Legal Theory Blog

All the theory that fits!


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

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Friday, September 30, 2005
Friday Calendar
    University of Georgia Law: Sean J. Griffith (University of Connecticut) – Unleashing a Gatekeeper.
    Vanderbilt Law: Andrew Martin, Washington University in St. Louis Political Science, "The Median Justice on the U.S. Supreme Court, and Some Thoughts on the Roberts Court"
    Villanova Law: Teemu Ruskola, American University, Washington College of Law, "Canton Is Not Boston: The Invention of American Imperial Sovereignty in the Nineteenth Century"
    Yale Law, Economics, and Organizations: Professor Lawrence Katz, Harvard, Economics with Professor Jeffrey Kling, Princeton, Economics, Experimental Analysis of Neighborhood Effects.

Call for Proposals: MPSA 2006
    CALL FOR PROPOSALS MPSA 64th Annual National Conference Thursday, April 20th through Sunday, April 23rd, 2006 Chicago Palmer House Hilton Hotel PROPOSAL DEADLINE: October 10th, 2005 Submit Today! SUBMIT A PROPOSAL AT: ABOUT THE MPSA The MPSA is a national association of researchers with an interest in politics and policy. The MPSA was founded in 1939 and publishes one of the top journals in the discipline, the American Journal of Political Science (, as well as hosting a national conference with over 3,000 presenters at over 700 different sessions. ABOUT THE CONFERENCE From April 20th -23rd, 2006, the MPSA will hold its 64th Annual National Conference and we are soliciting proposals to present at the conference. Though one of the largest conferences in the discipline with over 3,000 presenters and 700 sessions, the entire conference fits in one hotel—the historic Palmer House Hilton in downtown Chicago. The Palmer House is conveniently located in the “Loop,” about a block from the Art Institute of Chicago (a must see for fans of Impressionist paintings) and a couple blocks from Grant Park and Lake Michigan. It is the oldest continuously operating hotel in North America. NEW SECTIONS FOR THE CONFERENCE The program committee for the conference includes about four dozen folks, and each of them deals with a subfield (or a portion of a subfield). We have several NEW sections, including ones on Canadian Politics, International Cooperation and Organization, Electoral Campaigns, and Economic Policy. This is in addition to the full range of sections in the field of political science. For a full listing, please see the conference website. HOW TO SUBMIT A PROPOSAL The deadline to submit a proposal is October 10th, 2005, and you can submit a proposal on-line at If you have problems working with the website, please be sure to contact us immediately ( or 812-856-0245) and we can help you through the process. Common problems are: security settings too high on your computer or you are using an old version of the software for your browser. An easy “fix” is to try another computer if you have problems (or you can update your browser). DISCUSSANTS AND CHAIRS NEEDED FOR PANELS We are always in need of experienced scholars who are willing to serve as discussants and chairs, so I would strongly encourage you to complete the short form offering to serve in that capacity. Please be as specific as you can when you list your areas of expertise so the section heads will be able to know what panels might match your background. ABOUT THE AMERICAN JOURNAL OF POLITICAL SCIENCE The American Journal of Political Science (AJPS) publishes research in all major areas of political science, including American politics, public policy, international relations, comparative politics, political methodology, and political theory. Founded in 1956, the AJPS includes articles of general interest, essays, and a workshop section on new developments in research methodology. The journal is provided to all members as a benefit of their membership. The editors of the journal are Kim Quaile Hill and Jan E. Leighley from Texas A&M University. If you wish to look at the list of forthcoming articles, look over submission guidelines or submit a manuscript for review, please go to

Call for Participation: Law & Society 2006
    CALL FOR PARTICIPATION Law and Society Assocation Annual Meeting Due Date: January 6, 2006 The 2006 annual meeting of the Law and Society Association will take place at the Marriott Waterfront Hotel in Baltimore, Maryland, USA, July 6 - 9. Theme: Law’s End(s)? In the spirit of the Law and Society Association’s long tradition of research into unsettled and unsettling issues, the 2006 meeting’s theme poses many profound questions regarding challenges facing the rule of law early in the twenty-first century. We highlight in particular the following observations and puzzles. First, as social life around the globe becomes ever more complex, multi-layered, and subject to multiple sources of authoritative ordering, the boundaries among and between different legal or extra-legal forms of governance have become more contested, volatile, and fragile. How are different forms of legal authority established, enforced, contested, and renegotiated? Where does the authority of one legal system or form of governance end and another prevail? Do inherited conceptions of “legal pluralism” suffice to make sense of the negotiated boundaries among legal orders? Second, the global spread of Western legal norms, and especially those associated with the United States, seems to highlight law’s growing significance in contemporary life at the same time that the proliferation of profoundly different legal orders undermines any common view about the core elements of law itself. Have we come to the end of any coherent singular understanding about what the “rule of law” requires? Do new forms of capitalism, governance, etc. demand new models of law that we do not yet imagine? Third, in many societies we witness political backlashes and retrenchment against the constraints of law’s rule. Overt attacks on courts, lawyers, legal processes, rights, and rules as well as more subtle departures from principles of law are evident around the world. At the same time, other elements or domains of law – especially the punitive and market-based terms of law – have been advanced with new vigor. How can we make sense of the simultaneous undermining of some forms or aspects of law and the strengthening of others? What is the role of neo-liberalism or resurgent authoritarianism in these processes? How do these changes reflect and express unequal power relations? Fourth, the preceding questions about the conceptual and political constraints of law suggest yet other more general puzzles about the limitations or endpoints of law’s instrumental capacity to govern. What do legal forms, processes, and practices do well, and what to they accomplish poorly or less well than other forms of governance? What types of control or coordination are most and least effectively advanced through law? Finally, these previous questions suggest yet another line of inquiry about laws end(s): What are law’s purposes? What normative ends does it serve? Whose ends? To what extent is law merely a means, a set of techniques that serve ends rather than define ends? How are commitments to (or against) law related to organizing logics of capitalism, democracy, authoritarianism, religion, or various versions of justice? By what standards should we assess the workings and impacts of law? Where do or should we stand in scrutinizing how, and for whom, law does or does not matter? As with every Annual Meeting, panels need not be centered on the conference theme. As usual, submissions on any law and society topic are welcome.

Conference Announcement: The Future of the Supreme Court
    2005 Minnesota Law Review LINDQUIST & VENNUM SYMPOSIUM The Future of the Supreme Court: Institutional Reform and Beyond October 21, 2005 8:00 a.m. to 4:15 p.m. University of Minnesota Law School Walter F. Mondale Hall Room 25 REGISTER NOW! To register, visit the Minnesota Law Review web site ( Schedule:
      8:00-8:30 Registration 8:30-8:45 Welcome (Dean Alex Johnson) 8:45-9:15 Introductory presentation Adrian Vermeule: "The Obstacles to Supreme Court Reform" 9:15-10:40 Panel: The Role of Politics and Precedent in Limiting the Court's Judicial Power Michael Gerhardt: "Super Precedent" Daniel Farber: "The Rule of Law and the Law of Precedent" Randy Barnett: "Precedent: The New Judicial Supremacy" 10:40-10:50 Break 10:50-12:15 Panel: Decision Making at the Court: A Convergence of People, Ideas, and Shifting Values Thomas Lee: "The Second-Image Reversed: The Influence of Geopolitics on Supreme Court Decisions in U.S. Foreign Relations Law" Angela Onwuachi-Willig and Guy-Uriel E. Charles: "Representative Government, Representative Court?" Mark Tushnet: "Can Knowing Less Be Better Than Knowing More?" 12:15-1:15 Lunch 1:15-2:40 Panel: Political Controversy and the "Suprapolitical" Third Branch Stephen Smith: "The Supreme Court and the Politics of Death" Martin Redish: "The Supreme Court, the Rules Enabling Act, and the Politicization of the Federal Rules: Constitutional and Statutory Implications" Neal Devins: "Should the Supreme Court Fear Congress?" 2:40-2:50 Break 2:50-4:15 Panel: The Past, Present, and Future of the Supreme Court's Workload Kenneth Starr: "The Supreme Court and its Shrinking Docket: The Ghost of William Howard Taft" Steven Calabresi: "A Proposal to Reinstitute Circuit Riding" David Stras: "Supreme Court Justices & the Incentives Approach to Retirement" 4:15 Adjourn

More on the Roberts Vote Check out Royce Carroll, Jeff Lewis, Keith Poole, and Howard Rosenthal's Predicting The Senate Vote on John Roberts, detailing their predictions of the Roberts vote (69-31) and discussing the variance with the actual 78-22 vote.

Thursday, September 29, 2005
    Updated at 3:30 p.m.
    John Roberts Was Approved by the Senate, 78-22 Here is a report from the L.A. Times:
      In the end, 22 of the chamber's 44 Democrats, voted in favor of Roberts, saying the fight to preserve the current balance of liberal and conservatives on the Supreme Court would be postponed until the next nomination, to fill the seat being vacated by Justice Sandra Day O'Connor, the court's swing vote on most controversial issues.
    And here are stories in the NY Times and Washington Post.
    Why Did 22 Democrats Vote for Roberts There are many possible reasons, including:
    • A Roberts Court is actuall more liberal than a Rehnquist Court. Of course, we don't know this for sure--yet. But all the indications are that Roberts is slightly to the left of William Rehnquist. For example, Jeffrey Segal (the political scientist at SUNY Stony Brook) ranks Roberts as to the left of Rehnquist & approximately similar to Harry Blackmun at the time he was appointed to the Supreme Court). Follow this link for Segal's brief report of his findings.

    • Roberts doesn't move the Court to the right. Even if Roberts were to the right of Rehnquist (unlikely), he would not move the balance of power on the Court to the right, because he wouldn't be the swing vote on very many issues.

    • A vote against Roberts may have negative political consequences. Some Democratic Senators who voted for Roberts may believe that swing voters in their home state would disapprove of a vote against Roberts.

    • Belief in merit. Some Democratic Senators may actually believe that Roberts is highly qualified and that he is genuinely committed to the the rule of law.

    • A norm of deference. Some Democratic Senators may believe that the "norms" of the confirmation process entitle the President to a "yes" vote unless the nominee is unqualified of "outside the mainstream."
    • Some Democrats may believe that a vote for Roberts gives them cover for a vote against the next nominee--because it makes them look more reasonable and/or moderate.
    Why Did 22 Democrats Vote Against Roberts? Again, there are several possibilities:
    • Some Democrats may believe that Roberts is a "stealth" Thomas and that his appointment could shift the balance on the Court to the rights--at some point in the future after Stevens and others have been replaced.

    • Some Democrats may view this as a "cheap vote." Although they actually want Roberts on the Court--because he moves the Court to the left, they can vote against Roberts without defeating him. This "cheap vote" then sends a signal to the Democratic base and to special interest groups that the Senator can be relied upon to vote against a similar nominee for the O'Connor vacancy. And sending this signal may result in support from the Democratic base--in the form of primary votes and donations from various groups and constituencies.

    • Some Democrats may believe they are sending a signal to the President. These Democrats may believe that a vote against Roberts makes it more likely that the next nominee will be more moderate. In other words, I am voting against Roberts to signnal that I will support a filibuster against a Robert-like nominee to replace O'Connor.

    • Some Democrats may want to "punish" the President and Senate Republicans. They may see a "no" vote as a symbolic expression of disapproval.
    Which of These Explanations Is Correct? Well that's a tricky question. My money is on the idea that Democrats had nothing to lose and something to gain by confirming Roberts. So all votes by Democrats were cheap votes--once they had decided not to attempt a filibuster. Cheap votes can be cast for cheap reasons--for their symbolic or signalling effects.
David Law & I have a paper on the politics of judicial selection, which you can download here.

Thursday Calendar

Barros on Home as a Legal Concept Benjamin Barros (Widener Law School) has posted Home as a Legal Concept on SSRN. Here is the abstract:
    This article, which is the first comprehensive discussion of the American legal concept of home, makes two major contributions. First, the article systematically examines how homes are treated more favorably than other types of property in a wide range of legal contexts, including criminal law and procedure, torts, privacy, landlord-tenant, debtor-creditor, family law, and income taxation. Second, the article considers the normative issue of whether this favorable treatment is justified. The article draws from material on the psychological concept of home and the cultural history of home throughout this analysis, providing insight into the interests at stake in various legal issues involving the home. The article concludes that homes are different from other types of property and give rise to legal interests deserving of special legal protection, but that these interests can be outweighed by competing interests in particular legal contexts. The result is that in many contexts special legal treatment of homes is justified. In other contexts, for example residential rent control, the strength of competing interests means that the law overprotects the home. In still other contexts, for example eminent domain law as embodied by the Supreme Court's recent decision in Kelo v. New London, the law tends to underprotect the home.

Call for Papers: Ethics and Demandingness
    "First Call For Papers: Ethics and Demandingness, Dundee, July 14-16 2006 The AHRC Scottish Ethics Network is delighted to announce an international conference on the problem of demandingness in ethics. This will take place at the University of Dundee, July 14-16 2006. Plenary speakers confirmed so far include: Liz Ashford (University of St Andrews); Garrett Cullity (University of Adelaide); Brad Hooker (University of Reading); Tim Mulgan (University of St Andrews); David Sobel (Bowling Green State University). If you would like to submit a paper on the theme of demandingness, please contact the conference organiser, Dr Timothy Chappell (, as soon as possible."

Blank on Fiction in Corporate Reogranization Josh Blank has posted Confronting Continuity: A Tradition of Fiction in Corporate Reorganizations (forthcoming Columbia Business Law Review) on SSRN. Here is the abstract:
    The venerable “continuity of interest” doctrine has determined the tax treatment of corporate mergers for over seventy years. Under the doctrine, a corporate merger may qualify as a tax-free reorganization if an acquiror corporation pays shareholders of the target corporation aggregate consideration that consists of at least a minimum amount of acquiror corporation stock. The continuity of interest doctrine has endured an abundance of criticism on both policy and legal grounds. Over the last ten years, the administrative agencies of the federal government have steadily chipped away at the continuity of interest requirement in an attempt to make it workable in modern business transactions. Such an approach to remedying the doctrine, however, ignores a fundamental question. Congress, and the tax community at large, should confront the end that the continuity of interest doctrine currently serves, and question whether this end justifies the hardship that the doctrine causes. This article argues that the end that the continuity of interest requirement is intended to achieve – an aggregate group of former target corporation shareholders maintaining a “continuity of interest” in the acquiror corporation following a merger – is fiction. Today corporate mergers may technically satisfy the continuity of interest requirement even though target corporation shareholders ultimately may receive or retain little or even no meaningful proprietary interest in the acquiror corporation. By highlighting the fictional premise upon which the continuity of interest doctrine has come to rest, this article offers a new and different justification for the repeal of the doctrine.

Judicial Activism at Law & Society Weblog Check out Prolegomena to a Systems-Theoretical Theory of Judicial-Activism Claims over at Law & Society Weblog. Here's a taste:
    The serious core of my posts is this: If a charge of judicial activism is made, we should first demand to hear how the court got it wrong (and no political arguments allowed, only legal arguments). If little or nothing is forthcoming on that end, it will take a very strong additional argument to show why the court should have gotten it wrong, to support the claim of judicial activism.

Wednesday, September 28, 2005
Wednesday Calendar
    Loyola Law School, Los Angeles: Richard Sander, Professor of Law, UCLA School of Law, "Affirmative Action in Law Schools: The Debate on the Mismatch Theory."
    NYU Legal History: Chaim Saiman, Golieb Fellow, “Legal Theology: The Turn to Conceptualism in Nineteenth Century Jewish Law”
    Ohio State Law: Sarah R. Cole, Mediation Confidentiality: A Promise Unfulfilled?
    University of Alabama Law: Sheila Foster, Fordham University, The City as an Ecological Space.

Durchslag on the Supreme Court & the Federalist Papers Melvyn R. Durchslag (Case Western Reserve University - School of Law) has posted The Supreme Court and the Federalist Papers: Is There Less Here than Meets the Eye? (William and mary Bill of Rights Journal, Vol. 14, No. 1, Forthcoming) on SSRN. Here is the abstract:
    The Federalist Papers are perhaps the most revered and useful insights into the minds of those who advocated the drastic change from the Articles of Confederation that is the United States Constitution. Certainly the Federalist Papers are cited as evidence of "framers' intent" by the courts with greater frequency than any other single historical source. And recent scholarship has demonstrated that citations to The Federalist Papers have increased significantly in the past decade or so. The qualitative question, however, is how important have The Federalist Papers been to the Court's decisions. As the title to the paper suggests, the author concludes that one can not measure the doctrinal influence of The Federalist Papers by the frequency of their citation. Indeed, in the author's judgment, The Federalist Papers played a decisive role in only a handful of cases decided by the Supreme Court since 1787. In the vast majority of cases in which The Federalist Papers were cited, they carried little or no substantive weight, leaving one to wonder whether a Justice refers to The Federalist Papers for reasons other than fleshing out "original understanding".

Bainbridge Replies to Bebchuck on Shareholder Power Stephen M. Bainbridge (University of California, Los Angeles - School of Law) has posted Director Primacy and Shareholder Disempowerment (Harvard Law Review, Vol. 199, 2006) on SSRN. Here is the abstract:
    This essay is a response to Lucian Bebchuk's recent article The Case for Increasing Shareholder Power, 118 Harvard Law Review 833 (2005). In that article, Bebchuk put forward a set of proposals designed to allow "shareholders to initiate and vote to adopt changes in the company's basic corporate governance arrangements." In response, I make three principal claims. First, if shareholder empowerment were as value-enhancing as Bebchuk claims, we should observe entrepreneurs taking a company public offering such rights either through appropriate provisions in the firm’s organic documents or by lobbying state legislatures to provide such rights off the rack in the corporation code. Since we observe neither, we may reasonably conclude investors do not value these rights. Second, invoking my director primacy model of corporate governance, I present a first principles alternative to Bebchuk's account of the place of shareholder voting in corporate governance. Specifically, I argue that the present regime of limited shareholder voting rights is the majoritarian default and therefore should be preserved as the statutory off-the-rack rule. Finally, I suggest a number of reasons to be skeptical of Bebchuk's claim that shareholders would make effective use of his proposed regime. In particular, I argue that even institutional investors have strong incentives to remain passive.

Clark on Sarbox Robert Charles Clark (Harvard University - Harvard Law School) has posted Corporate Governance Changes in the Wake of the Sarbanes-Oxley Act: A Morality Tale for Policymakers Too on SSRN. Here is the abstract:
    This paper seeks to draw a lesson for designing major reforms of corporate governance in the future. It recalls the key events leading to the recent seismic shift in corporate governance policies applicable to American public corporations, and identifies the four sources of policy changes - the Sarbanes-Oxley Act, new listing requirements, governance rating agencies, and tougher judicial opinions (notably in Delaware) about perennial corporate governance issues. It presents a synthetic overview of the numerous reforms, which at the most general level aim to fix the audit process, increase board independence, and improve disclosure and transparency. It pauses to identify the vast territory of unchanged corporate governance rules that are still left to state law, and then examines some of the empirical studies that bear on whether the governance reforms can be confidently predicted to have strong positive results for investors. The exercise suggests an irony: Studies about the impacts of the most costly reforms, those concerning audit practices and board independence, are fairly inconclusive or negative, while studies about proposals for shareholder empowerment and reduction of managerial entrenchment indicate that changes in these areas - which in general are only atmospherically supported by the SOX-related changes -could have significant positive impacts. Admittedly, the general evidence for mandatory disclosure does suggest that the new round of enhanced disclosures, which are only moderately costly, will have good effects. The concluding section presents and explains a new approach for the next crisis-generated reform movement. It is based on the notion that bandwagons are unavoidable, but their motivating impact can be leveraged and their bad effects alleviated by good statutory design. In particular, legal reforms in the area of corporate governance should have bite but should also be explicitly structured to authorize and mandate (1) serious empirical study of the effects of particular regulatory changes (or existing rules), (2) periodic reassessment of regulations in light of such evidence (while also considering experience and analytical arguments, of course), and (3) explicit decisions to reaffirm or alter regulations in light of these reassessments.

Fairfield on Virtual Property Joshua Fairfield (Indiana University School of Law-Bloomington) has posted Virtual Property (Boston University Law Review, Vol. 85, 2005) on SSRN. Here is the abstract:
    This article explores three new concepts in property law. First, the article defines an emerging property form - virtual property - which is not intellectual property, but that more efficiently governs rivalrous, persistent, and interconnected online resources. Second, the article demonstrates that the threat to high-value uses of internet resources is not the traditional tragedy of the commons that results in overuse. Rather, the naturally layered nature of the internet leads to overlapping rights of exclusion that cause underuse of internet resources: a tragedy of the anticommons. And finally, the article shows that the common law of property can act to limit the costs of this internet anticommons.

Rachlinski on Bottom-Up Lawmaking Jeffrey J. Rachlinski (Cornell Law School) has posted Bottom-Up Versus Top-Down Lawmaking (University of Chicago Law Review, Vol. 73, Summer 2006) on SSRN. Here is the abstract:
    Democratic legal systems make law in one of two ways: by abstracting general principles from the decisions made in individual cases (from the bottom up); or by declaring general principles through a centralized authority that are to be applied in individual cases (from the top down). These two processes are, respectively, adjudication and legislation. Each process presents the underlying legal issue from a different cognitive perspective, highlighting and hiding different aspects of a legal problem. The single-case perspective of adjudication can seem cognitively inferior to the broad perspectives that legislatures can incorporate into their decision-making processes, but adjudication also has its advantages. The adjudicative approach, however, has advantages that are less obvious. Notably, the adjudicative process is more likely to facilitate that adoption of simple, elegant rules for decision making. The assessment of which approach is superior is therefore indeterminate. Each has its strengths and weaknesses that make it more or less appropriate for different contexts.

Tuesday, September 27, 2005
Winkler on Agency Costs & Campaign Finance Adam Winkler (University of California, Los Angeles - School of Law) has posted Other People's Money: Corporations, Agency Costs, and Campaign Finance Law (Georgetown Law Journal, Vol. 92, pp. 871-940, 2004) on SSRN. Here is the abstract:
    This article offers a political history of the first major federal campaign finance law, the 1907 ban on corporate contributions to candidates. This law has been widely misunderstood by courts and scholars who contend that the corporate contribution ban was motivated primarily by progressive era fears of the excessive power and influence of big business. Challenging this prevailing wisdom, this article shows that concerns about excessive corporate power, while present, were matched if not exceed by a different conception of corporate political corruption. At the turn of the century, corporate political contributions were widely understood to be corrupt because they amounted to a misuse of other people's money: company executives were opportunistically misappropriating the owners' money to purchase legislation designed to immunize executives from the oversight of owners. In other words, corporate political corruption was also conceptualized as a problem of agency costs within firms. This agency costs story of corporate contributions was especially salient in the wake of the radical transformation in corporate law at the end of the nineteenth century that broadened managerial discretion, restricted traditional rights of owners, and paved the way for the separation of ownership from control. Moreover, the underlying campaign finance scandal that paved the way for adoption of the corporate contribution ban - the New York Life Insurance scandal - was one in which opportunism and misuse of other people's money was a paramount theme. As a result of this scandal, the various political partners in the coalition behind the Tillman Act were attracted to, and unified by, the other people's money theme. For Congress and President Roosevelt, partisanship, ideology, and self-interest were all better served by emphasizing other people's money instead of excessive corporate power. This other people's money definition of electoral corruption not only shaped the first federal regulation of corporate campaign activity, but ultimately defined the main channel through which almost all subsequent federal election laws pertaining to corporations would flow. Whereas legal scholars argue that corporations have been subject to special restrictions on their campaign activity due to a desire to restrain excessive corporate power - and thus are meant to further political equality - this article suggests that agency costs provides a better explanation of the trajectory and details of federal law pertaining to corporate involvement in elections. The prevailing tendency in federal campaign finance law on corporations has been to allow corporate involvement so long as firms organize their political activity to avoid agency costs. While other people's money began as a tool to limit corporate involvement in elections, the long reliance since on agency costs since has opened up new avenues of corporate influence - at the expense of political equality rather than in its service. Although we often think of corporate political corruption as business interests buying too much influence, this Article shows that agency costs has also played a formative role in the regulation of corporate politics and, indeed, has become a hidden cornerstone of campaign finance law.

Parry on Terrorism and the New Criminal Process John T. Parry (University of Pittsburgh School of Law) has posted Terrorism and the New Criminal Process on SSRN. Here is the abstract:
    Executive and legislative actions after 9/11 demonstrate a shift in the way the federal government combats terrorism. Traditional law enforcement entities have been given new powers, and military and intelligence personnel have taken on a new prominence. Criminal prosecutions are still being brought against persons suspected of terrorist activity, but the government seems less willing to accord criminal trials a central role in anti-terror efforts. In short, we are seeing the creation of a "new criminal process" for terrorism, a process that in many cases bypasses federal courts and operates wholly outside the territorial boundaries of the United States. All of these actions, moreover, react to the perceived emergency created by the 9/11 attacks. Government officials have argued that a state of emergency exists and - critically - that it is unclear when the emergency will end. Other public figures and the media have largely agreed. "Everything has changed" has became the common theme, and the new criminal process provides a legal ratification of that change - a legal structure for a state of emergency. This essay considers the new criminal process and the perception of emergency out of which it grows from a variety of angles. Although I think the federal government has shifted too far in favor of military and other solutions to terrorism at the expense of traditional criminal processes, my position rest upon a chain of reasoning and a baseline that the new criminal process contests. That deeper contest and its implications are the focus of this essay. To that end, I desribe the attributes for the new criminal process, and provide the arguments for and against the traditional and new criminal processes. I also consider the legality of the new criminal process and conclude that it comports with constitutional norms (which may say more about the malleability of constitutional norms than anything else). The underlying assertion of this essay is that the new criminal process may not be so new. Rather, it may be the latest step in a broad shift in our approach to governing, where pervasive authority is increasingly valued over the constraints of law. This change brings with it modification and dilution of rights, but also the possibility of their expansion within the context of also-expanded state power. Nor is this change occurring without justification. Terrorism is a real policy issue, and rational, liberal-minded people support increased state power to counter the threat. Be that as it may, the critical point is that we are experiencing the modification of the processes by which our government investigates and imposes punishment on people, and the fact that some of these processes arise in the context of the war on terror means, not that those processes are about fighting terrorism, but rather that those processes - the new criminal process - inevitably will and have already begun to generalize.

Avraham & Kohler on Accident Law for Egalitarians Ronen Avraham and issa kohler-hausmann (Northwestern University - School of Law and Northwestern University - School of Law) have posted Accident Law for Egalitarians on SSRN. Here is the abstract:
    This paper questions the fairness of our current tort law regime and the philosophical underpinnings advanced in its defense, a theory known as corrective justice. Fairness requires the moral equality and responsibility of persons be respected in social interactions and institutions. The concept of luck has been used by many egalitarians as a way of giving content to fairness by differentiating between those benefits and burdens which result from informed choice from those that result from fate or fortune. We argue that the theory of corrective justice, and its institutional embodiment of tort law, is at odds with an egalitarian commitment to fairness because it allows luck an unjustifiable role in determining dissimilar liability for similar wrongs, and dissimilar compensation for similar losses to bodily integrity. Many egalitarian political theorists have also recognized, if not defended, the notion of distinct forms of justice, namely corrective, retributive, and distributive. Although theorists of these different forms of justice have been concerned with negating unfair luck inside the operations of each form of justice, there has been little attention to the way in which luck operates to sort cases into each form of justice. We claim that there is a significant way in which luck operates to subject different people to principles of corrective, retributive, and distributive justice - and thereby assessing dissimilar liability for similar wrongs and disparate compensation for similar losses - which flies in the face of the egalitarian value of fairness: a commitment to treating people as moral equals with like interests in being responsible for their own lives. After surveying the arguments put forward by theorists defending a categorical distinction of corrective justice from retributive and distributive principles, we argued that, although analytical distinctions can be made between different forms of justice, (although, we also suggest that the distinctions were not as sharp as some commentators suggest) there is no good reason to defend an acoustic separation between these forms of justice when doing so creates unfair outcomes. We conclude the paper by noting that there are various institutional approaches which could remedy the unfair role of luck we identified in liability and compensation, and by proposing a rough sketch of one such possible alternative to the current tort law system.
This is an important topic!

Call for Papers: Law & Humanities Junior Scholar Workshop
    UCLA School of Law, Columbia Law School, University of Southern California Center for Law, History & Culture, and Georgetown University Law Center invite submissions for the fifth annual meeting of the Law & Humanities Junior Scholar Workshop to be held at USC Law School in Los Angeles, CA on June 6 & 7, 2006. PAPER COMPETITION: The paper competition is open to untenured professors, advanced graduate students and post-doctoral scholars in law and the humanities; in addition to drawing from numerous humanistic fields, the Workshop welcomes critical, qualitative work in the social sciences. Between five and ten papers will be chosen, based on anonymous evaluation by an interdisciplinary selection committee, for presentation at the June Workshop. At the Workshop, two senior scholars will comment on each paper. Commentators and other Workshop participants will be asked to focus specifically on the strengths and weaknesses of the selected scholarly projects, with respect to subject and methodology. Moreover, the selected papers will then serve as the basis for a larger conversation among all the participants about the evolving standards by which we judge excellence and creativity in interdisciplinary scholarship, as well as about the nature of interdisciplinarity itself. Papers should be works-in-progress between 30 and 50 double-spaced pages in length (including footnotes/endnotes). Dissertation chapters may be submitted so long as they can stand alone as an integral piece of work. A paper that has been submitted for publication is eligible as long as it will not be in galley proofs or in print at the time of the Workshop. The selected papers will appear in a special issue of the LegalScholarship Network; there is no other publication commitment. TheWorkshop will pay the travel expenses of authors whose papers areselected for presentation. Submissions will be accepted until January 9, 2006, and should be sent by e-mail to: Center for the Study of Law and Culture Columbia Law School 435 W. 116th Street New York, N.Y. 10027 Please be sure to include your contact information. For more information: Eric Bornemann, 212.854.2511 or The full text of the Call for Papers is available at:

Tuesday Calendar

Call for Papers: Law & Economics in Greece
    CALL FOR PARTICIPATION AND PAPERS, 3rd INTERNATIONAL CONFERENCE ON LAW & ECONOMICS - INDUSTRIAL ORGANIZATION, JUNE 12-14, 2006 The Business Research Unit of the Athens Institute for Education and Research organize its 3rd International Conference on Industrial Organization, Law & Economics. The registration fee is 250 euro, covering access to all sessions, 2 lunches, coffee breaks and conference material. Special arrangements will be made with local hotels for a limited number of rooms at a special conference rate. In addition, a one-day cruise to picturesque Greek Islands and a Greek Night will be organized. Papers (in English) from all areas of Industrial Organization, Law and Economics are welcome. Special sessions will be devoted to the following areas of the JEL classification system: LAW & ECONOMICS: Basic Areas of Law - Property Law - Contract Law - Tort Law and Product Liability - Criminal Law - Regulation and Business Law - Antitrust Law -Corporation and Securities Law - Regulated Industries and Administrative Law - Other Substantive Areas of Law - Labor Law - Environmental, Health, and Safety Law - International Law - Tax Law - Legal Procedure, the Legal System, and Illegal Behavior - Litigation Process - Illegal Behavior and the Enforcement of Law. INDUSTRIAL ORGANIZATION: Market Structure, Firm Strategy, and Market Performance - Production, Pricing, and Market Structure; Size Distribution of Firms (Concentration, Product Differentiation, Entry and Exit) - Monopoly; Monopolization Strategies - Oligopoly and Other Imperfect Markets - Transactional Relationships; Contracts and Reputation - Information and Product Quality - Industrial Organization and Macroeconomics; Macroeconomic Industrial Structure - Firm Objectives, Organization, and Behavior - Business Objectives of the Firm - Firm Organization and Market Structure: Markets vs. Hierarchies; Vertical Integration - Organization of Production - Firm Size and Performance - Nonprofit Organizations and Public Enterprise - Nonprofit Institutions - Public Enterprises - Boundaries of Public and Private Enterprise; Privatization; Contracting Out - Antitrust Policy - Monopolization; Horizontal Anticompetitive Practices - Vertical Restraints; Resale Price Maintenance; Quantity Discounts - Legal Monopolies and Regulation or Deregulation - Antitrust Policy and Public Enterprise, Nonprofit Institutions, and Professional Organizations - Regulation and Industrial Policy - Economics of Regulation - Industrial Policy; Sectoral Planning Methods - Industry Studies: Manufacturing, Primary Products and Construction, Services, Transportation and Utilities - Government Policy. Selected papers will be published in a Special Volume of the Conference Proceedings by the Athens Institute for Education and Research. Abstracts should include: Title of Paper, Full Name(s), Affiliation, Current Position, an email address and up to 3 keywords (selected from the above list of areas) that best describe the subject of your submission. Please submit a 300 word abstract by email before January 5th, 2006 to: Dr. Gregory T. Papanikos, Director Athens Institute For Education and Research Conference Email: Telephone: + 30 210 3634210 Fax: + 30 210 3847734 Mailing Address: 8 Valaoritou Street, Kolonaki, 10671 Athens, Greece.

Monday, September 26, 2005
Whose Next? Lee Epstein and Jeffrey Segal have posted a list of the potential nominees for the O'Connor slot on Oxford University Press Blog. Here is a taste:
    Emilio Garza. Court of Appeals, 4th Circuit. Would be first Hispanic named to the Court, but only if Benjamin Cardozo (served 1932-1938) doesn't count (hereafter "oiBCdc"). Has publicly criticized Roe v. Wade and would likely be filibustered. The skinny: Republicans would love to see Democrats attack a highly qualified Hispanic.
Others on their list include Janice Rogers Brown, Alberto Gonzalez, and Michael McConnell. Check it out!

Call for Papers: Ethical Aspects of Risk
    Announcement and Call for Papers Conference Ethical Aspects of Risk 14-16 June 2006 Philosophy Department, Delft University of Technology Keynote speakers:
      Ruth Chadwick University of Lancaster Douglas MacLean University of North Carolina Kristin Shrader-Frechette University of Notre Dame Paul Slovic Decision Research, Oregon
    Technology has advanced human well being in a myriad of respects, such as energy, communication and abilities to travel. Still, every technology also has negative side-effects, such as risks from accidents and pollution. A standard way to judge the acceptability of a specific technology is cost-benefit analysis. However, next to the balance between the benefits and risks of a technology the following considerations seem to be important: the distribution of costs and benefits, whether a risk is voluntarily taken, whether there are available alternatives etc. How to judge whether a risk is acceptable is a pressing ethical question that deserves thorough investigation. There is a vast amount of sociological and psychological research on acceptable risks, but surprisingly, there is only very little research from moral philosophy on risks. This conference aims to fill this gap by bringing together moral philosophers, sociologists, psychologists and engineers to reflect on the ethical issues concerning ‘acceptable risk’. The following questions will be the focus of the conference:
      - What are morally legitimate considerations in judging the acceptability of risks? Is cost-benefit analysis the best way or do we need additional considerations? - What role should emotions play in judging the acceptability of risks? Are they irrational and distorting or are they a necessary precondition for practically rational judgments? - What role should the public play in judging the acceptability of risks (e.g. informed consent procedures analogous to medical ethics)? - Is the precautionary principle a fruitful tool in dealing with risks
    Call for papers: abstracts due by December 1st 2005. Submit an abstract of ca 750 words with information about academic affiliation to For inquiries, contact the organization committee through Organization: Sabine Roeser and Lotte Asveld (Philosophy Department, Delft University of Technology); conference management: Henneke Piekhaar

McGinnis on Foreign Law and Constitutional Interpretation John O. McGinnis (Northwestern) has posted Foreign to our Constitution (Northwestern University Law Review, 100th Anniversary Symposium) on SSRN. Here is the abstract:
    This essay argues against most use of international and foreign law in constitutional interpretation, particularly its use to displace state or federal statutory law. I separately address arguments based on foreign law and those based on international law. There is no reason to think that foreign laws, including foreign judicial decisions, contain better norms for the United States than those made democratically here, because foreign laws do not purport to be good norms for the United States, but instead emerge from different, complex social structures. As to international law, I discuss the main reason that international law might be thought to be useful as a factor to impeach conflicting United States law­its norm universality. I will then show that this claim is undercut by international law's democratic deficit. It is no answer to reply that constitutional law may legitimately rely on on norms that are not democratically validated, such as norms that are good by virtue of some economic or moral theory. The mere fact that a proposition is contained in international law does not make it intrinsically good. I also show that using international or foreign law to displace American law decreases the diversity of global rules and undermines American experimentation that has in the past paid dividends to the entire world. Moreover, reliance on international or foreign law undermines self-governance by encouraging interest groups, domestic and foreign, to frame international and foreign law with a view toward influencing our domestic law. Finally, I describe the real function that use of international and foreign law serves in our contemporary system of constitutional adjudication­as a mode by which the aristocratic element of a mixed regime cloaks judgments that it does not want to defend on its own authority.
I always find McGinnis;s work to be interesting, illuminating, and intelligent.

Schultz on Copynorms & Jambands Mark Schultz (Southern Illinois) has posted Fear and Norms and Rock & Roll: What Jambands Can Teach Us about Persuading People to Obey Copyright Law on SSRN. Here is the abstract:
    Conventional wisdom says, with ample justification, that we cannot persuade the average individual to comply voluntarily with copyright restrictions on works like popular music. This Article challenges that conventional wisdom with the example of a community of music fans centered on artists known as "jambands." The jamband community has developed social norms that reinforce and respect artists' copyrights. The experience of the jamband community provides a model for the development of pro-copyright social norms in a world where compliance with copyright laws is increasingly a matter of individual choice. This Article examines the problem of filesharing in light of research regarding what motivates people to obey laws. Studies indicate that people are motivated at least as much by their belief that a law is moral as they are by fear of the consequences of violating it. In fact, attempting to enforce laws that contradict social norms too greatly may be counterproductive. Nevertheless, copyright owners have focused almost exclusively on deterrence rather than fostering social norms that support compliance. They would do well to try to persuade people that obeying copyright law is the right thing to do, rather than merely prudent. This Article presents a case study, based on extensive first-hand observation, of the social norms of a community that respects copyright. The jamband community is a vital and growing movement in popular music that includes some of the top-grossing touring bands in the country. The original jamband was the Grateful Dead, but the label now applies to bands from many genres. What defines a jamband more than anything else is its policy regarding intellectual property: Jambands allow their fans to record live shows and to copy and distribute the recordings freely. Jambands have developed a unique bond of trust with their fan community, which has developed social norms against copying musical works that jambands have designated as "off limits." These restricted works are typically studio recordings or live releases sold commercially. The community enforces these norms, sometimes even reporting violations to the bands' attorneys. The social norms of the jamband community might be a mere curiosity but for the fact that they appear to be based on a deeply rooted human behavioral trait known as reciprocity. Reciprocity motivates people to repay the actions of others with like actions - value received with value given, kindness with kindness, cooperation with cooperation, and non-cooperation with retaliation. Under the right circumstances, reciprocity can foster and sustain pro-social, cooperative social norms. This Article examines the latest laboratory and theoretical research on reciprocity from behavioral and experimental economics and applies it to the social norms of the jamband community. Since the social norms of the jamband community are rooted in this universal behavioral trait, we can draw several potential lessons for the mainstream music community. The example of the jamband community may offer a "carrot" to accompany (or supplant) the "stick" of lawsuits. It also offers an alternative to proposals for ever-escalating regulation, more restrictive technology, or radical changes to copyright law. The Article concludes with several concrete proposals for changing business models and enforcement strategies to promote pro-copyright social norms.
Fascinating! And recommended. This is part of a growing body of work on copynorms--one of the most important topics in contemporary IP scholarship.

Monday Calendar
    Columbia Law & Economics: Alan Schwartz, Yale Law School, Visiting New York University Law School, "The Law and Economics of Preliminary Agreements," (Co-author Robert E. Scott).
    Florida State Law: Michael Vandenbergh, Vanderbilt University Law School, Private Life of Public Law.
    George Washington Intellectual Property Series: Xuan-Thao Nguyen, Southern Methodist University Dedman School of Law, “Collateralizing Intellectual Property”.
    Georgetown Environmental Workshop Series: Richard Revesz, New York University School of Law, "The Law and Economics of New Source Review"
    Hofstra University Law: Robin Charlow, Hofstra University School of Law “The Elusive Meaning of Religious Equality”.
    NYU Law: Rob Sitkoff.
    Vanderbilt Law: Andrea Melis, University of Cagliari, Italy, Department of Economics, "Corporate Governance Failures: To What Extent is Parmalat a Particularly Italian Case?"

Moral Instincts? Rebecca Saxe has a piece in the Boston Review, entitled Do the Right Thing: Cognitive science’s search for a common morality. Here's a taste:
    Very recently, though, the use of moral dilemmas to study moral universals has reemerged. Marc Hauser of Harvard University and John Mikhail of Georgetown University are among the cognitive scientists leading the charge. The current theorists take as their model for moral reasoning not conscious problem-solving, as Kohlberg did, but the human language faculty. That is, rather than “moral reasoning,” human beings are understood to be endowed with a “moral instinct” that enables them to categorize and judge actions as right or wrong the way native speakers intuitively recognize sentences as grammatical or ungrammatical.
If you are interested in this line of research, you can download Aspects of the Theory of Moral Cognition: Investigating Intuitive Knowledge of the Prohibition of Intentional Battery and the Principle of Double Effect by John Mikhail.

Sunday, September 25, 2005
Legal Theory Calendar
    Monday, September 26
      Columbia Law & Economics: Alan Schwartz, Yale Law School, Visiting New York University Law School, "The Law and Economics of Preliminary Agreements," (Co-author Robert E. Scott).
      Florida State Law: Michael Vandenbergh, Vanderbilt University Law School, Private Life of Public Law.
      George Washington Intellectual Property Series: Xuan-Thao Nguyen, Southern Methodist University Dedman School of Law, “Collateralizing Intellectual Property”.
      Georgetown Environmental Workshop Series: Richard Revesz, New York University School of Law, "The Law and Economics of New Source Review"
      Hofstra University Law: Robin Charlow, Hofstra University School of Law “The Elusive Meaning of Religious Equality”.
      NYU Law: Rob Sitkoff.
      Vanderbilt Law: Andrea Melis, University of Cagliari, Italy, Department of Economics, "Corporate Governance Failures: To What Extent is Parmalat a Particularly Italian Case?"
    Tuesday, September 27 Wednesday, September 28
      Loyola Law School, Los Angeles: Richard Sander, Professor of Law, UCLA School of Law "Affirmative Action in Law Schools: The Debate on the Mismatch Theory."
      NYU Legal History: Chaim Saiman, Golieb Fellow, “Legal Theology: The Turn to Conceptualism in Nineteenth Century Jewish Law”
      Ohio State Law: Sarah R. Cole, Mediation Confidentiality: A Promise Unfulfilled?
      University of Alabama Law: Sheila Foster, Fordham University, The City as an Ecological Space.
    Thursday, September 29 Friday, September 30
      University of Georgia Law: Sean J. Griffith (University of Connecticut) – Unleashing a Gatekeeper.
      Vanderbilt Law: Andrew Martin, Washington University in St. Louis Political Science, "The Median Justice on the U.S. Supreme Court, and Some Thoughts on the Roberts Court"
      Villanova Law: Teemu Ruskola, American University, Washington College of Law, "Canton Is Not Boston: The Invention of American Imperial Sovereignty in the Nineteenth Century"
      Yale Law, Economics, and Organizations: Professor Lawrence Katz, Harvard, Economics with Professor Jeffrey Kling, Princeton, Economics, Experimental Analysis of Neighborhood Effects.

Legal Theory Lexicon: Holdings
    And what is the holding, Ms. Sanchez?
    Introduction It used to be the case that an endless investigation of the difference between holding and dictum was a central preoccupation of the first year of law school. Nowadays, depending on which law school you attend and which set of instructors you are assigned, it is perfectly conceivable that you might make it all the way to your second year, with only a vague sense of what the difference between "holding" and "dictum" really is. This is not an accident. The old-fashioned, but still powerful, distinction between the holding of a case, which has precedential effect, and mere obiter dicta, which have only persuasive effect, does not easily fit in the post-realist landscape of contemporary American legal thought. This installment of the Legal Theory Lexicon provides a brief tour of the concept of a holding, with a special emphasis on the ideas that are relevant to a first-year law student with a bent for legal theory. So here we go!
    Holding, Dicta, and Stare Decisis It may be obvious, but let's say it anyway. The notion of a "holding" is only relevant because of the doctrine of stare decisis or binding precedent. In common law systems, decisions have precedential effect. It is easy for lawyers--in the United States and other legal cultures descended from the English common-law system--to forget that this need not be the case: in civil law systems, court decisions do not create binding precedents! Given that court decisions set precedents, the question naturally arises: what is the precedential effect of a decision? The traditional answer to that question is that subsequent courts are bound to follow the holding of a decision, but they are not bound by mere dicta--statements that are "unnecessary to the decision." This is as good a place as any to mention that "dictum" is the singular (one unecessary statement) whereas the word "dicta" is the plural of dictum, meaning two or more such statements.
    Just a bit more about stare decisis So to understand the idea of a holding, you also must have a basic knowledge of the doctrine of stare decisis, which is just the fancy Latin phrase for "precedent." Here are some very basic points:
    • Vertical stare decisis refers to the power of higher courts to bind lower courts. All courts in the United States are bound by vertical precedent to follow the holdings of decisions by the United States Supreme Court.
    • Horizontal stare decisis refers to the power of a court to bind itself. The United States Supreme Court does not consider itself bound by its own prior decisions, although it says that it gives them "substantial weight" in its deliberations. The intermediate appellate courts in the federal system are called the United States Courts of Appeal (USCA). When a USCA sits in an ordinary three judge panel, the panel is bound by the prior decisions of the Court. (The USCA is divided into circuits, e.g. the First Circuit, Second Circuit, etc.) However, each Circuit is free to overrule its own prior decisions if it is constituted as an en banc court--that is, the full complement of judges on the Circuit sit on a panel. (The Ninth Circuit is different for reasons I won't explain here.)
    A Loss of Faith in the Existence of the Holding Law students are generally introduced to holdings very early in their law school careers. The professor may play some socratic games with early cases, manipulating students into giving broader and narrower formulations of the holdings of the cases. It is quite likely, however, that these games will stop long before the class has a very clear idea of what a holding even is. One of the reasons for this is that the very idea of a holding best makes sense in the context of legal formalsim but most law professors (consciously or unconsciously) have adopted some form of neorealism--they no longer believe in holdings. And when you don't believe that holdings really exist, it hardly makes sense spending a lot of class time trying to master what they are.
    Two Theories of Holdings In fact, there are two theories of what constitutes the holding of a case. One theory is associated with legal formalism, and the other with legal realism. Every law student should become familiar with these two theories! Once you master them, and have an ability to spot them in action, a huge amount of confusion will simply drop away. What was cloudy will become clear. So here they are:
    • The Formalist Theory of the Holding. The formalist view is that the holding of a case is its ratio decidendi. What in the world does that mean? The ration decendi is the reasoning necessary to reach the result. Early in law school, you might get a professor who tries to whittle the holding of a case down to its ration decendi by asking questions which force the student to see that the rule that she has formulated as the "holding" is broader than the facts of the case. It is very important to understand that identifying the ratio decidendi of a case involves judgments of legal salience. Thus, if the case involves an automobile accident, we know that some facts (the car was red, the accident happended on a Tuesday) are not legally salient and hence are irrelevant to the holding. Other facts (the driver was speeding or the driver was intoxicated) may be legally salient and hence are candidates for inclusion int he holding. Even on the formalist theory of holdings, identification of a holding requires the exercise of practical judgment. If someone tells you that formalists believed that holdings could be identified mechanically, then that person is trying to characterture legal formalism--likely for the purpose of dismssing it.
    • The Realist Theory of Holdings. Legal realists have a very different theory of what constitutes a holding. Here is one way of getting at it. Legal realists view holdings as predictions of what future courts will do. The holding of a case is simply the best prediction that we can extract from the opinion as to what rule the court would apply in future cases. And what is the best evidence of how a court will behave in the future? Arguably, the best evidence is the court's own statement as to what rule it will apply in the future. This means that legal realists become very interested when a court introduces a statement of the rule with the statement: "We hold that . . . " No matter how broad this statement might be, the fact that the court pronounced it, legislatively, as a holding is strong evidence that the court regards what follows "We hold that . . ." as its own prediction as to what it will do in the future.
    What is the debate between realists and formalists really about? So there are different theories about holdings, realist and formalist. What is the debate between these two theories about? There are two answers to that question. First, there is a descriptive debate. Formalists may be claiming that when judges use the term "holding" they are, in fact, referring to the ratio decidendi of a case. Realits may be claiming that when judges use the word "holding" they are, in fact, making a prediction about what the court will do in the future. But in addition to the descriptive debate, there is a prescriptive controversy. Legal formalists may acknowledge the existence of legislative style holdings, but argue it wrong to give courts the power to legislate in this way. Likewise, legal realists may be willing to concede that some courts still use holding in its "old-fashioned," ratio decidendi sense, but argue that judges should employ legislative style holdings, in order to produce good consequences. It is always important to sort out the descriptive and prescriptive strands in this sort of debate.
    Conclusion The question, "What is the holding of such and such a case?," is inherently ambiguous. The idea of a holding is very much contested in contemporary legal theory. As a first-year law student, you will undoubtedly be searching for holdings. Here is my advice. Always look for at least two holdings when you read a case. First, look for the true ratio decidendi, the narrowest reasoning necessary to sustain the result. Be careful when you do this! Include only the legally salient aspects of the case! Second, look for the rule of law that you think the court is trying to announce. When you do this, be very sensitive to language that announces the intention of the court. "We hold that . . ." or the "The rule is . . ." are frequently giveaways as to the intentions of the court. And then you might compare the two holdings that emerge from these two inquries. Which is broader? Which is narrower? If you read subsequent cases that discuss this case, then you can ask a further question, "Which holding was recognized by subsequent courts as the the holding of the case?"
    If you are frequently reader of Legal Theory Blog, you will know that I am a proponent of the formalist view of stare decisis. If you would like to read more about why I think, this surf to my three part series: 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, and Part III: Precedent and Principle.
    For past and future installments in the Legal Theory Lexicon series, you can surf here.

Saturday, September 24, 2005
Legal Philosophy, Sociology, and Social Philosophy Check out the continuing debate between Nico Artzi and Dennis Patterson. If I might add a comment of my own, one of Artzi's point goes to the "armchair" sort of analysis that characterizes analytic philosophy in general and analytic jurisprudence in particular. I think most contemporary philosophers recognize the limitations of this approach, and it is fair to say that contemporary philosophy has entered a post-analytic phase. But I am much less convinced by Artzi's claim that the remedy is a turn to "social philosophy," with Habermas as an exemplar. I say this even though I am sympathetic to Habermas's project. There is much to be said for clarity and analytic precision, and a good deal of social philosophy in the continental tradition is obscure and (in my opinion) fuzzy. If this sort of thing interests you, the short exchange between Patterson and Artzi is worth a look.

Legal Theory Bookworm The Legal Theory Bookworm recommends Law and Objectivity by Kent Greenawalt. Here's a blurb:
    In modern times the idea of the objectivity of law has been undermined by skepticism about legal institutions, disbelief in ideals of unbiased evaluation, and a conviction that language is indeterminate. Greenawalt here considers the validity of such skepticism, examining such questions as: whether the law as it exists provides determinate answers to legal problems; whether the law should treat people in an "objective way," according to abstract rules, general categories, and external consequences; and how far the law is anchored in something external to itself, such as social morality, political justice, or economic efficiency. In the process he illuminates the development of jurisprudence in the English-speaking world over the last fifty years, assessing the contributions of many important movements.
I am a big fan of Greenawalt's thoughtful and careful work. Highly recommended!

Download of the Week The Download of the Week is The Source of Blackstone's Intuition: Why We Think it Better to Free the Guilty than to Convict the Innocent by Sam Vermont. Here is the abstract:
    What is the source of the intuition, famously articulated by William Blackstone, that it is better to let a multitude of guilty persons escape than to convict an innocent person? This paper argues that a main source of the intuition is a bias against conviction that arises from various psychological quirks. These quirks simply render false conviction more salient than false acquittal.
Download it while its hot! This paper is fascinating, both for what it says and for what it doesn't.

Friday, September 23, 2005
Call for Papers: Duke Law Journal Conference on Katrina Duke Law Journal will be hosting a conference this March on the administrative law issues arising from Katrina. The call for papers is here:

Friday Calendar
    Harvard Law School Public Law Workshops: Kathleen Sullivan, Stanford Law School.
    Washington & Lee Law School: Winnifred Fallers Sullivan, Senior Fellow, Martin Marty Center at the University of Chicago Divinity School, 57th John Randolph Tucker Lecture, “Comparing Religions, Legally.”
    Georgetown International Human Rights Colloquium: Ruti G. Teitel, New York Law School.
    Harvard Public Law, Kathleen Sullivan, Stanford.
    UCLA Law: Pierre Legrand, University of Paris Pantheon-Sorbonne, Comparative Legal Studies and the Matter of Authenticity: Looking at the US Supreme Court as Comparatist in Lawrence v. Texas
    University of Pennylvania Philosophy Colloquium: Kok-chor Tan, The Boundary of Justice, and the Justice of Boundaries.
    University of Texas Law: Brian Leiter, "Why Evolutionary Biology is (so far) Irrelevant to Law."
    Cancelled, To Be Rescheduled: University of Alabama School of Law: Ernest Young, University of Texas, The Volk of New Jersey? Sovereignty and Political Community in Europe and the United States.

Book Announcement: On Adam Smith's Wealth of Nations by Samuel Fleischacker
    On Adam Smith's Wealth of Nations A Philosophical Companion Samuel Fleischacker To read the entire book description or a sample chapter, please visit: Adam Smith was a philosopher before he ever wrote about economics, yet until now there has never been a philosophical commentary on the Wealth of Nations. Samuel Fleischacker suggests that Smith's vastly influential treatise on economics can be better understood if placed in the light of his epistemology, philosophy of science, and moral theory. Paper | $19.95/ £12.95 | ISBN: 0-691-12390-X Cloth | 2004 | $55.00 / £35.95 | ISBN: 0-691-11502-8

Conference Announcement: Examining Folk Psychology
    York University’s Department of Philosophy and Program in Cognitive Science Presents:
      Examining Folk Psychology A one-day conference dedicated to exploring how minds understand other minds
    Saturday September 24, 2005 3009 Vari Hall York University 4700 Keele St. Toronto, Ontario Program:
      10:30 Katherin Glüer-Pagin (Uppsala University) Is Seeing Believing? On Folk Psychology and Perceptual Content 11:45 Daniel Hutto (University of Hertfordshire) The Narrative Practice Hypothesis 1:00 Lunch 2:00 Heidi Maibom (Carleton University) I Feel What You Think: Interest Relativity in Folk Psychological Attribution 3:15 Peter Pagin (Stockholm University) ‘I Know Exactly How that Feels.’ On Communicating About Sensations 4:30 Karsten R. Stueber (College of the Holy Cross) Empathy and Folk Psychological Explanations
    There is no fee to attend this conference. To register please email Kristin Andrews at

Conference Announcement:
    The Center for Informed Food Choices and Loyola Law School, Los Angeles, present:
      Food Marketing to Children and the Law A symposium of the Loyola of Los Angeles Law Review Friday, October 21
    With rising childhood obesity rates, public health advocates are becoming increasingly concerned with the impact of junk food marketing to children. Yet legal questions loom large about how to address the issue. Come to this cutting-edge symposium to hear leading experts from around the country speak on such critical topics as: the commercial speech doctrine, industry self-regulation, litigation as a tool, and lessons learned from the tobacco wars. Speakers include:
      Susan Linn, Judge Baker Children's Center, Harvard Medical School Tracy Westen, Center for Governmental Studies and former deputy director, Federal Trade Commission Angela Campbell, Georgetown University Law Center David Yosifon, Rutgers University School of Law Ellen Fried, Rudd Center for Food Policy and Obesity, Yale University Stephen Gardner, Center for Science in the Public Interest Jason Smith, Public Health Advocacy Institute Randolph Kline, Public Health Law Program Amanda Shaffer, Occidental College
    Date: Friday, October 21, 2005 Time: 1-5pm Location: Robinson Courtroom on the campus of Loyola Law School 919 Albany Street, Los Angeles, CA For directions to the campus, go to Parking is available on campus at a cost of $6. Admission: Free. No advance registration is required, but please RSVP to Bridget Klink, Law Review Coordinator, at (213) 736-1407 or For more information, contact Michele Simon, Symposium Coordinator, at (510) 465-0322 or For details, visit:

Thursday, September 22, 2005
Thursday Calendar

Conference Announcement
    EMOTIONS AND RATIONALITY IN MORAL PHILOSOPHY CONFERENCE October 27-29 2005 Neuchâtel-Berne, Switzerland The University of Neuchâtel and The Swiss association for Graduate Students in Philosophy (Sequitur) is proud to announce its conference on “Emotion and Rationality in Moral Philosophy” which will be held at the Universities of Neuchâtel and Bern (CH) from October 27 to October 29 (Thursday to Friday). Speakers include: Ronald De Sousa (Toronto), Kevin Mulligan (Geneva), Peter Goldie (London, Manchester), Christine Tappolet (Montréal), Laurent Jaffro (Clermont-Ferrand) Program and all relevant information concerning the conference can be found on the conference website: If you wish to attend the conference, please follow the instructions posted here:

Wednesday, September 21, 2005
Borgen on Norms & Transnational Tribunals Christopher Borgen has posted Transnational Tribunals and the Transmission of Norms: The Hegemony of Process on SSRN. Here is the abstract:
    Transnational tribunals-mechanisms that allow sub-national actors such as individuals and companies to sue states for infringements of their rights-are not only proliferating in number, they also have larger caseloads covering more substantive areas than ever before. My article assesses whether and how such tribunals cause normative change in the domestic legal and political systems of member states. At issue is not only whether a state chooses to comply with an adverse ruling, but whether the actual norms-the beliefs and habits-of the society change. Drawing on legal theory as well as sociology, game theory, and international relations theory, I compare and contrast the effects of tribunals focused on human rights with those concerned primarily with contractual and property rights. I conclude that instead of normative transmission being simply a form of legal imperialism by Western democracies, as some have argued, there are actually many different constituencies building alliances across state and class lines in attempts to forward their claims both domestically and internationally. All of these constituencies-corporate interests, human rights activists, environmentalists, and indigenous peoples-access and use the tools of globalization via the means of transnational legal process, such as adjudication before transnational tribunals. This is neither the North versus the South, nor the global versus the local, but rather the struggle of communities that transcend state borders, have competing conceptions of the good, and use the tools of globalization. Their common use of similar legal mechanisms leads to a "hegemony of process" in which certain outcomes are favored by certain procedural structures.

Wednesday Calendar
    Loyola Law School, Los Angeles: Lars Waldorf, World Policy Institute, New School University, "Mass Justice for Mass Atrocity: Rethinking Local Justice As Transitional Justice".
    NYU History: Serena Mayeri, Golieb Fellow, "The Strange Career of Jane Crow: Sex Segregation and the Transformation of Anti-Discrimination Discourse."
    Northwestern Law & Economics: Jonathan Klick, Jeffrey A. Stoops Professor of Law, Florida State University, "Abortion Access and Risky Sex Among Teens: Parental Involvement Laws and Sexually Transmitted Diseases"
    Villanova Law: Alafair Burke, Hofstra University School of Law, "Improving Prosecutorial Decision Making: Some Lessons of Cognitive Science"

Google Print Lawsuit & Class Certification The New York Times reports on a potential class-action lawsuit filed by authors against Google Print in a story entitled Writers Sue Google, Accusing It of Copyright Violation. Here's a taste:
    Three authors filed suit against Google yesterday contending that the company's program to create searchable digital copies of the contents of several university libraries constituted "massive copyright infringement." The lawsuit, filed in United States District Court in Manhattan, is the first to arise from the Google Print Library program, the fledgling effort aimed at a searchable library of all the world's printed books.
The complaint can be found here. Putting on my proceduralist hat for a moment, there is a very substantial problem with class certification. The complaint defines the class as follows:
    The Class is initially defined as all persons or entities that hold the copyright to a literary work that is contained in the library of the University of Michigan.
That class includes many authors who would be injured if the plaintiffs were to prevail--including, for example, me! I am member of the plaintiff class--owning the copyright to at least three or four dozen works in the University of Michican library. I have a very strong objective interest in Google Print succeeding--because as a scholar, I benefit from the dissemination of my works and because reaching agreement with Google will be costly to me and Google, essentially killing the project. A substantial intraclass conflict of interest destroys "adequacy of representation," making class certification inappropriate, both under the federal rules of civil procedure and under the due process clause of the fifth amendment of the U.S. Constitution. Opt out is not a solution--because that would create an affirmative duty to monitor the litigation and opt out (in order to preserve a constitutional right), and the Supreme Court has made it clear that no such duty should be created in a number of cases, including Phillips Petroleum v. Shutts. Pro-bono representation for intervenors opposing certification, anyone?

Conference Announcement: Justice & IP
    Theories of Justice and Intellectual Property: A one day conference October 28, 2005, 9 a.m. - 6 p.m. Salle du Conseil, Facultés universitaires Saint-Louis, Boulevard du Jardin botanique 43, 1000 Brussels (4e étage) Convenors : Axel Gosseries, Alain Marciano and Alain Strowel Schedule:
      9 h. Introduction Alain Marciano, Université de Reims Champagne Ardenne 9 h 15 . The insusceptibility of intellectual property to Lockean justifications Daniel Attas, The Hebrew University of Jerusalem 10h15-10h 30 Coffee Break 10h30. Libertarianism and Copyright Jonathan Trerise, University of Missouri-Columbia 11h30 . Biopiracy and the Misuse of Intellectual Property Clark Wolf, Bioethics Program, Iowa State University 12h30-14h Meal 14h. The Case for A Regulatory Intellectual Property Law Shubha Ghosh, University at Buffalo Law School, SUNY 15h-15h15 Tea Break 15h15-16h15. Is copyright property? Leif Wenar, University of Sheffield 16h15-17h15. Access versus exclusion to knowledge: balancing the effects of intellectual property rights on social context Giovanni Ramello, Università Carlo Cattaneo, LIUC 17h15-18h Concluding comments and general discussion : Alain Strowel, Fac. universitaires St-Louis and Axel Gosseries, FNRS/Univ. Cath. de Louvain
    REGISTRATION Free but compulsory by October 15, 2005, by sending an E-mail to Nadine Noel (tel : 02/211.79.58) or, if after the 15th, to Thérèse Davio (tel 010/47.39.51) with the following information: Surname - First name - Institution - Postal address - E-mail

Tuesday, September 20, 2005
Roberts in His Own Words John Roberts in His Own Words is a handy dandy compilation of his statements during the confirmation process. Here is a taste, from the section on Roberts's views on stare decisis or precedent:
    “It is not enough that you may think the prior decision was wrongly decided. That really doesn’t answer the question. It just poses the question. And you do look at these other factors, like settled expectations, like the legitimacy of the Court, like whether a particular precedent is workable or not, whether a precedent has been eroded by subsequent developments. All of those factors go into the determination of whether to revisit a precedent under the principles of stare decisis.” (September 13)
    “[S]tare decisis is not an inexorable command. . . . At the same time, you always have to take into account the settled expectations that have grown up around the prior precedent. It is a jolt to the legal system to overrule a precedent, and that has to be taken into account, as well as the different expectations that have grown up around it.” (September 13)

Book Announcement: Williams on Moralism and Realism in Political Argument
    In the Beginning Was the Deed: Realism and Moralism in Political Argument by Bernard Williams Selected, edited, and with an introduction by Geoffrey Hawthorn To read the entire book description or a sample chapter, please visit: Bernard Williams is remembered as one of the most brilliant and original philosophers of the past fifty years. Widely respected as a moral philosopher, Williams began to write about politics in a sustained way in the early 1980s. There followed a stream of articles, lectures, and other major contributions to issues of public concern--all complemented by his many works on ethics, which have important implications for political theory. This new collection of essays, most of them previously unpublished, addresses many of the core subjects of political philosophy: justice, liberty, and equality; the nature and meaning of liberalism; toleration; power and the fear of power; democracy; and the nature of political philosophy itself. Cloth | $29.95 / £18.95 | ISBN: 0-691-12430-2

Tuesday Calendar

Gely & Caron on the Next Generation of Law School Rankings Rafael Gely and Paul Caron have posted Dead Poets and Academic Progenitors: The Next Generation of Law School Rankings on SSRN. Here is the abstract:
    This Symposium is an outgrowth of our article, What Law Schools Can Learn from Billy Beane and the Oakland Athletics, 82 Tex. L. Rev. 1483 (2004). With the approaching twentieth anniversary of the first U.S. News & World Report law school rankings, it is a particularly propitious time to take a fresh look, to hear new voices, and to reconsider issues surrounding law school rankings. Many of America's most thoughtful law professors (as well as academics in other disciplines) gathered on April 15, 2005 at the Indiana University School of Law - Bloomington to discuss The Next Generation of Law School Rankings. The papers and commentary presented at the event and recorded in these pages reflect a wide array of creative, challenging, and captivating perspectives on the rankings tableau. In the pages that follow, we are confident that you will agree that we have fulfilled the goal we set for the Symposium:
      The goal of this Symposium is to deepen our understanding of rankings and their effects on legal education. The participants in this Symposium will examine the need for law school rankings; the effects of rankings on legal education; and the various new approaches to addressing the public's insatiable demand for ever more and increasingly sophisticated rankings, which permeate not only legal education but also all aspects of American life.
    We believe the Symposium papers and commentary make an enormous contribution to our understanding of rankings and their effects on legal education.

Book Announcement: Athenian Legacies by Ober
    Athenian Legacies: Essays on the Politics of Going On Together by Josiah Ober To read the entire book description or the introduction, please visit: How do communities survive catastrophe? Using classical Athens as its case study, this book argues that if a democratic community is to survive over time, its people must choose to go on together. That choice often entails hardship and hard bargains. In good times, going on together presents few difficulties. But in the face of loss, disruption, and civil war, it requires tragic sacrifices and agonizing compromises. Cloth | $29.95 / £18.95 | ISBN: 0-691-12095-1

Monday, September 19, 2005
Artzi & Patterson on the State of Jurisprudence Over at Law & Society Weblog, Nico Artzi has a post entitled What’s wrong with Jurisprudence?. The central claim is:
    As observations of the communicative action of any conference in legal philosophy betray, jurisprudes have been devoutly monotheistic, worshiping a single god: the god of moral philosophy. For reasons that have to do with the history and sociology of ideas – not substantive reasons – jurisprudes are infatuated with moral philosophy and are forever seeking the approval of moral philosophers. Many seem to be attached to the belief that legal philosophy – a philosophy of a social phenomenon – can be produced using the same ‘methodologies’ as those of moral philosophy.
Dennis Patterson comments:
    With all due respect, this attack on analytic jurisprudence is a bit muddled. The primary claim seems to be that the central “problem” of analytic jurisprudence is worship of “the god of moral philosophy.” Anyone familiar with, say, HLA Hart’s book *The Concept of Law* could hardly characterize the book as preoccupied with the methodology of moral philosophy. How, if at all, is Hart’s distinction between Primary and Secondary Rules taken from moral philosophy (hint: it isn’t)? Does Hart’s attack on Austin’s account of law proceed from moral philosophy? No, it does not. And is Hart’s account of adjudication in Chapter 7 of *Concept* based in the least on anything drawn from moral philosophy? No, it is not. And when leading contemporary legal philosophers like Jules Coleman turn to Sellars and Bratman (neither a moral philosopher) for analytic tools to enhance their accounts of law, Mr. Artzi’s critique has no account of this. Analytic philosophy may be in a state of ill health. If it is, worship of the methods of moral philosophers is not the cause.
Patterson is surely right that the methods of moral philosophy hardly dominate analytic jurisprudence--although they play a central role in normative legal theory in important subfields, e.g. criminal law.
Of course, both law and morality are social phenomena, but Artzi realy produced no argument against utilization of the methods of moral philosophy in normative legal theory. One could try to make the case that morality is simply irrelevant to normative claims about criminal law, for example, But such a claim will be difficult to establish and it will require arguments, not bluster, to make the case.