Legal Theory Blog



All the theory that fits!

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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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Thursday, March 30, 2006
 
At Notre Dame Today I'm at the the Roundtable on Steve Smith's Law's Quandary at Notre Dame today. I'm really looking forward to this. If you haven't yet read Steve Smith's book, please do! Smith is one of the best writer's in the legal academy, and Law's Quandary explores some of the deepest issues in legal theory from Smith's unique and thoughtful perspective. Details for the roundtable are in today's calendar--scroll down.

Posted by Lawrence Solum at 3/30/2006 11:39:00 PM

 
Three by Bix Brian Bix has three new papers on SSRN:
    Contract Law Theory:
      This working paper is an early draft of two chapters (and the Preface and Bibliography) from a larger work on Contract Law (for the series, Cambridge Introductions to Philosophy and Law). The working paper covers the theory-focused part of the project. The paper analyzes what it means to have a theory of Contract, and what the criteria should be for evaluating such theories. The paper concludes that general or universal theories of Contract Law - at least those that have been presented to date (including economic theories of contract law, and deontological theories focusing on promising or autonomy) - cannot be justified, and we must seek instead to construct a theory that focuses on a particular legal system (or small group of legal systems), and that emphasizes the variety of principles and approaches within Contract Law, rather than seeking to find or impose a unity that does not exist. In the course of the argument, the paper also touches on the role of history in explaining legal doctrine, voluntariness in contract formation, the moral obligation to keep contracts, and the relationship between rights and remedies.
    Robert Alexy's Radbruch:
      Gustav Radbruch is well known for a “formula” that addresses the conflict of positive law and justice, a formula discussed in the context of the consideration of Nazi laws by the courts in the post-War German Federal Republic, and East German laws in the post-unification German courts. More recently, Robert Alexy has defended a version of Radbruch’s formula, offering arguments for it that are different from and more sophisticated than those that were adduced by Radbruch himself. Alexy also placed Radbruch’s formula within a larger context of conceptual analysis and theories about the nature of law. Both Radbruch and Alexy claim that their positions are incompatible with legal positivism, and therefore count as a rejection (and perhaps, refutation) of it. This paper, presented at a Conference on the work of Gustav Radbruch, looks at Radbruch’s formula and Alexy’s version of it. It focuses not so much on the merit of the Radbruch-Alexy formula, as on its proper characterization, and its appropriate placement within the larger context of legal philosophy. THe particular focus is the methodological question of what Radbruch and Alexy’s formulations - and their strengths and weaknesses - can show us about the nature of theorizing about law.
    Ross on Rights:
      Scandinavian legal realism was a movement of the early and middle decades of the 20th century, which paralleled the American legal realist movement, while presenting a more skeptical challenge to legal reasoning and discourse. The present paper was written for a collection on the work of Alf Ross, one of the most accessible of the Scandinavian realists. Ross's approach to jurisprudence was simultaneously simple and radical: he wanted to rid our thinking about law of all the mystifying references to abstract concepts and metaphysical entities. This paper offers a critical overview of Ross's views on legal rights, while also summarizing the critiques of Ross's view by the legal positivist H.L.A. Hart and the Scandinavian realist Karl Olivecrona.
    I always read Bix!

Posted by Lawrence Solum at 3/30/2006 11:31:00 PM

 
Friday Calendar
    University of Notre Dame: Law's Quandary, A Roundtable:
      8:45 a.m. Introduction (Room 100-104, Center for Continuing Education) 9:00-10:15 a.m. Discussion: Larry Solum paper / Mark Tushnet comment 10:15-10:30 a.m. Break 10:30-11:45 a.m. Discussion: Brian Bix paper / Connie Rosati comment 11:45-12:00 p.m. Break 12:00-1:30 p.m. Lunch at the Morris Inn, in the Donors Room 1:30-2:45 p.m. Discussion: Joseph Vining paper / Patrick Brennan comment 2:45-3:00 p.m. Conclusion 3:00-4:00 p.m. Break 4:00-5:30 p.m. Lecture, “The Always Imminent Death of the Law” in the Law School Courtroom 5:30-6:00 p.m. Break 6:00 - evening Cocktails & Dinner (Eck Visitors’ Center)
    University of Pennsylvania Philosophy: Amy Gutmann, University of Pennsylvania,The Lure of Extremism: Certainty and Single-mindedness
    Villanova Law: Mary-Rose Papandrea, Boston College Law School
    Oxford Institute of European and Comparative Law: French-English Conference: FORUM SHOPPING IN THE EUROPEAN JUDICIAL AREA
    University of Utah Law: PANEL DISCUSSIONs WITH HON. MARGARET H. MARSHALL: Law, Constitutions, and Rights: Local Utah Issues
      State Senator Scott McCoy (Utah Senate District 2), "Gay Rights and the Utah Constitution: Interpreting Amendment 3" Heidi McIntosh (Southern Utah Wilderness Society), "Democracy and the Right to Wilderness: The Utah Experience" Brett Scharffs (Law, Brigham Young University), "We are All a Religious Minority: Implications of Acting as if We Really Believed this Truth" moderated by Dean Robert Newman (College of Humanities, University of Utah)
    University of Maryland School of Law: The Impact of Film on Law, Lawyers, and the Legal System
    Boston College Law School, “Owning Standards”:
      William Bratton Georgetown University Michael Carroll Villanova Lawrence A. Cunningham Boston College A. Michael Froomkin University of Miami Herbert Hovenkamp University of Iowa Scott Kieff Washington University in St. Louis Mark Lemley Stanford University Joseph Liu Boston College Frank Partnoy University of San Diego Pam Samuelson University of California—Berkeley Sidney Shapiro Wake Forest University Greg Vetter University of Houston Alfred Yen Boston College
    Gerogetown Law & Economics: Nancy Staudt, Washington University School of Law (St. Louis)
    Florida State Law: Matthew McCubbins, University of California, San Diego. Joint workshop with FSU Political Science Department.
    Cornell Law: Jeremy A. Blumenthal, "Emotional Paternalism"

Posted by Lawrence Solum at 3/30/2006 11:30:00 PM

 
Thursday Calendar
    University of Illinois College of Law, Criminal Law Colloquium: Jeannine Bell, Indiana University, Fattening a Frog to Feed a Snake: The (In)Effectiveness of Torture
    University of Illinois Law: Susanna Blumenthal (Assistant Professor of Law at the University of Michigan Law School, "The Default Legal Person"
    Yale Law Economics & Organization Workshop: Professor Gillian Hadfield, USC Law, The Quality of Law in Civil Code and Common Law Regimes: Judicial Incentives, Legal Human Capital and the Evolution of Law
    University of Michigan Law & Economics: Paul Heald, Georgia, The Problem of Social Cost in a Genetically Modified Age
    University of Arizona James E. Rogers College of Law: Professor Margo Bagley, Emory Univ. School of Law; Topic: "Academic Discourse and Proprietary Rights: Putting Patents in Their Proper Place."
    University of Cincinnati Law: Adam Feibelman, Contract, Priority, and Odious Debt
    Northwestern Advanced Topics in Taxation: Kyle D. Logue, Professor of Law, University of Michigan, "Deterring Abusive Tax Avoidance: Optimal Enforcement When the Law is Uncertain"
    University of Utah Law: PANEL DISCUSSIONs WITH HON. MARGARET H. MARSHALL:
      States' Rights, Minority Protections, and the Constitution
        Hon. Christine Durham, (Chief Justice, Utah Supreme Court), "State Constitutions and Affirmative Rights" Leslie Francis (Philosophy, and Law, University of Utah), "Federalism and Human Rights: An Unstable Combination?" Brenda Cossman (Law, University of Toronto), "Judicial Activism, Comparative Constitutionalism, and the Trope of Same Sex Marriage" moderated by Martha Ertman (Law, University of Utah)
      Human Rights, Law, and Constitutionalism: Transnational Resonances
        James Gibson, (Political Science, Washington University), "The Rule of Law as an Impediment to Tyranny?" Erika George (Law, University of Utah), "Constitutional Law Crossing Borders: The Role of International and Foreign Law in U.S. Supreme Court Jurisprudence" Linda Kerber (History, University of Iowa), "Thoughts on Statelessness in American History" Liz Borgwardt (History, University of Utah), ""The Four Freedoms, the Atlantic Charter, and the Reinvigoration of Rights Discourse in the World War II Era" moderated by President Michael Young (University of Utah)
    University of Utah Law: Hon. Margaret H. Marshall, Chief Justice, Massachusetts Supreme Judicial Court, Tension and Intention: The American Constitutions and the Shaping of Democracies Abroad
    Loyola, Los Angeles: Jeff Atik, Professor of Law, Loyola Law School, Embracing Price Discrimination: TRIPS and Parallel Trade in Phamaceuticals
    George Mason Law: Dean Lueck, University of Arizona Department of Economics, The Organization and Behavior of Bureaucracy: The Case of the Wildlife Agency
    Fordham Law: Deborah W. Denno, Professor of Law, Fordham University School of Law, "Mental State Across Ten Centuries: 1235
    Brooklyn Law School: Margaret Brinig, Iowa, Standards for Licensing and Driving
    Boston University Law: Nancy Moore, "Mens Rea Standards in Lawyer Disciplinary Codes"

Posted by Lawrence Solum at 3/30/2006 04:04:00 AM

 
Conference Announcement: Dual Process Theories of Rationality at Cambridge
    IN TWO MINDS: DUAL-PROCESS THEORIES OF REASONING AND RATIONALITY The Open University UK, 5-7 July 2006, at Fitzwilliam College, Cambridge An interdisciplinary conference on reasoning and rationality, organized by the Department of Philosophy at the Open University, in association with the University's Mind, Meaning and Rationality research group. AIMS There has been growing interest recently in so-called 'dual-process' theories of reasoning and rationality. Such theories postulate two distinct systems (or sets of systems) underlying human reasoning -- typically distinguishing an evolutionarily old system ('System 1') that is associative, automatic, unconscious, parallel, and fast, and a more recent, distinctively human system ('System 2') that is rule-based, controlled, conscious, serial, and slow. On some views, System 1 processes are held to be innate and to employ heuristics which evolved to solve specific adaptive problems, whereas System 2 processes are taken to be learned, flexible, and responsive to rational norms. Widespread cognitive illusions, such as the conjunction fallacy, can be ascribed to System 1, while superior individual performances can be explained as the result of System 2 processes overriding System 1 responses. Some writers also suggest that the two systems are associated with different conceptions of rationality. This three-day interdisciplinary conference will for the first time bring together the leading researchers on dual-processes theory in order explore the motivations for different dual-process theories, the connections and contrasts between them, and their implications for various disciplines. The focus will be on theoretical aspects of dual-process theory, rather than purely experimental work, and there will be special emphasis on the philosophical applications of work in this area. SPEAKERS The following people have agreed to speak at the conference: Peter Carruthers (University of Maryland); Nick Chater (University of Warwick); Zoltan Dienes (University of Sussex) Jonathan Evans (University of Plymouth); Keith Frankish (Open University); Vinod Goel (York University, Toronto); Paul Klaczynski (Pennsylvania State University); Matthew Lieberman (UCLA); Mike Oaksford (Birkbeck College London); David Over (University of Sunderland); Richard Samuels (King's College London); Steven Sloman (Brown University); Dan Sperber (Centre National de la Recherche Scientifique, Paris); Keith Stanovich (University of Toronto), and others. REGISTRATION For details of how to register for the conference, please go the conference website at www.open.ac.uk/arts/dualprocess ORGANIZER AND SPONSORS The conference is organized by the Philosophy Department of the Open University in conjunction with the University's Mind, Meaning and Rationality Group. The organizing committee consists of Keith Frankish and Carolyn Price of the Open University and Jonathan Evans of the University of Plymouth. The organizers gratefully acknowledge the generous support of the Mind Association, the Economic and Social Research Council, and the Open University. CONTACT Email: dualprocess@open.ac.uk Website: www.open.ac.uk/arts/dualprocess Mail: Dual-process conference, The Departmental Co-ordinator C/o Department of Philosophy, The Open University, Walton Hall, Milton Keynes, MK7 6AA, UK

Posted by Lawrence Solum at 3/30/2006 04:00:00 AM

Wednesday, March 29, 2006
 
Wednesday Calendar>
    University of Pennsylvania, Seventh Annual Bienniel Seybert Lectures: T.M. Scanlon, The Ethics of Blame
    William Mitchell Law: Robert Delahunty, St. Thomas Law, This call may be monitored: Is NSA wiretappling legal?
    NYU Legal History: Amalia Kessler, Assistant Professor, Stanford Law School, “A Revolution in Commerce: The Parisian Merchant Court and the Rise of Commercial Society in Eighteenth-Century France”

Posted by Lawrence Solum at 3/29/2006 07:18:00 AM

Tuesday, March 28, 2006
 
Opinio Juris Reception at ASIL I'm passing along the following:
    For those of you who will be at the Annual Meeting of the American WSociety of International Law (or just in DC), I wanted to let you know that Opinio Juris and the ASIL will sponsor a reception on Thursday evening, March 30th, from 7:30 to 8:30 in the Longworth Room of the Fairmont Hotel, 2401 M Street, NW (the location of the Annual Meeting). Besides wine and cheese, we will also have an informal discussion on international law and blogging. We expect that bloggers from other law blogs will be joining us as well. We hope this will be a chance for many of us who know each other via the Internet to actually get together in person. Please note that you do not need to be registered for the ASIL Annual Meeting in order to attend this reception. FYI, following is the description from the Annual Meeting program. We hope to see you there. Opinio Juris Wine and Cheese Reception on International Law Blogging Thursday, March 30th, 7:30–8:30 pm Join ASIL staff and the contributors of the international law blog Opinio Juris (www.opiniojuris.org) for an open and informal discussion about current trends in international law blogging. Established in 2005, Opinio Juris now includes six permanent law professor contributors (Chris Borgen, Peggy McGuinness, Julian Ku, Roger Alford, Kevin Heller, and Duncan Hollis) and has over 15,000 visits per month. If you are a blogger, reader, or just curious about this new medium, please join us.

Posted by Lawrence Solum at 3/28/2006 12:45:00 PM

 
Tuesday Calendar
    University of Pennsylvania, Seventh Annual Bienniel Seybert Lectures: T.M. Scanlon, Blame and Freedom
    University of Illinois College of Law: Amy Wax, Diverging Destinies: Economics, Behavior, and the Decline of Marriage
    University of Texas: Érica Gorga (UT) "Knowledge Resources and Their Implications for the Theory of the Firm and Corporate Governance"
    Georgetown Constitutional Law & Theory: Cristina Rodriguez (law, NYU) Language and Participation
    University of North Dakota Law: John Washburn, Convener of the American Non-governmental Organizations Coalition of the International Criminal Court (AMICC), “Genocide and Terrorism Attacked - The International Criminal Court at Work: Darfur, Congo, and Uganda”
    Yale Legal History: MICHAEL KLARMAN, University of Virginia School of Law "Brown and Lawrence (and Goodridge)"
    Vanderbilt Law Faculty Workshop: Katherine Franke, Columbia University Law School, "Subjects of Freed-dom"
    University of Texas Constitutional Studies Luncheon: Cindy Skach (Harvard)
    University of Chicago Law & Economics: Catherine Sharkey, Associate Professor of Law, Columbia University School of Law, Crossing the Punitive-Compensatory Divide
    University College, London, Faculty of Laws, The Constitutional Law Group: ‘Reforming and Reorganising Tribunals’
      Sir Robert Carnwath, Lord Justice of Appeal and Senior President of Tribunals Designate. Genevra Richardson, Professor of Public Law at Kings College London, Member of the Council on Tribunals. Cheryl Saunders, Arthur Goodhart Visiting Professor of Legal Science (University of Cambridge), Professor of Law (University of Melbourne), President of the International Association of Constitutional Law, former President of the Administrative Review Council (Australia)
    Ohio State Law: Alan C. Michaels, Ohio State, Reasonable Victims
    Marquette Law: Laurel Oates, Reading Skills & Law School Performance
    University of Houston Law Center, Third Annual Baker Botts Lecture: The Honorable Arthur J Gajarsa
    Georgetown Law Faculty Workshop: James Forman

Posted by Lawrence Solum at 3/28/2006 06:25:00 AM

 
Book Announcement: The Politics of Precedent by Hansford & Spriggs
    The Politics of Precedent on the U.S. Supreme Court Thomas G. Hansford and James F. Spriggs, II To read the entire book description or the introduction, please visit: http://pup.princeton.edu/titles/8204.html The Politics of Precedent on the U.S. Supreme Court offers an insightful and provocative analysis of the Supreme Court's most important task--shaping the law. Thomas Hansford and James Spriggs analyze a key aspect of legal change: the Court's interpretation or treatment of the precedents it has set in the past. Court decisions do not just resolve immediate disputes; they also set broader precedent. The meaning and scope of a precedent, however, can change significantly as the Court revisits it in future cases. The authors contend that these interpretations are driven by an interaction between policy goals and variations in the legal authoritativeness of precedent. From this premise, they build an explanation of the legal interpretation of precedent that yields novel predictions about the nature and timing of legal change. Cloth | $29.95 / £18.95 | ISBN: 0-691-12354-3

Posted by Lawrence Solum at 3/28/2006 06:15:00 AM

 
Allen on O'Connor & the Right to Die Michael Patrick Allen (Stetson University - College of Law) has posted Justice O'Connor and the "Right to Die": Constitutional Promises Unfulfilled (14 William & Mary Bill of Rights Journal, Vol. 14, No. 000, pp. 1-22, 2006) on SSRN. Here is the abstract:
    After nearly twenty-five years on the bench, Justice Sandra Day O’Connor left the Supreme Court at the end of January 2006. There has been much discussion of Justice O’Connor’s decisions in areas such as federalism, the First Amendment’s Establishment Clause, and affirmative action, among other topics. But very little has been written about her important role in the development of federal constitutional law concerning the “right to die.” This Essay seeks to fill this gap in the literature by exploring Justice O’Connor’s important concurring opinions in Cruzan and Glucksberg. I argue that these opinions created constitutional promises of a sort that remain unfulfilled as Justice O’Connor retires. I also explain why this need not have been the case while highlighting the real world consequences of the failure to live up to the promises.

Posted by Lawrence Solum at 3/28/2006 06:04:00 AM

 
McCluskey on Equality & Elitism Martha T. McCluskey (University at Buffalo - Law School) has posted How Equality Became Elitist: The Cultural Politics of Economics from the Court to the “Nanny Wars” (Seton Hall Law Review, 2006) on SSRN. Here is the abstract:
    In this essay, developed for the 2004 LatCrit conference on Countering Kulturkampf Politics, I challenge the presumption that the term “culture wars” captures controversies over the “social” or “moral” order distinct from the economic order. I argue that “free-market” economic ideology is a key hidden player on the right-wing team in the “culture wars.” In turn, the “culture wars” debate serves free-market economic fundamentalism by deploying “morality” both to mask and to legitimate rising economic inequality and the upward redistribution of resources. By turning class into culture, and culture into class, as journalist Thomas Frank suggests in his book What's the Matter with Kansas?, conservatives can enlist the non-wealthy in the cause of promoting economic inequality. Using examples from both recent Supreme Court rulings and popular media attention to work-and-family conflicts, I analyze the way in which the very division between economic and cultural politics works to undermine progressive and egalitarian visions of law. I compare Justice Scalia's criticism of the Court's involvement in the culture wars (in Lawrence v. Texas and Romer v. Evans) to the reasoning in Plessy v. Ferguson that divides social equality from questions of economic and political rights. In both, the invocation of culture makes the inequality at issue appear too contingent but at the same time too fixed and universal to be amenable to constitutional redress. Turning to popular culture, I analyze how the opposition between economic inequality and gender equality similarly works to undermine both in a 2004 Atlantic Monthly cover story by Caitlin Flanagan, How Serfdom Saved the Women's Movement: Dispatches from the Nanny Wars. Flanagan criticizes feminist advocacy of increased public support for child care as elitist, by presenting gender equality in the workplace as inevitably opposed to economic and racial equality. I show how Flanagan's purported effort to turn feminist attention to economic class, and particularly to the interests of low-waged immigrant domestic workers, actually serves to reinforce and naturalize not just gender inequality but also the economic and racial inequality that she claims to challenge. Flanagan uses the opposition between gender equality and economic equality to make poverty a personal moral matter, obscuring the legal decisions and political structures that promote gender, race and economic inequality.

Posted by Lawrence Solum at 3/28/2006 06:02:00 AM

 
Schor on the Rule of Law Miguel Schor (Suffolk University Law School) has posted The Rule of Law on SSRN. Here is the abstract:
    This essay explores the problem of establishing the rule of law in new democracies. Many of the new democracies in the world have regular elections yet lack the rule of law. Most scholars believe that these new democracies must adopt the “best practices” of Western democracies by reforming judicial systems and strengthening constitutional judicial review. This argument rests on the view that many new democracies lack the rule of law because political actors have the power to trump the legal system and that what is needed is a strengthening of judicial independence. The essay argues that this view is incomplete because it fails to take into account the problems that new democracies have in implementing the rule of law. These polities enjoy the “un-rule of law” rather than the rule of law. The un-rule of law is not an aberration but a logical response to the problem of development. For a poor nation faced with a myriad of social and economic difficulties, the logical response is to give nearly all power to one individual to deal with those problems. There is considerable political support for this concentration of power which is precisely why rule of law reforms often fail. The key to effectuating the rule of law lies not in adopting rules borrowed from developed democracies but in crafting a constituency for a legal system. Courts are the least dangerous branch. They lack power unless other actors are willing to implement judicial decisions. The reason why there is no rule of law in the developing world is that there is little political support for the judicial system. Courts are marginal to the politics of developing nations. Developed nations, on the other hand, have effective mechanisms in place for implementing judicial decisions and political and economic actors, therefore, can use the courts to achieve their aims. In short, establishing the rule of law requires constructing an effective transmission belt from judicial decisions to society. The view of most scholars that the developing world needs to separate law from politics fails to comprehend the processes by which the rule of law becomes effectuated. The rule of law does not rest on the negation of politics but on crafting the proper linkages between courts and the citizenry.

Posted by Lawrence Solum at 3/28/2006 06:01:00 AM

Monday, March 27, 2006
 
Weekend Update On Saturday, the Download of the Week was Presidents, Senates, and Failed Supreme Court Nominations by Keith Whittington and the Legal Theory Bookworm recommended When Courts and Congress Collide: The Struggle for Control of America's Judicial System by Charles Gardner. Sunday's Legal Theory Lexicon was on Fit and Justification and the Legal Theory Calendar rounded up the week's talks, workshops, and conferences.

Posted by Lawrence Solum at 3/27/2006 06:22:00 AM

 
Lando on Utilitarianism & Preferences for Fairness Henrik Lando (Copenhagen Business School - Department of Industrial Economics & Strategy (IVS)) has posted On Utilitarianism as an Objective Ethical Norm, and Preferences for Fairness on SSRN. Here is the abstract:
    The article discusses the claim, advanced e.g. by the philosopher R.G. Hare, that utilitarianism - conceived of as the summing of utilities of all parties affected by a social choice - is an 'objective' standard of fairness or justice that can be derived from simple principles which most people adhere to. I argue that this claim is difficult to reconcile with the notion that people derive utility from seeing reality conform to their standard of fairness or justice. Once standards of fairness or justice are recognized as sources of utility (and not seen only as convictions that can be altered by the logic of utilitarianism), it involves a contradiction to refute such standards on utilitarian grounds. I further briefly defend the view that fairness or justice standards are a source of utility, and argue against the view that including such preferences in social decision making would involve double counting of utilities.

Posted by Lawrence Solum at 3/27/2006 06:20:00 AM

 
Tillman on Ross on the Electoral College Seth Tillman has posted Betwixt Principle and Practice: Tara Ross's Defense of the Electoral College. Reviewing: Enlightened Democracy: The Case for the Electoral College (World Ahead Publishing 2004) on SSRN. Here is the abstract:
    Tara Ross has taken on a herculean task: an exposition of and a defense of the electoral college, in conjunction with a defense of prevailing state statutory and customary presidential election processes, including: first-past-the-post, winner-take-all with regard to appointing electors. It is a valiant, romantic, Don Quixote like effort. But in the end: the windmill still wins. It always does. Her explanation of prevailing practices falls short of the mark. And this I suggest might be a sign that the system is too complex and unwieldy. Ross also defends the electoral college for consistently producing the right winner, notwithstanding 1876 and 2000 where the electoral college winner (under the final tally) had fewer popular votes. But this defense, so common among defenders of the electoral college, fails to recognize that many states historically were rotten boroughs where those with the de jure and de facto vote controlled the whole state's slate of electors. So the if-it-ain't-really-really-broke-let's-not-fix-it-Burkean position is not so clear. Lastly, Ross's defense of the electoral college, rooted in federalism and states' rights concerns seems, to this reviewer at any rate, somewhat untethered from the actual details of the electoral college she seeks to defend. Since Ross published her book. Professor George C. Edwards III (Why the Electoral College Is Bad for America, Yale Press, 2004) and Professor Robert Bennett (Taming the Electoral College, Stanford Press, forthcoming 2006) have written books calling for -- you guessed it -- abandoning or reforming the electoral college. I hope to have a (joint) book review of their work out in short order.

Posted by Lawrence Solum at 3/27/2006 06:10:00 AM

 
Allen on Congress, Schiavo, and Constitutional Order Michael Patrick Allen (Stetson University - College of Law) has posted Congress and Terri Schiavo: A Primer on the American Constitutional Order? (West Virginia Law Review, Vol. 108, pp. 309-360, 2006) on SSRN. Here is the abstract:
    Much of America seemed to be captivated – or horrified – last year by the saga concerning Theresa Marie Schiavo and her approach to the end-of-life. One of the most unusual events in a story filled with them was Congressional passage of Public Law 109-03, An Act for the Relief of the Parents of Theresa Marie Schiavo. The Act, which provided a federal forum to consider the constitutional issues related to the removal of Ms. Schiavo’s feeding tube, was widely derided, a position with which I agree as a policy matter. However, there were also strident assertions that this Congressional action was unconstitutional. These arguments variously contended that the Act violated principles of federalism, separation of powers and/or constitutional protections of individual liberties. This Article considers the claim that the Act violated the structural constitutional principles concerning separation of powers and federalism. I ultimately conclude that it does not. In fact, I assert that understanding why the Act is consistent with the Constitution tells one a great deal about the American constitutional order.

Posted by Lawrence Solum at 3/27/2006 06:08:00 AM

 
Schor on Latin America & Constitutionalism Miguel Schor (Suffolk University Law School) has posted Constitutionalism Through the Looking Glass of Latin America (Texas International Law Journal, Vol. 41, p. 1, 2006) on SSRN. Here is the abstract:
    The Article is part of a larger work in progress dealing with constitutionalism in the Americas. It explores the following question: why did constitutionalism in Latin America take a different path than in the United States? Constitutions were adopted throughout the New World in the wake of independence movements in the late eighteenth and early nineteenth centuries to effectuate republican government. Yet constitutionalism in Latin America led to dictatorship whereas constitutionalism in the United States led to republican government. The conventional answer to this issue is that the constitution was entrenched in the United States because law is independent from politics, whereas constitutions were not entrenched in Latin America because law is subservient to politics. The conventional answer posits that the cure for the uncertain constitutional environment in Latin America lies in reforming the bits and pieces of democratic governance - the executive, the judiciary, the legislature, and state and local government - so that courts have the independence necessary to effectuate constitutional guarantees. This Article argues, however, that the conventional view overly emphasizes the role of independent courts in making constitutions work while ignoring the role of we the people. Constitutions become entrenched against political inroads when citizens are willing to mobilize on behalf of the fundamental rules of the game. The key to successful constitutionalism lies not in the separation of law and politics, as the conventional view posits, but rather in the separation of constitutional politics from ordinary politics. Constitutions become entrenched from politics when the citizens share a belief that constitutional change requires a higher degree of consensus than changing an ordinary law. Such beliefs are constructed when broad social movements arise that seek to effectuate rights. The issue of how constitutions become entrenched is an important one throughout the world as new democracies struggle with the problem of creating order. Democracies cannot establish order until constitutions have deep social moorings. The historical experience of Latin America is particularly instructive as it has a long experience with constitutions that lack citizen support or social moorings and the result was dictatorship, rather than republican government. In short, constitutions must be socially constructed if new democracies are to long endure.

Posted by Lawrence Solum at 3/27/2006 06:06:00 AM

 
Alexander on Academic Freedom Larry Alexander (University of San Diego) has posted Academic Freedom on SSRN. Here is the abstract:
    In this essay I take up the question of who is entitled to "academic freedom." By academic freedom I do not mean whatever first amendment rights professors and students possess with regard to the content of published research, class discussion, and informal remarks. That is a nettlesome topic, to be sure, but it is not mine, primarily because academic freedom is thought to extend to professors at private universities that are beyond the reach of the first amendment. Rather, by academic freedom I mean that freedom from job reprisals that is due academics when functioning as academics. And I argue that only when academics are so functioning is academic freedom their due. On many campuses today there is a sizeable number of academics who are not so functioning in their publications or in their classrooms. Rather, they are engaging in crude political polemics. That is because disciplinary standards have vanished from many departments, especially in the humanities and social sciences, largely due to the confluence of identity politics and crude postmodernism, and abetted by the overwhelming political orthodoxy of the academy. If faculty are not faithful to arguments and evidence, assessed by traditional disciplinary standards, but are engaging in political polemics undisciplined by such standards, then actual politicians have as much claim to control the academy as do these politicized ersatz academics. For academic freedom is not their due.
Alexander is one of the very best. Highly recommended.

Posted by Lawrence Solum at 3/27/2006 05:59:00 AM

 
Monday Calendar

Posted by Lawrence Solum at 3/27/2006 05:58:00 AM

 
Call for Papers: Social Science & Democracy
    CALL FOR PAPERS The Centre for Logic and Philosophy of Science of Ghent University, Belgium, invites papers for a conference: The Social Sciences and Democracy: a philosophy of science perspective. 28th – 30th of September 2006 Ghent, Belgium http://logica.ugent.be/SSD/ Keynote speakers are:
      Patrick Baert (University of Cambridge) James Bohman (Saint Louis University) Steve Fuller (University of Warwick) Harold Kincaid (University of Alabama) Philip Mirowski (University of Notre Dame) Stephen Turner (University of South Florida)
    The conference wants (a) to pay attention to the history of the social sciences and the relation with the development of democracy, the nation-states, the Cold War, globalisation, etc., which might help us to discuss the situation (and science policy) of the social sciences in our democracies today and in the future, and, (b) to analyse whether concepts of democratic theory might be useful in describing the relations between competing theories in the social sciences (e.g., consensus, pluralism, deliberation, minorities, etc.). Other possible topics are: scientific pluralism, explanatory pluralism, methodological pluralism; orthodox vs. heterodox theories; the division of labour in social science, etc. More details on possible topics can be found on the website: http://logica.ugent.be/SSD/ Abstracts should be minimum 150 and maximum 1000 words. Please send a Word- or PDF-file to Jeroen.VanBouwel@UGent.be. Abstracts received will be acknowledged within ten days by email. Authors will be informed on acceptance or rejection as soon as possible and not later than 30 April 2006. Deadline for abstracts is 31 March 2006. On the 27th of September a workshop will be organised in Brussels that may be of interest for the visitors of the conference. More info on: http://logica.ugent.be/ssd/workshop.php

Posted by Lawrence Solum at 3/27/2006 05:42:00 AM

 
Workshop Announcement: Practical Reasons at Leeds
    One-day Workshop on Practical Reasons University of Leeds 11:00 to 7:30 on Saturday, 6th May 2006 Room 37, Baines Wing, Leeds University Programme
      11:00 - 11:30 Registration 11:30 - 1:15 Niko Kolodny (University of California at Berkeley) "Why Be Consistent in One's Intentions?" 1:15 - 2:15 Lunch 2:15 - 4:00 Seiriol Morgan (Leeds University) “Agency Under the Idea of Obligation” 4:00 - 4:30 Coffee break 4:30 - 6:15 Joseph Raz (Oxford University) “Practical Reasons”
    For further information contact Ulrike Heuer School of Philosophy University of Leeds Tel.: 0113 343 1890 Email: u.heuer@leeds.ac.uk

Posted by Lawrence Solum at 3/27/2006 05:38:00 AM

 
Conference Announcement: BSET 2006
    The annual conference of the British Society for Ethical Theory will take place at the University of Southampton, UK, 10-12th July 2006. Registration information is here: http://www.philosophy.soton.ac.uk/events_pages/BSET/BSET%20registration.htm More general info is here: http://www.philosophy.soton.ac.uk/events_pages/BSET/BSET%20main.htm Keynote Speakers: Joseph Raz (University of Oxford and Columbia University) Mark Timmons (University of Arizona) Speakers: Melissa Barry (Williams College): "Realism, Rational Action, and the Humean Theory of Motivation" Elizabeth Brake (University of Calgary): "Marriage, Morality and Institutional Value" Tim Chappell (The Open University) "What is the Integrity Objection an Objection to?" Garrett Cullity (University of Adelaide): "Reasons and Decisions" Jules Holroyd (University of Sheffield): "A Recognitional Conception of Appraisal" Andrew Moore (University of Otago): "Does Ethical Theory Imply a Contradiction?" Philip Nickel (University of California at Irvine): "Trust and Obligation" David Sobel (Bowling Green State University): "The Misunderstood Demandingness Objection" Ariela Tubert (University of North Carolina at Chapel Hill): "Korsgaard: Actions, Reasons, Laws"

Posted by Lawrence Solum at 3/27/2006 05:30:00 AM

Sunday, March 26, 2006
 
Legal Theory Calendar
    Monday, March 27 Tuesday, March 28
      University of Pennsylvania, Seventh Annual Bienniel Seybert Lectures: T.M. Scanlon, Blame and Freedom
      University of Illinois College of Law: Amy Wax, Diverging Destinies: Economics, Behavior, and the Decline of Marriage
      University of Texas: Érica Gorga (UT) "Knowledge Resources and Their Implications for the Theory of the Firm and Corporate Governance"
      Georgetown Constitutional Law & Theory: Cristina Rodriguez (law, NYU) Language and Participation
      University of North Dakota Law: John Washburn, Convener of the American Non-governmental Organizations Coalition of the International Criminal Court (AMICC), “Genocide and Terrorism Attacked - The International Criminal Court at Work: Darfur, Congo, and Uganda”
      Yale Legal History: MICHAEL KLARMAN, University of Virginia School of Law "Brown and Lawrence (and Goodridge)"
      Vanderbilt Law Faculty Workshop: Katherine Franke, Columbia University Law School, "Subjects of Freed-dom"
      University of Texas Constitutional Studies Luncheon: Cindy Skach (Harvard)
      University of Chicago Law & Economics: Catherine Sharkey, Associate Professor of Law, Columbia University School of Law, Crossing the Punitive-Compensatory Divide
      University College, London, Faculty of Laws, The Constitutional Law Group: ‘Reforming and Reorganising Tribunals’
        Sir Robert Carnwath, Lord Justice of Appeal and Senior President of Tribunals Designate. Genevra Richardson, Professor of Public Law at Kings College London, Member of the Council on Tribunals. Cheryl Saunders, Arthur Goodhart Visiting Professor of Legal Science (University of Cambridge), Professor of Law (University of Melbourne), President of the International Association of Constitutional Law, former President of the Administrative Review Council (Australia)
      Ohio State Law: Alan C. Michaels, Ohio State, Reasonable Victims
      Marquette Law: Laurel Oates, Reading Skills & Law School Performance
      University of Houston Law Center, Third Annual Baker Botts Lecture: The Honorable Arthur J Gajarsa
      Georgetown Law Faculty Workshop: James Forman
    Wednesday, March 29
      University of Pennsylvania, Seventh Annual Bienniel Seybert Lectures: T.M. Scanlon, The Ethics of Blame
      William Mitchell Law: Robert Delahunty, St. Thomas Law, This call may be monitored: Is NSA wiretappling legal?
      NYU Legal History: Amalia Kessler, Assistant Professor, Stanford Law School, “A Revolution in Commerce: The Parisian Merchant Court and the Rise of Commercial Society in Eighteenth-Century France”
    Thursday, March 30
      University of Illinois College of Law, Criminal Law Colloquium: Jeannine Bell, Indiana University, Fattening a Frog to Feed a Snake: The (In)Effectiveness of Torture
      University of Illinois Law: Susanna Blumenthal (Assistant Professor of Law at the University of Michigan Law School, "The Default Legal Person"
      Yale Law Economics & Organization Workshop: Professor Gillian Hadfield, USC Law, The Quality of Law in Civil Code and Common Law Regimes: Judicial Incentives, Legal Human Capital and the Evolution of Law
      University of Michigan Law & Economics: Paul Heald, Georgia, The Problem of Social Cost in a Genetically Modified Age
      University of Arizona James E. Rogers College of Law: Professor Margo Bagley, Emory Univ. School of Law; Topic: "Academic Discourse and Proprietary Rights: Putting Patents in Their Proper Place."
      University of Cincinnati Law: Adam Feibelman, Contract, Priority, and Odious Debt
      Northwestern Advanced Topics in Taxation: Kyle D. Logue, Professor of Law, University of Michigan, "Deterring Abusive Tax Avoidance: Optimal Enforcement When the Law is Uncertain"
      University of Utah Law: PANEL DISCUSSIONs WITH HON. MARGARET H. MARSHALL:
        States' Rights, Minority Protections, and the Constitution
          Hon. Christine Durham, (Chief Justice, Utah Supreme Court), "State Constitutions and Affirmative Rights" Leslie Francis (Philosophy, and Law, University of Utah), "Federalism and Human Rights: An Unstable Combination?" Brenda Cossman (Law, University of Toronto), "Judicial Activism, Comparative Constitutionalism, and the Trope of Same Sex Marriage" moderated by Martha Ertman (Law, University of Utah)
        Human Rights, Law, and Constitutionalism: Transnational Resonances
          James Gibson, (Political Science, Washington University), "The Rule of Law as an Impediment to Tyranny?" Erika George (Law, University of Utah), "Constitutional Law Crossing Borders: The Role of International and Foreign Law in U.S. Supreme Court Jurisprudence" Linda Kerber (History, University of Iowa), "Thoughts on Statelessness in American History" Liz Borgwardt (History, University of Utah), ""The Four Freedoms, the Atlantic Charter, and the Reinvigoration of Rights Discourse in the World War II Era" moderated by President Michael Young (University of Utah)
      University of Utah Law: Hon. Margaret H. Marshall, Chief Justice, Massachusetts Supreme Judicial Court, Tension and Intention: The American Constitutions and the Shaping of Democracies Abroad
      Loyola, Los Angeles: Jeff Atik, Professor of Law, Loyola Law School, Embracing Price Discrimination: TRIPS and Parallel Trade in Phamaceuticals
      George Mason Law: Dean Lueck, University of Arizona Department of Economics, The Organization and Behavior of Bureaucracy: The Case of the Wildlife Agency
      Fordham Law: Deborah W. Denno, Professor of Law, Fordham University School of Law, "Mental State Across Ten Centuries: 1235
      Brooklyn Law School: Margaret Brinig, Iowa, Standards for Licensing and Driving
      Boston University Law: Nancy Moore, "Mens Rea Standards in Lawyer Disciplinary Codes"
    Friday, March 31
      University of Notre Dame: Law's Quandary, A Roundtable:
        8:45 a.m. Introduction (Room 100-104, Center for Continuing Education) 9:00-10:15 a.m. Discussion: Larry Solum paper / Mark Tushnet comment 10:15-10:30 a.m. Break 10:30-11:45 a.m. Discussion: Brian Bix paper / Connie Rosati comment 11:45-12:00 p.m. Break 12:00-1:30 p.m. Lunch at the Morris Inn, in the Donors Room 1:30-2:45 p.m. Discussion: Joseph Vining paper / Patrick Brennan comment 2:45-3:00 p.m. Conclusion 3:00-4:00 p.m. Break 4:00-5:30 p.m. Lecture, “The Always Imminent Death of the Law” in the Law School Courtroom 5:30-6:00 p.m. Break 6:00 - evening Cocktails & Dinner (Eck Visitors’ Center)
      University of Pennsylvania Philosophy: Amy Gutmann, University of Pennsylvania,The Lure of Extremism: Certainty and Single-mindedness
      Villanova Law: Mary-Rose Papandrea, Boston College Law School
      Oxford Institute of European and Comparative Law: French-English Conference: FORUM SHOPPING IN THE EUROPEAN JUDICIAL AREA
      University of Utah Law: PANEL DISCUSSIONs WITH HON. MARGARET H. MARSHALL: Law, Constitutions, and Rights: Local Utah Issues
        State Senator Scott McCoy (Utah Senate District 2), "Gay Rights and the Utah Constitution: Interpreting Amendment 3" Heidi McIntosh (Southern Utah Wilderness Society), "Democracy and the Right to Wilderness: The Utah Experience" Brett Scharffs (Law, Brigham Young University), "We are All a Religious Minority: Implications of Acting as if We Really Believed this Truth" moderated by Dean Robert Newman (College of Humanities, University of Utah)
      University of Maryland School of Law: The Impact of Film on Law, Lawyers, and the Legal System Boston College Law School, “Owning Standards”:
        William Bratton Georgetown University Michael Carroll Villanova Lawrence A. Cunningham Boston College A. Michael Froomkin University of Miami Herbert Hovenkamp University of Iowa Scott Kieff Washington University in St. Louis Mark Lemley Stanford University Joseph Liu Boston College Frank Partnoy University of San Diego Pam Samuelson University of California—Berkeley Sidney Shapiro Wake Forest University Greg Vetter University of Houston Alfred Yen Boston College
      Gerogetown Law & Economics: Nancy Staudt, Washington University School of Law (St. Louis)
      Florida State Law: Matthew McCubbins, University of California, San Diego. Joint workshop with FSU Political Science Department.
      Cornell Law: Jeremy A. Blumenthal, "Emotional Paternalism"

Posted by Lawrence Solum at 3/26/2006 11:52:00 AM

 
Legal Theory Lexicon: Fit and Justification
    Introduction In 1975, Ronald Dworkin wrote Hard Cases (88 Harvard Law Review 1057 (1975) reprinted in Ronald Dworkin, Taking Rights Seriously ch 4 (Harvard University Press, 1977)). This is one of the most famous and influential articles in contemporary legal theory, and I would put it very high on my recommended legal-theory reading list. Lot's of Dworkin's ideas are very controversial, but one of his claims has become part of the way that most legal academics think about the law in general and the enterprise of judging in particular. I am referring to Dworkin's distinction between "fit" and justification" and his claim that when judges decide hard cases, they choose the interpretation of the law that best fits and justifies the existing legal landscape--the constitution, statutes, regulations, and common law.
    As always, the Legal Theory Lexicon is aimed at law students (especially first year law students) with an interest in legal theory. I know you are all very busy at this time of year, so I will do my best to be concise.
    The Basic Idea Suppose a judge is deciding a hard case. It could be a common law case or a constitutional case or a statutory case. How do judges approach this task when they are confronted with a case in which the law is up for grabs? That is, how do judges decide cases where there is an unsettled question of law? Dworkin's basic idea is that the process of deciding a hard case has two dimensions--fit and justification. First, the judge might ask herself, "Of all the possible interpretations of the law that I could adopt as the basis for my decision, which one is consistent with the theory that best fits the existing legal landscape. Of all the rules I could adopt in this case, which ones are consistent with the relevant constitutional and statutory provisions and with the precedent." When the judge had identified the alternatives that meet the criterion of fit, it is possible that there will be more than one possibility that fits. If so, then the judge can go on to ask the question, "Of the interpretations of the existing law that fit the constitution, statutes, and case law, which is the best interpretation? Which of the possible legal rules that I could adopt is most consistent with the normative theory that provides the best justification for the law as a whole.
    ? Fit What does it mean to say that a given rule fits the legal landscape? Suppose you are a judge deciding whether your jurisdiction will adopt the rule of contributory negligence or will choose instead to follow the comparative negligence approach. It is possible that only one of these two rules fits the existing law in your jurisdiction. For example, if the legislature has mandated the contributory negligence rule by statute, then as a judge (even a Supreme Court judge), you would be obliged to follow the statute and decide the case before you on the basis of contributory negligence. On the other hand, suppose you are in a newly created jurisdiction. No statute or binding precedent requires either comparative or contributory negligence. Both rules fit the existing legal landscape. In that case, Dworkin argues, you would need to decide a question of justification.
    Justification What does it mean to say that a judge might prefer one rule over another on the basis of the criterion of rustication? Let's continue with our example of the choice between contributory and comparative negligence. Since there is no statute or precedent that compels (or strongly guides) the choice, the judge must turn to some other basis in order to make her decision. She will need to get normative, i.e., to consider the normative justifications for tort law. Simplifying greatly, let's suppose our judge decides that the tort of negligence is best understood as a system of compensation and "risk spreading." She might then reason that the comparative negligence rule does a better job of serving this purpose than does a contributory negligence rule. Contributory negligence allows losses to go uncompensated when the plaintiff (victim) caused any of her own loss; comparative negligence does a better job of spreading the risk of accidents. [I know that this is a very crude argument, and I'm sure all of you can do better.]
    In other words, the judge asks the question, "What normative theory best justifies the existing law and negligence?" And then proceeds to the question, "Given that justification of tort law, which of the alternative rules that I could apply to the case before me best serves the purposes of tort law?" Two Kinds of Justification: Principle and Policy In Hard Cases, Dworkin identified two different kinds of arguments that can be used to justify the law. He called these two different types arguments of "principle" and "policy." As understood by Dworkin, arguments of principle are arguments that appeal to ideas about fairness and rights. If you would like to know more about arguments of principle, a good place to begin is with the Legal Theory Lexicon entry on Deontlogy.
    Arguments of policy, on the other hand, appeal to consequences. For example, if you argued that a comparative negligence rule is better than a contributory negligence rule because it provides optimal incentives for taking precautions against accidents, you would have made an argument of policy in Dworkin's sense.
    If you are interested in the theoretical basis for arguments of policy, you could take a look at the Legal Theory Lexicon entry on Utilitarianism.
    Dworkin himself argued that judges should consider arguments of principle and should not decide cases on the basis of arguments of policy. That feature of his theory is hugely controversial--as you could guess if, like most law students, you've heard endless discussion of policy in the classroom. But Dworkin could be right about "fit and justification," even if he is wrong that the dimension of justification is limited to principle and excludes policy.
    Conclusion It is very difficult to generalize about law school exams; they vary enormously. But many standard issue spotting essay questions have built into them a "hard case," an aspect of the fact pattern that is intended to trigger your discussion of the question, "What should the rule be?," with respect to some controversial legal issue. If you try to answer the question, "What should the rule be?," by telling your instructor, "Here is the majority rule," or "Here are two alternative rules; I don't know which one is the law, you will have missed the point of the question!
    And that's where Dworkin comes in. You can use "fit and justification" as the basis for organizing your answer to a "What should the law be?" question. Begin with fit. Which possible rules are consistent with the settled law? Then move to justification. Of the rules that fit, which is the best rule? Now list the arguments of principle and policy for and against each of the plausible candidates. Be sure to come to a conclusion. That is, end with something like, "Adopting a rule of comparative negligence is required by the theory that best fits and justifies the existing law of torts."

Posted by Lawrence Solum at 3/26/2006 11:39:00 AM

Saturday, March 25, 2006
 
Legal Theory Bookworm The Legal Theory Bookworm recommends When Courts and Congress Collide: The Struggle for Control of America's Judicial System by Charles Gardner Geyh. Here's a blurb:
    With Congress threatening to "go nuclear" over judicial appointments, and lawmakers accusing judges of being "arrogant, out of control, and unaccountable," many pundits see a dim future for the autonomy of America's courts. But do we really understand the balance between judicial independence and Congress's desire to limit judicial reach? Charles Geyh's When Courts and Congress Collide is the most sweeping study of this question to date, and an unprecedented analysis of the relationship between Congress and our federal courts. Efforts to check the power of the courts have come and gone throughout American history, from the Jeffersonian Congress's struggle to undo the work of the Federalists, to FDR's campaign to pack the Supreme Court, to the epic Senate battles over the Bork and Thomas nominations. If legislators were solely concerned with curbing the courts, Geyh suggests, they would use direct means, such as impeaching uncooperative judges, gerrymandering their jurisdictions, stripping the bench's oversight powers, or slashing judicial budgets. Yet, while Congress has long been willing to influence judicial decision-making indirectly by blocking the appointments of ideologically unacceptable nominees, it has, with only rare exceptions, resisted employing more direct methods of control. When Courts and Congress Collide is the first work to demonstrate that this balance is governed by a "dynamic equilibrium": a constant give-and-take between Congress's desire to control the judiciary and its respect for historical norms of judicial independence. It is this dynamic equilibrium, Geyh says, rather than what the Supreme Court or the Constitution says about the separation of powers, that defines the limits of the judiciary's independence. When Courts and Congress Collide is a groundbreaking work, requiring all of us to consider whether we are on the verge of radically disrupting our historic balance of governance.

Posted by Lawrence Solum at 3/25/2006 01:28:00 PM

 
Download of the Week The Dowload of the Week is Presidents, Senates, and Failed Supreme Court Nominations by Keith Whittington. Here is the abstract:
    With three controversial nominations to the Supreme Court just behind us, and the prospect of more in the near future, this is an opportune time to place the politics of Supreme Court appointments in broader perspective. Ultimately, what presidents care about is getting their nominees on the Court, and therefore this article manuscript focuses on those cases in which the Senate rejected the Supreme Court nomination of the president. The article examines what has accounted for these failed nominations and how the politics of appointment have changed over time. In addition to shedding light on our historical experience with Supreme Court appointments, it concludes that recent decades mark a reversal of earlier tendencies. The Senate is now far more focused on ideological disagreements and jurisprudential issues than it has traditionally been, and as a consequence nominations face far greater risks now during divided government than during unified government (the opposite pattern once prevailed). The central lesson of the defeat of Robert Bork is that it matters who controls the Senate, and thus it is neither surprising nor predictive that Roberts and Alito were able to be confirmed in a Republican Senate.
Download it while its hot!

Posted by Lawrence Solum at 3/25/2006 01:23:00 PM

 
Saturday Calendar
    Fordham Law: CENTENNIAL CONFERENCE: A New Constitutional Order?
      VI. Subnational Norms in the New Constitutional Order: Federalism (9:30 a.m.-10:45 a.m.) Richard Thompson Ford, Stanford Law School Rick Hills, University of Michigan Law School Kathleen Sullivan, Stanford Law School Moderator: Abner S. Greene, Fordham University School of Law VII. Subnational Norms in the New Constitutional Order: Civil Society and Families (11:00 a.m.-12:15 p.m.) William Galston, University of Maryland Department of Government Stephen Macedo, Princeton University Center for Human Values Linda C. McClain, Hofstra University School of Law (visiting at Pennsylvania) Moderator: Dorothy Roberts, Northwestern University School of Law (visiting at Fordham) Lunch (12:15 p.m.-2:00 p.m.) VIII. The International Migration of Constitutional Norms in the New World Order (2:00-3:30) Noah Feldman, New York University School of Law Martin Flaherty, Fordham University School of Law Vicki Jackson, Georgetown University Law Center Alec Stone-Sweet, Yale Law School Moderator: Catherine Powell, Fordham University School of Law
    Yale Law School: The Most Dangerous Branch? Mayors, Governors, Presidents and the Rule of Law: A Symposium on Executive Power:
      9:30-10:15 Breakfast 10:30-12:00 “Energy in the Executive:” The Power of Unitary Leadership The framers envisioned a proactive executive branch with a range of exclusive powers. What does that executive look like today? Is there a space between the lawless vigilante and legislative supremacy? Elena Kagan, Dean, Harvard Law School Paula Monopoli, University of Maryland Law School Richard Schragger, University of Virginia Law School John Yoo, U.C. Berkeley Boalt Hall School of Law, & Jide Nzelibe, Northwestern Law School Moderator: Heather Gerken, Harvard Law School 12:15-1:45 Lunch 2:00-3:30 Rewriting Article II for the Modern Presidency President Bush’s tenure in office has thrust presidential power into the spotlight. Can the Constitution be rewritten to provide a more clear standard of review? Or does its vagueness give us room to remake the branch as times demand? Jack Goldsmith & John Manning, Harvard Law School Jennifer Martinez, Stanford Law School Neal Katyal, Georgetown University Law Center Moderator: Sai Prakash, University of San Diego Law School

Posted by Lawrence Solum at 3/25/2006 06:19:00 AM

Friday, March 24, 2006
 
Whttington on Failed Supreme Court Nominations Keith Whttington (Princeton) has posted Presidents, Senates, and Failed Supreme Court Nominations on SSRN. Here is the abstract:
    With three controversial nominations to the Supreme Court just behind us, and the prospect of more in the near future, this is an opportune time to place the politics of Supreme Court appointments in broader perspective. Ultimately, what presidents care about is getting their nominees on the Court, and therefore this article manuscript focuses on those cases in which the Senate rejected the Supreme Court nomination of the president. The article examines what has accounted for these failed nominations and how the politics of appointment have changed over time. In addition to shedding light on our historical experience with Supreme Court appointments, it concludes that recent decades mark a reversal of earlier tendencies. The Senate is now far more focused on ideological disagreements and jurisprudential issues than it has traditionally been, and as a consequence nominations face far greater risks now during divided government than during unified government (the opposite pattern once prevailed). The central lesson of the defeat of Robert Bork is that it matters who controls the Senate, and thus it is neither surprising nor predictive that Roberts and Alito were able to be confirmed in a Republican Senate.
I'm a huge fan of Whittington's work. Highly recommended!

Posted by Lawrence Solum at 3/24/2006 06:26:00 AM

 
Friday Calendar I left off a very important conference at Fordham--so this is a revised version of the Calendar!
    Fordham Law: CENTENNIAL CONFERENCE: A New Constitutional Order?
      I. The Rehnquist Court and Beyond: Revolution, Counter-Revolution, or Mere Chastening of Constitutional Aspirations? (9:30 a.m.-11:00 a.m.) Jack Balkin, Yale Law School Sanford Levinson, University of Texas School of Law Robert Post, Yale Law School Reva Siegel, Yale Law School Jed Rubenfeld, Yale Law School Michael Seidman, Georgetown University Law Center Moderator: James E. Fleming, Fordham University School of Law II. Keynote Address (11:15 a.m.-12:30 p.m.) Terrorism and the Emergency Constitution: Beyond the Myth of Rediscovery Bruce Ackerman, Yale Law School Lunch (12:30 p.m.-2:00 p.m.) III. The Emergency Constitution in the Post-September 11 World Order (2:00 p.m.-3:30 p.m.) Philip Bobbitt, University of Texas School of Law Martha Minow, Harvard Law School Kim Lane Scheppele, Princeton University Program in Law and Public Affairs Adrian Vermeule, University of Chicago Law School Moderator: Thomas Lee, Fordham University School of Law (visiting at Columbia) IV. Constitutions in Exile: Is the Constitution a Charter of Negative Liberties or a Charter of Positive Benefits? (3:45 p.m.-5:00 p.m.) Sotirios A. Barber, University of Notre Dame Department of Government Randy E. Barnett, Boston University School of Law Lawrence G. Sager, University of Texas School of Law Moderator: Eduardo Penalver, Fordham University School of Law (visiting at Yale) V. Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (5:15 p.m.-6:30 p.m.) Mark A. Graber, University of Maryland Department of Government and School of Law Ran Hirschl, University of Toronto Department of Political Science and Faculty of Law Mark Tushnet, Georgetown University Law Center Moderator: Tracy Higgins, Fordham University School of Law Reception (6:30 p.m.)
    University of Texas Law: Louis Fisher, Special Assistant to Law Librarian- Library of Congress, "35 Years of Research for Congress: How CRS Operates"
    University of Texas Law, Leon Greeen Lecture: Hillel Steiner (Manchester) "A Famous Conflict" (For the version of this paper that Steiner delivered at University College recently, follow this link.
    University of North Dakota Law: Inaugural Distinguished Scholar-in-Residence, Professor Carol Gilligan (NYU), "From In a Different Voice to The Birth of Pleasure: An Intellectual Journey”
    Notre Dame Law: Professor Ellen D. Katz, The University of Michigan Law School
    Suffolk Law: STEM CELLS: 2006 SCIENCE, LAW & BUSINESS, Annual Intellectual Property Law Conference
    Georgetown Law & Economics: Ronen Avraham, Northwestern University School of Law
    Georgetown Law, Conference on Economic and Social Inequality:The Role of Race in Law, Markets, and Social Structures. Florida State Law: Roberto Romano, Yale Law School
    Yale Law School: The Most Dangerous Branch? Mayors, Governors, Presidents and the Rule of Law: A Symposium on Executive Power:
      12:30-2:00 Registration and box lunch for participants 2:00-2:15 Introductory Remarks: Dean Harold Koh 2:15-3:45 The Twenty-First Century Executive: Case Studies A survey of some the areas where executives have asserted new authority, or taken over policymaking that once belonged to courts and legislatures. David Barron, Harvard Law School Julian Ku, Hofstra Law School Jonathan Macey, Yale Law School William Marshall, University of North Carolina Law School Moderator: Todd Peterson, George Washington University Law School 4:00-5:30 The Efficient Executive Executives and their administrations have the advantage of accountability and expertise when they make policy, but does this efficiency come at a cost? What do Chevron and corporate law say about the way courts should approach administrative powers? Steven Calabresi, Northwestern Law School Ed Whelan Cass Sunstein, University of Chicago Law School K.A.D. Camara, Stanford University, & Paul Gowder, Civil Rights Lawyer Moderator: William Eskridge, Yale Law School

Posted by Lawrence Solum at 3/24/2006 06:05:00 AM

 
Mossoff on Patents & Natural Rights Adam Mossoff (Michigan State) has posted Who Cares what Thomas Jefferson Thought about Patents: Reevaluating the Patent Privilege in Historical Context on SSRN. Here is the abstract:
    The conventional wisdom holds that American patents have always been grants of special monopoly privileges lacking any justification in natural rights philosophy, a belief based in oft-repeated citations to Thomas Jefferson's writings on patents. Using privilege as a fulcrum in its analysis, this Article reveals that the history of early American patent law has been widely misunderstood and misused. In canvassing primary historical sources, including political and legal treatises, Founders' writings, congressional reports, and long-forgotten court decisions, it explains how patent rights were defined and enforced under the social contract doctrine and labor theory of property of natural rights philosophy. In the antebellum years, patents were civil rights securing important property rights - what natural-rights-influenced politicians and jurists called privileges. This intellectual history situates the Copyright and Patent Clause, the early patent statutes, and nineteenth-century patent case law within their appropriate political and constitutional context. In so doing, it resolves many conundrums arising from misinterpretation of the historical patent privilege. Doctrinally, it explains why Congress and courts in the early nineteenth century expansively and liberally construed patent rights, and did not limit patents in the same way they narrowly construed commercial monopoly grants, such as bridge franchises. It also exposes the near-universal misuse of history by lawyers and scholars today, who rely on Jefferson as undisputed historical authority in critiquing expansive intellectual property protections today. Ultimately, the conventional wisdom is a historical myth that obscures the early development of American patent law under the meaningful guidance of natural rights philosophy.

Posted by Lawrence Solum at 3/24/2006 06:00:00 AM

 
Two by Moss Scott Moss (Marquette) has posted two papers on SSRN:
    Against 'Academic Deference': How Recent Developments in Employment Discrimination Law Undercut an Already Dubious Doctrine:
      When the defendant in an employment case is a college or other institution of higher education, the plaintiff usually will face an “academic deference” argument. Citing the importance of their “academic freedom,” defendants and sympathetic courts have asserted that federal courts should decline to “invade” higher education with “federal court supervision.” Whether or not courts cite the “academic deference” doctrine expressly, they certainly have proven hostile to professors’ claims of discrimination, dismissing as a matter of law claims that seemed quite strong, or at least solid enough to allow a factfinder to rule either way. Indeed, empirical evidence shows that faculty plaintiffs rarely prevail in civil rights cases. The bulk of the “academic deference” precedents are gender discrimination cases, which illustrates the extent to which the doctrine has been a significant barrier to the use of Title VII to redress the gender segregation that has proven so persistent in academia and various professions. This Article argues that courts should reject the entire idea of a special “academic” deference to employment decisions challenged as discriminatory. The legislative history shows that Congress did not intend any special deference for academia, and there is no need for it, because courts can and do look for discrimination in other similar fields of employment. In many ways, there is less justification for deferring to academic than other employers, both for policy reasons (because of the importance of diversity in education) and doctrinal reasons (because of academic employers’ tendency to defend denials of tenure with little evidence other than self-interested testimony as to entirely subjective reasons). Courts’ frequent refusals to scrutinize academic employment decisions for discrimination risks leaving continued gender segregation and inequality in a large and important sector of both the labor market and our educational system. This risk of unredressed inequities is particularly troubling because academia is the sort of labor market in which social norms are unlikely to be effective at preventing discrimination. Social norms can be powerful protectors of fairness in other contexts, sometimes obviating the need for formal, legal protections. Yet academia has many characteristics making it the sort of labor markets in which social norms are likely to be weaker, unable to prevent misdeeds such as discriminatory employment decisions. While the “academic deference” doctrine has drawn criticism for quite some time, this Article adds an additional voice to the chorus by analyzing various unrelated strands of employment discrimination case law, mostly of recent vintage, that severely undercut the doctrine as a basis for granting employers summary judgment or judgment as a matter of law (“JMOL”) - the procedural devices that doom most academic plaintiffs’ claims. Specifically, courts have stressed that, under the leading recent Supreme Court precedent on proof of employment discrimination, summary judgment and JMOL are inappropriate where employers’ defenses are vague and subjective or where employers’ defenses rely too heavily on the testimony of interested parties. Thus, even if the notion of academic deference once had merit, it is in increasing tension with other, more firmly grounded employment discrimination principles. This Article also argues that even to the extent that courts accept the doctrine of academic deference, the rationale for such deference is limited to the context of promotion-to-tenure. Accordingly, courts applying the doctrine to failure-to-hire cases are applying precedent sloppily, extending a doctrine beyond its original rationale. In short, the penchant of many courts to dismiss employment discrimination claims based on “academic deference” is misguided in a host of ways. It threatens to leave academia an island of civil rights lawlessness, essentially exempt from Title VII - a dangerous outcome for a society in which there is such gender inequity in academia and such a consensus that equal educational opportunity is the path to social progress and personal success.
    Where There's At-Will, There are Many Ways: Redressing the Increasing Incoherence of Employment At-Will:
      Employment at-will, the doctrine that employees have no legal remedy for unfair terminations because they hold their jobs at the will of the employer, has become mired in incoherence. State courts praise the common law rule as essential to free enterprise and central to the free market, but in recent years they have riddled the rule with increasing exceptions, allowing employee claims for whistleblowing, fraud, etc. Yet states have neither rejected employment at-will nor shown any consistency in recognizing exceptions. Strikingly, states cite the same rationales to adopt and reject opposite exceptions, as a case study of two states illustrates: one state accepts exception X to protect employees while rejecting exception Y to maintain employment at-will; yet on the same rationales, the other accepts exception Y while rejecting X. This dissonance, undiscussed among legal scholars, has broader implications as to legal doctrine evolution. Inconsistent reliance upon a doctrine betrays judicial ambivalence: discomfort adhering to the rigid rule; discomfort rejecting it; and inability to find an alternative. This is a recurring phenomenon in constitutional law as well, most notably in the Supreme Court's recent treatment of abortion rights and governmental involvement in religion; in both fields, the Court has professed adherence to strict precedents while simultaneously eviscerating them. These examples show that what is happening to employment at-will is not just quirky decision-making, but a common phenomenon in a doctrine's evolution: when courts apply an established rule inconsistently, that may herald a decline, but not necessarily an imminent rejection, of that doctrine; and if courts handle the decline badly, the outcome can be doctrinal chaos. This Article suggests how courts can retain employment at-will while also lessening the doctrinal incoherence. Courts can recognize a range of employee claims based on a two-part theoretical structure: a broad economic conception of the public interest, plus the limits of social norm theory. Recent scholarship argues that social norms are powerful protectors of fairness that make employment lawsuits unnecessary; but this Article's analysis of how social norms operate distinguishes settings, like employment, where norms are too weak to substitute for lawsuits, leaving a need for a range of enforceable rights.

Posted by Lawrence Solum at 3/24/2006 05:56:00 AM

Thursday, March 23, 2006
 
Leiter & Weisberg on Evolutionary Psychology and Law Brian Leiter & Michael Weisberg have posted Why Evolutionary Biology is (so far) Irrelevant to Law on SSRN. Here is the abstract:
    Evolutionary biology—or, more precisely, two (purported) applications of Darwin’s theory of evolution by natural selection, namely, evolutionary psychology and what has been called “human behavioral biology”—is on the cusp of becoming the new rage among legal scholars looking for “interdisciplinary” insights into the law. We argue that as the actual science stands today, evolutionary biology offers nothing to help with questions about legal regulation of behavior. Only systematic misrepresentations or lack of understanding of the relevant biology, together with far-reaching analytical and philosophical confusions, have led anyone to think otherwise. Evolutionary accounts are etiological accounts of how a trait evolved. We argue that an account of causal etiology could be relevant to law if (1) the account of causal etiology is scientifically well-confirmed, and (2) there is an explanation of how the well-confirmed etiology bears on questions of development (what we call “the Environmental Gap Objection”). We then show that the accounts of causal etiology that might be relevant are not remotely well-confirmed by scientific standards. We argue, in particular, that (a) evolutionary psychology is not entitled to assume selectionist accounts of human behaviors, (b) the assumptions necessary for the selectionist accounts to be true are not warranted by standard criteria for theory choice, , and (c) only confusions about levels of explanation of human behavior create the appearance that understanding the biology of behavior is important. We also note that no response to the Environmental Gap Objection has been proferred. In the concluding section of the article, we turn directly to the work of Professor Owen Jones, a leading proponent of the relevance of evolutionary biology to law, and show that he does not come to terms with any of the fundamental problems identified in this article.
This is an important contribution to what should be one of the most important debates in contemporary legal theory. Highly recommended

Posted by Lawrence Solum at 3/23/2006 10:16:00 AM

 
Thursday Calendar
    Brooklyn Law School: Ken Simons (Boston University), Is Knowledge a Culpable State of Mind? I always learn from Simons's careful and illuminating papers.
    University of Texas Tom Sealy Endowed Lecture: Louis Fisher, Special Assistant to Law Librarian- Library of Congress, "State of War After 9/11"
    University of Texas Colloquium on Constitutional and Legal Theory: Hillel Steiner (Manchester), Freedom & Bivalence & Quantification of Freedom Steiner is a deeply interesting and articulate thinker.
    University of Michigan Law & Economics: Wesley Cohen, Duke, John Walsh, Illinois-Chicago, The View from the Bench: The Patenting and Licensing of Research Tools and Biomedical Innovation
    University of Arizona Law: Professor Jeff Rachlinski, Cornell Law School, “Judicial Psychology.”
    UCLA Tax Policy & Public Finance Colloquium: Bob Peroni, University of Texas Law School, Exploring the Contours of a Proposed U.S. Exemption (Territorial Tax System)
    NYU Colloquium on Tax Policy & Public Finance: Howell Jackson, Harvard Law School, "Counting the Ways: The Structure of Federal Spending."
    Institut Français (London): Susan James (Birkbeck), Spinoza: Politics and Imagination
    UC Berkeley, Kadish Center: Philip Pettit, William Nelson Cromwell Professor of Politics, Princeton University, RESPONSIBILITY INCORPORATED Pettit is a marvel!
    Georgetown Intellectual Property: J.H. Reichman, Bunyan S. Womble Professor of Law, Duke University Law School, Treating Clinical Trials as a Public Good: The Most Logical Reform
    George Mason Law: : Moin Yahya, University of Alberta School of Law and former Levy Fellow; Do You Need an Economic Theory for an Antitrust Complaint?
    Fordham Law: Catherine Sharkey, Associate Professor of Law, Columbia University School of Law, "Trespass in an Electronic A[ge]
    Boston University: Wendy Gordon.

Posted by Lawrence Solum at 3/23/2006 09:30:00 AM

Wednesday, March 22, 2006
 
Help on the Entry Level Hiring Reports: Rumors, Incomplete Reports, and No-Hire Reports Version 3.1 of the Entry-Level Hiring Report is up. If you have complete information on an entry-level hire, that's wonderful, but in order to complete the report, it is very helpful to receive incomplete information. Also, if your school is not making an entry-level hire, please let me know. Reports can be emailed to lsolum@gmail.com.
And thank you to everyone who has provided information so far!

Posted by Lawrence Solum at 3/22/2006 06:38:00 AM

 
Mattioli on Procedural Fair Use Michael R. Mattioli (University of Pennsylvania - School of Law) has posted Procedural Fair Use on SSRN. Here is the abstract:
    This article explores the advantages of opt-out plans, and identifies a critical shortcoming in Copyright's doctrine of Fair Use. The discussion is fueled by a current controversy: In December of 2004, Google, Inc. announced its plan to digitally scan thousands of copyrighted books as part of a massive new digital indexing service. Hedging against possible litigation, Google provided a free and easy opt-out procedure for authors who didn't want their books scanned. Despite this measure, two major authors' groups have sued Google, claiming the opt-out plan imposes an unfair burden. This article explores the fairness of established opt-outs in contract law, privacy law, and class action rules. Further, the discussion explores how Copyright already places similar burdens upon authors. Ultimately, these lessons are applied to the Google Book Search problem, and an important new Fair Use consideration is identified.

Posted by Lawrence Solum at 3/22/2006 06:21:00 AM

 
Levinson on Jury Priming Justin D Levinson (University of Hawaii at Manoa - William S. Richardson School of Law) has posted Suppressing the Expression of Community Values in Juries: How Legal Priming Systematically Alters the Way People Think (University of Cincinnati Law Review, Vol. 73, pp. 1059-1079, 2005) on SSRN. Here is the abstract:
    Legal systems that rely on juries assume that juror decision-making imports an accurate representation of community values and norms into legal decisions. Yet, rather than successfully importing community values into legal decision-making, the notion of "the law" itself may act as a unique cultural construct that primes jurors to unconsciously think in terms of shared implicit constructs of "law", "juror" and "justice" when in the legal setting. The author examined how lay decision-making changed in the United States and in China when dependent variables were framed as questions of legal impact. Results indicated that participants in both countries scored identical questions differently when questions were primed as legal questions, but that participants from each country were affected in opposite directions by the legal prime. American participants in the legal prime category made more culpable criminal judgments than participants in the non-legal domain, indicating that the legal context heightens culpability judgments for Americans. In contrast, Chinese participants in the legal prime category made less culpable judgments than in the non-legal domain, demonstrating that Chinese are more lenient in the legal setting than in lay judgments. The results raise the question of whether community values are truly reflected in jury decision making, or whether shared, primed notions of law and justice unconsciously overcome the influence of life experience and cultural diversity in decision-making. The author discusses whether implicit and prejudicial stereotypes may be systematically harbored in the American "legal culture".

Posted by Lawrence Solum at 3/22/2006 06:19:00 AM

 
Winn on Spyware Contracts Jane K. Winn (University of Washington - School of Law) has posted Contracting Spyware by Contract (Berkeley Technology Law Journal Vol. 20, p. 1345, 2005) on SSRN. Here is the abstract:
    The question of what constitutes “spyware” is controversial because many programs that are "adware" in the eyes of their distributors may be perceived as "spyware" in the eyes of the end user. Many of these programs are loaded on the computers of end users after the end user has agreed to the terms of a license presented in a click-through interface. This paper analyzes whether it might be possible to reduce the volume of unwanted software loaded on end users’ computers by applying contract law doctrine more strictly. Unwanted programs are often bundled with programs that the end user wants, but the disclosure that additional programs will be downloaded is usually buried deeply within dense form contracts. Even though this makes it difficult for end users to recognize that they are agreeing to have multiple programs installed at once and that some of those programs may be objectionable, US courts are unlikely to invalidate those disclosures. This is because in business to consumer online contracting cases in the US, courts have tended to be very deferential to the intentions of the merchants in designing the contract interfaces. In the EU, by contrast, such conduct by software distributors would not be binding on consumers. Under unfair contract terms laws in place in EU member states, consumer objections to bundled software could not be overridden by terms hidden in standard form contracts.

Posted by Lawrence Solum at 3/22/2006 06:16:00 AM

 
Strandburg on Curiosity Driven Driven Research Katherine J. Strandburg (DePaul University - College of Law) has posted Curiosity-Driven Research and University Technology Transfer on SSRN. Here is the abstract:
    The debate about university technology transfer policy would benefit from increased attention to two parts of the technology transfer equation: the societal purpose of basic scientific research and the characteristics of scientific researchers. One purpose of curiosity-driven research is to provide a demand function for that can serve as a proxy for the socially optimal (but unknowable) demand function for the unpredictable research which is necessary for long-term technological progress. Preserving the curiosity-driven research peer review “market” is thus important for that progress. The analysis highlights the importance of adequate funding for curiosity-driven research. A model of typical university scientists preferences can be used to assess how technology transfer policies may affect the social norms of the research community and the long term viability of the curiosity-driven research endeavor. The analysis suggests that patenting will be an ineffective technology transfer mechanism unless researchers are precluded from using patenting to maintain control over follow-on research.
I'm always impressed by Strandburg's work.

Posted by Lawrence Solum at 3/22/2006 06:13:00 AM

 
Wednesday Calendar
    Villanova Law: Elizabeth R. Schiltz, University of St. Thomas School of Law
    University of Toronto Tax Law & Policy Workshop: Joel Slemrod, University of Michigan Taxation and Big Brother: Information, Personalization, and Privacy in 21st Century Tax Policy
    University College London: The Constitutional Law Group (UK branch of the International Association of Constitutional Law), ‘Reforming and Reorganising Tribunals’
      Sir Robert Carnwath, Lord Justice of Appeal and Senior President of Tribunals Designate. Genevra Richardson, Professor of Public Law at Kings College London, Member of the Council on Tribunals. Cheryl Saunders, Arthur Goodhart Visiting Professor of Legal Science (University of Cambridge), Professor of Law (University of Melbourne), President of the International Association of Constitutional Law, former President of the Administrative Review Council (Australia)
    University College, London: Jonathan Seglow, Multiculturalism, recognition and respect

Posted by Lawrence Solum at 3/22/2006 06:10:00 AM

Tuesday, March 21, 2006
 
Tuesday Calendar
    Yale Legal History: MARY BILDER, Boston College Law School, "Repugnancy and Judicial Review"
    Vanderbilt Law: Michael Van Alstine, University of Maryland School of Law, "Executive Aggrandizement in Foreign Affairs Lawmaking"
    Vanderbilt Comparative Corporate Governance Seminar: Jennifer Hill, Vanderbilt Law School & Sydney Law School
    University of Texas Law: David Gamage, "What Constitutes a 'Tax Cut' or a 'Tax Hike'?"
    University of Pennsylvania Tax Policy Workshop: Alex Raskolnikov, Tax Shelter Penalties
    Marquette Law: Barrett McCormick, Marquette University, China and the Internet
    Lewis & Clark Law: Brian Blum Contempt of Court and the Courts' Inherent Power
    Georgetown Law: Mitt Regan
    Georgetown Constitutional Law & Theory Colloquium: Ruti Teitel (law, New York Law School), The Law of Humanity: Rule of Law for a Global Politics

Posted by Lawrence Solum at 3/21/2006 07:17:00 AM

 
Nominations Invited Digital Culture invites nominations for the best writing on Technology published in 2005. Here's the announcement:
    Taking a cue from the open-source movement, we're asking readers to nominate their favorite tech-oriented articles, essays, and blog posts from the previous year. The competition is open to any and every technology topic--biotech, information technology, gadgetry, tech policy, Silicon Valley, and software engineering are all fair game. But the pieces that have the best chances of inclusion in the anthology will conform to these three simple guidelines:
      1. They'll be engagingly written for a mass audience; if the article requires a doctorate to appreciate, it's probably not up our alley. Preference will be given to narrative features and profiles, "Big Think" op-eds that make sense, investigative journalism, sharp art and design criticism, intelligent policy analysis, and heartfelt personal essays. 2. They'll be no longer than 5,000 words. 3. They'll explore how technological progress is reshaping our world.
    Other Info
      Nominations must have been published between January and December, 2005. The deadline for submissions is 3.31.06. The Best of Technology 2006 will be published in Fall 2006 by digitalculturebooks, a new imprint of the Scholarly Publishing Office at the University of Michigan Library and the University of Michigan Press. It will be available in book form and on-line. The Best of Technology Writing 2006 will include an introduction by award-winning journalist Brendan I. Koerner. Koerner is a contributing editor for Wired, a columnist for both The New York Times and Slate, and a fellow at the New America Foundation. His first book will be published by Henry Holt & Company in 2008.
    Questions may be sent to digital-culture@umich.edu .
If you follow the link above, there is an online nominations form. Law and technology submissions are welcomed!

Posted by Lawrence Solum at 3/21/2006 04:20:00 AM

Monday, March 20, 2006
 
Monday CalendarPlease forgive the lateness of the calendar!

Posted by Lawrence Solum at 3/20/2006 05:13:00 PM

 
Kar on the Deep Structure of Law & Morality Robin Kar (Loyola, Los Angeles) has posted a new version of The Deep Structure of Law and Morality (Texas Law Review, Vol. 84, p. 877, 2006) on SSRN. Here's the abstract:
    Morality and law share a deep and pervasive structure, an analogue of what Noam Chomsky calls the deep structure of language. This structure arises not to resolve linguistic problems of generativity, but rather from the fact that morality and law engage psychological adaptations with the same natural function: to allow us to resolve social contract problems flexibly. Drawing on and extending a number of contemporary insights from evolutionary psychology and evolutionary game theory, this Article argues that we resolve these problems by employing a particular class of psychological attitudes, which are neither simply belief-like states nor simply desire-like states, though they bear affinities to both. The attitudes are obligata. Obligata breathe life into our moral and legal practices, and have a specific structure. They blend (i) agent-centered attitudes toward persons with (ii) attitudes toward shared standards for action as producing (iii) reasons that (iv) exclude some arising from personal interest. Obligata are (v) judgment-sensitive attitudes: reasons can be sensibly asked and offered for them. They incline us to (vi) react critically to deviations and perceive these reactions as warranted. Obligata nevertheless sensitize us to (vii) the standard excuses, thereby allowing us to mend our relationships after some seeming breaches. We express obligata in (viii) the special normative terminology that morality and law share, including (ix) in contexts of discussion and dispute that can become incredibly charged. In these interactions, obligata allow us to (x) meaningfully disagree, and sometimes thereby reach consensus, even when our resolutions are not traceable to any particular reasons we antecedently accepted. This talk thus engages (xi) underlying psychosocial mechanisms that can - in the appropriate social and political circumstances - help us maintain sufficient agreement over what we owe to one another to live well together. Obligata thereby allow us to enjoy our lives together. Finally, it is possible that our moral and legal judgments (xii) supervene on natural facts because there are natural facts - about what moral and legal rules would conduce to all our objective individual interests in the right way - that partly explain the shape that morality and law take in our lives. The structure of obligata is the deep structure of morality and law. This suggests that much of the legal literature - including familiar descriptive and normative accounts from law and economics scholars - have been presupposing a psychological picture that is deeply at odds with how we naturally think about obligation. Morality and law do not arise from, and could not be sustained only by, separable beliefs about the world and preferences for states of affairs. The challenge raised here runs deeper, however, than recent empirical work showing we deviate from instrumental rationality in numerous, systematic ways. Our capacities to reason instrumentally may not figure very centrally at all in our moral or legal practices, and we may necessarily misunderstand these normative phenomena if we keep trying to shoehorn them into that model. To understand morality and law, we must instead understand how our distinctive capacities to identify and respond appropriately to obligations function.
This is an important paper. Highly recommended!

Posted by Lawrence Solum at 3/20/2006 05:05:00 PM

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