Arthur Laby, JD Boston University
      Damon Smith, J.D. Harvard, MUP Illinois Urbana/Champaign (Urban Planning)
    Rutgers-Newawrk
      Anna Gelpern, JD Harvard, MSc London School of Economics (Anthropology)
    Samford
      Alyssa DiRusso, JD Texas
    St. John's
      Nelson Tebbe, JD Yale, MA Chicago (Religious Studies)
    St. Louis University
      Eric Miller, BL Edinburgh, DPhil (candidate) Oxford (Law)
      Kerry Ryan, JD Tulane, LLM Florida (Tax)
      Ann Scarlett, JD Kansas
    St Thomas (Miami)
      John Kang, JD UCLA, PhD (ABD) Michigan (Political Science)
    Santa Clara
      Angelo Ancheta, JD UCLA, MPA Harvard
      Lia Epperson, JD Stanford
    Seattle
      New: Joaquin Avila, JD Harvard
      New: Russell Powell, JD Virginia, MA Loyola-Chicago (Philosophy)
    Seton Hall
      No entry level hiring
    South Carolina
      Jacqueline Fox, JD Georgetown, LLM Georgetown
      Thomas Crocker, JD Yale, Ph.D. Vanderbilt (Philosophy)
    South Texas
      Geoffrey Corn, JD George Washington, LLM JAG School
      New: Adam Gershowitz, JD Virginia
    Southern Methodist
      Joshua Tate, JD Yale, PhD (candidate) Yale (History)
    Southwestern
      Byron Stier, JD Harvard
      Sung Hui Kim, JD Harvard
    Stanford
      New: No entry level hiring
    Suffolk
      Patrick Shin, JD Harvard, PhD (candidate) Harvard (Philosophy)
    Syracuse
      Rakesh Anand, JD Yale
      Jeremy Blumenthal, JD Penn, PhD Harvard (Psychology)
      Nina Kohn, JD Harvard
      Kevin Maillard, JD Penn, PhD Michigan (Political Science)
      Jenny Roberts, JD NYU
    Temple
      N. Jeremi Duru, JD Harvard, MPP Harvard
      Andrea Monroe, JD Michigan, LLM NYU (Tax)
    Tennessee
      New: Iris Goodwin, JD NYU
      Jennifer Hendricks, JD Harvard
      Mae Quinn, JD Texas, LLM Georgetown (Advocacy)
    Texas
      Emily Kadens, JD Chicago, PhD Princeton (History)
      Jens Dammann, DrJur Frankfurt, SJD Yale
    Texas Tech
      Michael Hatfield, JD, NYU, MA Texas A&M (Philosophy)
    Thomas Jefferson Law School
      Ben Templin, JD Berkeley
      Kaimipono Wenger (J.D., Columbia)
    Toledo
      Newest: No entry level hires
    Touro
      Newest: Fabio Arcila Jr., JD Berkeley
    Tulane
      Kristin Avery, JD Columbia
      Gabriel Feldman, JD Duke
      New: Tania Tetlow, JD Harvard
    University of San Diego
      New: Orly Lobel, LLB Tel Aviv, SJD Harvard
      Lesley McAllister, JD Stanford, PhD Berkeley (Environmental Studies)
    University of San Francisco
      Maya Manian, JD Harvard
    University of Mississippi
      New: No entry level hiring
    UC Davis
      No entry level hiring
    UCLA
      Newest: No entry level hiring
    USC
      New: Kareem Crayton, JD Stanford, PhD Stanford (Political Science)
      James Spindler, Harvard JD
    Utah
      New: Hilary Green, JD Yale
      Alice Ristroph, JD Harvard, PhD Harvard (Political Science)
    Vanderbilt
      Newest: No entry level hires
    Vermont
      Faith Rivers, JD Harvard
    Villanova
      New: Robert MIller, JD Yale, PhD Columbia (Philosophy)
    Virginia
      Kerry Abrams, JD Stanford
      Michal Barzuza, LLB Tel Aviv, SJD Harvard
      New: Michael Doran, JD Yale
      Brandon Garrett, JD Columbia
      Newest: Chris Sprigman, JD Chicago
    Wake Forest
      New: No entry level hiring
    Washburn
      William Merkel, JD Columbia, D. Phil (Candidate) Oxford (field?)
      Peter Reilly, JD Harvard, LLM Georgetown
    Washington & Lee
      David Zaring, JD Harvard
    Washington University
      New: Jennifer Rothman, JD UCLA, MFA USC (Film & Television)
    Wayne State
      Noah Hall, JD Michigan
      Jocelyn Benson, JD Harvard
    Western New England
      Barbara Noah, JD Harvard
      Jill Anderson, JD Columbia
    Western State-Fullerton
      Newest: Mitchell Keiter, JD UCLA
    Widener-Harrisburg
      New: Jill Family, JD Rutgers-Camden
    William & Mary
      Laura A. Heymann, JD Berkeley
    Whittier
      Seval Yildirim, JD NYU, LLM NYU
    Willamette
      Paul Diller, JD Michigan
    Wisconsin
      Allison Christians, JD Columbia, LLM NYU (Tax)
    Yale
      New: No entry level hiring
    Rumours?
      And can anyone verify the following: Syracuse
        Juscelino F. Colares (Ph.D./M.A. Political Economy, Tennessee-Knoxville; J.D. Cornell)

Posted by Lawrence Solum at 4/26/2005 12:34:00 PM

 
Feibelman on the Social Insurance Function of Consumer Bankruptcy Adam Feibelman (University of North Carolina) has posted Defining the Social Insurance Function of Consumer Bankruptcy on SSRN. Here is the abstract:
    Bankruptcy scholars generally agree that consumer bankruptcy functions, at least in part, as a form of social insurance. It does so by allowing individuals to discharge unsecured debts that they incur and cannot pay as a result of the occurrence of one or more particular events or circumstances. Available data suggest that the consumer bankruptcy system primarily insures individuals against the effects of unemployment, illness, disability, and marital dissolution. But other regimes - unemployment insurance, workers' compensation, Medicare, spousal support laws, etc. - insure individuals against these circumstances as well. To the extent that legal scholars have considered the relationship between bankruptcy and these other programs, they have tended to assume that bankruptcy filings reflect failures of other social insurance programs, "gaps" in the social safety net. It is reasonable to believe, however, that an optimal social insurance system would allocate significant functions to bankruptcy. This Article frames basic questions that must be resolved in determining the optimal role of bankruptcy within the American social insurance system. By way of illustration, it compares the wage insurance functions of bankruptcy and unemployment insurance with respect to administrative costs, co-insurance costs, moral hazard, and effects on labor and credit markets. It also considers potential policy implications of such a comparison. These include changing the scope of benefits and/or eligibility under non-bankruptcy programs and altering the exemption rules that operate in bankruptcy. Resolving such normative questions about the relationship between bankruptcy and other social insurance programs is an essential step in evaluating the significance of current bankruptcy rates and the desirability of recent bankruptcy reforms.
I just finished this very interesting piece which deals with fundamental questions about the function of consumer bankruptcy law. Recommended.

Posted by Lawrence Solum at 4/26/2005 07:30:00 AM

 
Tuesday Calendar
    Oxford Jurisprudence Discussion Group: Tony Coady, Morality and Private Warriors.
    Georgetown Law School: Marks (Greenwald Fellow).
    University of Illinois College of Law: Todd Allee, Dept. of Political Science, UIUC.
    Lewis & Clark Law School: Craig Johnston.
    Oxford Taxation Law: Professor Malcolm Gammie QC, A European Corporation Tax.
    Vanderbilt University School of Law: Stefanie Lindquist, Vanderbilt Political Science Department and Law School.

Posted by Lawrence Solum at 4/26/2005 05:20:00 AM

 
Articles for Sale on Amazon.com Paul Caron has a post on the very recent phenomenon of Amazon.com posting law review articles for sale. (Also, see Orin Kerr and Larry Ribstein.) I'm not sure this phenomenon is really very interesting--because I doubt there will be many sales. Will anyone pay $5.95 plus shipping for this?
Update: See also this post by Stuart Levine.

Posted by Lawrence Solum at 4/26/2005 05:13:00 AM

 
Hasen on the Nuclear Option Election-law superblogger Rick Hasen has a Roll Call editorial titled "Hate the Filibuster? You Might Want to Nuke the Entire Senate". Here is a taste:
    Democrats in the Senate have used the power of the filibuster to block from office the 10 most ideologically extreme of President Bush’s nominees for federal judgeships, while approving a vast majority of his nominees. In response, some Republicans have threatened to change the filibuster rules in the name of “majority rule,” and Democrats have countered by saying they will grind the chamber’s business to a halt if the GOP eliminates the filibuster on judicial nominations. Some Democrats have argued that Republican appeals to majority rule are hypocritical: If Republicans really subscribed to majority rule principles, the argument goes, they would support a constitutional amendment to abolish the Senate itself. Actually, we should take the question of abolishing the Senate more seriously — not because it proves Republican hypocrisy, but because it helps us to understand the value of the filibuster. It turns out that the reason Americans would likely oppose abolishing the Senate — because it allows an intense minority to have its opinion taken into account — applies equally to the filibuster.
The question whether we should have a Senate is a good one--especially since the abolition of the selection of Senators by state legislatures. But I think Hasen has fundamentally misconceived the point of the debate about the filibuster of judicial nominees in the Senate--which is, at bottom, about the norms of the Senate itself. No one doubts that a Senator may delay consideration of a nominee for judicial office (or executive office) by use of the filibuster. When the filibuster serves the deliberative role of forcing further debate and deliberation, it is in the spirit of the Senate rules and the function of the Senate as the "cooling saucer." The issue concerns the use of the filibuster to prevent the Senate from giving advice and consent at all--a contravention of the constitutional duty of the senate to provide advice to the President. When a filibuster is continued to the end of a term, it effectively avoids that responsibility acting as a de facto but not de jure supermajority rule for confirmation. The history is complicated, but there is a powerful argument that the use of the filibuster in this way contravenes the norms of the Senate. Of course, both Republicans and Democrats have used other tools to defeat and delay nominations--for example, Republicans bottled up many of Clinton's nominations in Committee. In my opinion, that action contravened the Senate's constitutional duty, but it was clearly permitted by the norms of the Senate itself. It is the extension of the filibuster through the end of a term that is at issue, and the issue is whether this action violates Senate norms and hence is properly the object of the so-called "nuclear option"--the use of the Byrd technique to cut off debate via a ruling from the chair. This is not a debate about how our legislature should be designed as a matter of ideal theory. Read Hasen's excellent piece!
And on the same topic, the Senate Republican Policy Committee has released a new policy paper, The Constitutional Option: The Senate's Power to Make Procedural Rules by Majority Vote.
Update: And I also recommend this post and this post by Paul Horwitz over at PrawfsBlog.
And Hasen responds here.

Posted by Lawrence Solum at 4/26/2005 04:53:00 AM

 
Bar-Gill on Pricing Legal Options Oren Bar-Gill (New York University - School of Law) has posted Pricing Legal Options: A Behavioral Perspective on SSRN. Here is the abstract:
    Many legal rules can be interpreted as creating options. Option pricing is thus important for understanding the ex ante effects of these rules. And, recognizing that individuals, whose behavior the law aims to influence, are imperfectly rational, a behavioral option pricing model is a potentially helpful tool for legal policy. This paper develops such a model and applies it to a series of legal problems in tort law, contract law, corporate law and criminal law.

Posted by Lawrence Solum at 4/26/2005 04:32:00 AM

 
Conference Announcement: Metaphysics of Value
    The Metaphysics of Value Centre for Metaphysics and Mind School of Philosophy University of Leeds Saturday 14th May, 2005 A one-day workshop with Jay Wallace, Ralph Wedgwood, Jimmy Lenman and Ulrike Heuer. Registration (includes coffee, tea and lunch): £10 standard and £5 for students For further enquiries or to register contact Andrew McGonigal, School of Philosophy, University of Leeds, LS2 9JT or notify him via e-mail at: a.mcgonigal@leeds.ac.uk

Posted by Lawrence Solum at 4/26/2005 04:30:00 AM

Monday, April 25, 2005
 
Monday Calendar
    Columbia Law & Economics: John J. Donohue, Yale Law School, "The Costs of Wrongful-Discharge Laws" (authored with David H. Autor and Stewart J. Schwab):
      This paper provides empirical estimates of the effects on employment and wages of wrongful-discharge protections adopted by state courts across the United States during the last three decades. We find robust evidence that one wrongful-discharge doctrine, the implied-contract exception, reduced state employment rates by 0.8 to 1.6 percent. The initial impact is largest for female, younger, and less-educated workers - those who change jobs frequently - while the longer-term effect is greater for older and more-educated workers - those most likely to litigate. By contrast, we find no robust employment or wage effects of two other widely recognized wrongful-discharge laws: the public-policy and good-faith exceptions.
    UCLA Law School: Randall Thomas, Vanderbilt Law School, "Reassessing the Lead Plaintiff Provision: Is the Experiment Paying Off?"
    University of Texas School of Law: Michael Heise, Cornell, "Judge, Juries, and Punitive Damages: Empirical Analyses" (with Ted Eisenberg)":
      We analyze thousands of trials from a substantial fraction of the nation’s most populous counties. Evidence across ten years and three major datasets suggests that: (1) juries and judges award punitive damages in approximately the same ratio to compensatory damages, (2) the level of punitive damages awards has not increased, and (3) juries’ and judges’ tendencies to award punitive damages differ in bodily injury and no-bodily injury cases. Jury trials are associated with a greater rate of punitive damages awards in financial injury cases. Judge trials are associated with a greater rate of punitive damages awards in bodily injury cases.

Posted by Lawrence Solum at 4/25/2005 03:52:00 AM

 
Bar-Gill & Parchomovsky on IP & the Boundaries of the Firm Oren Bar-Gill and Gideon Parchomovsky (New York University - School of Law and University of Pennsylvania Law School) have posted Intellectual Property Law and the Boundaries of the Firm on SSRN. Here is the abstract:
    Arrow's disclosure paradox implies that information that is not afforded legal protection cannot be bought or sold on the market. This paper emphasizes the important relationship between the paradox of disclosure and the boundaries of the firm question. Only legally protected inventions, i.e., patented inventions, may be traded; pre-patent stages of the innovation process may not. Consequently, by force of law, rather than by the guidance of economic principle, pre-patent innovation must be carried out within the boundaries of a single firm.

Posted by Lawrence Solum at 4/25/2005 03:34:00 AM

 
Yu on on the Information Ecosystem Peter K. Yu (Michigan State University College of Law) has posted Intellectual Property and the Information Ecosystem (Michigan State Law Review, Vol. 2005, pp.1-20, Spring 2005) on SSRN. Here is the abstract:
    This short essay proceeds in two parts. The first part examines the controversy surrounding the use of the term intellectual property. It discusses the common criticisms of the term's usage, including those articulated by Richard Stallman. It also challenges the myth that intellectual property did not acquire any property attributes until the establishment of the World Intellectual Property Organization. The essay suggests that the term may remain in common usage despite its uneasy analogy to real property, and a more nuanced understanding of property law may alleviate some of the problems caused by using the term. The second part focuses on the need for a new conceptual framework to reframe the intellectual property debate. This part articulates three reasons why the information ecosystem would provide such a framework. First, it reminds policymakers and commentators of the problems of the current bipolar intellectual property debate. Second, it highlights the different components of the intellectual property system and the interactions among these components. Third, it underscores the need to take a holistic perspective and consider intellectual property laws and policies as one of the many components of a larger information ecosystem.

Posted by Lawrence Solum at 4/25/2005 03:30:00 AM

 
Richamn on Salerno Daniel C. Richman (Fordham University School of Law) has posted The Story of United States v. Salerno: The Constitutionality of Regulatory Detention (CRIMINAL PROCEDURE STORIES, Carol Steiker, ed., Foundation Press Law Stories Series, 2005) on SSRN. Here is the abstract:
    Is it constitutional for the government to lock up people without waiting to convict them at trial? If it is, what are the limits on the government's power to lock up anyone it deems dangerous? These are issues raised by preventive detention provisions in bail statutes, and addressed in United States v. Salerno. The controversy about these bail statutes, once so hotly contested, has died down. But the broader questions about the government's power to detain suspected criminals without giving them the benefit of full criminal process remain unresolved, and have taken on a new urgency as the nation confronts the threat of more terrorist attacks. This essay, intended as a chapter in the Criminal Procedure Stories volume, explores the story of Salerno and of the doctrinal analysis that emerged from it.

Posted by Lawrence Solum at 4/25/2005 03:29:00 AM

Sunday, April 24, 2005
 
Legal Theory Calendar
    Monday, April 25
      Columbia Law & Economics: John J. Donohue, Yale Law School, "The Costs of Wrongful-Discharge Laws" (authored with David H. Autor and Stewart J. Schwab):
        This paper provides empirical estimates of the effects on employment and wages of wrongful-discharge protections adopted by state courts across the United States during the last three decades. We find robust evidence that one wrongful-discharge doctrine, the implied-contract exception, reduced state employment rates by 0.8 to 1.6 percent. The initial impact is largest for female, younger, and less-educated workers - those who change jobs frequently - while the longer-term effect is greater for older and more-educated workers - those most likely to litigate. By contrast, we find no robust employment or wage effects of two other widely recognized wrongful-discharge laws: the public-policy and good-faith exceptions.
      UCLA Law School: Randall Thomas, Vanderbilt Law School, "Reassessing the Lead Plaintiff Provision: Is the Experiment Paying Off?"
      University of Texas School of Law: Michael Heise, Cornell, "Judge, Juries, and Punitive Damages: Empirical Analyses" (with Ted Eisenberg)":
        We analyze thousands of trials from a substantial fraction of the nation’s most populous counties. Evidence across ten years and three major datasets suggests that: (1) juries and judges award punitive damages in approximately the same ratio to compensatory damages, (2) the level of punitive damages awards has not increased, and (3) juries’ and judges’ tendencies to award punitive damages differ in bodily injury and no-bodily injury cases. Jury trials are associated with a greater rate of punitive damages awards in financial injury cases. Judge trials are associated with a greater rate of punitive damages awards in bodily injury cases.
    Tuesday, April 26
      Oxford Jurisprudence Discussion Group: Tony Coady, Morality and Private Warriors.
      Georgetown Law School: Marks (Greenwald Fellow).
      University of Illinois College of Law: Todd Allee, Dept. of Political Science, UIUC.
      Lewis & Clark Law School: Craig Johnston.
      Oxford Taxation Law: Professor Malcolm Gammie QC, A European Corporation Tax.
      Vanderbilt University School of Law: Stefanie Lindquist, Vanderbilt Political Science Department and Law School.
    Wednesday, April 27
    Thursday, April 28
      Yale Legal Theory Workshop: Jennifer Nedelsky, University of Toronto (Law), "Legislative Judgment And The Enlarged Mentality: Taking Religious Perspectives":
        Hannah Arendt outlined a preliminary theory of judgment in her lectures at the New school and in various essays. But she did not live to write the volume she had planned on judgment as the final volume to her work on thinking and willing1. In my earlier work, I have built upon her theory of judgment, primarily by looking at its implications for judgment in the judicial context2. Here, I return to her own primary interest, political judgment. In this essay, I look at the importance of judgment for two of the central functions of the legislature in a constitutional state: the legislature as a locus of collective deliberation about the common good and the legislature as a participant in the ongoing, dynamic, and contested definition of core constitutional values. These functions are, in turn, linked to a third issue: the link between the ordinary practices of citizens and what we can hope for from a legislature.
        The central concept in Arendt’s theory, which she borrowed from Kant, is the enlarged mentality. Briefly put, what distinguishes judgment from both subjective preference and provable truth claims, is that judgment involves reflection on the question at hand from the standpoint or perspective of others. Judgment as such remains subjective, it cannot compel the assent of others as truth claims can. But it can claim validity with respect to other judging subjects. It is the use of the enlarged mentality, the consideration of others’ perspectives, that makes this validity possible. It is this exercise that distinguishes mere private opinion from valid judgment.
      Fordham University School of Law: Sean J. Griffith, Associate Professor of Law, University of Connecticut School of Law, Visiting Associate Professor of Law, University of Pennsylvania School of Law (2004-05), "Good Faith Business Judgment: a Theory of Rhetoric in Corporate Law Jurisprudence":
        This Article develops a theory of rhetoric in corporate law jurisprudence. It begins by examining a recent innovation in Delaware case-law: the emerging principle of “good faith.” Good faith is an old notion in law generally, but it offers to bring significant change to corporate law, including realignment of the business judgment rule and a shift in the traditional balance between the authority of boards and the accountability of boards to courts. The Article argues, however, that good faith functions as a rhetorical device rather than a substantive standard. That is, it operates as a speech-act, a performance, as opposed to a careful method of analysis. To explain the sudden appearance of good faith, this Article articulates a model of corporate law rhetoric. Courts invent rhetorical devices to loosen corporate law doctrine and increase judicial review of board decision-making in response to scandals and other extra-legal pressures operating upon the judiciary. These pressures stem largely from the twin threats of corporate migration and federal preemption, both of which imperil the primacy of the Delaware judiciary as a corporate law-maker. In periods of crisis and scandal, the judiciary employs rhetorical devices to reduce these pressures, typically with the effect of increasing board accountability, only to return, once the pressure recedes, to a position of board deference. After finding several examples of this pattern in corporate law history, this Article argues, ultimately, that regular movement back and forth along the authority/ accountability spectrum is an essential feature of corporate law jurisprudence and that understanding the rhetorical devices that permit this movement is necessary to complete any account of what corporate law is and how it works.
      Georgetown Workshop on Transnational Legal Issues: Marc Spindelman, "Homosexuality’s Horizon"
      University of Texas, School of Law: David Blight, Yale University, Department of History, "Healing or Justice: Has Civil War Memory Divided or Unified America?"
    Friday, April 29
      Derek Jinks, U. of Arizona School of Law, "Reciprocity and the Laws of War".
      University of Texas, School of Law: David Blight, Yale University, Department of History, "The Theft of Lincoln in Scholarship and in Public Memory".
      Vanderbilt Legal Theory Workshop: David Dana, Northwestern University Law School, "Adequacy of Representation after Stephenson".
      Northwestern University School of Law: Law and Positive Political Theory Conference: Legal Doctrine and Political Control, Day 1
        10:00–11:45am, Session 1
          • Charles Cameron and Lewis Kornhauser, “A Team Model of Appellate Law Creation” • Paul Rubin, Hugo Mialon, and Joel Schrag, “Judicial Hierarchies and the Rule-Individual Tradeoff.” • Tonja Jacobi and Emerson Tiller, “Legal Doctrine and Political Control.” Discussants: Eric Posner Rui de Figueiredo Mathew McCubbins
        1:15-3:00pm, Session 2
          • Lee Epstein, Charles Cameron, Andrew Martin, and Jeff Segal, “Strategic Defiance of the U.S. Supreme Court” • Tracey George and Jeffrey Berger, "From Defense to Offense: A Revised Strategic Account of Appellate Judging" • Joseph Smith, “Distributing Power by Deciding Cases: Explaining Supreme Court Deference to Administrative Action” Discussants: John de Figueiredo Christopher Zorn Max Schanzenbach
        3:30pm-4:45pm, Session 3
          • Eric Talley, “Equilibrium Expectations and Legal Doctrine” • Jide Nzelibe, “A Positive Theory of the War Powers Constitution” Discussants: Lewis Kornhauser John McGinnis
    Saturday, April 30
      Northwestern University School of Law: Law and Positive Political Theory Conference: Legal Doctrine and Political Control, Day 2
        9am-10:15am, Session 4
          • Mathew McCubbins, Daniel Rodriguez, Cheryl Boudreau and Arthur Lupia “Communication and Interpretation” • Pablo Spiller, Matias Iaryczower and Mariano Tommasi “Judicial Lobbying” Discussants: Matthew Spitzer Andrew Martin
        10:45-11:30am, Session 5
          •Roundtable Discussion: The Future of Law and Positive Political Theory (Daniel Rodriguez)

Posted by Lawrence Solum at 4/24/2005 08:50:00 AM

 
Legal Theory Lexicon: The Internal Point of View
    Introduction How can we look at a legal system? H.L.A. Hart famously deployed the distinction between external and internal perspectives on a legal system in his famous book, The Concept of Law. This post provides a very brief introduction to this distinction for law students (especially first-year law students) with an interest in legal theory.
    Internal and External What is the difference between internal and external perspectives on the law? Obviously, we are dealing with a metaphor here. The idea is that one can look at the law from the inside or from the outside. Even if you have never encountered this distinction before, the intuitive idea of the metaphor is fairly clear. The internal point of view is the perspective of participants in the system--those who accept the authority of law. Thus, the internal point of view is paradigmatically the point of view of legal officials (such a judges). The external point of view is the perspective of outsiders. Thus, the external point of view is paradigmatically the point of view of a sociologist or anthropologist from a different culture, who observes the legal system.
    Here are some examples:
      --Doctrinal theories (e.g. a theory of the Commerce Clause of the United States Constitution) are usually stated from the internal point of view. This is the kind of theory that law students usually encounter early in their legal education.
      --Causal theories (e.g. a public-choice theory that explains why a particular area of law has come to be the way it is) are usually stated from the external point of view. In first-year law school courses, causal theories are usually stated in a very compact, even off-hand form. There may be a brief classroom discussion of the causal forces that shaped a particular legal doctrine, but it is fairly rare actually to read social science literature on topics like this.
    The General Significance of the Internal Point of View The idea of the internal point of view plays a particular role in H.L.A. Hart's theory of law, but this post is about a related but distinct topic--the more general role that the internal/external distinction plays in legal theory. Newbie legal theorists need to know this distinction in order to avoid a very serious mistake in theory development. That mistake is to slide between the internal and external point of view. This mistake is actually quite easy to make. The theorist is working within the internal point of view--describing a particular legal doctrine from the point of view of lawyers and judges who work within the constraints of the doctrine. Then, the theorist slides into an explanation as to how the law came to be the way it is--describing the operation of political or economic pressures--and then slides back to the doctrinal level--drawing the conclusion that the law should be interpreted differently in light of the causal explanation. Arguments like this can be made to work, but unless the relationship between the causal explanation and the doctrinal consequence is explained carefully, this kind of move can easily involve a category mistake. Causal explanations (of how the law has come to be the way it is) are usually irrelevant from the internal point of view.
    Rules and the Internal Point of View The internal point of view may have additional significance to legal theorists. One can argue that legal rules cannot be described from a purely external point of view. Huh? Imagine that you are an anthropologist from Mars, observing an earthly legal system. You would be able to note various regularities in behavior, but so long as you stuck to the purely external point of view, you would not be able to say anything about the content of the laws. In order to do that, you would need to ask the question "What is the meaning of the these legal texts and actions?" And to say anything about meaning, you would need to assume (at least hypothetically) something like the internal point of view. You would need to ask the question, "What does these behaviors are markings mean to those who are inside the practice of law?"
    If this argument is correct, then important consequences follow. Legal theorists are interested in legal theory. If the internal point of view is a necessary prerequisite for understanding the legal significance of the behavior of legal actors, then it would seem to follow that all legal theory requires that the theorist be able to assume the internal point of view at the stage where the theorist describes the legal phenomenon that are the object of study.
    Let me give an example of this rather abstract point. Suppose you want to develop a causal theory of tort law. You want to argue that there is an economic explanation of the emergence of negligence (as opposed to strict liability) as the primary standard of care in tort. The details of the theory don't matter, but let's assume you believe that inefficient legal standards create incentives for litigation and that a quasi-evolutionary process leads to the selection of efficient standards. And of course, you would need to argue that negligence is efficient. This theory is primarily stated from the external point of view, but it also relies on the legal meaning of the distinction between "negligence" and "strict liability"--concepts that can only be understood from the legal point of view.
    The central idea here is that the external point of view can describe the behavior of legal actors, but the internal point of view is required to understand the meaning of legal actions.
    Conclusion The distinction between the internal and external point of views is one of the basic ideas in legal theory. When you first begin to construct theories about the law, you should ask yourself, "Am I looking at this area of the law from the internal point of view or am I taking a perspective that is external to the law?" For more on theory construction, you might also want to look at an earlier post in the Legal Theory Lexicon series: Legal Theory Lexicon 016: Positive and Normative Legal Theories

Posted by Lawrence Solum at 4/24/2005 05:06:00 AM

Saturday, April 23, 2005
 
The Legal Theory Bookworm The Legal Theory Bookworm recommends The Supreme Court and the Attitudinal Model Revisited and the earlier The Supreme Court and the Attitudinal Model by Jeffrey A. Segal & Harold J. Spaeth. This work is absolutely essential--especially for constitutional theorists trained in law who are unfamiliar with this important work. Here is a blurb:
    Authored by two leading scholars of the Supreme Court and its policy making, this study systematically presents and validates the use of the attitudinal model to explain and predict Supreme Court decision making. In the process, it critiques the two major alternative models of Supreme Court decision making and their major variants--the legal and rational choice. Using the U.S. Supreme Court Data Base, the justices' private papers, and other sources of information, the book analyzes the appointment process, certiorari, the decision on the merits, opinion assignments, and the formation of opinion coalitions.

Posted by Lawrence Solum at 4/23/2005 06:39:00 AM

 
Download of the Week The Download of the Week is A New Understanding of Tax (Michigan Law Review, 2005). Here is the abstract:
    The traditional understanding of broad-based tax systems contrasts an income tax with all forms of a consumption tax. The income tax, alone, includes the yield to capital in its base; consumption taxes do not. Simple financial analysis demonstrates the equivalence of the two most common classes of consumption taxation - prepaid, or wage-based, and postpaid, or sales taxes - under certain assumptions, most importantly including constant tax and interest rates between the periods in the model. Advocates of redistributive taxes insist on both progressive rates and an income base, in large part to tax the yield to capital; opponents clamor for flat-rate consumption taxes, often invoking Mill's celebrated argument against the income tax's "double taxation" of savings to support their case. Once progressivity is presumed, however - as its enduring popular appeal suggests it ought be - the traditional understanding is flawed. Asking a different timing question, "when, in a taxpayer's flow of funds, ought progressive taxes be imposed?," casts tax systems in a new light. The present tax system emerges as an onerous wage-based one. A progressive cash-flow consumption tax, in contrast, emerges as the best - most consistent and principled - tax on the yield to capital, under just the conditions in which it is fair and appropriate to tax such yield. This gives a further reason to support a progressive cash-flow consumption tax, sounding in reasons familiar to income tax supporters. A consistent, progressive cash-flow consumption tax will lower the burden of taxation when capital transactions (borrowing, saving, and investing) are used to smooth labor earnings within or between lifetimes (or taxpayers), and will increase the burden of taxation when capital transactions are used to enhance labor earnings within or between lifetimes (or taxpayers). Critical reflection based on a near century of experience reveals such a tax to give form to attractive normative ideals. The new understanding helps to show that the traditional and most common arguments for consumption taxation are not compelling. The best, most appealing case for a consumption tax does not rest on "horizontal equity" models, nor on claims about the economic, consequentialist importance of savings on an individual or an aggregate social level. Rather it is claims of fairness, in a social contractarian sense in the manner of John Rawls and other liberal theorists, that argue for a properly designed consumption tax - in part precisely because of the way such a tax sometimes but not always burdens capital and its yield, and in greater part because such a tax points the way towards greater, more meaningful progressivity in tax. The new understanding of tax yields important insights into pressingly practical matters of tax policy and design, and opens up an important window to critique contemporary trends in tax reform. The battle in tax policy should not be over income versus consumption taxation - as it has been for centuries - but rather over what kind of consumption tax to choose. Failure to address this question head-on has led tax policy to move, seemingly inexorably, towards the wrong choice, with the fate of progressive, redistributive taxation hanging in the balance.
Download it while it's hot! May I also recommend The Future of Copyright (by your blogger) as well as The Rise and Fall of Textualism by Jonathan Molot and Overcriminalization, Discretion, Waiver: A Survey of Possible Exit Strategies by Don Dripps.

Posted by Lawrence Solum at 4/23/2005 06:27:00 AM

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