Monday, May 1
University of Cincinnati Law: Carolyn Shapiro, Chicago-Kent College of Law, Applying Rules of Law: An Empirical Study of the Supreme Court’s Announcement and Application of Rules and Standards
University of Texas Law: James Spriggs (UC Davis) "Courting the Public: Judicial Behavior and Public Views of Court Decisions"
Tuesday, May 2
Oxford Human Rights Discussion Group: Caoilfhionn Gallagher, Proportionality in Practice

Wednesday, May 3
Oxford Discussion Group on Organised Crime and Corruption Seminar Series: Katerina Gachevska, European Enlargement and Organised Crime: The Case of Bulgaria
Oxford Criminology Seminar Series 2005/06: David Green, The Politics of Tradegy: Comparing Responses to Child-on-Child Homicide
Organised by: Oxford Law Faculty: Kai Moller, Seminar Series on Robert Alexy's " A Theory of Constitutional Rights": Introduction

Thursday, May 4
Oxford Juirsprudence Discussion Group: Anthony Duff, Criminal Responsibility: Municipal and International
Oxford Comparative Law Discussion Group: Ruth Sefton-Green, French and English Legal Scholarship: Swings and Roundabouts
Oxford Public International Law Discussion Group: Dr Susan Marks, State-Centrism, International Law and the Anxieties of Influence
Fordham Law: Yochai Benkler, Professor of Law, Yale Law School
University College London Jurisprudence Meeting: Thomas Ricard, "The Illusion of Neutrality" David Prendergast, "How Law Legitimates Itself"

Friday, May 5
Oxford Centre for Competition Law & Policy: Terry Calvani, Freshfields Bruckhaus Deringer, US Antitrust law and Private Enforcement
Oxford Law Faculty: Mr Justice Anselmo Reyes, "Sea Changes: Reflections on the Encounter between Common Law Judges and Personal Laws"

Introduction As law students become more sophisticated, they begin to notice that certain debates seem to repeat themselves over and over again. Disagreements about disparate subjects--in procedure, criminal law, torts, property, and constitutional law--frequently seem to turn on the really big questions of ethics and political theory. On the one hand, the proponents of inviolate individual rights appeal to deontological premises in moral theory or liberal (or libertarian) ideas in political philosophy. On the other hand, the proponents of balancing argue from premises rooted in utilitarianism or welfarism (the economic version of utilitarian moral philosophy).
For a short time, the ability to see this pattern may be exhilarating. You begin to see big patterns that transcend courses and doctrines. But after a while, exhilaration may give way to depression. If all the great debates in legal theory boil down to debates about the deepest questions of moral and political philosophy, then the question arises, "Can we make any progress?" Because it sure doesn't look like the debates between deontology and consequentialism or between libertarians and communitarians are going to be decisively resolved any time soon.
And that is where today's Legal Theory Lexicon comes into the picture. Even if the deep debates of moral and political philosophy are irresolvable, there may be other ways to make progress in legal theory. In particular, we may be able to use the ideas of "incompletely theorized agreements" (associated with Cass Sunstein) or "overlapping consensus" (associated with John Rawls) to break the impasse on the deep questions.
The basic idea is simple. We cannot agree on the deep questions, so go shallow. Find the level at which those who disagree on the deep can nonetheless find common ground. John Rawls calls the idea of common ground by the name "overlapping consensus." Cass Sunstein calls a similar idea, "incompletely theorized agreement." But both Sunstein and Rawls express a similar intuition. When you cannot reach agreement at the deep end of the pool of ideas, head for the shallow end!
Deep and Shallow I suspect that you've already gotten it! But just to make sure, let's work through the ideas one by one. The first idea we need is the one that I have expressed by the metaphor of deep and shallow reasons. The metaphor is based on the idea that particular applications (e.g. particular questions of legal doctrine) are at the surface, they are in the shallow end of the pool of ideas. Beneath the surface of particular issues in legal doctrine and legislative policy are deeper disagreements. Disagreements about the a surface level question (e.g. the precise contours of the mailbox rule in contract law) lead to beneath-the-surface issues (e.g. the nature of offer and acceptance) and then to still-deeper issues (e.g. the basis for contractual obligation) and finally to the deepest questions (e.g. the nature of moral obligation). You might picture a chain of reasons, stretching from the surface of legal doctrine down to the depths of political and moral philosophy.
Overlapping Consensus John Rawls developed the idea of an "overlapping consensus" as part of the work that led up to his book Political Liberalism. The idea emerged as part of Rawls's work on what he called the problem of stability. In a society governed by Rawls's theory (justice as fairness), the guarantee of basic liberties would mean that individual citizens would be free to adopt their own views about morality and religion. As a result, Rawls argued, it was likely that a variety of comprehensive religious and moral doctrines would emerge. Rawls believed that this fact of pluralism posed a problem for his theory. How could justice as fairness be stable (or reproduce itself) given the plurality of viewpoints that is bound to emerge and persist under conditions of freedom? Rawls's answer to this question was based on the idea that divergent moral and religious conceptions of the good could (despite their diversity) converge on some common ground. That is, citizens who held a plurality of religious and moral beliefs could nonetheless agree on the constitutional essentials--the basic constitutional principles necessary for a society to satisfy the demands of justice as fairness.
This meant that different citizens would support justice as fairness for different reasons. Catholics might affirm justice as fairness for reasons found within the Catholic natural law tradition, while secular humanists might affirm the same (or similar) ideas about justice for different reasons. Although a deep consensus might on justice as fairness might be impossible, an "overlapping consensus," Rawls argued, is possible.
Incompletely Theorized Agreements Cass Sunstein has a related but different idea. Here is a summary from his article in the Harvard Law Review:
Incompletely theorized agreements play a pervasive role in law and society. It is rare for a person, and especially for a group, to theorize any subject completely -- that is, to accept both a highly abstract theory and a series of steps that relate the theory to a concrete conclusion. In fact, people often reach incompletely theorized agreements on a general principle. Such agreements are incompletely theorized in the sense that people who accept the principle need not agree on what it entails in particular cases. People know that murder is wrong, but they disagree about abortion. They favor racial equality, but they are divided on affirmative action. Hence there is a familiar phenomenon of a comfortable and even emphatic agreement on a general principle, accompanied by sharp disagreement about particular cases.
This sort of agreement is incompletely theorized in the sense that it is incompletely specified -- a familiar phenomenon with constitutional provisions and regulatory standards in administrative law. Incompletely specified agreements have distinctive social uses. They may permit acceptance of a general aspiration when people are unclear about what the aspiration means, and in this sense, they can maintain a measure of both stability and flexibility over time. At the same time, they can conceal the fact of large- scale social disagreement about particular cases.
There is a second and quite different kind of incompletely theorized agreement. People may agree on a mid-level principle but disagree both about the more general theory that accounts for it and about outcomes in particular cases. They may believe that government cannot discriminate on the basis of race, without settling on a large-scale theory of equality, and without agreeing whether government may enact affirmative action programs or segregate prisons when racial tensions are severe. The connections are left unclear, either in people's minds or in authoritative public documents, between the mid- level principle and general theory; the connection is equally unclear between the mid-level principle and concrete cases. So too, people may think that government may not regulate speech unless it can show a clear and present danger, but fail to settle whether this principle is founded in utilitarian or Kantian considerations, and disagree about whether the principle allows government to regulate a particular speech by members of the Ku Klux Klan.
My special interest here is in a third kind of phenomenon -- incompletely theorized agreements on particular outcomes, accompanied by agreements on the low-level principles that account for them. These terms contain some ambiguities. There is no algorithm by which to distinguish between a high-level theory and one that operates at an intermediate or low level. We might consider Kantianism and utilitarianism as conspicuous examples of high-level theories and see legal illustrations in the many (academic) efforts to understand such areas as tort law, contract law, free speech, and the law of equality to be undergirded by highly abstract theories of the right or the good. By contrast, we might think of low-level principles as including most of the ordinary material of legal doctrine -- the general class of principles and justifications that are not said to derive from any particular large theories of the right or the good, that have ambiguous relations to large theories, and that are compatible with more than one such theory. [Cass Sunstein, Incompletely Theorized Agreements, 108 Harv. L. Rev. 1733, 1739-40 (1995)]
Applications How can you use the idea of an overlapping consensus or incompletely theorized agreement? These conceptual tools are useful when you believe that you have reached a theoretical impasse at some deep level. You've identified an issue, and you can see how the issue can be traced to a deep disagreement in moral or political theory. Now, you have some choices to make. On the one hand, you can try to resolve the deep disagreement. But there is a problem with this option. The deep debates in moral and political philosophy are both ancient and persistent. The world's great thinkers have worked on these problems. If Aristotle, Kant, and Bentham were unable to come up with a knock down argument in favor of their respective moral theories, then it does seem unlikely that you will be able to resolve these debates in an article or book that is mostly focused on another topic or idea. Moreover, the current state of the art in moral and political theory involves a complex field of interconnected arguments. If you need to master these debates before you can complete your work in legal theory, then the work may never be completed.
The alternative is to see whether you can find a different level at which the dispute can be resolved. One possibility is that you can find convergence at the surface level. It seems as if deontologists and utilitarians disagree, but perhaps you can craft consequentialist arguments that converge with the arguments of fairness. Another possibility is that you will be able to find converged on what Sunstein calls "mid-level principles." For example, both consequentialists and deontologists might be able to agree that contract formation (normally) requires that both parties manifest and intention to be bound--although they would have different reasons for affirming this proposition.
Conclusion The move to "overlapping consensus" or "incompletely theorized agreements" is one of the niftiest and most useful in contemporary legal theory. Add it your personal legal theory toolbox!

There was a time in the not-too-distant past when large companies and powerful governments reigned supreme over the little guy. But new technologies are empowering individuals like never before, and the Davids of the world-the amateur journalists, musicians, and small businessmen and women-are suddenly making a huge economic and social impact. In Army of Davids, author Glenn Reynolds, the man behind the immensely popular Instapundit.com, provides an in-depth, big-picture point-of-view for a world where the small guys matter more and more. Reynolds explores the birth and growth of the individual's surprisingly strong influence in: arts and entertainment, anti-terrorism, nanotech and space research, and much more. The balance of power between the individual and the organization is finally evening out. And it's high time the Goliaths of the world pay attention, because, as this book proves, an army of Davids is on the rise.

In a recent article, Cass Sunstein and Adrian Vermeule argue that capital punishment is morally required if it will deter significantly more killings than it inflicts. They claim that the state’s duty is to minimize murders, and that recent deterrence research shows that state executions, even if deemed murders themselves, can do so. If these finding are true, they argue, the state is morally obligated to undertake such “life-life tradeoffs.” The logic of Sunstein and Vermeule’s argument justifies not only state executions, but any state-perpetrated injustice that promises to reduce the incidence of similar injustices overall. Recently such lesser evil arguments have been invoked to justify state torture, detention without trial, and warrantless wiretapping. In this article, I identify problems that are common to all of these arguments. My aim is to demonstrate that, however valid the lesser evil approach may be in some domains, it fails when invoked to defend state violations of the right to life and other fundamental human rights.

1. Recreational expression--blogging about film, cooking, etc.
2. The Blogicle--the short scholarly article as blog post
3. Self-promotion--blogging about one's own "long form" legal scholarship
4. Scholarly public engagement--the blog post as "op/ed"

PEAPs' significance as a distinct category of amateur journalism is that they connect both with journalism and scholarship. While PEAPs involve the same sort of activity as professional journalism, scholar-journalists gain an advantage over professionals by leveraging their expertise. This has three implications. First, the posts are more informed than other blogs that engage in self-expression. Scholars can draw from their expertise to make immediate and timely posts without the significant new research that generalist journalists would have to do. Second, the post is likely to be more disciplined and objective than other self-expressive blogs because it derives from a body of prior ideas developed without specific public policy objectives. Third, the blogger stakes her scholarly reputation on the post, and therefore has more incentive than other amateurs to carefully support her position.15 These differences between PEAPs and other amateur journalism relate to the impact PEAPs may have on the nature and quality of professional journalism.

An activist blog--Icannwatch.org
A personal blog--Discourse.net, and
Teaching blogs--several of these

Blogging the Bloggership Conference by Gordon Smith
Live-blogging the Bloggership conference! by Ann Althouse
A Discussion About Law Professor Blogging by Eric Muller
Harvard Bloggership Conference by Jim Lindgren

I'm blogging from the bloggership conference, hosted by the Berkman Center, at Harvard Law School. Paul Caron is introducing me now--at about 8:30 a.m. EDST. I thought this might be a nice occasion to share the following with the reader's of Legal Theory Blog
In September of 2002, I started a blog. On a whim. I barely knew what a blog was, and I certainly didn’t know what to do with one. Like a lot of bloggers, at first I didn’t even know that the word “blog” was short for weblog. And I had no clue as to what a web log was—beyond the obvious, that is was some kind of “log” on the world wide “web.” To be candid, I had started to notice the word “blog” popping up in “cool” venues, and I hated the idea that I was already “behind the curve.” So, I looked at a few blogs. I don’t remember which ones, but I began to understand that a blog consisted of “posts” or entries that formed a kind of online diary or journal. I got the sense that blogs could be about almost anything—serious, frivolous, political, cultural, personal. Whatever. I posted some posts, got busy with other things, and let the blog lie dormant until January of 2003, when I started to post again on a regular basis.
I called the blog “Legal Theory Blog.” I knew that other law professors had blogs—I think that I knew about the Volokh Conspiracy, a group blog organized by Eugene Volokh of the University of California at Los Angeles Law School and I might have been aware of “Instapundit,” a solo effort by Glenn Reynolds of the University of Tennessee Law School. I had a certain idea about what the blog might accomplish, based on something else that I was just beginning to use extensively as a research tool—the Social Science Citation Network, a website and service that provides access on the Internet to scholarly papers in a variety of disciplines including law. I wanted to do a blog with a focus on “legal theory” broadly conceived as encompassing a variety of interdisciplinary approaches to normative and positive legal scholarship. What a geek.
I thought to myself: “I’m reading these papers on SSRN in draft. I could blog about some of the papers that I read.” It seemed to me that there might be half a dozen potential readers, who would be interested in my postings about legal theory papers. Secretly, I hope that if the blog were a giant success it might attract a few dozen readers on a semi-regular basis. And I said to myself, “What the hell, if no one reads it, I’ll just stop doing it.” As I recall, my expectations were rather low: I believed that it was “too late” for entry into the blogging market—which was already dominated by a few “big blogs.”
Were it not for some positive feedback, I’m almost sure my career as a blogger would have ended a few weeks into my second foray. At first the feedback came in tiny dribs and drabs. I can actually name the two people who are most responsible for the continued existence of “Legal Theory Blog.” Chris Bertram and Nathan Oman had blogs of their own at the time. Chris Bertram is a philosopher at the University of Bristol in the United Kingdom—he had a blog called “Junius” and he later became a founding member of a widely read mostly academic group blog called “Crooked Timber.” I don’t remember exactly what Bertram said or why, but whatever it was, it made me think that what I was doing might be appreciated by thoughtful readers. Nate Oman recently became a law professor at the College of William and Mary in Virginia. At the time, Oman was a first year law student at Harvard with a blog called “A Good Oman,” and like Bertram, Oman provided thoughtful and appreciative feedback. Bertram and Oman opened my eyes to the blogosphere as a distinctive form of social and intellectual interaction—a space for communicating about serious ideas. Thanks guys.
And then something else happened. I read an op/ed in the New York Times about a judicial nominee. The editorial focused on a case involving the application of the doctrine of res judicata (claim preclusion) to a case involving the tort of spoliation (destruction) of evidence. Well, I’ve written a treatise with a chapter on claim preclusion and another treatise with a chapter on the spoliation tort. So I read the case. And it struck me that the editorial was a hatchet job or incompetent or both. So I blogged about the editorial. And then the blogosphere took over—producing dozens and dozens of “links” to my post and thousands and thousands of “visits” to Legal Theory Blog.
This really wasn’t the kind of attention I was looking for. I get no kicks from TV—especially being on it. But there was a lesson in my fifteen minutes of fame—an illustration of the awesome power of the Internet for rapid dissemination of information. Within a few weeks, Legal Theory Blog had hundreds of regular readers. When the readership began to climb into the thousands, I realized that an obsession with readership was adding to the not inconsiderable burden of getting out the blog on a daily basis. I stopped counting.
I learned another lesson about the power of the blogosphere from a series of exchanges with Jack Balkin, who then ran Balkinization as a solo blog. In response to a column by Eddie Lazarus I posted a detailed reply, prompting Jack Balkin to publish a post entitled “Good Judging and ‘Following the Rules Laid Down.’” I countered with “A Neoformalist Manifesto,” followed by Balkin’s “Good Judging and "Following the Rules Laid Down," Part II.” The exchange ended with my “Fear and Loathing in New Haven.” The exchange conducted over the course of four days, runs almost fourteen-thousand words. Balkin’s contributions to the exchange were eloquent and powerful. They gave me the sense that the possibilities of blogging transcended the one-paragraph post; Balkin’s blogging blurred the lines between conventional legal scholarship and bloggership.
Eventually, Legal Theory Blog evolved a fairly standard format. Lot’s of the content consists of links to new papers on SSRN and elsewhere. Every week, there is a “Download of the Week” which frequently ends with the tag line: download it while its hot! Another weekly feature is a book recommendation—called the “Legal Theory Bookworm.” Many law schools, post open-access versions of workshop papers on the web—Legal Theory Blog links to those in a weekly “Legal Theory Calendar,” which is reposted day-by-day, Monday through Friday. Once a week, I post an entry in the Legal Theory Lexicon, which covers topics like “The Coase Theorem,” “Ex Post and Ex Ante,” and so forth.
If you scroll up, you'll find a link to the Webcast. Check it out!

In a recent article, Cass Sunstein and Adrian Vermeule argue that capital punishment is morally required if it will deter significantly more killings than it inflicts. They claim that the state’s duty is to minimize murders, and that recent deterrence research shows that state executions, even if deemed murders themselves, can do so. If these finding are true, they argue, the state is morally obligated to undertake such “life-life tradeoffs.” The logic of Sunstein and Vermeule’s argument justifies not only state executions, but any state-perpetrated injustice that promises to reduce the incidence of similar injustices overall. Recently such lesser evil arguments have been invoked to justify state torture, detention without trial, and warrantless wiretapping. In this article, I identify problems that are common to all of these arguments. My aim is to demonstrate that, however valid the lesser evil approach may be in some domains, it fails when invoked to defend state violations of the right to life and other fundamental human rights.

Notre Dame Law: Professor Suzanna Sherry, Cal Turner Professor of Law & Leadership Vanderbilt University Law School
University of Texas Law: Lisa Bressman, Vanderbilt University, "Inside the Administrative State: A Critical Look at the Practice of Presidential Control"
Harvard, Berkman Center: Bloggership: How Blogs are Transforming Legal Scholarship
8:30 - 8:40 a.m.: Welcome: John Palfrey (Executive Director, The Berkman Center for Internet & Society) 8:40 - 9:00 a.m.: Introduction: Paul Caron (Cincinnati; Publisher & Editor-in-Chief, Law Professor Blogs Network) 9:00 - 10:30 a.m.: Law Blogs as Legal Scholarship
Doug Berman (Ohio State; Sentencing Law and Policy): Scholarship in Action: The Power, Possibilities, and Pitfalls for Academic Blogs Larry Solum (Illinois; Legal Theory Blog): Blogging and the Transformation of Legal Scholarship
Kate Litvak (Texas): Law Prof Blogs: Useful, Yes; Scholarship, No
Commentators
Paul Butler (George Washington; BlackProf) Jim Lindgren (Northwestern; The Volokh Conspiracy) Ellen Podgor (Stetson; White Collar Crime Prof Blog)
11:00 - 12:30 p.m.: The Role of the Law Professor Blogger
Gail Heriot (San Diego; The Right Coast): Was Publius Our Nation's First Blogger? Orin Kerr (George Washington; The Volokh Conspiracy): Law Professors as Public Intellectuals Gordon Smith (Wisconsin; Conglomerate): Bit By Bit: A Case Study of Bloggership
Commentators
Randy Barnett (Boston University; The Volokh Conspiracy) Michael Froomkin (Miami; Discourse.net)
2:00 - 3:30 p.m.: Law Blogs and the First Amendment
Glenn Reynolds (Tennessee; InstaPundit) (via video conference): Libel, the First Amendment and Bloggers Eugene Volokh (UCLA; The Volokh Conspiracy): Cheap Speech and What It Has Done Eric Goldman (Marquette; Technology & Marketing Law Blog): Joint and Guest Blogger Arrangements
Commentators
Betsy Malloy (Cincinnati; Health Law Prof Blog) Dan Solove (George Washington; Concurring Opinions)
3:45 - 5:15 p.m.: The Many Faces of Law Professor Blogs
Larry Ribstein (Illinois; Ideoblog): Bloggership as Amateur Journalism Ann Althouse (Wisconsin; Althouse): Why a Narrowly Defined Legal Scholarship Blog Is Not What I Want: The Joys of Well-Rounded Blogging Christine Hurt (Illinois; Conglomerate) & Tung Yin (Iowa; The Yin Blog): Pre-Tenure Blogging: Is It Worth It?
Commentators
Howard Bashman (How Appealing) Peter Lattman (Wall Street Journal’s Law Blog)
University of London: One-Day Conference: Questions in Feminism and Philosophy, Miranda Fricker, Gill Howie, Gudrun von Tevenar, Alice Maclachlan, Kathleen Lennon, Mari Mikkola, Alison Stone, Veronica Vasterling, Liz Disley, Clare Saunders, Pamela Anderson
Georgetown Law & Economics: Randall Thomas, Vanderbilt University Law School
University of San Diego: "The Rights and Wrongs of Discrimination."
"Reflections on Discrimination," Alan Wertheimer, National Institutes of Health -comments by Steve Smith, USD Law "Sameness, Subordination and Perfectionism: Toward a More Complete Theory of Employment Discrimination," Kimberly Yuracko, Northwestern University Law - comments by Connie Rosati, University of Arizona Philosophy, and Orly Lobel, USD Law "Defining the Anti-Discrimination Norm to Defend It," Mark Kelman, Stanford Law - comments by Maimon Schwarzschild, USD Law "What is Wrongful Discrimination?" Richard Arneson, UCSD Philosophy - comments by David Brink, UCSD Philosophy, and Andy Koppelman, Northwestern Law

Douglas Berman, Sentencing Law and Policy
Gail Heriot, The Right Coast
Jim Lindgren, The Volokh Conspiracy
Christine Hurt, Conglomerate
Paul Butler, BlackProf
Michael Froomkin, Discourse.Net
Gordon Smith, Conglomerate
Betsy Malloy, Health Law Prof Blog
Randy Barnett, The Volokh Conspiracy
Orin Kerr, The Volokh Conspiracy and OrinKerr.com
Howard Bashman, How Appealing
Dan Solove, Concurring Opinions
Ann Althouse, Althouse
Eric Goldman, Technology & Marketing Law Blog
Larry Ribstein, Ideoblog
Peter Lattman, Wall Street Journal's Law Blog
Paul Caron, Taxprof
Larry Solum, Legal Theory Blog
Ellen Podgor, White Collar Crime Prof Blog
Eugene Volokh, The Volokh Conspiracy

Oxford Jurisprudence Discussion Group: Matthias Klatt, Taking Rights Less Seriously. A Structural Analysis of Judicial Discretion
University of Illinois Criminal Law Colloquium: Mariano-Florentino ("Tino") Cuéllar, Stanford University, The Political Economy of Preventive Criminal Enforcement
Oxford Public International Law Discussion Group: Professor Alan Boyle, Some Reflections on the International Law-making Process
Oxford Law Faculty, Invited Seminars in Constitutional Theory 2006: Adam Tomkins, speaking on The Republican Constitution with comments from Trevor Allan, Paul Craig and Timothy Endicott
DePaul Law: Wendy Gordon, Boston University & the Hosier Distinguished Visiting IP Scholar, Copyright and Ethics: The Moral Duties of Copyright Owners
Fordham Law: Martin S. Flaherty, Professor of Law and Co-Director, Joseph R. Crowley Program in International Human Rights
University of Arizona Law: Kenji Yoshino, Yale Law School, "The New Equal Protection"

University of Illinois Criminal Legal History Program: Andrea McKenzie (University of Victoria, Department of History), "God's Tribunal? Execution in England, 1670-1770"
USC-Caltech Center for the Study of Law & Politics: Elizabeth Garrett(USC Gould School of Law) and Mathew McCubbins (University of California, San Diego), "A Framework Law for Initiatives"
Benjamin N. Cardozo School of Law – Yeshiva University, Cardozo Intellectual Property Law Program, Intellectual Property Speaker Series: Madhavi Sunder, University of California at Davis, I P3: The Convergence of Identity Politics, the Internet Protocol, and Intellectual Property

Rick Hasen has a very fine post on Stewart v. Blackwell, a decision of the Sixth Circuit that relies on the equal protection theory of Bush v. Gore over a vigorous dissent that cites Hasen in support of the view that Bush v. Gore should be viewed as limited to its facts.
This debate raises some very interesting issues of constitutional theory--about the fundamental nature of constitutional stare decisis in two dimensions: (1) vertical, from the Supreme Court to the lower federal courts, and (2) horizontal, from the past of the Supreme Court to its future.
With respect to horizontal stare decisis in the Supreme Court, the conventional view is that the Supreme Court should afford its own prior decisions a presumption of validity. What does that mean? One possibility would be that this “presumption” is a mere “bursting bubble.” Precedents will be followed until and unless there are good reasons to depart from them. If this were the only role for precedent, then it would be virtually no role at all—it takes only a slender needle of flimsy argument to burst a bubble. Likewise, the presumption view is virtually meaningless if it only decides cases in which the arguments for and against sticking with the precedent are in equipoise. Of course, there will be some cases in which the arguments for and against a change in the law are perfectly balanced, but such cases are likely to be rare.
The presumption view of the force of precedent is implausible. A more reasonable view is that precedents are entitled to weight because of the costs of legal change. One such cost is associated with reliance and expectations. Individuals and institutions may fail to receive expected benefits or incur avoidable costs. Another set of costs may be related to the implementation of new legal rules—at a minimum, the treatises will need to be rewritten. The instrumentalist view of precedent conceives of the decision whether to overrule existing precedent as simply adding another factor to the balance of factors that are relevant to the selection of an optimal rule. From the realist perspective, precedents should be overrule when the benefits of overruling exceed the costs and precedents should be followed when they already provide the optimal rule or when the costs of changing the law are greater than the marginal benefits the better rule would provide.
The instrumentalist view of precedent is peculiar, because it denies that Supreme Court precedents should be treated as legally authoritative by the Supreme Court itself. One way of drawing out this peculiarity is by comparing the situation in which there is a prior Supreme Court precedent on a particular point of law to the situation in which there is no prior decision and a new case presents a novel issue of law. Of course, it is possible that the former case involves greater reliance interests than the later case, but this is not necessarily so. It might well be that the relevant individuals and institutions have made plans based on guesses about the Supreme Court’s likely decision or that they have made plans for no good reason at all. From the instrumentalist perspective, reliance interests are valued in terms of consequences of disappointed expectations. Stare decisis is simply one mechanism by which reliance interests could be generated. The point is that the instrumentalist conception reduces the force of precedent to a contingent policy concern—one that may drop out entirely in some cases.
What is the alternative? The formalist conception of stare decisis is based on the idea that precedents are legally binding or authoritative. That is, a formalist believes that precedents provide what are sometimes called “content independent” or “peremptory” reasons for action. Of course, the formalist conception of precedents as legally binding is quite familiar, even in our realist legal culture. When it comes to vertical stare decisis, the conventional notion is that the decisions of higher courts are binding on lower courts. A Court of Appeals may not decide to overrule a Supreme Court decision because the advantages of the better rule outweigh the costs of changing legal rules. The idea of binding precedent also operates at the level of intermediate appellate courts. Three judge panels of the United States Courts of Appeal are bound by the prior decisions of the Court; they are not free to decide that the benefits of a better rule outweigh the benefits of adhering to the law of the circuit.
There is a second contrast between realist and formalist conceptions of precedent. Realist courts are inclined to view their power as legislative in nature. This is clearest in the case of courts of last resort, as is the Supreme Court of the United States in constitutional cases. This leads to the emergence of what might be called the legislative holding—in which the Opinion of the Court includes a phrase that may begin, “We hold that . . .” and then states a broad rule that decides the case at hand but may go far beyond its facts. Lower courts may be inclined to treat legislative holdings as authoritative. For one thing, courts of last resort have a power that real legislatures lack; they can actually intervene in particular cases and address direct orders to the lower courts—powers that legislatures lack. Legislative holdings blur the familiar distinction between dictum and holding. From a realist perspective, a firm statement of the rule joined by a clear majority may constitute good evidence of the court’s future actions—even if the statement is unnecessary to the resolution of the dispute at hand.
Even formalists may be tempted by the practice of legislative holdings-—after all, they do facilitate predictability and certainty about the content of the law. There are, however, formalist reasons for adhering to the traditional view of stare decisis—-that opinions are binding only insofar as they decide the case before the court. This is the traditional theory of the ration decidendi—“the reason for the decision” which is limited by the legally salient facts of the case that is decided. Given this traditional view, case law is slow moving. It takes many decisions to create a general rule, and many more to change one. Given the realist practice of “legislative holdings,” a single case could create a right to abortion with an elaborate three trimester scheme. And a single case could abolish that right. Given the formalist alternative, a right to abortion could only have been created through many decisions; once established, it would take many many more to modify or extinguish that right.
The two distinguishing features of the realist idea of precedent work in tandem. When legal rules are emerging, they are built slowly, piece by piece. Once established by a body of precedent, a legal rule can only change slowly. Each alteration must be consistent with the binding force of prior decisions. New cases can only move the law by small steps, whose limits are demarcated by the facts which define ratio decidendi of the new case. Working in tandem, these two features of the neoformalist doctrine of precedent operate to create predictability, certainty, and stability in the law—not by declaring broad rules in single cases but through the accumulated decisions of many cases over time.
So how does all of this apply to Bush v. Gore and Hasen's view that the decision is likely to be confined to its facts? I think it exposes a certain tension or contradiction within the prevailing legal conception of constitutional stare decisis. On the one hand, the doctrine of vertical stare decisis is formalist: Supreme Court decisions are binding on the lower courts. On the other hand, horizontal stare decisis within the Supreme Court is realist--the court does not consider itself bound by its own prior decisions and yet feels free to issue legislative holdings that purport to establish binding rules. This puts lower courts in a bit of a bind. On the one hand, they are required to follow Bush v. Gore, to treat it as a binding decision of the Supreme Court. On the other hand, the lower courts know that Bush v. Gore may not be treated as a binding decision by the Supreme Court itself and hence that (in some sense) the decision does not make law except in the narrow sense of "law of the case" on remand. So what the lower courts to do? Either they ignore Bush v. Gore in contravention of their duty to treat Supreme Court decisions as binding, or they follow it, and make decisions that in reality will be out of sync with the law in some larger and more realistic sense. To me, it is not surprising that the Sixth Circuit panel was split and that the disagreement was heated. That's simply a symptom of corrupting influence of realism on the Supreme Court's doctrine of horizontal stare decisis
Read Hasen's fine post

Vanderbilt University Law School Conference on Legal Education: Past, Present & Future April 28-29, 2006 Schedule for Friday April 28, 2006
Panel 1: How Did We Get Here? Why Have We Stayed? 9:45-11:30 am Robert W. Gordon, Yale Law School: The Geologic Strata of the Law School Curriculum Thomas C. Grey, Stanford Law School: The Case Method and Legal Realism Robert D. Cooter, Boalt Hall School of Law, University of California-Berkeley: What is Law and Economics? Why did it Succeed? John Henry Schlegel, University of Buffalo Law School: A Damn Hard Thing to Do John C. P. Goldberg, Vanderbilt Law School, Moderator Panel 2: Current Practices: Problems and Potential 1:00-2:30 pm Ernest J. Weinrib, University of Toronto Faculty of Law, Can Law Survive Legal Education? Mark D. West, University of Michigan Law School, Making Lawyers (and Gangsters) in Japan Wayne S. Hyatt, Hyatt & Stubblefield, A Lawyer's Lament: Law Schools and the Profession of Law Susan L. Kay, Vanderbilt Law School, Moderator Panel 3: Pedagogic Bias? Diagnosis and Correctives, 2:45-4:15 pm Lani Guinier, Harvard Law School, & Susan P. Sturm, Yale Law School, The Pedagogical Matrix: A Framework for Rethinking Legal Education Geraldine Downey, Dept. of Psychology, Columbia University, & Bonita E. London, Ph.D. Candidate, Columbia University: Psychological Theories of the Educational Engagement of Women and Ethnic Minority Group; Members: A Multi-Method Analysis of Institutional Change Elizabeth E. Mertz, University of Wisconsin Law School, Inside the First Year Law School Classroom: Toward a New Legal Realist Pedagogy Chris Guthrie, Vanderbilt Law School, Moderator Vanderbilt University Chancellor E. Gordon Gee, Closing Remarks 4:30 to 4:45 p.m.
Schedule for Saturday April 29, 2006
Panel 4: The Future of Legal Education 9:30-11:30 am Carrie J. Menkel-Meadow, Georgetown University Law Center: Taking Law and … Really Seriously Todd D. Rakoff, Harvard Law School, Different Methods for Different Cases Edward L. Rubin, Dean & John Wade-Kent Syverud Professor of Law: Legal Education for the 21 st Century Nicholas S. Zeppos, Provost, Vanderbilt University, and Professor of Law, Vanderbilt University Law School, Moderator

Lewis & Clark Law: Joseph Miller, Ordinary Artisans' Ordinary Inventions: Toward Reality-Based Patent Law
Ed Glaeser, Fred and Eleanor Glimp Professor of Economics, Harvard University, Why Does Democracy Need Education?
Oxford Internet Institute: Jonathan Zittrain: Internet Governance and Regulation: the Future of the Internet--and How to Stop it
Chicago IP Colloquium, Loyola University Chicago School of Law: Professor Sonia Kaytal, Fordham University School of Law, Trademark Intersectionality
Georgetown Law: Lama Abu-Odeh
Georgetown Constitutonal Law & Theory: Rick Garnett (Law, Notre Dame), Religious Freedom, Church Autonomy, and the Libertas Ecclesiae

This Essay pursues one of the inquiries begun in my new book, TOWARD A THEORY OF HUMAN RIGHTS: RELIGION, LAW, COURTS (forthcoming, Cambridge University Press): What is the proper role of the United States Supreme Court in protecting constitutionally entrenched human rights? Some contemporary legal theorists are hostile to judicial review (e.g., Mark Tushnet and Jeremy Waldron). In another Essay, I defend judicial review—but judicial review of a sort different from that with which we are familiar in the United States. I call the sort of judicial review I defend “the power of judicial penultimacy”. (The sort of judicial review with which we are familiar in the United States is “the power of judicial ultimacy”.) See Michael J. Perry, "Protecting Human Rights in a Democracy: What Role for the Courts?" http://papers.ssrn.com/sol3/papers.cfm?abstract_id=380283. In this Essay, I argue for a second best: Given that the United States Supreme Court exercises the power of judicial ultimacy, the Court should exercise that power in a Thayerian (deferential) manner. I then illustrate my position by discussing three constitutional controversies, each of which implicates an issue at the epicenter of the American “culture wars”: capital punishment, abortion, and same-sex unions. First, I argue that capital punishment violates the Eighth Amendment, but I then explain why the Supreme Court should not so rule. Second, I contend that even if one concludes that state bans on pre-viability abortions violate the Fourteenth Amendment, one should not want the Court to so rule. Third, I argue that state refusals to recognize—state refusals to extend the benefit of law to--same-sex unions violate the Fourteenth Amendment, but that nonetheless, the Court should not—not yet—so rule. A strong case can be made that the United States Supreme Court should have, not the power of judicial ultimacy, but only the power of judicial penultimacy. For better or worse, however, the Court has the power of judicial ultimacy. Given that the Court has this power, what role should the Court play in protecting constitutionally entrenched human rights? In his classic work, THE LEAST DANGEROUS BRANCH (1962), Alexander Bickel wrote: “The search must be for a function . . . which differs from the legislative and executive functions; . . . which can be so exercised as to be acceptable in a society that generally shares Judge [Learned] Hand’s satisfaction in a ‘sense of common venture’; which will be effective when needed; and whose discharge by the courts will not lower the quality of the other departments’ performance by denuding thjm of the dignity and burden of their own responsibility.” As this Essay indicates, I’m inclined to think that in exercising its power of judicial ultimacy in a Thayerian fashion, the Court would be playing its proper role—it would be serving its proper function—in protecting constitutionally entrenched human rights. How appealing Thayerian deference is all things considered depends in part on what the implications of Thayerian deference turn out to be for various constitutional doctrines. Although in this Essay I pursue the implications of Thayerian deference for the constitutional controversies over capital punishment, abortion, and same-sex unions, there are many other questions to be answered: Can Thayerian deference accommodate the Supreme Court’s most important free speech decisions? Its most important antidiscrimination decisions—including, of course, Brown v. Board of Education? Its most important criminal procedure decisions? Indeed, perhaps we should not generalize across every constitutionally entrenched human right; perhaps there are reasons for thinking that Thayerian deference is appropriate in cases in which certain human rights are at issue but inappropriate in cases in which certain other human rights are at issue—the right to freedom of speech, for example, or the right not to be discriminated against on the basis of a demeaning view about an aspect of one’s particularity. In any event, the implications—the consequences—of Thayerian deference surely bear on our estimate of the all-things-considered appeal of Thayerian deference. And, accordingly, my fundamental argument in this Essay, in support of Thayerian deference, is tentative and provisional.

In their book, The Limits of International Law, Professors Jack Goldsmith and Eric Posner use rational choice theory in an effort to understand how international law works in practice. This theory, they argue, invariably leads to the conclusions that most of customary law is the product of coincidence, that much of multilateral treaty law will fail, and that reliance on legal rules is frequently counterproductive. Provocative though these claims may be, the book fails to offer a robust explanation for the growth and variety of international legal commitments at play in today's world. The introduction of rational choice theory is itself largely unremarkable; the methodology has already found its way into international law scholarship over the past decade. More troubling, the conclusions that the book reaches do not follow from the rationalist theory that it presents; rather, we argue, the conclusions emerge from deeply held normative concerns about the role of international law in the U.S. constitutional system - in a word, from revisionism. In this review, we identify the revisionist commitments that color Professors Goldsmith and Posner's analysis of international law and propose a series of questions that rationalist legal scholars should answer as they move to develop deeper and more sophisticated rationalist theories of international law.

To register for the Joint Session of the Aristotelian Society and the Mind Association July 2006 at the University of Southampton, visit: http://www.soton.ac.uk/events.htm PROGRAMME: JOINT SESSION OF THE ARISTOTELIAN SOCIETY AND THE MIND ASSOCIATION UNIVERSITY OF SOUTHAMPTON, JULY 7-9 2006 Friday 7th July
5.00 p.m. Inaugural Address: Timothy Williamson ‘Conceptual Truth’, Chair: Aaron Ridley
Saturday 8th July
9.00 a.m. Andy Clark and Naomi Eilan, Sensorimotor Skills and Perception, Chair: Barry Smith 11.00 a.m. Sally Haslanger and Jennifer Saul, Philosophical Analysis and Social Kinds, Chair: Miranda Fricker 2.00 p.m. Graduate Papers 4.30 p.m. Submitted Papers – Open Sessions 8.00 p.m. John Hawthorne and Scott Sturgeon, Disjunctivism, Chair: Matt Soteriou
Sunday 9th July
9.00 a.m. Tom Hurka and John Tasioulas, Games and the Good, Chair: Brad Hooker 11.00 a.m. Ken Gemes and Christopher Janaway, Nietzsche on Free Will and Autonomy, Chair: Peter Poellner 11.00 a.m. Lloyd Humberstone and Herman Cappelen, Sufficiency and Excess, Chair: Peter Milne 2.00 p.m. Submitted Papers – Open Sessions 4.30 p.m. Submitted Papers – Open Sessions

University of London, The Aristotelian Society: Rosalind Hursthouse, University of Auckland, ‘Practical Wisdom: a Mundane Account’ I am a huge admirer of Hursthouse's work.
University of Texas Law: Jeffrey Segal (Stony Brook) "Changing Dynamics of Senate Voting on Supreme Court Nominees" Segal does very important work on judicial attitudes and behavior.
Emory Law: Rachel Moran, Boalt Hall, "Grutter v. Bollinger: The Heirs of Brown."
Yale Workplace Theory & Practice: Katie Quan, Institute of Industrial Relations, University of California at Berkeley, Women Crossing Borders to Organize
UCLA Law: Prof. Mark Grady, UCLA School of Law, "Chimpanzee Autarky: Using Chimpanzee Norms to Explain Chimpanzee Behavior"
Benjamin N. Cardozo School of Law, Cardozo Intellectual Property Law Program: International Intellectual Property — A Roundtable on Current Developments Professors Katsuya Tamai (U Tokyo), Coenraad Visser (U South Africa), Susy Frankel (Victoria U of Wellington)
Georgetown Law & Philosophy: Martha Nussbaum (Law and Philosophy, University of Chicago)
Columbia Law & Economics: Daniel M. Klerman, University of Southern California Law School, Jurisdictional Competition and the Evolution of the Common Law

Phillips Petroleum v. Shutts, the topic of a recent symposium, looks backwards as well as forwards. In its backwards-looking aspect Shutts suggests what federal diversity jurisdiction might have become. In its forward-looking aspect Shutts suggests the problems that will arise under the Class Action Fairness Act of 2005. This essay uses Shutts to sketch a new role for diversity jurisdiction, and it uses Shutts' facts to explain how we might begin to resolve the issues that CAFA will create.

The U.S. Court of Appeals for the Federal Circuit reviews de novo the rulings of district judges about patent claim construction. This state of affairs—surprising to many lawyers who are unfamiliar with patent law—is controversial because claim construction is one of the most important and vexing aspects of patent litigation, necessary to the vast majority of patent cases, and because it is probably responsible, at least in part, for the high reversal rate in patent cases. Commentary by both scholars and judges about the standard of review in patent cases has centered on whether the Federal Circuit should change it and review claim construction rulings with deference. This commentary relies on a flawed assumption. The Federal Circuit lacks the authority to review claim construction rulings deferentially, because de novo review is required by the Supreme Court’s decision in Markman v. Westview Instruments. In particular, the Supreme Court stated that claim construction rulings are entitled to stare decisis. This article will argue that deference should be granted to the factual findings and acquired technical expertise underlying district courts’ claim construction rulings in at least some limited cases - but it will also explain why change must and should come from the Supreme Court.

Title VII bans discrimination because of sex. Sex discrimination clearly includes discrimination against men because they are men and women because they are women. Whether it also bans discrimination against transsexuals, intersexuals, gays and lesbians who suffer discrimination based upon their gender nonconformity, sex nonconformity or sexual orientation nonconformity is less clear. Until recently, the answer would have been an unambiguous no; Title VII did not protect any of these persons from discriminatory employment practices. During the last few years, however, courts have begun to protect these traditionally marginalized individuals based upon the gender nonconformity theory established by the U.S. Supreme Court in Price Waterhouse v. Hopkins. This article analyzes the evolution of Title VII’s discrimination “because of sex” jurisprudence in the federal district and circuit courts and the likelihood that the U.S. Supreme Court will allow transsexuals, intersexuals, gays and lesbians to state a Title VII cause of action if they suffer discrimination because of their failure to conform to sex and gender norms.

Monday, April 24
University of London, The Aristotelian Society: Rosalind Hursthouse, University of Auckland, ‘Practical Wisdom: a Mundane Account’
University of Texas Law: Jeffrey Segal (Stony Brook) "Changing Dynamics of Senate Voting on Supreme Court Nominees"
Emory Law: Rachel Moran, Boalt Hall, "Grutter v. Bollinger: The Heirs of Brown."
Yale Workplace Theory & Practice: Katie Quan, Institute of Industrial Relations, University of California at Berkeley, Women Crossing Borders to Organize
UCLA Law: Prof. Mark Grady, UCLA School of Law, "Chimpanzee Autarky: Using Chimpanzee Norms to Explain Chimpanzee Behavior"
Benjamin N. Cardozo School of Law, Cardozo Intellectual Property Law Program: International Intellectual Property — A Roundtable on Current Developments Professors Katsuya Tamai (U Tokyo), Coenraad Visser (U South Africa), Susy Frankel (Victoria U of Wellington)
Georgetown Law & Philosophy: Martha Nussbaum (Law and Philosophy, University of Chicago)
Columbia Law & Economics: Daniel M. Klerman, University of Southern California Law School, Jurisdictional Competition and the Evolution of the Common Law

Tuesday, April 25
Lewis & Clark Law: Joseph Millerl, Ordinary Artisans' Ordinary Inventions: Toward Reality-Based Patent Law
Ed Glaeser, Fred and Eleanor Glimp Professor of Economics, Harvard University, Why Does Democracy Need Education?
Oxford Internet Institute: Jonathan Zittrain: Internet Governance and Regulation: the Future of the Internet--and How to Stop it
Chicago IP Colloquium, Loyola University Chicago School of Law: Professor Sonia Kaytal, Fordham University School of Law, Trademark Intersectionality
Georgetown Law: Lama Abu-Odeh
Georgetown Constitutonal Law & Theory: Rick Garnett (Law, Notre Dame), Religious Freedom, Church Autonomy, and the Libertas Ecclesiae

Wednesday, April 26
University of Illinois Criminal Legal History Program: Andrea McKenzie (University of Victoria, Department of History), "God's Tribunal? Execution in England, 1670-1770"
USC-Caltech Center for the Study of Law & Politics: Elizabeth Garrett(USC Gould School of Law) and Mathew McCubbins (University of California, San Diego), "A Framework Law for Initiatives"
Benjamin N. Cardozo School of Law – Yeshiva University, Cardozo Intellectual Property Law Program, Intellectual Property Speaker Series: Madhavi Sunder, University of California at Davis, I P3: The Convergence of Identity Politics, the Internet Protocol, and Intellectual Property

Thursday, April 27
Oxford Jurisprudence Discussion Group: Matthias Klatt, Taking Rights Less Seriously. A Structural Analysis of Judicial Discretion
University of Illinois Criminal Law Colloquium: Mariano-Florentino ("Tino") Cuéllar, Stanford University, The Political Economy of Preventive Criminal Enforcement
Oxford Public International Law Discussion Group: Professor Alan Boyle, Some Reflections on the International Law-making Process
Oxford Law Faculty, Invited Seminars in Constitutional Theory 2006: Adam Tomkins, speaking on The Republican Constitution with comments from Trevor Allan, Paul Craig and Timothy Endicott
DePaul Law: Wendy Gordon, Boston University & the Hosier Distinguished Visiting IP Scholar, Copyright and Ethics: The Moral Duties of Copyright Owners
Fordham Law: Martin S. Flaherty, Professor of Law and Co-Director, Joseph R. Crowley Program in International Human Rights
University of Arizona Law: Kenji Yoshino, Yale Law School, "The New Equal Protection"

Friday, April 28
Notre Dame Law: Professor Suzanna Sherry, Cal Turner Professor of Law & Leadership Vanderbilt University Law School
University of Texas Law: Lisa Bressman, Vanderbilt University, "Inside the Administrative State: A Critical Look at the Practice of Presidential Control"
Harvard, Berkman Center: Bloggership: How Blogs are Transforming Legal Scholarship
8:30 - 8:40 a.m.: Welcome: John Palfrey (Executive Director, The Berkman Center for Internet & Society) 8:40 - 9:00 a.m.: Introduction: Paul Caron (Cincinnati; Publisher & Editor-in-Chief, Law Professor Blogs Network) 9:00 - 10:30 a.m.: Law Blogs as Legal Scholarship
Doug Berman (Ohio State; Sentencing Law and Policy): Scholarship in Action: The Power, Possibilities, and Pitfalls for Academic Blogs Larry Solum (Illinois; Legal Theory Blog): Blogging and the Transformation of Legal Scholarship
Kate Litvak (Texas): Law Prof Blogs: Useful, Yes; Scholarship, No
Commentators
Paul Butler (George Washington; BlackProf) Jim Lindgren (Northwestern; The Volokh Conspiracy) Ellen Podgor (Stetson; White Collar Crime Prof Blog)
11:00 - 12:30 p.m.: The Role of the Law Professor Blogger
Gail Heriot (San Diego; The Right Coast): Was Publius Our Nation's First Blogger? Orin Kerr (George Washington; The Volokh Conspiracy): Law Professors as Public Intellectuals Gordon Smith (Wisconsin; Conglomerate): Bit By Bit: A Case Study of Bloggership
Commentators
Randy Barnett (Boston University; The Volokh Conspiracy) Michael Froomkin (Miami; Discourse.net)
2:00 - 3:30 p.m.: Law Blogs and the First Amendment
Glenn Reynolds (Tennessee; InstaPundit) (via video conference): Libel, the First Amendment and Bloggers Eugene Volokh (UCLA; The Volokh Conspiracy): Cheap Speech and What It Has Done Eric Goldman (Marquette; Technology & Marketing Law Blog): Joint and Guest Blogger Arrangements
Commentators
Betsy Malloy (Cincinnati; Health Law Prof Blog) Dan Solove (George Washington; Concurring Opinions)
3:45 - 5:15 p.m.: The Many Faces of Law Professor Blogs
Larry Ribstein (Illinois; Ideoblog): Bloggership as Amateur Journalism Ann Althouse (Wisconsin; Althouse): Why a Narrowly Defined Legal Scholarship Blog Is Not What I Want: The Joys of Well-Rounded Blogging Christine Hurt (Illinois; Conglomerate) & Tung Yin (Iowa; The Yin Blog): Pre-Tenure Blogging: Is It Worth It?
Commentators
Howard Bashman (How Appealing) Peter Lattman (Wall Street Journal’s Law Blog)
University of London: One-Day Conference: Questions in Feminism and Philosophy, Miranda Fricker, Gill Howie, Gudrun von Tevenar, Alice Maclachlan, Kathleen Lennon, Mari Mikkola, Alison Stone, Veronica Vasterling, Liz Disley, Clare Saunders, Pamela Anderson
Georgetown Law & Economics: Randall Thomas, Vanderbilt University Law School
University of San Diego: "The Rights and Wrongs of Discrimination."
"Reflections on Discrimination," Alan Wertheimer, National Institutes of Health -comments by Steve Smith, USD Law "Sameness, Subordination and Perfectionism: Toward a More Complete Theory of Employment Discrimination," Kimberly Yuracko, Northwestern University Law - comments by Connie Rosati, University of Arizona Philosophy, and Orly Lobel, USD Law "Defining the Anti-Discrimination Norm to Defend It," Mark Kelman, Stanford Law - comments by Maimon Schwarzschild, USD Law "What is Wrongful Discrimination?" Richard Arneson, UCSD Philosophy - comments by David Brink, UCSD Philosophy, and Andy Koppelman, Northwestern Law

Introduction It all depends on your first year section, but many law students begin to get a sinking feeling about the law early in their first year. Does the law actually make any difference to the way cases are decided? Before law school, most of us would answer "Yes, of course." And many law students start law school with the assumption that they will "learn the rules." But in contemporary American legal education, many students encounter a thesis that goes something like this:
The laws have nothing to do with how cases come out. They are just window dressing that skillful lawyers and judges can manipulate to justify any decision they please.
This counterintuitive position is a version of the claim that law is indeterminate, or what we might call the indeterminacy thesis.
The Indeterminacy Debate The indeterminacy thesis is associated with legal realism, but in its most extreme form, it is most strongly identified with the Critical Legal Studies movement--a loose and multifaceted cluster of legal scholars that became very prominent in the 1980s.
The indeterminacy debate is about the claim that the law does not constrain judicial decisions. Put differently, the claim is that all cases are hard cases and that there are no easy cases. The strongest version of the claim is the notion that any result in any legal dispute can be justified as the legally correct outcome, but the thesis can be modified or weakened in various ways.
What does the indeterminacy thesis mean? Let's call the claim that the laws (broadly defined to include cases, regulations, statutes, constitutional provisions, and other legal materials) do not determine legal outcomes the indeterminacy thesis. Because there are many different versions of the indeterminacy thesis, our approach will be to identify clearly the distinct versions of the indeterminacy thesis and then to consider each version of the thesis on its own merits.
Indeterminacy versus Underdeterminacy The next step in clarifying the indeterminacy debate is to distinguish between "indeterminacy" and "underdeterminacy" of law. Thus far, we have accepted the implicit assumption that indeterminacy and determinacy are exhaustive categories, i.e. that the decision of a case is either determined by the law or it is indeterminate. This assumption is not correct. A legal dispute may be constrained by the law, but not determined by it.
Roughly, an case is underdetermined by the law if the outcome (including the formal mandate and the content of the opinion) can vary within limits that are defined by the legal materials. This approximation can be made more precise by considering the relationship between two sets of outcomes of a given case. The first set consists of all possible results — all the imaginable variations in the mandate (affirmance, reversal, remand, etc.) and in the reasoning of the opinion. The second set consists of the outcomes that can be squared with the law — the set or legally acceptable outcomes. The distinctions between indeterminacy, underdeterminacy and determinacy of the law with respect to a given case may be marked with the following definitions:
• The law is determinate with respect to a given case if and only if the set of legally acceptable outcomes contains one and only one member.
• The law is underdeterminate with respect to a given case if and only if the set of legally acceptable outcomes is a nonidentical subset of the set of all possible results.
• The law is indeterminate with respect to a given case if the set of legally acceptable outcomes is identical with the set of all possible results.
Hard Cases The notion of a "hard case" can now be explicated with reference to the idea of underdeterminacy. A case is a "hard case" if the outcome is underdetermined by the law in a manner such that the judge must choose among legally acceptable outcomes in a way that changes who will be perceived as the "winner" and who the "loser." The point is that the outcomes of an case need not be completely indeterminate in order for it to be a hard case; a case in which the results are underdetermined by the law will be "hard" if the legally acceptable variation makes the difference between loss or victory for the litigants. The distinction between indeterminacy and underdeterminacy is rarely observed in the indeterminacy debate, but it is nonetheless important to assessing the debate. Claims that the law is radically indeterminate are implausible, but more modest claims about underdeterminacy may both be defensible and play a role in a radical critique of liberal legal theory.
Is the law radically indeterminate? The strongest (the most ambitious) claim about the indeterminacy of law is the claim that in every possible case, any possible outcome is legally correct. In other words, the strong indeterminacy thesis is the claim that the law is radically indeterminate:
The Strong Indeterminacy Thesis: In any set of facts about actions and events that could be processed as a legal case, any possible outcome — consisting of a decision, order, and opinion — will be legally correct.
To falsify the strong indeterminacy thesis one needs to establish that there is at least one possible case in which at least one possible outcome is legally incorrect. This refutation would disprove the strong indeterminacy thesis only in the sense stipulated here; it would not establish that the law is always, usually, or even frequently determinate.
The Argument from Easy Cases One way to establish that there is at least one possible case in which at least one outcome is legally incorrect has been called "the argument from easy cases" by Fred Schauer. In its simplest form, the argument from easy cases points to a hypothetical case in which at least one outcome is legally incorrect. The following discussion attempts to formulate one such easy case:
Consider the following case, consisting of facts, a legal rule, and a legal event. First, postulate the following set of events and actions: Ben visited Point Magu State Beach in Ventura County, California between the hours of 12:30 p.m. and 4:00 p.m. on Sunday, February 14, 2004. Second, consider the following legal rule: Section 2 of the Sherman Antitrust Act states, "Every person who shall monopolize or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony . . ." (26 Stat. 209 (1890)). Third, consider the following claim about a possible case: Ben's visit to the beach on the date and time specified would not constitute a violation of Section 2 of the Sherman Act. In order fully to convince you of this, I would need to tell you more about what went on at the beach on that day. The details will include Ben's looking at the ocean, speaking with friends about politics, reading a book, and so forth. Children flew kites; a friend grilled chicken and hot dogs. You might want to know whether Ben discussed any business dealings at the beach: he did not. But no matter how many questions you asked, no matter how hard you tried, you would not be able to make out a legally valid case that the Sherman Act was violated. If a prosecution were filed against Ben based only on the events specified, a verdict of guilty would be legally incorrect. This is not to deny that it is possible that things would go wrong in some way. Perjury might be committed; the judge assigned to the case might be deranged. Our system of justice is hardly foolproof, but that does not entail the further conclusion that any result is legally correct.
The upshot of this example of an easy case is this: there is at least one possible case in which at least one possible outcome is legally incorrect. Therefore, the strong indeterminacy thesis (as I have defined it) is false. Notice my argument is not that the outcome of an antitrust prosecution based on the facts I outline is predictable. Rather, my claim is that one possible outcome, i.e. conviction, would be legally incorrect. If the law is correctly applied and the witnesses testify truthfully, the prosecution should fail.
Changing the Hypothetical Of course, we can easily change the hypothetical so that the legally correct outcome would change. Just add a conspiratorial conversation at the beach that does violate the Sherman Act. But the fact that the hypothetical can be changed so as to change the legally correct outcome is not responsive to the argument from easy cases. Let us stipulate for the sake of argument that it is always be possible to add facts to an easy case such that the addition of the new facts will change the legally correct outcome of the case. This does not demonstrate that there are no easy cases. Quite the contrary, the fact that the advocate of the strong indeterminacy thesis needed to add facts to the easy case in order to change the legally correct outcome shows that as originally stated the easy case was not indeterminate. If the strong indeterminacy thesis were true, then a reasonable legal argument should be available on the facts as originally stated in the hypothetical. The additional facts should not be necessary. That facts must be added to transform an easy case into a hard one demonstrates that the law does constrain the set of legally correct outcomes.
Is a modest version of the indeterminacy thesis defensible? If the strong indeterminacy thesis cannot be supported, is there a more modest claim about indeterminacy that is defensible and has critical bite? One modest version of the indeterminacy thesis might be the following: in most (or almost all) of the cases that are actually litigated, the outcome is underdetermined by the law. This claim about indeterminacy is not refuted by the argument from hypothetical easy cases. Confirmation of the actually-litigated underdeterminacy thesis would require empirical investigation, but there are some good reasons to believe that cases which actually proceed to filing, trial, or appeal will frequently be underdetermined by the law. Litigants will rarely have an incentive to settle easy cases. For example, in a civil dispute where the law gives a determinate answer to the question of who will win and what the amount of their judgment will be, the parties to litigation will usually prefer to settle, rather than incur the expenses of litigation. Uncertainty about the law is one of the factors that selects which cases will be filed, go to trial, and be appealed. This point should not be exaggerated, however: litigation may proceed for any number of reasons, including an irrational overconfidence in a hopeless case, uncertainty about facts in a case in which the law is clear, and so forth.
Important Cases Another modest version of the indeterminacy thesis claims that while many ordinary cases are roughly determinate, all the really important cases are indeterminate. Put more precisely, the claim might be that the important issues in important cases are underdetermined by the law. If true, this claim might preserve almost all of the critical force of the strong indeterminacy thesis. Yes, there are easy cases, but those cases are unimportant.
One difficulty with the important case version of the indeterminacy thesis is its potential circularity. Our concept of what counts as an important case may have indeterminacy as a component. Part of what makes a case important is that the result is not certain or predictable; if we all knew how the case would come out, we would not be interested. Likewise, the Supreme Court may select cases in part on the basis of their legal indeterminacy.
Conclusion I have just begun to scratch the surface of the indeterminacy debate, but I hope that I've provided enough perspective so that you can begin to think about this important question on your own. As I'm sure you know by now, I am not a fan of the radical indeterminacy thesis, but I also think it is important to recognize that the law is underdeterminate in important ways.
For more on the indeterminacy debate, see Lawrence On the Indeterminacy Crisis: Critiquing Critical Dogma, 54 University of Chicago Law Review 462 (1987). (online here)