Legal Theory Blog



All the theory that fits!

Home

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.

RSS
This page is powered by Blogger. Isn't yours?
Tuesday, February 28, 2006
 
Board Turnovers & New Volume Submissions I am very pleased (and relieved) to report that Kaimi Wenger is collecting information about law review board transitions and dates for submissions for next year's volumes at Concurring Opinions. Follow this link!


 
Tuesday Calendar
    University of Chicago, Law & Economics: Lee Fennell, Associate Professor of Law, University of Illinois College of Law, Properties of Concentration
    Georgetown Colloquium on Constitutional Theory: Steven Teles (government, Center for the Study of American Politics, Yale University), Parallel Paths: The Evolution of the Conservative Legal Movement
    Georgetown Law: Kathy Zeiler
    Lewis & Clark Law: Julian Ku, Associate Professor of Law, Hofstra Gubernatorial Foreign Policy.
    Oxford Human Rights Discussion Group: Caoilfhionn Gallagher, Proportionality in Practice
    University of Pennsylvania, Tax Policy Workshop: Lily Batchelder, Refundable Credits
    Yale Legal History: DANIEL ERNST, Georgetown University Law Center, "The Corporate Law Firm in the Liberal State: Legal Divisions in New Deal and Wartime Washington"
    Loyola University Chicago: Steven Ramirez (Washburn Law School), "Corporate Governance and Race"


Monday, February 27, 2006
 
Lateral Hiring Report Dan Filler is doing data collection on lateral hiring over at Concurring Opinions. Here is the link: Law School Lateral Hiring Report


 
Entry Level Hiring Report The appointments season is winding down, and once again, I will compile an entry-level hiring report. I am interested in all entry-level tenure-track hires at American law schools. Click here to view last year's report. This time around, I am trying to collect the following data elements:
    Name of hiring institution, e.g., University of Illinois Name of new hire, e.g., Jane Roe First law degree, e.g., JD Awarding institution for first law degree, e.g., NYU Date of first law degree, e.g., 2001 Other highest degree, e.g., PhD Field of other highest degree, e.g., Political Science Award institution of other highest post-graduate degree, e.g., Harvard Date of other highest post-graduate degree, e.g., 2002 Pre-tenure track legal academic posititon, e.g., Visiting Associate Professor Institution of pre-tenure track legal academic position, e.g., Georgetown
So, a complete entry will look like this:
    University of Illinois:
      Jane Roe, JD NYU 2001, PhD Political Science Harvard 2002, Visiting Associate Professor Georgetown
I hope you will forgive me for begging, but it would be great if the information actually were sent in this format.
If you are a job candidate, please pass along the email address of the appointments committee chair, so I can find out about other hires.
The data element, "pre-tenure track legal academic posititon," is intended to encompass VAPs, Fellowships, and other full-time positions that are intended to lead to a full-time academic job.
Email information to me at lsolum@gmail.com
Thanks!
Update: Reports are already rolling in! Thanks. I'll post an interim report once I have data on a significant number of schools and hires.


 
Adler & Sanchirico on Inequality and Uncertainty Matthew D. Adler & Chris William Sanchirico (Penn Law) have posted Inequality and Uncertainty: Theory and Legal Applications on SSRN. Here is the abstract:
    “Welfarism” is the principle that social policy should be based solely on individual well-being with no reference to “fairness” or “rights.” The propriety of this approach has recently been the subject of extensive debate within legal scholarship. Rather than contributing (directly) to this debate, we identify and analyze a problem within welfarism that has received far too little attention. Call this the “ex ante/ex post” problem. The problem arises from the combination of uncertainty - an inevitable feature of real policy choice - and a social preference for equality. If the policymaker is not a utilitarian, but rather has a “social welfare function” that is equity-regarding to some degree, then she faces the following choice: Should she care about the equalization of expected well-being (the ex ante approach), or should she care about the expected equalization of actual well-being (the ex post approach)? Should she focus on the equality of prospects or the prospects for equality? In this Article, we bring the ex ante/ex post problem to the attention of legal academics, provide novel insight into when and why the problem arises, and highlight legal applications where the problem figures prominently. We ultimately conclude that welfarism requires an ex post approach. This is a counterintuitive conclusion because the ex post approach can conflict with ex ante Pareto superiority. Indeed, the Article demonstrates that the ex post application of every equity-regarding social welfare function - whatever its particular form - must conflict with ex ante Pareto superiority in some choice situations. Among other things, then, the Article shows that legal academics must abandon either their commitment to welfarism or their commitment to ex ante Pareto superiority.
Highly recommended! This is a fascinating paper.


 
Graetz & Warren on Income Tax Discrimination & European Integration Michael J. Graetz and Alvin C. Warren Jr. (Yale Law School and Harvard University - Harvard Law School) have posted Income Tax Discrimination and the Political and Economic Integration of Europe (Yale Law Journal, April 2006) on SSRN. Here is the abstract:
    In recent years, the European Court of Justice (ECJ) has invalidated many income tax law provisions of EU member states as violating the guarantees of the European constitutional treaties of freedom of movement for goods, services, persons, and capital. These decisions have not, however, been matched by significant European income tax legislation, because no European political institution has the power to enact such legislation without unanimous consent from the member states. Under the treaties, the member states have retained a veto power over income tax legislation. In this Article, we describe how the developing ECJ jurisprudence threatens the ability of member states to use tax incentives to stimulate their domestic economies and to resolve problems of international double taxation. We conclude that the ECJ approach is ultimately incoherent because it constitutes an impossible quest - in the absence of harmonized income tax bases and rates throughout Europe - to eliminate discrimination based on both origin and destination of economic activity. We also compare the ECJ’s jurisprudence with the resolution of related issues in the U.S. taxation of interstate commerce and international taxation. Finally, we consider the potential responses of both the European Union and the United States to these developments.


 
Wiegand on Conflicts Restatements Shirley Wiegand (Marquette University - Law School) has posted Fifty Conflict of Laws 'Restatements': Merging Judicial Discretion and Legislative Endorsement (Louisiana Law Review, Vol. 65, No. 1, 2005) on SSRN. Here is the abstract:
    This article examines current choice of law methodologies and critiques proposals for new and improved methodologies. It rejects the call for a national approach and instead proposes that each state adopt its own statutory choice of law code. The author recommends that each state begin this process by conducting empirical research and analysis of its own choice of law jurisprudence to determine how judges have approached the issue since rejection of traditional methods. Such analysis would examine not only substantive results, but also the methodologies employed and the possible existence of various biases in choice of law analysis. A thorough analysis would also likely reveal clear patterns for those issues that reappear from time to time. Drafters of a state choice of law code, rather than creating a choice of law methodology from whole cloth, would base their recommendations on the state's own jurisprudence. Such a result engages the efforts of both the judicial and legislative branches of the state's government, thereby resulting in a credible written product that reflects the state's own policies and jurisprudence: a true "restatement" of the law.


 
Weiss on Enforceable Social Clauses Marley S. Weiss (University of Maryland - School of Law) has posted Architectural Digest for International Trade and Labor Law: Regional Free Trade Agreements and Minimum Criteria for Enforceable Social Clauses on SSRN. Here is the abstract:
    Until the advent of binding “social clauses” in free trade arrangements, and incorporation of stronger social rights in the European Community treaties, the rapid widening and deepening of international commercial integration proceeded largely separate from international labor rights obligations. Inclusion of a “social clause” in a trade agreement ensures that the parties´ international labor rights commitments have equal dignity and binding force with their trade obligations. The threat of economic sanction for non-observance of labor commitments akin to the penalties for trade rule violations also may provide some “teeth” to induce compliance, unlike the lack of economic sanctions for violation of formally binding ILO and international human rights-based labor provisions. The implicit domestic political promise of trade negotiators, however, is that the social clause will operate as a circuit breaker in the feared downward spiral of domestic labor standards under pressure of free trade; the social clause functions as a political quid pro quo for trade liberalization. This paper argues that this bargain is largely illusory. Neither the typical human rights “naming and shaming” solution nor the usual national government-centered enforcement machinery provides realistic mechanisms to induce party-state compliance in the labor rights arena. The real parties in interest - employers, trade unions, and workers - are too disconnected from the international institutional process in most international regimes. Those benefiting through a form of unjust enrichment by a signatory country´s violations of its international labor commitments are institutionally insulated from any corresponding liability. Those suffering injury are institutionally excluded from ability to enforce the international obligations, and have no claim to recover compensation for their injuries caused by the government´s breach. The EU might provide a source of useful models for improving institutional arrangements and remedies, so as to ensure that “effective enforcement” becomes a meaningful term. Government reluctance to yield its sovereign control over the politically and economically delicate subject area of labor rights, however, presents an obdurate barrier to movement in this direction.


 
Bank on Dividens & Tax Policy Steven A. Bank (University of California, Los Angeles - School of Law) has posted Dividends and Tax Policy in the Long Run on SSRN. Here is the abstract:
    There is a long-standing debate as to whether changes in shareholder-level taxes have an effect on firm dividend policy. The traditional view is that tax changes influence dividends, while the new view is that there generally is no such effect. In support of the traditional view, recent observers point to the rise in dividends following the reduction in the tax rate on dividends in 2003. In fact, the resurgence in dividends has been so strong that President Bush has made it his top legislative priority to permanently extend the tax cut, which is currently set to expire at the end of 2008. The popular assumption is that the rise in dividends - and any associated economic and corporate governance benefits - will only continue if the lower rate is made permanent. This Article challenges that assumption. Using finance theory and empirical evidence from the U.S. and other countries, this Article shows that the relationship between dividends and taxes over the long run is more complex than dividend tax cut proponents suggest. Because the 2003 tax cut was only a temporary cut, making it permanent may actually have an effect that is opposite of what is intended. The implication is not that a temporary tax cut is preferable to a permanent one, but rather that the attempt to influence corporate behavior through the tax laws should be resisted as either futile or potentially counterproductive.


Sunday, February 26, 2006
 
Legal Theory Calendar
    Monday, February 27
      Columbia Legal Theory Workshop: Robert A Kagan, Professor of Political Science and Law University of California, Berkeley, "American and European Ways of Law: Six Entrenched Differences"
      Georgetown Law & Philosophy: Norman Finkel (Psychology, Georgetown)
      Yale Workshop Theory & Policy: DALTON CONLEY, Sociology, New York University, Family Background and Race over the Life Course
      Hofstra Law: Suzanne Goldberg, Rutgers School of Law – Newark, “Constitutional Adjudication, Civil Rights, and Social Change”
      London School of Economics, Centre for Philosophy of the Natural and Social Sciences: Nicola Knight (Michigan), On some aspects of the psychology of normativity
      NYU Law: Clay Gillette.
      UCLA Law: Ann Southworth, "Social Backgrounds and Characteristics of Prominent Lawyers of the Conservative Coalition: Sources of Conflict and Cohesion"
      University of Alabama Law: Rob Atkinson, Florida State
      University of Texas Law: Alex Stein (Cardozo), "Ambiguity Aversion and the Criminal Process"
    Tuesday, February 28
      University of Chicago, Law & Economics: Lee Fennell, Associate Professor of Law, University of Illinois College of Law, Properties of Concentration
      Georgetown Colloquium on Constitutional Theory: Steven Teles (government, Center for the Study of American Politics, Yale University), Parallel Paths: The Evolution of the Conservative Legal Movement
      Georgetown Law: Kathy Zeiler
      Lewis & Clark Law: Julian Ku, Associate Professor of Law, Hofstra Gubernatorial Foreign Policy.
      Oxford Human Rights Discussion Group: Caoilfhionn Gallagher, Proportionality in Practice
      University of Pennsylvania, Tax Policy Workshop: Lily Batchelder, Refundable Credits
      Yale Legal History: DANIEL ERNST, Georgetown University Law Center, "The Corporate Law Firm in the Liberal State: Legal Divisions in New Deal and Wartime Washington"
      Loyola University Chicago: Steven Ramirez (Washburn Law School), "Corporate Governance and Race"
    Wednesday, March 1
      University College, London, Colloquium in Legal & Social Philosophy: Scott Shapiro (Michigan), Massively shared agency
      NYU Legal History: Bernadette Meyler, Assistant Professor, Cornell Law School, "Towards a Common Law Originalism”
      UCLA Legal History Workshop: Risa Goluboff, University of Virginia School of Law, « Back, The Lost Origins of Modern Civil Rights
      University of Georgia Law: Michael Wells (UGA): "Sociological Legitimacy" in the Supreme Court
      University of Toronto, Tax Law & Policy Workshops: Reuven Avi-Yonah, University of Michigan The Three Goals of Taxation.
      Villanova Law: Milton Regan, Georgetown University Law Center
      UC Hastings: Judge Loren Smith, US Court of Federal Claims, Life, Liberty, and (Whose) Property? with commentary by Prof. Bhagwat, UC Hastings.
    Thursday, March 2
      Yale Legal Theory Workshop: Jennifer Mnookin, UCLA (Law), Envisioning Evidence: Expertise and Visual Proof in the American Courtroom
      Boston University Law: Henry Smith (Visiting Professor of Law, Harvard Law School and Professor of Law & Cognitive Science, Yale Law School), "Modularity in Intellectual Property"
      Brooklyn Law: Daniel Greenwood, Visiting Professor of Law, Brooklyn Law School, Are Shareholders Entitled to the Residual?
      Florida State Law: Jill Fisch, Fordham University School of Law
      Fordham Law: Sonia K. Katyal, Associate Professor of Law, Fordham University School of Law, "Trademark Intersectionality"
      UC Berkeley Center for Law and Technology & Berkeley Center for Law, Business and the Economy: Symposium on Legal and Policy Issues in Stem Cell Research
      UC Berkeley, Kadish Center: Hans Sluga, Professor of Philosophy, University of California, Berkeley, The Care of the Common
      NYU Colloquium on Tax Policy and Public Finance: Joseph Bankman, Stanford Law School, and David Weisbach, University of Chicago Law School, “The Superiority of an Ideal Consumption Tax Over an Ideal Income Tax.”
      Northwestern Tax Series: Calvin H. Johnson, Andrews & Kurth Centennial Professor, University of Texas at Austin "Tales From the KPMG Skunk Works: The Basis-Shift or Defective-Redemption Shelter"
      Oxford Jurispurdence Discussion Group: Juan Cruz Parcero, Reasons to Justify Rights
      Oxford Public International Law Discussion Group: Judge Allan Rosas, International Law in the European Court of Justice
      Stanford Law & Economics: Marcel Kahan (New York University Law School), "Hedge Funds in Corporate Governance and Corporate Control"
      University College, London, Current Legal Problems Lecture: Mindy Chen-Wishart, (Merton College Oxford), ‘Undue Influence: Vindicating Relationships of Influence’
      University of North Dakota, Indian Law Center: Philip S. (Sam) Deloria, "Indians in Legal Education"
    Friday, March 3
      Samford, Cumberland Law: Christine Hurt, Regulating Public Morals and Private Markets: Online Securities Trading, Internet Gambling and the Speculation Paradox.
      Boston College: Martha L. Minow, Harvard Law School
      Georgetown Law & Economics: Scott Baker, University of North Carolina School of Law, "Incomplete Contracts in a Complete Contracts World" (with K. Krawiec)
      Loyola, Los Angeles: Roger C. Park, Distinguished Professor of Law, UC Hastings College of the Law, "The Utility of Cross-Examination"
      Notre Dame Law: Professor Douglas Kysar, Cornell Law School
      Ohio State Law: Elizabeth Garrett, The Promise and Perils of Hybrid Democracy*
      UCLA Law: Richard C. Schragger, Associate Professor of Law, University of Virginia School of Law, "Can Strong Mayors Empower Weak Cities? Considering the Power of Local Executives in a Federal System"
      University of Texas Law: David Barron, Harvard University, "International Local Government Law"
      University of Maryland, Conference:
        2:00-3:25ish PM Session 1: The Liberal Tradition and America's Past
          Robin Rix Nackenoff Frymer
        3:35ish-5:00ish PM Session 2: The Liberal Tradition and America's Present/Future
          Kahn Smith Silverstein Novkov
        St. Johns Law: Federalism Past, Federalism Future: A Constitutional Law Symposium
        University of Arizona Law: Economic Torts Conference
          8:30 a.m. Welcome * Toni M. Massaro, Dean, The University of Arizona James E. Rogers College of Law * Debora de Hoyos, Esq., Managing Partner, Mayer, Brown, Rowe & Maw, LLP * Lance Liebman, Director, The American Law Institute 8:45 a.m Introductory Remarks * Ellen M. Bublick, The University of Arizona James E. Rogers College of Law 9:00 a.m. Opening Speaker * The Honorable Richard A. Posner, U.S. Court of Appeals, Seventh Circuit Economic Loss and Misrepresentation 9:30 a.m. Questions & Answers 10:00-11:45 a.m. Panel 1: The Economic Loss Rule and Its Limits Moderator: Dan B. Dobbs, The University of Arizona James E. Rogers College of Law Speakers: * Mark P. Gergen, The University of Texas School of Law Non-Contractural Undertakings of a Duty of Care * Anita Bernstein, Emory University School of Law and New York Law School Why No Liability for Pure Economic Loss? * Jean Braucher, The University of Arizona James E. Rogers College of Law The Dormant Law of Economic Torts in the Shadow of Consumer Protection Statutes * Jay M. Feinman, Rutgers, The State University of New Jersey School of Law, Camden The Economic Loss Rule and Private Ordering * Commentator: Robert L. Rabin, Stanford Law School 12:00 noon Lunch * Helmut Koziol, Executive Director, European Centre of Tort and Insurance Law and Director of the Research Unit for European Tort Law of the Austrian Academy of Sciences Recovery for Economic Loss in the European Union 1:30-3:00 p.m. Panel 2: Principles of Recovery in Economic Torts Moderator: The Honorable Andrew D. Hurwitz, Arizona Supreme Court Speakers: * Deborah A. DeMott, Duke Law School Breach of Fiduciary Duty * Ellen Smith Pryor, Southern Methodist University Dedman School of Law Bad Faith * Ian Ayres, Yale Law School and Gregory Klass Georgetown University Law Center New Rules for Promissory Fraud * Commentator, Theodore J. Schneyer The University of Arizona James E. Rogers College of Law 3:15-4:15 p.m. Panel 3: Economic Torts: A View From Experience Moderator: Herbert Zarov, Mayer, Brown, Rowe & Maw, LLP Speakers: * Charles J. Kalil, Corporate Vice President, General Counsel and Corporate Secretary, The Dow Chemical Company * Howard Roin, Mayer, Brown, Rowe & Maw, LLP * Deborah R. Hensler, Stanford Law School
      Saturday, March 4
        University of Maryland, Conference:
          9:00-10:25ish: Session 3: The Challenges of Maintaining Liberal Constitutional Law in 2005
            Mayeri Gillman Solum Roiphe
          10:35-noonish: Session 4: The Challenges of Constructing Liberal Constitutional Theory in 2005
            Fleming Hellman Zeisberg McClain
          1:30-2:55ish: Session 5: Domestic Liberalism and the War on Terror
            Levinson Quint Chibundu Koppelman
          3:05ish to 4:30ish: Session 6: Liberalism and Reconstruction:
            Goldstein Tushnet
      University of Arizona Law: Economic Torts Conference
        9:00-10:30 a.m. Panel 4: Emerging Influences on Liability – Comparative Apportionment and Technology Moderator: Darian M. Ibrahim, The University of Arizona James E. Rogers College of Law Speakers: * Andrew R. Klein, Associate Dean, Indiana University School of Law – Indianapolis Fraud and Comparative Fault * John C. P. Goldberg, Vanderbilt University Law School and Anthony J. Sebok, Brooklyn Law School Reasonable Reliance * Oscar S. Gray, University of Maryland School of Law Comparative Apportionment for Economic Torts? * Catherine M. Sharkey, Columbia Law School Trespass in an Electronic Age * Commentator, Michael D. Green, Wake Forest University School of Law 10:45 a.m.- 12:15pm Panel 5: Integration and Completion – The Torts Restatement Whole Moderator: Elena A. Cappella, Esq. The American Law Institute Speakers: * Bernard W. Bell, Rutgers, The State University of New Jersey, Center for Law & Justice Constitutional Limitations and the Economic Torts * David A. Anderson, University of Texas School of Law Economic Torts and Defamation Law * Lucinda M. Finley, Vice Provost, The State University of New York at Buffalo School of Law Developments and Trends in Privacy Torts * Kenneth W. Simons, Boston University School of Law A Restatement Third of Intentional Torts? 12:15-12:30 p.m. Concluding Remarks


 
Legal Theory Lexicon: Concepts and Conceptions
    Introduction Some ideas seem to be endlessly debated. We might all agree that "justice" is a good thing, but some of us think that justice boils down to counting the utility of each individual equally, while others think that justice is a matter of respecting basic human rights. Utilitarians might all agree that maximizing expected utility should be the aim of right action, but disagree about what "utility" is. Most torts theorists might agree that causation between an act of the defendant and harm to the plaintiff is an element most or all forms of tort liability, but disagree about what "causation" means. One of the niftiest tricks in legal theory is to handle cases like this with the concept/conception distinction. The "concept" of justice is the general idea, but different political theorists have different "conceptions" of justice. The concept of "utility" is shared by all utilitarians, but eudaimonistic utilitarianism maintains that the best conception of utility is happiness, while hedonistic utilitarianism holds that the best conception is pleasure.
    This post provides an introduction to the concept/conception distinction for law students (especially first-year law students) with an interest in legal theory.
    Essentially Contested Concepts So far as I know, the concept/conception distinction originates with "Essentially Contested Concepts," a paper written by the philosopher William Gallie in 1956. The core of Gallie's argument was the idea that certain moral concepts are "essentially contested." "Good," "right," and "just," for example, are each moral concepts which seem to have a common or shared meaning. That is, when I say, that the alleviation of unnecessary suffering is good, you understand what I mean. But it may be that you and I differ on the criteria for the application of the term "good." You may think that a state of affairs is good to the extent that it produces pleasure or the absence of pain, while I may think that the criteria for "good" make reference to the conception of a flourishing human life, lived in accord with the virtues. A quick aside. Sometimes, when there is this sort of disagreement, we want to say, "Ah, you and I are referring to different concepts." If by "cause," you mean "legal cause," whereas I use "cause" as a synonym for "cause in fact," then we are using the same word to refer to two different concepts. Back to "good." But in the case of "good," we seem to be using the same concept. I think that the good really is human flourishing and not pleasure; you have the opposite opinion. So we are contesting the meaning of the concept "good," and each of us has a different conception of that concept.
    Gallie thought that some concepts were essentially contested. That is, Gallie believed that some concepts were such that we would never reach agreement on the criteria for application of the concepts. If a concept is essentially contested, then it is in the nature of the concept that we disagree about the criteria for its application.
    Two Uses of the Concept/Conception Distinction
      Rawls on the Concept and Conceptions of Justice Perhaps the most famous use of the concept/conception distinction is found in the political philosopher John Rawls's famous book, A Theory of Justice. Rawls appeals to the distinction between the concept of justice and particular conceptions of justice. His theory, justice as fairness, is defended as the best conception of justice. Notice that as used by Rawls, the concept/conception distinction does not imply that the concept of justice is essentially contested. It might be the case that we would eventually come to agreement on the criteria for a just society. In other words, not all contested concepts are essentially contested concepts.
      Dworkin on Concepts and Conceptions in Legal Reasoning Another well-known use of the concept/conception distinction is found in Ronald Dworkin's theory, law as integrity. You may know that Dworkin uses a hypothetical judge, Hercules, to illustrate his theory. Suppose that Hercules is interpreting the United States Constitution. He finds that the Equal Protection Clause of the Constitution makes reference to the concept of equality. In order to decide some case, about affirmative action say, Hercules must decide what equality means. To do this, Hercules will determine what conception of equality best fits and justifies our legal practices--narrowly, the equal protection clause cases but more broadly, the whole of American constitutional law. For Dworkin, "equality" is not an "essentially contested concept," because Dworkin does not take the position that there cannot be stable criteria for the meaning of concepts like equality. Rather, "equality" is an interpretive concept--a concept that is subject to interpretation. Interpretive concepts like equality are, in fact, contested, and may, in fact, always be contested, but this is not an "essential" (necessary) characteristic of interpretive concepts.
    Conclusion The law is full of contested concepts, and one of the jobs of legal theorists is to determine which conceptions of these concepts are the most defensible. Indeed, because contested concepts come up all the time, the concept/conception distinction is extremely useful as a tool for clarifying the nature of disagreements about what the law is and what it should be. When you next run into an idea like "justice," "equality," "utility," or "causation," ask yourself whether different conceptions of that concept are at work.
    References
    • Ronald Dworkin, Law's Empire (Harvard University Press 1988).
    • W. B. Gallie, " Essentially Contested Concepts," 56 Proceedings of the Aristotelian Society 167 (1956).
    • John Rawls, A Theory of Justice ((Revised edition, Cambridge, Massachusetts: Belknap Press, 1999).


Saturday, February 25, 2006
 
Legal Theory Bookworm The Legal Theory Bookworm recommends Taking Rights Seriously by Ronald Dworkin. This is a modern classic, containing early and important essays, including Hard Cases--an absolute must read for every law student and legal academic. Here's a blurb:
    What is law? What is it for? How should judges decide novel cases when the statutes and earlier decisions provide no clear answer? Do judges make up new law in such cases, or is there some higher law in which they discover the correct answer? Must everyone always obey the law? If not, when is a citizen morally free to disobey? A renowned philosopher enters the debate surrounding these questions. Clearly and forcefully, Ronald Dworkin argues against the "ruling" theory in Anglo-American law-legal positivism and economic utilitarianism and asserts that individuals have legal rights beyond those explicitly laid down and that they have political and moral rights against the state that are prior to the welfare of the majority. Mr. Dworkin criticizes in detail the legal positivists' theory of legal rights, particularly H. L. A. Hart's well-known version of it. He then develops a new theory of adjudication, and applies it to the central and politically important issue of cases in which the Supreme Court interprets and applies the Constitution. Through an analysis of Rawls's theory of justice, he argues that fundamental among political rights is the right of each individual to the equal respect and concern of those who govern him. He offers a theory of compliance with the law designed not simply to answer theoretical questions about civil disobedience, but to function as a guide for citizens and officials. Finally, Professor Dworkin considers the right to liberty, often thought to rival and even pre-empt the fundamental right to equality. He argues that distinct individual liberties do exist, but that they derive, not from some abstract right to liberty as such, but from the right to equal concern and respect itself. He thus denies that liberty and equality are conflicting ideals. Ronald Dworkin's theory of law and the moral conception of individual rights that underlies it have already made him one of the most influential philosophers working in this area. This is the first publication of these ideas in book form.


 
Download of the Week The Download of the Week is Disenchantment and Desire: What is to Be Done? by Sandy Levinson (University of Texas). Here is a taste of this Chapter from Levinson's forthcoming book:
    This book has tried to demonstrate why I believe that our Constitution is sufficiently defective to count as broken. Some of its defects are truly grievous:
      *The allocation of power in the Senate *The almost certain presidential dictatorship that will follow any catastrophic attack on members of Congress *Excessive presidential power *The electoral college *The hiatus between the repudiation of a sitting President and the inauguration of a successor *The inability to get rid of an incompetent President *The functional impossibility of amending the Constitution with regard to anything truly significant.
    Some of them are merely counter-productive or offensive:
      *Life tenure for Supreme Court justices *The creation of second-class citizens
    For those of you who share my concerns, the central question is, what now? How, if at all, can we work together to begin fixing our Constitution. Is it possible to escape from what I have called our constitutional “iron cage”? Anyone notion of “escape” requires first the belief that we are trapped in a possibly dangerous situation and then that there is some actual means of achieving it. The first factor involves what might be termed a state of consciousness; the second, a determination of whether means exist to achieve one’s goals.
Levinson is one of the most creative thinkers in the legal academy. Highly recommended!


Friday, February 24, 2006
 
Friday Calendar
    Columbia, Federalist Society Student Symposium: International Law and the State of the Constitution. Live blogging by Pallavi Guniganti on Ex Post.
    Villanova Law: Wendy Scott, Tulane University School of Law
    University of Texas Law: John Langbein, Yale University, Trust Law as Regulatory Law: The Unum/Provident Scandal and Judicial Review of Benefit Denials under ERISA
    University of Georgia International Law Colloquium: Karen Knop (University of Toronto), "Enemies and Outlaws: War and the Public/Private Citizen"
    University of Georgia Law: Anthony Alfieri (Miami), The Fall of Legal Ethics and the Rise of Risk Management
    UCLA Media, Entertainment, and Culture Workshop:
      9:30 a.m. - 10:45 a.m.
        Faculty Library (Room 2326) Timothy Wu Professor of Law Columbia Law School "The Copyright Paradox-Understanding Grokster"
      11:00 a.m. - 12:15 a.m.
        Faculty Library (Room 2326) Yochai Benkler Professor of Law Yale Law School Political Freedom: Emergence of the Networked Public Sphere (Hard copies will only be distributed in the law school mailroom)
      12:30 p.m. - 2:00 p.m.
        Law Building Room 2448 *Co-sponsored by the Friday Colloquium Howard A. Shelanski Associate Dean and Professor of Law Director, Berkeley Center for Law & Technology Boalt Hall School of Law "Antitrust Law as Mass Media Regulation: Can Merger Standards Protect the Public Interest?"
      2:30 p.m. - 3:45 p.m.
        Faculty Library (Room 2326) Philip J. Weiser Associate Professor of Law Executive Director of Silicon Flatirons Telecommunications Program University of Colorado School of Law "Toward Property Rights in Spectrum: The Important and Difficult Policy Choices Ahead"
    Oxford Centre for Competition Law & Policy: Philippe Chappatte, International Cartels and leniency Procedures
    Ohio State Legal History: David Gold, A History of the Ohio General Assembly
    Notre Dame Law: Professor Lisa Heinzerling, Georgetown University Law Center
    American University Program on Intellectual Property and the Public Interest, Orphan Works (link for webcast)
    Georgetown Law & Economics: Greg Sidak, Georgetown University Law Center, Should Internet Protocol-Enabled Video Service Provided over a Telephone Network Be Regulated as Cable Service?"
    Columbia Journal of Gender and Law Symposium: Sexuality and the Law:
      9:00am-10:00am: Children and Education
        The Failure of Abstinence-Only Education: Minors Have a Right to Honest Talk About Sex by Hazel Glenn Beh, University of Hawai’i at Manoa School of Law, & Milton Diamond, University of Hawai’i at Manoa, The Pacific Center for Sex and Society
        Feminist ABC’s of Sex Education by Linda McClain, Hofstra University School of Law
        Moderator: Professor Ariela Dubler
      10:15am-11:15am: The Interplay Between Disability and Sexuality
        Legal Cross-Dressing: Sexuality and the Americans with Disabilities Act by Fedwa Malti-Douglas, Indiana University, Bloomington
        Transgendered Plaintiffs and Title VII by Jennifer Levi, Western New England College, School of Law
        Moderator: Professor Suzanne Goldberg
      11:30am-12:30pm: Prison and Punishment
        Sexual Punishments by Alice Ristroph, University of Utah, S.J. Quinney College of Law
        Rethinking Prison Sex: Self-Expression and Safety by Brenda Smith, American University, Washington College of Law
        Moderator: Professor Philip Genty
      12:45pm: Lunch with Keynote speech by William Eskridge, Jr.
      2:15pm-3:15pm: Sexuality and Marriage
        Name Change: The Future of Default Rules for Marital Names by Elizabeth F. Emens, Columbia Law School
        A Historical Guide to the Future of Marriage for Same-Sex Couples by Suzanne Goldberg, Rutgers School of Law - Newark
        Moderator: Professor Carol Sanger
      3:30pm-4:30pm: Sexual Expression
        Pathology Full Circle: A History of Anti-Vibrator Legislation in the United States by Danielle Lindemann, Columbia University, Department of Sociology
        The New Politics of Adultery by Brenda Cossman, University of Toronto, Faculty of Law
        The Expressiveness and (Potential) Gender-Neutrality of Sexuality following Lawrence v. Texas by James Garland, Hofstra University School of Law
        Moderator: Professor Elizabeth Emens


Thursday, February 23, 2006
 
Welcome to the Blogosphere . . . to Empirical Legal Studies, with editors Jason Czarnezki, Michael Heise, Theodore Eisenberg, and William Ford and a great lineup of guest bloggers to come.


 
Thursday Calendar
    William Mitchell College of Law: Heidi M. Hurd, Judges, the Law, and Morality
    Update: University of Arizona College of Law: Ahmed White, University of Colorado, "Criminal Syndicalism Laws, the Industrial Workers of the World, and the Criminalization of Economic Radicalism, 1917-1927."
    Yale Law, Economics & Organizations: Professor Charles Calomiris, Columbia, International Business, Relationship Banking and the Pricing of Financial Services
    Vanderbilt Law: David Hyman, University of Illinois College of Law, "Do Defendants Pay What Juries Award?: Post-Verdict Haircuts in Texas Medical Malpractice Caes, 1988-2003"
    UCLA Legal Theory Workshop: Daniel Markovits (Yale).
    University of Texas Alexander Watkins Terrell Centennial Lectureship: John Langbein, Yale University, Understanding the Death of the Private Pension Plan in the United States
    University of Texas Colloquium on Constitutional and Legal Theory: Rick Pildes (NYU) "Separation of Parties, not Powers"
    University of Michigan Law & Economics: Michael Abramowicz, George Washington, Patent Auctions
    University College, London, Faculty of Laws: Dr Oliver Gerstenberg (University of Leeds), ‘The European Convention of Human Rights and Domestic Constitutional Discourse: A Clash of Absolutes’
    Oxford Public International Law Discussion Group: Charles Proctor, The Recent US-China Currency Dispute in International Law: Trade and Monetary Relations
    Oxford Financial Law Discussion Group: Frederique Dahan and John Simpson, Secured Credit Legal Issues in Transition Economies
    Oxford Law Faculty: Sarah Worthington, Why distinguish between property and contract?
    Ohio State Law: Arthur Greenbaum, The Role of Judges in Reporting Lawyer Misconduct
    NYU Colloquium on Tax Policy and Public Finance: Alan Auerbach, Berkeley Economics Department, "Who Bears the Corporate Tax? A Review of What We Know."
    King's College, London: Rebecca Bennett (Manchester), Should we eradicate disability: a reply to harris.
    UC Berkeley, Kadish Center: Rae Langton, Professor of Philosophy, MIT, SPEAKER'S FREEDOM AND MAKER'S KNOWLEDGE
    Georgetown Law & Philosophy: Jonathan Marks (Greenwall Fellow, Georgetown and Johns Hopkins)
    Fordham Law: Eric A. Posner, Kirkland & Ellis Professor of Law, University of Chicago Law School, "Emergencies and Democratic Failure"
    Florida State Law: Tracy Higgins, Fordham University Regulatory Feminism
    Brooklyn Law: David Skeel, University of Pennsylvania Law School, Who Makes the Rules for Hostile Takeovers, and Why? & The Peculiar Divergence of US and UK Takeover Regulation
    Boston University Law: David Seipp, "Big Legal History and the Hundred-Year Test"


 
Claus on the Conception of a Constitution Laurence Claus (University of San Diego School of Law) has posted Implication and the Concept of a Constitution (Australian Law Journal, Vol. 69, p. 887, 1995) on SSRN. Here is the abstract:
    Recent decisions of the High Court of Australia have highlighted a distinction between two conceptions of written constitutions that may be applied by judicial interpreters. One treats constitutional text as defining governmental powers and limitations thereon, whilst the other, more controversially, treats the text as merely illustrating broader, unwritten principles that ultimately set the scope of governmental powers. This article analyses the distinction and traces the history of the “illustrative” conception as applied in Australian and United States constitutional adjudication.
Highly recommended


 
Winn on Islamic Law and Electronic Commerce Jane K. Winn (University of Washington - School of Law) has posted Islamic Law, Globalization and Emerging Electronic Commerce Technologies on SSRN. Here is the abstract:
    Network effects created by the use of electronic commerce technologies may put pressure on the community of the Muslim faithful to assimilate into global markets that do not comply with the requirements of Islamic law. At the same time, however, they hold the promise of greater access to global markets constituted in a manner that comports with Islamic law. There are significant structural differences in commercial transactions conducted in conformity with Islamic law and those conducted according to Western secular norms. As a result, the automation of Islamic commercial transactions will require the development and implementation of significantly different technical standards. Many Muslim countries now have low penetration rates for electronic commerce technologies, and the development of technical standards to support automated transaction processing in a manner that conforms to Islamic law does not appear to be a policy priority in those countries. If such standards are developed, then strategy and relative bargaining power will determine whether secular Western organizations wishing to trade with Islamic organizations are required to implement both Western and Islamic technologies in order to gain access to markets in Islamic nations, or organizations in Islamic nations are required to implement both in order to gain access to global markets.


 
Morag-Levine on Foreign Precedents Noga Morag-Levine (Michigan State University - College of Law) has posted Judges, Legislators, and Europe's Law: Common-law Constitutionalism and Foreign Precedents (Forthcoming, Maryland Law Review) on SSRN. Here is the abstract:
    Supreme Court citation of the opinion of foreign courts, a phenomenon common worldwide, is much more controversial in the United States than abroad. This controversy is difficult to explain solely with reference to the judicial-activism and separation-of-powers arguments that usually frame debates over the propriety of foreign citations. Supreme Court opinions are replete with references to extra-legal sources; why single out foreign case law as deserving of special condemnation? The answer, this essay suggests, derives in large part from the prominence of European case law from the civil-law tradition among the cited foreign precedents. As such the current controversy stands as a reincarnation of 19th-century divisions over the transplantation of continental-inspired legislation. Throughout the 1800s, key jurisprudential figures (e.g. Kent, Lieber, Carter, and Dillon) argued that civil-law-based legal reforms, such as codification and social legislation, conflicted with the tenets of American constitutionalism. The current foreign-precedent controversy is, in many ways, a mirror image of older debates. In the 19th- and early 20th-century story, the main mechanism for the transplantation of continental-modeled law into the United States—and hence the main threat for those worried about foreign influence—was legislation. Opponents asserted that there was an inherent antagonism between American constitutionalism and legislation inspired by continental political systems. Today, the roles have reversed, with some judges serving as agents of legal transplantation (notably from Europe) and some legislators seeking to guard the gates with campaigns against foreign citations, among other tools. This thesis finds support in the prominence of references to core differences between Europe and America within the current debate. The essay offers two such examples. The first is arguments advanced on behalf of a congressional resolution condemning citations to foreign law, and the second is Justice Scalia's response in Printz v. United States to Justice Breyer's comments on the structure of federalist institutions on the continent.


 
Dau-Schmidt and Brun on Comparative Law & Economics Kenneth Glenn Dau-Schmidt and Carmen L. Brun (Indiana University School of Law-Bloomington and Independent) have posted Lost in Translation: The Economic Analysis of Law in the United States and Europe (Columbia Journal of Transnational Law, Forthcoming) on SSRN. Here is the abstract:
    In this essay, we examine the reasons why the economic analysis of law has not flourished in European countries as it has in the U.S. In particular, we focus on three European countries - the United Kingdom (U.K.), Germany, and France. We argue that differences in culture, the legal system and the academy have led to differing degrees of success of the law and economics movement in each country. We speculate that, although there is currently less interest in the economic analysis of the law in Europe than in the United States, European interest could dramatically increase if scholars adopt more communitarian analyses aimed at analyzing legislative polices rather than judicial decisions.


Wednesday, February 22, 2006
 
Suja on the Constitutionality of Summary Judgment Suja Thomas (University of Cincinnati Law) has posted Why Summary Judgment is Unconstitutional on SSRN. Here is the abstract:
    Summary judgment is a significant reason for the dramatic decline in the number of jury trials in civil cases in federal court. Judges extensively use the device to clear the federal docket of cases deemed meritless. Recent scholarship even has called for the mandatory use of summary judgment prior to settlement. While other scholars question the use of summary judgment in certain types of cases (e.g., civil rights), all scholars and judges assume away a critical question: whether summary judgment is constitutional. The conventional wisdom is that the Supreme Court settled the issue a century ago in Fidelity & Deposit Company v. United States. But a review of that case reveals that the conventional wisdom is wrong: the constitutionality of summary judgment has never been resolved by the Supreme Court. This Article is the first to examine the question and takes the seemingly heretical position that summary judgment is unconstitutional. The question is governed by the Seventh Amendment which provides that “[i]n Suits at common law, . . . the right of trial by jury shall be preserved, and no fact tried by jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.” The Supreme Court has held that “common law” in the Seventh Amendment refers to the English common law in 1791. This Article demonstrates that no procedure similar to summary judgment existed under the English common law and also reveals that summary judgment violates the core principles of the English common law. The Article concludes that despite the perceived necessity and uniform acceptance of the device, summary judgment is unconstitutional. The Article also responds to likely objections and explores the far-ranging ramifications of this conclusion.
I just read this very provocative and remarkably persuasive piece. Highly recommended for proceduralists!


 
Wednesday Calendar
    University College, London, Colloquium in Legal and Social Philosophy: Ronald Dworkin, ‘The concepts of Law’
    University College, London, Faculty of Laws: Dr Phoebe Okowa, QMUL, ‘The use of force in the Congo’
    Villanova Law: Christopher Borgen, St. John's University School of Law
    USC-Caltech Participatory Democracy Workshop: Archon Fung (The John F. Kennedy School of Government, Harvard University), Practical Reasoning About Institutions: Governance Innovations in the Development of Democratic Theories
    Oxford Public Law Discussion Group: Paul Craig, Human Rights, the EU, the ECHR and the Bosphorus Case
    Oxford Criminology Seminar Series: Yvonne Jewkes, A prison Tale: The Role of Empathy and Emotion in the Formulation of Knowledge
    NYU Legal History: James Whitman, Professor, Yale Law School, "The Origins of Reasonable Doubt: Religious Roots of the Criminal Trial"


Tuesday, February 21, 2006
 
Tuesday Calendar
    Vanderbilt Comparative Corporate Governance Seminar: Katarina Pistor, Columbia Law School
    University of Texas Law: Sanford Levinson, University of Texas Law, Disenchantment & Desire: What is to be Done
    University of Alabama Law: Hans Baade, University of Texas
    University College, London, Faculty of Laws: The Honourable Justice Michael Kirby AC CMG and Professor Ronald Dworkin QC, Al-Kateb v Godwin (Decision of the High Court of Australia, 6 August 2004
    Northwestern Constitutional Theory: Stephen Siegel, Distinguished Research Professor of Law, DePaul University, "The Origin of the Compelling State Interest Test and Strict Scrutiny"
    NYU Law: Mattias Kumm.
    Marquette Law: Coleen Barger, University of Arkansas at Little Rock, In-Classroom Assessment of Students
    London School of Economics, Centre for Philosophy of the Natural and Social Sciences: John Worrall (LSE), Evidence and ethics in medical trials
    University of London School for Advanced Science, Institute of Philosophy Conference and Seminar Series: Larry Temkin (Rutgers), Thinking About the Needy.
    Lewis & Clark Law: Erik Luna, University of Utah, Deadly Judgment: Discretion, Discrimination, and Error in American Capital Punishment Chicago IP Colloquium: Professor Joseph Liu, Boston College Law School, Copyright and Consumer-Enabling Technologies
    Hofstra Law: Anita Allen, University of Pennsylvania Law School, “Disrobed: The Constitution of Modesty”


 
Program Announcement: Metaphysics, Ethics, and Politics
    Metaphysics, Ethics, & Politics in the Thomistic and Analytic Traditions A summer graduate philosophy seminar sponsored by the Witherspoon Institute from August 7-11, 2006 on the campus of Princeton University http://www.winst.org/philosophy.htm Faculty Alexander R. Pruss, Georgetown University Mark C. Murphy, Georgetown University Nicholas Rescher, University of Pittsburgh Gabrielle De Anna, University of Udine Michael Gorman, Catholic University of America Description Metaphysics, Ethics, & Politics in the Thomistic and Analytic Traditions is a summer graduate seminar devoted to promoting intellectual exchange between the philosophical tradition inspired by Thomas Aquinas, broadly understood, and contemporary analytic philosophy. The modern revival of Thomism in Catholic circles began with the 1879 encyclical letter Aeterni Patris, and was exemplified in the work of Jacques Maritain and Etienne Gilson during the first half of the twentieth century. Beginning in the mid-twentieth century, that revival was broadened as philosophers such as Peter Geach, Elizabeth Anscombe, Anthony Kenny, and Philippa Foot began to draw upon the insights of Aquinas (and Aristotle) within the context of contemporary analytic philosophy. The work of these philosophers and others has shown how the Thomistic tradition can inspire original, valuable contributions to contemporary debates, and also can often call into question how the very issues of contemporary philosophy are themselves conceived. This seminar hopes to further this engagement between traditions by offering faculty and graduate students a forum for focused study and discussion of Thomism, as well as providing a convivial environment that initiates long-term scholarly collaboration. The topics addressed by the seminar will range broadly from metaphysics to political and legal theory, encouraging consideration of how the various problems and subfields of philosophy intertwine. Perhaps most importantly, the seminar aims to be more than a conventional academic conference by contributing in some small way to a renewal of contemporary philosophical practice; it is hoped that "philosophy" can again be understood as a way of life ­ an ideal which includes but transcends argumentation. The seminar plans to include faculty and graduate students who have a wide variety of philosophical interests, but who share the conviction that explicating the historical tradition of Thomistic-Aristotelianism and engaging contemporary philosophy are complementary roles in a common endeavor. The seminar is open to all graduate students in philosophy. (Other graduate students who can demonstrate a strong background in philosophy may also apply.) More Information Applications must be submitted by April 15, 2006. Please visit http://www.winst.org/philosophy.htm or contact ThomisticSeminar@gmail.com for more details.


Monday, February 20, 2006
 
Monday Calendar
    Yale Workplace Theory & Policy: NANCY FRASER, Political Science, The New School, Reframing Justice in a Globalizing World
    University of Texas Law: Ronen Avraham (Northwestern), The Impact of Tort Reforms on Medical Malpractice awards, 1991-1998 (with Albert Yoon)
    Aristotelian Society (London): Jennifer Saulm Pornography, Speech Acts and Context
    American University: Program on Intellectual Property and the Public Interest
    Columbia Law & Economics: Michael Abramowicz, The George Washington University Law School, "Patent Auctions"


 
Call for Papers: Reclaiming the First Amendment
    Call for Papers: RECLAIMING THE FIRST AMENDMENT: A CONFERENCE ON CONSTITUTIONAL THEORIES OF MEDIA REFORM 2007 will mark the 40th anniversary of Jerome Barron's Harvard Law Review article, "Access to the Press - A New First Amendment Right." Although First Amendment theories of access, like First Amendment arguments for government regulation of the mass media to ensure a diversity of viewpoints, have had a mixed reception in the courts, there is growing concern today that consolidated media ownership presents a serious challenge to democracy. To commemorate the publication and reinvigorate legal and policy work on the First Amendment as a basis for media access and structural reform, Hofstra Law School, along with the Brennan Center for Justice at NYU School of Law, is organizing a one-day conference on Jan. 19, 2007, titled Reclaiming the First Amendment: A Conference on Constitutional Theories of Media Reform. The major papers from the conference will be published in a symposium issue of the Hofstra Law Review. The conference will be structured around four panels that will consist of one keynote speaker, one responder, and two additional presentations. We are pleased that four distinguished scholars have agreed to join us as keynoters: C. Edwin Baker of the University of Pennsylvania Law School, Robert McChesney of the University of Illinois, Lili Levi of the University of Miami Law School, and Ellen Goodman of Rutgers Law School. Jerome Barron will be the luncheon speaker. Papers may address any aspect of the First Amendment and the mass media, including cable, print, broadcasting, and the Internet. For example:
      ? The Supreme Court noted 62 years ago that the First Amendment “rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public.” How might this principle be harnessed to address contemporary concerns? ? Is the “scarcity” rationale still viable? Can it form the basis for structural regulation beyond broadcasting? ? Are there other theories to support a First Amendment right to diverse ownership or that provide a basis for structural regulation? ? How strong is the First Amendment argument for resisting regulation? ? What First Amendment standards should apply to content-neutral, content-based, and viewpoint-based media regulation? ? What relevance does Barron's article have for media reform today? ? What impact do changes in communications technologies have on issues of access and how should the law respond?
    This list is by no means exclusive. Papers may be of any length but should further the conference goal of proposing innovative policy and legal approaches, and be suitable for law review publication. We invite paper proposals of 750-1,000 words, to be submitted in electronic form to Dawn.M.Marzella@Hofstra.edu by April 1, 2006. Decisions will be made by May 1, and the authors selected will be invited to participate as panelists. Completed papers will be due November 1, 2006. For further information, contact: Professor Eric M. Freedman, Hofstra Law School, LAWEMF@Hofstra.edu, tel. 516-463-5167 or Marjorie Heins, Brennan Center for Justice, Marjorie.Heins@NYU.edu, tel. 212-992-8847


 
Thank you to the University of Virginia . . . and especially David Tabachnick and Kevin Kordana for a wonderful conference on political philosophy and private law.
Travel to and from Charlottesville was especially difficult and time consuming, and as a result, I am behind on some blog related tasks. Regular posts should resume this evening.


 
Conference Announcement: Survival & Sustainability in Nicosia
    International Conference on the Environment : Survival and Sustainability19 to 24 February 2007 Nicosia - Northern Cyprus We would like to welcome you to participate at the International Conference entitled “Environment: Survival and Sustainability” which will take place on 19 - 24 February 2007, at the Near East University. The aim will be to create a multi-disciplinary discussion forum where experts from various disciplines-from academia as well as policymaking/implementation side-from countries the world over will discuss environmental issues with a view to provide a better understanding of environmental issues, stimulate scientific discussion and develop policy-relevant approaches and analysis for decision-makers. The Conference aims to bring together around 2000 scholars and researchers from over 90 countries around the world to discuss environmental issues from a variety of perspectives. The deadline for abstracts/proposals is 15 April 2006. Preliminary List of Major Topics:
      * Conservation and Management of Biodiversity * Environmental Science and Technology * Environmental Knowledge and Information Systems * Environmental Organizations: Roles, Problems, and Prospects * Global Warming: How Much of a Threat? * Integrated Water Resources Management * Energy and Development: New and Renewable Energy * Cultural Heritage and Environmental Factors * Natural and Man-Made Disasters: Emerging Link and Challenges * International Relations and Environmental Issues * Green Factor in Politics * The Role of Media : Problems and Challenges * Environment and Health * Business and Environment : Redefining Interests * Environmental Awareness, Education, and Lifelong Learning * Economics, Development and Sustainability * Environmental Law and Ethics * Seas, Ecological Balance and Sustainable Environment


Sunday, February 19, 2006
 
Legal Theory Calendar
    Monday, February 20
      Yale Workplace Theory & Policy: NANCY FRASER, Political Science, The New School, Reframing Justice in a Globalizing World
      University of Texas Law: Ronen Avraham (Northwestern), The Impact of Tort Reforms on Medical Malpractice awards, 1991-1998 (with Albert Yoon)
      Aristotelian Society (London): Jennifer Saulm Pornography, Speech Acts and Context
      American University: Program on Intellectual Property and the Public Interest
      Columbia Law & Economics: Michael Abramowicz, The George Washington University Law School, "Patent Auctions"
    Tuesday, February 21
      Vanderbilt Comparative Corporate Governance Seminar: Katarina Pistor, Columbia Law School
      University of Texas Law: Sanford Levinson, University of Texas Law, Disenchantment & Desire: What is to be Done
      University of Alabama Law: Hans Baade, University of Texas
      University College, London, Faculty of Laws: The Honourable Justice Michael Kirby AC CMG and Professor Ronald Dworkin QC, Al-Kateb v Godwin (Decision of the High Court of Australia, 6 August 2004
      Northwestern Constitutional Theory: Stephen Siegel, Distinguished Research Professor of Law, DePaul University, "The Origin of the Compelling State Interest Test and Strict Scrutiny"
      NYU Law: Mattias Kumm.
      Marquette Law: Coleen Barger, University of Arkansas at Little Rock, In-Classroom Assessment of Students
      London School of Economics, Centre for Philosophy of the Natural and Social Sciences: John Worrall (LSE), Evidence and ethics in medical trials
      University of London School for Advanced Science, Institute of Philosophy Conference and Seminar Series: Larry Temkin (Rutgers), Thinking About the Needy.
      Lewis & Clark Law: Erik Luna, University of Utah, Deadly Judgment: Discretion, Discrimination, and Error in American Capital Punishment Chicago IP Colloquium: Professor Joseph Liu, Boston College Law School, Copyright and Consumer-Enabling Technologies
      Hofstra Law: Anita Allen, University of Pennsylvania Law School, “Disrobed: The Constitution of Modesty”
    Wednesday, February 22
      University College, London, Colloquium in Legal and Social Philosophy: Ronald Dworkin, ‘The concepts of Law’
      University College, London, Faculty of Laws: Dr Phoebe Okowa, QMUL, ‘The use of force in the Congo’
      Villanova Law: Christopher Borgen, St. John's University School of Law
      USC-Caltech Participatory Democracy Workshop: Archon Fung (The John F. Kennedy School of Government, Harvard University), Practical Reasoning About Institutions: Governance Innovations in the Development of Democratic Theories
      Oxford Public Law Discussion Group: Paul Craig, Human Rights, the EU, the ECHR and the Bosphorus Case
      Oxford Criminology Seminar Series: Yvonne Jewkes, A prison Tale: The Role of Empathy and Emotion in the Formulation of Knowledge
      NYU Legal History: James Whitman, Professor, Yale Law School, "The Origins of Reasonable Doubt: Religious Roots of the Criminal Trial"
    Thursday, February 23
      William Mitchell College of Law: Heidi M. Hurd, Judges, the Law, and Morality
      Yale Law, Economics & Organizations: Professor Charles Calomiris, Columbia, International Business, Relationship Banking and the Pricing of Financial Services
      Vanderbilt Law: David Hyman, University of Illinois College of Law, "Do Defendants Pay What Juries Award?: Post-Verdict Haircuts in Texas Medical Malpractice Caes, 1988-2003"
      UCLA Legal Theory Workshop: Daniel Markovits (Yale).
      University of Texas Alexander Watkins Terrell Centennial Lectureship: John Langbein, Yale University, Understanding the Death of the Private Pension Plan in the United States
      University of Texas Colloquium on Constitutional and Legal Theory: Rick Pildes (NYU) "Separation of Parties, not Powers"
      University of Michigan Law & Economics: Michael Abramowicz, George Washington, Patent Auctions
      University College, London, Faculty of Laws: Dr Oliver Gerstenberg (University of Leeds), ‘The European Convention of Human Rights and Domestic Constitutional Discourse: A Clash of Absolutes’
      Oxford Public International Law Discussion Group: Charles Proctor, The Recent US-China Currency Dispute in International Law: Trade and Monetary Relations
      Oxford Financial Law Discussion Group: Frederique Dahan and John Simpson, Secured Credit Legal Issues in Transition Economies
      Oxford Law Faculty: Sarah Worthington, Why distinguish between property and contract?
      Ohio State Law: Arthur Greenbaum, The Role of Judges in Reporting Lawyer Misconduct
      NYU Colloquium on Tax Policy and Public Finance: Alan Auerbach, Berkeley Economics Department, "Who Bears the Corporate Tax? A Review of What We Know."
      King's College, London: Rebecca Bennett (Manchester), Should we eradicate disability: a reply to harris.
      UC Berkeley, Kadish Center: Rae Langton, Professor of Philosophy, MIT, SPEAKER'S FREEDOM AND MAKER'S KNOWLEDGE
      Georgetown Law & Philosophy: Jonathan Marks (Greenwall Fellow, Georgetown and Johns Hopkins)
      Fordham Law: Eric A. Posner, Kirkland & Ellis Professor of Law, University of Chicago Law School, "Emergencies and Democratic Failure"
      Florida State Law: Tracy Higgins, Fordham University Regulatory Feminism
      Brooklyn Law: David Skeel, University of Pennsylvania Law School, Who Makes the Rules for Hostile Takeovers, and Why? & The Peculiar Divergence of US and UK Takeover Regulation
      Boston University Law: David Seipp, "Big Legal History and the Hundred-Year Test"
    Friday, February 24
      Villanova Law: Wendy Scott, Tulane University School of Law
      University of Texas Law: John Langbein, Yale University, Trust Law as Regulatory Law: The Unum/Provident Scandal and Judicial Review of Benefit Denials under ERISA
      University of Georgia International Law Colloquium: Karen Knop (University of Toronto), "Enemies and Outlaws: War and the Public/Private Citizen"
      University of Georgia Law: Anthony Alfieri (Miami), The Fall of Legal Ethics and the Rise of Risk Management
      UCLA Media, Entertainment, and Culture Workshop:
        9:30 a.m. - 10:45 a.m.
          Faculty Library (Room 2326) Timothy Wu Professor of Law Columbia Law School "The Copyright Paradox-Understanding Grokster"
        11:00 a.m. - 12:15 a.m.
          Faculty Library (Room 2326) Yochai Benkler Professor of Law Yale Law School Political Freedom: Emergence of the Networked Public Sphere (Hard copies will only be distributed in the law school mailroom)
        12:30 p.m. - 2:00 p.m.
          Law Building Room 2448 *Co-sponsored by the Friday Colloquium Howard A. Shelanski Associate Dean and Professor of Law Director, Berkeley Center for Law & Technology Boalt Hall School of Law "Antitrust Law as Mass Media Regulation: Can Merger Standards Protect the Public Interest?"
        2:30 p.m. - 3:45 p.m.
          Faculty Library (Room 2326) Philip J. Weiser Associate Professor of Law Executive Director of Silicon Flatirons Telecommunications Program University of Colorado School of Law "Toward Property Rights in Spectrum: The Important and Difficult Policy Choices Ahead"
      Oxford Centre for Competition Law & Policy: Philippe Chappatte, International Cartels and leniency Procedures
      Ohio State Legal History: David Gold, A History of the Ohio General Assembly
      Notre Dame Law: Professor Lisa Heinzerling, Georgetown University Law Center
      American University Program on Intellectual Property and the Public Interest, Orphan Works (link for webcast)
      Georgetown Law & Economics: Greg Sidak, Georgetown University Law Center, Should Internet Protocol-Enabled Video Service Provided over a Telephone Network Be Regulated as Cable Service?"
      Columbia Journal of Gender and Law Symposium: Sexuality and the Law:
        9:00am-10:00am: Children and Education
          The Failure of Abstinence-Only Education: Minors Have a Right to Honest Talk About Sex by Hazel Glenn Beh, University of Hawai’i at Manoa School of Law, & Milton Diamond, University of Hawai’i at Manoa, The Pacific Center for Sex and Society
          Feminist ABC’s of Sex Education by Linda McClain, Hofstra University School of Law
          Moderator: Professor Ariela Dubler
        10:15am-11:15am: The Interplay Between Disability and Sexuality
          Legal Cross-Dressing: Sexuality and the Americans with Disabilities Act by Fedwa Malti-Douglas, Indiana University, Bloomington
          Transgendered Plaintiffs and Title VII by Jennifer Levi, Western New England College, School of Law
          Moderator: Professor Suzanne Goldberg
        11:30am-12:30pm: Prison and Punishment
          Sexual Punishments by Alice Ristroph, University of Utah, S.J. Quinney College of Law
          Rethinking Prison Sex: Self-Expression and Safety by Brenda Smith, American University, Washington College of Law
          Moderator: Professor Philip Genty
        12:45pm: Lunch with Keynote speech by William Eskridge, Jr.
        2:15pm-3:15pm: Sexuality and Marriage
          Name Change: The Future of Default Rules for Marital Names by Elizabeth F. Emens, Columbia Law School
          A Historical Guide to the Future of Marriage for Same-Sex Couples by Suzanne Goldberg, Rutgers School of Law - Newark
          Moderator: Professor Carol Sanger
        3:30pm-4:30pm: Sexual Expression
          Pathology Full Circle: A History of Anti-Vibrator Legislation in the United States by Danielle Lindemann, Columbia University, Department of Sociology
          The New Politics of Adultery by Brenda Cossman, University of Toronto, Faculty of Law
          The Expressiveness and (Potential) Gender-Neutrality of Sexuality following Lawrence v. Texas by James Garland, Hofstra University School of Law
          Moderator: Professor Elizabeth Emens


 
Legal Theory Lexicon: Personhood
    Introduction Are the unborn human persons? What is the difference between legal and moral personhood? What does it mean to say that a corporation is a legal person? Do the most intelligent animals deserve the rights of moral or legal persons? These questions are likely to arise sooner or later for most law students. This entry in the Legal Theory Lexicon explores the idea of personhood, moral, legal, and human. As always, this post is intended as an introduction for law students (especially first-year law students) with an interest in legal theory.
    Persons and Humans The terms "human" and "person" have related meanings, but as used by most legal theorists, these terms are distinct. Here's one definition of "human":
      a bipedal primate mammal (Homo sapiens)
    And person is sometimes defined as a "human" or "individual". But "person" has another meaning, one that distinguishes the concept of person from the concept of human. Suppose, for example, an intelligent alien species were to arrive on Earth (or humans were to encounter them elsewhere). If the members of the aliens displayed evidence of human-like intelligence and could communicate with us (e.g. were able to master a human natural language, such as English), then we might be tempted to treat members of this species as morally and/or legally entitled to the same rights as humans.
    Consider, for example, the aliens Chewbacca or Yoda in the Star Wars movies. Neither Chewbacca nor Yoda is a member of the species homo sapiens, yet both are treated as the moral and legal equivalents of humans in the Star Wars universe.
    Let us stipulate then, that term "human" is a biological term, which refers to all the members of the species homo sapiens and that the term "person" is a normative term, which refers to a moral and/or legal status that creatures or other bearers of human-like capacities can share with normal adult humans.
    The categories of human and person are involved in some of the most contentious debates in moral, political, and legal theory. Prime among these is the abortion debate. One move that can be made in the abortion debate is simply to deny the distinction between human and person. So it might be the case that the relevant moral and legal category is "human person" and that all members of the species homo sapiens members of this category. Or it might be argued that "human" and "person" are morally and legally distinction categories. If so, it is possible that "fetuses" are unborn humans, but that they are not yet "persons."
    Legal, Moral, and Natural Persons So far, I have been treating the category of personhood or persons as a single category, but this need not be the case. We can distinguish between three kinds of persons--natural, moral, and legal. It is possible that the not all legal persons are natural persons and vice versa; the category of moral persons is clearly distinct from that of legal persons, but might be considered identical with the category of natural persons.
    Examples will help. Corporations and governmental units are legal persons--they have legal rights and responsibilities and can sue and be sued, but we do not say that corporations are natural or moral persons. A corporation is not a natural person, because it is nonnatural in the relevant sense. Corporations are artificial or nonnatural because they are the creations of the law. Likewise, all humans are usually considered "natural persons," but not all humans have the full bundle of rights and responsibilities associated with legal persons. For example, infants and incompetents may be unable to sue in their own name and may not bear full legal responsibility for their acts.
    Legal Personhood The classical discussion of the idea of legal personhood is found in John Chipman Gray's The Nature and Sources of the Law. He began his famous discussion, "In books of the Law, as in other books, and in common speech, 'person' is often used as meaning a human being, but the technical legal meaning of a 'person' is a subject of legal rights and duties." The question whether an entity should be considered a legal person is reducible to other questions about whether or not the entity can and should be made the subject of a set of legal rights and duties. The particular bundle of rights and duties that accompanies legal personhood varies with the nature of the entity. Both corporations and natural persons are legal persons, but they have different sets of legal rights and duties. Nonetheless, legal personhood is usually accompanied by the right to own property and the capacity to sue and be sued.
    Gray reminds us that inanimate things have possessed legal rights at various times. Temples in Rome and church buildings in the middle ages were regarded as the subject of legal rights. Ancient Greek law and common law have even made objects the subject of legal duties. In admiralty, a ship itself becomes the subject of a proceeding in rem and can be found "guilty." Christopher Stone recently recounted a twentieth-century Indian case in which counsel was appointed by an appellate court to represent a family idol in a dispute over who should have custody of it. The most familiar examples of legal persons that are not natural persons are business corporations and government entities.
    Gray's discussion was critical of the notion that an inanimate thing might be considered a legal person. After all, what is the point of making a thing-- which can neither understand the law nor act on it--the subject of a legal duty? Moreover, he argued that even corporations are reducible to relations between the persons who own stock in them, manage them, and so forth. Thus, Gray insisted that calling a legal person a "person" involved a fiction unless the entity possessed "intelligence" and "will."
    Can we say that corporations possess "intelligence" and "will"? The answer to that question is controversial among legal theorists. The orthodox position is that the corporation itself is a legal fiction; the humans who make up the corporation may have intelligence and will, but the corporation itself does not. But some might argue that the properties of the corporation are not reducible to the properties of the individuals who make up the corporation. Corporations may have "a mind of their own," at least according to some theorists.
    Moral Personhood "Legal personhood" is controversial, but "moral personhood" is one of the most contested ideas in contemporary legal, moral, and political theory. This large debate is not easy to summarize, but one of the crucial issues concerns the criteria for moral personhood. What attributes would make some life form (or even a robot) a moral person? Here are some of the possibilities:
    • Intelligence--One possibility is that the possession of "intelligence" (at some threshold level) is the criterion for moral personhood. Of course, "intelligence" itself is hardly a transparent concept.
    • Autonomy--Another idea is that persons must be capable of autonomy. But what is autonomy? One notion is that autonomous beings must be capable of second-order beliefs and motivations. That is, autonomy requires that one be able to have beliefs about one's beliefs and desires about one's desires.
    • Communication--Yet another possibility is that personhood requires the ability to communicate with others or to use language. On this criterion, it is possible that some higher primates might qualify for personhood--although the empirical evidence on primate use of human language is disputed.
    • Self-Awareness--Finally, some have argued that the criterion for moral personhood should be self-awareness or reflexive consciousness. To be a person, I must be aware of the my own consciousness.
    This is not an exhaustive list of the criteria for moral personhood. Moreover, these criteria might be combined in various ways. For example, it might be argued that only an intelligent, autonomous, language-using, self-conscious being would be a full moral person.
    Conclusion "Personhood" is a fundamental notion for legal theorists. "Legal personhood" plays an important role in legal doctrine, and "moral personhood" plays a fundamental role in moral and political theory. The purpose of this post has been to give you a very rough sense of some of the issues that surround these concepts. More reading can be found in the bibliography.
    Bibliography
    • John Chipman Gray, The Nature and Sources of the Law (Roland Gray ed., MacMillan 1921)
    • Lawrence B. Solum, Legal Personhood for Artificial Intelligences, 70 North Carolina Law Review 1233 (1992).
    • Christopher Stone, Should Trees Have Standing?--Toward Legal Rights for Natural Objects, 45 S. CAL. L. REV. 450 (1972)
    • Richard Tur, The 'Person' in Law in Persons and Personality: A Contemporary Inquiry (Arthur Peacocke & Grant Gillett eds., 1987)
For a complete collection of Legal Theory Lexicon posts, surf here.


Saturday, February 18, 2006
 
Legal Theory Bookworm The Legal Theory Bookworm recommends An Introduction to Political Philosophy by Jonathan Wolff. Here's a blurb:
    What would life be like without the state? What justifies the state? Who should rule? How much liberty should the citizen enjoy? How should property be justly distributed? This book examines the central problems involved in political philosophy and the past attempts to respond to these problems. Jonathan Wolff looks at the works of Plato, Hobbes, Locke, Rousseau, Mill, Marx, and Rawls (among others), examining how the debates between philosophers have developed, and searching for possible answers to these provocative questions. His final chapter looks at more recent issues, particularly feminist political theory.
This is a very fine introduction. While I'm at it, I also recommend Wolff's Why Read Marx Today?


 
Download of the Week The Download of the Week is Privatization: The Road To Democracy? by Carol M. Rose. Here is the abstract:
    Privatization has been something of a watchword in the years since the fall of the Soviet Union. The rationales for privatization are usually economic, stressing the comparative advantage of market regimes over bureaucratic ones: that private property gives owners the incentives to make better investment decisions, and that a market economy is more flexible and nimble in satisfying people's wants. This article, however, leaves the economic arguments to one side and instead takes up the political arguments for privatization, many of which have a long history. The paper maps modern deregulatory efforts onto a series of six longstanding arguments to the effect that property and commerce are the most important rights of all in supporting democratic governance; the idea is to see whether the modern efforts tend to confirm or disconfirm the arguments for private property's centrality in a democracy. The paper concludes that the picture is somewhat mixed: some privatization measures support the political arguments for property, while others do not. The lesson is that political reform cannot rest on property and privatization alone, but needs to take place on a variety of fronts, of which, of course, privatization may be an important component.
And may I also suggest a piece that I co-authored with Larry Alexander: Popular? Constitutionalism?


Friday, February 17, 2006
 
Greetings from Charlottesville I'm attending the conference on Political Philosophy and Private Law at the University of Virignia, today & tomorrow. Because of travel woes, I was unable to blog this morning, but postings should resume their regular flow tomorrow. The conference has been absolutely terrific so far, with a wonderful and deeply interesting paper by Jody Kraus, not to mention Arthur Ripstein, whose writings about the connection between private law, Kant, and Rawls are surely among the very finest. I hope to post some comments about the conference this evening!
For a detailed conference schedule, scroll up for Friday. Saturday's schedule will appear tomorrow morning with the Saturday Calendar.


 
Friday Calendar
    University of Texas Law: Annelise Riles, Cornell University, "Rethinking Realism: Lessons from Anthropological Research Among Financial Lawyers"
    Update: University of Georgia, International Law Colloquium: Mark Drumbl (Washington & Lee): "Atrocity and Punishment"
    Georgetown Law & Economics: Alan Schwartz, Yale Law School
    Boston College Law: Marjorie Kornhauser, W.R. Irby Professor of Law, Tulane University School and Scholar-in-Residence, Boston College Law School.
    Royal Institute of Philosophy, London: Ian Hacking, The Decline and Fall of Natural Kinds
    University of Georgia Law: Julie Seamon (Emory): The Expert Witness as Stealth Fact-Finder: Hidden Hearsay, Confrontation, and Jury Determination of Facts
    University of Virginia, Conference on Political Philosophy and Private Law:
      FRIDAY, FEBRUARY 17
        Caddell Conference Room, Third Floor of Slaughter Hall 10:00-10:50 am Introductory Lecture
          Jody Kraus (Virginia, Law and Philosophy)
        11:00 am-12:15 pm Panel 1: Private Order and Public Justice: Kant and Rawls
          Arthur Ripstein (Toronto, Law and Philosophy) Comment: John G. Bennett (Rochester, Philosophy)
        2:00-3:15 pm Panel 2: Public Legal Reason
          Larry Solum (Illinois, Law) Comment: George Rutherglen (Virginia, Law) 3:45-5:00 pm Panel 3: On Belling the Cat: Rawls and Corrective Justice
            Kevin Kordana (Virginia, Law) and David Tabachnick (Virginia, Philosophy) Comment: Steven Walt (Virginia, Law)


Thursday, February 16, 2006
 
Thursday Calendar
    University of Illinois College of Law, Criminal Law Colloquium: Samuel R. Gross, Michigan Law School, Exonerations in the United States 1989 Through 2003.
    Oxford Jurisprudence Discussion Group: Amit Pundik, Statistical Evidence: An Investigation of Its Nature and Its Usage in the Criminal Context
    Stanford Law & Economics: John J. Donohue III (Yale Law School), "Uses and Abuses of Empirical Evidence in the Death Penalty Debate"
    University of Michigan Law & Economics: Miriam Bitton, Irell & Manella LLP, A New Outlook on the Economic Dimension of the Database Protection Debate
    Mississippi College School of Law, Federalist Society: Debate on "Obesity in America: The State's Right to Pass Laws Requiring the Restaurant Industry to Provide Nutritional Information to Consumers" between Todd Zywicki & Michael McCann: University of North Dakota Indian Law: Patrice H. Kunesh, "The Cultural Context of Banishment in a Modern Tribal Justice System"
    NYU Law, Colloquium on Tax Law & Public Finance: Lee Anne Fennell, Illinois, “Taxation Over Time.”
    Fordham Law: Dorothy E. Roberts, Northwestern University School of Law, The Impact of High Rates of Child Welfare Agency Involvement in African American Neighborhoods
    Georgetown Intellectual Property: Olufunmilayo Arewa, Copyright, Borrowing, and Unfair Use
    Yale Legal Theory Workshop: Stephen Greenblatt, Harvard (English).
    Boston University Law: Bob and Ann Seidman.
    Florida State University Law: Elizabeth Trujillo, Detroit-Mercy.
    UC Berkeley, Kadish Center: Tommie Shelby, John L. Loeb Associate Professor of Social Sciences and of African and African American Studies, Harvard University, JUSTICE, DEVIANCE, AND THE DARK GHETTO
    William Mitchell Law, National Security Forum: Judge Gerald Rosen, U.S. District Court.
    Marquette Law: Mark Umbreit, Minnesota, RJ Movement: Int’l Developments
    Ohio State Law: Adrienne Dale Davis, University of North Carolina, The Sexual Economy of American Slavery


 
Ibrahim on Animal Welfare Darian Ibrahim (University of Arizona) has posted The Anticruelty Statute: A Study in Animal Welfare (Journal of Animal Law & Ethics, Vol. 1, 2006) on SSRN. Here is the abstract:
    Animal welfare advocates claim that animal exploitation and humane treatment can coexist with respect to the use of animals for food, experimentation, hunting, and other human benefits. These advocates recognize that existing anticruelty statutes, which embody the idea that animals should not subjected to unnecessary suffering, have many deficiencies - most notably, as Professor Gary Francione has pointed out, they include wholesale exemptions for institutional uses of animals. However, these advocates nevertheless claim that anticruelty statutes can be reformed, either legislatively or judicially, to narrow these exemptions and ascribe more weight to an exploited animal's interest in not suffering. This article reveals that, although legislatures could certainly require better treatment of exploited animals, a law that does not challenge the underlying exploitation itself can at best prevent suffering that is in excess of what is required to carry out the exploitation. As the very nature of animal exploitation requires the infliction of tremendous suffering, the amount of excess suffering that a reformed anticruelty statute could prevent is minimal. This article also reveals that courts do not have the discretion to interpret anticruelty statutes more broadly for a variety of reasons, including the constitutional requirement of fair warning. This article concludes that anticruelty statutes, while noble in theory, are ineffective in practice precisely because they do not challenge the underlying exploitation of animals, but instead focus on humane treatment. This article provides greater support for the argument that animal advocates should adopt Professor Francione’s rights-based strategy that eschews unworkable ideas of humane treatment and instead focuses on abolition.


 
McCann & Rosen on Age Restrictions in Sports Michael McCann & Joseph Rosen have posted Legality of Age Restrictions in the NBA and the NFL on SSRN. Here is the abstract:
    This essay examines age eligibility rules in the National Football League (“NFL”) and the National Basketball Association (“NBA”), offers analysis of related antitrust and labor law issues, and shares perspective on underlying policies. As a matter of background, the NFL and the NBA are the only major sports organizations that prohibit players from entrance until a prescribed period after high school graduation. Major League Baseball, the National Hockey League, NASCAR, professional tennis, professional golf, and professional boxing have no such rules. Individuals can also partake in professional acting, theater, music, and other entertainment professions without satisfying a period after high school graduation. The same is true of those who enlist in the U.S. armed forces and in various occupations that require maturity and discipline. Such an employment landscape raises inquiry as to why NFL and NBA teams, unlike so many other employers, would agree to boycott any candidate, regardless of talent or skill, until a prescribed period after high school graduation. This inquiry enjoys heightened interest when considering that NFL and NBA teams are incomparable employers, as players may not play in other leagues for similar compensation.


Wednesday, February 15, 2006
 
Thursday Calendar
    Brooklyn Law School: Law: Marianne Constable, Professor of Rhetoric, University of California at Berkeley, Husband-Killing in Chicago in the Late 19th/Early 20th Century
    UCLA Legal History: Claire Priest, Northwestern University School of Law, "Creating An American Property Law: Alienability and Its Limits in American History"
    NYU Legal History: Reva Siegel, Nicholas deB Katzenbach Professor of Law, Yale Law School, “Constitutional Culture, Social Movement Conflict, and Constitutional Change: The Case of the De Facto ERA”
    University of Texas Law: Stanley Chodorow, Department of History, University of California--San Diego, The Distribution of Law Books in European Libraries in the 12th Century
    Cardozo Law: David Nimmer, Improving and Creating Procedures for Fair Use. Additional presentation by Marjorie Heins. Commentaries from Hugh Hansen, Margaret Jane Radin
    Villanova Law: Brad Wendel, Cornell Law School
    William Mitchell Law, Public Square Lecture Series: Hauwa Ibrahim - Quest for Justice in Nigeria.


 
Alces on the Impossibility of Contract Peter A. Alces (College of William and Mary - Marshall-Wythe School of Law) has posted The Moral Impossibility of Contract on SSRN. Here is the abstract:
    In efforts to formulate the deontological or consequentialist conceptions of Contract, or to demonstrate that Contract is neither wholly explicable in terms of one or the other type of theory, claims are necessarily made about the nature of Contract as a body of doctrine, claims about what doctrine is. Now I do not mean simply that theorists disagree about what a particular doctrine entails, such as what a court should do in order to apply, for example, the consideration, frustration or unconscionability doctrines correctly. I acknowledge that reasonable minds disagree about the substance and constituents of those common law Contract doctrines. That is not my point. Instead, I am curious about what it means for a set of rules (say, the set of rules that fixes the parameters of “agreement”) to be doctrine, the phenomenon that theory would try to explain. The function of theory is heuristic. The object of theory is either normative or positive. The best theorists are able to blur the distinction, often for rhetorical purposes. Legal theory (at least in some of its iterations) depends upon a posited conception of doctrine (and doctrine, too, is heuristic). That is, theory either explains or corrects doctrine. To accomplish that, legal theory is dependent upon a theory of legal doctrine. Contract theory, whether deontological, consequentialist, or pluralist, begins and must end with the doctrine, must have something to say about doctrine that serves a heuristic purpose (as well as, perhaps, other purposes). My interest is not so much with what Contract theorizing tells us, heuristically, about Contract doctrine; my concern is more with what Contract theory, in all of its extant phases, assumes about the nature of Contract doctrine. In this paper, I engage each of the foregoing observations about the theory-doctrine dynamic and try to say something important concerning Contract theory by drawing conclusions about the relationships among them.