Legal Theory Blog

All the theory that fits!


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

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Saturday, July 31, 2004
Legal Theory Bookworm This week, I have a list of contemporary "classic" titles on utilitarianism & consequentialism:These four books form the core of an excellent library on contemporary debates about consequentialism & utilitarianism.

Download of the Week This week, the Download of the Week is Should We Value Legislative Integrity? by Andrei Marmor. Here's the abstract:
    This essay challenges the widely held view that legislative integrity is a distinct political ideal. According to this ideal, lawmakers should try to make the total set of laws they enact as morally coherent as possible. I advance two types of arguments against this ideal. First, I try to show that the ideal of legislative integrity is directly at odds with the value of pluralism and the commitment of a liberal state to respect reasonable pluralism. Second, I explore the main causes of the failure of legislative integrity in democratic legislatures, arguing that there is nothing regrettable about these causes, on the contrary, they manifest commendable aspects of democratic law making.
Download it while its hot!

Friday, July 30, 2004
Posner & Sykes on Optimal War Eric Posner & Alan Sykes have posted Optimal War and Jus Ad Bellum on SSRN. Here is the abstract:
    The laws of war forbid states to use force against each other except in self-defense or with the authorization of the United Nations Security Council. Self-defense is usually understood to mean self-defense against an imminent threat. We model the decision of states to use force against "rogue" states, and argue that under certain conditions it may be proper to expand the self-defense exception to preemptive self-defense. We also consider related issues such as humanitarian intervention, collective security, and the role of the Security Council.

Guadamuz on the Technology Transfer Andres Guadamuz has posted The Future of Technology Transfer in the Global Village (Journal of World Intellectual Property, Vol. 3, No. 4, pp. 589-602, 2000) on SSRN. Here is the abstract:
    One of the most serious challenges facing international legal institutions in the present era of globalisation is the adoption of adequate written laws in the form of treaties, conventions, and codes that address the issues faced by the international community. There have been advances in many areas, mostly in Public International Law. However, when it comes to achieving agreement in economic and commercial issues, the record of the International community is not as positive. Many areas of the law require international conventions or treaties to provide a united front to common problems faced by most countries. Such is the case in areas of competition law, international trade, electronic commerce and intellectual property. One of the areas in desperate need of international regulation is that of creating codes of conduct for the same multinational corporations that have triggered the globalisation process. The present essay will be centred on the concept of technology transfer and on how technology is owned and transferred. Then, the efforts by the United Nations to achieve an agreement on codes of conduct for the transfer of technology will be discussed. Finally, some options for the future of Technology Transfer will be considered.

Harris on Innocence Seth D. Harris (New York Law School) has posted Innocence and The Sopranos (New York Law School Law Review Vol. 49) on SSRN. Here is the abstract:
    "Innocence" can be defined in a narrow, even technical way: "[f]reedom from specific guilt; the fact of not being guilty of that which one is charged; guiltlessness." But "innocence" can also take on a larger meaning that extends beyond technicality into morality: "[f]reedom from sin, guilt, or moral wrong in general; the state of being untainted with, or unacquainted with, evil; moral purity." This broader definition conveys a larger idea that is more powerful and evocative than the former's narrow literalism. "Innocence" has played an important role in three lines of judicial decisions addressing claims of workplace discrimination: remedies decisions, decisions reviewing affirmative action in public employment, and decisions reviewing affirmative action in private employment. From the Supreme Court's perspective, the "innocent" third parties in these workplace discrimination cases are the white and male co-workers of the African-American and women workers who have been the victims of discrimination. The Supreme Court has repeatedly relied on the "innocence" of white and male workers to deprive African-American and female discrimination victims of complete relief from discrimination. This essay argues that the Supreme Court's "innocence" jurisprudence in the workplace discrimination cases represents a subtle bait-and-switch of one definition of "innocence" for the other. The white and male co-workers of the victims of discrimination are "innocents" only in the sense that they satisfy the narrower definition: "freedom from specific guilt." Nonetheless, the Supreme Court has afforded these "innocents" protection appropriate only for those who satisfy the broader, moral definition of "innocence." Thus, the Court's workplace discrimination decisions minimize discrimination and its victims while emphasizing the purported plight of "innocent" co-workers. This misuse of the power of "innocence" has deprived the victims of discrimination of complete justice. The central issue became how best to resolve a manufactured struggle between the victims of discrimination and their co-workers over jobs, promotions, and wages rather than how to eliminate the vestiges of discrimination from the workplace. The Court's answer, dictated by its re-shaping of the question, has been to constrain the lower courts and other branches and levels of government from preferring the victims of discrimination over their "innocent" co-workers in the assignment of burdens and benefits in the workplace. This essay discloses how the Supreme Court has wielded the power of "innocence" in its workplace discrimination cases. But it also responds to the Supreme Court's subtle bait-and-switch of one form of "innocence" for another with a resounding "fuhgeddaboutit!" This essay recruits America's favorite TV mob family - the Sopranos - to help in the assessment of what it means to be "innocent." Fictional New Jersey crime boss Tony Soprano, his wife Carmela, his oldest child Meadow, and only son Anthony, Jr. ("AJ") challenge the role that "innocence" plays in the resolution of disputes over workplace discrimination and help us to understand that "innocence," as defined in the only manner that befits the white and male co-workers of the victims of discrimination, is and should be irrelevant to the resolution of these disputes. In the process, the Sopranos offer a competing vision of what it means to genuinely and fully remedy workplace discrimination. It's an offer we can't refuse.

Tan on Finnis Seow Hon Tan (National University of Singapore) has posted Justification in Finnis' Natural Law Theory (Singapore Journal of Legal Studies, Forthcoming) on SSRN. Here is the abstract:
    This essay examines Finnis' theory of natural law by addressing Finnis' solution to the problem of justification that besets any theory of law. It assesses the quality of Finnis' theory from its purported justification of self-evidence, and by asking if Finnis' theory adds anything of value to classical natural law discourse, the scholarship of which he purports to develop.

Hor on Corroboration Michael Hor (National University of Singapore - Faculty of Law) has posted Corroboration: Rules and Discretion in the Search for Truth (Singapore Journal of Legal Studies, pp. 509-542, 2000) on SSRN. Here is the abstract:
    It is easy to think of the corroboration rules as a thing of the past - something which in a few years will no longer plague the law of evidence. Yet we must not forget the apparently intractable problem which they were designed to deal with - that of oath against oath, one person's word against another. Both historically and presently, the law has had to struggle with a choice between a regime of rules or a system of discretion; and the result is a fascinating compound of rule and discretion.

Thursday, July 29, 2004
Early Modern Philosophy Texts on the Web Jonathan Bennett has launched a new website ( containing versions of some classics of early modern philosophy, prepared with a view to making them easier to read while leaving the main arguments, doctrines, and lines of thought intact. He writes:
    These versions are faithful to the content of the originals, but are plainer and more straightforward in manner. They are not dumbed down. One graduate student wrote in his weblog about one of the texts: 'The arguments and even most of the turns of phrase are unchanged, but it's just plain easier to read.' To the best of my knowledge, no other student-friendly versions of early modern philosophy texts exist anywhere on the Internet.
Check it out!

Two By Marmor Andrei Marmor has two new papers on SSRN:
    Should We Value Legislative Integrity?
      This essay challenges the widely held view that legislative integrity is a distinct political ideal. According to this ideal, lawmakers should try to make the total set of laws they enact as morally coherent as possible. I advance two types of arguments against this ideal. First, I try to show that the ideal of legislative integrity is directly at odds with the value of pluralism and the commitment of a liberal state to respect reasonable pluralism. Second, I explore the main causes of the failure of legislative integrity in democratic legislatures, arguing that there is nothing regrettable about these causes, on the contrary, they manifest commendable aspects of democratic law making.
    On the Right to Private Property and Entitlement to One's Income
      In this short essay I argue that the main insight of Murphy and Nagel's book, The Myth of Ownership, that people have no right to their pre-tax income, is not supported by their claim that the right to private property is not a natural right. The non-naturalness of the right to private property, I argue, is completely irrelevant to their moral argument. The plausibility of their moral conclusion derives from the thesis (which they also seem to endorse) that people do have a right to the fruits of their labor, maintaining, however, that there is no possible conception, morally speaking, of what the fruits of one's labor are, independent of a system of legal and social norms that constitute the terms of fair bargaining, pricing, etc. People can only have a right to a fair assessment of the added value of their labor and the latter cannot make any sense independent of the entire system of norms prevailing in the relevant society. I argue that this conclusion is not affected by the nature of the right to private property.

Kerr on the Fourth Amendment & New Technologies Owen Kerr has posted The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution on SSRN. Here is the abstract:
    This article argues that courts should approach the Fourth Amendment with caution when technology is in flux. When a technology is new or developing rapidly, courts should adopt modest formulations of Fourth Amendment protections that recognize the effectiveness and institutional advantages of statutory privacy protections. The cautious approach is justified on three grounds. First, caution is consistent with existing judicial practice. The reasonable expectation of privacy test generally has been used by the courts as a term of art that remains closely tied to property law concepts. When a technology implicates privacy but not property, current judicial practice tends to avoid broad interpretations of the Fourth Amendment. Second, legislative privacy protections are significantly stronger than most commentators appreciate. The case of wiretapping is instructive. While Fourth Amendment scholars often view wiretapping as a constitutional field under Katz v. United States and Berger v. New York, wiretapping has long been a primarily statutory field. Even today, wiretapping practice is governed by statutory commands, not constitutional ones. More broadly, Congress has created a wide range of statutory privacy laws that protect privacy in developing technologies where the courts have declined to offer protection. Third, legislatures have considerable institutional advantages that enable the legislative privacy rules regulating new technologies to be more balanced, comprehensive, and effective than judicially created rules. Rapid technological change makes it difficult for courts to clarify the law. Courts also lack the institutional capacity to readily appreciate existing technology and the impact of different legal rules. In contrast, courts are well equipped to respond to technological change in the context of criminal procedure rules.

More from Barnett on the Moral Foundations of Libertarianism Randy Barnett has a post entitled More on the Moral Foundations of Libertarianism on the Volokh Conspiracy. He concludes, "separating the political (how society should be structured) from the moral (how people should live their lives) is not to deny existence or importance of the moral." And for more on this, see Will Wilkinson's Understanding Political Libertarianism.

Litigation Blogs Gail Diane Cox of the National Law Journal has a piece entitled Blogs Dot the Litigation Landscape: Lawyers using Web logs must be mindful of pitfalls on Here's a taste:
    Web sites dedicated to a specific trial are ushering in a new era of client service, said Denise M. Howell, a Web log booster and intellectual property litigator who is of counsel to the Los Angeles office of Reed Smith. "Not only is it critical to know who will try your case," Howell said. "It's important to consider who will 'blog' it." The Web log that sparked Howell's enthusiasm is devoted to a civil case, the Department of Justice's antitrust action against Oracle in San Francisco.

Lemley & Shapiro on Probabilistic Patents Mark A. Lemley and Carl Shapiro (Stanford University - School of Law and University of California, Berkeley - Economic Analysis & Policy Group) have posted Probabilistic Patents on SSRN. Here is the abstract:
    Economists often assume that a patent gives its owner a well-defined legal right to exclude others from practicing the invention described in the patent. In practice, however, the rights afforded to patent holders are highly uncertain. Under patent law, a patent is no guarantee of exclusion but more precisely a legal right to try to exclude. Since only 0.1% of all patents are litigated to trial, and since nearly half of fully litigated patents are declared invalid, this distinction is critical to understanding the economic impact of patents. The growing recognition among economists and legal scholars that patents are probabilistic property rights has significant implications for our understanding of patents in four important areas: (1) reform of the system by which patents are granted; (2) the legal treatment of patents in litigation; (3) the incentives of patent holders and alleged infringers to settle their disputes through licensing or cross-licensing agreements rather than litigate them to completion; and (4) the antitrust limits on agreements between rivals that settle actual or threatened patent litigation.

Rai on Biotechnology Research, Proprietary Rights, and Collective Action Arti K. Rai (Duke University School of Law) has posted Proprietary Rights and Collective Action: The Case of Biotechnology Research with Low Commercial Value (INTERNATIONAL PUBLIC GOODS AND TRANSFER OF TECHNOLOGY UNDER THE GLOBALIZED INTELLECTUAL PROPERTY REGIME, Jerome Reichman, Keith Maskus, eds., 2004) on SSRN. Here is the abstract:
    In areas of cumulative research such as biotechnology, broad patents on fundamental research tools have the potential to create impediments to follow-on research and development. Impediments to R&D may also be created by possible "thickets" of upstream rights. Whether such impediments actually arise in any given case is of course an empirical question. From an empirical standpoint, the net impact of recent increases in upstream biotechnology rights is far from clear. It is fair to say, however, that one standard market solution to rights thickets - the reduction of transaction costs through collective institutions that pool and exchange rights - has not emerged. Rather, in the commercial arena, significant transaction costs and licensing fees have simply become part of the cost of doing business. Although these costs may have reduced profits, foreseeable sales revenues have been sufficiently high that the profit incentive has not been eliminated. In contrast, when follow-on research is conducted in the university context, or by non-profit institutions that target the developing world, foreseeable payoffs are either highly uncertain or are clearly small. In these contexts, large transaction and licensing costs may pose a more pressing problem. However, at least in the context of low-margin research that targets the developing world, there is reason to be optimistic that the "standard" solution of collective rights management will actually work. When the follow-on research in question is of demonstrably low commercial value, there is no reason for upstream rightsholders to fear that they are foregoing large downstream rents. Thus, even though conditions in the biotechnology sector may, as a general matter, work against collective action, low-margin research should be an exception. Non-profit institutions such as universities that are highly sensitive to reputational pressures should be the easiest players to enlist. Fortunately, in both agricultural and health-related biotechnology, non-profit institutions own a significant percentage of upstream patents.

Lillquist & Sullivan on the Law & Genetics of Racial Profiling in Medicine R. Erik Lillquist and Charles A. Sullivan (Seton Hall Law School and Seton Hall University - School of Law) have posted The Law and Genetics of Racial Profiling in Medicine (Harvard Civil Rights-Civil Liberties Law Review (CR-CL), Vol. 39, No. 391, 2004) on SSRN. Here is the abstract:
    Modern medicine routinely employs race. This phenomenon, and the underlying rationale that salient biological differences exists between races, has been almost completely ignored by the law journals, although race in other contexts obsesses them. This is a serious omission since medicine’s growing acceptance of using race in both research and treatment is at least as objectionable as other "racial profiling." Further, stressing genetic racial differences triggers associations with the eugenics movement and repeated "scientific" efforts of the last century to prove the intellectual inferiority of African-Americans. From a genetic perspective, there is no such thing as race; instead race is socially constructed. But, when viewing race as an indicator of the geographic origin of one's ancestors, race can, in some limited circumstances, be characterized by differences in genetic frequencies that may have an impact on disease or its treatment, particularly when also linked to environmental or behavioral influences. Any such differences among population groups are nevertheless generally not very important from a medical perspective, although it might be sometimes appropriate to use race as a proxy for genetic (as well as environmental and behavioral) differences. The law nonetheless currently broadly proscribes the use of race, and the use of race in medicine is deeply problematic from a normative perspective because it may validate racism by confirming the salience of genetic differences. Accordingly, use of race should be severely circumscribed. It should be permissible where race-focused studies and race-based outreach are concerned, but race-based screening, as we define that term, and racial exclusion in clinical trials should not be permitted. Racial differences in treatment (including diagnostic screening) should be permissible only in the quite rare circumstances where there is a bona fide treatment rationale. Under this test, the key requirement would be a scientific basis for believing not that race was helpful in diagnosis and treatment but rather that race was the best available method at the time.

Koenig & Rustad on Environmental Crimtorts Thomas Koenig and Michael L. Rustad (Northeastern University - School of Law and Suffolk University - School of Law) have posted Toxic Torts, Politics, and Environmental Justice: The Case for Crimtorts (Law & Policy, Vol. 26, pp. 189-207, April 2004) on SSRN. Here is the abstract:
    The borderline between criminal and tort law has been increasingly blurred over the past quarter century by the emergence of new "crimtort" remedies which have evolved to deter and punish corporate polluters. Punitive damages, multiple damages, and other "crimtort" remedies are under unrelenting assault by neo-conservatives principally because, under this paradigm, the punishment for wrongdoing can be calibrated to the wealth of the polluter. If wealth-based punishment is eliminated by the "tort reformers," plaintiffs' victories in crimtort actions such as those portrayed in the movies Silkwood, A Class Action, and Erin Brockovich will become an endangered species.

Jaisingh on Recording Company Strategies & Filesharing Jeevan Jaisingh (Hong Kong University of Science & Technology) has posted Piracy on File Sharing Networks: Strategies for Recording Companies on SSRN. Here is the abstract:
    In this paper we study the impact of selling music as downloads, on piracy, and the strategies recording companies should adopt to increase profits. We find that total music sales and profit of firm is higher, and total piracy (demand on file sharing network) is lower, when the firm sells a downloadable version. We look at the firm's optimal choice of Digital Rights Management (DRM) protection, and find that revenue decreases with increased protection, and so it is optimal for the firm not to employ any DRM, in the absence of network effects. Listening to music or watching video protected by DRM is cumbersome to users. They have to download license files, there are restrictions on the number of times the file can be copied, and restrictions on the type of devices that can play the file. As a result there is a disutility to the legal consumer, because of which the firm charges lower prices. Loss in revenue due to decreased prices cannot be compensated by the increase in demand, and hence revenue decreases with higher protection. When network effects (NE) is high, and a nominal search cost is above a certain threshold, then non-zero protection becomes optimal. This result is exactly the opposite of what was found in previous research (Conner and Rumelt 1991), where protection was found to be optimal in the absence of NE, and zero protection was optimal if NE is high enough.

Wednesday, July 28, 2004
Leiter on Marx & CLS Brian Leiter has an excellent post on the relationship between Marxism and the Critical Legal Studies movement. Here's a taste:
    CLS writers...locate the source of "indeterminacy" in law in one of two sources: either in general features of language itself (drawing here--not always accurately--on the semantic skepticism associated with Wittgenstein and Derrida ); or in the existence of "contradictory" moral and political principles that they claim underlie the substantive law, understood at a suitable level of abstraction. Duxbury himself recognizes this strand of CLS, which he aptly describes as claiming, "...that liberal consciousness is somehow a false or corrupted consciousness, that there exists within liberal thought--liberal legal thought included--a tension so fundamental, so irresolvable, that it must ultimately implode and make way for radical social transformation." (455) This strategy of argument signals the rather curious intellectual pedigree of CLS, a pedigree that Duxbury does not appear to recognize. [Ed.-Most CLS writers don't appear to recognize it either, though I'm sure Unger knows!] For what CLS has done in American legal thought is to revive a certain strategy of left-wing critique that dates back to the Left Young Hegelians of the 1830's in Germany. Seizing upon the Hegelian notion that ideas are the engine of historical change, the Left Hegelians sought to effect change by demonstrating that the prevailing conservative ideas were inherently contradictory and thus unstable. To resolve these contradictions, it would be necessary to change our ideas, and thus change the world.
Highly recommended!

Balkin on a Progressive Constitution Check out this post by Jack Balkin. Here's a taste:
    The attack on the so-called "Living Constitution" that was a centerpiece of constitutional conservativism in the 1980's and 1990's was itself an attempt to make the Constitution live again in the eyes of constitutional conservatives. It was necessary precisely in order to dethrone liberal assumptions and establish a new constitutional common sense, which, like every such constitutional order in the United States, understands itself not as rebelling against the text, history and structure of the Constitution, or its deepest principles, but embracing and restoring them. The work of restoration and recovery is how American constitutionalism changes. It is, to borrow a phrase, how our Constitution is truly and always a Living Constitution.
At this level of abstraction, I find myself in agreement with Balkin. It gets tougher when we start trying to figure out what "restoration" means! Read this post!

Issacharoff & Karlan on Political Gerrymandering Samuel Issacharoff and Pamela S. Karlan (Columbia Law School and Stanford Law School) have posted Where to Draw the Line?: Vieth v. Jubelirer, Cox v. Larios, and Judicial Review of Political Gerrymanders (University of Pennsylvania Law Review, Forthcoming) on SSRN. Here is the abstract:
    A striking feature of the post-2000 redistricting is not only the continued - indeed, ever-increasing - vigor of partisan line drawing, but the array of doctrinal tools litigators and courts have invoked in attempts to rein it in: Article I; the First Amendment; the equal protection clause of the Fourteenth Amendment in a wide range of flavors; the Voting Rights Act of 1965; and a variety of state-law principles. We offer a preliminary reaction to the Court’s decisions in Vieth v. Jubelirer, 124 S.Ct. 1769 (2004), and Cox v. Larios, 124 S.Ct. 2806 (2004), that places those decisions in the broader context of the Court's failure to confront ends-oriented redistricting practices. In Vieth, four justices declared claims of excessive partisanship nonjusticiable. And yet, three of those justices were soon part of an eight-Justice majority that agreed in Larios to summarily affirm a lower court decision striking down a plan on the grounds that relatively small population deviations were constitutionally impermissible because they reflected blatantly partisan protection of Democratic incumbents while undermining Republican-held seats. Our central claims are two-fold. First, no matter how difficult judicial review of political gerrymandering claims may be, it is impossible actually to render such claims nonjusticiable. The availability of a range of unavoidable doctrinal claims means that a significant number of the partisan gerrymanders that courts find constitutionally offensive – whatever that term means, and whether it even has any agreed-upon meaning – will come before courts, and lack of candor about what courts are doing may carry its own costs. Second, the treatment of political gerrymander cases as a species of antidiscrimination claim obscures a central issue of democratic theory. The Supreme Court's initial refusal to enter the political thicket rested on its view that malapportionment suits challenge "not a private wrong, but a wrong suffered by [the state] as a polity." The Warren Court Reapportionment Cases responded by declaring that malapportionment claims "are individual and personal in nature." Ironically, both courts were half right. Claims of malapportionment are really not individual rights claims; they are claims about governmental structure. And yet, these claims are especially appropriate for judicial review. Forty years of doctrinal development has failed to take into account this central point. Partisan gerrymandering claims are treated as an assertion that a political party has been unfairly denied some number of seats. But given the near-universal practices of single-member legislative districts and incumbent protection, partisan gerrymandering cases seek essentially a reallocation of safe seats. The Court's recent opinions ignore almost entirely the question whether judicial intervention should be directed at entrenchment itself, rather than the question of who gets to be entrenched. If the Court's intervention is prompted by these latter sorts of claims, it may simply exacerbate the pathologies of our current redistricting process.

McCann on Consumer Choice Theory in Nutritional Labeling Michael A. McCann (Harvard University - Harvard Law School) has posted Economic Efficiency and Consumer Choice Theory in Nutritional Labeling (Wisconsin Law Review, November 2004) on SSRN. Here is the abstract:
    As more Americans consume fast food each year, more Americans are contracting serious diseases related to obesity. Considering that obesity ranks second behind tobacco use as the largest contributor to mortality rates in the United States, and also that it gives rise to greater publicly-funded health care expenses than does tobacco, this phenomenon begs the obvious question: To what extent does the growing consumption of fast food contribute to the obesity epidemic and the incidence of disease? If the answer indicates a meaningful contribution, a natural follow-up question then emerges: In a sensible legal system, what instruments would best ameliorate its effects? In attempting to answer these questions, this Article explores obesity as an economic occurrence, and how varying legal remedies may curtail its deleterious effects on the American economy. In doing so, this Article surveys the proportional causes of obesity, and it identifies fast food consumption as an essential element. In accordance with that finding, this Article ponders whether an absence of nutritional labeling has precipitated over-consumption, and how the law may be optimally utilized to minimize associated inefficiencies. A more specific roadmap may be constructed as follows: Part I appraises the primary determinants of obesity in the United States, as well as whether Americans knowingly contribute to their corpulence. This is an essential examination, since obesity has morphed into a material public expense, with taxpayers now bearing approximately half of the cost of the nation's girth. Through this analysis, Part I confirms the predictable: Most Americans already know that fast food consumption may impair their health. Yet, more engagingly, it also reveals that Americans often underestimate the extent of that impairment, in part because they tend to discount the negative contents of restaurant food. Accordingly, many Americans internalize a degree of risk less significant than the actual risk present, thus rendering their food decision-making process systematically optimistic. This is particularly evident amongst children, who prove uniquely sanguine. Part II then scrutinizes federal governmental choices when imposing food labeling requirements, as well as the extent of regulatory authority that has been delegated to the Food & Drug Administration ("FDA"). Significantly, the federal government has exempted all restaurants from food labeling requirements. The merits of such privilege bear query, since any exemption from product labeling presumes that consumers engage in rational assessment of associated risks. As explored in Part III, however, other relevant actors, such as the State of New York, have concluded otherwise, specifically that consumers often fail to engage in such rational assessment. While adhering to the confines of the federal labeling exemption, these actors have consummated voluntary agreements with fast food companies in hopes of efficiently engineering market incentives for nutritional disclosure. Similarly, certain industry participants, by offering "healthy" dishes, may implicitly signal the less nourishing content of their regular dishes. Thus, in order to fully evaluate the efficacy of the labeling exemption, the supplemental value of these existing and voluntary market influences must also be considered. Part IV turns to the emerging, though largely quixotic judicial remedies for Americans who have contracted obesity-related diseases, allegedly due to fast food consumption. Though such lawsuits have been dismissed as trivial by most commentators, they present an excellent vehicle for examining the comparative merits of prospective regulation and retrospective litigation. That is, they suggest something of a recurring miss: A discrete group of individuals appears uniquely inclined to over-consume fast food, thus intimating a traditional common law duty on the part of fast food companies to warn; yet, for purposes of establishing legal causation, identifying and quantifying the proportional causes for any one person's obesity and related-disease proves exceedingly difficult, if not impossible. Thus, such lawsuits continuously fail to satisfy the requisite contours of a tort claim, even though they raise meritorious concerns for social scientists and policy-makers alike. By applying Consumer Choice Theory to fast food consumption, Part V proposes a new theoretical framework that could both conceive a limited common law duty to warn of the dangers of over-consumption and, by immunizing a food seller from tort liability, reward compliance with such a duty. Specifically, this Article postulates revision of the Nutrition Labeling and Education Act of 1990 ("NLEA") to require the divulgence of nutritional information for all fast food items marketed for childhood consumption. In this narrowly tailored setting, the food decision-making process appears both uniquely optimistic and capable of correction, as parents often dictate or significantly influence the food consumption of their children, and in that particular decision-making process, they internalize an anomalously high value in nutrition and diminished tolerance of risk. In short, this form of nutritional labeling would prove uniquely efficacious. Accordingly, regulatory and judicial alternatives may be combined to most efficiently curtail the effects of fast food over-consumption on public health and tax-funded expenditures, while simultaneously removing from the American tort system a legally implausible, though factually credible claim.

Harris on the East India Company as a Deal Ron Harris (University of California, Berkeley - School of Law (Boalt Hall)) has postedThe Formation of the East India Company as a Deal between Entrepreneurs and Outside Investors on SSRN. Here is the abstract:
    The formation of chartered corporations is usually viewed as an agreement between their promoters and the State with payoffs in the form of monopoly rents, property rights, services or taxation. The present article analyzes the formation of the East India Company as a deal between two groups of investors: entrepreneurs with established interests in Asian trade who needed equity capital, and outside investors - European merchants, landowners and artisans. Insiders offered the outsiders voice, information and a unique exit option. This privately ordered institutional innovation allowed cooperation between investors in the absence of a share market in 1600 England.

Hayden on One Person One Vote Grant M. Hayden (Hofstra University - School of Law) has posted The False Promise of One Person, One Vote (Michigan Law Review, Vol. 102, p. 213, 2003) on SSRN. Here is the abstract:
    This article challenges the theoretical foundations of the right to cast an equally weighted vote. That right, most elegantly captured in the phrase "one person, one vote," was at the heart of the early reapportionment cases and has since become one of the hallmarks of democracy. One of the principal reasons for the success of the one person, one vote standard is that it appears to be a neutral or objective way of parsing out political power. Drawing on recent work in philosophy and economics on the nature of interpersonal utility comparisons, I demonstrate the normative character of the standard. I conclude that this well-settled legal principal is based upon a false promise of objectivity, one that has now come back to haunt us by divorcing the law from the reality of preference aggregation and preventing the development of a more complete theory of voting rights.

Tuesday, July 27, 2004
McCaffery & Baron Think About Tax Edward J. McCaffery and Jonathan Baron (University of Southern California Law School and University of Pennsylvania - Department of Psychology) have posted Thinking about Tax on SSRN. Here is the abstract:
    Behavioral economics and cognitive psychology have demonstrated that people deviate from ideal precepts of rationality in many settings, showing inconsistent judgment in the face of framing and other formal manipulations of the presentation of problems. This article summarizes the finding of original experiments about subjects' perceptions of aspects of tax-law design and argues for the relevance of behavioral perspectives to the understanding and improvement of real-world fiscal systems. We show that in evaluating tax systems, subjects are vulnerable to a wide range of heuristics and biases, leading to inconsistent judgment and evaluation. The prevalence of these biases suggests that there is room for skillful politicians to manipulate public opinion, and that tax-system design can be volatile on account of the possibility of eliciting preference reversals through purely formal rhetorical means. More troubling, the findings suggest a likely and persistent wedge between observed and optimal public finance systems.

Horwitz on Grutter Paul Horwitz (University of San Diego - School of Law and Southwestern University School of Law) has posted Grutter's First Amendment on SSRN. Here is the abstract:
    Most of the reaction to the Supreme Court's decision affirming the law school affirmative action policy at issue in Grutter v. Bollinger has focused on its Fourteenth Amendment implications. But Grutter also raises significant First Amendment issues. By reaffirming a First Amendment value of "educational autonomy," the Grutter Court raised a host of questions with implications not only for the constitutional law of academic freedom, but for First Amendment jurisprudence generally. This article therefore puts the Fourteenth Amendment to one side and provides a detailed analysis of the First Amendment implications of Grutter. Some of the consequences of the Court's approach in Grutter are surprising. If Grutter is read as recognizing a strong constitutional value of deference to educational decisions, a variety of ongoing constitutional controversies might be decided differently. I trace this possibility through discussions of current issues including the constitutionality of campus hate speech codes, the permissibility of single-sex or single-race education, and the current litigation over the Solomon Amendment, which penalizes schools (including law schools) that bar on-campus military recruiters. Grutter may also be read as suggesting that the Court does not value educational autonomy as such, but rather a particular vision of higher education, in which universities are valued for their contribution to democratic legitimacy. This reading, too, has significant implications. It offers a substantive vision of First Amendment values that, in many respects, is at odd with the approach taken by the Justices elsewhere in the jurisprudence of the First Amendment. And it raises deep questions about the imperfect fit between the Court's vision of academic freedom and the contested understanding of academic freedom outside the courts. My exploration of Grutter's First Amendment culminates in an extended treatment of what I consider its most powerful implication. Grutter may be read as a groundbreaking acknowledgment by the Court of the importance of what I call "First Amendment institutions" - institutions such as universities, the press, libraries, and other entities that play a central role in public discourse and democratic culture. I argue that Grutter steps away from the usual, more formalist pattern of First Amendment jurisprudence and instead recognizes that the law ought to be responsive to and respectful of the unique role these institutions play in society, and should allow them a substantial degree of autonomy to shape their own norms and practices. In that sense, this article argues for an approach to First Amendment law that builds on a growing school of scholarship advocating an experimentalist approach to constitutional law. Ultimately, the article is intended to spark a broader debate about the nature and role of First Amendment institutions within our constitutional culture and the complex relationship between constitutional law and constitutional culture. Finally, it is a plea for the inclusion of Grutter within the First Amendment canon as well as the Fourteenth Amendment canon.

Conference Announcement: Impact of the Presidential Elections
    The UCI History Department and Whittier Law School are sponsoring a conference on October 26 and 27 on the impact of presidential elections on the Supreme Court. Eric Foner and Willy Forbath, among others, will make presentations. Slots for presenters and commentators are available. Contact Dean Neil Cogal ( for further information.

New from Law and Politics Book Review
    COLLECTIVE INSECURITY: THE LIBERIAN CRISIS, UNILATERALISM, AND GLOBAL ORDER, by Ikechi Mgbeoji. University of British Columbia Press, 2004. 200pp. Paper. £16.95 / CDN$ 32.86 / US $24.95. ISBN: 0774810378. Hardcover. £53.95 / CDN$ 80 / US $80. ISBN: 077481036X. Reviewed by Ronald C. Slye.
    THE RULE OF LAW IN AMERICA, by Ronald A. Cass. Baltimore: Johns Hopkins University Press, 214 pp. 2003, Paper. $19.95. ISBN:0-8018-7441-6. 2001, Cloth $32.50. ISBN 0-8018-6728-2. Reviewed by John Brigham.
    TOWARDS JURISTOCRACY: THE ORIGINS AND CONSEQUENCES OF THE NEW CONSTITUTIONALISM, by Ran Hirschl. Cambridge: Harvard University Press, 2004. 294pp. Cloth $49.95. ISBN: 0-674-01264-X. Reviewed by Mark Rush.
    DIRECTIONS IN SEXUAL HARASSMENT LAW, by Catharine A. MacKinnon and Reva B. Siegel(eds.). New Haven: Yale University Press, 2003. 752pp. Cloth. $50.00. ISBN: 0-300-09800-6. Reviewed by Kathleen S. Sullivan.

Monday, July 26, 2004
Stout on the Nature of the Corporation Lynn A. Stout (University of California, Los Angeles - School of Law) has posted On the Nature of Corporations on SSRN. Here is the abstract:
    Legal experts traditionally distinguish corporations from unincorporated business forms by focusing on such corporate characteristics as limited shareholder liability, centralized management, perpetual life, and freely transferred shares. While this approach has value, this essay argues that the nature of the corporation can be better understood by focusing on a fifth, often-overlooked, characteristic of corporations: their capacity to lock in equity investors' initial capital contributions by making it far more difficult for those investors to subsequently withdraw assets from the firm. Like a tar pit, a corporation is much easier for equity investors to get into, than to get out of. An emerging school of theorists has begun to explore the implications of this idea for corporate law and practice. The idea is still novel enough to lack a uniformly-accepted label - in addition to the phrase capital lock-in, scholars have described this aspect of incorporation as affirmative asset partitioning, the absence of a repurchase condition, and asset separation from shareholders. Whatever label one chooses, the idea shows great promise for illuminating a variety of thorny problems that have long troubled corporate scholars and practitioners. In illustration, this essay considers how the idea of capital lock-in sheds light on three corporate mysteries: the sui generis nature of corporate directors' fiduciary duties; the rise of the large modern service partnership; and lawmakers' enthusiasm for meddling with corporate governance rules.

Brady on the Lessons of Smith Kathleen Brady (Villanova University - School of Law) has posted Religious Organizations and Free Exercise: The Surprising Lessons of Smith (Brigham Young University Law Review, Forthcoming) on SSRN. Here is the abstract:
    Much has been written about the protections afforded by the Free Exercise Clause when government regulation impacts the religious practices of individuals, and if one looks for guidance from the Supreme Court, the rules are fairly clear. Prior to 1990, the Supreme Court had long employed a balancing approach that afforded - at least in theory - significant relief. Under this approach individuals were entitled to exemptions from laws which substantially burdened religious conduct unless enforcement was justified by a compelling state interest. In 1990, in Employment Division v. Smith, the Supreme Court abandoned this balancing test for all but a few categories of cases. Under the Court's new rule, the Free Exercise Clause does not excuse individuals from compliance with neutral, generally applicable laws that are not intended to burden religious exercise. Relief is only appropriate where laws are designed to thwart religious exercise. The judicial landscape is much different when one turns to the free exercise rights of religious organizations. Government regulation frequently impacts the activities of religious groups, and clashes between religious organizations and regulators are common. Surprisingly, however, the Supreme Court has never directly addressed the scope of free exercise protections when government regulation interferes with the internal affairs of religious groups. There are cases involving religious organizations, to be sure, but in none of these cases has the Court addressed neutral government regulation that directly impinges upon internal church affairs. This article begins by identifying three possible approaches to such regulation, all of which can be supported indirectly by Supreme Court precedent. The article then examines the Supreme Court's decision in Smith for guidance in choosing from among them. For some courts and scholars, the meaning of Smith for religious groups is simple: religious groups, just like religious individuals, are not entitled to special exemptions from neutral state action. For others, however, Smith is not relevant at all to the free exercise rights of religious groups, and they look to other lines of Supreme Court precedent for appropriate standards. My examination of Smith reveals that Smith is not only relevant to an analysis of religious group rights but is also very helpful for choosing among the available options. The opinion in Smith raises a number of issues that clarify what is at stake in making this choice, and its lessons are surprising. When read carefully, Smith supports a broad right of church autonomy that prohibits government interference with internal church affairs regardless of whether the interference is intentional and regardless of whether the activities affected are religious in nature or more mundane matters.

Wilkins on Diversity David B. Wilkins (Harvard University - Harvard Law School) has posted From 'Separate is Inherently Unequal' to 'Diversity is Good for Business': The Rise of Market-Based Diversity Arguments and the Fate of the Black Corporate Bar (Harvard Law Review, Vol. 117, No. 5, March 2004) on SSRN. Here is the abstract:
    Fifty years after John W. Davis, one of America's premier corporate lawyers, took on the defense of segregation in Brown v. Board of Education as a pro bono case, corporate America appears to have firmly embraced the mantra that diversity is good for business. In this Article, I examine this surprising turn of events by investigating the rise of market-based diversity arguments in the legal profession itself. Specifically, I examine how black lawyers seeking to integrate corporate law firms have increasingly staked their claim on the contention that diversity is good for the business of law firms and clients. Although it is not surprising that diversity advocates have been drawn to such arguments, I argue that whether these claims will actually produce greater opportunities for black lawyers - and whether the resulting diversity will in turn further Brown's other goal of promoting social justice through law for all Americans - depends upon a closer examination of the connection between diversity and business than most proponents of the business case for diversity in the legal profession have been willing to undertake or even to acknowledge. As a preliminary matter, advocates must confront the profession's deep commitment to the idea that it is actually homogeneity that best serves firms and clients - a commitment that may be even harder to shake in law firms than it apparently has been in corporate America. At the same time, advocates must also be aware of the danger that market-based diversity arguments will encourage various forms of race-matching, pigeonholing, and moral evasion that can end up harming the cause of diversity by marginalizing and alienating minority lawyers. Ironically, taking note of these complexities may also hold the key to making progress on Brown's social justice goals as well. Integrating the corporate bar is a social justice issue of considerable importance. Nevertheless, if bringing diversity to the elite ranks of the American legal profession is going to do more than accentuate the yawning gap between the legal haves and have-nots, then those who come to occupy these positions of power must have normative commitments that both shape and constrain the business interests of their powerful clients. Contrary to the gloomy predictions of diversity advocates who urge abandoning social justice arguments for diversity altogether, however, there are good reasons to believe that black lawyers who maintain a normative understanding of diversity that goes beyond corporate self-interest may, paradoxically, have important advantages in building a credible business case for diversity in their own careers. This paper is part of a symposium on the fiftieth anniversary of Brown v Board of Education held at Harvard Law School on April 15, 2004 in which Richard Ford, Molly McUsic, Frank Michelman, Juan Perea, and Reva Siegel also contributed articles. The Symposium papers were published in Volume 117, Number 5 (March 2004) of the Harvard Law Review and can be obtained from the law review's web site.

Spindelman on Lawrence v. Texas Marc Spindelman (Ohio State University - Michael E. Moritz College of Law) has posted Sodomy Politics in Lawrence v. Texas (Jurist, June 12, 2003) on SSRN. Here is the abstract:
    This essay - originally published before the Supreme Court issued its decision in Lawrence v. Texas - examines the gay rights litigation strategy pursued in the case, and questions its sexual politics from a sex equality perspective.

Sunday, July 25, 2004
Ethical Internalism Check out A Problem for Ethical Internalism by Uriah Kriegel on Desert Landscapes. Here's a taste:
    Suppose Racist and Tolerant are trans-world counterparts living, respectively, in W1 and W2. Their external lives are identical. Every action performed by Racist in her life was performed at the exact same time in identical circumstances by Tolerant. Furthermore, every intention, desire, plan, or other pro-attitude Racist had was had (again, at the same time and in identical circumstances) by Tolerant. There is only one difference between Racist and Tolerant. Racist *believes* that blacks are inferior to whites, whereas Tolerant *believes* that they aren’t. That’s the only difference. Their beliefs have never issued in different actions or even intentions, since ex hypothesi their actions and intentions have been identical throughout their life. There is an intuition that Tolerant is morally better than Racist, and that she has led a morally better life. There is also the intuition that the tale of Racist and Tolerant is perfectly coherent.

Welcome to the Blogosphere . . . to the Ethical Werewolf link courtesy of the Leiter Reports.

Saturday, July 24, 2004
Legal Theory Bookworm The Legal Theory Bookworm recommends Objectivity in Law and Morals edited by Brian Leiter. Here's the blurb:
    The seven original essays included in this volume offer a sophisticated perspective on issues about the objectivity of legal interpretation and judicial decision-making. They examine objectivity from both metaphysical and epistemological perspectives and develop a variety of approaches, constructive and critical, to the fundamental problems of objectivity in morality. This is the first volume to consider the intersection between objectivity in ethics and the objectivity in law. It presents a state-of-the-art survey of live issues in metaethics, and examines their relevance to theorizing about law and adjudication.
This is the state of the art collection on this important topic. Highly recommended!

Download of the Week This week, the Download of the Week is Barnett and the Constitution We Have Lost (forthcoming University of San Diego Law Review) on SSRN by Stephen M. Griffin (Tulane). Here is the abstract:
    This is a review essay of Randy Barnett's book Restoring the Lost Constitution: The Presumption of Liberty (Princeton University Press, 2004). I consider Barnett's libertarian theory of constitutional law in three stages. In Part I, I criticize the external theory of political legitimacy that Barnett applies to the Constitution. I argue that this theory had nothing to do with the actual reasons the Constitution was accepted as legitimate when it was ratified. In Part II, I focus on Barnett's theory of constitutional interpretation and his account of the necessary and proper clause, the foundation of the presumption of liberty. I also critique Barnett's treatment of the Lochner era. In Part III, I examine Barnett's approach to governmental power under the Constitution, particularly with respect to the commerce clause and the state police power.
An earlier version of this marvelous review was delivered at the Annual Meeting of the Association of American Law School's in January. Highly recommended. Download it while its hot!

Friday, July 23, 2004
Trachtman on Cyberterrorism Joel P. Trachtman (Tufts University - The Fletcher School) has posted Global Cyberterrorism, Jurisdiction, and International Organization on SSRN. Here is the abstract:
    This paper analyzes the jurisdictional and organizational facets of international security against cyberterrorism. This is a "nested," iterative, and recursive analysis, which requires assessment or assumptions regarding goals at one level in order to move on to the next level. In order to examine the need for, and potential structure of, international cooperation to combat cyberterrorism, it is necessary first to examine several subsidiary questions. First, to what extent, and in what contexts, is governmental regulation appropriate to combat cyberterrorism? This is the first level of the subsidiarity analysis: is government action necessary? Second, to what extent, and in what contexts, is domestic government, while possibly necessary, insufficient to combat cyberterrorism? This is a second level of subsidiarity analysis: is local regulation sufficient/ is international cooperation necessary? Third, what form shall international cooperation take: should it be in the form of ad hoc or non-legal and non-organizational relationships among states, or should it be in the form of more formal law or organization? Fourth, what should be the content or responsibilities of this more formal law or organization? This paper cannot answer these questions, but it suggests an analytical framework that may be used to address these questions in a broader research project. Where regulation is called for, the next question is a choice of levels of regulation: sub-national, national, regional, international law or international organization. This paper provides a brief analysis of the problem of allocation of authority - of jurisdiction - over different components of cyberspace, both horizontally and vertically. This analysis is dependent on the particular facts of cyberspace and threats to cybersecurity. This analysis uses tools from property rights theory, regulatory competition theory, and game theory. Next, this paper examines some potential sources of analogy to the international problem of security against cyberterrorism. These sources of analogy include arrangements to control cybercrime, arrangements to control financing of terrorism, and security arrangements for ocean transport.

Josephs on Apology in International and Comparative Law Hilary K. Josephs (Syracuse University College of Law) has posted The Remedy of Apology in Comparative and International Law: Self-Healing and Reconciliation (Emory International Law Review Emory International Law Review, Vol. 18, 2004, pages 53-84) on SSRN. Here is the abstract:
    This Article explores the role of apology in both the comparative and international context, building upon the pioneering analysis of Hiroshi Wagatsuma and Arthur Rosett. From their observation of Japanese and American societies, Wagatsuma and Rosett theorize that apology made with sincerity and commitment is an effective form of dispute resolution across cultures. Lawsuits might be avoided entirely if people apologize to those they have wronged. This thesis is extended to the realm of international law and international relations. Two judicial opinions, one by a Japanese court and the other by the International Court of Justice, are offered in support of the proposition that the bombings of Hiroshima and Nagasaki constituted grave violations of the law of armed conflict. This Article proposes that the United States initiate a cycle of virtue and formally apologize to Japan for the dropping of the atomic bombs. Such action would serve to exorcise deep-seated guilt and to regain respect from the international community.

Call for Papers: Social Justice in a Changing World
    Call for Papers "Social Justice in a Changing World" Interdisciplinary Conference Graduate School of Social Sciences at the University of Bremen (GSSS) Bremen (Germany) March 10-12th, 2005 A growing number of experts in economics, political science and sociology believe that the freedom of action of the nation-state in coping with issues of distributive justice is waning. Current processes of economic privatisation and globalization shift power over distribution from the state toward 'capital' and markets. What are the implications for social justice? The conference will explore the risks and options of privatized markets and transnational regimes for social justice from different theoretical and empirical perspectives. Plenary speakers: Karen Cook; Nancy Fraser; Bo Rothstei; Joel Rogers; Leo Montada; Michael Zürn. Panels: - Education and Social Justice - 'Just' Health Care - Migration and Social Justice - Gender and Justice - 'Just' Work and Participation - Paternalism and Social Justice - Income, Wealth and Social Justice - Justice and the Global Economic Order - Social Justice and the Right to Welfare - Intergenerational Justice in the Welfare State - Justice and Global Social Policy - Social Justice: What the People Think - 'Just' Borders: Freedom of Movement, Migration and Security - Justice and Taxation - The Changing Role of the Welfare State The abstract deadline is November 30th, 2004. For more information on registration, panels, accommodation etc. please visit the conference website:

Call for Papers: Journal of Social Philosophy
    Journal of Social Philosophy Published by Blackwell Publishing on behalf of The North American Society for Social Philosophy The purpose of the journal is to facilitate communication among those interested in the topic of social philosophy without being committed to any particular school or method of philosophy. The journal is wide-ranging, peer-reviewed, and has published some of the most distinguished scholars in social philosophy. In addition to four issues per year of the Journal of Social Philosophy, institutional subscribers receive the acclaimed annual publication Midwest Studies in Philosophy, edited by Peter A. French and Howard K. Wettstein. The 2004 volume is The American Philosophers. Print ISSN: 0047-2786 Online ISSN: 1467-9833 Kathy Agne Managing Editor, Journal of Social Philosophy University of South Florida 601 4th Street S., CRI 1008 St. Petersburg, FL 33701 Content available by subscription. Free sample issue available online. See: Current Issue: Volume 35: Issue 2, June 2004

Call for Papers: Liberalism, Feminism and Multiculturalism
    Call for Papers "Liberalism, Feminism and Multiculturalism" Essays in Philosophy. A Biannual Journal Volume 7, Number 1 Issue date: January 2006 Submission deadline: 15 October 2005 Editor: Randy Cagle, Minnesota State University Journal Page: Since the publication of Rawls's "A Theory of Justice" in 1971, a number of critiques of liberal theories of justice as advanced by Rawls and others have been formulated. Recently, some of the most important critiques have come from feminist and multicultural perspectives. Some feminists have argued that liberal theories, because of their abstract models of justice and individual rights, are unable to accommodate and protect the rights necessary for women to achieve real equality with men: reproductive rights for example, or rights for women of color. Similarly, multicultural critiques accuse liberalism of being unable to make room for collective rights, particularly rights for various minority groups. This issue of Essays in Philosophy welcomes papers on all topics from feminist and multicultural critiques of philosophy as well as defenses of liberalism against such critiques. Papers regarding the relationship between liberal theories of justice and rights, and the alleged need for specific women's and minorities' rights are especially welcome. All submissions should be sent to the General Editor via Email:

Conference Announcement: The Practice of Law-making and the Problem of Difference
    Conference Announcement "The Practice of Law-making and the Problem of Difference" International Conference in Social and Political Philosophy Philosophy Department, University of Guelph Guelph, Ont. (Canada) 13-14 November 2004 This conference is an international and interdisciplinary gathering focusing on the theme of “The Practice of Law-making and the Problem of Difference”. The increasing diversity of liberal-democratic states and corresponding demands of recognition have forced political theorists of various camps to reformulate their account of how to approach the goal of solidarity. Despite variation in their accounts, the majority of these theorists hold that modern constitutions can recognize and accommodate cultural diversity. For example, liberal culturalists speak about common history and language and shared law-making as the ties that bind us in multicultural societies; critical theorists speak about the principle of universalization in constitutional norms that are sensitive to difference by virtue of procedures of law-making; and minority rights theorists invoke constitutional conventions of mutual recognition, continuity, and consent in order to accommodate cultural diversity in contemporary societies. Hence, one can speak of a convergence of political ideas around the thesis of constitution-making in diverse societies as capable of fostering solidarity. Our aim in this conference is to further explore these different perspectives, and to consider their areas of agreement and disagreement. Participants include some of the most important and influential writers on questions of constitutionalism and diversity, including James Tully, ill Kymlicka, Andrew Arato, Jeremy Waldron, Charles Taylor, Michel Rosenfeld, Douglas Moggach, Thomas McCarthy, Courtney Jung, Melissa Williams, Kenneth Baynes, Simone Chambers. Contact: Prof. Omid Payrow Shabani Philosophy Department University of Guelph N1G2W1 Guelph, ON. Canada Phone +1 (519) 824-4120 x 53201 Email: Website:

Call for Papers: Ratio Juris
    Ratio Juris: An International Journal of Jurisprudence and Philosophy of Law Published by Blackwell Publishing in conjunction with the University of Bologna Ratio Juris is a leading international journal of philosophy of law and general jurisprudence. It provides a truly international and trans-cultural forum for the communication of philosophical ideas about law and legal questions. Ratio Juris is open to scholars from all backgrounds and traditions, philosophical, political cultural and linguistic. Ratio Juris covers classical topics such as: the nature of law; law and morality; justice; rightness and natural law; law and reason; the logic of norms; artificial intelligence and law; law and language; legal obligation; rights validity and the legitimacy of law; the rule of law; legal epistemology; rules and principles; rules and acts; legal reasoning; interpretation; deontic logic and expert systems in law. Print ISSN: 0952-1917 Online ISSN: 1467-9337 Professor C. Faralli RATIO JURIS Istituto Giuridico A. Cicu Universit. di Bologna Via Zamboni 27/29 I-40126 Bologna ITALY Content available by subscription. Free sample issue available online. See: Current issue: Volume 17: Issue 2, June 2004 Date: 21 July 2004

Call for Papers: Pluralism: Exploring Critical Issues
    Call for Papers "Pluralism: Exploring Critical Issues" 2nd Global Conference Inter-Disciplinary.Net Vienna (Austria) 6-8 December 2004 This inter-disciplinary and multi-disciplinary research and publications project is a critical examination of the theme of 'pluralism' and the challenges it is posing across the world today. Pluralism has unleashed a reaction of paradigm consolidation in political, economic, social, religious and cultural areas that are having a major impact on all aspects of our lives. In particular, the theme of the second conference is "Managing Pluralism". The significance of this theme is the special importance given to finding ways to manage processes, structures and processes differently. The theme is both timely and significant as tendencies to pull in different directions are causing tremendous frustrations amongst policy makers, administrators and recipients. There is a cry for “doing things differently” but there is an intellectual vacuum that the conference is intending to fill, namely, how to do things differently in the light of existence of pluralism. The conference seeks to learn and inform from both successful and unsuccessful attempts to better manage pluralism. Pluralism in the context of this conference is conceptualized as being related to context rather than direction. It is not about differences but about alternatives. Papers, presentations, reports and workshops are warmly invited on any of the following central themes (or their combinations): 1. Knowledge Pluralism 2. Ecological Pluralism 3. Managerial Pluralism 4. Designing Pluralism 5. Political Pluralism 6. Social, Cultural and Economic 7. Religious Pluralism Papers will be considered on any related theme. 300 word abstracts should be submitted by Friday 3rd September 2004. If accepted for presentation, 8 page draft conference papers should be submitted by Friday 19th November 2004. 300 word abstracts should be submitted to the Organising Joint Chairs; abstracts may be in Word, WordPerfect, PDF or RTF formats. Dr Rob Fisher Inter-Disciplinary.Net Priory House 149B Wroslyn Road Freeland, Oxfordshire OX29 8HR Email: Dr Makere Stewart-Harawira Director, Association for Research, Analysis & Change Networking Ltd Auckland, New Zealand Email: Dr. Siva Ram Vemuri School of Law and Business Charles Darwin University Australia Email: One ISBN eBook and one themed hard copy volume is in preparation from the previous meeting of this conference project. All papers accepted for and presented at this conference will be published in an ISBN eBook. Selected papers will be developed for publication in a themed hard copy volume. For further details about the project, please go to: For further details about the conference, please go to:

Conference Announcement: The 2004 Election: What Does it Mean for Campaigns and Governance?
    October 8, 2004. The USC-Caltech Center for the Study of Law and Politics and the Initiative and Referendum Institute at USC have organized a conference called "The 2004 Election: What Does it Mean for Campaigns and Governance?" Held at the USC Law School on the eve of the election, the conference will bring leading scholars in law, political cience, economics, and public communication together with people working in politics and campaigns to discuss major trends that are evident in the November election and that will shape politics into the next decades. The conference will include a keynote address delivered by Senator Bob Graham of Florida during lunch. The day-long conference will consist of four panels on the following topics: Campaigns under BCRA; Political Communication, the Media, and the Internet; the Role of Initiatives and Referendums in the Election; and Polarized Voters and Politics. Each panel will be a mix of scholars and political commentators (including Vice-Chair Ellen Weintraub of the Federal Election Commission), and we anticipate a lively discussion among the panelists and the audience. IThe schedule of the conference at this webpage:
      Friday, October 8; USC Law School Room 1 Keynote Address: Senator Bob Graham (D-FL), to be given at lunch Panels The First Campaign under BCRA's Rules Ellen Weintraub, Vice-Chair of the Federal Election Commission D. Bruce La Pierre, Professor of Law, Washington University -- St. Louis; Counsel for Respondents in Nixon v. Shrink Missouri Government PAC David Magleby, Distinguished Professor of Political Science, BYU; Director, Center for the Study of Elections and Democracy Spencer Overton, Associate Professor of Law, George Washington University Law School Moderator: Elizabeth Garrett, Professor of Law, USC; Director, USC-Caltech Center for the Study of Law and Politics The Initiative and Referendum Process Garry South, political consultant; former Senior Political Advisor to Governor Gray Davis (D-CA) and the presidential campaign of Sen. Joseph Lieberman (D-CT) Tracy Gordon, Research Fellow, Public Policy Institute of California John Matsusaka, Professor of Business and Law, USC; President, Initiative and Referendum Institute at USC Daniel Smith, Associate Professor of Political Science, University of Florida Moderator: M. Dane Waters, Founder and Chairman of the Board, Initiative and Referendum Institute at USC Polarized Voters and Politics Mickey Edwards, Lecturer of Public and International Affairs, Woodrow Wilson School, Princeton University; former Member of the U.S. House of Representatives (R-OK) R. Michael Alvarez, Professor of Political Science, Caltech; Associate Director, USC-Caltech Center for the Study of Law and Politics Gary Jacobson, Professor of Political Science, University of California--San Diego Janelle Wong, Assistant Professor of Political Science, USC Moderator: Ann Crigler, Professor of Political Science, USC; Director, Jesse M. Unruh Institute of Politics Political Communications, the Media and the Internet David Brock, President and CEO, Media Matters for America John Fund, Editorial Board of the Wall Street Journal Thomas Hollihan, Professor and Associate Dean for Academic Affairs, Annenberg School for Communication, USC Vincent Price, Steven H. Chaffee Professor of Communication and Political Science, University of Pennsylvania Moderator: D. Roderick Kiewiet, Professor of Political Science, Caltech Concluding Cocktail Party and Watch Party for the First Presidential Debate
    For additional information, contact: Elizabeth Garrett Professor of Law, University of Southern California Law School Director, USC-Caltech Center for the Study of Law and Politics Board of Directors, Initiative and Referendum Institute at USC 699 Exposition Blvd. Los Angeles, CA 90089

Thursday, July 22, 2004
Barnett on the Moral Foundations of Libertarianism Randy E. Barnett (Boston University) has posted The Moral Foundations of Modern Libertarianism on SSRN. Here is the abstract:
    Libertarians no longer argue, as they once did in the 1970s, about whether libertarianism must be grounded on moral rights or on consequences; they no longer act as though they must choose between these two moral views. In this paper, I contend that libertarians need not choose between moral rights and consequences because theirs is a political, not a moral, philosophy; one that can be shown to be compatible with various moral theories, which is one source of its appeal. Moral theories based on either moral rights or on consequentialism purport to be "comprehensive," insofar as they apply to all moral questions to the exclusion of all other moral theories. Although the acceptance of one of these moral theories entails the rejection of all others, libertarian moral rights philosophers on the one hand, and utilitarians on the other, can embrace libertarian political theory with equal fervor. I explain how can this be and why it is a strength rather than a weakness of libertarian political theory. Conservatives, neoconservatives, and those on the left who seek to impose by force their comprehensive conception of "the good" neglect the problem of power - an exacerbated instance of the twin fundamental social problems of knowledge and interest. For a comprehensive moralist of the right or left, using force to impose their morality on others might be their first choice among social arrangements. Having another's comprehensive morality imposed upon them by force is their last choice. The libertarian minimalist approach of enforcing only the natural rights that define justice should be everyone's second choice. A compromise, as it were, that makes civil society possible. And therein lies its imperative.
Barnett is the leading exponent of libertarian legal theory. Highly recommended!

Shah & Kesan on the Role of Institutions in Shaping Communications Technology Development Rajiv C. Shah and Jay P. Kesan (University of Illinois at Urbana-Champaign - Institute of Communications Research (ICR) and University of Illinois College of Law) have posted Recipes for Cookies: The Role of Institutions in Shaping the Development of Communication Technologies on SSRN. Here is the abstract:
    The ability of communication technologies to affect societal concerns, such as privacy, is widely recognized. This paper argues a central factor in how a technology affects a societal concern stems from its institutional origin. The case study of the cookies technology, which allows web sites to maintain surveillance on its visitors, shows the differing influences of universities, firms, and consortia. Each of these institutions acted according to their own norms and processes and differentially shaped the cookies technology. The result suggests societal institutions act in a systematic and predictable fashion in shaping how communication technologies affect fundamental societal concerns.

Garnett on the State's Interest in the Development of Religious Doctrine Richard W. Garnett (University of Notre Dame - Law School) has posted Assimilation, Toleration, and the State's Interest in the Development of Religious Doctrine (UCLA Law Review, Vol. 51, No. 1, 2004) on SSRN. Here is the abstract:
    Thirty-five years ago, in the context of a church-property dispute, Justice William Brennan observed that government interpretation of religious doctrine and judicial intervention in religious disputes are undesirable because, when "civil courts undertake to resolve [doctrinal] controversies..., the hazards are ever present of inhibiting the free development of religious doctrine and of implicating secular interests in matters of purely ecclesiastical concern." This statement, at first, seems wise and fittingly cautious, even unremarkable and obvious. On examination, though, it turns out to be intriguing, elusive, and misleading. Indeed, Justice Brennan's warning presents "hazards" of its own, and its premises - if uncritically embraced - can subtly distort our constitutional discourse. This Article provides a careful and close examination of the statement's premises and implications, and concludes that, far from being a "purely ecclesiastical concern," the content of religious doctrine and the trajectory of its development are matters to which even a secular, liberal, and democratic government will almost certainly attend. It is not the case that governments like ours are or can be "neutral" with respect to religion's claims and content. As this Article shows, the content, meaning, and implications of religious doctrine are and have long been the subjects of government power and policy. Secular, liberal, democratic governments like ours not only take cognizance of, but also and in many ways seek to assimilate - that is, to transform - religion and religious teaching. And, it is precisely because such governments do have an interest in the content, and, therefore, in the "development," of religious doctrine - an interest that they will, if permitted, quite understandably pursue - that authentic religious freedom is so fragile.

Liu on Regulatory Copyright Joseph P. Liu (Boston College - Law School) has posted Regulatory Copyright (North Carolina Law Review, Forthcoming) on SSRN. Here is the abstract:
    This Article explores and examines the implications of the increasingly regulatory nature of U.S. copyright law. For many years, U.S. copyright law operated under a judicially-administered, industry-neutral property rights regime. Congress set the scope of the property entitlement, leaving the courts to enforce the entitlement and the markets to organize the production of creative works in light of the entitlement structure. In recent years, however, Congress has shown an increasing willingness to intervene more directly in the structure of copyright markets. Congress's most recent legislative efforts are far more complex and industry-specific, allocate rights and responsibilities in a far more detailed manner, and in some cases directly regulate technology and prices in the market. This Article examines and critically evaluates this trend. It first makes the descriptive claim that this kind of regulatory copyright has become increasingly the preferred, and indeed perhaps dominant, mode of copyright lawmaking. It then critically assesses both the strengths and weaknesses of this approach in the copyright law context, applying insights from the broader literature. Finally, it offers suggestions for both being more selective in deploying this mode of copyright lawmaking and improving the function of such lawmaking in cases where it is deployed.

Vanneste et al on Commons & Anticommons Sven Vanneste , Alain Van Hiel , Francesco Parisi and Ben Depoorter (Universiteit Gent , Universiteit Gent , George Mason University School of Law and Yale University - Law School) have posted From 'Tragedy' to 'Disaster': Welfare Effects of Commons and Anticommons Dilemmas on SSSR. Here is the abstract:
    Recently, a new concept, the anticommons dilemma, has been introduced in economic literature. In an anticommons property regime, multiple co-owners have the right to exclude one another from benefiting from a common resource. The economic literature has unveiled symmetry between commons and anticommons problems. Our experimental results reveal an interesting asymmetry. Anticommons situations generate greater opportunistic behavior than an equivalent commons dilemma (Study 1), and anticommons dilemmas yield a greater risk for underuse compared to commons dilemmas (Study 2). It was therefore concluded that anticommons might be considered as having even more severe and problematic consequences than the commons dilemma.

Goldberg on Tort Law for Federalists John C.P. Goldberg (Vanderbilt University - School of Law) has posted Tort Law for Federalists (and the Rest of Us): Private Law in Disguise (Harvard Journal of Law & Public Policy, Vol. 28, 2004) on SSRN. Here is the abstract:
    This essay argues in favor of understanding tort law as a law of private redress, rather than public regulatory law. Part I uses the U.S. Supreme Court's 2003 decision on punitive damages in State Farm Mut. Ins. Co. v. Campbell to demonstrate some of the weaknesses of public law conceptions of tort, and some of the strengths of a private law conception. Part II maintains that a private law model need not be associated with formalist reasoning, an elevation of common law over statute, or political conservatism.

Sanchirico & Triantis on the Verifiability of Contract Performance & the Fabrication of Evidence Chris William Sanchirico and George G. Triantis (University of Pennsylvania - Law School & Wharton School and University of Virginia School of Law) have posted Evidentiary Arbitrage: The Fabrication of Evidence and the Verifiability of Contract Performance on SSRN. Here is the abstract:
    Contract theory identifies verifiability as a critical determinant of the incompleteness of contracts. Although verifiability refers to the cost of proving relevant facts to a court, very little scholarship connects explicitly the evidentiary process to the drafting of substantive contract terms. This paper begins to explore this relationship to provide a more rigorous explanation of contract design. In particular, the paper concerns the very core of verifiability – truth-finding by a court – and examines the impact of the prospect of evidence fabrication on contracting. It thereby also explores the puzzling tolerance of the adjudicatory system for fabrication and the incentives to fabricate created by thresholds in burdens of proof. The paper suggests that, despite undermining truth-finding, evidence fabrication may be harnessed by contracting parties to improve the (evidentiary) cost-efficiency of performance incentives in their relationship.

Moore on Worthless Patents Kimberly A. Moore (George Mason University School of Law) has posted Worthless Patents on SSRN. Here is the abstract:
    This article presents the first empirical analysis of patent value by examining renewal rate data for nearly 100,000 patents. Finding that 53.7% of all patentees allow their patents to expire for failure to pay maintenance fees confirm common perceptions of patent issuance being a poor measure of innovation value. Even more interesting is the finding that patents which expire for failure to pay maintenance fees share some common identifiable characteristics. In particular, we found that renewed patents had more claims, cited more prior art, received more citations, had more related applications, had more inventors, and spent longer in prosecution. We also found that renewal rates varied both by assignee (individual versus corporation) and (foreign versus domestic) and by technology. By providing a means of systematically identifying worthless patents and their ex ante characteristics, this article compliments the author's earlier work on identifying valuable patents by comparing litigated and issued patents. Renewal rate data, however, seems a better predictor of value than litigation data as renewal rate data captures the many ways a patent may be of private value to its owner such as revenue generation via licensing or litigation, defensively, or for signaling purposes. Hence, rather than analyzing a subset of really valuable patents (those that are litigated) which may or may not be representative of all valuable patents, analysis of renewal rate data captures the population of valuable patents.

Conference Announcement: Particularism
    Dear colleague, we are writing to invite you to the 2005 Bled Philosophical Conference. The conference on "Particularism" will take place June 13-17, 2005 at the Kompas Hotel in Bled, Slovenia. The conference is organized by a team consisting of Matjaz Potrc of the University of Ljubljana, Nenad Miscevic of the University of Maribor, Danilo Suster of the University of Maribor and Mylan Engel of the Northern Illinois University and is officially included in the program of the activities of the Slovenian Society for Analytic Philosophy. A special issue of Acta Analytica will publish (selected) papers from the conference.
    Jonathan Dancy, the main proponent of moral particularism, has confirmed his participation at the conference. So a symposium on his work, including his just published book Ethics Without Principles (Oxford University Press, 2004) is one obvious topics; review of particularist criticism and the promise of positive particularism are another. An additional aim of this conference is assessing the prospect of extending particularist approach to other areas, such as aesthetics, epistemology and even metaphysics. Those interested to participate should send the title of their contribution with a longer abstract (1000-1500 words) till November 1st, 2004. They will receive the notice of acceptance by December 1st, 2004.
    Bled conferences do not possess any financial means, so we would kindly ask you to request financing from your own institution in the case you would be interested to attend. For more info see Best wishes, Matjaz Potrc and Vojko Strahovnik.

Wednesday, July 21, 2004
Blakely News & the Blogosphere Over at Sentencing Law & Policy, Doug Berman has the latest Blakely news, including links to the Solicitor General's filings! Chris Geidner has a very nice comment on the role that blogs have played in the post-Blakely fall out:
    blogs are revolutionizing -- at the least -- the way we receive our news about particular niches in which we have strong interest. I know from the weekly legal newspaper that we receive at the firm this summer. I have read (or written) a blog post about every truly interesting case in there each week. Usually a week -- or sometimes even two -- earlier. Even daily legal newspapers couldn't have contained everything, and there were no daily national legal niche newspapers.
Of course, bloggers are sometimes given to exaggerated statements about the importance of blogging, but in this case, Geidner has it exactly right. Doug Berman, Scotusblog, How Appealing, and others have made the important post-Blakely developments accessible and transparent in a way that simply would not have been possible before the Internet.

Baude on Blakely Check out Will Baude of Crescat Sententia who has a column titled Pro Circuit on the New Republic Online. Here's a taste:
    there are plenty of ways to influence the legal course of a Supreme Court decision without disobeying it. And the events of the last few weeks have put the lie to the notion that circuit court appointments don't matter in and of themselves. Because it can only rule on individual cases, not hypothetical ones, the High Court relies on lower courts to apply its logic and rules to new situations--and that gives circuit court judges the power to determine whether the logic behind any given Supreme Court ruling provokes a legal revolution or simply sputters out. Last month, in Blakely v. Washington, the Court held unconstitutional Washington state's sentencing scheme because it put too much power in the hands of judges, as opposed to juries. At the time, the opinion was somewhat overshadowed by coverage of the Court's terrorism decisions. But in recent weeks, Blakely has sparked immense activity in lower courts with far-reaching implications. The way lower courts have handled Blakely suggests just how much circuit court appointments matter.

Hiring Trends Don't miss Hiring Trends at 18 "Top" American Law Schools, posted on Monday.

Griffin Reviews Barnett Stephen M. Griffin (Tulane) has posted Barnett and the Constitution We Have Lost (forthcoming University of San Diego Law Review) on SSRN. Here is the abstract:
    This is a review essay of Randy Barnett's book Restoring the Lost Constitution: The Presumption of Liberty (Princeton University Press, 2004). I consider Barnett's libertarian theory of constitutional law in three stages. In Part I, I criticize the external theory of political legitimacy that Barnett applies to the Constitution. I argue that this theory had nothing to do with the actual reasons the Constitution was accepted as legitimate when it was ratified. In Part II, I focus on Barnett's theory of constitutional interpretation and his account of the necessary and proper clause, the foundation of the presumption of liberty. I also critique Barnett's treatment of the Lochner era. In Part III, I examine Barnett's approach to governmental power under the Constitution, particularly with respect to the commerce clause and the state police power.
An earlier version of this marvelous review was delivered at the Annual Meeting of the Association of American Law School's in January. Highly recommended. Download it while its hot!

Cueller on Sovereignty & Collective Security Mariano-Florentino Cuellar (Stanford) has posted Reflections on Sovereignty and Collective Security (Stanford Jounral of International Law, Vol. 40, No. 211, 2004) on SSRN. Here is the abstract:
    This article assesses some of international law's current contributions to international security, focusing primarily on the United Nations Charter and its associated legal doctrines emphasizing the importance of national territorial sovereignty. The article provides a doctrinal and empirical analysis of the limitations of the Charter system in dealing with some persistent problems of international security, including the existence of noncompliant states, threatening non-state actors, and normative challenges to idea of national territorial sovereignty. The article also reports data indicating that the United Nations framework has failed to contain violent international crises. It also notes that, despite the achievement it represents, the United Nations' institutional focus on preventing aggressive war largely fails to grapple with dramatic increases in the prevalence and intensity of civil war. To assess the importance of dealing with internal civil conflict in addition to aggressive war, I estimate the average length and intensity of an average civil war taking place in the mean year during the last 50 years. I find that the length has increased from just over 20 months (in the 1901-1950 period) to about 60 months (1951-1992), and intensity (measured by the number of battle deaths per hundred thousand people in the population of the country in question) has increased from under 3 (in the 1901-1950 period) to over 6 (1951-1992). The article then reviews theories supporting the claim that international law can contribute to security despite the continuing extent of global conflict and violence, and ends by discussing strategies to reform the United Nations system and enhance international law's contributions to peace. In particular, I emphasize the importance of two issues that affect international law's contributions but have not received sufficient attention. The first is the need for more empirical analysis of when domestic political bargains become sensitive to international law. The second issue concerns how international law should structure the choice between imposing collective sanctions on the people of a nation-state, or whether more targeted remedies should be used even if they involve incursions into a nation's territorial sovereignty. If international law has little to say in informing that choice, then it will have little relevance when nation-states choose among those strategies. To address both of these issues, international law scholars may have to further reexamine assumptions about national territorial sovereignty llong identified with international law.

Bibas & Bierschbach on Remorse and Apology in Criminal Procedure Stephanos Bibas and Richard Bierschbach (University of Iowa - College of Law and Yeshiva University - Benjamin N Cardozo School of Law) have posted Integrating Remorse and Apology into Criminal Procedure (Yale Law Journal, Vol. 114, No. 1, 2004) on SSRN. Here is the abstract:
    Criminal procedure largely ignores remorse and apology or, at most, uses them as proxies for an individual defendant's badness. The field is preoccupied with procedural values such as efficiency, accuracy, and procedural fairness, to the exclusion of the criminal law's substantive moral values. Likewise, most legal scholars either ignore remorse and apology or squeeze them into the individual badness model, neglecting the broader roles that they can play in reconciling and educating offenders and healing victims and communities. The narrow focus on individual badness slights the broader value of remorse and apology and misses a crucial point. Crime is more than just individual wrongdoing; it harms social relationships. Currently, remorse and apology serve only as poor gauges of how much deterrence and retribution individual offenders need. Ideally, these tools would play much larger roles in mending the social, relational harms from crime. Remorse and apology are valuable ways to heal wounded relationships, vindicate victims, and educate, reconcile, and reintegrate offenders into the community. Criminal procedure should encourage and use remorse and apology to serve these substantive values at every stage, from before arrest through charging to pleas and sentences. The broader aim is twofold: to recognize the social dimension of criminal wrongdoing and punishment, and to break down the artificial separation between substantive values and criminal procedure by harnessing procedure to serve the criminal law's substantive moral goals.

Gregg on Catholic Moral Theology and the Market Samuel Gregg (Acton Institute for the Study of Religion and Liberty) has posted Ethics and the Market Economy: Insights from Catholic Moral Theology (Economic Affairs, Vol. 24, pp. 4-10, June 2004) on SSRN. Here is the abstract:
    The ethical dimension of market solutions to problems is often neglected by their proponents. This article examines the market from the standpoint of orthodox Roman Catholic moral theology. It illustrates how Catholic theologians have contributed to thinking about the market, draws attention to Catholicism's positive assessment of entrepreneurship, and outlines paths for future Catholic reflection on the market.

Richman on a Positive Theory of Private Ordering Barak D. Richman (Duke University - School of Law) has posted Firms, Courts, and Reputation Mechanisms: Towards a Positive Theory of Private Ordering (Columbia Law Review, Vol. 104, No.8, 2004) on SSRN. Here is the abstract:
    This paper formulates a positive model that predicts when parties will employ private ordering to enforce their agreements. The typical enforcement mechanism associated with private ordering is the reputation mechanism, when a merchant community punishes parties in breach of contract by denying them future business. The growing private ordering literature argues that these private enforcement mechanisms can be superior to the traditional, less efficient enforcement measures provided by public courts. However, previous comparisons between public and private contractual enforcement have presented a misleading dichotomy by failing to consider a third enforcement mechanism: the vertically integrated firm. This paper develops a model that comprehensively addresses three distinct types of enforcement mechanisms – firms, courts, and reputation-based private ordering. The model rests on a synthesis of transaction cost economics, which compares the efficiencies of firms versus markets, and the private ordering literature, which compares the efficiencies of public courts versus private ordering. It hypothesizes that private ordering will arise when agreements present enforcement difficulties, high-powered market incentives are important, and the costs of entry barriers are low. The paper then compares the model's predictions to documented instances of private ordering, and this illustrative test suggests that the model is consistent with empirical studies in the private ordering literature.

Virtual Free Speech, or Is That Free Virtual Speech? Peter S. Jenkins has posted The Virtual World as a Company Town - Freedom of Speech in Massively Multiple Online Role Playing Games (Journal of Internet Law, Vol. 8, No. 1, July 2004) on SSRN. Here is the abstract:
    In the 21st century, traditional company towns like Chickasaw, Alabama, where a corporation steps into the shoes of the state for purposes of the First Amendment, are almost non-existent. This paper postulates that they have been replaced by Massively Multiple Online Role Playing Games (MMORPG's) such as EverQuest, The Sims Online and Second Life where many individuals have extensive social circles, own property, and even hold down virtual jobs. According to surveys, some of these individuals actually spend more time each week in the virtual world than pursuing basic real world activities such as working, eating and sleeping. In 2004, one of these virtual worlds, There, entered into a contract with the US Army to create a full-scale, 1:1, virtual replica of the entire earth for purposes of combat simulations, known as the Asymmetric Warfare Environment (AWE). The paper hypothesizes a post-war scenario whereby this immense platform is transferred to private corporations in the same manner that the ARPANET, the military ancestor of the Internet, was devolved into private hands. This universal virtual world may become the successor to the Internet as we know it today and will become a place where the majority of us choose to shop, socialize and do business. The paper emphasizes that the case law on freedom of speech in MMORPG's will have a profound precedent setting effect on how the First Amendment is applied to this coming universal virtual platform, since the legal principles concerning new technologies tend to be set at an early stage of their development. If the right road is not taken, then we run the risk that the coming universal virtual world will be, from a freedom of speech perspective, a nightmarish endless global shopping mall, instead of an empowering enhancement of the real world with its boundless opportunities for encounters with those of differing viewpoints.

More on the Virtual Worlds, Crime This Time F. Gregory Lastowka and Dan Hunter have another article on virtual worlds, this one is called Virtual Crime (New York Law School Law Review, Forthcoming). Here is the abstract:
    Markets for virtual property in massively multiplayer online games have recently emerged. This essay explores the question of whether such markets for virtual world properties might someday provide a basis for real criminal prosecutions. The authors conclude that this is unlikely. This is not due to the intangibility of virtual assets, but instead due to the contractual arrangements which modify the legal rights of players, as well as the encoded and textual game rules which govern player-to-player interactions in virtual worlds.

Moore on Xenophobia in American Courts Kimberly A. Moore (George Mason University School of Law) has posted Xenophobia in American Courts (Northwestern University Law Review, Vol. 97, 2003) on SSRN. Here is the abstract:
    Lawyers and other commentators often remark that American courts, and particularly American juries, are biased against foreign litigants. No research, however, has ever confirmed this suspicion. Indeed, an exhaustive previous empirical study, published seven years ago in the Harvard Law Review, concluded that foreign litigants are successful in litigation more often than their domestic counterparts. In this Article, Professor Kimberly Moore reexamines the issue by reporting the result of research on an original dataset of over 4000 patent cases. The results cast substantial doubt on the hypothesis that foreign and domestic parties are treated identically in jury trials of intellectual property rights. In patent jury cases between domestic and foreign parties, the domestic party won 64% of the time, with the foreign party winning in the remaining 36% of cases. Domestic and foreign parties won at equal rates with judges. Marshaling a range of other evidence, Professor Moore explains that these results are likely to understate the degree of bias, placing a floor but not a ceiling on the impact of xenophobia. The discrepancy between these results and those of the Harvard Law Review study finding xenophilia may be attributable to the complexity of patent law or to problems that Professor Moore identifies in the data on which that study was based.

Mahoney and Sanchirico on General and Specific Legal Rules Paul G. Mahoney and Chris William Sanchirico (University of Virginia School of Law and University of Pennsylvania - Law School & Wharton School) have posted General and Specific Legal Rules on SSRN. Here is the abstract:
    Legal rules may be general (that is, applicable to a broad range of situations) or specific. Adopting a custom-tailored rule for a specific activity permits the regulator to make efficient use of information about the social costs and benefits of that activity. However, the rule maker typically relies on the regulated parties for such information. The regulated parties may attempt to influence the rule maker, producing rules that reflect their private interests. We show that in some cases limiting the rule maker to a single rule for multiple activities will moderate this influence and maximize welfare.
I just finished reading this paper, which is quite nice. Recommended!

Cotterrell on Law in Culture Roger Cotterrell (University of London - Centre for Commercial Law Studies) has posted Law in Culture (Ratio Juris, Vol. 17, pp. 1-14, March 2004) on SSRN. Here is the abstract:
    The relationship of law and culture has long been a concern of legal anthropology and sociology of law. But it is recognised today as a central issue in many different kinds of juristic inquiries. All these recent invocations of the concept of culture indicate or imply problems at the boundaries of established thought about either the nature of law or the values that law is thought to express or reflect. The consequence is that legal theory must, it seems, now systematically take account of the notion of culture. The present paper asks how this might best be done. I argue that a concept of culture, as such, is of limited utility for legal theory because the term "culture" embraces a too indefinite and disparate range of phenomena. But legal theory needs conceptual resources to consider at a general level the relations of law and culture. This paper suggests that these resources should include, above all, a rigorous distinguishing of different abstract types of community. Legal theory requires a sociologically-informed concept of community. What is encompassed by the vague idea of culture is actually the content of different types of social relations of community and the networks (combinations) in which they exist.

Tuesday, July 20, 2004
More Blakely News Doug Berman has more Blakely news, including a report of a District Court opinion that argues that the implications of Blakely require invalidation of the entire federal sentencing guidelines scheme. Surf here.

Welcome to the Blogosphere . . . to The Garden of Forking Paths, a philosophy blog on free will and moral responsibility. Contributors include: Andrei Buckareff, Andrew Eshleman, Carl Ginet, Daniel Speak, Eddy Nahmias, Eleonore Stump, Gary Watson, Gustavo Llarull, Hilary Bok, Ish Haji, Jing Zhu, John Martin Fischer, John McAteer, Jonathan Kvanvig, Manuel Vargas, Michael McKenna, Neal Tognazzini, Neil Levy, Paul Russell, Randolph Clarke, Rico Vitz, Saul Smilansky, and Tim O'Connor.

Memes Do surf over to the marvelous Desert Landscape and read Justin Fisher's post on memes.

Hiring Trends Don't miss Hiring Trends at 18 "Top" American Law Schools, posted yesterday.

Posner on Law and Economics in Historical and Comparative Perspective Richard A. Posner has posted Law and Economics in Common-Law, Civil-Law, and Developing Nations (Ratio Juris, Vol. 17, pp. 66-79, March 2004) on SSRN. Here is the abstract:
    The law and economics movement is the principal interdisciplinary field of legal studies. This paper traces the history of the movement and explains its basic principles, contrasts the version of the movement that predominates in the United States with the version that prevails in Europe, noting the greater emphasis of the former on substantive doctrine and of the latter on rule of law considerations, and emphasizes the importance of the movement for legal and economic reform in developing nations.

Lafont on Realism & Constructivism Cristina Lafont (Northwestern University) has posted Moral Objectivity and Reasonable Agreement: Can Realism Be Reconciled with Kantian Constructivism? (Ratio Juris, Vol. 17, pp. 27-51, March 2004) on SSRN. Here is the abstract:
    In this paper I analyze the tension between realism and antirealism at the basis of Kantian constructivism. This tension generates a conflictive account of the source of the validity of social norms. On the one hand, the claim to moral objectivity characteristic of Kantian moral theories makes the validity of norms depend on realist assumptions concerning the existence of shared fundamental interests among all rational human beings. I illustrate this claim through a comparison of the approaches of Rawls, Habermas and Scanlon. On the other hand, however, objections to moral realism motivate many Kantian constructivists to endorse the antirealist claim that reasonable agreement is the source of the validity of social norms. After analyzing the difficulties in the latter strategy, I try to show how a balance between the realist and antirealist elements of Kantian constructivism can be reached by drawing a sharper distinction between the justice and the legitimacy of social norms.

Hage on Law and Coherence Jaap Hage (University of Maastricht (formerly University of Limburg) - Faculty of Law) has posted Law and Coherence (Ratio Juris, Vol. 17, pp. 87-105, March 2004) on SSRN. Here is the abstract:
    This paper deals with the questions of whether the law should be coherent and what this coherence would amount to. In this connection so-called "integrated coherentism" is introduced. According to integrated coherentism, an acceptance set is coherent if and only if it contains everything that should rationally be accepted according to what else one accepts and does not contain anything that should rationally be rejected according to what else one accepts. Such an acceptance set is ideally a theory of everything, including amongst others standards for rational aceptance. On the assumption that the law, as a social phenomenon, is what the best theory about the law says it is, the law must be coherent, because the best theory of the law is part of an integratedly coherent theory of everything. This view is compatible with Raz's view that the law stems from different sources that need not be coherent in the sense that they consistently elaborate the same underlying principles or policies. Raz's view is not a consequence of integrated coherentism, however.

Prakken & Sartor on Defeasibility Henry Prakken and Giovanni Sartor (University of Utrecht and University of Bologna) have posted The Three Faces of Defeasibility in the Law (Ratio Juris, Vol. 17, pp. 118-139, March 2004) on SSRN. Here is the abstract:
    In this paper we will analyse the issue of defeasibility in the law, taking into account research carried out in philosophy, artificial intelligence and legal theory. We will adopt a very general idea of legal defeasibility, in which we will include all different ways in which certain legal conclusions may need to be abandoned, though no mistake was made in deriving them. We will argue that defeasibility in the law involves three different aspects, which we will call inference-based defeasibility, process-based defeasibility, and theory-based defeasibility. Only the integration of these three perspectives allows us to provide a satisfactory account of the role of defeasibility in legal reasoning.

Monday, July 19, 2004
Hiring Trends at 18 "Top" American Law Schools
    Introduction On July 8, Brian Leiter uploaded a post entitled Changes in U.S. Law Faculty Composition 2000-2005, with lots of excellent information. Here is some additional information about the new hires at the "top" 18 American law schools. Leiter's post lists lateral and entry level hires between the 2000-01 academic year and the 2004-05 academic year. Brian's focus is on the quality of hiring, and, in particular, the question whether schools have improved or gotten worse during the past five years. In this post, I will be focusing on hiring trends based on Leiter's data set.
    The law schools covered by Leiter's data are: Columbia, Cornell, Duke, Georgetown, Harvard, NYU, Northwestern, Stanford, UC Berkeley, UCLA, University of Chicago, University of Michigan, University of Pennsylvania, University of Southern California, University of Texas, University of Virginia, Vanderbilt and Yale. These schools added approximately 183 faculty members during the 2000-01 through 2004-05 period that Leiter studied. I have not attempted to replicate Leiter's survey of entry-level and lateral hires. There is some fuzziness in this data, resulting from the uncertain status of some joint appointments and some part-time appointments. My raw data can be inspected in a post entitled Supporting Information re New Faculty at Major American Law Schools, posted at the Legal Theory Annex.
    JD Institution Which JD institutions produced the 176 (or so) individuals hired during the 5 year period at the 18 law schools that Leiter studied? Unsurprisingly, Yale, Harvard, and Stanford placed the greatest numbers of JD graduates at these schools. The following pie chart breaks placement down by school, with a residual category for law schools that placed only 1 student and categories for foreign first degrees in law and for individuals with no law degree:

      If we remove those without JDs or with non-US first-law degrees from the data, the domination of Yale, Harvard, and Stanford becomes even clearer:
    More than 75% of all American JD students hired by the 18 elite schools during the five-year period were produced by five law schools, Yale (30%), Harvard (23%), Stanford (11%), Chicago (8%), and Columbia (5%).
    I am not quite sure what to think about this data. I suspect that this intense concentration of placement in a handful of institutions is somewhat atypical among academic disciplines. Althouigh a few strong PhD programs may dominate some other fields, my informed intuition suggests that in economics, philosophy, and history, one would need to go considerably beyond the top two programs to account for one-half the hiring at the equivalent of the Leiter's 18 top law schools.
    Advanced Doctorates Folk wisdom among law professors is that the hiring of elite institutions is dominated by candidates with PhDs. The data that I collected suggest that there is a foundation for this perception, but that the majority of faculty members hired by the 18 law schools during hte five-year period did not have a doctoral degree other than the JD:

    This chart includes advanced doctoral degrees in law (e.g. the SJD, LLD, and D. Juris.). Another way to look at the data is to compare the percentage of candidates who had exclusively legal training with candidates who had a doctoral degree (PhD, MD, etc.) from another discipline:

    Almost 2/3rds of those hired by the eighteen schools in the five year period were trained exclusively in law. To look at the same glass half-full, fully one-third of those hired did have an advanced doctoral degree from a discipline other than law.
    Which disciplines are non-law doctoral degrees from? Economics, political science, philosophy, and history PhDs clearly dominate:

    Disparities in Interdisciplinary/Non-JD-Doctoral Hiring One of the interesting aspects of Leiter's data is that it reveals that the hiring from other disciplines and hiring of candidates with non-JD doctoral degrees varies widely among the 18 schools. The next chart provides the total number of hires and the number of non-JD doctoral hires for each of the eighteen schools:

    The differences can be seen more clearly if the number of non-JD doctoral hires is expressed as a percentage of the total number of hires. The following chart lists the percentage of hires with a non-JD doctorate in ascending order:

    Of the 79 individuals with doctoral degrees hired during the five year period, 59 were hired by nine schools (Penn, USC, Northwestern, Stanford, Michigan, Columbia, Yale, Texas, and Virginia), while the remaining nine schools hired only 20. 89% of Penn's hires had non-JD doctorates, while only 13% of Georgetown's hires had such degrees.
    Conclusion The legal academy has changed enormously over the course of the last thirty years, with a marked decline of the "Trade School" model and a rise in scholarship and interdisciplinary approaches to law. Nonetheless, the data indicate that traditional hiring practices continue to guide the majority of law-school hiring. Most of those who are hired by Leiter's elite eighteen have a JD but no other doctorate and are graduates of Yale, Harvard, and Stanford.
Update: I've already received a few corrections to the underlying data. I will redo the charts after collecting corrections and updates for a week or so.
Leiter has brief comments here.

Conference Announcement: Principles & Practices of Subsidiarity
    OCTOBER 8, 2004 VILLANOVA UNIVERSITY SCHOOL OF LAW JOURNAL OF CATHOLIC SOCIAL THOUGHT The Second Annual Symposium on Catholic Social Thought and the Law PRINCIPLES AND PRACTICES OF SUBSIDIARITY: The Meanings of Subsidiarity for the Law
      The richness of Catholic social thought as an instrument for analysis and criticism of social issues is well-established. The powerful social insights of John Paul II have given a new force to and created greater awareness of a social tradition rooted in the Church's theology of life. Theologians, philosophers and many different types of social activists have elaborated on the many “social” encyclicals to create a distinctively Catholic view of labor, poverty, globalization, inequality, racism and a host of other social issues. One of the great legacies of Vatican II has been recognition of the way that Catholic social thought represents the profound engagement of the Church in the world Until recently, however, Catholic social thought has had little influence on American jurisprudence, despite its obvious relevance to the social issues with which American legal scholars are deeply engaged. Key Catholic social thought concepts such as dignity, solidarity, subsidiarity, the common good and the reciprocity of rights and duties are concepts with which theorists of American law should grapple. There has been, however, a renaissance in legal scholarship with an expressly Catholic focus. Legal scholars around the country are beginning to discover that Catholic social thought provides a fresh perspective that allows faith-based discourse to play a role in the way we think about law. To the end of bringing those scholars together to explore the relevance of Catholic social thought and American law, Villanova University School of Law held in October 2003 the first symposium on “Catholic Social Thought and the Law.” The papers they presented were published in a new interdisciplinary journal, the Journal of Catholic Social Thought. A second annual symposium at Villanova Law will focus on a key concept within Catholic social thought that has particular relevance for the law - - the principle of subsidiarity. Subsidiarity offers insights into the proper relationship of superior and subordinate authorities, obviously a central concern of the law. The Catholic concept is of particular relevance in part because of the many secular applications, but also because of the highly contested (and ideological) interpretations of subsidiarity’s meaning. The concept is invoked by conservative and libertarian critics of big government in order to protect private institutions from government intrusion and preserve economic liberty. Those on the left emphasize the relationship of subsidiarity and solidarity and the need for state action when private arrangements fail to protect human dignity. The legal scholars participating in this conference will present a variety of methodological perspectives, but will focus on what the law has to learn from an aspect of Catholic social thought with particularly broad implications.
      Patrick D. Brown, Seattle University School of Law Paolo G. Carozza, Notre Dame Law School Michael Lower, University of Manchester, U.K. Michael Moreland, Williams & Connolly, LLP Philip Pucillo, Ave Maria School of Law Gerald Russello, Seton Hall University Mark A. Sargent, Villanova University School of Law Susan J. Stabile, St. John’s University School of Law John Stinneford, University of Dayton School of Law Lorenza Violini, University of Milan, Italy Robert K. Vischer, St. John's University School of Law
      October 8, 2004 8:45 - 9:00 a.m. WELCOME -- Rev. Edmund J. Dobbin, O.S.A. (President, Villanova University) -- Barbara Wall (Editor-in-chief, Journal of Catholic Social Thought) -- Mark Sargent 9:00 - 10:30 a.m. SUBSIDIARITY AND THE LIBERAL STATE -- Robert Vischer Subsidiarity and the Provision of Public Goods: The Limits of Pluralism in the Liberal State -- Susan Stabile Subsidiarity and the Use of Faith-Based Organizations in the Fight Against Poverty -- Michael Moreland Subsidiarity and the School Finance Debate 10:30 - 10:45 a.m. BREAK 10:45 - 12:00 noon SUBSIDIARITY AND THE BUREAUCRATIC STATE -- Lorenza Violini Subsidiarity in Modern Public Administration -- Patrick Brown The Principle of Subsidiarity and the Critique of the Bureaucratic Mediation of the Public Good 12:00 - 1:30p.m. LUNCHEON ADDRESS -- Paolo Carozza The Universal Common Good and the Foundations of International Law 1:30 - 2:15 p.m. SUBSIDIARITY AND THE CORPORATION -- Michael Lower The State, the Common Good and Corporate Governance -- Gerald Russello Two Cheers for the Multinational? Subsidiarity and Corporate Governance -- Mark Sargent Comments on Lower and Russello 2:15 - 2:30 p.m. BREAK 2:30 - 3:15 p.m. SUBSIDIARITY AND FEDERALISM -- Philip Pucillo The Prospect of a Subsidiarity-based Judicial Federalism -- John Stinneford Subsidiarity and the Federalization of Street Crime
    Attending the Program REGISTRATION General registration, including full program, Pennsylvania Continuing Legal Education certificate, continental breakfast and lunch, is $50. Law student registration for non-Villanova students is $20. Villanova faculty and students may register without charge. For advance registration, please complete and return the registration form to: Annette Stalone, Villanova University School of Law, 299 North Spring Mill Road, Villanova, Pennsylvania 19085. SYMPOSIUM LOCATION The symposium will be held at the Connelly Center on the main campus of Villanova University on October 8. The university and the law school are located approximately 15 miles west of Philadelphia's downtown, in the heart of the Philadelphia Main Line. Free parking will be available for symposium participants. CLE CREDITS This program has been approved by the Pennsylvania Continuing Legal Education Board for 11 hours of substantive credit. HOTELS There are numerous hotel options in the Villanova area for out-of-town attendees. For information, contact Annette Stalone at

Peczenik on the Utility of Philosophy for Legal Doctrine Aleksander Peczenik (Lund University - Faculty of Law) has posted Can Philosophy Help Legal Doctrine? (Ratio Juris, Vol. 17, pp. 106-117, March 2004) on SSRN. Here is the abstract:
    Legal doctrine is a kind of legal research, occupying the central position in professional legal writing, e.g., handbooks, monographs, commentaries and legal textbooks etc. It consists of a description of the literal sense of legal statutes, precedents etc., intertwined with many moral and other substantive reasons. Legal doctrine has normative components, and produces coherence in the law in many aspects. It also produces some justice. However, legal doctrine has faced repeated criticism, not least from minimalist philosophers. The author proposes a "Copernican revolution" as regards the relation of legal theory to philosophy. Instead of attempting to make legal theory follow one of the notoriously controversial moral theories, he tries to adjust philosophy to legal theory. In the search for philosophy adjusted to legal doctrine, he prefers cautious (weak) philosophical positions to courageous (strong) ones. He also assumes a society-centered theory of normativity, a coherentist theory of legal knowledge and a coherentist theory of justice. However, a law theorist has no chance to elaborate such theories in detail. Hence, the author poses the following questions to philosophers: How can a law theorist assume society-centered normativity without being forced to enter the controversies around collectivism? How can a law theorist assume the common core of morality for society without being forced to enter technical controversies in political philosophy? How can the law theorist base his thinking on the coherence theory of law without being forced to enter technical controversies around the concept of coherence? How can the law theorist avoid hopeless ontological controversies?

Pettit on Democracy Philip N. Pettit (Princeton University - Department of Politics) has posted Depoliticizing Democracy (Ratio Juris, Vol. 17, pp. 52-65, March 2004) on SSRN. Here is the abstract:
    It is now widely accepted as an ideal that democracy should be as deliberative as possible. Democracy should not involve a tussle between different interest groups or lobbies in which the numbers matter more than the arguments. And it should not be a system in which the only arguments that matter are those that voters conduct in an attempt to determine where their private or sectional advantage lies. Democracy, it is said, should promote public deliberation among citizens and authorities as to what does best for the society as a whole and should elicit decision-making on that basis. But the ideal of deliberative democracy has two components - the deliberative and the democratic - and often they pull apart. In this paper I look in the first section at a series of problems that arise on the deliberative front, arguing that their resolution requires various degrees of depoliticization. And then I ask in the second whether the depoliticizing responses that those problems require are antithetical to the ideal of democracy. I argue that they are not in tension with the ideal, if that ideal is cast in the relatively revisionary, two-dimensional form that I favour.

Strnad on the Fat Tax Jeff Strnad (Stanford University Law School) has posted Conceptualizing the Fat Tax: The Role of Food Taxes in Developed Economies on SSRN. Here is the abstract:
    Public health scholars and practitioners in several countries have called for a broad system of taxes on unhealthy foods, possibly combined with subsidies for certain healthy foods. The typical motivation for these fat taxes is the public health perspective, the idea that it is socially valuable to make health outcomes better regardless of how individuals might trade off risky dietary behaviors with those outcomes. This paper assesses possible alternative rationales for such a tax, examining arguments based on behavioral and cognitive failure as well as traditional economic arguments. The strongest role for a broad, health-based tax on foods would be as a health-insurance system component. Ideally, the tax amount would approximate the expected medical cost from consuming each unit of food, and the tax revenues would cover claims for the associated disease conditions as they arose. This tax/claim system would serve four major insurance-based purposes. First, it would reduce moral hazard by causing individuals to make ex ante payments covering the expected covered costs of risky eating behavior. Second, it would tend to alleviate adverse selection problems by providing implicit risk adjustment for the associated maladies. Third, it would address the incomplete markets problem that consumers are restricted to short-term coverage by introducing a long-term component into the system. Finally, it would aid in separating inherent risk over which individuals have no control from risk that is a function of behavior. Serving these purposes would be especially valuable in developed country systems where coverage is universal or a certain minimum treatment package is available regardless of ability to pay. Whether a fat tax served to further insurance system objectives, general public health goals or other purposes, there are substantial implementation and scientific causality issues. The health impact of particular foods is subject to scientific uncertainty and often depends heavily on the other components in each individual's diet. Disease responses to food products are non-linear in quantity consumed and vary substantially across individuals. Individuals also are heterogeneous with respect to their preferences and self-control. A food tax scheme will result in an industry response and may spur both constructive and detrimental innovation. The paper examines many non-insurance-based rationales for a fat tax, including correcting externalities or internalities (problems of self-control), alleviating bounded rationality (inability to be adequately informed at low cost), and addressing various cognitive or behavioral errors. The optimal form of the tax might be affected by such errors. For instance, a tax based on energy density rather than components such as fat might best address the obesity epidemic. Preliminary estimates show that such a tax, if focused on foods that are nutritionally poor as well as energy dense, might be quite large compared to existing prices for many such foods. The paper also considers the possibility of basing the tax partially or wholly on certain biomarkers (weight, blood chemistry, etc.) and briefly considers litigation as an alternative to taxation.

Dahlman on Normative and Descriptive Legal Propositions Christian Dahlman (Lund University - Faculty of Law) has posted Fused Modality or Confused Modality? (Ratio Juris, Vol. 17, pp. 80-86, March 2004) on SSRN. Here is the abstract:
    According to Svein Eng there are propositions concerning the law which are descriptive as well as normative, but cannot be separated into one descriptive and one normative proposition. Eng calls these propositions "fused" ("sammensmeltede"). In Eng's theory a proposition with "fused modality" is partly descriptive and partly normative, but cannot be classified as a separable combination of a claim about what the law "is" and a claim about what the law "ought to be." In a "fused" proposition modality is a question of "degree." The purpose of this article is to show why Eng's theory should be rejected. The introduction of "fused modality" adds nothing of value to legal theory. Eng claims to have discovered a class of propositions not previously accounted for, but this is not the case. The lawyer Eng talks about as making a "fused" proposition is simply a lawyer logically confused.

Vick on Interdisciplinarity & Law Douglas W. Vick (University of Stirling - Department of Accounting, Finance & Law) has posted Interdisciplinarity and the Discipline of Law (Journal of Law and Society, Vol. 31, pp. 163-193, June 2004) on SSRN. Here is the abstract:
    This article concerns the effects of interdisciplinary research conducted by academic lawyers on the legal discipline itself. It discusses the intellectual tension between the modes of legal analysis traditionally used by academic lawyers and the approach taken by interdisciplinary scholars, and how this tension is rooted in the challenges interdisciplinarity poses to widely-accepted notions about the purposes of legal scholarship and the relationship between academic lawyers and the legal profession. The article considers the implications of legal interdisciplinarity in light of the cultural context from which legal interdisciplinarians emerge and how the relationship between legal scholarship and legal practice ultimately guarantees the continued existence of a distinct and coherent disciplinary identity for law.

Saturday, July 17, 2004
Legal Theory Bookworm The recommendation this week is Legitimation Crisis by Jurgen Habermas, a classic work on legitimation and ideology. Habermas's work is frequently rough going, but this is one of his most accessible (and shortest) books. Highly recommended!

Download of the Week This week, the Download of the Week is The New Formalism: Requiem for Tiered Scrutiny? by Calvin Massey. Here is the abstract:
    A by-product of Lawrence v. Texas and Grutter v. Bollinger is that the rationales employed by the Court contribute to the destabilization of tiered scrutiny. Ever since the New Deal revolution in constitutional law the Court has employed and refined tiered scrutiny to resolve two questions: 1) When should the presumption of validity that attaches to government action be reversed? and 2) How strong must be the proof offered by governments to justify the validity of actions that are presumptively invalid? The considerable superstructure created by courts in the service of this endeavor has become ever more complex and unwieldy, but Lawrence and Grutter suggest that this analytic structure is now subject to new and severe strain. In striking down Texas's prohibition on private consensual sexual intimacies between adults of the same sex, the Court was unwilling to declare that consensual sex between adults is a fundamental liberty interest, or even that the ability to enter and maintain a consensual intimate relationship with another adult is a fundamental liberty interest. Instead, the Court declared that Texas had no legitimate interest in decalring its vision of morality. This rationale undervalues the very liberty that it purports to protect, undermines a host of laws and practices that represent widely held public values, and renders less coherent the entire enterprise of substantive due process. In upholding under strict scrutiny the presumptively unconstitutional racially based admissions practices of the University of Michigan Law School, the Court in Grutter exhibited remarkable deference to the judgment of academic administrators and employed an unusually loose form of narrow tailoring. The result of this analytic mode is to call into question the meaning of strict scrutiny and raises questions about the differences between strict and intermediate scrutiny. Taken together, Lawrence and Grutter suggest that the pigeonhole categories of tiered scrutiny are ill-defined, if not in danger of outright collapse. The Court must necessarily consider alternatives. Possible alternatives include a version of Justice Thurgood Marshall's sliging-scale analysis, a revived and stiffened version of tiered scrutiny, or invention of an entirely new analytical mode.
Download it while its hot!

SSRN Top Recent Downloads The Social Science Research Network compiles lists of top ten downloads by subject matter. (Click on the category name for the full list of the top ten papers by number of downloads in the past 60 days.) Here are categories and selected papers of interest to legal theorists:

Friday, July 16, 2004
Sargent on Catholic Visions of the Corporation Mark Sargent (Villanova Law School) has posted Competing Visions of the Corporation in Catholic Social Thought (Journal of Catholic Social Thought, Forthcoming) on SSRN. Here is the abstract:
    Catholic Social Thought (CST) is coherent body of principles concerning the organization of social and economic life drawing on the inspiration of natural law, Thomism, the Gospel and the tradition of Christian personalism. While valuing the creative energy of capitalism and its contributions to the production of wealth, it is often highly critical of the inequalities generated by capitalism, its tendency to promote materialistic consumerism and capital's devaluation of the dignity of work. While not easily characterizable as right or left, CST thinking about corporate social responsibility and corporate governance has become split between interpretations emphasizing the importance of economic liberty to human dignity (a central CST value) and those deriving from a much more communitarian conception of that dignity. This paper contests the neoconsevative positions articulated principally by Michael Novak, and identifies the core CST premises that lead to a much more communitarian vision of the corporation. In so doing, it emphasizes affinities between that vision and secular views of the corporation derived from the critical and legal progressive traditions.

Clark on Unitary Judicial Review Bradford R. Clark (George Washington Law School) has posted Unitary Judicial Review (George Washington Law Review, Vol. 72, 2004) on SSRN. Here is the abstract:
    Two hundred years have passed since the Supreme Court's decision in Marbury v. Madison, yet debate continues over the origins and legitimacy of judicial review. Although modern commentators generally accept judicial review with little or no reservation, some remain skeptical. One of the strongest and most sustained challenges comes from Larry Kramer, who has recently argued that the Founders did not authorize judicial review of the scope of federal powers under the original Constitution. At the same time, Kramer maintains that the Founders expected judicial review both to prevent states from undermining federal supremacy and to enforce individual rights. Such attempts to divide judicial review, however, are inconsistent with the constitutional text and contradict key assumptions held by the Founders. The relevant materials suggest that judicial review is a unitary doctrine under the Supremacy Clause that requires courts to treat all parts of the Constitution as "the supreme Law of the Land" and to disregard both state and federal law to the contrary. There are at least two difficulties with Professor Kramer's proposed dichotomy. First, Kramer's attempt to separate judicial review of state law from judicial review of federal statutes is inconsistent with the text of the Supremacy Clause. The Clause recognizes only three forms of federal law as "the supreme Law of the Land" this Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States." By its terms, therefore, the Clause requires courts to prefer federal statutes to contrary state law only if the federal statute is consistent with "this Constitution." In other words, courts have no warrant to enforce unconstitutional federal statutes over contrary state law. This is true whether the federal statute in question violates the Constitution's "provisions delegating powers" or its "rights-bearing provisions." Thus, in such cases, the Supremacy Clause explicitly conditions judicial review of state law on judicial review of federal statutes. Second, Professor Kramer's further attempt to distinguish judicial review under "the rights-bearing provisions" of the Constitution from judicial review under the "provisions delegating powers" contradicts widespread assumptions at the Founding about the nature and source of individual rights vis-a-vis the federal government. Federalists and Antifederalists agreed that individual rights would be secured - at least in part - by the Constitution's limited delegation of powers to the federal government. Their disagreement was whether this feature alone would suffice to protect individual liberty. The Antifederalists argued that a Bill of Rights was necessary to guarantee essential rights. The Federalists countered that a Bill of Rights was both unnecessary and dangerous. It was "unnecessary" because the federal government lacked power to interfere with the rights at issue. It was "dangerous" because it might erroneously imply that the federal government had power to invade other rights retained by the people. The Founders compromised by including the Ninth and Tenth Amendments in the Bill of Rights. As discussed below, these amendments negated any suggestion that the enumeration of rights implied the availability of federal power to invade other rights, and thus confirm that the Founders equated individual rights with the limited scope of federal powers. From this perspective, Professor Kramer's suggestion that courts enforce "the rights-bearing provisions" of the Constitution but not the "provisions delegating powers" is anachronistic because it ignores the common purpose of these provisions and would create the very danger that the Founders sought to avoid. The Founders' understanding that the Constitution secures individual rights by limiting federal power has important implications for judicial review. Courts cannot - as some commentators urge - simply enforce the Bill of Rights but decline to police the limits of federal power. Given the Founders' understanding of the source of individual rights vis-a-vis the federal government, courts should take a unitary approach to judicial review under the Supremacy Clause and enforce both the Bill of Rights and the limits of federal power. Only then could courts uphold all of the rights "retained by the people."

Polinsky on Strict Liability versus Negligence A. Mitchell Polinsky (Stanford Law School)  has posted Strict Liability versus Negligence in a Market Setting on SSRN. Here here is the abstract:
    There are two competing rules of liability for controlling activities like speeding or polluting which cause harm to others. The rule of strict liability shifts the victim's harm to the injurer regardless of the injurer's behavior, while the rule of negligence shifts the burden to the injurer only if the injurer does not take some specified amount of care. Most formal analyses of strict liability and negligence have been in a nonmarket context like automobile accidents.1 These studies conclude (or imply) that both rules are efficient when the administering authority has sufficient information to set the negligence standard properly (in each case a defense of contributory negligence may be required). According to these analyses, strict liability is efficient because it fully internalizes the harm, and negligence is efficient because the injurer can be induced to take exactly the specified amount of care and this amount can be set efficiently. For reasons which will become apparent, it is important to note that these models have assumed a fixed number of injurers--for example, a predetermined number of drivers. Interestingly, most informal discussions of strict liability and negligence have suggested that in a market setting negligence may be inefficient even when the administering authority has perfect information. This argument is stated clearly in a discussion of environmental control by Richard Stewart and James Krier: If strict liability is not imposed for the residual damages caused by partially controlled polluting activity, these damages will not be reflected in the price of commodities produced by such activity. As a result, commodities with whose production pollution is associated will be underpriced relative to commodities whose production causes no pollution, resulting in resource misallocation. [p. 227]2 This paper formally analyzes strict liability and negligence in a market setting. The discussion emphasizes the impact of the rules on the market price and on the number of firms in the industry. For simplicity, the damage caused by each firm is assumed to be determined only by that firm's "care" (and not also by the firm's output or the victim's behavior).3 The argument that both strict liability and negligence are efficient is correct in the short run when the number of firms causing harm is fixed. The market price in the short run is the same under strict liability and negligence despite the fact that under the rule of negligence firms do not bear the cost of their harmful activity. The argument that only strict liability is efficient is correct in the long run when the number of firms is variable. When the negligence standard corresponds to the efficient level of care, the market price in the long run under negligence is too low and too many firms enter the industry. However, when the standard is chosen optimally, taking into account the inefficiency of the negligence rule, the standard exceeds the efficient level of care, the price rises, and the number of firms falls. The optimal second best standard may actually result in the same price and number of firms under negligence as under strict liability.

Dogan & Lemley on Trademark Stacey L. Dogan and Mark A. Lemley (Northeastern University School of Law and Stanford University - School of Law) have posted Trademarks and Consumer Search Costs on the Internet on SSRN.  Here is the abstract:
    In theory, trademarks serve as information tools, by conveying product information through convenient, identifiable symbols. In practice, however, trademarks have increasingly been used to obstruct the flow of information about competing products and services. In the online context, in particular, some courts have recently allowed trademark holders to block uses of their marks that would never have raised an eyebrow in a brick-and-mortar setting - uses that increase, rather than diminish, the flow of truthful, relevant information to consumers. These courts have stretched trademark doctrine on more than one dimension, both by expanding the concept of actionable "confusion" and by broadening the classes of people who can face legal responsibility for that confusion. And they have based their decisions not on the normative goals of trademark law, but on unexplored instincts and tenuous presumptions about consumer expectations and practices on the Internet. We argue that this expansionist trend in Internet trademark cases threatens to undermine a central goal of the Lanham Act - to promote fair and robust competition through reducing consumer search costs.

Thursday, July 15, 2004
Kang on Insincerity John Kang (University of Michigan, Political Science) has posted The Case for Insincerity on SSRN. Here is the abstract:
    Much of the philosophical debate between religionists and secularists has focused on whether to permit people to invoke publicly religious arguments to justify their position on laws and policies. Prominent liberals like Robert Audi, Kent Greenawalt and John Rawls argue that in some instances, people should abstain from both invoking religious arguments in the public square and from consulting religious sources alone in arriving at judgment, while religionists like Michael Perry, Nicholas Wolterstorff and Stephen Carter assert that religionists be permitted greater freedom in both areas. I argue that sincerity is at best irrelevant and at worse harmful in achieving either good consequences or fairness between religionists and secularists.

New from Law & Politics Book Review
    DESPERATELY SEEKING CERTAINTY: THE MISGUIDED QUEST FOR CONSTITUTIONAL FOUNDATIONS, by Daniel A. Farber and Suzanna Sherry. Chicago: The University of Chicago Press, 2004. 208pp. Paper $17.00. ISBN: 0-226-23809-1. Cloth. $25.00. ISBN: 0-226-23808-3. Reviewed by J.D. Droddy.
    FAMILIES BY LAW: AN ADOPTION READER, by Naomi Cahn and Joan Heifetz Hollinger (eds.). New York: New York University Press, 2004. 282pp. Cloth US$ 70.00. ISBN: 0814715893. Paperback. US$ 24. ISBN: 0814715907. Reviewed by Francis Regan.
    WATCHING JIM CROW: THE STRUGGLES OVER MISSISSIPPI TV, 1955-1969 by Steven D. Classen. Durham, NC: Duke University Press, 2004. 288pp. Cloth $74.95. ISBN 0-8223-3329-5. Paper. $21.95. ISBN 0-8223-3341-4. Reviewed by James C. Foster.
    BROWN v. BOARD OF EDUCATION: CASTE, CULTURE, AND THE CONSTITUTION, by Robert J. Cottrol, Raymond T. Diamond, and Leland B. Ware. Lawrence: the University Press of Kansas, 2003. 304 pp. Cloth $25.00. ISBN: 0-7006-1288-2. Paper $15.95. ISBN: 0-7006-1289-0. Reviewed by Daniel Lipson.
    Criminal Justice and Political Cultures: National and International Dimensions of Crime Control, by Tim Newburn and Richard Sparks (eds.). Cullompton, UK: Willan Publishing, 2004. 256pp. Hardback. £45.00 / US $59.95. ISBN: 1-84392-026-3. Paperback. £18.99 / US $29.95. ISBN: 1-84392-054-9. Reviewed by Mathieu Deflem.
    TOURNAMENT OF APPEALS: GRANTING JUDICIAL REVIEW IN CANADA by Roy B. Flemming. Vancouver, B.C.: UBC Press, 2004. 144pp. Cloth US$ 80.00 / CDN$ 109.69. ISBN: 0-7748-1082-3. Reviewed by Richard A. Brisbin, Jr.
    INSIDE THE PENTAGON PAPERS, by John Prados and Margaret Pratt Porter (eds.). Lawrence: University Press of Kansas, 2004. 272pp. Hardcover. $29.95. ISBN: 0-7006-1325-0. Reviewed by Daniel N. Hoffman.

Wednesday, July 14, 2004
Entry Level Hiring (Update #33, Last Updated on August 20, 2004, with 67 schools reporting) Recently Blogger (the back end for Blogspot) has been refusing to generate an archive file for June 2004. This has resulted in the unavailability of the post on entry level hiring. In order to make the post available, I am republishing it today, with some very minor corrections & changes.
Here are some interesting numbers:
    JD Institution Yale leads with 20, Harvard has 18 and Stanford (10) is close behind. Chicago has 6. Berkeley has 5. Columbia, Michigan, Penn, Georgetown, and Virginia have 4 each. Howard and Texas are next with 3 each.
      Arizona-1 Australian National University-1 Boston College-1 Boston University-1 Columbia-5 Cornell-1 Chicago-6 Fordham-1 George Mason-1 George Washington-1 Georgetown-4 Georgia-1 Harvard-18 Hebrew-2 Howard-3 Kansas-2 Michigan-3 National Law School of India-1 North Carolina-1 Northwestern-1 NYU-1 Penn-4 Stanford-10 U of Arizona-1 UC Berkeley-5 UC Davis-1 UCLA-1 Tel Aviv-2 Texas-3 Toronto-1 Tulane-2 Vanderbilt-1 Virginia-4 William & Mary-1 Wisconsin-1 Yale-20
    Here is the same data in a pie chart (which may take a moment or two to display):
    If the chart were a clock, Yale would cover the span from 12:00 to approximately 2:30, with Harvard, Stanford and the rest following clockwise. The last group of 24 other schools occupies the span from about 9:10 to 12:00. If the Pie Chart does not display, try this link: Here is the breakdown by geographical region:
    And try this link if the chart does not display: PhD Discipline Philosophy leads with five placements, with Political Science (including Government, Political Theory, etc.) just behind with 4 placements. There must be more economics PhDs in the pool, but perhaps the economists realize that it is rational to be a free rider, gleaning the information submitted by others, but not submitting information yourself.
      Economics-1 English-1 History-2 Jurisprudence & Social Policy (Berkeley Program)-1 Middle Eastern Studies-1 Philosophy-6 Political Science-4 Psychology-2
And here are the hires by school in alphabetical order:
      Amanda Frost (JD Harvard)
    Arizona State
      Yariv Brauner (JD Hebrew University & JSD NYU)
      Adam Chodorow (JD Virginia & LLM NYU)
      Linda Demaine (JD Arizona & PhD Psychology Arizona State)
      Aaron Fellmeth (JD Yale)
      Sandeep Gopalan (JD National Law School of India & DPhil Law Oxford)
      Orde Kittrie (JD Michigan)
    Boston College
      Mary-Rose Papandrea (J.D. Chicago)
    California Western
      Michael Yu (JD Columbia & LLM NYU)
      John Hall (JD Stanford & DPhil History Oxford)
      Donald Kochan (JD Cornell)
      Francine Lipman (JD UC Davis & LLM NYU)
      Daniel Hamilton (JD George Washington & Phd History Harvard)
      Michael Scodro (JD Yale Law)
      Carolyn Shapiro (JD Chicago JD)
      Alex Raskolnikov (JD Yale)
      Robert Hockett (JD Kansas & MA Oxford; JSD Yale)
      Bernadette Meyler (JD Stanford & PhD English UC Irvine)
      David Franklin (JD Chicago)
      Jedediah Purdy (J.D. Yale)
      Neil Siegel (JD & PhD Berkeley)
      Kimberly Jenkins (JD Harvard)
      Michael Kang (JD Chicago & PhD Government Harvard)
      Julie Seaman (JD Harvard)
    Florida International University
      Jose M. Gabilondo (JD Berkeley)
      Heather Lauren Hughes (JD Harvard)
      Andre L. Smith (JD Howard & LLM Georgetown)
      Carlton Mark Waterhouse (JD Howard & PhD Social Ethics Emory)
    Florida State
      Amitai Aviram (JD Tel Aviv & JSD Chicago)
      Curtis Bridgeman (JD & PhD Philosophy Vanderbilt)
      Jonathan Klick (JD & PhD Economics George Mason)
      Robin Lenhardt (JD Harvard)
    George Mason
      Michelle Boardman (JD Chicago)
    George Washington
      Steve Charnowitz (J.D. Yale)
      Amanda Tyler (J.D. Harvard)
      John Mikhail (JD Stanford & PhD Philosophy Cornell)
      Ethan Yale (JD Tulane & LLM NYU)
      Hofstra: Michael Siebecker (JD Columbia & PhD Political Theory (expected) Columbia)
    Indiana, Bloomington
      Kevin Collins (JD Stanford)
    Loyola Marymount University
      Robin Kar (JD Yale & PhD Philosophy Michigan)
      Lauren Willis (JD Stanford)
    Loyola University (Chicago)
      Sacha M. Coupet (J.D., University of Pennsylvania; Ph.D., University of Michigan)
      Stephanie M. Stern ( JD Yale)
      Jason J. Czarnezki (J.D. Chicago)
      Scott A. Moss (J.D. Harvard)
    Michigan State
      Adam Candeub (J.D. Penn)
      Noga Morag-Levine (LL.B. Hebrew; Ph.D. Jurisprudence and Social Policy, UC Berkeley)
      Kristin Hickman (JD Northwestern)
      David Stras (JD & MBA Kansas)
    New York University
      Cristina Rodriguez (JD Yale)
      Tonja Jacobi (JD Australian National University & PhD Political Science (Expected) Stanford)
      Jide Nzelibe (JD Yale)
    Notre Dame
      No entry level hire this year.
    Ohio State
      Garry Jenkins (JD Harvard)
    Rutgers, Camden
      Greg Lastowka (JD Virginia)
      John Oberdiek (JD & PhD Philosophy Penn)
    Seton Hall
      Gaia Bernstein (JD Boston University & JSD (expected) NYU)
      Shavar Jeffries (JD Columbia)
      Frank Pasquale (JD Yale & MPhil Oxford Politics)
      Paul Horwitz (LL.B. Toronto & LL.M. Columbia)
    St. Louis University
      Fred Bloom (JD Stanford)
      Nicole Porter (JD Michigan)
    Southern Methodist
      Jenia Iontcheva (JD Yale).
      Alison Morantz (JD Yale & PhD Economcis Harvard)
      Christopher Gibson (JD Berkeley)
      Aviva Abramovsky (JD Penn)
      Terry Turnipseed (JD & LLM Georgetown)
      Craig Green
      David Hoffman (JD Harvard)
      Duncan Hollis (JD Boston College)
    Texas Wesleyan
      Neal Newman (JD Howard)
      Aric Short (JD Texas)
    University of California at Berkeley
      Anne Joseph (JD Yale, Ph.D Harvard in Political Economics and Government)
    University of California at Davis
      Michelle Alexander (JD Stanford)
      Jennifer Chacon (JD Yale)
      Carlton Larson (JD Yale)
      Donna Shestowsky (JD Stanford & PhD Psychology Stanford)
    University of California at Los Angeles
      Russell Robinson (JD Harvard)
      Noah Zatz (JD Yale)
    University of Chicago
      Adam Samaha (JD Harvard)
    University of Cincinnati
      Adam Steinman (JD Yale)
    University of Colorado
      Nestor Davidson (JD Columbia)
      Clare Huntington (JD Columbia)
    University of Connecticut
      Alexandra Lahav (JD Harvard)
    University of Georgia
      Kevin Jon Heller (JD Stanford)
      Erica Hashimoto (J.D. Georgetown)
    University of Kansas
      Elizabeth Weeks (JD Georgia)
    University of Kentucky
      Mark Kightlinger (JD & Ph.D., Philosophy, Yale)
    University of Nevada Las Vegas
      Tuan Samahon (JD Georgetown)
    University of Miami
      Mario L. Barnes (JD Berkeley)
    University of Michigan
      Alicia Davis Evans (JD Yale & MBA Harvard)
    University of Nebraska
      Richard Moberly (JD Harvard)
    University of North Carolina
      Richard Myers (North Carolina)
    University of Oklahoma
      Mary Sue Backus (JD William and Mary)
    University of San Diego
      Adam Kolber (JD Stanford)
      David Law (JD Harvard & PhD Political Science Stanford)
      Lisa Ramsey (JD UCLA)
    University of South Carolina
      Josie Brown (JD Harvard)
      Josh Eagle (JD Georgetown)
      Joel Samuels (JD Michigan)
    University of Tennessee
      Jeffrey Hirsch (JD NYU)
    University of Texas
      Oren Bracha (JD Tel Aviv & SJD Harvard)
    University of Washington
      Kristin Stilt (JD Texas & PhD Middle Eastern Studies Harvard)
      No entry level hire this year.
      Tiffany Graham (JD Virginia)
    Wake Forest
      No entry level hire this year.
    Washington & Lee
      Montre Underwood (JD Tulane)
      Melissa Waters (JD Yale)
    Western New England
      William Childs (JD Texas)
    Widener, Harriburg
      Ben Barros (JD Fordham)
      Michael Dimino (J.D. Harvard)
    William & Mary
      Eric Chason (JD Virginia)
      Nancy Combs (JD Berkeley)
      Erin Ryan (JD Harvard)
    William Mitchell
      Alexandra Klass (JD University of Wisconsin)
      John Radsan (JD Harvard)
I should probably stop saying that this is the final version of the list. If you have new information, I will do another update--perhaps at the end of the Summer.
And JD students are also hired in other disciplines. For example, Wharton Legal Studies reports that they have hired Kevin Werbach (JD Harvard).
Note: This list is for entry-level hires only. I have arbitrarily grouped first degrees in law as JDs, even though many non-US law schools award the LLB as the first law degree. Several readers have asked that I collect data on subject-matter areas, but my judgment is that this data is both too soft to be reliable and too difficult to collect. My thanks to everyone who has contributed information!

Pildes on Conceptions of Democracy Richard H. Pildes (New York University School of Law) has posted Competitive, Deliberative, and Rights-Oriented Democracy (Election Law Journal, Forthcoming) on SSRN. Here is the abstract:
    Recently, legal theory has seen a revival of competitive theories of democracy. These theories have been developed to provide a unifying framework for evaluating the Supreme Court's increasing use of constitutional law to regulate the structure of democratic processes and institutions, in areas like primary elections, campaign financing, direct democracy, third-party politics, and regulation of political parties. These competitive theories have been offered as an alternative to the more conventional, individual rights models that characterize the current judicial approach to issues of politics. At the same time, political theorists have been debating deliberative v. aggregative theories of democracy. In his new book, Law, Pragmatism, and Democracy, Richard Posner heaps contempt on deliberative theories of democracy and defends competitive ones. This review of Posner's book examines the relationship between deliberative, competitive, and rights-oriented theories of democracy and makes the case for greater attention to the institutional structures that shape democracy.

Bone on Trademark Puzzles Robert G. Bone (Boston University School of Law) has posted Enforcement Costs and Trademark Puzzles (Virginia Law Review, Forthcoming). Here is the abstract:
    The standard account holds that trademark law, at its core, aims to protect consumers from deceptive and confusing uses of source-identifying marks. However, there is a problem with the standard account. It cannot explain a number of important trademark doctrines, many of which, like the protection accorded trade dress, have expanded the scope of trademark rights in recent years. Some critics argue that these puzzling doctrines reflect a radical shift away from the standard account and toward a new property theory of trademark law that focuses not so much on the quality of information available to consumers as on the seller's ability to appropriate the full commercial value of its mark. This Article offers a different, and less alarming, explanation for many of the puzzling doctrines, one that does not require a radical departure from the standard account. This alternative explanation focuses on the enforcement costs of implementing law based on the standard account. Enforcement costs include the administrative costs of adjudicating trademark lawsuits and the error costs of over- and under-enforcing trademark rights. For a number of reasons, trademark law generates high enforcement costs, and many of the puzzling features of trademark doctrine can be understood as legal tools to manage these high costs. In particular, courts adopt general rules or standards that protect trademarks more broadly than the standard account's substantive policies support, but those rules and standards can be justified by the administrative and error costs they save. In the end, the Article uses the enforcement cost approach to suggest two reforms to trademark law - the broader acceptance of disclaimers especially in merchandising rights cases, and the abolition of trade dress protection.

Scott & Triantis Make the Case Against Compensation in Contract Law Robert E. Scott and George G. Triantis (University of Virginia School of Law and University of Virginia School of Law) have posted Embedded Options and the Case Against Compensation in Contract Law (Columbia Law Review, Vol. 104, 2004) on SSRN. Here is the abstract:
    Despite the fact that compensation is the governing principle in contract law remedies, it has tenuous historical, economic and empirical support. A promisor's right to breach and pay damages (which is subject to the compensation principle) is only a subset of a larger family of termination rights that do not purport to compensate the promisee for losses suffered when the promisor walks away from the contemplated exchange. These termination rights can be characterized as embedded options that serve important risk management functions. We show that sellers often sell insurance to their buyers in the form of these embedded options. We explain why compensation is of little relevance to the option price agreed to by the parties, which is a function of the value of the option to the buyer, its cost to the seller and the market in which they transact. We thus propose a novel justification for why penalty liquidated damages may be higher than seller's costs: they are option prices that reflect the value of the options to the buyer. The regulation of liquidated damages is thus tantamount to price regulation, which is outside the realm of contract law. Moreover, in light of the heterogeneity among optimal option prices, we also make the case against having an expectation damages default rule to begin with. In thick markets, we argue for enforcing the parties ex ante risk allocation with market damages. In thin markets, we propose that parties be induced to agree explicitly with respect to all termination rights, including breach damages, by the threat of specific performance of their contemplated exchange or, in the case of consumers, by a default rule that provides them a termination option at no cost.

Morgan on the Economisation of Politics Bronwen Morgan (University of Oxford - Centre for Socio-Legal Studies) has posted The Economisation of Politics: Metaregulation as a Form of Nonjudicial Legality (Social and Legal Studies, Vol. 12, No. 4, pp. 489-523, December 2003) on SSRN. Here is the abstract:
    Recent developments in regulatory reform strategies increasingly focus on regulating the process of regulation itself, rather than regulating social and individual action directly. This article explores the reflexive systematisation of regulatory policy by focusing on institutions and processes that embed regulatory review mechanisms deploying economic rationality into the every-day routines of governmental policymaking. It explores both the social logic underlying this henomenon of 'meta-regulation', and its political implications, primarily in relation to a particular instance of meta-regulation established in Australia in the 1990s. The social logic of meta-regulation is characterised as an instance of nonjudicial legality, situated at the intersection of two trends - an increasing legalisation of politics and a growing reliance on nonjudicial mechanisms of accountability. The political implications can be summed up as an 'economisation' of regulatory politics. Meta-regulation excludes competing ways of understanding regulatory policy choices, causing bureaucrats to 'translate' aspects of social welfare that previously may have been expressed in the language of need, vulnerability or harm into the language of market failures or market distortion. This process tends to silence certain critical modes of demanding justice, particularly those that rely on moral or distributive values.

Bartow on Gender and Law School Ann Bartow (University of South Carolina - School of Law) has posted Still Not Behaving Like Gentlemen (Kansas Law Review, Vol. 49, p. 809, May 2001) on SSRN. Here is the abstract:
    The author reflects upon the genesis of a law school project with Lani Guinier that ultimately resulted in the publication of a law review article entitled Becoming Gentlemen: Women's Experiences at One Ivy League Law School, and later a book, Becoming Gentlemen: Women, Law School, and Institutional Change. I discuss an apparent dearth of positive,substantive changes in legal education over the past eleven years, noting that women apparently continue to receive lower grades and fewer honors related to grades in top law schools. I also consider reactions to Becoming Gentlemen, and observe that to the extent it got everyone's attention, the role that Becoming Gentlemen played in exposing a concrete and quantifiable gender-linked accomplishment gap was useful and worthwhile. However, narrative based "soft data" are also important and may do a better job than the numbers of isolating specific causes of, and suggesting effective cures for, the gender gap. I also assert that though I'm reluctant to embrace the hegemony of "hard data,” the discourse on gender and legal education would benefit greatly from transparent and consistent disclosure of many categories of information. Law schools need to regularly compile and release accurate gender-keyed grade data, so that gender-based achievement gaps can be recognized and tracked. Information about bar passage and honorifics should be tabulated, and honest, straightforward, and frequently updated data about faculty composition should similarly be made available. When law schools are willing to release data in standardized form, law school applicants can make informed decisions about where they are more likely to feel comfortable and succeed, and even more critically, individuals administering and controlling law schools may be motivated to address challenges that the data illustrates. Interested legal educators from a wide range of viewpoints (and with a wide range of agendas) can (and no doubt will) disagree about what the data collections show, what they mean, and what, if anything, ought to be done about gender-related discrepancies, but at least regular doses of good information can establish a starting place from which to probe the limits of the problems, and to experiment with cures. Ulitimately I challenge every law school in the nation to compile, analyze and release (so that others can evaluate) accurate grade, honorofic, faculty composition, and placement data.

Tuesday, July 13, 2004
Just War Theroy If you are interested in just war theory, you will definitely want to check out, maintained by Mark Rigstad, Assistant Professor of Philosophy at Oakland University.

Yoo, Calabresi & Nee on the Unitary Executive Christopher S. Yoo , Steven G. Calabresi and Laurence Nee (Vanderbilt University - School of Law , Northwestern University - School of Law and Government of the United States of America - California Central District Court ) have posted The Unitary Executive During The Third Half-Century, 1889-1945 (Notre Dame Law Review, 2004) on SSRN. Here is the abstract:
    Recent Supreme Court decisions and the impeachment of President Clinton has reinvigorated the debate over Congress's authority to employ devices such as special counsels and independent agencies to restrict the President's control over the administration of the law. The initial debate focused on whether the Constitution rejected the "executive by committee" employed by the Articles of the Confederation in favor of a "unitary executive," in which all administrative authority is centralized in the President. More recently, the debate has begun to turn towards historical practices. Some scholars have suggested that independent agencies and special counsels have become such established features of the constitutional landscape as to preempt arguments in favor of the unitary executive. Others, led by Bruce Ackerman, have suggested that the New Deal represented a "constitutional moment" that ratified major changes in the distribution of power within the federal government. To date, however, a complete assessment of the historical record has yet to appear. This Article is part of a larger project that offers a comprehensive chronicle that places the battles between the President and Congress over control of the administration of federal law in historical perspective. It reviews the period between 1889 and 1945, beginning with the Administration of Benjamin Harrison, ending with the Administration of Franklin Delano Roosevelt, and paying particular attention to FDR's failed attempt to reorganized the executive branch. The record reveals that these Presidents during this period consistently defended the unitariness of the executive branch to a degree sufficient to keep the issue from being foreclosed by history. In fact, the episodes discussed provide eloquent illustrations of the legal and normative arguments supporting the unitary executive.

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

Lund on the Rehnquist Court & Civil Rights Nelson Lund (George Mason University School of Law) has posted The Rehnquist Court's Pragmatic Approach to Civil Rights on SSRN. Here is the abstract:
    This contribution to Northwestern Law School's symposium on the Rehnquist Court focuses on cases involving laws meant to limit or forbid discrimination on the basis of relatively fixed characteristics like race, sex, and disability. Within this field, I find a fairly consistent pattern of decisions since 1986, when William H. Rehnquist became Chief Justice, and I also see a fairly obvious explanation. Throughout this period, Justice Sandra Day O'Connor has frequently been the swing voter in the most important cases. She has consistently sought to move the law toward what she sees as a practical balance among competing goals reflected in the enactments the Court is called on to interpret, and her particular pragmatic vision has largely dominated the Court's decisions throughout this period. A large number of antidiscrimination laws (both statutes and constitutional provisions) have been enacted, and these laws have generated a very large number of interpretive judicial decisions. Space constraints in this symposium preclude anything like a comprehensive survey. Accordingly, I limit myself to three lines of case law, which I believe are representative of the Rehnquist Court's approach to intidiscrimination law, and which illuminate Justice O'Connor's preeminent role in fashioning that approach. Part I looks at the Court's decisions interpreting the Americans with Disabilities Act (ADA). Enacted in 1990, this is a "mature" statute in the sense that Congress and the contending interest groups that took an interest in its drafting had access to a great deal of information about how similar statutes had operated and been interpreted in the past. One should therefore expect the ADA to contain relatively few examples of language with inadvertent implications: to the extent that this statute contains language that is vague or ambiguous, or startling in its apparent effects, it is reasonable to presume that this was deliberately done or the result of deliberate compromises. The ADA was also a new statute, which means that the Rehnquist Court has been unconstrained by prior interpretive decisions that might have come out differently if this Court were considering them as an original matter. Together, these two features of the ADA suggest that we will get to see the Rehnquist Court operating in a relatively "pure" interpretive mode. Part II examines cases dealing with the related issues of disparate impact doctrine and affirmative action under Title VII of the Civil Rights Act of 1964. These cases illustrate the Rehnquist Court's approach to managing tensions between interpretive fidelity and the precedential effect of highly questionable decisions inherited from the Burger Court. Part III considers the application of equal protection doctrine to affirmative action programs. Here,in contrast to what we will see in the ADA and Title VII cases, the Rehnquist Court for a long time followed a tentative and wavering course. Last year, however, saw a bold and decisive ruling in Grutter v.Bollinger. With that decision, the nature of the Rehnquist Court's pragmatic approach to civil rights stands fully revealed.

Kontorovich on Universal Jurisdiction Eugene Kontorovich (George Mason University - School of Law) has posted A Positive Theory of Universal Jurisdiction (Notre Dame Law Review, Vol. 80, November 2004) on SSRN. Here is the abstract:
    Discussions of universal jurisdiction ("UJ") have been mostly normative, focusing on what UJ "should" be in an ideal world. This Article analyzes UJ from a positive perspective. It explains UJ in a way that is consistent with its historic origins, major cases, and with the incentives of rational, self-interested states. This provides a better understanding of what UJ has been in the past, as well as its limits and potential for the future. Piracy was for centuries the only UJ offense. This Article begins by isolating the characteristics of piracy that made it uniquely suitable for UJ. While these characteristics show why UJ over piracy would cause fewer problems than UJ over other crimes, they do not explain why nations would actually exercise UJ. Rational choice models of state behavior suggest nations would have no interest in exercising UJ. All that UJ adds to conventional categories of international jurisdiction is the ability of unaffected nations to prosecute. Given that prosecution is costly, rational, self-interested states would not expend scarce resources to punish crimes that did not directly harm them. Nations using UJ would bear all of the costs of enforcement while receiving none or little of the benefits. UJ is a public good, and thus it would be provided at suboptimally low levels, if at all. Yet the rational choice prediction appears inconsistent with UJ over piracy. This Article presents a new explanation of the function served by the universal principle. This explanation reconciles the historic evidence and the major cases with the rational choice model. Universal jurisdiction over piracy was useful to nations as a legal fiction rather than as a substantive expansion of jurisdiction. It was an evidentiary rule, a presumption designed to facilitate the proof of traditional territorial or national jurisdiction in cases where such jurisdiction probably existed but would be difficult to prove. Current efforts to broaden UJ invoke piracy as a precedent and a model. However, the new universal jurisdiction represents an entirely different phenomenon, one that does not share the characteristics that were necessary to piracy becoming universally cognizable, and that does not accord with the incentives of self-interested states. Thus the positive account of UJ suggests that the current efforts to expand it to human rights offenses will not succeed in improving enforcement or deterrence.

Gardner on Federalism & Positivsm James A. Gardner (State University of New York - University at Buffalo School of Law) has posted Whose Constitution Is It? Why Federalism and Constitutional Positivism Don't Mix on SSRN. Here is the abstract:
    It is frequently argued that state constitutions ought to be interpreted using a methodology of constitutional positivism, a familiar and commonplace theory of interpretational legitimacy that requires courts to treat a constitution as an authoritative expression of the will of the people who made it. I argue, contrary to this view, that orthodox constitutional positivism is not a viable interpretational methodology for subnational constitutions in a federal system. Although constitutional positivism makes sense for national constitutions, which furnish the paradigm case, subnational constitutions pose important problems for the political theory upon which constitutional positivism relies. According to that theory, the polity that creates a constitution must be unique, determinate, and self-constructed. These are exactly the conditions that American state polities fail to satisfy, and which cannot be satisfied by any subnational unit in a system of true federalism. In such a system, subnational units are autonomous sovereigns for some purposes but not for others, and thus are simultaneously both independent, autonomously self-governing entities and hierarchically subordinate dependencies of the national government. As a result, national norms are part of the constituting matrix of the state polity, and consequently of its constitution. This in turn means that interpretation of state constitutions inevitably will require at least some resort to national norms and sources of national constitutional meaning. Yet constitutional positivism prohibits such a move, for it forbids the interpretation of one constitution by reference to sources of meaning established by some other polity and appearing in some other constitution. It is telling that one of the most common phenomena in state constitutional law today is so-called "lockstep" interpretation, in which state courts construe provisions of state constitutions to have precisely the same meaning as similar provisions of the U.S. Constitution. For this they have been routinely criticized. My argument here suggests that this criticism is not necessarily well founded.

Monday, July 12, 2004
Blakely, the Sentencing Guidelines, and Certification to the United States Supreme Court In United States v. Penaranda (PDF here), the Second Circuit has certified the applicability of the Blakely decision to the federal sentencing guidelines to United States Supreme Court. Doug Berman is following these developments closely at Sentencing Law and Policy. Lawyers, law students, and even some constitutional law scholars may be unfamiliar with Section 1254(3) of Title 28 of the United States Code, which permits a United States Court of Appeal to certify questions to the United States Supreme Court. Here is the text of the provision:
    "Cases in the courts of appeals may be reviewed by the Supreme Court by the following methods: * * * (3) By certification at any time by a court of appeals of any question of law in any civil or criminal case as to which instructions are desired, and upon such certification the Supreme Court may give binding instructions or require the entire record to be sent up for decision of the entire matter in controversy.
This provision has only been used a handful of times in the past fifty-years. It gives the Court three choices (I think):
    1. The Court can reject certification altogether--implied by the word "may."
    2. The Court can accept certification and limit its consideration of the case to the questions certified.
    3. The Court can take jurisdiction of the whole case.
One way or another, the applicability of Blakely to the sentencing guidelines seems destined to reach the Supreme Court next term.

Rescheduling the Election Newsweek has a story titled Election Day Worries:
    Justice was specifically asked to review a recent letter to Ridge from DeForest B. Soaries Jr., chairman of the newly created U.S. Election Assistance Commission. Soaries noted that, while a primary election in New York on September 11, 2001, was quickly suspended by that state's Board of Elections after the attacks that morning, "the federal government has no agency that has the statutory authority to cancel and reschedule a federal election." Soaries, a Bush appointee who two years ago was an unsuccessful GOP candidate for Congress, wants Ridge to seek emergency legislation from Congress empowering his agency to make such a call. Homeland officials say that as drastic as such proposals sound, they are taking them seriously?along with other possible contingency plans in the event of an election-eve or Election Day attack. "We are reviewing the issue to determine what steps need to be taken to secure the election," says Brian Roehrkasse, a Homeland spokesman.

Update Comments from Rick Hasen, here, and Jack Balkin, here. Balkin's post has an especially nice discussion of the constitutional issues.

Ted Olson on the Supreme Court Term Gina Holland has an interesting report on Solicitor General Ted Olson's critique of the just-ended Supreme Court term titled Olson's Parting Shots: Supreme Court Term Bad for Conservatives. Here's a taste:
    Solicitor General Theodore Olson used his final day as the Bush administration's top Supreme Court lawyer to lament the Court's decision siding with foreign terrorism suspects over the president. He said Friday that the court term that ended last week held no good news for conservatives, especially the ruling that opened American courts to "enemy combatants" being held at the U.S. military base in Guantanamo Bay, Cuba.

Massey on Tiers & Formalism Calvin R. Massey (University of California, Hastings) has posted The New Formalism: Requiem for Tiered Scrutiny? on SSRN. Here is the abstract:
    A by-product of Lawrence v. Texas and Grutter v. Bollinger is that the rationales employed by the Court contribute to the destabilization of tiered scrutiny. Ever since the New Deal revolution in constitutional law the Court has employed and refined tiered scrutiny to resolve two questions: 1) When should the presumption of validity that attaches to government action be reversed? and 2) How strong must be the proof offered by governments to justify the validity of actions that are presumptively invalid? The considerable superstructure created by courts in the service of this endeavor has become ever more complex and unwieldy, but Lawrence and Grutter suggest that this analytic structure is now subject to new and severe strain. In striking down Texas's prohibition on private consensual sexual intimacies between adults of the same sex, the Court was unwilling to declare that consensual sex between adults is a fundamental liberty interest, or even that the ability to enter and maintain a consensual intimate relationship with another adult is a fundamental liberty interest. Instead, the Court declared that Texas had no legitimate interest in decalring its vision of morality. This rationale undervalues the very liberty that it purports to protect, undermines a host of laws and practices that represent widely held public values, and renders less coherent the entire enterprise of substantive due process. In upholding under strict scrutiny the presumptively unconstitutional racially based admissions practices of the University of Michigan Law School, the Court in Grutter exhibited remarkable deference to the judgment of academic administrators and employed an unusually loose form of narrow tailoring. The result of this analytic mode is to call into question the meaning of strict scrutiny and raises questions about the differences between strict and intermediate scrutiny. Taken together, Lawrence and Grutter suggest that the pigeonhole categories of tiered scrutiny are ill-defined, if not in danger of outright collapse. The Court must necessarily consider alternatives. Possible alternatives include a version of Justice Thurgood Marshall's sliging-scale analysis, a revived and stiffened version of tiered scrutiny, or invention of an entirely new analytical mode.

Polinsky on Nuisance Remedies A. Mitchell Polinsky (Stanford Law School) has posted Resolving Nuisance Disputes: The Simple Economics of Injunctive and Damage Remedies on SSRN. Here is the abstract:
    In nuisance-type cases, legal commentators generally recommend - and the courts seem to increasingly use - the award of damages rather than the granting of an injunction of the harmed party. This essay compares the economic consequences of injunctive and damage remedies under a variety of circumstances. The discussion focuses of the ability of the remedies to deal with strategic behavior of the litigants, the cost of redistributing income among the litigants (or classes of litigants), and the imperfect information of the courts. In ideal circumstances - cooperative behavior, costless redistribution, and perfect information - injunctive and damage remedies are equivalent. The presence of strategic behavior alone does not change this conclusion. However, if it is also costly to redistribute income, the remedies are no longer equivalent. When there are a small number of litigants in these circumstances, neither remedy is generally more effective. When there are a large number of litigants, the damage remedy is superior. Finally , and most realistically, if the courts also have imperfect information, neither remedy dominates the other. Thus, the general presumption in favor of damage remedies is not supported.

Riles on the Cultural Study of Law and Technology Annelise Riles (Cornell University - School of Law) has posted Taking on Technology: A New Agenda for the Cultural Study of Law on SSRN. Here is the abstract:
    This article urges humanistic legal studies to take the technical dimensions of law as a central focus of inquiry. Using archival and ethnographic investigations into developments in American Conflict of Laws doctrines as an example, and building on insights in the anthropology of knowledge and in science and technology studies that focus on technical practices in scientific and engineering domains, it aims to show that the "technologies" of law - an ideology that "law is a tool" and an accompanying "technical aesthetic" of legal knowledge - are far more central and far more interesting dimensions of legal practice than humanists have often conceded. The article's concrete focus is the nature of relations of means and ends in the Realist Revolution, as exemplified by the field of Conflicts, and the quiet but fundamental transformation of the character of those relations in mid and late-twentieth century legal knowledge.

Joyce and Patterson on the Founder's View of the Copyright Power Craig Joyce and L. Ray Patterson (University of Houston Law Center - Institute for Intellectual Property & Information Law and University of Houston Law Center (Deceased)) have posted Copyright in 1791: An Essay Concerning the Founders' View of the Copyright Power Granted to Congress in Article I, Section 8, Clause 8 of the US Constitution (Emory Law Journal, Vol. 52, No. 909, 2003). Here is the abstract:
    Copyright in 1791: An Essay explores the meaning of the Copyright Clause of the United States Constitution as the Founders understood it in their own time. In his examination of the history of copyright prior to the adoption of the Constitution, Professor Joyce and his co-author, L. Ray Patterson of Georgia, consider the language of the Founders' provision for copyright against the background of Anglo-American copyright history from the 16th Century to 1787. Among their principal findings is that, to the Founders, a relatively brief term of protection, followed by entry of the work into the public domain, was a crucial element of the copyright grant required to protect against the inherent dangers of the copyright monopoly. In addition, Copyright in 1791: An Essay uncovers for the first time the historical interrelationship between the Copyright Clause and the Free Press Clause of the First Amendment. Earlier scholars have sought to reconcile these two constitutional provisions primarily through an analysis of doctrinal considerations, such as the idea/expression dichotomy. The authors conclude that the Founders themselves saw no need for reconciliation: the two provisions already were complementary, both embodying anti-censorship, anti-monopoly values learned by the Founders from their English forebears. In short, the Copyright Clause and the Free Press Clause share a common origin.

Saturday, July 10, 2004
Legal Theory Bookworm This week, the Legal Theory Bookworm recommends Natural Law Theory: Contemporary Essays by Robert P. George (Princeton). Here's the blurb:
    Natural law theory is enjoying a revival of interest in a variety of scholarly disciplines including law, philosophy, political science, and theology and religious studies. This volume presents twelve original essays by leading natural law theorists and their critics. The contributors discuss natural law theories of morality, law and legal reasoning, politics, and the rule of law. Readers get a clear sense of the wide diversity of viewpoints represented among contemporary theorists, and an opportunity to evaluate the arguments and counterarguments exchanged in the current debates between natural law theorists and their critics. Contributors include Hadley Arkes, Joseph M. Boyle, Jr., John Finnis, Robert P. George, Russell Hittinger, Neil MacCormick, Michael Moore, Jeffrey Stout, Joseph Raz, Jeremy Waldron, Lloyd Weinreb, and Ernest Weinrib.
This is a terrific collection of essays, especially if you already have a good foundation in contemporary analytic jurisprudence.

Download of the Week This week, the Download of the Week is Toleration and Liberal Commitments by Steven Douglas Smith (University of San Diego - School of Law). Smith is one of the most interesting writers on law and religion, and I always learn from him. Here is the abstract:
    This essay defends the ideal of toleration as against familiar criticisms coming from opposing directions. The "illiberal" objection argues that toleration is too permissive. Given the choice, why should we knowingly put up with error? The "ultraliberal" objection, reflected among others places in current free speech and religion clause jurisprudence, complains that "mere" toleration is condescending and illiberal because it declines to treat ideas and persons with equal concern and respect. This essay argues that both sorts of objections are misconceived and that if the valued liberal commitments of the American constitutional tradition are to be maintained, then we will necessarily have to embrace an ideal of toleration. The essay further argues that a renewed commitment to toleration is especially imperative at the present time as we try to cope, internally, with an exhausted ultraliberal discourse reflected in increasingly ineffectual Supreme Court opinions and, externally, with a so-called "clash of civilizations" or cultures that calls upon us to defend our central values rather than complacently pretend to rest in an "overlapping consensus" that needs no more foundational justification.
Download it while its hot!

SSRN Top Recent Downloads As of this morning, SSRN's top download links were not working. Look for this feature again next Saturday.

Friday, July 09, 2004
Posner Applies Blakely to the Federal Sentencing Guidelines Courtesy of Doug Berman at Sentencing Law and Policy, here is the opinion. I just finished reading Posner, who wrote on of his signature get-to-the-point, no-BS opinions. Well, we all new something like this was coming, and here it is!

Law on Ideology and Publication in the Ninth Circuit David S Law (USD School of Law) has posted Strategic Judicial Lawmaking: An Empirical Investigation of Ideology and Publication on the U.S. Court of Appeals for the Ninth Circuit on SSRN. Here is the abstract:
    Previous studies have demonstrated that, in a number of contexts, federal appeals court judges divide along ideological lines when deciding cases upon the merits. To date, however, researchers have failed to find evidence that circuit judges take advantage of selective publication rules to further their ideological preferences - for example, by voting more ideologically in published cases that have precedential effect than in unpublished cases that lack binding effect upon future panels. This article evaluates the possibility that judges engage in strategic judicial lawmaking by voting more ideologically in published cases than in unpublished cases. To test this hypothesis, all asylum cases decided by the Ninth Circuit over a ten-year period were coded for analysis, and Markov Chain-Monte Carlo methods were used to estimate the extent to which publication increased the likelihood that each judge in the data set would vote in favor of asylum. A number of Democratic appointees proved significantly more likely to vote in favor of asylum in published cases. No such pattern emerged with respect to Republican appointees. This study also confirms earlier findings that Democratic and Republican appointees divide along ideological lines to a significant extent in both published and unpublished cases. The extent of the ideological voting behavior observed in unpublished cases calls into question the validity of much research on judicial behavior, insofar as such research continues to rely exclusively upon the analysis of published opinions and ignores unpublished opinions for reasons of convenience.

Law on Generic Constitutional Law David S Law (USD School of Law) has posted Generic Constitutional Law on SSRN. Here is the abstract:
    This paper seeks to articulate and explore the emerging phenomenon of generic constitutional law, here and in other countries. Several explanations are offered for this development. First, constitutional courts face common normative concerns pertaining to countermajoritarianism and, as a result, experience a common need to justify judicial review. These concerns, and the stock responses that courts have developed, amount to a body of generic constitutional theory. Second, courts employ common problem-solving skills in constitutional cases. The use of these skills constitutes what might be called generic constitutional analysis. Third, courts face overlapping influences, largely not of their own making, that encourage the adoption of similar legal rules. These similarities make up a body of generic constitutional doctrine. In conclusion, the paper discusses why the idea of generic constitutional law should matter to legal academics, and whether judges can or should resist its development.

Ryskamp on Sunstein John Ryskamp has posted On Sunstein and the New Bill of Rights on SSRN. Here is the abstract:
    Cass Sunstein's book on a second bill of rights, brings to light a continuing debate on the nature and extent of individual rights. When I was in law school, we talked a great deal about them with Myron Moskovitz, who was in on some of the affirmative rights cases brought before the California Supreme Court during the 1970s. The discussion broke down into three areas.

Claeys on Zoning Eric Claeys (Saint Louis University - School of Law) has posted Euclid Lives? The Uneasy Legacy of Progressive Political Theory in Zoning (Fordham Law Review, Vol. 73, No. 2, November 2004) on SSRN. Here is the abstract:
    This article studies the conception of the public interest promoted by Euclidean zoning laws. It argues that this conception is best understood as an application of general themes of the political theory in vogue among Progressives circa 1900 to 1920. To demonstrate this connection, the article surveys and interprets writings by leading zoning advocates--the first wave of zoning treatises, pamphlets and books by reformers who agitated for new zoning codes, and the published proceedings of the annual National Conference of City Planning. Read as a whole, these materials place faith in strong communities, local moral formation, and an organic conception of changing societal values. Many of the key institutional features of Euclidean zoning follow from these core beliefs. Advocates justified use districts, planning, and aesthetic regulations as means to the end of strong local communities. The article then uses the Progressive-political case for zoning to critique the standard arguments presented in defense of Euclidean zoning in case reports, treatises, and land-use scholarship now.

Heise on Litigated Learning Michael Heise (Cornell Law School) has posted Litigated Learning and the Limits of Law (Vanderbilt Law Review, Vol. 57, 2004) on SSRN. Here is the abstract:
    Brown's legacy and what it says about the efficacy of litigation as a vehicle to achieve social change mean different things to different people. Although popular mythology emphasizes Brown's critical role in securing equal educational opportunity, careful reflection reveals that the decision's legacy is anything but clear. A narrow focus on school desegregation suggests Brown's legacy is aptly characterized as one of unfulfilled promise. A broader focus that extends to include subsequent equal educational opportunity activity such as the school finance litigation movement, however, casts positive light on Brown's legacy. More important than completing interpretations of Brown's legacy is what the decision implies for current and future efforts to secure greater educational equity through litigation. In this Article I argue that Brown's legacy does not bode well for future litigation efforts seeking to enhance the equal educational opportunity doctrine, principally due to how the doctrine has evolved during the past fifty years. Even if one concludes that Brown succeeded in the school desegregation context, the equal educational opportunity doctrine has changed during the past fifty years in ways that make it less amenable to litigation. Unlike past efforts, emerging reform efforts focus more directly on student academic achievement rather than race or school funding. Academic achievement implicates teaching and learning activities - activities located deeper inside schools and classrooms and further from litigation's reach. If past education reformers and litigants found it difficult to penetrate factors located outside schools (school demographic profiles and funding levels), litigation efforts seeking to influence student achievement will encounter even greater difficulty. Student academic achievement's insulation from even successful litigation underscores its inherent complexity, the salience of non-legal components and, more generally, structural limitations of law and litigation as tools to achieve desired social change. If my central claims are correct, the more complicated litigation efforts of the future will require manifestly greater effort. And greater effort alone will not insure success.

Thursday, July 08, 2004
Medema on Sidgwick and the Economic Analysis of Law Steven G. Medema has posted Sidgwick's Utilitarian Analysis of Law: A Bridge from Bentham to Becker?. Here is a taste:
    Jeremy Bentham's utilitarian analysis of crime and punishment is regularly characterized as an inspiration for the economic analysis of law, whereas Henry Sidgwick has been all but ignored in the discussions of the history of law and economics. Sidgwick is well known as the godfather of Cambridge welfare economics. Yet, as we will show, his utilitarian analysis of issues in property, contract, tort, and, criminal law reflect themes now associated with the Chicago approach and advance on Bentham in multiple ways - including through the use of marginal analysis-making him a bridge on the road between Bentham and Becker.

Levy on Experimental Philosophy Neil Levy has posted Experimental Philosophy: A Critique. Here is a taste:
    Experimental philosophers hypothesize that the intuitions to which philosophers appeal will be similarly affected by culture. To test this hypothesis, they designed a number of probes, designed to elicit philosophically relevant intuitions, and tested the degree to which subjects in different cultures shared the intuitions to which philosophers appeal. For instance, in one study they presented EAs and Ws with short narratives of the kind to which Kripke (1980) appeals against descriptivist theories of reference. They found that though Ws tended to share the intuitions of causal theorists of reference – that is, to take proper names to refer to the individual who stands at the beginning of the causal chain leading to the relevant use of the name – EAs were more likely to have descriptivist intuitions (Machery et al. 2004). Similarly, they found that epistemic intuitions differ from culture to culture, with EAs more likely than Ws to attribute knowledge to subjects in Gettier-style cases (Weinberg et al. 2001; Nichols et al. 2003).

Feldman on Trade Secret Yuval Feldman (Faculty of Law, Bar-Ilan University (starting Fall 2004) and University of California, Berkeley - School of Law (Boalt Hall)) has posted The Behavioral Foundations of Trade Secrets: Tangibility, Authorship and Legality on SSRN. Here is the abstract:
    This paper examines whether the nature of information protected by trade-secrets law impacts departing employees' normative judgments of obedience to trade-secrets law. This examination is based on a comparison of three manipulated hypothetical scenarios: when the employee memorizes the confidential information, when the employee develops the confidential information herself and when the employee downloads the confidential information to her personal computer. The empirical analysis is based on data collected from a non-random multi-sourced sample of 260 high tech employees in Silicon Valley. These experimental manipulations enable me to examine and compare the contributions of tangibility and authorship to employees' normative evaluations of the sharing of confidential information/trade secrets. I conclude that while tangibility was a far stronger factor in employees' normative evaluations of trade secrets, authorship was strongly related to the morality of trade-secrets disclosure. In addition, based on a path-analysis approach, I examine and compare the ways in which social costs, legal costs, morality and perceived psychological contract contribute to the effects of tangibility and authorship on employees' normative evaluations of the sharing of confidential information/trade secrets. When attempting to explain the effect of tangibility, the expected social approval of the new firm proved to be the most important factor. I conclude with an examination of the behavioral importance several legal paradigms to Silicon Valley high tech employees' views of trade secrets - general paradigms such as loyalty and ownership are considered in addition to more particular paradigms such as the 'labour theory' and the memory rule.

Harman on Moral Particularism Gilbert Harman has posted Moral Particularism and Transduction. Here is a taste:
    The theory of direct or transductive inference, as described in statistical learning theory (Vapnik 1998, 2000), provides a model for a version of moral particularism interpreted as a theory of moral reasoning.

New on Law and Politics Book Review
    Klarman, Michael J. From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality....pp.507-512. Reviewed by Michelle D. Deardorff. Mason, Paul(ed.). Criminal Visions: Media Representations of Crime and Justice.....pp.513-516. Reviewed by David Fraser. Fried, Charles. Saying what the Law is: The Constitution in the Supreme Court....pp. 517-519. Reviewed by Samuel B. Hoff. West, Robin L. Re-imagining Justice: Progressive Interpretations of Formal Equality, Rights, and the Rule of Law....pp.520-524. Reviewed by Gloria C. Cox.

Wednesday, July 07, 2004
Volokh & Bell on Treason Eugene Volokh has a nice post on treason, with a pointer to an article by Tom Bell entitled Treason, Technology, and Freedom of Expression. Here is a snippet from the conclusion of Bell's article:
    “If the crime of high treason be indeterminate, this alone is sufficient to make the government degenerate into arbitrary power,”202 Montesquieu famously claimed. On that accounting, we have a great deal to fear from the U.S. government. But we have good reason to worry about the law of treasonous expression even if we don’t adopt Montesquieu’s rather dire outlook. As courts have interpreted it, the law of treason allows for the punishment of an indeterminate but wide range of disloyal public expressions that help enemies of the U.S. That interpretation both subverts the original meaning of the constitution’s treason clause and violates the strict scrutiny test applied to content-based restrictions on expression. To save the law from unconstitutionality, courts should in cases of treasonous expression interpret the “adhering to [U.S.] enemies” element of treason as nothing broader than “being employed by enemies of the U.S.” Perhaps courts should demand a still less restrictive variation on the law of treason. Perhaps they should do away with the law of treasonous expression altogether. At the least, though, they should limit liability for treasonous expression to defendants employed by enemies of the U.S. Anything broader than that would, by wounding our First Amendment rights, do far more to harm the U.S. than disloyal expressions would.

Haack on Science and Advocacy Susan Haack (University of Miami) has posted Truth and Justice, Inquiry and Advocacy, Science and Law (Ratio Juris, Vol. 17, pp. 15-26, March 2004) on SSRN. Here is the abstract:
    There is tension between the adversarialism of the U.S. legal culture and the investigative procedures of the sciences, and between the law's concern for finality and the open-ended fallibilism of science. A long history of attempts to domesticate scientific testimony by legal rules of admissibility has left federal judges with broad screening responsibilities; recent adaptations of adversarialism in the form of court-appointed experts have been criticized as "inquisitorial," even "undemocratic." In exploring their benefits and disadvantages, it would make sense to look to the experience of other legal systems.

Kitrosser on the R.A.V. Problem Heidi Kitrosser (Brooklyn Law School) has posted Containing Unprotected Speech: Toward A New Understanding of the R.A.V. Problem on SSRN. Here is the abstract:
    This article addresses a tension between two major directives of U.S. free speech doctrine: the content distinction directive, whereby government presumptively cannot regulate speech based on its content, and the categorization directive, whereby some speech is deemed unprotected based on content. This article addresses the tension as it manifests itself in content-based regulations of unprotected speech, which the Supreme Court has, for over a decade, deemed constitutionally problematic. This article rejects the Court's rationale for concern over such regulations, but offers an alternative basis for concern. Specifically, this article concludes that content-based regulations are constitutionally troubling solely because of the risk that they will impact protected speech. Acknowledgment of such risk stems from what this article refers to as the containment principle: the notion that a crucial aspect of categorization doctrine is the inclusion of mechanisms to limit the expansion of unprotected speech categories' scope. This article explains that the danger posed by content-based regulations of unprotected speech is that they either will punish speakers based in part on their use of protected speech, or that they will chill speech and skew fact-finder conclusions toward punishing speech in cases treading the fine line between protected and unprotected speech. The former risk exists when a regulation insufficiently connects the targeted content element to the unprotected speech category, thus defining punishable expression based partly on an unprotected element and partly on a separate, protected speech element. The latter risk takes more than one form, but the major form is the risk that the content-element will steer speakers and fact-finders toward concluding that speech that might otherwise be deemed merely close to the "unprotected line" crosses the line where a targeted content element is present, given the relative salience of content elements and the relative ambiguity of what constitutes unprotected speech. After introducing the containment principle and the risks that content-based regulations of unprotected speech pose to protected speech, this article offers new doctrinal standards that are responsive to these risks.

Brophy on Reparations Alfred L. Brophy (University of Alabama - School of Law) has posted The Cultural War Over Reparations for Slavery (DePaul Law Review, Vol. 53, pp. 1181-1213, 2004) on SSRN. Here is the abstract:
    "The Cultural War Over Reparations" maps the differences in perspectives on reparations between supporters and skeptics. It asks why there is a difference in support for reparations among blacks and whites? What is it about reparations that makes them so controversial? It then assesses the goals of reparationists, such as apologies and truth commissions, accounting for past wrongs, and addressing those wrongs through programs of community empowerment. Then it turns to the reparations skeptics' arguments. There are four key groups of arguments against reparations: there is no moral or legal liability; compensation has already been made; reparations are unworkable or not politically practicable; and reparations are divisive, which is at the center of the cultural war. The essay suggests that there may be further accounting of past injustices, but that compensation is, perhaps, unattainable, at least in the near term.

Call for Papers: Alternative Histories of Law & Legal Theory
    ALPSA 2005 Annual Publication: Alternative Histories of Law and Legal Theory Call for Submissions The Australian Legal Philosophy Students Association is calling for submissions to its second Annual Publication. The theme for the 2005 publication is Alternative Histories of Law and Legal Theory. Submissions may be in the form of articles, short stories, poems, essays, or even artwork and photography. It is envisaged, however, that most submissions will be academic articles of any length up to 8,000 words (shorter submissions are encouraged; where longer, please confer with the editors). We are particularly interested in receiving submissions from legal philosophers of non-Western countries who can write a short history of their country’s legal philosophy in the context of socio-historical developments. This may be restricted as to time (e.g. ‘The last 20 years of legal philosophy in the Czech Republic’) or to a few important figures. Legal philosophers of any nation may also wish to write about ‘forgotten figures’ or 'forgotten ideas' of legal philosophy (whether western or not), that is, those that have not made it into mainstream accounts of legal philosophy. Or contributors may want to question the very use of the phrase ‘an alternative history.’ Submissions should be emailed as word documents to or sent in print form and saved on a CD or diskette to Australian Legal Philosophy Students Association, c/o Max Leskiewicz, TC Beirne School of Law, University of Queensland, St Lucia, 4072. Submissions should conform to the Oxford Journal of Legal Studies style guide. The deadline for submissions is the 1st of May 2005. ALPSA is a student-managed non-profit organisation based at the TC Beirne School of Law, University of Queensland, Australia. ALPSA's patron is Prof. John Finnis (Oxford) and it has a 15-person strong National Academic Board. It’s 2004 Annual Publication included contributions from Professors Costas Douzinas, Austin Sarat, Peter Brooks, William Twining, Peter Goodrich, Richard Weisberg, Martin Stuart-Fox and The Hon. Justice Callinan (High Court of Australia). ALPSA also runs a $3,500 National Essay Competition. More information about ALPSA is available online ( We look forward to receiving your submissions. Yours sincerely, Max Leskiewicz President, ALPSA TC Beirne School of Law University of Queensland, Australia

Call for Papers: Maritain, Politics and the Ethical
    CALL FOR PAPERS : 'Maritain, Politics, and the Ethical' October 29 and 30, 2004, les 29 et 30 octobre 2004 Ottawa, Ontario Canada sponsored by The Canadian Jacques Maritain Association (l'Association canadienne Jacques Maritain). Papers (of up to 35 minutes reading time) will be accepted in English and in French. Please submit proposals for papers by August 13, 2004. Earlier indications of interest would be appreciated. For further information, contact: Professor William Sweet Chair, Department of Philosophy Director, Centre for Philosophy, Theology, and Cultural Traditions, St Francis Xavier University Antigonish, NS B2G 2W5 Canada fax 1 902 867 3243 // tel 1 902 867 2341 Association Web page:

Tuesday, July 06, 2004
Wentworth on the Induce Act Donna Wentworth has an informative post on the Induce Act titled Tech Companies Rally Against the Induce Act.

Blakely News Blakely v. Washington was surely a landmark opinion, but it has been neglected in the wake of less procedural and splashier cases from last term. If you want to know more about this immensely important decision on the role of jury factfinding in the sentencing process, the place to to is Doug Berman's Sentenching Law and Policy. Here are some of the recent posts:Highly recommended!

Another Review of the October 2003 Supreme Court Term Over at, there is yet another review of 03/04 term of the Supreme Court. Here's a taste:
    In a U.S. Supreme Court term enlivened by terrorism-related rulings, the Pledge case and a recusal controversy, pragmatism repeatedly triumphed over principles. The justices forcefully asserted their primacy -- taking up issues across constitutional and national boundaries -- but then pulled back and left it to others to fight another day. Here's a review of some of the major trends, an up-close look at select cases and players, and a peek at the upcoming term.

Two by Hasen Election-law superbloger Rick Hasen has two new papers on SSRN:
    Looking for Standards (in all the Wrong Places): Partisan Gerrymandering Claims after Vieth. Here is the abstract:
      In 1986, the Supreme Court held that it would entertain claims that a legislative decision to redistrict legislative seats to give unfair advantage to one major political party over the other could violate the United States Constitution's Equal Protection Clause. But the Court's fractured decision in Davis v. Bandemer that such "partisan gerrymandering" claims were justiciable resulted in virtually no successful claims in the lower courts. In Vieth v. Jubelirer, 124 S. Ct. 1769 (2004), the Court revisited the issue. The case was a 4-1-4 split. Four Justices signed a plurality opinion stating the view that partisan gerrymandering claims should be considered nonjusticiable because of the absence of a "judicially manageable" standard for separating permissible from impermissible consideration of party affiliation of voters in the redistricting enterprise. Four Justices would have adopted one of three invigorated tests to police partisan gerrymandering. Justice Kennedy, writing only for himself, agreed with the four dissenters that partisan gerrymandering cases remain justiciable. But he also agreed with the four Justices in the plurality that the Vieth plaintiffs' claim must fail because no one has articulated thus far judicially manageable standards for partisan gerrymandering claims. He suggested a standard might emerge from historical discussions of districting practices, better computer technology, or shifting to a First Amendment analysis. Part I of this Article surveys the five opinions in Vieth, focusing on Justice Kennedy's pivotal opinion. Part II explains why Justice Kennedy is unlikely to find a judicially manageable standard for partisan gerrymandering in history, technology, or the First Amendment, given his rejection of vote dilution, expressive harm, conflict of interest, and improper motive tests proposed by the Vieth plaintiffs and dissenters. Finally, Part III endorses Justice Kennedy's decision to leave the door open to future partisan gerrymandering cases. It explains that the judicial manageability debate in Vieth conflates two separate concerns: one about consistency of result across the courts and a second about the justifiability of a standard for judging partisan gerrymandering claims. The consistency of result concern is overblown, because the Court could rather easily come up with an easily administrable partisan gerrymandering standard. But the Court should refrain from coming up with such a standard until it could be justified by an emerging social consensus regarding proper and improper consideration of voter party identification in redistricting. If consensus emerges, the Court may embrace it. Until then, the matter should be left to the political processes, which have a number of tools to control egregious partisan behavior.
    Congressional Power to Renew the Preclearance Provisions of the Voting Rights Act after Tennessee v. Lane, 66 Ohio State Law Journal ___ (forthcoming 2005). Here is the abstract:
      This article considers a single question: does Congress have the power to renew the Voting Rights Act's preclearance provisions, set to expire in 2007? Beginning with South Carolina v. Katzenbach (1966), the United States Supreme Court has upheld preclearance as a permissible exercise of congressional enforcement power. These cases, however, mostly predate the Supreme Court's New Federalism revolution. As part of that revolution, the Court, in a series of recent cases has greatly restricted the ability of Congress to pass laws regulating conduct of the states under its enforcement powers granted in Section Five of the Fourteenth Amendment, which the Court has read as coextensive with its enforcement powers under the Fifteenth Amendment. Moreover, in Board of Trustees v. Garrett (2001), the Court made clear that it will search for an adequate evidentiary record to support a congressional determination that states are engaging in unconstitutional conduct so as to justify congressional regulation of the states. Some of that clarity on the evidentiary question disappeared in the Court's 2003 decision, Nevada v. Hibbs, and even greater uncertainty has been created by the Court's 2004 decision, Tennessee v. Lane. Part I of this article surveys the legal landscape through the developments in Garrett facing those who wish to defend renewed preclearance as an appropriate exercise of congressional power under the Fourteenth or Fifteenth Amendments. Part II then turns to the "Bull Connor is Dead" problem: Most of the original racist elected officials are out of power, and those who remain in power (along with any new elected officials who either intend to discriminate on the basis of race or who otherwise would care less about a discriminatory effect in a change in voting practices or procedures on a protected minority group) have for the most part been deterred by preclearance. Thus, there is not much of a record of recent state-driven discrimination that Congress could point to supporting renewal. The question of how much racial discrimination in voting practices there would be today if we suddenly eliminated preclearance is almost too speculative to answer. It is difficult to see how Congress may prove that preclearance remains necessary under the Garrett evidentiary standard. Part III then then explains how in two recent cases on Congressional power, Nevada v. Hibbs and Tennessee v. Lane, the Supreme Court appears to have backed away from the strict evidentiary standard imposed in Garrett. These cases increase the chances that the Court would hold that Congress has the power to reenact section 5's preclearance provisions, particularly given Justice Scalia's separate opinion in Lane in which he indicated his new position that Congress has broad latitude to pass legislation aimed at combating racial discrimination. In addition, the Supreme Court's recent opinion in Georgia v. Ashcroft, construing the statutory standard for granting preclearance, takes more pressure off constitutional challenges to a renewed preclearance provision. Part IV concludes in a more speculative vein with a look at an alternative basis for congressional power to reenact preclearance: the Guarantee Clause.

Online Communities Eszter Hargittai has a really excellent post on online communities over at Crooked Timber, including a pointer to Community without Propinquity Revisited: Communications Technology and the Transformation of the Urban Public Sphere by Craig Calhoun.

Yoo on Torture and the Law John Yoo has an op/ed in the Los Angeles Times entitled A Crucial Look at Torture Law. Here is a taste:
    [T]here is a clear and necessary difference between law and policy. The memo did not advocate or recommend torture; indeed, it did not discuss the pros and cons of any interrogation tactic. Rather, the memo sought to answer a discrete question: What is the meaning of "torture" under the federal criminal laws? What the law permits and what policymakers chose to do are entirely different things.
Update: Comments by C.E. Petit here.

Boldrin & Levine on IP & the Scale of the Market Michele Boldrin and David K Levine have uploaded Intellectual Property and the Scale of the Market to Levine's Working Paper Archive. Here is a taste:
    The U.S. Constitution gives Congress the power to .To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.. This recognizes the two basic economic features of intellectual property protection: on the one hand exclusive rights create monopoly power and so should be limited in time. On the other, monopoly power provides an incentive for creation and innovation. For practical reasons the same time limit applies across a wide variety of different creations and innovation: In U.S. law, copyright is life of author plus 70 years for individual works; 95 years for works for hire; design patents are 20 years and ornamentation patents are 14 years. Since the private pro_tability of creating and innovating varies widely, this means that for any _xed time limit many ideas will earn pro_ts above and beyond the level needed to recoup the cost of innovation. In a larger market pro_ts will be greater, and inframarginal ideas will earn additional economically unnecessary rents. Obviously, as the market expands, it becomes possible to reduce the length of term without reducing the production of new ideas. But, as the market expands, not only will some ideas earn economically unnecessary rents, but some ideas that were not pro_table to produce will become so, and reducing the length of term will discourage these marginal entrepreneurs. In this paper we look at the general equilibrium interaction among these forces. Our basic result is an intuitive one. Optimal copyright and patent term length involves a tradeoff between increasing the unnecessary consequences of monopoly on inframarginal ideas, and increasing the number of marginal ideas. As the scale of the market increases, it will generally be desirable to give up some of the additional marginal ideas in exchange for reduction of monopoly across the broad variety of ideas that will be produced anyway, and so the optimal policy should reduce the length of protection as the scale of the market increases.

Barry on Redistribution Christian Barry has a new Stanford Encyclopedia of Philosophy entry entitled Redistribution:
    When philosophers, social scientists, and politicians seek to determine the justice of institutional arrangements, their discussions have often taken the form of questioning whether and under what circumstances the redistribution of wealth is justified. This essay examines the different ways in which redistribution can be understood, the diverse political contexts in which it has been employed, and whether or not it is a useful concept for exploring questions of distributive justice.

Simpson Reviews Desert and Justice At Notre Dame Philosophical Revies, Peter Simpson has a Review of Serena Olsaretti's Desert and Justice. Here is a taste:
    This collection of essays originated from a conference on desert and justice held in Cambridge, England, in 2001. The contributors include some significant names in contemporary Anglo-American moral philosophy. Besides Olsaretti herself, who also wrote the Introduction, the essayists are Richard Arneson, Fred Feldman, Thomas Hurka, Shelly Kagan, Owen McLeod, David Miller, Samuel Scheffler, George Sher, Peter Vallentyne, and Jonathan Wolff.

Medema on Sidgwick on Law Steven G. Medema has posted Sidgwick's Utilitarian Analysis of Law: A Bridge from Bentham to Becker?. Here's a taste:
    Jeremy Bentham's utilitarian analysis of crime and punishment is regularly characterized as an inspiration for the economic analysis of law, whereas Henry Sidgwick has been all but ignored in the discussions of the history of law and economics. Sidgwick is well known as the godfather of Cambridge welfare economics. Yet, as we will show, his utilitarian analysis of issues in property, contract, tort, and, criminal law reflect themes now associated with the Chicago approach and advance on Bentham in multiple ways - including through the use of marginal analysis-making him a bridge on the road between Bentham and Becker.

Monday, July 05, 2004
New RSS Feed Courtesy of a tip by Ernie Miller, I have a new RSS feed. Link here and on the sidebar. I would appreciate feedback about functionality and reliability.

Metaethics and Sentenching Do check out Kyron Huigens's post Sentencing, Metaethics, and Justice Breyer over at Punishment Theory.

More Metaethics Over at Pea Soup, there is a marvelous series of three posts by Dan Boisvert on expressivism (as a position in metaethics): And here is a tiny taste from the first post:
    Many people think that the problem of embedding ethical sentences like (1)
      (1) Intentionally flying airplanes into tall buildings is wrong within more complex sentences like (2)
      (2) If intentionally flying airplanes into tall buildings is wrong, then I won't do it
    is one of the most challenging difficulties facing expressivists. This difficulty is often called "The Embedding Objection" or "The Frege-Geach Problem."

Leiter & Bainbridge on Ideology and the Estate Tax Check out Brian Leiter & Stephen Bainbridge on ideology and the estate tax.

Smith on Toleration Steven Douglas Smith (University of San Diego - School of Law) has posted Toleration and Liberal Commitments on SSRN. Here is the abstract:
    This essay defends the ideal of toleration as against familiar criticisms coming from opposing directions. The "illiberal" objection argues that toleration is too permissive. Given the choice, why should we knowingly put up with error? The "ultraliberal" objection, reflected among others places in current free speech and religion clause jurisprudence, complains that "mere" toleration is condescending and illiberal because it declines to treat ideas and persons with equal concern and respect. This essay argues that both sorts of objections are misconceived and that if the valued liberal commitments of the American constitutional tradition are to be maintained, then we will necessarily have to embrace an ideal of toleration. The essay further argues that a renewed commitment to toleration is especially imperative at the present time as we try to cope, internally, with an exhausted ultraliberal discourse reflected in increasingly ineffectual Supreme Court opinions and, externally, with a so-called "clash of civilizations" or cultures that calls upon us to defend our central values rather than complacently pretend to rest in an "overlapping consensus" that needs no more foundational justification.

Garvey et al on Jury First Votes Stephen P. Garvey , Paula Hannaford-Agor , Valerie P. Hans , Nicole L. Mott , G. Thomas Munsterman and Martin T. Wells (Cornell Law School , National Center for State Courts , University of Delaware - Department of Sociology and Criminal Justice , National Center for State Courts , NCSC and Cornell University) have posted Juror First Votes in Criminal Trials (Journal of Empirical Legal Studies, Vol. 1, No. 2, p. 372, 2004) on SSRN. Here is the abstract:
    Our analysis of the voting behavior of over 3,000 jurors in felony cases tried in Los Angeles, Maricopa County, the District of Columbia, and the Bronx reveals that only in D.C. does a juror's race appear to relate to how he or she votes. African-American jurors in D.C. appear more apt to vote not guilty on the jury's first ballot in cases involving minority defendants charged with drug offenses. We find no evidence, however, that this effect survives into the jury's final verdict.

Rasmussen on Sovereign Debt Restructuring Robert K. Rasmussen (Vanderbilt University School of Law) has posted Integrating A Theory of The State Into Sovereign Debt Restructuring (Emory Law Journal, 2004) on SSRN. Here is the abstract:
    A theory of the state should motivate any system of sovereign debt restructuring. Governments should borrow funds in order to promote the long-term welfare of their citizens. This borrowing, however, increases the possibility of later financial distress, which can decrease the welfare of the nation’s citizens. This essay draws on recent scholarship in the corporate and individual bankruptcy realms and argues that a sovereign debt restructuring system premised on a theory of the state would further three goals – encourage efficient investment, protect citizens against the extreme consequences of the nation's financial distress, and promote the adoption of responsible fiscal policies. A right on the part of the state to discharge some of its debt could further the first two of these goals. This discharge right could reduce the agency costs that often exist between the country's leaders and its citizens by encouraging lenders to better monitor the planned use of borrowed funds in the first instance. Such a right also provides a form of mandatory insurance for the country's citizens against extreme distress. As to the goal of prompting better fiscal policies, a sovereign debt restructuring system can achieve this by predicating relief on the adoption of such policies. Perhaps the biggest impediment to implementing a sovereign debt restructuring system along the lines sketched here is that few of the current players in the sovereign debt system have an incentive to advocate such a regime.

Choi on the Private Securities Litigation Reform Act Stephen J. Choi (University of California, Berkeley) has posted Do the Merits Matter Less After the Private Securities Litigation Reform Act? on SSRN. Here is the abstract:
    The paper provides evidence on the impact of the Private Securities Litigation Reform Act of 1995 (PSLRA) by examining a sample of initial public offerings from 1990 to 1999 facing a mix of Section 11 and Rule 10b-5 antifraud claims. Others have provided evidence that the PSLRA increased the significance of merit-related factors in determining the incidence and outcomes of securities fraud class actions. The increase in the importance of merit-related factors, however, is consistent with two possible hypotheses. First, the PSLRA may have reduced solely the incidence of nuisance litigation. Second, the PSLRA may have reduced the incidence of both nuisance litigation as well as a subset of the pre-PSLRA meritorious claims where the additional costs imposed by the PSLRA made such claims unprofitable from the perspective of plaintiffs' attorneys. This paper tests between these hypotheses and provides evidence that meritorious claims lacking obvious hard evidence indicia of fraud (an accounting restatement or SEC action) (a) are less likely to be filed post-PSLRA and (b) face a greater likelihood of receiving a dismissal or low-value settlement in the post-PSLRA period. In determining the welfare implications of blocking frivolous suits, policymakers should therefore consider the negative impact of the PSLRA in also discouraging a significant fraction of meritorious litigation.

Christiano on Authority Tom Christiano has a new Stanford Encyclopedia of Philosophy entry entitled Authority:
    When is political authority legitimate? This is one of the fundamental questions of political philosophy. Depending on how one understands political authority this question may be the same as, when is coercion by the state legitimate? Or, when we do have duties to obey the state? Or, when and who has a right to rule through the state? This entry is concerned with the philosophical issues that arise in the justification of political authority. First, this entry will examine some of the main conceptual issues that arise relating to political authority. What do we mean by political authority? This entry distinguishes political authority from political power, and the idea of morally legitimate political authority from descriptive ideas of authority. It also distinguishes between authority in the sense of morally justified coercion and authority in the sense of capacity to impose duties on others and finally from authority as right to rule. Further distinctions concern the nature of the duties that political authority imposes on subjects.

Johnson & Millon on Corporate Fiduciaries Lyman Johnson and David Millon (Washington and Lee University - School of Law and Washington and Lee University - School of Law) have posted Recalling Why Corporate Officers are Fiduciaries on SSRN. Here is the abstract:
    For all the recent federal attention to regulating - and differentiating -corporate officer and director functions, a curious fact remains: state fiduciary duty law makes no distinction between the fiduciary duties of these two groups. Instead, courts and commentators routinely describe the duties of directors and officers together, and in identical terms. To lump officers and directors together as generic fiduciaries with no distinction being made between them, suggests - as patently is not the case - that their institutional function and legal roles within the corporation are the same. Such a view, consequently, undermines efforts more sharply to distinguish, not blur, the governance responsibilities of these two groups.

Sunday, July 04, 2004
Sunstein on Minimalism In today's New York Times, Cass Sunstein has an op/ed entitled The Smallest Court in the Land. Here is a taste:
    Does minimalism count as a form of judicial activism? The answer depends on how activism is defined. If judges are activists whenever they invalidate decisions of Congress or the president, then minimalists can certainly be activists. But minimalists favor narrow rulings; they seek a restrained judicial role. And with its insistent focus on procedural safeguards, minimalism has real attractions, perhaps above all in a period in which judges are forced to reconcile the demands of national security with the commitment to liberty.

Saturday, July 03, 2004
A Modest Proposal Over at Law and Society Weblog, drhfk has a post up entitled The Virtue of Justice: Comment on Solum, which comments on my Swing Votes, Making Things Come Out Right, and the Virtue of Justice from yesterday. Here is a taste:
    From my point of view, the real question is how we can approximate Solum's (desirable) "good judicial character" outcome even if everyone involved in the process was hopelessly partisan, did not attribute any independent value to the rule of law, and was openly or secretly pushing a political agenda. The current system of appointing justices is not designed to mitigate such partisanship. However, what if:
      (1) The tenure of each justice would be limited to a single term (for example, 10 years); and
      (2) Justices would be appointed in "batches" of two, where each political party, through their representatives, gets to nominate one justice and the other party has a veto right as to the batch of two. Once a veto is exercised, both nominees are rendered ineligible for the present vacancies.
    This simple procedural setup would make the appointment of politically committed (that is, infrmarginal) justices less likely.

Legal Theory Bookworm This week, the Legal Theory Bookworm recommends The People Themselves: Popular Constitutionalism and Judicial Review by Larry D. Kramer. Here is a description:
    The United States Constitution is the foundation of the longest and most successful democratic experiment in modern human history. It serves not only as legal bedrock for the world's most powerful nation-state, but also, more broadly, it reflects that nation's fundamental aspirations and commitments as a society. Who then has the authority to interpret a blueprint of such extraordinary influence? Americans have come to treat the Constitution as something beyond their competence, something whose meaning should be decided by judges, assisted by a cadre of trained lawyers and academics. Yet this submission to a lawyerly elite is a radical and troublesome departure from what was originally the case. For America's founding generation celebrated the central role of 'the people' in supplying government with its energy and direction. In this groundbreaking interpretation of America's founding and its concept of constitutionalism, Larry Kramer reveals how the first generations of Americans fought for and gave birth to a very different system from our current one and held a very different understanding of citizenship from that of most Americans today. 'Popular sovereignty' was more than an empty abstraction, more than a mythic philosophical justification for government, and the idea of 'the people' was more than a flip rhetorical gesture to be used on the campaign trail. Ordinary Americans exercised active control and sovereignty over their Constitution. The constitutionality of governmental action met with vigorous public debate in struggles whose outcomes might be greeted with celebratory feasts and bonfires, or with belligerent resistance. The Constitution remained, fundamentally, an act of popular will: the people's charter, made by the people. And it was 'the people themselves' who were responsible for seeing that it was properly interpreted and implemented. With this book, Larry Kramer vaults to the forefront of constitutional theory and interpretation. In the process, he rekindles the original spark of 'We, the People,' inviting every citizen to join him in reclaiming the Constitution's legacy as, in Franklin D. Roosevelt's words, 'a layman's instrument of government' and not 'a lawyer's contract.'

Download of the Week This week, the Download of the Week is Philosophy of Tort Law: Between the Esoteric and the Banal by Benjamin C. Zipursky. Here is the abstract:
    The string of words, 'Philosophy of tort law' may seem like a random conjunction of academic topic nouns selected from columns in a word game. If the phrase has a comical ring, it is because tort law is among the most practical and least high-falutin' areas of law. Tort law deals with car accidents, medical malpractice, and defective lawn mowers, matters seemingly far from the celestial concerns of the philosopher. And so, like the lobster ice cream sold in a sea-faring tourist town, the existence of philosophy of tort law as a subject may seem to be proof that people will swallow just about anything that can be served up. This essay explains why, notwithstanding its uneasy seat between the esoteric and the banal, the philosophy of tort law is an important and genuine subject. The subject is important at three levels: the level of common law doctrinal and policy debate, the level of jurisprudence and legal theory, and the level at which jurisprudence contributes to moral and political philosophy more broadly. Probing the work of Epstein, Weinrib, Coleman, Fletcher, Perry, Ripstein, Keating, Goldberg and others, this essay sketches key contributions in all of these areas. It begins by arguing that, in connection with several live issues of tort law and policy, courts themselves reached difficult theoretical junctures within the past thirty years. These theoretical dilemmas quite naturally presented the legal academy with genuinely philosophical questions about the relation of fault to responsibility, and more generally about causation, duty, and several other highly contested concepts that virtually shout out for philosophical analysis. Second, it argues that certain fundamental debates within jurisprudence and legal theory have been most seriously developed within the philosophy of tort law: most particularly, the debate between utilitarians and deontologists on the nature of the normative framework embodied by private law, and the debate between instrumentalists and conceptualists on how best to interpret legal concepts. Third, it argues that philosophy of tort law has contributed substantially to two important aspects of moral and political philosophy more broadly: by enriching and exemplifying what it is crudely referred to as the 'contextuality' of moral reasoning, and by developing a notion of justice that is sophisticated, but distinct from distributive justice.

SSRN Top Recent Downloads The Social Science Research Network compiles lists of top ten downloads by subject matter. (Click on the category name for the full list of the top ten papers by number of downloads in the past 60 days.) Here are categories and selected papers of interest to legal theorists:

Friday, July 02, 2004
Swing Votes, Making Things Come Out Right, and the Virtue of Justice, Last updated at 3:08 p.m.
    A Closely Divided Court, The Mission to Make Everything Come Out Right As I was browsing this morning, I came across two stories, both courtesy of the amazing Howard Bashman, that highlighted the dysfunctionality of the current Supreme Court. The first story was this article, commenting on Jonathan Turley's advocacy of expansion of the Supreme Court:
      Justice Sandra Day O'Connor's recurring role as a key swing vote is essentially turning the U.S. Supreme Court into "a court of one," says a prominent constitutional scholar who argues that the nation's highest court should be expanded from nine justices to 19. In an article titled "Unpacking the Court," George Washington University law Professor Jonathan Turley calls it "remarkable" how uncontroversial this "concentration of power" in a single justice has been, saying that never was the intent of the nation's Founding Fathers.
    The second was this article by Gina Holland on Scalia's frustration with the recent performance of the Supreme Court:
      Justice Antonin Scalia ended the Supreme Court term with some harsh words for his colleagues. "This court seems incapable of admitting that some matters - any matters - are none of its business," he wrote on the court's final day. Only fellow conservative Clarence Thomas wrote more dissents than Scalia in the nine-month term that ended this week. In the final days, Scalia complained about a misguided court that "seems to view it as its mission to Make Everything Come Out Right," even with wrong rulings.
    So, we have two interacting phenomena. First, we have a closely divided court, and the division is especially prominent on a variety of key constitutional issues, including unenumerated rights and federalism. Second, the behavior of the Justices seems consistent with the theory that the Justices vote to produce the "fair" or "best" outcome, feeling only loosely constrained by the rules laid down--e.g. their own precedents, the constitutional text, statutory language, and so forth. I would like to suggest (as a working hypothesis) and not as a firm conclusion) that the interaction of these two phenomena is much more problematic than either would be by itself. What do I mean? I think the best way to explain my point is to examine two scenarios: (1) a stable supermajority court, and (2) a divided formalist court.
    Two Scenarios
      Scenario One: A Stable, Supermajority, Results-Oriented Court My hypothesis is that (1) a closely divided court that is (2) results oriented poses a greater threat to the rule of law than would either phenomena standing alone. Of course, a results-oriented court would threaten the rule of law--even if there was a stable supermajority on the court. One of the points of the rule of law is to limit the arbitrary discretion of individuals ("the rule of law, and not of men"). Nonetheless, when a results oriented court has a stable supermajority, other rule of law values can be realized. A stable supermajority results oriented court can create predictability and certainty. Here's why:
        First, such a court is not likely to reverse itself. Even if one justice waffles on a particular issue, the supermajoritarian position is unlikely to change. Moreover, a stable supermajority court has every incentive to respect its own prior decisions; by building a body of consistent precedent, the supermajority is better able to translate its own preferences into binding law that would control the behavior of lower courts and the other branches of government.
        Second, a stable supermajoritarian results-oriented court is likely to be predictable. This predictability does not derive from the formal written materials (by definition, a results-oriented court is not following the rules laid down), but rather is a function of the fact that the ideological makeup of the court is stable and predictable.
      Let me be clear, I am not endorsing result-oriented jurisprudence. My point is simply that result-oriented jurisprudence is less damaging to the rule of law when a stable supermajority shares the same preferences with respect to outcomes.
      Scenario Two: A Divided Formalist Court What about the other scenario? Imagine now that we have a court that is closely divided on ideological grounds, but which consists of judges who share a commitment to the rule of law principle that cases should be decided on the basis of the rules laid down, rather that policy preferences. Let's assume that even formalist judges are influenced by their ideological preferences. The formal materials underdetermine outcomes, especially in the case of broad constitutional provisions like the equal protection, due process, and free speech clauses. So, a closely divided formalist court will produce 5-4 decisions, when different ideological lenses produce different interpretations of what the constitution and its history mean. Nonetheless, such differences are likely to be less damaging to the rule of law when the court is composed of judges whose ideological commitments are tempered by a true dedication to the rule of law. Formalist judges who respect precedent, for example, will take 5-4 decisions as decisive. Having lost the battle, they will not continue to fight the war--continuing to dissent and maneuvering for a reversal in a future case. As time goes on, then, a formalist court will converge on rules of law, even if they do not converge on political ideology.
      Comparison with a Results-Oriented Closely Divided Court And how do these two scenarios compare with a results-oriented, closely-divided court. Because such a court is results oriented, its decisions cannot be predicted on the basis of the rules laid down; a results-oriented court is not much concerned with precedent, constitutional text or original meaning. Because the such a court is closely divided, its decisions cannot easily be predicted on the basis of a consistent political ideology. Of course, this does not mean that such a court is utterly unpredictable. How do you predict a results-oriented, closely-divided court? You predict the votes of individual swing justices! And of course, that is exactly what court watchers try to do. They try to get inside the psyches of the swing votes; today, that means they try to predict the voting behavior of Justices Kennedy and O'Connor. (The combination of both Kennedy and O'Connor was in the minority only twice this term. In other words, in every case but two, so long as you did not lose both O'Connor and Kennedy, you prevailed.) Assuming a certain amount of noise (generated by random or opaque internal inconsistencies within Justices perhaps), however, this method of prediction is likely to be very difficult to use as a practical guide for planning behavior. The unidimensional left-right model may be out best model for predicting votes in the Supreme Court, but that does not mean it is good enough to serve as a substitute for decisions according to the rules laid down. The difficulty of predicting is likely to be compounded if the swing justices themselves are unpredictable--as many Kennedy and O'Connor may well be.
    The core of my point is simple: a results-oriented, closely-divided court poses grave dangers for the rule of law--dangers that are greater than those posed by a either results orientation or close division alone.
    Solutions? And this brings me round to the question, "What can be done?" One answer is suggested by Jonathan Turley's proposal to expand the Court from 9 to 19. Turley's proposal would reinforce the rule of law in two distinct ways:
      First, if the 10 additional justices were appointed an approved in a relatively short span of time, it is likely that the ideological balance of power on the court would shift from closely divided to supermajority. This would be especially likely if both the Presidency and the Senate were controlled by a single party at the time the expansion occurred. (If the Presidency and Senate were divided, I have a hard time imagining how the current dysfunctional appointments process would be able to handle the task.) Of course, the desirability of this solution is likely to be viewed through the prism of political ideology. The left would never agree to an expansion that would result in a stable right-wing supermajority, and vice versa.
      Second, over the long-run it is simply less likely that a 19 member court would be divided 10 to 9. With 19 members, there will be more regular vacancies and a greater likelihood of stable 12+ member majorities; more justices equals more chances that the "middle" of the court will consist of more than one or two members.
    Turley's solution might work, but, at least for now, it seems utopian. A court-packing plan that expands the size of the Court from 9 to 19 would meet with the stiffest possible political resistance from the side that would be disadvantaged. Absent a shift to a new political constellation where a single party has both the Presidency and a filibuster-proof Senate majority, this option seems unlikely. Moreover, there would, I think, be a political cost to imposing such a plan. My untutored guess is that such a proposal would be very unpopular, precisely because it would be perceived as a court-packing plan.
    The Virtue of Justice Is there an alternative? Frequent readers of Legal Theory Blog will not be surprised to learn that I think there is. The key to the solution is rejection of the realist dogma that judges must be ideological. To put this point differently, we need to expand our model of judicial attitudes and dispositons and recognize that judges vary not only in their political ideology, but also in their judicial philosophies. Realist judging is not hard wired into the furniture of the universe; it is the result of particular forces, beliefs, and attitudes. And yet another way of making the point is this: formalism is a possibility.
    But how could we get a formalist Supreme Court? The answer to this question can begin with the virtue of justice. As is often the case with the virtues, we can learn much by going back to Aristotle. The eminent scholar, Richard Kraut explains:
      [W]hen [Aristotle] says that a just person, speaking in the broadest sense is nominos, he is attributing to such a person a certain relationship to the laws, norms, and customs generally accepted by some existing community. Justice has to do not merely with the written enactments of a community's lawmakers, but with the wider set of norms that govern the members of that community. Similarly, the unjust person's character is expressed not only in his violations of the written code of laws, but more broadly in his transgression of the rules accepted by the society in which he lives.
      There is another important way in which Aristotle's use of the term nomos differs from our word "law": he makes a distinction between nomoi and what the Greeks of his time called psephismata--conventionally translated as "decrees". A decree is a legal enactment addressed solely to present circumstances, and sets no precedent that applies to similar cases in the future. By contrast a nomos is meant to have general scope: it applies not only to cases at hand but to a general category of cases that can be expected to occur in the future.
    Rule by decree, Aristotle believed, was typical of tyranny--the rule of individuals and not of law; a regime that rules by decree does not provide the stability and certainty that is required for human communities to flourish. Kraut continues:
      We can now see why Aristotle thinks that justice in its broadest sense can be defined as lawfulness, and why he has such high regard for a lawful person. His definition embodies the assumption that every community requires the high degree of order that comes from having a stable body of customs and norms, and a coherent legal code that is not altered frivolously and unpredictably. Justice in its broadest sense is the intellectual and emotional skill one needs in order to do one's part in brining it about that one's community possesses this stable system of rules and laws.
    A Virtuous Justice What I am suggesting is as simple as it is radical. When we select judges (especially Supreme Court justices), we should look first and foremost for good judicial character, and especially for the virtue of justice--the disposition to decide cases on the basis of the rules laid down and the norms of the community and not on the basis of the judges' own perceptions of what the law should be. We should select Justices who are willing to compromise in order to produce stable majorities on particular issues. We should select Justices who will respect the Supreme Court's decisions as precedent, even though they may have dissented from the decision. We should select Justices who care more about the rule of law and less about ruling through law.
    At this point, I know that many readers will be saying to themselves, "Solum is hopelessly naive." Some of you may think that human beings really are hard wired to be realists when given judicial power. Others may think that politics are so polarized that neither party can resist the opportunity to view the opportunities to fill vacant Supreme Court seats as the ultimate spoils of political victory. And I cannot confidently say that you are wrong. In my more pessimistic moments, I am inclined to think that the downward spiral of politicization must hit bottom and the rule of law almost utterly destroyed before political actors will come to see that the long-run costs of realist judging outweigh the short run political benefits. But I take it that Jonathan Turley's proposal to increase the size of the Court from 9 to 19 is a sign of disquiet and unease. The realization that the Supreme Court is becoming increasingly dysfunctional is growing. It is not, I think, utopian to believe that a consensus can be reached on the very great value of the rule of law. Legal realism is not written in the fabric of the universe; it is the product of human choices.
Update: O'Connor & Kennedy were both in dissent in only two cases, Till v. SCS Credit Corp., which held that interest rates in Chapter 13 bankruptcy cramdowns should be computed using a prime-plus or formula rate (4 Justices) or in recognition that the rate need not reflect the risk of nonpayment (1 Justice) and Blakely v. Washington, in which the Court held that Judges cannot apply upward departure from statutory sentencing ranges based on facts neither admitted by defendant nor found by jury. Without reading the opinions, my impression is that Till case does not involve issues with a prominent ideological dimension. Blakely does; the crucial fifth vote for the liberals was provided by Justice Thomas. Marty Lederman (of the superimpressive SCOTUS Blog) writes:
    The answer to your question [re O'Connor & Kennedy both dissenting] is two, or one-and-a-half, really. AMK and SOC were joined in dissent in just two cases, Till and Blakely. And in Till the dissent and the plurality were in accord on most facets of the case, but not on the judgment. Until the final week of the Term, SOC had dissented -- and I don't mean "had only written a dissent"; I mean had not been in dissent -- in only two cases, Till and Olympic Airways. In the final week, she was on the short end of the stick in Blakely, Siebert and ACLU. The only dissents she wrote all Term were in Siebert and Blakely. There were only three majority opinions of the Court all Term that did not include SOC -- Blakely, ACLU and Olympic Airways. And Olympic Airways was the only case of the Term in which she was not joined by at least three other Justices.
And for more commentary on the October 2003 term, read this thoughtful post by Lyle Denniston of SCOTUS Blog.
And Sasha Samberg-Champion (posted in full here at the Legal Theory Annex):
    One solution to this problem, as you suggest, would be for the majority opinion writer to move towards the middle to "restate" the law in a way that would be agreeable to more than 5 Justices. * * * But now the problem is, we've created compromise law that doesn't adhere to anyone's formalist reading, but rather was created to reach a particular political result -- i.e., legal stability. It then falls to the law professors to try to "explain" how we could come to such an odd detente. To me, that seems like an acceptable solution, but it doesn't seem like formalism. Isn't that exactly the kind of results-oriented law that you don't like? Am I missing something here?
It depends on the nature of compromise, doesn't it? Compromising formalist with realist-political judging for the sake of stability may well lack integrity--I need to think about that very carefully, but compromising two different formalist positions (e.g. compromising on the plain-meaning versus legislative intent issue) is not inconistent with at least some conceptions of formalism. More importantly, follow stare decisis, even when you think the prior decision was wrong on formalist grounds is certainly consistent with (and may even be required by) a coherent formalist jurisrpudence.
And for another reaction, check out Bloomfield's Realism and the Virtue of Justice(s) at Law & Society Blog:
    Realism has become the culprit. What is going wrong in the courts is the politicization of judicial decision making, what used to be called judicial activism: the infusion of political will into what should be the neutral, legal arbitration of disputes. Are realism and judicial activism connected? (Or is it simply that we call it judicial activism if liberal justices do it, and something else (such as realism) if conservative justices do it?) If you consider that legal realism in this country started as a counter-movement against "mechanical jurisprudence" (a stylized opponent, not to say strawman), and if you further consider that the rhetorical exclusion of "real" issues from the decisions of the Lochner era in itself represented a political agenda of the courts, realism in its first and critical incarnation conceptually neither condemned nor condoned political or social agendas in judicial decision-making. What was to be condemned was that judges were hiding the ball, playing a three-shell game with legal doctrine, obscuring the social and political conflicts at work in the cases.

Kriegel on Internalism Uriah Kriegel has a nice post on Desert Landscapes entitled On the Formulation of Ethical Internalism. Here is a taste:
    To my mind, internalism is at heart the thesis that there is a conceptual, or ‘internal’, relation between what a person x is *normatively required* to do and what x *wants* to do. Roughly speaking, the idea is that the dictates of morality – or more generally, normativity – should somehow depend upon, and be relativized to, the contingencies of a person’s system of desires and wishes. But this still raises the question, What is this “conceptual relation” that normative requirements are supposed to bear to desires?

Bebchuk on Shareholder Power Lucian Arye Bebchuk (Harvard Law School) has posted The Case for Increasing Shareholder Power (Harvard Law Review, Forthcoming) on SSRN. Here is the abstract:
    This paper reconsiders the basic allocation of power between management and shareholders in publicly traded companies. U.S. corporate law has long precluded shareholders in such companies from directly intervening in any major corporate decisions. I argue that the case for such insulation is weak, and I put forward a regime in which shareholders have the power to initiate, and approve by vote, major corporate decisions. Providing shareholders with the power to intervene can significantly address important governance problems that have long occupied the attention of corporate law scholars and financial economists. In particular, shareholder power to make rules-of-the-game decisions - to amend the corporate charter or change the state of incorporation - would ensure that corporate governance arrangements change over time in ways that serve shareholder interests. Shareholder power to make game-ending decisions - to merge, sell all assets, or dissolve - would address managers' excessive tendency to retain their independence. Finally, Shareholder power to make scaling-down decisions - to contract the company's size by ordering a cash or in-kind distribution - would address problems of empire building and free cash flow. A regime with shareholder power to intervene could greatly improve corporate governance.

Ku on the Intellectual Property Clause Raymond Shih Ray Ku (Case Western Reserve University - School of Law) has posted Copyright, the Constitution & Progress on SSRN. Here is the abstract:
    In this essay, Professor Ku places the current legal controversy surrounding Internet file sharing into historical and theoretical context, and sets forth a framework for courts to promote progress when interpreting copyright and the Constitution in response to new technologies of dissemination. This essay builds upon his existing scholarship, in which Professor Ku argues that the new economics of digital technology question the application of copyright's exclusive rights to file sharing because peer-to-peer technology eliminates the need for distributor middlemen. And, a system of levies and compulsory licenses would guarantee compensation for artists while providing the public with unlimited access to the collective works of humanity. Professor Ku argues that courts should follow the precedent established by the Supreme Court in the Charles Rivers Bridge v. Warren Bridge decision involving a similar dispute over exclusive rights at the dawn of the Commercial and Industrial Age and narrowly interpret the Copyright Act and the Constitution to accommodate non-linear progress. This approach recognizes that for progress to occur property rights and markets may be creatively destroyed and paradigms may shift. The recognition of the need to accommodate non-linear progress explains the Supreme Court's historic approach when applying copyright to new media and provides a framework for evaluating whether congressional efforts to secure exclusive rights in new media are consistent with its power to promote the progress of science and useful arts.
And here is a key paragraph from this fascinating article:
    Consider the Charles River Bridge case as a metaphor for the digital copyright debate. The physical goods, the books, CDs, and DVDs, made possible by copyright can be considered information ferries connecting the community of artists to the public one work at a time. Obviously this service was quite valuable because it increased the public’s access to works created by artists. Likewise, the ferry service was valuable to artists because it created an audience for their works. Without the privileges conferred by copyright presumably no one would invest in operating ferries, and everyone would have been worse off. The Internet now represents a bridge between the two communities allowing for potentially unlimited access. Unlike the controversy over the Warren Bridge, this time the “free” bridge is built first. In left unchecked, peer-to-peer networks may soon replace the technologies of Gutenberg as the dominant means for delivering creative expression. In response, the ferry operators who have already profited handsomely as a result of their privileged position under copyright are claiming that their exclusive privilege to operate ferries entitles them to control the new bridge as well. Of course, if they are successful that bridge will be a toll bridge. Like the Charles River Bridge case before it, the copyright question turns on whether law should preserve the privileges of the ferry operators or allow those privileges to be destroyed. Once again, we must decide whether preserving existing property interests or allowing those interests to be destroyed in the wake of technological change best achieves progress. This high stakes contest will determine the ownership of information in the 21st century. The path we choose will either lead to an information revolution or mire us in the past.

Book Announcement: The Hand of Compassion
    The Hand of Compassion: Portraits of Moral Choice during the Holocaust Kristen Renwick Monroe To read a sample chapter, please visit: Through moving interviews with five ordinary people who rescued Jews during the Holocaust, Kristen Monroe casts new light on questions at the heart of ethics: Why do people risk their lives for strangers, and what drives such moral choice? Monroe's analysis points not to traditional explanations--such as religion or reason--but to identity. The rescuers' perceptions of themselves in relation to others made their extraordinary acts spontaneous and left the rescuers no choice but to act. To turn away Jews was, for them, literally unimaginable. In the words of one German Czech rescuer, "The hand of compassion was faster than the calculus of reason." To read the entire book description, go to: 0-691-11863-9 Cloth $29.95 US and L19.95 392 pages. 10 halftones. 6 x 9.

Patterson on Law Fixing Mark R. Patterson (Fordham University School of Law) has posted Law-Fixing: Should Lawyers Agree How to Interpret Statutes? on SSRN. Here is the abstract:
    Section 402 of the Sarbanes-Oxley Act of 2002 prohibits loans from publicly traded corporations to their officers or directors. Although the statute is worded broadly, there are some insider loans, such as travel advances, that Congress probably did not intend to prohibit. The SEC has chosen not to provide an authoritative interpretation of section 402, though, so the section's scope is unclear. Twenty-five prominent law firms have responded to this lack of clarity by issuing a 'position paper' assessing the legality of various types of loans under section 402. The firms conclude that, of the types of loans they consider, none violates the section. For some types of loans, like travel advances, their conclusions seem reasonable. But in other cases the firms' conclusions are questionable. For instance, the firms conclude that although section 402 prohibits material modifications of pre-existing loans, forgiveness of such loans is permissible. This article asks whether the firms' collective interpretative effort might be an antitrust violation. The article asks, first, whether the law firms have agreed on interpretations of section 402, and, second, whether such an agreement would violate the antitrust laws. On the first question, the firms do seem to have agreed on their interpretations. Although it is possible that the firms are not following the interpretations they present in the position paper, the paper itself says that the firms concur in its conclusions. And at least one of the firms had, prior to the issuance of the position paper, advised its clients not to engage in several of the practices described by the paper as permissible. As to whether such an agreement would be a violation, there are no real efficiencies in acting collectively, and doing so may lead the firms to offer more permissive advice. If they agree on such advice, they not only avoid being disadvantaged ex ante by competition from other firms offering permissive advice, but are less subject to ex post second-guessing if their advice turns out to be wrong. And even if permissive advice is what their corporate clients (i.e., their clients' officers) want to hear, that advice might ultimately injure the clients if it turns out to be wrong. Moreover, one might view the injured 'consumers' as the shareholders of the clients, or the public, both of which are entitled to have legislation operate without collective private efforts that impose particular legislative interpretations. Although in some respects this would be a novel antitrust theory, the Supreme Court has on several occasions objected to private agreements of non-lawyers that it has viewed as akin to private legislation.

Zipursky on Tort Theory Benjamin C. Zipursky (Fordham) has posted Philosophy of Tort Law: Between the Esoteric and the Banal (BLACKWELL GUIDE TO PHILOSOPHY OF LAW AND LEGAL THEORY, Martin Golding, William Edmundson, eds., Blackwell, 2004) on SSRN. Here is the abstract:
    The string of words, 'Philosophy of tort law' may seem like a random conjunction of academic topic nouns selected from columns in a word game. If the phrase has a comical ring, it is because tort law is among the most practical and least high-falutin' areas of law. Tort law deals with car accidents, medical malpractice, and defective lawn mowers, matters seemingly far from the celestial concerns of the philosopher. And so, like the lobster ice cream sold in a sea-faring tourist town, the existence of philosophy of tort law as a subject may seem to be proof that people will swallow just about anything that can be served up. This essay explains why, notwithstanding its uneasy seat between the esoteric and the banal, the philosophy of tort law is an important and genuine subject. The subject is important at three levels: the level of common law doctrinal and policy debate, the level of jurisprudence and legal theory, and the level at which jurisprudence contributes to moral and political philosophy more broadly. Probing the work of Epstein, Weinrib, Coleman, Fletcher, Perry, Ripstein, Keating, Goldberg and others, this essay sketches key contributions in all of these areas. It begins by arguing that, in connection with several live issues of tort law and policy, courts themselves reached difficult theoretical junctures within the past thirty years. These theoretical dilemmas quite naturally presented the legal academy with genuinely philosophical questions about the relation of fault to responsibility, and more generally about causation, duty, and several other highly contested concepts that virtually shout out for philosophical analysis. Second, it argues that certain fundamental debates within jurisprudence and legal theory have been most seriously developed within the philosophy of tort law: most particularly, the debate between utilitarians and deontologists on the nature of the normative framework embodied by private law, and the debate between instrumentalists and conceptualists on how best to interpret legal concepts. Third, it argues that philosophy of tort law has contributed substantially to two important aspects of moral and political philosophy more broadly: by enriching and exemplifying what it is crudely referred to as the 'contextuality' of moral reasoning, and by developing a notion of justice that is sophisticated, but distinct from distributive justice.

Sebok on the History of Mass Tort Restitution Litigation Anthony J. Sebok (Brooklyn Law School) has posted A Brief History of Mass Restitution Litigation in the United States (CALLING POWER TO ACCOUNT, David Dyzenhaus, May Moran, eds., University of Toronto Press, 2004). Here is the abstract:
    This essay is a chapter in a book entitled "Calling Power to Account," which has been edited by David Dyzenhaus and Mayo Moran and will be published by the University of Toronto Press. The book contains essays written in response to Mack v. Canada, also known as the "Chinese-Canadian Head Tax Case." In Mack, a Chinese-Canadian who immigrated to British Columbia over 70 years ago filed a class action demanding that the Canadian government provide restitution to all Chinese-Canadians who, like him, paid a "tax" to be permitted to enter the country. The case was dismissed. This essay provides a framework against which the Mack case can be compared with similar cases in the United States. I argue that over the past ten years a new form of private law claim has evolved which is a blend between a class action for personal or dignitary tort and a claim for restitution or unjust enrichment. Using the tobacco litigation brought by the states for the restitution of health-care costs and the "Holocaust slavery" litigation brought by persons who were forced to work as slaves for German corporations during the Second World War, I argue that mass restitution is a novel form of private law action designed to use the procedural advantages of doctrines such as tracing and constructive trust to avoid certain doctrines in tort law which would make class action torts for the same wrongs almost impossible. The essay ends with an examination of the potential use of mass restitution by activists who want to private law to get compensation for African-American whose ancestors were enslaved in North America.

Owen on Media Con Bruce M. Owen (Stanford University - Institute for Economic Policy Research) has posted Confusing Success with Access: "Correctly" Measuring Concentration of Ownership and Control in Mass Media and Online Services on SSRN. Here is the abstract:
    In 2003 the Federal Communication Commission (FCC) proposed modest relaxation of its media ownership concentration rules; the proposal aroused heated political opposition and has been partially overturned by Congress and stayed pending appellate review. The purpose of this paper is quite narrow: to explore, from a public policy perspective, measurement issues associated with media ownership concentration in general, and online content control in particular. Measurement is meaningless in a vacuum. Alternative approaches to measurement derive their relative merits chiefly from their ability to assess the phenomenon under study, not from independent or abstract characteristics of the measurement device. In the policy area, the choice of a method of measurement follows from the adoption of a goal, or an understanding of the nature of a problem, rather than the other way around. Media ownership concentration raises two broad policy concerns (1) the problem of market power, which can reduce output and raise prices, reducing both consumer and social economic welfare and (2) the problem of private restrictions of access by suppliers of content that may be unpopular or politically incorrect to audiences, and the closely related issue of government regulation of content and access. The first issue (economic competition) is indistinguishable from that addressed by antitrust policy, and the sophisticated analytical tools of modern antitrust analysis present the best available approach to measurement. The second problem (competition in the market place of ideas, which I call Miltonian competition) can also usefully be approach from an antitrust perspective, leading to a different conclusion about sound concentration measurement techniques. In this second context it makes no sense to measure concentration using revenue or audience weights, because any channel that is available to a given consumer is equally valuable as a potential source of politically significant material. Popular channels, by definition, have popular content, but if this popularity arises from consumer choice rather than structural barriers to entry it has no significance in measuring the ease with which politically disruptive ideas can be excluded from the audience. Online content (such as entertainment, news and advertising that is generally not in video format) may belong in the same relevant economic markets as mass media, or not, depending on the actual substitution behavior of customers. If consumers or advertisers would substitute online channels for traditional mass media channels in response to price or quality changes, then both media belong in the same market. Ownership attribution and share measurement would follow the usual antitrust rules. Measuring concentration of control of online content for purposes of assessing restrictions on access by audiences to politically or otherwise unpopular material, and by sources of such material to audiences, requires attention, first, to the facts concerning control. If identifiable commercial entities can restrict access based on content, they should be attributed with control over the portion of transmission capacity they control. On the other hand, if both end users and content suppliers are free to find each other on the Internet, then barriers to Miltonian competition (and consumption of expression) are nil. There remains an empirical question whether use of online communication provides an alternative that users find a good substitute for traditional media for the purpose of seeking out unpopular ideas and minority-taste content. A related empirical issue involves the role played by opinion leaders in facilitating access by mass audiences to unpopular ideas expressed via unpopular channels. Measuring media ownership concentration is a meaningless exercise in the abstract. A necessary predicate is an explicit model or models of how concentration affects policy variables such as consumer welfare or competition in the marketplace of ideas. Only then can a measure of concentration be constructed and tested for empirical consistency with the underlying model(s), with which the concentration data may or may not be consistent. As to consumer welfare in the traditional economic sense, which is positively associated with vigorous competition, traditional antitrust models and measurement techniques are, broadly, as good as it gets; there is no need for a special antitrust approach to media industries. The more controversial and often conflicting policy goals of protecting press freedom from government abridgement and of promoting diversity (or Miltonian competition) present more difficult challenges. If, however, ensuring that citizens have as much access as possible to potentially conflicting views is the objective, then concentration is best measured by counting the noses of independent sources, without regard for their current economic success. Moreover, in general, concentration in the market place of ideas, properly measured, will be lower than economic concentration.

Thursday, July 01, 2004
Smith on the Pluralist Predictament Steven Douglas Smith (University of San Diego) has posted The Pluralist Predicament: Contemporary Theorizing in the Law of Religious Freedom on SSRN. Here is the abstract:
    Religious pluralism is at once the cause of and a substantial impediment to theorizing about religious freedom. The purpose of theorizing in law is typically to impose order on an unruly collection of phenomena - of seemingly conflicting decisions, or doctrines, or legal arguments - and to do so by articulating and elaborating the foundational truths that govern the subject in question. In a condition of religious pluralism, however, theorists typically suppose that it is impermissible to appeal to contested religious beliefs. But these are the very beliefs that would provide the natural foundations for thinking about the proper relation between government and religion (and that at least until relatively recently did provide the foundations for such thinking). This essay, written to provide a succinct "state of the art" review of current approaches, describes and assesses the various ways in which modern theorists of religious freedom have addressed this fundamental difficulty.

Bebchuk on Threats to Sue Lucian Arye Bebchuk (Harvard Law School) has posted A New Theory concerning the Credibility and Success of Threats to Sue (Journal of Legal Studies, Vol. 25, pp. 1-25, 1996) on SSRN. Here is the abstract:
    Negative-expected-value (NEV) suits are ones in which the expected litigation costs exceed the expected judgment. This paper offers a new explanation for the credibility and success of plaintiff with NEV suits. The explanation is based on the fact that litigation costs are generally not incurred all at once but rather over time; this divisibility of the litigation process is shown to play a crucial strategic role. The analysis identifies the conditions under which a plaintiff with an NEV suit will have a credible threat and succeed in extracting a settlement. It is demonstrated that plaintiffs have credible threats in a much wider set of cases - including in numerous small-stake cases - than has been suggested by prior economic analysis of the subject.

Dupré Reviews LaPorte on Natural Kinds and Conceptual Change On Notre Dame Philosophical Reviews, John Dupré has a Review of Joseph LaPorte's Natural Kinds and Conceptual Change. Here's a taste:
    This book addresses the boundary between the philosophy of science and the philosophy of language. It concerns mainly the central topic to be found at that interface, natural kinds and natural-kind terms. The book also considers some questions about theory change, topics that are often thought to have been greatly illuminated by important ideas on natural kinds. The work is distinguished by detailed and serious attention to some real kinds and the ways they are distinguished, and develops a well-thought-out and generally convincing set of general views about the topic. It constitutes a significant contribution to what has become a very extensive philosophical literature.

Eggleston Reviews West on Mill On Notre Dame Philosophical Reviews, Ben Eggleston has a Review of Henry West's An Introduction to Mill’s Utilitarian Ethics. Here is a taste:
    The most distinctive feature of Henry West’s new book An Introduction to Mill’s Utilitarian Ethics is signaled by its title. Whereas most introductions to Mill’s ethics largely restrict their attention to Mill’s Utilitarianism, West’s book treats that essay as but one source among many. To be sure, West draws on that source more than on any other. But he also relies heavily on A System of Logic, the Autobiography, and many others of Mill’s books, essays, and letters. As a result, West illuminates Mill’s ethical thought from many directions, giving it a depth and a richness that cannot be conveyed by even the most penetrating analysis of Utilitarianism alone. In short, even scholars and students who know every nuance of Utilitarianism can benefit from the broader focus offered by West’s book.

Väyrynen on Hedged Moral Principles Pekka Väyrynen has posted A Theory of Hedged Moral Principles. Here is a taste:
    This paper develops a theory of exception-tolerating and yet robustly explanatory moral principles. I first offer a semantics for substantive moral principles that shows how we can know what they mean without having to be able to list their permissibly exceptional instances. I then argue that substantive moral principles are robustly explanatory with respect to a range of moral facts. Finally, I show how the theory informs debates about moral particularism. The upshot: we should find nothing paradoxical about the idea of defeasible and yet explanatory moral generalizations; they give us a recognizably principled morality, even if not in the classical sense.

Conference Announcement: Hegal Society of Great Britain
    CONFERENCE OF THE HEGEL SOCIETY OF GREAT BRITAIN & BRITISH SOCIETY FOR THE HISTORY OF PHILOSOPHY 'Hegel and British Thought' St Edmund Hall, Oxford 2-3 September 2004 Kenneth Westphal, 'Hume's Commitment to, and Hegel's Critique of, "Knowledge by Acquaintance"' Robert Stern, 'The Curious Case of the Concrete Universal' Thomas Posch, 'Hegel's Criticism of Newton's "Physics"': A Reconsideration' Nicholas Walker, 'Speading the Word: The Early British Reception of Hegel's Thought' John Skorupski, 'Conscience, Reconciliation, and Spontaneity' James Connelly, 'The Hesitant Hegelian: Collingwood, Hegel, and post-First World War Oxford' For further details and a registration form, please go to: Deadline for registration: 2nd August 2004

Conference Announcement: Social Justice in a Changing World
    Social Justice in a Changing World Conference at the Graduate School of Social Sciences, University of Bremen March 10-12th, 2005 - Call for Papers - A growing number of experts in economics, political science and sociology believe that the freedom of action of the nation-state in coping with issues of distributive justice is waning. Current processes of economic privatisation and globalization shift power over distribution from the state toward ‘capital’ and markets. What are the implications for social= justice? The conference will explore the risks and options of privatized markets and transnational regimes for social justice from different theoretical and empirical perspectives. Plenary speakers: Karen Cook; Nancy Fraser; Bo Rothstei; Joel Rogers; Leo Montada; Michael Zürn. The abstract deadline is November 30th, 2004. For more information on registration, panels, accommodation etc. please visit the conference website: