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

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Thursday, March 31, 2005
 
Ayres on Sander Check out Does Affirmative Action Reduce the Number of Black Lawyers?, posted by Ian Ayres on Balkinization.


 
More on Sunstein & Vermeule I posted yesterday on Cass Sunstein & Adrian Vermeule's paper--Is Capital Punishment Morally Required? The Relevance of Life-Life Tradeoffs. Over at Mirror of Justice, Rick Garnett has a post that comments:
    [I]t is not obvious to me that the new deterrence evidence "greatly unsettles moral objections to the death penalty, because it suggests that a refusal to impose that penalty condemns numerous innocent people to death"; nor am I sure that "[c]apital punishment thus presents a life-life tradeoff, and a serious commitment to the sanctity of human life may well compel, rather than forbid, that form of punishment." If our objections to the death penalty are non-consequentialist, and focus on the immorality of its imposition, then it is not clear that our objections are vulnerable to evidence or awareness that by complying with a non-consequentialist moral rule against intentional killing we are making more likely immoral killings by others. To fail to prevent another's intentional killing is not -- is it? -- the same thing as to intentionally kill another.
And Michael Perry also posts:
    My colleague here at Emory Law, Joanna Shepherd, is one of the economist-authors of the work on which Sunstein & Vermeule rely. But in a more recent paper, Professor Shepherd reaches a more nuanced conclusion: that in the United States, “executions deter murders in six states, . . . have no effect on murders in eight states, and . . . increase murders in thirteen states.” She writes:
      [E]mpirical analyses indicate that there is a threshold effect that explains the differing impacts of capital punishment. On average, the states with deterrence execute many more people than do the states where executions increase crime or have no effect. The results of this paper help to explain the contrasting conclusions for earlier papers: the deterrence or no-deterrence conclusion depends on the jurisdiction examined. My results also have important policy implications: to achieve deterrence, states must execute several people. If states are unwilling to establish such a large execution program, it may be better to perform no executions.
    Joanna M. Shepherd, Deterrence versus Brutalization: Capital Punishment’s Differing Impacts Among States (draft, October 2004).
I'm not sure that Perry's point really undermines what I take to be the central thrust of Sunstein & Vermeule's argument--which seems entirely consistent with Shepherd's point that an effective death penalty may require "a large execution program."And you may also be interested in two posts by Will Baude (here and here) and more collected here by Doug Berman.


 
Thursday Calendar
    University of Pennsylvania Legal Theory Workshop: Professor Edna Ullman-Margolit, Hebrew University.
    Yale Legal Theory Workshop: Amartya Sen, Harvard University (in joint session with the LEO workshop and Schell Center) "What's the Point of Human Rights?"
    Boston University School of Law: Wendy Gordon.
    Florida State University Law: Jody Kraus, University of Virginia.
    George Mason School of Law: Ross Davies, GMU School of Law, Modest Justice.
    George Washington University IP Series: Sara K. Stadler, Emory University Law School, "How Copyright Is Like a Moebius Strip".
    University of Michigan Cyberlaw & Economics Workshop: Christopher Yoo, Vanderbilt, On the Regulation of Networks as a Complex System.
    University of Texas Constitutional & Legal Theory Colloquium: Nicola Lacey, London School of Economics & Political Science.


 
Barnett on Kennedy Randy Barnett (Boston University) has posted Grading Justice Kennedy: A Reply to Professor Carpenter (Minnesota Law Review, Vol. 89, p. 1500, 2005) on SSRN. Here is the abstract:
    In my article, Justice Kennedy's Libertarian Revolution: Lawrence v. Texas (2002-2003 Cato Supreme Court Review 21 (2003)), I claim that Justice Kennedy's opinion in Lawrence is potentially revolutionary because it protects "liberty" rather than a right of privacy and shifts the burden of justification to the government without any showing that the liberty in question is fundamental, as required by well-established Due Process Clause doctrine. In his article, Is Lawrence Libertarian? (88 Minn. L. Rev. 1140 (2004)), Dale Carpenter calls into question my reading of Lawrence. In this brief reply, I respond to these criticism, by imagining that the words of Justice Kennedy's opinion were submitted to Professor Carpenter by one of his students as her answer to a final exam question based on the facts of Lawrence. I explain why he would have given the student a B precisely because the opinion deviates from the established doctrine that Professor Carpenter undoubtedly would have taught his class. Because it is a Supreme Court opinion and not a student exam answer, however, Justice Kennedy and the four justices who joined his opinion are free to ignore previous doctrine and adopt a potentiallyrevolutionary approach, for which I give Justice Kennedy an A.
I read everything by Barnett. Dowload it while its hot!


 
Gerken on Dissent Heather Gerken (Harvard University - Harvard Law School) has posted Dissenting by Deciding (Stanford Law Review, Vol. 56, 2005). Here is the abstract:
    On a conventional understanding of dissent, dissenters have two choices with regard to governance: act moderately or speak radically. To the extent that would-be dissenters want to govern - to wield the authority of the state - they must bargain with their votes to gain concessions from the majority. Would-be dissenters who deploy this strategy take part in an act of governance, but it is governance of a moderate sort. Alternatively, would-be dissenters can speak radically by freely stating their views in a dissenting opinion or minority report. In doing so, dissenters sacrifice the chance to be part of the governing majority; they speak with a critical rather than authoritative voice. What is missing from the usual account of dissent is a third possibility: that would-be dissenters could act radically. We have trouble envisioning dissent taking the form of a governance decision. Our conventional intuition is that dissenting means speaking truth to power, not with it. After all, we might think, if would-be dissenters had enough votes to control the outcome of a decisionmaking process, they wouldn't be "dissenters" anymore. "Dissenting by deciding" seems like a contradiction in terms. The main reason we overlook the possibility of dissenting by deciding is that we tend to conceive of democratic bodies as unitary. Where decisionmaking power is disaggregated - as with juries, school committees, or local governments - global minorities can constitute local majorities. Disaggregated institutions can thus allow dissenters to decide, to act on behalf of the polity. One example of dissenting by deciding occurred when San Francisco spent several weeks marrying gay and lesbian couples. The principle embodied in San Francisco's decision was no different than the argument found in editorials, judicial dissents, and ongoing public debates. What was different was the form dissent took. Dissenting by deciding can also take place when a school board mandates the teaching of creationism or a jury engages in nullification. These decisionmakers subscribe to the same set of commitments held by individuals whom we would unthinkingly term "dissenters." But they express disagreement not through conventional means, but by offering a real-life instantiation of their views. Dissenting by deciding, then, should be understood as an alternative strategy for institutionalizing channels for dissent within the democratic process. But because dissent has not been conceptualized in these terms, scholars have not given adequate thought to which form of dissent is preferable, and when. This paper takes a first step in that direction. The payoff for thinking about dissent in the terms proposed here is a more comprehensive set of categories for thinking about how best to institutionalize it.


 
Coffee on a Theory of Corporate Scandals John C. Coffee Jr. (Columbia Law School) has posted A Theory of Corporate Scandals: Why the U.S. and Europe Differ on SSRN. Here is the abstract:
    A wave of financial irregularity broke out in the United States in 2001-2002, culminating in the Sarbanes-Oxley Act of 2002. A worldwide stock market bubble burst over this same period, with the actual market decline on a percentage basis being somewhat more severe in Europe. Yet, no corresponding wave of financial scandals involving a similar level of companies broke out in Europe. Indeed, those scandals that did arise in Europe often had American roots (e.g., Vivendi, Ahold, Adecco, etc.). Given the higher level of public and private enforcement in the United States for securities fraud, this contrast seems perplexing. What explains this contrast? This paper submits that different kinds of scandals characterize different systems of corporate governance. In particular, dispersed ownership systems of governance are prone to the forms of earnings management that erupted in the United States, but concentrated ownership systems are much less vulnerable. Instead, the characteristic scandal in concentrated ownership economics is the appropriation of private benefits of control. Here, Parmalat is the representative scandal, just as Enron and WorldCom are the iconic examples of fraud in dispersed ownership regimes. Is this difference meaningful? This article suggests that this difference in the likely source of, and motive for, financial misconduct has implications both for the utility of gatekeepers as reputational intermediaries and for design of legal controls to protect public shareholders. What works in one system will likely not work (at least as well) in the other. The difficulty in achieving auditor independence in a corporation with a controlling shareholder may also imply that minority shareholders in concentrated ownership economies should directly select their own gatekeepers.


 
Solove on Dworkin Daniel J. Solove (George Washington University Law School) has posted Postures of Judging: An Exploration of Judicial Decisionmaking (Cardozo Studies in Law & Literature, Vol. 90, p. 173, 1997) on SSRN. Here is the abstract:
    This article pits Ronald Dworkin against Fyodor Dostoyevsky. The article critiques Ronald Dworkin's answer to the question of fit: how judges reconcile general legal rules with particular situations. Dworkin's heavy focus on legal principles under-emphasizes the importance of facts in judicial decisionmaking. Exploring how judges approach the question of fit from a more literary perspective, the article examines the posture of a judge - a judge's physical and temporal position in relation to the cases she adjudicates, a position which affects the level of generality with which a judge perceives the facts of a case and directly influences a judge's toleration of imprecision in fit between general propositions and concrete cases. Postures provide a descriptive account of aspects of our legal experience that Dworkin’s principled jurisprudence cannot explain. The article focuses on Fyodor Dostoyevsky's The Brothers Karamazov to illustrate how a multiplicity of similar yet distinct postures are shaped and how they relate to each other. An examination of Dostoyevsky's novel demonstrates deficiencies in Dworkin's theories and illustrates how literature can answer questions that Dworkin's jurisprudence cannot.


 
Guzelian on Scientific Free Speech Christopher P. Guzelian (Northwestern University - School of Law) has posted Scientific Free Speech on SSRN. Here is the abstract:
    Audiences frequently mistake speakers' viewpoints (non-scientific speech) or authority-based opinions (scientific speech not justified by scientific knowledge) as Evidence-Based conclusions (scientific speech justified by scientific knowledge). It logically follows from settled free speech theory and fundamental tort and criminal principles ("Kiodynamic" principles) that misleading authority-based (scientific) opinions causing legally cognizable harms are punishable in tort or criminal law unless: (1) traditional tort or criminal defenses apply; or (2) the speaker has carefully standardized legislative authorization to mislead. The First Amendment may also afford a private organization a presumption that its members have assumed the risk of being misled by organizational opinions. This essay further contends that: (1) current evidentiary standards controlling expert witness testimony cannot distinguish whether a relevant scientific proposition is presently known to be a fact, a falsehood, or an uncertainty, regardless of which gatekeeper rule (Daubert, Frye, or Havner) controls. These standards assure that misleading opinions, but not necessarily Evidence-Based conclusions, reach the fact-finder in every case where dueling experts both testify; (2) current renditions of the adversarial expert witness system are therefore impermissible under Kiodynamic tort and criminal law principles, and violate the First Amendment if used specifically to resolve scientific free speech controversies; (3) state and federal governance (including the judiciary) must be restructured, so that Evidence-Based Logic (EBL) is the exclusive basis for governmental declarations of scientific knowledge.


 
Conference Announcement: The Capability Approach
    5th International Conference on the Capability Approach Knowledge and Public Action: Education, Responsibility, Collective Agency, Equity 11-14 September 2005, UNESCO, Paris, France français Call for Papers--Deadline Extended to April 15 To submit an application to have a paper considered for inclusion in the conference, please click here. The Human Development and Capability Association (HDCA) will organise the 5th annual Conference on the Capability Approach next September 2005 in Paris and Versailles, France, with the support of: the Centre of Economics and Ethics for Environment and Development (University of Versailles) the Division for the Promotion of Quality Education, UNESCO the French Institute for Research on Development (IRD) the French Agency for Development (AFD) the IMPACT Network on public policies against poverty and inequality As for the previous years, the following institutions are associated to the organisation of this conference: the Interdepartmental Centre for Social Philosophy and the European School for Advanced Studies in Cooperation and Development (University of Pavia) the Capability and Sustainability Centre, Von Hugel Institute, (University of Cambridge) the International Institute for Sustainable Development (Canada) the Global Equity Initiative (Harvard University) The conference will consist of four types of sessions: The training sessions will review the basic concepts of the capability approach and applied work related to education, public actions and measurement. These sessions are set up before the start of the conference, i.e. in the afternoon of Sunday 11th September. The parallel sessions are for the presentation and discussion of the full academic papers. These will be distributed according to a few key topics as underlined by the participants themselves through the papers sent. The plenary sessions will focus on the main conference theme Knowledge and Public Action and the related sub-themes Education, Responsibility, Collective Agency and Equity. Keynote speakers will debate the fundamental issues. The posters sessions will allow researchers and practitioners to present on-going research and project. This conference, like the previous ones in Cambridge and Pavia, is open to all economists, philosophers, social and political scientists, development experts, policy makers, and graduate students, who are developing and actively applying the capability approach, for instance to the human development paradigm. It intends to serve as an ongoing forum for intellectual innovation, communication and collaboration, dealing with these topics, with reference to the work initiated by Amartya Sen and Martha Nussbaum. These scholars will contribute to the conference. Therefore all scholars whose research is extending the capability approach, both its conceptual basis, through theoretical as empirical studies and through field operations, are welcome to this event. They will have the opportunity to debate ideas and projects together. While the papers may come from any discipline and may be theoretical, applied, or policy-based, every paper must fundamentally engage with applying, extending, or criticising the capability approach. This can be done through the human development paradigm and address topics such as: philosophical and ethical foundations, issues in operationalizing the capability approach, capability measurement and empirical analysis, gender, public action, democratic practice, poverty and inequality, ecosystems and sustainable development, education, health and AIDS, disabilities, migrations, culture, religious dimensions, conflicts, etc. We will adjust the categories of the parallel sessions according to the content of the papers received. So if you are engaged in important research using the capability approach with respect to another topic, do not hesitate to submit it. Naturally, we are seeking high quality research papers that explicitly carry forward some of the signal insights of the capability approach and the human development paradigm. Papers critical of this approach are equally welcome. The special theme of this year conference is Knowledge and Public Action. It includes four research directions, on which participants are encouraged to submit papers. 1. Quality Education - In order to improve the quality of education and contribute to the decade on education for sustainable development, four key pillars are considered: learning to know, learning to do, learning to be, and learning to live together, all in qualitative and quantitative ways, referring to the persons' psycho-social capabilities (i.e. life-skills). These would guide the design of appropriate programs to overcome disability, AIDS and more generally all forms of vulnerability; but also, within a long term perspective to protect ecological environment and social participation. 2. Responsibility as Source of Freedom - The issue is to understand how possible it is to increase the level of personal freedoms while facing social obligations and responsibility. How do capability, freedom and responsibility relate altogether? This may require to re-examine the definition of the individual vs. the person, to combine ethical principles from the Good and from the Just, in order to design the appropriate public policies which will aim at expanding people's capability. 3. Collective Agency, Personal Capabilities, Institutions - The concept of agency helps relating collective actions to the capability approach. However, how could we link the micro level of the person and the household to the meso level of social groups and institutions, in order to reach the macro thinking at the level of regions and State? Public policies geared towards a sustainable human development really need to consider and interrelate these various levels of analysis. 4. Public Action and Sharing with Equity - How would the capability approach be related to the sustainable view of development? Is it by ensuring an equitable distribution of capabilities within a generation or through an equitable transfer of capabilities from one generation to the other? What would be then the required processes of social protection, sharing and redistribution that would ensure social sustainability? The deadline for the submission of a paper proposal is the 15th April 2005. All proposals will be reviewed by the Conference Scientific Committee and notice of acceptance of the papers will be sent by early May 2005. Then the full papers are expected on the 1st July 2005. Due to the large number of expected papers, it is important to respect these two dates. Proposals and papers which are not received by the deadlines will be rejected or eventually put in the poster sessions. For submitting proposals, please use the enclosed application form that should be sent to Jean-Luc Dubois (hdcaparis@aol.com). The Conference Scientific Committee is composed of: Arun Abraham, University of Pennsylvania, USA Sabina Alkire, Global Equity Initiative, Harvard University, USA Jérôme Ballet, Université de Versailles, France Enrica Chiappero-Martinetti, University of Pavia, Italy Flavio Comim, Capability and Sustainability Centre, St. Edmund's College, Cambridge, UK Séverine Deneulin, St. Edmund's College, Cambridge, UK Jean Luc Dubois, Centre d'Economie et d'Ethique pour l'Environnement et le Développement, Institute of Research for Development (IRD), France Anantha K. Duraiappah, International Institute for Sustainable Development, Winnipeg, Canada Reiko Gotoh, Ritsumeikan University, Japan Anna-Maria Hoffmann, UNESCO, Paris Jean-Pierre Lachaud, Université de Bordeaux, France François-Régis Mahieu, Université de Versailles, France Mozaffar Qizilbash, University of East Anglia, Norwich, UK Ingrid Robeyns, University of Amsterdam, Netherlands The conference fees will be around 260 euros for academicians and professionals and 120 euros for scholars from LDC's and students. The cost of accommodation in hotels will be around 80 euros per night and in university rooms around 60 euros per night. People who wish to be considered for financial assistance should fill out the relevant section of the application form. Since fellowships are scarce, they will be required to submit their papers in time. More detailed information about the conference organisation, as well as transport and accommodation facilities, will be posted after the 1st of May on the conference web site: http://www.hd-ca.org/conference To submit an application to have a paper considered for inclusion in the conference, please click here. For any further information, please contact: Jean-Luc Dubois Centre d'Economie et d'Ethique pour l'Environnement et le Développement (C3ED) Université de Versailles St. Quentin en Yvelines (UVSQ) 47 Bd Vauban - 78047 Guyancourt Cedex, France Tel: 00.33.1.39.25.56.86 - Fax: 00.33.1.39.25.53.00 Email: hdcaparis@aol.com


 
LoPucki on Multinational Bankruptcy Lynn M. LoPucki (University of California, Los Angeles - School of Law) has posted Global and Out of Control (American Bankruptcy Law Journal, Vol. 79, June 2005) on SSRN. Here is the abstract:
    Multinational bankruptcy cases have tremendous potential for forum shopping because changing forum country also changes the law that will determine the debtor's remedies and the creditors' priorities. That potential has been held in check by the multinational companies' need that the courts of other countries recognize the decree of the forum court. Thus, the need for recognition is the lynchpin that holds forum shopping largely in check. Many of the world's leading bankruptcy professionals are now seeking to eliminate the recognition requirement by adopting "universalist" laws and regulations. This paper briefly describes three such efforts. First, the European Union has adopted a regulation, effective in 2002, requiring EU countries to recognize multinational bankruptcies filed in the debtor's "home country" (provided that country is in the EU). Second, UNCITRAL has promulgated, and the U.S. is about to adopt, a Model Law that encourages recognition of multinational bankruptcies filed in the debtor's "home country." Third, the American Law Institute has promulgated "Principles of Cooperation in Transnational Insolvency Cases" that, when combined with the Model Law, make recognition of home country multinational bankruptcies effectively mandatory. This paper was initially published as Chapter 8 of Courting Failure: How Competition for Big Cases Is Corrupting the Bankruptcy Courts (2005). Other chapters of the book describe forum shopping and court competition in and to the U.S. This paper describes rampant forum shopping and court competition in European Union cases since the adoption of the regulation. It predicts that worldwide rampant forum shopping and court competition will result from the adoption of the Model Law, and explains how that will occur. Universalist bankruptcy laws lead to forum shopping because multinational companies do not have "home countries" in any meaningful sense and, to the extent that they do, they can easily change them to gain legal advantage over their creditors. The paper speculates that some "universalists" are deliberately seeking to throw the international bankruptcy system into chaos in order to force countries to rapidly harmonize their laws (which will reduce the incentives for forum shopping). What the Universalists have not anticipated, however, is the potential for a "race to the bottom" as courts and countries compete for the multibillion dollar business of multinational bankruptcy.


Wednesday, March 30, 2005
 
Sunstein & Vermeule on a Moral Requirement for Capital Punishment Cass R. Sunstein and Adrian Vermeule (University of Chicago Law School and University of Chicago Law School) have posted Is Capital Punishment Morally Required? The Relevance of Life-Life Tradeoffs on SSRN. Here is the abstract:
    Recent evidence suggests that capital punishment may have a significant deterrent effect, preventing as many eighteen or more murders for each execution. This evidence greatly unsettles moral objections to the death penalty, because it suggests that a refusal to impose that penalty condemns numerous innocent people to death. Capital punishment thus presents a life-life tradeoff, and a serious commitment to the sanctity of human life may well compel, rather than forbid, that form of punishment. Moral objections to the death penalty frequently depend on a distinction between acts and omissions, but that distinction is misleading in this context, because government is a special kind of moral agent. The familiar problems with capital punishment - potential error, irreversibility, arbitrariness, and racial skew - do not argue in favor of abolition, because the world of homicide suffers from those same problems in even more acute form. The widespread failure to appreciate the life-life tradeoffs involved in capital punishment may depend on cognitive processes that fail to treat "statistical lives" with the seriousness that they deserve.
I am reminded of a perhaps apocryphal story about Tom Nagel (the NYU philosopher). When asked how many lives it took to justify the killing of an innocent, Nagle supposedly said, "17"--intending to demonstrate the absurdity of the question. I wonder about the claim that "government is a special kind of moral agent"--yes, special--but government only acts through individuals, who may have special roles, but are ordinary agents. Highly recommended!
Update: For more, including criticism of Sunstein & Vermeule, scroll up or surf here.


 
Patterson on Dworkin Dennis Patterson has posted Dworkin on the Semantics of Legal and Political Concepts on SSRN. Here is the abstract:
    In a recent comment on H.L.A. Hart's 'Postscript' to The Concept of Law, Ronald Dworkin claims that the meaning of legal and political concepts may be understood by analogy to the meaning of natural kind concepts like tiger, gold and water. This article questions the efficacy of Dworkin's claims by challenging the use of natural kinds as the basis for a semantic theory of legal and political concepts. Additionally, even if there are natural kinds, Dworkin's arguments for their efficacy in jurisprudence are problematic and unpersuasive. One problem for Dworkin is that his embrace of natural kinds undermines the "fit" side of his fit/justification model of adjudication. Finally, because in matters of value there is no methodological equivalent to the scientific method, there is little hope of finding hidden essences to explain the meaning of legal and political concepts.
Don't miss this! I always learn from Patterson. Highly recommended!


 
McCann on Nutritional Labeling Michael McCann has posted Comparing Legal, Economic, and Legislative Approaches to Nutritional Labeling of Fast Food Items on SSRN. Here is the abstract:
    This article explores four theoretical approaches to the nutritional labeling of fast food items: 1) The Voluntary Agreement Model; 2) The Free Market/Light Menu Model; 3) The Litigation Model; and 4) The Legislative Model. These models are explored in the context of the increasing frequency at which Americans consume fast food, the surging percentage of Americans who are overweight, and the recognition that more than half of all obesity-related costs are borne by taxpayers and employers. Related analysis also pertains to an application of Consumer Choice Theory to food choice. After concluding that the first three models are likely deficient in redressing related concerns, this article recommends that fast food restaurants generate full nutritional disclosure for items aimed at children 14 and under; that such disclosure replicate the format established by the Nutrition Labeling and Education Act; and that it be available at the point-of-sale.


 
SSRN Rankings of Tax Faculty Check out this post on TaxProf Blog. Louis Kaplow is Number One. And if you missed it, here is the link (registration required) to the SSRN ranking of law faculty by downloads in the last twelve months.


Tuesday, March 29, 2005
 
Hadfield on the 9/11 Compensation Fund Gillian Hadfield (The Law School, University of Southern California) has posted The September 11th Victim Compensation Fund: An Unprecedented Experiment in American Democracy (THE FUTURE OF TERRORISM RISK INSURANCE, Defense Research Institute (DRI), 2005) on SSRN. Here is the abstract:
    September 11th laid bare the foundations not only of the Twin Towers in downtown Manhattan but also of American ambivalence about a central democratic institution, the civil justice system. American democracy is built on the idea that ordinary individuals can participate in governance, taking action to ensure the laws are followed by activating and indeed to some extent directing the power of the state through the judicial branch. American businesses have relied on the availability of the courts to resolve their disputes about how their losses caused by the terrorist attacks should be distributed. But Congress sought to divert non-business entities out of the courts, rushing to provide an alternative source of compensation which it would make available to those who waived their right to litigate their disputes with those who may have contributed to their losses. In collapsing the compensation (actually insurance, for compensation implies a payment from one who caused an injury to a person harmed by that injury) function of the civil justice system with its democratic function - requiring access to one be purchased through disavowal of the other - Congress contributed to the erosion of democratic commitment to litigation as an important means by which the 'rule of law' is honored. The VCF was, as the Special Master concluded, a generous expression of shared loss by the American public and served well, as the RAND study concluded, to fill the gaps in other sources of social insurance. But by tying access to that insurance to the waiver of civil litigation, the VCF went farther than it had to and farther than it should have. The problems with civil litigation - its extraordinary cost, complexity and slowness - are real, and require real solutions. But closing off the courts is not among the solutions a democratic society should entertain. Congress had the opportunity, and still does, to devise a democratic response to the problems of civil litigation. An alternative in cases of mass tragedy such as September 11th could well provide both for democratic commitments and a reasonable and contained process. Reasonably just substitutes for civil actions should, perhaps constitutionally must, provide a substitute not only for the money plaintiffs might recover through this means, but also for the opportunity civil litigation gives ordinary citizens to participate in the institutions that give meaning to the rule of law.


 
Marmor on Textualism Andrei Marmor (University of Southern California - Law School) has posted The Immorality of Textualism (Loyola Law Review, 2005) on SSRN. Here is the abstract:
    In this short essay I argue that textualism, as a doctrine of statutory interpretation, is inherently deceptive and therefore immoral. Textualism is typically presented by its adherents as an interpretive practice that is motivated by respect for democracy and respect for the authority of the legislature. But in fact, textualism's preoccupation with ordinary meaning and literal application of statutes is motivated by constraining the legislature's ability to pursue broad regulatory policies. Authorities do not want to be understood literally. Authorities purport to govern, and governance requires cooperation in the spirit of its goals, not strict adherence to the letter of its directives.
A provocative thesis, given the difficulties in providing evidence for the true motivations, not of "textualism," which has none, but of its proponents, on the bench and in the academcy.


 
Conference Announcement: Principles of Association in British History at Chicago
    The Nicholson Center for British Studies at the University of Chicago presents: Conference: "Principles of Association in British History" Friday, April 8, 2005, 8:30am - 6pm Classics Building (1010 E. 59th Street), Room 10 This conference will explore the links, contrasts, and similarities between the principles that are thought to guide human association in different areas of social life. Several renowned scholars will head the discussion, among them Mary Lyndon Shanley (Vassar), Samuel Fleischacker (UIC), and Avigail Eisenberg (British Columbia). Several U of C faculty will also take part: Mary-Anne Case (Law School), Jacob Levy (Political Science), Patricia Nordeen (Chicago College). An inter-disciplinary event, of interest to students and scholars of Political Science, Philosophy, History, English, Economics, Sociology, Religious Studies, and related fields, the conference will encourage discussions in a broad scholarly context, drawing connections between disciplines and areas of study that are often isolated from each other. For more information please contact Mara G. Marin at or Víctor M. Muñiz-Fraticelli at . Co-sponsors: The Chicago Center for Democracy, the Committee on Social Thought, the Center for Gender Studies, and the Department of Political Science at the University of Chicago. Conference Schedule: 8:30 - 8:45: Opening Remarks 8:45 - 10:30: Panel 1. Politics and Association Samuel Fleischacker, University of Illinois at Chicago "Face-to-face Relationships in Adam Smith: Some Political Implications" Michael Goode, University of Illinois at Chicago “Peace Shall Move Mountains: An Examination of Seventeenth Century Quaker Pacifism and the 1660 Declaration" Thomas Weber, University of Chicago “Principles of Association in Oxford Colleges between c. 1880 and 1914” 10:45 - 12:30: Panel 2. Identity and Pluralism Avigail Eisenberg, University of British Columbia "Mindful Neglect: Identity Politics in Liberal and Democratic Traditions" Jacob Levy, University of Chicago “British Pluralism, Liberalism, and Medievalism" Jane Silloway, Northwestern University “Rewriting the Reformation” (Lunch Break) 2:00 - 3:45: Panel 3. Marriage, Sexuality, and the Family Mary Anne Case, University of Chicago Law School "The Role of the State in Marriage and in the Business Corporation" Mary L. Shanley, Vassar College "'Marriage Contract and Social Contract' Revisited: Persistent Dilemmas for Liberal Theory" Hristomir Stanev, University of Chicago “Wayward Sexuality and Domestic Instability in Thomas Dekker’s City Comedies” 4:00 - 5:45 : Panel 4. The Sovereign and its Subjects Robert McJimsey, Colorado College "Founding the Stuart Monarchy: Honor and Virtue at the Court of James I" Victor M. Muniz-Fraticelli, University of Chicago “‘On Resistance and Rebellion in Shakespeare" Dana Rovang, University of Chicago “The Head of the King: Madness, Passion and Sovereignty in Late-Eighteenth Century England” 5:45 - 6:00: Closing Remarks


 
Bodie on the Future of the Casebook Matthew T. Bodie (Hofstra University - School of Law) has posted The Future of the Casebook: An Argument for an Open-Source Approach on SSRN. Here is the abstract:
    Despite dramatic technological change, the thick, attractively-bound casebook remains ensconced as the written centerpiece of legal education. That will soon change - but its replacement has not been established. This paper argues that the legal academy should take this opportunity to implement an "open source" approach to future course materials. Guided by analysis and examples of commons-based peer production such as open source software, professors could establish electronic commons casebooks with a myriad of materials for every course. These joint databases would unshackle individual creativity while engendering collaboration on levels previously impossible. Although there may be concerns that such a project would not draw any interest, or might be swamped by too much interest, the successes of other peer-production projects demonstrate that such concerns are generally unwarranted or manageable. Copyright ultimately poses the biggest difficulty, but even that barrier can be circumvented to greater and lesser degrees. Although as yet an untried experiment, an open source approach has the potential to open a new era in legal pedagogy.


Monday, March 28, 2005
 
Pildes on the 2003 Supreme Court Term Rick Pildes (NYU) has posted The Constitutionalization of Democratic Politics - The Supreme Court, 2003 Term (Harvard Law Review, Vol. 118, No. 29, 2004) on SSRN. Here is the abstract:
    Around the world, courts in the last two decades have increasingly extended constitutional law to oversee the basic structure of democracy itself. This development constitutes a significant transformation in the object of constitutional law - a shift from the conventional individual rights and anti-discrimination focus and toward judicial engagement with the institutions and processes of democratic politics. Whether resolving disputed Presidential elections, evaluating the design of representative institutions, determining the role of political parties, assessing the financing of elections, or even managing the transition from authoritarian to democratic regimes, courts and constitutional law have now become central actors in organizing the way democracy is practiced. The first aim of this Foreword is to make this transformation fully visible. The Foreword focuses primarily on the United States Supreme Court, where these developments are most pronounced. The Foreword then turns to assessing this new frontier of constitutional law; the Foreword argues that, thus far, courts have done both too little and too much in the way they have constitutionalized the essential structures of democracy. Courts have been insufficiently responsive to the tendency of those holding political power to structure the ground rules of democracy to entrench themselves more deeply in power. At the same time, courts have inappropriately constitutionalized, without sufficient justification, the broad rights of politics - to vote, to speak, to associate - in ways that wrongly limit the ability of democracies to experiment with new ways of organizing democratic politics. Given the disaffection with current forms of democracy expressed in many mature democracies today, this judicial tendency to constitutionalize existing democratic arrangements and freeze them in place threatens the ability of democracies to revise themselves. As courts enter this new domain, the Foreword offers a theoretical and doctrinal framework that defines the role constitutional law ought to play - more expansive in some contexts, less expansive in others - in overseeing the structure of democracy. The Foreword then applies this framework to a number of specific issues: partisan gerrymandering; the representation of diverse groups in political bodies; the legal regulation of political parties; the role of independent bodies to oversee election practices; and campaign financing.
I take special pleasure in recommending Pildes's elegant and interesting foreward to the Supreme Court issue of the Harvard Law Review.


 
Monday Calendar
    Boston University School of Law: David Dana (Northwestern), "Using the Veil of Ignorance to Ensure Justice in Class Actions: A Rawlsian Approach to Adequacy of Representation" (This is the SSRN version of the paper, which may differ from the one presented at BU). Here is a taste:
      In both federal and state practice, judges must certify class actions for the class actions to proceed, and must approve class settlements for those class settlements to have any legal effect.1 Judges may or may not make explicit findings regarding the adequacy of representation class members received, but even where then are no explicit findings, judicial certification of a class and approval of a class settlement arguably implies a finding of adequacy of representation.2 Why then should class members ever be able to challenge the settlement in subsequent actions? Why should they not be bound to the settlement if a court explicitly, or even just implicitly, has held that they were adequately represented in the process that produced the settlement? To answer that question, we must first unpack the concept of “adequate representation.” Adequacy of representation in the class context cannot mean what it means in non class litigation – that the lawyer faithfully attend to the client ’s interest, advise the client of the various options available to her, and give her the opportunity to make the ultimate decisions about whether to accept or reject a settlement offer. In the non-class-action litigation context, the client is actually present, or at least could be if she so chooses. It seems reasonable, therefore, that the law hold her to the choices she made even if those choices result in different consequences from those that she anticipated.4 In the class action context, the client –the class members or at least almost all of them – are not present ; indeed, many class members are never even aware of the existence of the class litigation to which they are, in theory, a party. They are represented only virtually, by means of class representatives. And since class representatives are almost always nominal actors,5 the absent class members are in truth represented only by class counsel, acting, typically, with minimal or no real client input.
    I read an earlier version of the paper, which is highly recommended!
    Columbia Law & Economics: Gideon Parchomovsky, University of Pennsylvania Law School, "Patent Porfolios," Co-authored with Polk Wagner. Here is the abstract:
      This article presents a new theory of patent value, responding to growing empirical evidence that the traditional appropriability premise of patents is fundamentally incomplete in the modern innovation environment. We find that for patents, the whole is greater than the sum of its parts: the true value of patents lies not in their individual worth, but in their aggregation into a collection of related patents, a patent portfolio. The patent portfolio theory thus explains what is known as "the patent paradox": in recent years patent intensity—patents obtained per research and development dollar—has risen dramatically even as the expected value of individual patents has diminished. We find the benefits of patent portfolios to be so significant as to suggest that firms' patenting decisions are essentially unrelated to the expected value of individual patents; because patent portfolios simultaneously increase both the scale and the diversity of available marketplace protections for innovations, firms will typically seek to obtain a large quantity of related patents, rather than evaluating their actual worth. The result—which we find widely recognized in commercial circles—is that the modern patenting environment exhibits (and requires) a high-volume, portfolio-based approach that is at odds with scholars' traditional assumptions. The implications of the patent portfolio theory are important and widespread. First, the explanatory power of the theory allows resolution of not only the patent paradox, but many of the otherwise-puzzling observable patterns in the modern patenting environment—such as firm-size differences in patent intensity and litigation rates. Second, the patent portfolio theory neatly complements the prior theories that have sought to explain modern patent value, strengthening their relationship with the reality of patenting behavior—and confirming that the value of patents has expanded beyond traditionalist notions. Third, the patent portfolio theory allows a number of important predictive insights into future trends in the patent system, allowing policymakers and scholars to frame their inquiry within a range of likely outcomes. In our analysis, the patent portfolio theory does not suggest a better, brighter future for the patent system, but does build a foundation for the important academic and policy-related work that springs from this initial treatment.


 
Zacharias on Lawyer Assistance Programming Fred C. Zacharias (University of San Diego School of Law) has posted A Word of Caution for Lawyer Assistance Programming (Georgetown Journal of Legal Ethics, Vol. 18, 2005) on SSRN. Here is the abstract:
    With increasing awareness of the problem of substance abuse in the legal profession has come the natural desire to develop responses. Formal bar-sponsored "lawyer assistance" programs have sprouted throughout the United States. Many of these programs have been accompanied by rules that permit lawyers to seek help on a confidential basis. There is a very real tension between the functions of the bar in assisting lawyers in reforming their behavior, or seeking help for their addiction, and in protecting clients against lawyer misconduct. This tension has ramifications for the programs and rules bar organizations may wish to institute, for the principles that should govern administrators of lawyer assistance and bar disciplinary programs, and for the emphasis bar associations may wish to adopt for their activities. The goal of this brief comment is to identify a few of the issues that each state and local bar association should address before reaching any conclusions regarding the appropriateness of particular forms of lawyer assistance.


 
Leiter on the Hermeneutics of Suspicion Brian Leiter (University of Texas at Austin - School of Law & Department of Philosophy) has posted The Hermeneutics of Suspicion: Recovering Marx, Nietzsche, and Freud (Brian Leiter, THE FUTURE OF PHILOSOPHY, Clarendon Press, pp. 74-105, 2004). Here is the abstract:
    Paul Ricoeur famously dubbed that great triumvirate of late nineteenth - and early twentieth-century thought - Marx, Nietzsche, and Freud - "the school of suspicion," by which he meant those thinkers who taught us to regard with suspicion our conscious understandings and experience, whether the deliverances of ordinary psychological introspection about one's desires ("I really want to be rich!"), or the moral categories political leaders and ordinary citizens apply to themselves and the social world they inhabit ("an inheritance tax is an immoral death tax!"). "Beneath" or "behind" the surface lay causal forces that explained the conscious phenomena precisely because they laid bare the true meaning of those phenomena: I don't really want lots of money, I want the love I never got as a child; survivors have no moral claim on an inheritance, but it is in the interests of the ruling classes that we believe they do; and so on. Recent years have been, in now familiar ways, unkind to Marx and Freud. Yet instead of a frontal assault on the critiques of the explanatory programs of Marx and Freud, the defense of their legacy in the English-speaking world has gradually fallen to those I will call moralizing interpreters of their thought. The moralizing readers de-emphasize (or simply reject) the explanatory and causal claims in the work of Marx and Freud, and try to marry more-or-less Marxian and Freudian ideas to various themes in normative ethics and political philosophy. Explanation of phenomena is abandoned in favor of the more traditional philosophical enterprise of justification, whether of the just distribution of resources or the possibility of morality's authority. So, for example, G.A. Cohen, the most influential of English-language Marx interpreters in recent decades, has declared that "Marxism has lost much or most of its [empirical] carapace, its hard shell of supposed fact" and that, as a result, "Marxists...are increasingly impelled into normative political philosophy." (Under the influence of Habermas, the Marxist tradition has taken a similar turn on the Continent.) Similarly, a leading moral philosopher notes that, "Just when philosophers of science thought they had buried Freud for the last time, he has quietly reappeared in the writings of moral philosophers" and goes on to claim that "Freud's theory of the superego provides a valuable psychological model for various aspects of [Kant's] Categorical Imperative." On these new renderings, Marx and Freud command our attention because they are really just complements (or correctives) to Rawls or Korsgaard, really just normative theorists who can be made to join in a contemporary dialogue about equality and the authority of morality. Nietzsche, too, has been transformed by moralizing interpreters, though in a somewhat different way. The crucial development here has been the retreat from the natural reading of Nietzsche as a philosopher engaged in an attack on morality -a reading first articulated by the Danish scholar Georg Brandes more than a century ago - in favor of a reading which presents Nietzsche as fundamentally concerned with questions of truth and knowledge: the moralistic scruples of interpreters are satisfied by treating Nietzsche as concerned with something else, something less morally alarming than a "revaluation of values." I shall argue that, in fact, all three of the great practitioners of the hermeneutics of suspicion have suffered at the hands of moralizing interpreters who have resisted the essentially naturalistic thrust of their conception of philosophical practice. As a matter of both textual exegesis and intellectual importance, Marx, Nietzsche, and Freud are best read as primarily naturalistic thinkers, that is thinkers who view philosophical inquiry as continuous with a sound empirical understanding of the natural world and the causal forces operative in it. When one understands conscious life naturalistically, in terms of its real causes, one contributes at the same time to a critique of the contents of consciousness: that, in short, is the essence of a hermeneutics of suspicion.
Also, Leiter has posted a revised version of his Beyond the Hart/Dworkin Debate: The Methodology Problem in Jurisprudence.


 
Arewa on Sampling Olufunmilayo Arewa (Case Western Reserve University - School of Law) has posted From J.C. Bach to Hip Hop: Musical Borrowing, Copyright and Cultural Context on SSRN. Here is the abstract:
    Tremendous controversy exists today about legal treatment of hip hop music. Having just reached its thirtieth birthday, hip hop is now the second most popular type of music in the United States and an important musical and cultural force globally. The advent of hip hop has raised serious copyright law concerns. At the core of such concerns is the issue of sampling, or the use of pieces of existing recorded music within hip hop works, which has been deemed in some instances to constitute copyright infringement. Professor Arewa discusses issues that arise in the application of copyright to music generally as well as historical and cultural aspects of the hip hop debate. In discussions of music, particularly in the legal field, hip hop is considered within a tradition that values independent and autonomous authorship of musical works and that consequently reflects pervasive romantic author discourse. Within such discussions, the manner of music production of great masters of the European classical tradition may be seen as a model of musical production against which musical forms such as hip hop are often at least implicitly measured. The image of the classical tradition embedded in such discussions is, however, inaccurate and distorted. The classical music tradition is an invented tradition that was largely constructed in the nineteenth century and that no longer operates as an active tradition to which new works are being added in any quantity. Actual practice within the classical tradition varies significantly from the idealized imagery of this tradition evident in legal discourse about music. The image of the classical tradition is important because through characterizations of this tradition, hip hop musical production is distinguished from other methods of making music in a number of ways through the use of a series of implicit and explicit dichotomies. In looking at this classical tradition historically, however, it is clear that much continuity underlies the production of music generally, particularly in relation to musical borrowing, which was common in the European classical tradition in actuality as opposed to its constructed history. The varied uses of musical borrowing suggest that more careful consideration needs to be given to the extent to which copying and borrowing have been and can be a source of innovation within music and by extension elsewhere. Recognition of such borrowing needs to be incorporated into existing copyright frameworks as a basis for the development of commercial practices and liability rule based legal structures for treatment of music, including hip hop, which uses existing works in its creation.


Sunday, March 27, 2005
 
Legal Theory Calendar
    Sunday, March 27
      Cardozo Law School: Conference, The Nuremberg Trials: A Reappraisal and Their Legacy
    Monday, March 28
      Boston University School of Law: David Dana (Northwestern), "Using the Veil of Ignorance to Ensure Justice in Class Actions: A Rawlsian Approach to Adequacy of Representation" (This is the SSRN version of the paper, which may differ from the one presented at BU). Here is a taste:
        In both federal and state practice, judges must certify class actions for the class actions to proceed, and must approve class settlements for those class settlements to have any legal effect.1 Judges may or may not make explicit findings regarding the adequacy of representation class members received, but even where then are no explicit findings, judicial certification of a class and approval of a class settlement arguably implies a finding of adequacy of representation.2 Why then should class members ever be able to challenge the settlement in subsequent actions? Why should they not be bound to the settlement if a court explicitly, or even just implicitly, has held that they were adequately represented in the process that produced the settlement? To answer that question, we must first unpack the concept of “adequate representation.” Adequacy of representation in the class context cannot mean what it means in non class litigation – that the lawyer faithfully attend to the client ’s interest, advise the client of the various options available to her, and give her the opportunity to make the ultimate decisions about whether to accept or reject a settlement offer. In the non-class-action litigation context, the client is actually present, or at least could be if she so chooses. It seems reasonable, therefore, that the law hold her to the choices she made even if those choices result in different consequences from those that she anticipated.4 In the class action context, the client –the class members or at least almost all of them – are not present ; indeed, many class members are never even aware of the existence of the class litigation to which they are, in theory, a party. They are represented only virtually, by means of class representatives. And since class representatives are almost always nominal actors,5 the absent class members are in truth represented only by class counsel, acting, typically, with minimal or no real client input.
      I read an earlier version of the paper, which is highly recommended!
      Columbia Law & Economics: Gideon Parchomovsky, University of Pennsylvania Law School, "Patent Porfolios," Co-authored with Polk Wagner. Here is the abstract:
        This article presents a new theory of patent value, responding to growing empirical evidence that the traditional appropriability premise of patents is fundamentally incomplete in the modern innovation environment. We find that for patents, the whole is greater than the sum of its parts: the true value of patents lies not in their individual worth, but in their aggregation into a collection of related patents, a patent portfolio. The patent portfolio theory thus explains what is known as "the patent paradox": in recent years patent intensity—patents obtained per research and development dollar—has risen dramatically even as the expected value of individual patents has diminished. We find the benefits of patent portfolios to be so significant as to suggest that firms' patenting decisions are essentially unrelated to the expected value of individual patents; because patent portfolios simultaneously increase both the scale and the diversity of available marketplace protections for innovations, firms will typically seek to obtain a large quantity of related patents, rather than evaluating their actual worth. The result—which we find widely recognized in commercial circles—is that the modern patenting environment exhibits (and requires) a high-volume, portfolio-based approach that is at odds with scholars' traditional assumptions. The implications of the patent portfolio theory are important and widespread. First, the explanatory power of the theory allows resolution of not only the patent paradox, but many of the otherwise-puzzling observable patterns in the modern patenting environment—such as firm-size differences in patent intensity and litigation rates. Second, the patent portfolio theory neatly complements the prior theories that have sought to explain modern patent value, strengthening their relationship with the reality of patenting behavior—and confirming that the value of patents has expanded beyond traditionalist notions. Third, the patent portfolio theory allows a number of important predictive insights into future trends in the patent system, allowing policymakers and scholars to frame their inquiry within a range of likely outcomes. In our analysis, the patent portfolio theory does not suggest a better, brighter future for the patent system, but does build a foundation for the important academic and policy-related work that springs from this initial treatment.
    Tuesday, March 29
    Wednesday, March 30
    Thursday, March 31
      St. John’s University Law School: Paul Marcus (William & Mary), “It’s Not Just About Miranda: Determining the Voluntariness of Confessions in Criminal Prosecutions”.
      Fordham University School of Law: Benjamin Zipursky, Professor of Law, Fordham, "Accidents of the Great Society". Here is a taste:
      UCLA Legal Theory Workshop: Deborah Hellman, Professor of Law, University of Maryland School of Law, Its Not the Thought that Counts. Here is a taste:
        In an oft-quoted passage, Justice Holmes asserts that “even a dog distinguishes between being stumbled over and being kicked.” According to Fred Schauer, Holmes overestimates dogs. Perhaps Holmes is wrong about people too. The passage appears to suggest that it is the intention of the actor that matters to the determination of what sort of action takes place. The actor’s intention has the power to transform the action from an instance of kicking to an instance of tripping. And because we assume that kicking is, generally speaking, morally wrong while tripping is, generally speaking, not morally wrong, this transformation is important. But this common understanding of the meaning of that passage may be mistaken. After all, Holmes only needs to bother with the assertion that even a dog can discern the kick from the trip unless it matters what the recipient is likely to take the action to be. The logic of the passage actually works as follows: If even a dog knows the difference, then a fortiori a person can be expected to know as well. Holmes therefore concedes that the way an action is likely to be perceived matters to the determination of what sort of action it is and how we ought to judge that action. The contrary claim –that intention matters – plays a central role in Equal Protection doctrine and commentary. While that doctrine is admittedly complex and contradictory and has generated significant commentary and controversy, nonetheless it is probably fair to say that the intention of the state actor in enacting a law or policy continues to play an important role in the determination of whether that law or policy violates Equal Protection. Moreover, there are two important ways in which intention is taken to matter. First, intention may matter because it is the actor’s intention that determines the nature of the action itself – is it kicking or tripping, for example. Second, intention may matter to the determination of the legal permissibility of the action once defined. In Equal Protection law, is it the thought that counts?
      UC Berkeley, Kadish Center: Dennis Thompson, Alfred North Whitehead Professor of Political Philosophy, Harvard University, Who Should Govern Who Governs. Here is a taste:
        If in a democracy the people have the authority to choose their representatives, then it would seem to follow that they should have the authority to choose the procedures by which they choose their representatives. Yet in nearly all democracies the procedures that govern elections have been established by officials or representatives themselves. Legislatures, courts and commissions rather than popular initiatives or constitutional conventions created and continue to control the electoral process in most democracies. Until recently, attempts to change any electoral system were rare and rarely succeeded. But in the past decade, electoral reform has been gaining a place on the political agenda in many democracies. In the 1990s, many newly emerging democracies designed their own systems, and nine established democracies made far-reaching changes in their existing systems. Although many of these reforms have been carried out by elites, usually in reaction to contingent political circumstances rather than in the service of a plan for improving the system itself, citizens themselves have increasingly demanded, and in some cases won, a significant role in the process of reform. The question of who should choose the electoral system—and more specifically what role citizens should play in that choice—is thus timely. Posing it also creates an opportunity to raise some issues in democratic theory that have been often neglected. In this paper, I construct a theoretical justification for popular participation in the choice of electoral systems, and consider several objections to such participation. To give the objections (and the replies) institutional content, I draw on the experience of a current case— the British Columbia Citizens’ Assembly on Electoral Reform. The institution of the Assembly represents the first time in history (as far as I know) that any democracy has enlisted ordinary citizens in this way to change an electoral system.
      University of Western Ontario Faculty of Law: Conference, Litigating Conspiracy: A Symposium on Competition Class Actions:
        The symposium is about class actions that advance claims for conspiracy, such as price-fixing, bid-rigging and market share manipulation.
      Yale Legal Theory Workshop: Juliet Schor, Boston College (Sociology) (in joint session with the LEO workshop).
      Florida State University School of Law: William Marshall, University of North Carolina School of Law, Presidential Transitions.
    Friday, April 1
      University of Cincinnati Philosophy & Law: Virtue Ethics vs. Kantian Ethics:
        This conference examines virtue ethics, Kantian ethics, their past and present, their differences, and their respective strengths and weaknesses.
      University of Cincinnati School of Law: Lawrence Solum, Virtue Jurisprudence: An Aretaic Theory of Law.
      UCLA School of Law: Gideon Parchomovsky, University of Pennsylvania Law School, "Patent Portfolios"


 
Legal Theory Lexicon: Hohfeld
    Introduction You need to know Hohfeld. Why? Because W.N. Hohfeld’s typology of rights from his book Fundamental Legal Conceptions is, well, fundamental. And useful! Let me say this is a more polemic manner: If you don't know Hohfeld, you are out of the loop as a legal theorist!
    Law students encounter the idea of right (moral or legal) early and often. But “rights talk” is frequently “loose talk.” Hohfeld is famous for exposing the ambiguity in the concept of a right and resolving that ambiguity with a typology of rights that distinguishes between claims, liberties, authorities, and immunities. This post is a quick and dirty introduction to Hohfeld for law students (especially first year law students) with an interest in legal theory.
    Types of Rights and Correlative Duties Lawyers tend to mush all legal rights together into a single category. The right to privacy, the right to freedom of speech, property rights, and civil rights—these diverse legal phenomena are frequently treated as if the “right” involved in these diverse cases was a single unambiguous type. Hohfeld’s first contribution was to distinguish different types of rights. Claim rights, for example, create corresponding obligations. Thus, my right to exclusive use of my land entails a corresponding duty of noninterference. You have a duty not to enter upon my land. But my property right also entails my liberty to use my land in a wide variety of ways—to build a house, plant a garden, and so forth. Correlated to that liberty is a correlative absence of inconsistent claim rights. You have no right to prevent me from building a house or planting a garden. Some legal rights involve powers over others. Thus, an employer has a right to control and direct the employee’s actions at work, and parents have authority over their children. Finally, there are immunities from authority. Thus, when children reach the age of majority or are legally emancipated they acquire immunities that disable the authority rights of their parents.
    Implicit in our discussion so far is Hohfeld’s second big idea, which is that each kind of right (claim, liberty, authority, and immunity) has a correlative legal consequence for others. Claim rights have correlative duties. Liberty rights correlate with an absence of claims. Authority rights correlate with liabilities. Immunities correlate with the absence of authority.
    Four Types of Rights The following list enumerates Hohfeld’s basic schema, identifying each kind of right and the correlative legal consequence. P is the party with the right. Q represents the person or group of persons on whom the right has a legal effect. X represents the object of the right.
      Claim Rights
        Rights relation:
          P has a claim against Q to X.
        Correlative relation:
          Q has a duty to P to X.
      Liberty Rights
        Rights relation:
          P has a liberty against Q to X.
        Correlative relation:
          Q has no claim against P to not-X
      Authority Rights:
        Rights relation:
          P has authority over Q to X
        Correlative relation:
          Q has a liability to P to X.
      Immunity Rights
        Rights relation:
          P has an immunity against Q to X.
        Correlative relation:
          Q has a disability (no authority) against P to not-X.
    Moral and Legal Rights Hohfeld was interested in legal rights, but we can extend his scheme to moral rights. Thus, if I have a moral claim right to performance of a promise, you have a corresponding moral duty to perform. Of course, many legal rights are identical to (or substantially the same as) similar moral rights. Contracts, for example, create both moral and legal obligations. Some moral rights, however, may not be reflected in the law. For example, I may have a moral obligation not to discriminate on the basis of race when letting a room in my home, but at the same time have a legal liberty right to engage in such discrimination.
    Conclusion That’s Hohfeld in a very short nutshell!


 
Gerhardt on the Constitutionality of a Judicial Filibuster Over at ACS Blog, there is a post entitled Gerhardt on the "The Constitutionality of the Filibuster", which analyzes a recent piece by Michael Gerhardt in Constitutional Commentary. Here is a taste:
    [T]he filibuster is best understood as a classic example of a non-reviewable, legislative constitutional judgment. It is also a practice that has the same claim to constitutionality as many counter-majoritarian practices within the Senate, including the committee structure and unanimous consent requirements. The Constitution permits all of these practices, though it does not mandate any of them. These practices define the Senate’s uniqueness as a political institution, particularly its historic commitments to various objectives--respecting the equality of its membership and to minority viewpoints; encouraging compromise on especially divisive matters; and facilitating stability, order, and collegiality in the long run. The principal checks on these practices, including the filibuster, are political. They include the Senate Rules, the need to maintain collegiality within the institution, and the political accountability of senators for their support for, or opposition to, filibusters.


 
Jacobs on Life Tenure for Judges Over at Townhall.com, Paul Jacob has an op/ed entitled Benching the judges. Here is taste:
    Calls for a limit on judicial terms are long overdue. One of the best proposals is House Joint Resolution 55, a constitutional amendment introduced by Texas Rep. John Culberson (R-Houston), that would require federal district court judges to be retained every 10 years by both the state legislature and the governor where the judge serves. That strengthens federalism by interconnecting the federal courts with state governments, which are closer to the people. Yet this amendment is going nowhere in Congress. The problem is obvious: we can hardly expect an out-of-control Congress to help us bring the judiciary under control. Instead, in keeping with Alexis de Tocqueville's view of the states as "laboratories of democracy," bringing the judiciary under control must start closer to home. State judges have exhibited similarly bad behavior and, through the initiative process and more accessible legislators and elections, voters can do something about it.
In the piece, Jacob quotes me as follows:
    "The way we got into this mess begins with a judiciary that is already politicized," University of San Diego law professor Lawrence B. Solum says. "Lifetime tenure looks like a pretty silly idea if it is being used to safeguard the power of judges who have been thoroughly politicized."
The quote is accurate, but a bit out of context--especially when used to support an end to lifetime tenure. Here is the conclusion of the paragraph:
    If I am given the Hobson's choice--politicized judging with life tenure or politicized judging without life tenure--the choice is painful but clear. The point of the thought experiment is that we should avoid the Hobson's choice. How can we avoid it? Compromise. Both parties should agree on two principles of judicial selection. Principle One: judges should be selected on the basis of their possession of the judicial virtues, and especially the virtue of justice--fidelity to the rule of law. Principle Two: each party should agree to allow the nominees of the other party to come to a floor vote, and Senators should vote to confirm--unless there is good evidence that the nominee lacks the constituent elements of good judicial character. The possible world of Article III without Life Tenure is not the only ending point for the downward spiral of politicization, but contemplating this possibility can and should serve a salutary purpose. It is in the long run interest of both political parties to call off the confirmation wars. The time for escalation should end, and the time for compromise should begin.
My original post, quoted by Jacob, was Going Nuclear: The Constitutionality of Recess Appointments to Article III Courts.


Saturday, March 26, 2005
 
Saturday Calendar
    Florida State University: Conference, Default Rules in Private and Public Law. Continues today. Keynote speaker: Eric Maskin—Princeton. Other participants include Ian Ayres (Yale), Robert Ahdieh (Emory), Scott Baker & Kim Krawiec (University of North Carolina), Oren Bar-Gil (Harvard), Omri Ben-Shahar (Michigan), Margaret Brinig (Iowa), Daniel Farber (Berkeley), John Ferejohn (Stanford), Tamar Frankel (Boston University), Bradley C. Karkkainen (Minnesota), Jody Kraus (Virginia), Eric Posner (Chicago), Alan Schwartz (Yale), Robert Scott (Virginia), Eric Talley (University of Southern California). Participating Florida State University faculty include Amitai Aviram, Curtis Bridgeman, Mary Crossley, Adam Hirsch, Jonathan Klick, Jim Rossi, J.B. Ruhl, John Scholz, and Mark Seidenfeld.


 
Legal Theory Bookworm The Legal Theory Bookworm recommends The Law as It Could Be by Owen Fiss. Here is a brief description:
    The Law As It Could Be gathers Fiss's most important work on procedure, adjudication and public reason, introduced by the author and including contextual introductions for each piece—some of which are among the most cited in Twentieth Century legal studies. Fiss surveys the legal terrain between the landmark cases of Brown v. Board of Education and Bush v. Gore to reclaim the legal legacy of the Civil Rights Movement. He argues forcefully for a vision of judges as instruments of public reason and of the courts as a means of shaping society in the image of the Constitution. In building his argument, Fiss attends to topics as diverse as the use of the injunction to restructure social institutions; how law and economics have misunderstood the role of the judge; why the movement seeking alternatives to adjudication fails to serve the public interest; and why Bush v. Gore was not the constitutional crisis some would have us believe. In so doing, Fiss reveals a vision of adjudication that vindicates the public reason on which Brown v. Board of Education was founded.
And follow this link for a review.


 
Download of the Week The Download of the Week is Analytical Jurisprudence versus Descriptive Sociology Revisited by Nicola Lacey. Here is a taste:
    In this essay, I want to revisit the protracted, inconclusive and sometimes unedifying debate prompted by Hart’s famous claim in the Preface to The Concept of Law that the book might be regarded as a contribution not only to analytical jurisprudence but also to descriptive sociology. Drawing on my work on Hart’s biography, I shall review his own reflections on the claim, the arguments in legal theory to which his claim gave rise, and the reasons for thinking that the structure of his own theory prevented him from following through on the insights from which his claim proceeded. My motivation is not, however, primarily that of the biographer or intellectual historian. Rather, this general interpretive question about Hart connects with some long-standing interests which have informed my own work in jurisprudence and criminal law theory. So, while bearing in mind Freud’s view of the biographer’s relationship with his or her subject as ‘a heady brew of Oedipal triumph and sibling rivalry’(!), I shall use my engagement with Hart’s biography and intellectual legacy as the jumping off point for a further examination of the relationship between what have come to be called ‘internal’ and ‘external’ approaches to legal theory, and about the relative contributions of philosophy, history and the social sciences to our systematic understanding of the nature of law. Are legal philosophers justified in regarding sociological legal theorists as playing an entirely different game or, to put the question in Kornhauser’s terms, does it make sense to seek a theory of the ‘legal order’ independent of a theory of the ‘legal regime’? My argument will proceed in three stages. First, I shall examine Hart’s original claim, interpreting it in the light of the archival materials – particularly Hart’s working notebooks – which were available to me as his biographer. I shall then consider the role of this dual ambition in Hart’s later development of his own theory of law. In this section I shall argue that structural features of Hart’s theory, as well as his insistence on the primacy (or even on the exclusive relevance) of philosophical method to jurisprudence, prevented him from building on his original insight that a theory of law might be taken as a genuine contribution to sociology. Ironically, Hart’s emphatic recapitulation of the essentially descriptive nature of his legal theory in the posthumously published Postscript took him, if anything, further from his original insight, and underlines the rather limited extent to which his theory built up its promise of a social or institutional theory capable of illuminating the ways in which the conception of law reflected in usage ‘depend[s] on social context’. Yet, after decades of a mutual lack of interest (tinged on both sides with a whiff of contempt), the productive dialogue between philosophical and socio-legal theory glimpsed in the Preface has, I shall argue, now begun to flourish. Today, Hart’s original insight is more widely appreciated, perhaps as a result of the increasingly stark contrast between his style of legal philosophy and the more abstract and technical style of some of his positivist successors. In the second section of the paper, I shall consider the relationship between Hart’s idea that legal theory had to do with both analytical jurisprudence and descriptive sociology and what might be called the project of ‘special’ as opposed to ‘general’ jurisprudence. The revival of a philosophically sophisticated special jurisprudence – a mode of conceptual analysis very different from the arid jurisprudential pondering on concepts such as ownership and possession which he skillfully lampooned in ‘Definition and Theory in Jurisprudence’ – is generally considered to be one of Hart’s most important long-term contributions to the field. And while it is most often associated with his normative work – notably Punishment and Responsibility – the vast monument of Causation in the Law, as well as the interplay of the normative and the analytic in this aspect of Hart’s work, testify to the relevance of this special jurisprudence to his analytical project. In suggesting that here, too, there was an implicit (and incompletely realised) social dimension to Hart’s work, I am moving beyond any claim of his own. But I shall argue that the claim in the Preface is of great relevance to his analysis of legal concepts such as causation, intention or negligence, and of higher level concepts such as responsibility which he argued to underpin these legal concepts. Indeed, I shall suggest that it may be easier to get a clear view of the mutual dependence of analytic/conceptual and social/institutional aspects of legal theory through a discussion of ‘micro’ than of ‘macro’ legal theory. In the final section of the paper, I shall develop the argument of the second section through three case studies within special jurisprudence, each of them the subject of Hart’s work. First, I shall consider the idea of causation in legal discourse; second, the idea of responsibility in criminal law; and finally the idea of corporate personality and responsibility. Through the case studies, I shall argue that a full understanding of legal concepts (and, by extension, legal rules, principles, doctrines) can only be attained by supplementing philosophical analysis with a study of the social institutions and contexts in which those concepts, rules and arrangements are embedded. Accordingly, my argument will be that if legal theorists want to escape the sort of isolation or irrelevance risked by a view of jurisprudence as autonomous, we had better abandon Hart’s insistence that philosophy is its exclusive disciplinary resource. In conclusion, I shall suggest that a view of ‘internal’ and ‘external’ jurisprudence as mutually dependent would be more intellectually satisfactory than the philosophical imperialism which currently characterises the field.
Lacey just gave this paper as the Annual Leon Green '15 Lecture in Jurisprudence--in connection with Texas's excellent law and philosophy program. I just finished reading this paper again. (I'd seen an earlier version.) Highly recommended! Download it while its hot!


Friday, March 25, 2005
 
Brown on Representation and Accuracy in Criminal Adjudication Darryl K. Brown (Washington and Lee University - School of Law) has posted The Decline of Defense Counsel and the Rise of Accuracy In Criminal Adjudication on SSRN. Here is the abstract:
    With respect to truth-finding, American criminal procedure governs adjudication in considerable detail but investigation relatively little. Strong regulation of adjudication, in theory, maximizes accuracy despite weak investigative regulation because adjudication checks investigation. Yet adjudication - which occurs through bargaining much more often than trials - is a weak guarantor of accuracy for many reasons, one of which is the systemic weakening of adversarial process achieved by legislative under-funding of indigent defense. Despite these weaknesses, new means to improve fact-finding in criminal justice - most prominently, DNA analysis - recently have made accuracy a higher priority by making errors harder to conceal. We now see early signs of a new model for criminal justice, a system that depends less on adversarial process and more on practices that look familiar to administrative and inquisitorial settings. This shift holds much promise. The accuracy-enhancing function of defense attorneys - scrutinizing the reliability of state evidence and presenting evidence the state ignored - can be in significant ways supplanted by other mechanisms, many of which are more politically sustainable. The emerging practices diminish adjudication's role and moderate its adversarial features. New investigation-stage practices take the place of weak incentives arising from trials and bargaining. Executive and judicial actors are beginning to supplement weak defense counsel in aiding accuracy, and they have some advantages over adversarial lawyering. Adjudication is becoming a relatively less important procedural stage for truth finding as investigation becomes more so. Adjudication is weaker than we thought, but investigation is, in some compensatory ways, growing stronger as it also grows less adversarial.


 
SSRN Top 1,000 Law Authors Follow this link (registration required), for SSRN's ranking of authors from the legal academy by recent downloads. Number one is Lucian Bebchuk of Harvard.


 
Friday Calendar
    University of Texas Law & Philosophy Program: Nicola Lacey (Law, London School of Economics and Australian National University), Annual Leon Green '15 Lecture in Jurisprudence. Here is a link to her paper.
    Florida State University: Conference, Default Rules in Private and Public Law. Keynote speaker: Eric Maskin—Princeton. Other participants include Ian Ayres (Yale), Robert Ahdieh (Emory), Scott Baker & Kim Krawiec (University of North Carolina), Oren Bar-Gil (Harvard), Omri Ben-Shahar (Michigan), Margaret Brinig (Iowa), Daniel Farber (Berkeley), John Ferejohn (Stanford), Tamar Frankel (Boston University), Bradley C. Karkkainen (Minnesota), Jody Kraus (Virginia), Eric Posner (Chicago), Alan Schwartz (Yale), Robert Scott (Virginia), Eric Talley (University of Southern California). Participating Florida State University faculty include Amitai Aviram, Curtis Bridgeman, Mary Crossley, Adam Hirsch, Jonathan Klick, Jim Rossi, J.B. Ruhl, John Scholz, and Mark Seidenfeld.


 
Fellowship Announcement
    2005 OLIVE W. GARVEY FELLOWSHIPS COMPETITION Top Essays To Be Awarded $2,500 (College Students) or $10,000 (Untenured Professors) http://www.independent.org/students/garvey/ The Independent Institute is pleased to announce the 2005 Olive W. Garvey Fellowship Competition. Cash prizes will be awarded to outstanding college students -- and untenured "junior" faculty -- from around the world through a competitive essay contest. Held biennially, the Garvey Fellowship is intended to encourage and reward scholarship pertaining to the meaning and significance of economic and personal liberties. The specific essay topic changes with each contest. This essay topic for 2005 Garvey Competition is taken from a quotation by Nobel-laureate economist and social philosopher Friedrich A. Hayek (1899-1992): "The great aim of the struggle for liberty has been equality before the law." A panel of three judges will look for the best essays related to Hayek's quotation -- original essays distinguished by their clarity, rigor, and eloquence. The essays need not be technical or demonstrate hyper-specialized scholarship, although they should be serious in content, tone, and style. Founded in 1974, the Garvey Fellowship has attracted thousands of young scholars, many of whom have subsequently become noted academicians, journalists, and business leaders. Beginning in 2003, the Garvey Fellowships also offers awards in a separate category for junior faculty members (untenured). STUDENT DIVISION: College students up to the age of 35: First Prize: $2,500 Second Prize: $1,500 Third prize: $1,000 FACULTY DIVISION: Junior faculty members up to the age of 35 and not yet tenured: First Prize: $10,000 Second Prize: $5,000 Third Prize: $1,500 ELIGIBILITY: Student Division: Any student 35 years or younger enrolled at a recognized college or university anywhere in the world. Junior Faculty Division: Untenured college or university teachers, Assistant Professor or higher, 35 years or younger. LENGTH (double-spaced typescript): Student essays must not exceed 3,000 words. Teacher essays must be 5,000 to 8,000 words long. DEADLINE: May 1, 2005


 
Wendel on Legal Ethics & the Separation Thesis W. Bradley Wendel (Cornell Law School) has posted Legal Ethics and the Separation of Law and Morals on SSRN. Here is the abstract:
    This paper explores the jurisprudential question of the relationship between moral values and legal norms in legal advising and counseling in the context of an analysis of the so-called torture memos prepared by lawyers in the Office of Legal Counsel in 2002. The principal claim of the paper is that the torture memos are morally bankrupt because they are legally bankrupt. The lawyers' actions were wrong from a moral point of view because the lawyers failed with respect to their obligation to treat the law with respect, not simply as an inconvenient obstacle to be planned around. The morality of torture plays no direct role in this analysis. Although it is easy to say at a high level of generality that torture is immoral, it is possible for reasonable people to disagree in good faith over application questions, such as whether a particular interrogation technique should be deemed torture, or whether there may be some moral justification for torture in a particular case. In order for citizens and law enforcement officials to cooperate in the project of defending national security while also respecting human rights, it is necessary to reach some provisional settlement of these normative debates. Because the law enables social action in the face of disagreement, it is entitled to respect by affected individuals and also lawyers acting in a representative capacity. The position defended in this paper contrasts with two widely accepted views. The first, which I call the standard lawyers' defense of the torture memos, maintains that moral values are excluded from legal reasoning. This position rests on a misunderstanding of legal positivism or, in its more sophisticated versions, on an argument for the exclusive or hard strand of positivism. The more plausible version of inclusive positivism permits moral values to become incorporated into conventional practices of legal reasoning. The second view, which is more common within the academic legal ethics literature than among practicing lawyers, holds that the role of lawyer is directly moralized, in the sense that a lawyer acting in a professional capacity is bound by the same moral principles as an ordinary moral agent would be in the same situation. In order to defend this position, it is necessary to briefly set out the argument for the authority of law that I have defended at length elsewhere. This paper further fleshes out that argument by providing a hypothetical narrative suggesting how law derives its authority from its capacity to enable coordinated social activity in the face of persistent moral disagreement, specifically regarding the morality of torture.


 
Dent on Racial Trust George W. Dent, Jr. (Case Western Reserve Law School) has posted Race, Trust, Altruism and Reciprocity (Richmond Law Review, Vol. 39, May 2005) on SSRN. Here is the abstract:
    Trust, altruism and reciprocity are attracting growing attention from scholars. Interest began with psychological experiments showing that people often are altruistic, trust others, and reciprocate the benevolence of others far more than economic models of "rational" human selfishness predict. These findings inspired social scientists to discover what factors promote or hinder cooperation. Legal scholars have employed this learning to determine how the law does or could facilitate or discourage cooperation in many contexts, including business transactions and the workplace. The influence of race on cooperation has been studied in specific areas, but so far no one has considered how the new learning might improve race relations and racial equality. This article makes an initial effort to do so. Trust in others is essential to human interaction, especially in dealings too complex for the parties’ rights and duties to be detailed in writing. Trust grows when each side's contribution is reciprocated by the other's, but not if reciprocity is withheld, and trust shrinks rapidly if one party abuses the other's trust by acting opportunistically. People often eschew gain and help the needy, but altruism also dwindles if the recipients do not seem truly needy, or do not try to help themselves, or if others who could help refuse to do so and "free ride" on those who are altruistic. The dearth of racial trust in America is dramatically manifested in the separation so often chosen by both blacks and whites. Distrust blocks cooperation and altruism between the races and obstructs efforts to solve virtually every social problem. Part I of this article reviews the learning about trust, altruism and reciprocity. Part II applies this knowledge to better understand racial division and inequality in America and why many policies and positions do not ameliorate these ills and indeed may exacerbate them. Part III discusses our goals in race relations. Part IV prescribes principles to foster interracial trust. Part V proposes some specific steps to reduce racial inequality while building trust.


Thursday, March 24, 2005
 
Thursday Calendar: Updated
    Princeton University, James Madison Program in American Ideals and Institutions: Randy Barnett, Restoring the Lost Constitution.
    University of Pennsylvania Legal Theory Workshop: Professor Edna Ullman-Margolit, Hebrew University.
    Yale Legal Theory Workshop: Amartya Sen, Harvard University (in joint session with the LEO workshop and Schell Center) "What's the Point of Human Rights?"
    Boston University School of Law: Wendy Gordon.
    Florida State University Law: Jody Kraus, University of Virginia.
    George Mason School of Law: Ross Davies, GMU School of Law, Modest Justice.
    George Washington University IP Series: Sara K. Stadler, Emory University Law School, "How Copyright Is Like a Moebius Strip".
    University of Michigan Cyberlaw & Economics Workshop: Christopher Yoo, Vanderbilt, On the Regulation of Networks as a Complex System.
    University of Texas Constitutional & Legal Theory Colloquium: Nicola Lacey, London School of Economics & Political Science.


 
The Economist on the Grokster Case Check out Grokster and StreamCast face the music over at Economist.com. Here is a taste:
    The music business should have stuck by Thomas Edison’s technology if it wanted to avoid the threat of piracy. His wax cylinders could record a performance but could not be reproduced; that became possible only with the invention of the flat-disc record some years later. On Tuesday March 29th, America’s Supreme Court will begin to hear testimony in a case brought by the big entertainment companies that is intended to stop the illegal downloading of copyright-protected music and film. The industry’s target is the peer-to-peer (P2P) technology that allows the swapping of files directly over the internet. The defendants in the case are two firms that make file-sharing software: StreamCast Networks and Grokster.


 
Hasen on the FEC Internet Rules Rick Hasen has a piece entitled FEC Takes First Stab at Internet Rules: More Clarity Needed. Here is a taste:
    At first glance, the Federal Election Commission’s draft proposal for regulating Internet-based election activity is good news for the blogosphere. Contrary to the blogstorm of fears that it would take a heavy hand, the FEC seems to understand that this is a different medium where speech is cheap and the need for regulation aimed at constraining the corrupting effects of big money is slight. However, the FEC’s first stab at writing new rules raises as many questions as it seeks to answer, and we must remain wary of both intended and especially unintended consequences.


 
Alexander & Solum on Popular Constitutionalism Popular? Constitutionalism? 118 Harv. L. Rev. 1594 (2005) by Larry Alexander (University of San Diego) & Lawrence B. Solum (University of San Diego) is now available on Westlaw. An abstract is available via the Harvard Law Review webstie, here.


 
Book Announcement
    Death by a Thousand Cuts: The Fight over Taxing Inherited Wealth Michael J. Graetz and Ian Shapiro To read the entire book description or a sample chapter, please visit: http://pup.princeton.edu/titles/7919.html This fast-paced book by Yale professors Michael Graetz and Ian Shapiro unravels the following mystery: How is it that the estate tax, which has been on the books continuously since 1916 and is paid by only the wealthiest two percent of Americans, was repealed in 2001 with broad bipartisan support? The mystery is all the more striking because the repeal was not done in the dead of night, like a congressional pay raise. It came at the end of a multiyear populist campaign launched by a few individuals, and was heralded by its supporters as a signal achievement for Americans who are committed to the work ethic and the American Dream. Cloth | $29.95 / £18.95 | ISBN: 0-691-12293-8


 
Westen on Free Will Peter K. Westen (University of Michigan Law School) has posted Getting the Fly Out of the Bottle: The False Problem of Free Will and Determinism (Buffalo Criminal Law Review, Vol. 8, pp. 101-54, 2005) on SSRN. Here is the abstract:
    Free will and determinism are said to constitute the most written-about problem in the history of philosophy, one that continues every year to produce major publications by major university presses, each claiming insight into moral and criminal responsibility. Commentators differ sharply in their approaches to the problem, ranging over those who embrace free will and reject determinism, those who embrace determinism and reject free will, those who reject both, and those who embrace both, including those who do so by virtue of redefining what counts as free will. Yet despite their disagreements, commentators seem to agree about one thing: they agree that the relationship between free will and determinism is a genuine problem in metaphysics and morals, that is, a problem that evidence, analysis, imagination, intelligence are capable of resolving, at least in theory. I argue, in contrast, that the relationship between free will and determinism is a false problem, that is, a problem that we are incapable of resolving, even in theory. It is a problem that we have constructed for ourselves - or, perhaps, more accurately, a problem that has been construed for us - because it is the product of contradictory modes of thought that we are obliged to bring to bear in reflecting upon it. Free will and determinism are hypotheses about the world that are inconsistent with presuppositions by which we must reason about them. Thus, determinism is a causal hypothesis regarding the nature of physical bodies and events, including ourselves, that is inconsistent with the presuppositions of reason and knowledge by which we assert it to be true. Free will, in turn, is an effort to explain reason and intentional conduct as being physically uncaused that is inconsistent with the nature of explanation itself. The proper response to a false problem is not to search for further evidence or to strive for better analysis. The proper response to a false problem, including that of free will and determinism, is to stop thinking about it.


 
Perez on E-democracy Oren Perez (Bar-Ilan University, Faculty of Law) has posted Electronic Democracy as a Multi-dimensional Praxis (North Carolina Journal of Law & Technology, Vol. 4, No. 2, Spring 2003) on SSRN. Here is the abstract:
    E-politics is proclaimed the next thing. This article explores the capacity of the Internet to contribute to the development of more inclusive decision-making structures, focusing on one specific feature of the Internet, its multi-dimensionality. This feature, it is argued, opens new possibilities for structuring political praxis. To appreciate these possibilities, this article reviews and criticizes current democratic practices, focusing in particular on their procedural uniformity. This uniformity, which permeates both the legal and philosophical discourse of democracy, is not compatible with the reality of social and individual pluralism that characterizes the contemporary society. In a pluralistic society, this procedural uniformity could lead to the exclusion of certain world-views and personality types. To the extent that democracy is understood as an attempt to forge a legitimate system of governance for a pluralistic society, this result seems unacceptable. The main argument of this article is that the Internet, as a new communicative arena and technological frontier, can extend the universe of our democratic practices by enabling the development of multiple forms of deliberation and decision-making. This argument seeks to go beyond current uses of the Internet, which merely copy off-line democratic practices.


 
Carlson on Hegel David Gray Carlson (Cardozo Law School) has posted Hegel and the Becoming of Essence on SSRN. Here is the abstract:
    Every Hegelian knows that Essence comes to be when Quality, Quantity, and Measure cease to be. But the exact transition is complex, involving steps Hegel mysteriously names inverse ratio of the factors and the infinite for itself. Furthermore, Hegel invokes a theory of planetary orbit - the combination of centripedal and centrifugal force - that Hegel knows to be bad astronomy. This bad theory is supposed to represent the passage from the world of Being to the world of Essence. This paper describes those steps, why bad astronomy is relevant to them, and generally chronicles the becoming of Essence.


Wednesday, March 23, 2005
 
Stone versus Volokh Over at the Legal Affairs Debate Club, Geoff Stone & Eugene Volokh are having at it. From Stone:
    I take it that the real question, or at least the first question, is whether we've entered a new era of McCarthyism.
And from Volokh:
    [L]et me just ask you, Geof: "What should employers be able to do about the Rooneys, Rockers, Bryants, pro-child-molestation schoolteachers, or managers whose KKK membership scares and alienates employees, customers, and potential future jurors?


 
SSRN Ranks Top Twenty Law Schools by Number of Downloads I just checked my email after getting back from Tokyo & found the following from SSRN:
    SSRN TOP 20 LAW SCHOOLS (BETA) The Top 20 Law Schools as measured by downloads of their faculty's papers from SSRN over the last 12 months ending March 1, 2005 are: 1 Harvard University - Harvard Law School 2 Stanford Law School 3 University of Chicago - Law School 4 Columbia University - Columbia Law School 5 University of California, Los Angeles - School of Law 6 University of Texas at Austin - School of Law 7 George Mason University - School of Law 8 University of California, Berkeley - School of Law (Boalt Hall) 9 Yale University - Law School 10 University of Virginia - School of Law 11 George Washington University - Law School 12 Georgetown University Law Center 13 New York University - School of Law 14 Vanderbilt University - School of Law 15 University of San Diego - School of Law 16 University of Pennsylvania - School of Law 17 University of Illinois at Urbana-Champaign - College of Law 18 Boston University - School of Law 19 University of Michigan at Ann Arbor - Law School 20 Fordham University - School of Law SSRN ranks over 200 law schools worldwide on 9 separate measures including total lifetime downloads of their faculty's papers on SSRN, total number of papers on SSRN, total number of authors, and downloads per paper and per author.
For the full list & supporting data:Registration required to view the full list.


 
Conference Announcement: Signal or Noise 2k5: Creative Revolution?
    The Berkman Center for Internet & Society, the Journal of Law & Technology, and the Committee for Sports & Entertainment Law, all of Harvard Law School, are hosting Signal or Noise 2k5: Creative Revolution? on April 8, 2005, on the Harvard campus in Cambridge, Massachusetts. The conference website can be found at http://cyber.law.harvard.edu/sn The conference offers an exciting mix of performances, demonstrations and discussions examining how digital technologies are enabling new forms of creativity by a broader group of people. Cultural, business, legal and ethical implications of new genres and new forms of authorship will all be covered along with an artist's interests and rights in downstream uses of original creations. Scheduled conference participants include New York Times bestselling author Matthew Pearl, copyright scholar Terry Fisher, fanfic author Naomi Novik, David Dixon of Beatallica, innovative musician Dan the Automator, Paul Marino of machinima.org, and Wendy Seltzer of the Electronic Frontier Foundation. Signal or Noise 2K5 is open to the public but pre-registration is needed: http://cyber.law.harvard.edu/sn/register For more information about the conference's location, schedule and participants, please visit http://cyber.law.harvard.edu/sn/schedule To view a map of the area: http://map.harvard.edu/level2.cfm?mapname=camb_allston&tile=F6


 
Wednesday Calendar
    University of Texas Law & Philosophy Program: Nicola Lacey (Law, London School of Economics and Australian National University), various events through March 25.
    NYU Legal History: Carla Spivack, Samuel I. Golieb Fellow, NYU School of Law.
    Saint Louis University: Lee Epstein and Andrew Martin, "Does the U.S. Constitution Need an ERA?"


 
Kousser & McCubbins on Crypto-Initiatives Thad Kousser and Mathew D. McCubbins (University of California, Berkeley - Department of Political Science and University of California at San Diego) have posted Social Choice, Crypto-Initiatives and Policy Making by Direct Democracy on SSRN. Here is the abstract:
    The initiative process was created originally to enable citizens to enact public policy directly and in so doing to overturn the dominion of interest groups and of state and local party machines. In recent years, initiatives have been thought to serve as a check on legislative authority and to provide the people with a means to pressure the legislature into adopting more public regarding policies. Indeed, the general consensus emerging from the most recent academic research is that, at their worst, initiatives are benign, while at their best, they serve to further the interests of electoral majorities. A few scholars, however, have found reason to pause in their celebration of the initiative, finding shortcomings in its process, its outcomes, or both. In this paper we argue that initiatives will only infrequently improve the public's welfare. We begin with a survey of the basic social choice and public choice critiques of the initiative process. We argue that, despite recent rigorous scholarly attention as to the effects of initiatives, we find little reason yet to reject the social and public choice criticisms of policy making via direct democracy. We then offer a series of anecdotes about the rise of crypto-initiatives, which are initiatives that use direct democracy as an instrument to achieve non-policy related goals. Finally, we conclude that the problems inherent in the initiative process are being magnified by the increase in crypto-initiatives and the rise of the crypto-political machines, the new 527 PACs, that sponsor them. Increasingly, the public welfare may be only an incidental consideration in the sponsorship, passage and implementation of initiatives. This in turns implies that we consider anew limiting or amending the initiative process.
I read everything by McCubbins. Highly recommended!


 
McClain & Fleming on Hirschl Linda C. McClain and James E. Fleming (Hofstra University - School of Law and Fordham University - School of Law) have posted Constitutionalism, Judicial Review, and Progressive Change on SSR. Here is the abstract:
    This paper evaluates arguments made in Ran Hirschl's powerful and sobering book, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (Harvard, 2004). Studying Canada, Israel, South Africa, and New Zealand, Hirschl aims to dispel what he views as the hollow hopes that constitutionalism and judicial review will bring about progressive change around the world. If Gerald Rosenberg, in his book, The Hollow Hope: Can Courts Bring About Social Change, focused on the hollow hopes of liberals for social change securing, e.g., racial equality (Brown) and women's reproductive freedom (Roe), Hirschl focuses on hollow hopes for progressive economic change furthering distributive justice and securing welfare rights. The paper offers three lines of critique of Hirschl’s thesis. First, with respect to American constitutional theorists and jurists, we concede for the sake of argument that courts have not brought about progressive economic change, but question whether liberals and progressives in American constitutional law ever harbored any hollow hopes that courts would do so. Second, we concede that some American liberals and progressives have viewed the American Constitution as securing welfare rights, but we contend that they have conceived these rights, not as judicially enforceable, but as what Larry Sager calls "judicially underenforced norms." These American liberals and progressives have looked to legislatures, executives, and citizens generally more fully to enforce these constitutional norms by taking the Constitution seriously outside the courts. Hirschl's court-centered analysis overlooks such discourse. Third, we suggest that Hirschl defines progressive change too narrowly, as concerned with economic change, distributive justice, and welfare rights. If he defined progressive change more broadly, to include challenges to traditional norms and institutions, including gender norms along with family law, we might find that constitutionalization and judicial review in the four countries he analyzes have been instrumental in bringing about some progressive social change, such as gains in gender equality. We support this argument by looking at constitutionalization in Canada and South Africa.


 
New from Law & Politics Book Review
    THE LAW AS IT COULD BE, by Owen Fiss. New York: New York University Press, 2003. 320pp. Cloth. $60.00. ISBN: 0814727255. Paper. $21.00. ISBN: 0814727263. Reviewed by Dennis J. Coyle.
    THE GENDER OF CONSTITUTIONAL JURISPRUDENCE, by Beverly Baines and Ruth Rubio-Marin (eds). Cambridge, England: Cambridge University Press, 2004. 356pp. Cloth $75.00 / £45.00. ISBN: 0521823366. Paper $34.99 / £19.99. ISBN: 052153027X. Reviewed by Judith A. Baer.
    DEFENDANT RIGHTS, by Hamid R. Kusha. Santa Barbara, CA: ABC-CLIO, Inc., 2004. 250pp. Hardcover. $50.00. ISBN 1057607-935-X. Reviewed by Paul J. Weber.
    The two reconstructions: The struggle for black enfranchisement, by Richard M. Valelly. Chicago: University of Chicago Press, 2004. 348pp. Cloth $58.00. ISBN: 0-226-84528-1. Paper $22.50. ISBN: 0-226-84530-3. Reviewed by Emery G. Lee III.
    PRIVATE LIVES; FAMILIES, INDIVIDUALS, AND THE LAW, by Lawrence M. Friedman. Cambridge: Harvard University Press, 2004. 240pp. Hardcover. $27.95. ISBN: 0-674-01562-2. Reviewed by Patricia McGee Crotty.
    RACIAL CULTURE: A CRITIQUE, by Richard T. Ford. Princeton: Princeton University Press, 2004. 248 pp. Cloth. $27.95 / £17.95. ISBN: 0-691-11960-0. Reviewed by Michelle D. Deardorff.
    GENDER MYTHS v. WORKING REALITIES: USING SOCIAL SCIENCE TO REFORMULATE SEXUAL HARASSMENT LAW, by Theresa M. Beiner. New York: New York University Press, 2005. 288pp. Cloth $45.00. ISBN: 0-8147-9917-5. Reviewed by Paul Weizer.


Tuesday, March 22, 2005
 
Vairo on the Role of Individuals in Complex Claims Resolution Georgene M. Vairo (Loyola Law School (Los Angeles)) has posted Why Me? The Role of Private Individuals in Complex Claims Resolution (Stanford Law Review, Forthcoming) on SSRN. Here is the abstract:
    Administrative trusts run by private persons are an important part of the litigation landscape. This article explores whether private persons, as opposed to a judge or, perhaps, another governmental official, should have the authority to exercise a high degree of discretion in developing standards for compensation and determining compensation awards for claimants. The role of private persons in the adjudication process has been the subject of some critical academic commentary. However, it may be impracticable to expect judges to resolve the claim of each plaintiff in complex cases, particularly mass tort cases. Thus, the article first provides a brief history of the hybridization of complex claims resolution, and shows that the use of private persons to control the process of determining compensation levels is a natural outgrowth of the development of the public law model of litigation and its privatization. The article further raises the possibility that the increasing politicization of state and federal judiciaries creates a climate that suggests that private decision makers are perhaps in no worse a position than judges to provide impartial, disinterested justice. Additionally, the article rejects the argument that judicial adjudication is necessarily superior. Rather, it suggests that administrative trusts run by private persons can provide a laboratory for the evolution of the law. The next part of the article deals briefly with questions such as appointment criteria, the scope of powers of and degree of discretion that the trust administrators ought to enjoy, and the degree of judicial supervision that ought to be required. After making a case for the appointment of independent trustees, the article raises the repeat player problem. The article concludes by suggesting that the arguments for using private persons as the proxy for the judicial system begin to lose force when the same private individuals are chosen, by the same repeat players - judges and lawyers - that appear so regularly in complex litigation. If the problems raised by the repeat player problem can be solved, by more appropriate selection processes, for example, administrative claims resolution facilities can be adequate substitutes for litigation.


 
Somek on Democratic Minimalism Alexander Somek (University of Iowa, College of Law) has posted Democratic Minimalism: Turning the Clock Back from Democracy to Democratization on SSRN. Here is the abstract:
    Attempts to make transnational governance more democratic do not leave the meaning of "democracy" unaffected. The paper argues that in the face of recurrent feedback loops any re-examination of the ideal of democracy in a transnational context needs to resort to elementary strategies of democratization.


 
Tuesday Calendar
    Georgetown School of Law: Julie Cohen, "Cyberspace as/and Space".
    Oxford Programme in Comparative Media Law & Policy: Verena Wiedemann, What's Wrong with Competition Policy in the Media Sector?


 
Online Event: Cyberlaw in the Supreme Court
    Cyberlaw in the Supreme Court April 30, 2005 Stanford Law School http://cyberlaw.stanford.edu/supreme/ Registration now Open! On March 29, 2005, the U.S. Supreme Court will hear arguments in two cases that together will greatly determine how government can and will regulate the Internet in the future, and the impact that the public interest will have on the development of cyberlaw over the next decade. In MGM v. Grokster, the Court will decide whether copyright holders can veto consumer electronics and computing innovations that upset the content industries' prevailing business models, even where the technology's non-infringing uses provide substantial benefits to consumers. The question is whether consumer demand for new and better products will drive technological development, or copyright owners' demand for control will retard it. In Brand X v. FCC, the Court will decide whether the FCC should retain the option to regulate cable modem services to promote open access to broadband lines, universal service and network neutrality, as it did in the early days of the Internet when most people connected over common-carrier telephone lines. The question is whether tomorrow's communications services will be defined by citizen choices or by the business interests of a handful of cable broadband companies. At Cyberlaw in the Supreme Court, the Stanford Law School Center for Internet and Society will convene a discussion of these cases, their broader implications, and what effect the pending Supreme Court decisions could have on the public interest. Panels of attorneys litigating and arguing these cases, the parties affected by them, the policy advocates whose work will begin once the Judges rule, and the people thinking about what the legal landscape will look like for the next ten years will discuss both cases and the impact the decisions will have on the future. Register at: http://cyberlaw.stanford.edu/supreme/


 
Conference Announcement: Constitutionalism and the War on Terror at Drake
    2005 DRAKE CONSTITUTIONAL LAW CENTER SYMPOSIUM CONSTITUTIONALISM AND THE WAR ON TERROR Drake University Law School Des Moines, Iowa Saturday, April 9, 2005 8:45 am – 1 pm Precis: This Symposium will critically examine developments in the war on terror from both a domestic and foreign perspective. The speakers on the first panel will provide diverse assessments of the U.S. Supreme Court’s rulings regarding the constitutionality of President Bush’s treatment of enemy combatants. The second panel will analyze constitutional developments in some of the effected countries such as Iraq, Afghanistan, and Russia. Together these panels will shed light on evolving constitutional norms in these difficult times. Panel 1 - THE SUPREME COURT'S ENEMY COMBATANT CASES Frank Dunham, Federal Defender for the Eastern District of Virginia. Where Hamdi Meets Moussaoui in the War on Terror Douglas W. Kmiec, Professor of Constitutional Law and Caruso Family Chair in Constitutional Law, Pepperdine University School of Law. Observing the Separation of Powers -- The President's War Power Necessarily Remains "The Power to Wage War Successfully" Mark A. Drumbl, Associate Professor of Law and Ethan Allen Faculty Fellow, Washington and Lee University School of Law. Guantánamo, Rasul, and the Twilight of Law Panel 2 - CONSTITUTIONALISM IN AFGHANISTAN, IRAQ, AND OTHER EMERGING NATIONS Kim Lane Scheppele, John J. O’Brien Professor of Comparative Law and Sociology, University of Pennsylvania Law School; Fellow at the Princeton University Center for Law and Public Affairs. We Forgot About Ditches: Russia's Constitutional Peregrinations Nathan J. Brown, Professor of Political Science and International Affairs, Director of Middle Eastern Studies Program, George Washington University. Constitutionalism, Authoritarianism, and Imperialism in Iraq Said A. Arjomand, Distinguished Service Professor of Sociology, State University of New York at Stony Brook; Inaugural Crane Fellow & Visiting Professor of Public Affairs at Princeton University. Constitutional Developments in Afghanistan: A Comparative and Historical Perspective Registration and Other Details: The Symposium will be held in Cartwright Hall on the campus of Drake University. Registration is limited and costs $30 per person (free for students), which covers the Symposium, and a continental breakfast. For an additional $10, attendees can receive a copy of the Drake Law Review issue that includes the Symposium proceedings. Registration forms must be received by Monday April 4, 2005. For more information, email ginnie.nevins@drake.edu or call 515-271-2988. The Director of the Drake Constitutional Law Center is Professor Mark Kende, the James Madison Chair Professor in Constitutional Law at Drake Law School.


Monday, March 21, 2005
 
Stone on Rehnquist & the First Amendment Over at ACS Blog, Geoff Stone guest blogs with Justice Rehnquist and “The Freedom of Speech, . . .or of the Press”. Here is a taste:
    In the 259 speech or press cases in which Rehnquist participated, he rejected the First Amendment claim 80 per cent of the time. In only 53 of the 259 decisions did he uphold the First Amendment claim. Standing alone, though, this tells us little. We need some base of comparison. One base of comparison is how other justices voted. In these 259 decisions, the other justices voted to uphold the First Amendment claim 53 per cent of the time. Thus, Rehnquist’s colleagues were 2.6 times more likely than Justice Rehnquist to hold a law in violation of “the freedom of speech, or of the press.”


 
Monday Calendar
    NYU Journal of Law Liberty: Seth Tillman, A Textualist Defense of Article 1, Section 7, Clause 3:
      Bicameralism is not hard wired into the Constitution's text with regard to all legislation. The Orders, Resolutions and Votes Clause -- Art. I, S. 7, cl. 3 -- allows for Congress to pass broad organic acts delegating subsidiary legislative authority to a single house as provided for by statute. However, both any organic act in statutory form and any subsidiary legislation passed by a single house pursuant to statute must be presented to the President. INS v. Chadha was correct on its facts, but over-broad in its reasoning: the presentment rationale survives scrutiny, but the bicameralism rationale does not. The evidence of this position can be gleaned from the text of the Constitution, Madison's Notes on the Debates, colonial and pre-1787 state legislative practice, and a variety of Commonwealth legal materials.
    St. John’s University Law School: Michelle Anderson (Villanova), “All-American Rape”.
    NYU Law: Sam Estreicher, Employment At-Will And Its Contractual Exceptions.
    University of Texas School of Law: Jeffrey Rachlinski, Cornell University, "Can Judges Ignore Inadmissable Information? The Difficulty of Deliberately Disregarding"


 
Book Announcement: Brennan and Democracy in Paperback
    Brennan and Democracy Frank I. Michelman To read the entire book description or a sample chapter, please visit: http://pup.princeton.edu/titles/6759.html In Brennan and Democracy, a leading thinker in U.S. constitutional law offers some powerful reflections on the idea of "constitutional democracy," a concept in which many have seen the makings of paradox. Here Frank Michelman explores the apparently conflicting commitments of a democratic governmental system where key aspects of such important social issues as affirmative action, campaign finance reform, and abortion rights are settled not by a legislative vote but by the decisions of unelected judges. Paper | $17.95 / £12.95 | ISBN: 0-691-12249-0 Cloth | 1999 | $45.00 / £29.95 | ISBN: 0-691-00715-2


 
Waldron on the Case Against Judicial Review Professor Jeremy Waldron (Columbia) has posted 'The core of the case against judicial review'. Here is a taste:
    In countries that do not allow legislation to be invalidated in this way [by judicial review], the people themselves can decide finally by ordinary legislative procedures whether they want to permit abortion, affirmative action, school vouchers, and gay marriage. They can decide among themselves about whether to have laws punishing the public expression of racial hatred, or laws restricting candidates? spending in elections. If they disagree about any of these matters, they elect representatives who deliberate and settle the issue by voting. That is what happened in Britain, for example, in the 1960’s when Parliament debated the liberalization of abortion law, the legalization of homosexual conduct among consenting adults, and the abolition of capital punishment. On each issue, wide-ranging public deliberation was mirrored in serious debate among the members of the House of Commons. The quality of those debates make nonsense of the claim that legislators are incapable of addressing such issues responsibly, just as the liberal outcomes make nonsense of the claim that popular majorities will not usually uphold the rights of minorities. By contrast, in the United States the people or their representatives in state and federal legislatures can address these questions if they like, but they have no certainty that their decisions will prevail. If someone who disagrees with the legislative resolution decides to bring the matter before a court, then the view that finally prevails will be the view of the judges. As Ronald Dworkin puts it ? and he is a defender of judicial review on intractable, controversial, and profound questions of political morality that philosophers, statesmen, and citizens have debated for many centuzries, the people and their representatives simply have to ?accept the deliverances of a majority of the justices, whose insight into these great issues is not spectacularly special.


 
Perry on the Foundations of Human Rights Michael Perry (Emory) has posted The Morality of Human Rights: A Nonreligious Ground? on SSRN. Here is the abstract:
    In the midst of the countless grotesque inhumanities of the twentieth century, there is a heartening story: the emergence, in international law, of the morality of human rights. The morality of human rights is not new; in one or another version, the morality is very old. But the emergence of the morality in international law, in the period since the end of World War II, is a profoundly important development. The International Bill of Rights, as it is informally known, consists of three documents: the Universal Declaration of Human Rights(UDHR), the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social, and Cultural Rights. The UDHR refers, in its preamble, to "the inherent dignity . . . of all members of the human family "and states, in Article 1, that "[a]ll members of the human family are born free and equal in dignity and rights . . . and should act towards one another in a spirit of brotherhood." The two covenants each refer, in their preambles, to "the inherent dignity . . . of all members of the human family" and to "the inherent dignity of the human person--from which, the covenants insist, "the equal and inalienable rights of all members of the human family . . . derive." As the International Bill of Rights makes clear, then, the fundamental conviction at the heart of the morality of human rights is this: Each and every human being--each and every member of the species Homo sapiens sapiens--has inherent dignity; therefore, no one should deny that any human being has, or treat any human being as if she lacks, inherent dignity. To say that all human beings have inherent dignity is to say that one's dignity inheres in nothing more particular than one's being human; it does not inhere, for example, in one's "race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status." According to the morality of human rights, because every human being has inherent dignity, no one should deny that any human being has, or treat any human being as if she lacks, inherent dignity. The conviction that every human being has inherent dignity--and that therefore no one should deny that any human being has, or treat any human being as if she lacks, inherent dignity--is so fundamental to the morality of human rights that when I say, in this Essay, the morality of human rights, I am referring to this conviction. An act (whether of commission or omission) or a policy violates a human being, according to the morality of human rights, if the rationale for the action or policy denies that the human being has, or treats her as if she lacks, inherent dignity. The morality of human rights holds that every human being has inherent dignity and is therefore inviolable: not to be violated, in the sense of "violate" just indicated. The morality of human rights responds to what is perhaps the most basic of all moral questions: Which human beings are inviolable--all, some, or none? Moreover, the morality of human rights is, for many secular thinkers, problematic, because it is difficult--perhaps to the point of impossible--to align the morality of human rights with one of the secularist's reigning intellectual convictions, what Bernard Williams called Nietzsche's thought: "[T]here is, not only no God, but no metaphysical order of any kind . . . ." In this Essay, I elaborate a religious ground for the morality of human rights. I then pursue the question whether there is a nonreligious (secular) ground for the morality of human rights. Along the way, I comment critically on the positions of John Finnis, Ronald Dworkin, Martha Nussbaum, and Richard Rorty. This Essay, which is being published in a symposium issue of the Emory Law Journal, is part of a larger work in progress--a book--tentatively titled Human Rights as Morality, Human Rights as Law: Toward a Theory of Human Rights.


 
International Law Must Reads Check out International Law "Must Reads" over at Opinio Juris.


 
Conference Announcement: British Society for Ethical Theory
    The BRITISH SOCIETY for ETHICAL THEORY 2005 CONFERENCE UNIVERSITY of LEEDS 11-13th JULY, 2005 Registration forms and further information are now available for the above conference from the following: · Leeds website: http://www.philosophy.leeds.ac.uk/Conferences/BSET.htm Or contact the conference organisers, Dr. Nafsika Athanassoulis and Dr. Seiriol Morgan: · n.athanassoulis@leeds.ac.uk d.s.morgan@leeds.ac.uk * School of Philosophy, M. Sadler Building, University of Leeds, Leeds LS2 9JT, UK The general BSET website providing information about the society is here: · BSET website: www.bset.org BSET is grateful to The Mind Association and the University of Leeds for its financial support. Speakers Samantha Brennan (The University of Western Ontario) Moral Lumps Vivienne Brown (Open University) Choice, Moral Responsibility and Alternative Possibilities Stephen Darwall (University of Michigan) Moral Obligation and Accountability David Enoch (The Hebrew University) Agency, Schmagency: Why Normativity Won’t Come From What is Constitutive of Action Jeremy Koons (American University of Beirut) An Argument Against Reduction in Morality Mark LeBar (Ohio University) Radically Response-Dependent Value Robert Pulvertaft (University of Copenhagen) Good For and Reasons Luke Russell (The University of Sydney) What Even Consequentialists Should Say About the Virtues John Skorupski (St. Andrews University) The Autonomy of Morality Valerie Tiberius (University of Minnesota) Wisdom and Perspective Andrea Viggiano (University of Bologna) Ethical Naturalism and Moral Twin Earth


 
Conference Announcement: Computers, Freedom, and Privacy
    The 15th annual ACM Conference on Computers, Freedom, and Privacy will be held at the Westin Hotel in Seattle, WA, April 12-15, 2005. A detailed program for CFP2005 is available on the CFP2005 website: www.cfp2005.org. Discounted registration, and special conference rates at the Seattle Westin remain available through March 21, register before that date in order to get the advance discounts. This year's theme is Panopticon: Over time, and particularly recently, surveillance of ordinary citizens has increased to dramatic levels. Not only are governments watching more aspects of their citizens' lives, but those in the private sector are increasing surveillance of people as well. Often lost in the race to "increase intelligence" are discussions about different approaches to address problems like the threat of terrorism that are equally or more effective, but do not involve extensive and constant surveillance. The opening plenary debate focuses on "Surveillance in the Panopticon". Panel members include Dr. Steve Mann, Director of the eyeTap Personal Imaging Lab at the University of Toronto, known for his work in wearable cameras and computing; Dr. Latanya Sweeney, Director of the Data Privacy Lab at Carnegie Mellon University; and David Brin, author of The Transparent Society. Some of the other sessions closely related to the Panopticon theme include Terrorizing Privacy? European Developments and Counter Strategies; Intelligent Video Surveillance; Observing Hidden Surveillance Structures; and Art, Surveillance and the Internet. Some of the other important topics include the role of blogging and other nascent communications technology in promoting free speech, explored in the session Unstoppable Speech (or, The Revolution Will Be Podcast); a discussion of Economics of Privacy: Market or Regulation; and The Accountable Internet: Establishing Trust While Preserving Values. In addition to the plenary and breakout sessions, evening "Birds of Feather" cover a wide range of topics. As is traditional at CFP, Tuesday is dedicated to tutorials and workshops. A full-day Workshop on Vanishing Anonymity features over a dozen academic, NGO, and private sector experts discussing authentication techniques, customer, student, traveller and racial profiling, the implications of new technologies such as sousveillance cameras and wearable computing, RFIDs, biometrics, and internet protocols. Tutorials include Biometric Basics, Identity Theft in 2005, International Copyright Law (featuring participants from at least four continents), and Mike Godwin's legendary Constitutional Law in Cyberspace. EFF's 14th Annual Pioneer Awards will take place on Wednesday, April 13th, 2005 at the Science Fiction Museum in Seattle. The event begins at 7pm, and buses will be available outside of the Westin, to transport CFP guests to and from the museum


Sunday, March 20, 2005
 
Legal Theory Calendar
    Monday, March 21
      NYU Journal of Law Liberty: Seth Tillman, A Textualist Defense of Article 1, Section 7, Clause 3:
        Bicameralism is not hard wired into the Constitution's text with regard to all legislation. The Orders, Resolutions and Votes Clause -- Art. I, S. 7, cl. 3 -- allows for Congress to pass broad organic acts delegating subsidiary legislative authority to a single house as provided for by statute. However, both any organic act in statutory form and any subsidiary legislation passed by a single house pursuant to statute must be presented to the President. INS v. Chadha was correct on its facts, but over-broad in its reasoning: the presentment rationale survives scrutiny, but the bicameralism rationale does not. The evidence of this position can be gleaned from the text of the Constitution, Madison's Notes on the Debates, colonial and pre-1787 state legislative practice, and a variety of Commonwealth legal materials.
      St. John’s University Law School: Michelle Anderson (Villanova), “All-American Rape”.
      NYU Law: Sam Estreicher, Employment At-Will And Its Contractual Exceptions.
      University of Texas School of Law: Jeffrey Rachlinski, Cornell University, "Can Judges Ignore Inadmissable Information? The Difficulty of Deliberately Disregarding"
    Tuesday, March 22
      Georgetown School of Law: Julie Cohen, "Cyberspace as/and Space".
      Oxford Programme in Comparative Media Law & Policy: Verena Wiedemann, What's Wrong with Competition Policy in the Media Sector?
    Wednesday, March 23
      University of Texas Law & Philosophy Program: Nicola Lacey (Law, London School of Economics and Australian National University), various events through March 25.
      NYU Legal History: Carla Spivack, Samuel I. Golieb Fellow, NYU School of Law.
      Saint Louis University: Lee Epstein and Andrew Martin, "Does the U.S. Constitution Need an ERA?"
    Thursday, March 24
      University of Pennsylvania Legal Theory Workshop: Professor Edna Ullman-Margolit, Hebrew University.
      Yale Legal Theory Workshop: Amartya Sen, Harvard University (in joint session with the LEO workshop and Schell Center) "What's the Point of Human Rights?"
      Boston University School of Law: Wendy Gordon.
      Florida State University Law: Jody Kraus, University of Virginia.
      George Mason School of Law: Ross Davies, GMU School of Law, Modest Justice.
      George Washington University IP Series: Sara K. Stadler, Emory University Law School, "How Copyright Is Like a Moebius Strip".
      University of Michigan Cyberlaw & Economics Workshop: Christopher Yoo, Vanderbilt, On the Regulation of Networks as a Complex System.
      University of Texas Constitutional & Legal Theory Colloquium: Nicola Lacey, London School of Economics & Political Science.
    Friday, March 25
      University of Texas Law & Philosophy Program: Nicola Lacey (Law, London School of Economics and Australian National University), Annual Leon Green '15 Lecture in Jurisprudence.


 
Legal Theory Lexicon: Holism
    Introduction Our topic this week is “holism,” more particularly the idea that theories of the law are (or “should be” or “can be”) holistic. What does that mean?--you might ask, worrying that Legal Theory Blog has gone off in some sort of new age direction. Legal holism can be captured in a famous slogan, “The law is a seamless web,” and the contemporary legal theorist who is most associated with legal holism is Ronald Dworkin.
    As always, the Legal Theory Lexicon is aimed at law students (especially first year law students) with an interest in legal theory.
    The Law is a Seamless Web The idea that the law is a seamless web is familiar to almost every law student, but what on earth does this phrase mean? I think the best initial approach to this idea is to place it in the context of a common-law system. Suppose we have an unsettled question of law (e.g. a question about proximate causation in tort law). The question is unsettled in our jurisdiction, so there is no binding precedent—no prior decision of a higher court addresses the issue. But the lack of binding precedent does not imply that precedent is irrelevant to our question. The judge deciding our case with a tricky proximate cause question will want to look at the cases that deal with analogous issue. Her search for relevant case law might begin with cases on causation in tort law, but from there, it could lead to other issues and distinct doctrinal fields. For example, causation in tort is analogous to causation in criminal law. So our judge might base her reasoning in part on the way an analogous question was decided in the criminal context. And causation also arises in a variety of other legal contexts, leading our judge to move from fields that are closely related to torts, to more distant topics, including environmental law, administrative law, or even tax. Moreover, questions of proximate causation are only partly about causation, they also involve judgments about responsibility and reasonableness of conduct. In a common law system, the law is a seamless web in the sense that common-law ideas connect with one another in complex relationships of consistency and mutual support. A tremor in one region of the web of the law can in principle resonate in other region.
    Coherence and Holism The idea that holism involves wide and deep relationships of consistency and mutual support can be captured by introducing a related notion coherence. We might say that legal holists believe that a principle of coherence applies to the law as a whole. Each proposition of law ought to be consistent with every other proposition. Coherence can require more than mere consistency, however. A system of law achieves coherence at a deeper level if the normative justifications for legal propositions are consistent and mutually supporting.
    Cohererence can be local or global. The theory that the law is a seamless web can be rephrased as “the law is globally coherent,” and we might call that view “global legal holism.”
    Herculean Holism Ronald Dworkin’s theory, “law as integrity,” takes the idea that the law is seamless web to its logical conclusion. Dworkin illustrated his theory with an imaginary judge, Hercules. Because Hercules acts on the basis of the premise that the law is a seamless web, Hercules is required to construct the theory that best fits and justifies the law as a whole in order to decide any particular case. Given the holistic assumption that a change anywhere in the law can produce consequences everywhere, Hercules must constantly revise his theory—checking to assure himself that a recent change in the law of trusts does not have consequences for the best interpretation of the reasonable person standard in torts.
    Of course, actual judges are not like Hercules in this regard. No actual judge could possible construct a theory of the whole law of her jurisdiction. Actual judges must make do with theories that are local rather than global in nature. This is not to say that no actual judge has a tacit (or even partially explicit) view about the way the law hangs together as whole. Indeed, some real world judges have views that account for many different regions of the law. The most intellectual judges (Richard Posner, for example) have comprehensive legal theories that provide consistent explanations across many different doctrinal fields. But even these Herculean judges cannot actually produce a theory that fits and justifies all of the law—that would take longer than a human lifespan permits and most of the work would be terribly dull.
    Holism versus Particularism So far, I’ve been presenting a fairly sympathetic view of legal holism. But holism is a controversial view in the law. One might believe that holism is domain specific. That is, it might be the case that all of tort law hangs together, but that tort law is a more or less closed system. It could be the case that criminal law operates on a different set of principles than those that operate in tort, and hence that conclusions reached in criminal law are different from those reached in tort law on analogous questions. Of course, the domain of coherence could be a higher or lower level of generality than doctrinal field. Perhaps, perhaps all of private law is coherent, but public law operates on different principles. Alternatively, perhaps the common law and statutory law form two different fields—each coherent within its own realm but not consistent with each other. Moving to the other end of the spectrum, it might be that the law governing the tort of negligence is coherent, but that negligence and battery operate on entirely different principles.
    At the opposite end of the spectrum from global legal holism (“The law is a seamless web.”) there is at least logical space for a local legal particularism (“Take each case on its own merits.”).
    Is Holism Normative, Descriptive, or Interpretive? Before we come to a close, let’s address one final question: what kind of theory is legal holism? You may have notice that I’ve been deliberately ambiguous in my phrasing of holist claims using locutions like “is or ought to be.” One view of global legal holism is that it is a normative claim: the law ought to form a seamless web. Why? Well, that’s a big question, but one cluster of reasons for preferring consistency in the law centers around the rule of law values of predictability, certainty, and publicity.
    Another view of global legal holism is that it is a descriptive theory. As a matter of fact, judges (in common law systems) strive for consistency. The phrase—the law is a seamless web—is couched as a descriptive claim. Of course, this will be a special sort of descriptive claim, because no one thinks that the law actually is fully consistent at the global level.
    Yet another view of global legal holism is that it an interpretive theory. On this view, legal holism bears a relationship to the idea of the hermeneutic circle. The meaning of any given legal rule must be interpreted in light of the whole set of rules, and the meaning of the whole set depends on the meaning of the particular members. On this view, holism is quasi-descriptive and quasi-normative: legal interpretation both is imperfectly holistic and legal interpretation aims at global consistency.
    Conclusion The distinction between holism and particularism is quite useful. Once you begin to look, you will quickly find that many legal arguments depend on implicit assumptions about the presence or desirability of coherence in the law. In particular, it often edifying to look for how some legal arguments turn on assumptions about whether coherence should be global or local.


Saturday, March 19, 2005
 
Legal Theory Bookworm The Legal Theory Bookworm recommends American Constitutionalism by Stephen Griffin. Here is a brief description:
    Despite the outpouring of works on constitutional theory in the past several decades, no general introduction to the field has been available. Stephen Griffin provides here an original contribution to American constitutional theory in the form of a short, lucid introduction to the subject for scholars and an informed lay audience. He surveys in an unpolemical way the theoretical issues raised by judicial practice in the United States over the past three centuries, particularly since the Warren Court, and locates both theory and practices that have inspired dispute among jurists and scholars in historical context. At the same time he advances an argument about the distinctive nature of our American constitutionalism, regarding it as an instance of the interpenetration of law and politics. American Constitutionalism is unique in considering the perspectives of both law and political science in relation to constitutional theory. Constitutional theories produced by legal scholars do not usually discuss statecentered theories of American politics, the importance of institutions, behaviorist research on judicial decision making, or questions of constitutional reform, but this book takes into account the political science literature on these and other topics. The work also devotes substantial attention to judicial review and its relationship to American democracy and theories of constitutional interpretation.--This text refers to an out of print or unavailable edition of this title.
And here is a snippet from a review in The Economist:
    "[As] Stephen Griffin lucidly argues, the court has never managed to follow a consistent interpretative approach for long. . . . What cleverly emerges from Mr. Griffin's account is a view of the court not as the final arbiter on constitutional questions, but as only one element in a tripartite system of government designed to divide power and create friction between the three branches."
Highly recommended!


 
Download of the Week The Download of the Week is Liberalism and Tort Law: On the Content and Economic Efficiency of a Liberal Common Law of Torts by Richard S. Markovits. Here is the abstract:
    This Article has three parts. Part I begins by delineating the protocol one should use to determine whether a society is an immoral society, an amoral society, a goal-based society of moral integrity, or a rights-based society of moral integrity (i.e., a society that engages in a bifurcated prescriptive-moral practice that strongly distinguishes moral-rights claims (about the just) from moral-ought claims (about the good), that is committed to the lexical priority of the just over the good, and that fulfills its commitments to some hard-to-specify, requisite extent). Part I then proceeds to outline the protocol one should use to determine the moral norm that any particular rights-based society is committed to using to derive moral-rights conclusions. It next provides an account of the liberal moral norm that I think our rights-based society is committed to instantiating. It argues that this norm commits us to treating all creatures that have the neurological prerequisites to lead a life of moral integrity (to take their moral obligations seriously and to take seriously as well the dialectical task of choosing a conception of the good and leading a life that is consonant with that conception) with appropriate, equal respect and to showing appropriate, equal concern for such creatures, in part for their welfare as economists understand that concept but primarily for their having a meaningful opportunity to lead a life of moral integrity. Part I concludes by examining the implications of our society's liberal commitments for (1) the tort-related moral duties and rights of its members and participants and (2) the general tort-related duties of its governments and the more specific duties of our society's courts when adjudicating common-law tort cases. This account proceeds from a premise uncongenial to economics that, from the perspective of liberalism, not all effects are commensurable - viz., that any tendency of a choice to deprive moral-rights holders on balance of a meaningful opportunity to lead a life of moral integrity by killing them, depriving them of the neurological prerequisites for leading a life of moral integrity, subjecting them to life-dominating pain, or (perhaps) treating them in ways that substantially undercut their perception that they are the authors of their own lives cannot be offset by any tendency the choice has to increase "mere utility" or "welfare" as economists understand that term. Part I argues inter alia that (1) its claim that ours is a liberal, rights-based society and (2) its account of the implications of that fact for the obligations of our society's members, participants, and common-law judges provide a normative grounding both for something like the Hand formula for negligence and for the common law's treatment of ultrahazardous activities. More specifically, Part 1 argues that liberalism implies that (1) something like the Hand formula for negligence is the appropriate standard for determining tort liability for possibly-tortious choices made by individuals who knew or should have known that their choices should be expected to impose net equivalent-dollar losses on others that reflect "mere-utility losses" the relevant victims sustained, and (2) individuals who made possibly-tortious choices they knew or should have known should be expected to disserve the interests of some others in having a meaningful opportunity to lead a life of moral integrity are liable in tort unless their choices served the on-balance interests of the society's members and participants in having an opportunity to lead such a life. Part 2 then examines whether a common law of torts that seeks solely to secure liberal corrective-justice rights will be economically efficient. More specifically, Part 2 delineates and explores twelve reasons why the correct resolution of a liberal corrective-justice claim may not be economically efficient. Finally, Part 3 identifies and analyzes the moral status (inter alia, the moral legitimacy) and likely generic desirability (moral-rights considerations aside) of the various possible non-common-law components of the positive tort law of a liberal, rights-based State - i.e., of its relevant constitutional law, statutory law, administrative regulations, and truly-judge-made law.


Friday, March 18, 2005
 
Crawford on Regulation in the Digital Age Susan P. Crawford (Cardozo School of Law) has posted Shortness of Vision: Regulatory Ambition in the Digital Age on SSRN. Here is the abstract:
    A worldwide battle over the future of the internet is under way. Telecommunications agencies around the world increasingly perceive the internet and the devices that connect to it as being under their regulatory control, and law enforcement authorities and the content industry are pushing them to exert this authority. I use two recent FCC case studies, the Broadcast Flag and the IP-Enabled Services rulemakings, to reveal the scope of the battle now playing out globally. Both of these proceedings present fascinating and troubling challenges to our shared online future, are being echoed around the world, and suggest that we are at a turning point in the brief history of the internet. Regulating information flows, usually the province of membranes created implicitly by individual attention and group decisions, is ordinarily an impossible task for governments. The US Congress has recognized this by (to date) acting with great restraint (with aberrational and expensive exceptions) when thinking about regulating the internet. The US should take the lead in recognizing that there is a fundamental mismatch between the scale of government actions online (large) and the complexity of the moves available to governments (low), on the one hand, and the scale of information flows online (fine) and their complexity (high), on the other. The only way to manipulate this online environment is to encourage the evolution of complex small-scale regulatory mechanisms that provide social order. We need to regulate the internet in a completely different way.
I am always impressed by Crawford's work. Highly recommended!


 
Riles on Law's Failures Annelise Riles (Cornell University - School of Law) has posted Law's Failures: Means and Ends on SSRN. Here is the abstract:
    This paper treats the general sense of failure that pervades the field of Conflicts of Laws as an opportunity to consider how failure generally might be understood in the law. Through an analysis of the field's history as compared to the history of property law, the paper argues that Conflicts' failure stems not from its inability to identify with either a normative or an instrumental theory of law, but from a failure of aesthetic technique. This analysis stands against both a normative understanding of law that sees Conflicts as having failed because it lends no substantive support to any claims of political or social effect on the one hand and an instrumentalist view of law that finds Conflicts doctrines unworkable, and unable to produce predictable or desirable effects. The wider goal of the paper is to draw serious theoretical attention to the technical character of legal knowledge. The "failure" of Conflicts as a field, however, also invites attention to the conditions under which this technical aesthetic ceases to captivate the imaginations and commitments of legal theorists, teachers and practitioners.


Thursday, March 17, 2005
 
Bratton on Executive Compensation William W. Bratton (Georgetown University Law Center) has posted The Academic Tournament over Executive Compensation (California Law Review, Vol. 93, No. 5, 2005) on SSRN. Here is the abstract:
    In their new book, Pay without Performance: The Unfulfilled Promise of Executive Compensation, Lucian Bebchuk and Jesse Fried describe in detail the performance insensitivity of today's executive incentive compensation packages. The authors assert that managers possess and effectively wield power, assuring that so-called incentive pay comes on easy terms. Kevin Murphy and Michael Jensen, who together provided crucial academic impetus for the 1990s movement to equity based compensation, along with other economists, respond in defense of prevailing practice. This review of Pay without Performance reports on the state of play in this academic tournament. It finds that even as both sides score points, significant concessions have been accreting on the defensive side. The result is a clear victory for Bebchuk and Fried. They win the match when the defense acknowledges that management power matters. The concession changes the terms of discourse in a field that expunged the concept of power from its positive account more than two decades ago. With power back in the positive account, the burden of persuasion shifts from the critics to the defenders of prevailing practices. The question then turns to whether prevailing pay practice can be improved materially. When the answer turns out to be yes, the debate ends in favor of Bebchuk and Fried.


 
Morrison on Private AG's and the First Amendment Trevor W. Morrison (Cornell University - School of Law) has posted Private Attorneys General and the First Amendment (Michigan Law Review, Vol. 103, February 2005) on SSRN. Here is the abstract:
    This Article examines a new constitutional challenge to the private attorney general. At its core, the private attorney general is a private plaintiff who sues to vindicate public interests not directly connected to any special stake of her own. In Nike v. Kasky, a case ostensibly about the Supreme Court's commercial speech doctrine, the Solicitor General of the United States urged the Court to adopt a special First Amendment limitation on private attorneys general. Specifically, he argued that the First Amendment should prohibit private plaintiffs from enforcing speech regulations except to the extent they seek compensation for their own individual injuries. At the same time, he maintained there should be no bar to direct government enforcement of identical regulations even in the absence of any showing of injury. In other words, the Solicitor General invited the Court to distinguish between publicly and privately enforced speech regulations, and to announce a rule generally preferring the former over the latter. The Court ultimately dismissed Nike without a decision, but not before a number of justices expressed apparent support for this public/private distinction. The issue is bound to return to the Court before long. I argue in this Article that a categorical First Amendment preference for public over private enforcement cannot be squared with existing free speech doctrine or the principles underlying it. To the contrary, as a general matter, the First Amendment properly regards private enforcement of speech-related laws as neither more nor less threatening to free expression than public enforcement. I also suggest, however, that the distinction between public and private enforcement urged in Nike is more than merely an unpersuasive First Amendment argument. Rather, it should be viewed against the backdrop of a number of efforts by the Supreme Court over the last decade to limit the power and influence of private attorneys general in a whole range of substantive areas, while leaving the government a relatively free hand to enforce the laws directly. To the extent this new public/private distinction seems attractive to the Court despite its doctrinal shortcomings, the reason may be that it seems to offer a novel means of advancing the Court's policy-preferred end of elevating public over private enforcement. And that preference may, in turn, reflect a more fundamental hostility to regulation itself.


 
Hughes on Infringement-Based Business Models Justin Hughes (Cardozo Law School) has posted On the Logic of Suing One's Customers and the Dilemma of Infringement-Based Business Models (Cardozo Arts & Entertainment Law Journal, Vol. 20, 2005) on SSRN. Here is the abstract:
    Before mid-2003, the recording industry's legal attack against peer-to-peer (P2P) systems was limited to the purveyors of P2P. End users were left untouched, the conventional wisdom being that it's not good business to sue one's own customers. Seven thousand lawsuits against P2P users later, that conventional wisdom appears wrong. This essay looks at the conflicting evidence and concludes that the most reasonable interpretation of the data is that suing end users has meaningfully dampened file sharing among people who can afford to buy music; that suing these end-users may be a financially self-sustaining activity; and that, if left unchecked, unauthorized P2P file sharing would increasingly substitute for legitimate sales. The de facto price discrimination produced by filing sharing has triggered official price discrimination through a combination of spoofing, lawsuits, differently priced download services, and discounts for university students. But this new balance is precarious and the problem of infringement-based business models remains. The most reasonable way to address that problem while preserving P2P technology is to fully restore knowledge and intent as components of third party liability in copyright. This requires revision of the Sony test, revision already started by the lower courts in Napster and Aimster.


Wednesday, March 16, 2005
 
Cunningham on Posner & Cardozo Lawrence A. Cunningham (Boston College (Law School)) has posted Cardozo and Posner: A Study in Contracts (William & Mary Law Review, Vol. 36, p. 1379) on SSRN. Here is the abstract:
    This article critically evaluates the major judicial opinions on the law of contracts written by Judges Benjamin N. Cardozo and Richard A. Posner. Respectively, these judges are the first and third most influential judges on the subject measured by the frequency with which contemporary contracts casebooks reproduce their opinions. Exploring dozens of classic opinions of these judicial titans, the piece contrasts the philosophies and methods the two judges employ in wrestling with many fundamental challenges in contract law, from formation to performance to damages. The inquiry suggests that, using Isaiah Berlin's nomenclature, Judge Cardozo is the fox of American contract law while Posner is its hedgehog. Judge Cardozo displayed the thickly-textured doctrinalist, an optimizer of competing objectives; Judge Posner is a maximizer. (Accompanying tables report data on the contributions of the 15 most influential judges contributing to contract law.)


 
Markovits on a Liberal Law of Torts Richard S. Markovits (University of Texas Law School) has posted Liberalism and Tort Law: On the Content and Economic Efficiency of a Liberal Common Law of Torts on SSRN. Here is the abstract:
    This Article has three parts. Part I begins by delineating the protocol one should use to determine whether a society is an immoral society, an amoral society, a goal-based society of moral integrity, or a rights-based society of moral integrity (i.e., a society that engages in a bifurcated prescriptive-moral practice that strongly distinguishes moral-rights claims (about the just) from moral-ought claims (about the good), that is committed to the lexical priority of the just over the good, and that fulfills its commitments to some hard-to-specify, requisite extent). Part I then proceeds to outline the protocol one should use to determine the moral norm that any particular rights-based society is committed to using to derive moral-rights conclusions. It next provides an account of the liberal moral norm that I think our rights-based society is committed to instantiating. It argues that this norm commits us to treating all creatures that have the neurological prerequisites to lead a life of moral integrity (to take their moral obligations seriously and to take seriously as well the dialectical task of choosing a conception of the good and leading a life that is consonant with that conception) with appropriate, equal respect and to showing appropriate, equal concern for such creatures, in part for their welfare as economists understand that concept but primarily for their having a meaningful opportunity to lead a life of moral integrity. Part I concludes by examining the implications of our society's liberal commitments for (1) the tort-related moral duties and rights of its members and participants and (2) the general tort-related duties of its governments and the more specific duties of our society's courts when adjudicating common-law tort cases. This account proceeds from a premise uncongenial to economics that, from the perspective of liberalism, not all effects are commensurable - viz., that any tendency of a choice to deprive moral-rights holders on balance of a meaningful opportunity to lead a life of moral integrity by killing them, depriving them of the neurological prerequisites for leading a life of moral integrity, subjecting them to life-dominating pain, or (perhaps) treating them in ways that substantially undercut their perception that they are the authors of their own lives cannot be offset by any tendency the choice has to increase "mere utility" or "welfare" as economists understand that term. Part I argues inter alia that (1) its claim that ours is a liberal, rights-based society and (2) its account of the implications of that fact for the obligations of our society's members, participants, and common-law judges provide a normative grounding both for something like the Hand formula for negligence and for the common law's treatment of ultrahazardous activities. More specifically, Part 1 argues that liberalism implies that (1) something like the Hand formula for negligence is the appropriate standard for determining tort liability for possibly-tortious choices made by individuals who knew or should have known that their choices should be expected to impose net equivalent-dollar losses on others that reflect "mere-utility losses" the relevant victims sustained, and (2) individuals who made possibly-tortious choices they knew or should have known should be expected to disserve the interests of some others in having a meaningful opportunity to lead a life of moral integrity are liable in tort unless their choices served the on-balance interests of the society's members and participants in having an opportunity to lead such a life. Part 2 then examines whether a common law of torts that seeks solely to secure liberal corrective-justice rights will be economically efficient. More specifically, Part 2 delineates and explores twelve reasons why the correct resolution of a liberal corrective-justice claim may not be economically efficient. Finally, Part 3 identifies and analyzes the moral status (inter alia, the moral legitimacy) and likely generic desirability (moral-rights considerations aside) of the various possible non-common-law components of the positive tort law of a liberal, rights-based State - i.e., of its relevant constitutional law, statutory law, administrative regulations, and truly-judge-made law.


 
Call for Papers: Australasian Association for Philosophy (New Zealand Divsion) Conference
    Australasian Association for Philosophy (New Zealand Divsion) Conference. Host Department Department of Philosophy, University of Otago, Dunedin, New Zealand (http://www.otago.ac.nz/philosophy/). Venue: University of Otago, Dunedin, New Zealand . Accommodation St Margaret's College, University of Otago (http://www.smc.ac.nz/). However alternatives will be available for those who prefer not to stay in the College. Dates: Saturday [not Sunday] 3 /12/05 - Thursday 8/12/05 Length of Sessions: A) 90 minutes with 45-60 minutes for the paper and half an hour for discussion, or B) 60 minutes with half an hour for the paper and half an hour for discussion. Themes: No restriction as to themes, though papers addressed to the work of Professor Alan Musgrave will be particularly welcome. Further suggestions for themes, threads and symposia are also welcome. Papers Please email the title and preferably an abstract of about 250 words to the Conference Secretary, Dr Charles Pigden, at charles.pigden@stonebow.otago.ac.nz Graduate Students Papers from graduate students (suitable for the one hour rather than the one-and-a-half hour sessions) are welcome. As per AAP (NZ) policy, graduate students must secure a staff member from their home department to sponsor their paper by attending and chairing their session. Please send the name of (and preferably a note from) your sponsor along with the title and abstract. Graduate students from overseas should consult Dr Pigden to make alternative arrangements. AAHPSSS Conference The AAP Conference will be running in tandem with the annual Conference of the Australasian Association for the History, Philosophy and Social Studies of Science, provisional dates 3/12/05-7/12/05. Papers intended for the AAHPSSS streams should be submitted to Associate Professor Ruth Barton of the Department of History at the University of Auckland at r.barton@auckland.ac.nz. Registration, Dinner, Train Trip. Details on Registration, the Conference Fee and the cost of accommodation will be advertised once they have been finalized. However, we can announce that we will be offering conference-goers the option of an NZ$50.40 train trip on the spectacular Taieri Gorge Railway (http://www.taieri.co.nz/) and a Conference dinner at Plato's Cafe for NZ$60. Travel Dunedin is approximately 360 km (225 miles) south of Christchurch. Dunedin airport has connections to Christchurch and other New Zealand cities. Most international flights are through Christchurch and Auckland. At the time of writing, Freedom Air offers cheap direct flights between Dunedin and three Australian cities, Sydney, Melbourne and Brisbane. Provisional Program Registration: Saturday afternoon Presidential Address followed by Reception: Saturday evening Papers and Symposia: Mornings and (most) afternoons, Sunday - Thursday. (There will be no evening session except for the Presidential address on the first day.) Train Trip; Tuesday afternoon Conference Dinner and Party: Tuesday evening AAP(NZ) AGM: to be arranged. Conference ends 12:30, Thursday. Charles Pigden Conference Secretary


Tuesday, March 15, 2005
 
Yin on Death Row Phenomenon Tung Yin (University of Iowa, College of Law) has posted Can 'Death Row Phenomenon' Be Confined to Death Row Inmates? on SSRN. Here is the abstract:
    Death row phenomenon - which refers to the suffering endured by persons who spend years on death row in a state of uncertainty about whether they will be executed - has ceased for now to be a significant source of friction between the abolitionist nations of Western Europe and the United States, given the former's move toward an absolute position against the death penalty, and to extraditing death eligible suspects. But a careful revisit to the doctrine of death row phenomenon suggests that it may not be so easy to confine the doctrine to cases involving the death penalty, as death row phenomenon is as much about the conditions of confinement as it is about the death penalty. Accordingly, I argue that the continuing war on terrorism may increase tension between the United States and Europe, because any Al Qaeda terrorists captured in Europe, if not to be executed in the United States, would almost certainly be detained in maximum security conditions that could give rise to a variant of death row phenomenon.


 
ACS Project The ACS emailed the following:
    ACS Launches Constitution in the 21st Century Project The American Constitution Society ("ACS") is embarking on a multi-year initiative to promote positive, much-needed change in our legal and policy landscape. The Constitution in the 21st Century will advance our nation's commitment to a constitutional democracy that safeguards individual rights and liberties, genuine equality and access to justice. With an Advisory Board co-chaired by Walter Dellinger, Alan Jenkins and Dawn Johnsen,* the project will bring together, in various venues and combinations, constitutional scholars, hands-on practitioners, public interest advocates, public officials and law students. We will encourage the kind of deep, careful thinking necessary to formulate and advance a progressive constitutional vision that is intellectually sound, practically relevant, and faithful to our constitutional values and heritage. Over the past two decades, our nation's legal landscape has been significantly reshaped by conservative legal ideology hostile to fundamental liberties and equality, congressional authority and responsibility, and access to the courts for the vindication of rights. Through a concerted campaign by conservative politicians, academics and activists, that ideology has permeated popular discourse and translated into real legal and political change. The time is right to reclaim our Constitution and ACS is launching The Constitution in the 21st Century initiative expressly for that purpose. Through the project, ACS members will:
      develop and disseminate progressive interpretations on a wide range of issues; debunk constitutional rationales that use misleading or disingenuous interpretations to mask conservative policy objectives; devise and implement strategies for shaping constitutional debate and constitutional law along progressive lines; and mobilize diverse constituencies on behalf of this vision: academics, practicing lawyers, public interest advocates, judges, government policymakers and law students, as well as citizens whose constitutional understandings help determine the constitutional democracy in which we live.
    The project's intellectual content will include both foundational intellectual work and persuasive distillations of existing work made readily accessible to practitioners, policymakers and the public. Components of the project will include: Issue Groups: The project's working core will consist of nationwide ACS Issue Groups of lawyers and academics working in particular subject areas. The Issue Groups will focus on topical concerns of the day as well as more enduring matters, and will both challenge flawed premises at work in the law and demonstrate the legitimacy and power of progressive approaches. Initial topics are likely to include separation of powers and federalism, equality and liberty, the criminal justice system, access to justice, constitutional interpretation and change, and democracy and voting. Conferences and Other Events: The project will include a variety of conferences and other events through which individuals will develop and share constitutional theories and arguments. Already scheduled are a Yale-ACS Conference on The Constitution in 2020 in April 2005 and the annual ACS National Convention in July 2005, which will be devoted to The Constitution in the 21st Century. Issue Groups will host additional public symposia as well as working meetings. Publications: The project will publish original articles, essays and position papers by a variety of authors on legal and policy issues suitable for audiences ranging from legal scholars to practitioners to interested citizens. The project will also compile, summarize and synthesize key academic and specialized articles and other existing materials to make them more accessible and useful to lawyers, litigators and advocates. We also will encourage students to engage in progressive scholarship, including through an annual writing competition. Project Website: A special section of the ACS website will be devoted to the project as a central tool for encouraging on-going dialogue, inspiring new ideas and continuously refining our constitutional vision for the 21st Century. The website will disseminate the work of the project, including all its publications, information regarding upcoming project activities, links to relevant material and activities of other organizations, a clearinghouse of progressive materials and a project blog. Project Clearinghouse: To fill a void often voiced by the progressive legal community, the project will establish and maintain a clearinghouse that will bring together a wide variety of key relevant materials, including law review articles, court rulings, project publications, congressional testimony and book reviews. In addition to including the full text of these materials, the clearinghouse will analyze, summarize and organize the materials to maximize their accessibility and usefulness to practitioners, judges, advocates, academics and students. Blog: The project will include a blog that engages progressives in conversation about theories of constitutional interpretation, topical issues and strategies for furthering progressive constitutionalism. Through The Constitution in the 21st Century, ACS seeks ultimately to revitalize our great nation's commitment to liberty, equality and justice and our standing as a beacon of freedom and justice across the world. *Walter Dellinger is the Douglas B. Maggs Professor of Law at Duke Law School, a Partner with O'Melveny & Myers and former Acting Solicitor General and Assistant Attorney General for the Office of Legal Counsel in the U.S. Department of Justice. Alan Jenkins is Executive Director of The Opportunity Agenda, former Director of the Human Rights Unit at the Ford Foundation, former Assistant to the Solicitor General in U.S. Department of Justice and former Assistant Counsel at the NAACP Legal Defense and Educational Fund. Dawn Johnsen is a Professor of Law at Indiana University School of Law- Bloomington, former Acting Assistant Attorney General for the Office of Legal Counsel in the U.S. Department of Justice and former Legal Director for NARAL Pro-Choice America.


 
Conference Announcement: Fairness at the New School
    Fairness: Its Role in Our Lives Fairness is a central motivating force in our private and public lives. Who gets what, how is it distributed, and how do we feel about that parceling out of power, resources, access, even attention? When allocation and distribution lead to indignation, the results can be explosive: witness the civil rights movement in the United States or, earlier, the Revolutionary War; the overthrow of apartheid in South Africa; the experiment of the Soviet Union. Current examples abound, from the struggle for a Palestinian state to questions of how to handle taxation, health insurance, and social security in the USA. Equality, justice, and social change all have their roots in our perceptions of fairness, and the very ability to perceive fairness is itself rooted in the behavior of our animal ancestors. It arises early in childhood, when it is echoed in the familiar cry of “That’s not fair.” Understanding what drives those perceptions, and examining how issues of fairness have played out through history, is key to effecting lasting change. This conference brings scientists, policy makers, historians, philosophers, and economists together in a public forum, to explore research on perceptions of fairness and consider historical case studies in the context of that science. Our shared purpose is to move toward informed solutions to some of the serious social problems that now confront us. Conference Location The New School Tishman Auditorium 66 West 12th Street, between Fifth and Sixth Avenues, New York City Register online or Download and print registration form (Adobe Acrobat Reader required) Social Research Conferences E-mail: socres@newschool.edu Telephone: (212) 229-2488 or 229-5776 Fax: (212) 229-5476 65 Fifth Avenue, Room 375 New York, NY 10003 Conference Agenda Thursday April 14, 2005 2:00 P.M. - 5:00 P.M. SESSION I. SCIENCE LOOKS AT FAIRNESS Frans de Waal, C.H. Candler Professor of Primate Behavior; Director, Living Links, Yerkes National Primate Research Center, Emory University Jon Elster, Robert K. Merton Professor of Social Science, Columbia University Herbert Gintis, Santa Fe Institute Matthew Rabin, Edward G. and Nancy S. Professor of Economics, University of California at Berkeley Moderator: Nicholas Humphrey, School Professor, London School of Economics Thursday April 14, 2005 6:00 P.M. - 7:30 P.M. SESSION II. KEYNOTE ADDRESS John Edwards, 2004 Vice Presidential Candidate and former U.S. Senator from North Carolina Friday April 15, 2005 10:00 A.M- 1:00 P.M. SESSION III. WHEN DOES FAIRNESS BECOME AN ISSUE? GENERAL CONDITIONS THAT GIVE RISE TO A SENSE OF UNFAIRNESS Lawrence Bobo, Professor of Sociology, Director, Center for Comparative Studies in Race and Ethnicity, Stanford University Jennifer Hochschild, Professor of Government and Afro-American Studies, Harvard University Sidney Verba, Carl H. Pforzheimer University Professor, Harvard University Ira Katznelson, Ruggles Professor of Political Science, Columbia University Moderator: Victoria Hattam, Professor of Political Science, New School University Friday April 15, 2005 2:00 P.M. - 5:00 P.M. SESSION IV. REASONING ABOUT FAIRNESS AND UNFAIRNESS IN LAW, PHILOSOPHY AND POLITICAL THEORY Edna Ullmann-Margalit, Professor of Philosophy, Hebrew University of Jerusalem Alan Ryan, Warden, New College, Oxford University Ian Shapiro, William R. Kenan, Jr., Professor and Chair, Political Science, Yale University Cass Sunstein, Karl N. Llewellyn Distinguished Service Professor of Jurisprudence, University of Chicago Law School Moderator: Richard Bernstein, Vera List Professor of Philosophy, New School University Friday April 15, 2005 6:00 P.M. - 9:00 P.M. SESSION V. FAIRNESS AND SOCIAL JUSTICE Christian Barry, Editor, Ethics and International Affairs, Carnegie Council on Ethics and International Affairs Julian Le Grand, Richard Titmus Professor of Social Policy, London School of Economics Richard Wilkinson, Professor of Epidemiology and Public Health, University of Nottingham Medical School Moderator: Michael Cohen, Director, International Affairs Program, New School University.


 
Bohannan on Construing the Copyright Act Christina Bohannan (University of Iowa, College of Law) has posted Construing the Copyright Act after Eldred on SSRN. Here is the abstract:
    In Eldred v. Ashcroft, the Supreme Court upheld the constitutionality of the 1998 Copyright Term Extension Act (CTEA), which extended the copyright term of both new and existing works by twenty years, despite the lack of incentive that such a retroactive term extension would provide for the creation or dissemination of new works. Although the CTEA is perhaps the most notorious example of rent-seeking by special interests in copyright law to date, a majority of the Court dismissed the petitioners' constitutional challenges without any mention of the influence that special interest groups had over its enactment. The Court's decision was disappointing to many, but it was hardly surprising. Because the CTEA's language extending the copyright term was clear and unambiguous, there was no issue of statutory construction facing the Court C the issue was strictly constitutional, and the Court rarely strikes down economic laws like intellectual property statutes. Indeed, to do otherwise would thwart well-established constitutional principles including Congress's lawmaking power under Article I as well as separation of powers inherent in the structure of the Constitution. Thus, even public choice scholars who advocate more exacting judicial review of special-interest legislation often argue that it goes too far to strike down such legislation on constitutional grounds. In this paper, Professor Bohannan argues that whether or not the Eldred Court was correct in ignoring special interest influences in its constitutional analysis of the CTEA, courts should not ignore those influences when dealing with statutory construction of other provisions of the Copyright Act. Special-interest influence over the Copyright Act has been pervasive over the past few decades, and the general trend in copyright law has been an expansion of the rights of copyright owners at the expense of public access to copyrighted works. This tension between private and public interests in copyright law often presents itself in copyright infringement cases as a statutory ambiguity between private-and public-regarding provisions in the Copyright Act. Professor Bohannan argues that, where possible, such statutory ambiguities in the interpretation of the Copyright Act should be resolved by a rule of statutory interpretation that takes into account the private- or public-interest nature of the ambiguous provisions. The paper identifies ambiguities between public-and private-interest provisions in the Act and offers several theories of statutory interpretation in support of resolving such ambiguities by construing the private-interest provisions narrowly and the public-interest provisions broadly.


 
Blogger Problems Blogger, the back end for BlogSpot, has been malfunctioning consistently for the past few days. This has made it very difficult to get new material up on LTB. Posting may be erratic until the problem clears up.


 
Call for Papers: Knowledge and Testimony
    CALL FOR PAPERS: KNOWLEDGE AND TESTIMONY International Symposium September 30 and October 1, 2005 Université de Sherbrooke (Québec, Canada) Organized by the Canadian Society for Epistemology http://callisto.si.usherb.ca/ybouchard/sce/ This international Symposium is devoted to exploring the role of testimony in the acquisition of knowledge. Submissions on any topic intimately related to this theme -- e.g. skepticism about testimony as a knowledge source, reductionism vs. antireductionism about testimony, testimony and interpretation, testimony and knowledge of language, testimony and scientific inquiry, trusting experts and appeals to authority -- are welcome. The languages of the Symposium are English and French. Authors are invited to submit a 250 word abstract, written in English or French. The deadline for submitting an abstract is Friday April 8. The abstract can be sent by regular mail, by web form, or by e-mail, in which case the text can be directly included in the body of the letter or attached in a RTF or PDF file. Notifications of acceptance for the selected submissions will be sent on April 22. For more information, visit the Symposium's Website at http://callisto.si.usherb.ca/ybouchard/symposium/2005/ or write to yves.bouchard@usherbrooke.ca Yves Bouchard FATEP - Philosophy University of Sherbrooke 2500, boulevard de l'Université Sherbrooke (Québec) J1K 2Rl Canada


 
Conference Announcement: Spyware at Berkeley
    Berkeley Technology Law Journal invites you to register for our 9th annual conference on Spyware, The Latest Cyber-Regulatory Challenge to be held on April 1, 2005 (Friday) at the Bancroft Hotel in Berkeley, CA across from Boalt Hall School of Law. http://www.law.berkeley.edu/bclt/spyware Registration can be done online at: http://www.law.berkeley.edu/institutes/bclt/spyware/registration.html C O N F E R E N C E D E S C R I P T I O N Utah has already made spyware illegal (although a state court has struck down this law as unconstitutional). Even though the Federal Trade Commission has concluded that new regulation of spyware is unnecessary, the U.S. Congress is moving forward with its own regulation which would preempt state laws such as Utah's. Meanwhile, Internet users are bombarded with ads trying to sell them technologies that purport to detect and eliminate spyware which may (or may not) have been installed on their computers when they signed up for a product or service on the Internet. Is spyware the latest form of malware, along with viruses, worms, spam, and file-sharing of illicit content? Or are technologies embedded in users' computer systems that monitor certain functions and offer updates, services, or ads for products users might want an engine of e-commerce that should remain unregulated and indeed encouraged? How does and how should the law define "spyware"? What kind of notice and consent should be required before installation of such software is permitted? What obligations (if any) do makers of spyware or users of spyware have as to collection and transmission of personally identifiable information? Are some forms of spyware surveillance unlawful, even criminal? Does spyware make user computers more insecure? What intellectual property rights (if any) are implicated by spyware that serves ads to users of websites that have their own ads to offer? Should states or the federal government regulate spyware, or is effective regulation impossible given the global nature of the Internet and the ease with which off-shore servers can provide havens? We hope to see you in attendance. S C H E D U L E - A P R I L 1, 2 0 0 5 8:30 - 9:30 am Tutorial on Spyware Technology - Jeffrey Friedberg (Microsoft Corporation) 9:30 - 9:45 am Break 9:45 - 10:00 am Introduction - Pam Samuelson (BCLT & Boalt Hall School of Law) 10:00 - 11:15 am Privacy and Surveillance Issues - Paul Schwartz (Brooklyn Law School) - Patricia Bellia (University of Notre Dame Law School) - Ari Schwartz (Center for Democracy & Technology ) - Seth Lesser (Locks Law Firm) - Reed Freeman (Claria Corporation) 11:15 - 11:45 am Break 11:45 - 1:00 pm Intellectual Property and Contracting Issues - Tim Ehrlich (Latham & Watkins) - Dan Burk (University of Minnesota Law School) - Jane Winn (University of Washington School of Law) - Alex MacGillivray (Google) 1:00 - 2:15 pm Lunch break 2:15-2:45 pm Nelson Memorial Keynote Address sponsored by MORRISON & FOERSTER LLP - Introduction: Dean Christopher Edley (Boalt Hall School of Law) - Speaker: Christine Varney (Hogan & Hartson LLP) 2:45 - 4:45 pm Regulatory Challenges - Peter Menell (BCLT & Boalt Hall School of Law) - Susan Crawford (Cardozo School of Law) - Michael Geist (University of Ottawa) - Ira Rubinstein (Microsoft) - Henry Chesbrough (Haas School of Business) - Deirdre Mulligan (BCLT & Boalt Hall School of Law) - Eric Goldman (Marquette University Law School)


 
More on Filibusters & Update Read Mike Rappaport's latest post--once again, Rappaport has excellent points expressed with great clarity and eloquence. This will require an extended response--probably at the end of the week, as I will be on the road tomorrow and Thursday.
Also, Bruce Regal writes:
    Reading your dialogue with Rappaport about the "nuclear option" for changing Senate fillibuster rules with respect to judicial confirmation, one issue troubles me about your argument that I'm not sure Rappaport is quite confronting either. It seems to me you are relying on a limited and counter-intuitive notion of "nonconsent" as requiring some active, articulated decision rather than simply the absence of decision. It seems to me that the ordinary meaning of the concept of "consent" as required for judicial appointments reflects the idea that the failure of such consent, and thus the failure of a nomination, can be expressed as a simple failure by the body of the Senate to act as fully as by an affirmative decision to reject. Your notion that the Senate acts unconstitutionally when it fails to affirmatively consent or reject within some specified period of time (the end of a session perhaps , or some period set by the President, be it Washington or a successor, etc.) seems incompatible with this ordinary understanding of consent and its opposite, non-consent. If I am asked by my minor child to consent to a contract she wishes to enter into, I may express my decision not to consent either by saying "No" or by simply not acting. The consent required is my affirmative approval and anything short of that, including simple non-action, renders any contract my daughter may sign unenforceable. Whether I have said "No" or not makes no real difference to the enforceability of the contract, although it may make a difference to my daughter because the "No" presumably is a signal ending the discussion between us on the subject, whereas my nonresponsiveness may seem to leave the question open (although eventually she will probably give up asking). It seems to me the Senate's constitutional obligation to grant consent or not can be met and is met with an unspoken nonconsent in the sa me way as a silent nonconsent to the contract of a minor. So long as the Senate as a body, and based on its own rules, is unable to end debate on a judicial confirmation its consent is properly deemed withheld and a nomination cannot be completed. This seems to me to be the full exercise of the "obligation" of the Senate to participate. As long as the Senate makes no final decision, the president, like my daughter, can continue to wait, indefinitely if necessary, for the Senate to grant its consent (even if the Senate turns the President down, the President can presumably try again in the future, as can my daughter), but in the meantime the Senate's nonaction must be considered the equivalent of active non-consent for legal purposes, and should not be treated as some sort of unconstitutional refusal to participate as you suggest. Of course this analysis does not answer the harder question, which is what is the default position of the Senate in terms of how it makes decisions. Can it amend any rule, even a rule demanding supermajority decisions, with a simple majority decision. As you suggest at one point, this might be appropriate for many types of Senate actions, because one can always assume that even if the Senate acts by majority domination, minority rights will be protected by the courts. But when control of the courts is itself at stake, there is something constitutionally disturbing about the Senate acting without a significant minority veto available.
Update: C.E. Petit has a post responding to Regal. Here's a taste:
    First of all, the filibuster deals with only part of the Senate's powers (and, depending on one's interpretation, responsibilities). The clause also requires advice from the Senate, not just consent. In other words, as I've remarked here previously, the clause could just say "consent"; "advice and" would be meaningless. In turn, that means two-way communication between the President and the Senate—which is the only interpretation reasonably consistent with the structure of the clause, of the Constitution's appointment powers, and the Federalist Papers. (Unfortunately, Madison's notes from the convention are less than clear on this issue.) In terms of communication, a filibuster is about as loud a piece of advice short of an explicit nomination list that one can imagine; it represents far more than just a "no" vote, but indicates that a substantial minority (at minimum) of the Senate said "not only not, but hell no!" (One would hope that this is more than partisan pique, but that's the price we pay for a two-party incumbent-dominate system entrenched by first-past-the-post representation.) In that sense, then, a filibuster is a positive embracing of part of the Senate's role under the "advice and consent" clause.
And scroll down one post for more from Seth Tillman.


 
Tillman on the Filibuster of Judicial Nominees Seth Tillman comments on More from Rappaport on the Nuclear Option & the Filibuster (responding to this post):
    You (Solum) wrote:
      [Michael Rappaport wrote:]
        First, the text of the Constitution does not expressly say that the Senate has an obligation to advice and consent. It only says “the President shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States.” (emphasis added by Tillman)
      I think we [Rappaport and Solum] have a disagreement here. I would think that "shall" implies obligation, and that given the structure of the clause it is clear that the obligation rests with both the President and the Senate.
    I think you go too far here in asserting that "shall" implies obligation rather than merely the futurity of presidential and senate action with regard to offices not yet created by statute. If "shall" implied obligation, then -- by that reasoning -- would not the President have an obligation to appoint and commission all officers he had already nominated upon Senate confirmation? Traditionally, the power to appoint by the President (after nomination and senate advice and consent) is discretionary with the President. pace Marbury v. Madison. Do you think Marshall wrong here? (Nothing wrong with that -- but maybe you ought to flag that for the reader!) Furthermore, under your position, if the House thought that the President failed to make timely nominations to vacant offices (i.e. he failed to nominate as duty bound by the first "shall" above), it would rightfully have a power to impeach. This seems an unnecessarily conte ntious and counterintuitive result. It seems to me that if the President has a constitutional duty to nominate (i.e. make timely nominations), it would have been differently and more clearly phrased. I think it more likely that the Founders relied on good incentives -- that that President would desire to promote and elevate "his" people, and fill vacant offices with those loyal to him personally, his faction, and his policies. Both the positions taken by Professor Rappaport and yourself fail to do justice to the full complement of the Constitution's text. The Constitution gives the President an express power to convene just the House. See U.S. Const. art. II, Section 3 ("[The President] may, on extraordinary occassions, convene both Houses, or either of them ...."). Any theory of legislative procedure as mandated by the Constitution has to account for that power. Otherwise it is (or ought to be) a nonstarter -- at least for textualists and originalists and formalists. Compare Letters of Cato, No. VII ("No occasion can exist for calling the [House] without the senate; the words or either of them, must have been intended to apply only to the senate.") (emphasis in the original), reprinted in 2 Herbert J. Storing, Murray Dry, The Complete Anti-Federalist 123, with The Federalist No. 77, at 410 (James Madison) (J.R. Pole ed. 2005) ("Except some cavils about the power of convening either house of the legislature and that of receiving ambassadors, no objection has been made to this class of authorities [the Constitution vests in the President by Antifederalists].") (emphasis in the original). Like N.Y. Governor George Clinton [widely thought to be Cato] and the Anti-federalists, both you and Professor Rappaport still need a theory to account for the meaning of U.S. const. art. II, Section 3. I have some idiosyncratic views in this regard, but as they do not relate to the filibuster or to presidential appointments per se, your readers are probably not interested.


 
Verkuil on Privatization of Government Functions Paul R. Verkuil (Cardozo Law School) has posted Public Law Limitations on Privatization of Government Functions on SSRN. Here is the abstract:
    This article asks whether privatization has become so successful as to challenge inherent limits on private control of public functions. It reviews the history of the public-private distinction and explores constitutional limits on the exercise of public power in private hands, including important new scholarship on the nondelegation and exclusive delegation doctrines. The connection of due process to delegation is emphasized, especially procedural controls as accountability mechanisms for overseeing privatized activities. At the statutory level, the largely overlooked potential of the Subdelegation Act to limit as well as sanction delegations to public officials is elaborated. The current OMB A-76 process is addressed in detail. Holding public/private competitions over outsourced government functions is reviewed and its process deficiencies are highlighted. Under current interpretations, the basic question of what "inherent government functions" agencies cannot privatize is lost in the overall mandate to engage in "competitive sourcing." Enhanced procedures for administrative review of this process, including a greater role for the Government Accountability Office (GAO), are recommended. Indeed, the article suggests that the A-76 process encapsulates the public-private debate in such a comprehensive way that the administrative law community can help reshape or rebalance that debate by reforming the process itself.


 
Carlson on Dworkin David Gray Carlson (Cardozo Law School) has posted Dworkin in the Desert of the Real on SSRN. Here is the abstract:
    Dworkin's positivist critics have charged that he errs in supposing that the philosophy of law and the philosophy of language have any connection. This paper argues that Dworkin is exactly right to deny a split between law and language. But there is an incommensurability in Dworkin's jurisprudence which Dworkin is well aware of: the split between theory and practice, between being and doing. This incommensurability means that Dworkin's jurisprudence is of the highest interest to law and psychoanalysis. It also makes Dworkin the noir philosopher of our age, as adjudication is subjected to what psychoanalysis calls the "ethics of the real."


Monday, March 14, 2005
 
Monday Calendar
    Stanford Center for Internet and Society and the Stanford Law and Technology Association: Peter Wayner, How to Offer Highly Customized Web Sites Without Building a Privacy Nightmare.
    UCLA School of Law: Doug Lichtman, University of Chicago School of Law "Irreparable Benefits".
More to come!


 
More from Rappaport on the Nuclear Option & the Filibuster My colleague Michael Rappaport responds with his usual intelligence, vigor, and clarity to my comment on the op/ed that he and John McGinnis wrote concerning the so-called "nuclear" option to end filibuster's of democratic nominess. Here are his comments (in red), with some further reflections:
    First, the text of the Constitution does not expressly say that the Senate has an obligation to advice and consent. It only says “the President shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States.”
I think we have a disagreement here. I would think that "shall" implies obligation, and that given the structure of the clause it is clear that the obligation rests with both the President and the Senate. The clause that Mike has in mind would be more felicitously worded, the President shall nominate, and if the Senate chooses to give advice and consent, shall appoint . . ." I recognize that there is some room for disagreement about the import of the text, as I think Michael would also concede. Hence, we turn to history. Michael continues:
    Second, Larry relies on a statement made by George Washington, suggesting that the Senate functions as an executive council when it advises and consents and that the President could determine where and when they meet. (Washington did not say the President could govern the Senate’s procedures, but perhaps one might infer that claim.) While Washington’s views are always interesting, that the Senate did not follow his position might be thought to be even more significant.
I am a keen admire of Michael's argumentation, but, in this case, it is my opinion that his argument is nonresponsive to the argument that I made, which explicitly acknowledged the Senate's response and explained why that response is evidence for a Senate duty:
    [E]arly in the history of the Republic, the settled practice became that the Senate would remain in its own chamber, but would give the President advice and consent within a reasonable time. Although Washington’s specific proposal was not adopted, his understanding of the fundamentally executive nature of the Senate’s role in advice and consent provides an important insight into the meaning of the Article II, Section 2, Clause 2. From the text and early history, a general principle can be adduced. This general principle is that advice and consent must be timely. President Washington believed that this principle could be implemented by giving the President the authority to demand advice and consent when he deemed it necessary. The first Senate countered by providing advice and consent that was timely, while reserving to itself the authority to schedule its own executive sessions.
Significantly, there is no historical evidence that any member of the Senate rejected Washington's assertion that the President could demand the advice of the Senate on his schedule. Rather, the response was to give advice and consent at at a place of the Senate's choosing. Of course, no one can doubt that the President may call the Senate into session to ask for its advice and consent, because U.S. Const. art. II, S. 3 provides: "[The President] ... may, on extraordinay Occasions, convene both Houses, or either of them ...."
    Third, the claim that the Senate must follow the procedures established by the President seems inconsistent with the constitutional text. The Constitution provides that each house shall determine the rules of its proceedings. Thus, it is the Senate, not the President which determines when it votes and whether a filibuster is allowed. Larry argues that the advice and consent function is part of the executive function, but even if that is true, that does not mean that the Senate does not decide on its own procedures when performing that function. The Rules of Proceedings Clause applies to all proceedings of the Senate, not merely legislative ones.
This misconstrues my argument--which is not that the President can establish the Rules of the Senate, but rather than the President plays a special role when he asks for advice and consent, and that this special role is evidence that the Senate has a constitutional obligation to give advice and consent in a timely fashion.
    Finally, Larry argues that there is an obligation, as informed by the Recess Appointments Clause, that the Senate respond to a nomination within a particular session. I don’t really see how this obligation is imposed by the constitutional text. Moreover, while it might be convenient for the Senate to respond so the President can know what further actions he should take, a filibuster can also communicate to the President that the Senate minority will not consent to the nomination. President Bush can then decide whether to nominate someone else or to continue with his nominee. Similarly, if the Senate were to turn down the President’s nominee, he could decide to nominate that person again or to nominate someone knew.
Michael says he "doesn't see how this obligation is imposed by the constitutional text," but he neither acknowledges nor answers the arguments that I made in the letter to Senator Cornyn (I've interjected some new material in blue & slightly edited the text):
    [T]he duty to give timely advice and consent means, at a minimum, that the Senate should vote on nominations during the Session in which the nomination is made. The text of the advice and consent clause when read in light of the early historical practice provides compelling evidence that the Senate has a constitutional duty to give advice and consent to the President. From the existence of the duty, it follows that the duty must be completed in a timely fashion. If the Senate has a constitutional duty to give advice and consent, it cannot escape that duty through indefinite delay. The constitution does not provide a specific period of days, and hence it might be argued that the Senate may wait for months or even years before acting on a nomination. There is, however, strong evidence from another provision of the Constitution as to the outer limit of constitutionally permissible delay. The Recess Appointments Clause, Article II, Section 2, Clause 3, provides:
      The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
    This provision strongly suggests that the founders contemplated that the Senate would give and advice and either grant or deny consent within the session in which the nomination was made. Any delay of advice and consent beyond the session in which the nomination was made would imply a power on the part of the Senate to force the President to accept a vacancy. (This argument assumes that Michael is right and that the Recess Appointments Clause would not empower the President to fill such vacancies.) This structural feature provides independent support for the conclusion that we have already reached: it would be a breach of the Senate’s constitutional duty.
I'm sure that Rappaport has in mind a specific reftuation of my argument and reasons in support of his alternative reading of the text, history, and structure. I look forward to hearing them. Read Rappaport's post!


Sunday, March 13, 2005
 
Legal Theory Lexicon: Fit and Justification
    Introduction In 1975, Ronald Dworkin wrote Hard Cases (88 Harvard Law Review 1057 (1975)) reprinted in Ronald Dworkin, Taking Rights Seriously ch 4 (Harvard University Press, 1977)). This is one of the most famous and influential articles in contemporary legal theory, and I would put it very high on my recommended legal-theory reading list. Lot's of Dworkin's ideas are very controversial, but one of his claims has become part of the way that most legal academics think about the law in general and the enterprise of judging in particular. I am referring to Dworkin's distinction between "fit" and justification" and his claim that when judges decide hard cases, they choose the interpretation of the law that best fits and justifies the existing legal landscape--the constitution, statutes, regulations, and common law.
    As always, the Legal Theory Lexicon is aimed at law students (especially first year law students) with an interest in legal theory. I know you are all very busy at this time of year, so I will do my best to be concise.
    The Basic Idea Suppose a judge is deciding a hard case. It could be a common law case or a constitutional case or a statutory case. How do judges approach this task when they are confronted with a case in which the law is up for grabs? That is, how do judges decide cases where there is an unsettled question of law? Dworkin's basic idea is that the process of deciding a hard case has two dimensions--fit and justification. First, the judge might ask herself, "Of all the possible interpretations of the law that I could adopt as the basis for my decision, which one is consistent with the theory that best fits the existing legal landscape. Of all the rules I could adopt in this case, which ones are consistent with the relevant constitutional and statutory provisions and with the precedent." When the judge had identified the alternatives that meet the criterion of fit, it is possible that there will be more than one possibility that fits. If so, then the judge can go on to ask the question, "Of the interpretations of the existing law that fit the constitution, statutes, and case law, which is the best interpretation? Which of the possible legal rules that I could adopt is most consistent with the normative theory that provides the best justification for the law as a whole.
    ? Fit What does it mean to say that a given rule fits the legal landscape? Suppose you are a judge deciding whether your jurisdiction will adopt the rule of contributory negligence or will choose instead to follow the comparative negligence approach. It is possible that only one of these two rules fits the existing law in your jurisdiction. For example, if the legislature has mandated the contributory negligence rule by statute, then as a judge (even a Supreme Court judge), you would be obliged to follow the statute and decide the case before you on the basis of contributory negligence. On the other hand, suppose you are in a newly created jurisdiction. No statute or binding precedent requires either comparative or contributory negligence. Both rules fit the existing legal landscape. In that case, Dworkin argues, you would need to decide a question of justification.
    Justification What does it mean to say that a judge might prefer one rule over another on the basis of the criterion of rustication? Let's continue with our example of the choice between contributory and comparative negligence. Since there is no statute or precedent that compels (or strongly guides) the choice, the judge must turn to some other basis in order to make her decision. She will need to get normative, i.e., to consider the normative justifications for tort law. Simplifying greatly, let's suppose our judge decides that the tort of negligence is best understood as a system of compensation and "risk spreading." She might then reason that the comparative negligence rule does a better job of serving this purpose than does a contributory negligence rule. Contributory negligence allows losses to go uncompensated when the plaintiff (victim) caused any of her own loss; comparative negligence does a better job of spreading the risk of accidents. [I know that this is a very crude argument, and I'm sure all of you can do better.]
    In other words, the judge asks the question, "What normative theory best justifies the existing law and negligence?" And then proceeds to the question, "Given that justification of tort law, which of the alternative rules that I could apply to the case before me best serves the purposes of tort law?" Two Kinds of Justification: Principle and Policy In Hard Cases, Dworkin identified two different kinds of arguments that can be used to justify the law. He called these two different types arguments of "principle" and "policy." As understood by Dworkin, arguments of principle are arguments that appeal to ideas about fairness and rights. If you would like to know more about arguments of principle, a good place to begin is with the Legal Theory Lexicon entry on Deontlogy.
    Arguments of policy, on the other hand, appeal to consequences. For example, if you argued that a comparative negligence rule is better than a contributory negligence rule because it provides optimal incentives for taking precautions against accidents, you would have made an argument of policy in Dworkin's sense.
    If you are interested in the theoretical basis for arguments of policy, you could take a look at the Legal Theory Lexicon entry on Utilitarianism.
    Dworkin himself argued that judges should consider arguments of principle and should not decide cases on the basis of arguments of policy. That feature of his theory is hugely controversial--as you could guess if, like most law students, you've heard endless discussion of policy in the classroom. But Dworkin could be right about "fit and justification," even if he is wrong that the dimension of justification is limited to principle and excludes policy.
    Conclusion Law students can use Dworkin's ideas about fit and justification as a device for organizing their analysis of legal questions--and of course, one important occasion for such analysis is the law school essay examination. It is very difficult to generalize about law school exams; they vary enormously. But many standard issue spotting essay questions have built into them a "hard case," an aspect of the fact pattern that is intended to trigger your discussion of the question, "What should the rule be?," with respect to some controversial legal issue. If you try to answer the question, "What should the rule be?," by telling your instructor, "Here is the majority rule," or "Here are two alternative rules; I don't know which one is the law, you will have missed the point of the question!
    And that's where Dworkin comes in. You can use "fit and justification" as the basis for organizing your answer to a "What should the law be?" question. Begin with fit. Which possible rules are consistent with the settled law? Then move to justification. Of the rules that fit, which is the best rule? Now list the arguments of principle and policy for and against each of the plausible candidates. Be sure to come to a conclusion. That is, end with something like, "Adopting a rule of comparative negligence is required by the theory that best fits and justifies the existing law of torts."


Saturday, March 12, 2005
 
More from Barnett on Getting a Law Teaching Job Randy Barnett has been posting up a storm on Getting a Law Teaching Job. Here's a guide to his posts:And if you missed them, check out this post and that post on LTB. And don't forget to read Brian Leiter's very good advice.


 
McGinnis & Rappaport on Amending the Filibuster Rule Readers of LTB will want to read Mike Rappaport & John MicGinnis's Op/Ed on amending the filibuster rule. As Mike blogs on The Right Coast:
    My op ed piece, written with John McGinnis, on the filibustering of judicial nominees has now been published. The article makes three basic points. First, it argues that the so called nuclear option is a fully constitutional mechanism for changing the filibuster rule. In fact, it is constitutionally required that a majority of the Senate be able to change the filibuster rule; otherwise, a majority of the Senate could pass norms that would be as entrenched against change as constitutional provisions are.
And from the op/ed:
    The Senate majority's power to modify the filibuster is strongly supported by constitutional principles. Both the text and structure of the Constitution show that only one of three possible views about the constitutionality of the judicial filibuster is correct. The first view – advocated most recently by Senate majority leader Bill Frist, R-Tenn. – is that filibustering judges is simply unconstitutional. But the Constitution expressly gives the Senate the right to fashion its own rules of procedure and nowhere requires application of majority rule to confirmations.
    The second view – advocated by many Democrats – is that a majority has no right to change the filibuster rule because the Senate rules still require a two-thirds vote to end a filibuster mounted against a resolution to change the filibuster. But this Senate rule conflicts with the structure of the Constitution.
    * * *
    The third and constitutionally correct view is that the Senate can choose to retain the filibuster rule, but that a majority must be able to change it. The Senate can thereby exercise its full constitutional authority to fashion rules of procedure but past majorities of the Senate cannot put current majorities in a procedural straitjacket. Thus, a change in the filibuster rule by a majority is not a "nuclear" option but instead the constitutional option – the route contemplated by our founding document.
McGinnis & Rappaport's analysis is very persuasive. I am not sure I agree with their rejection of the first view--at least if we view the question as one of the original meaning of the constitution. Here is a letter I wrote to Senator Cornyn on this question:
    Dear Senator Cornyn: I am writing in connection with issues raised at the Hearings on Judicial Nominations, Filibusters, and the Constitution: When a majority is denied its right to consent, held on Tuesday, May 6, 2003 at 2:30 p.m. This letter supplements my letter of May 4, 2003. I am a Professor of Law at the University of San Diego, and I have written extensively on issues of constitutional law and judicial selection. In this letter, I address the original understanding of the advice and consent clause in light of the text of Article II and the interaction between the first President and the first Congress. My conclusion is that the Senate has a constitutional duty to provide advice and consent in a timely fashion, and that this duty is breached when a Minority filibuster delays the vote on a Presidential nominee beyond the end of a session of Congress. This conclusion is supported by the following considerations. First, when the Senate gives advice and consent it performs an executive function. This fact is directly supported by the language of the clause. What is the constitutional responsibility of the Senate with respect to advice and consent? The United States Constitution Article II, Section 2, Clause 2, provides that the President
      shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.
    The phrase “advice and consent” is borrowed from the laws of Great Britain where it was used to describe the consultative relationship between Crown and Privy Council—an executive department. Appointment itself is an executive function. Second, because advice and consent is an executive function, it is distinguishable from the Senate’s legislative function. When the Senate acts in its legislative capacity, it owes no constitutional duties to the President, but when the Senate acts as an executive body—the fundamental nature of its role is different. The Senate itself recognizes this distinction in a variety of ways; for example, the Senate goes into executive session to consider judicial nominations. Third, the Senate has a constitutional duty to give advice and consent to the President. Perhaps this is obvious, but examination of the early historical practice is nonetheless instructive. How did the first President, George Washington, view the Senate’s obligations with respect to advice and consent? He believed that when the Senate performed this executive role, its relationship to the President was analogous to the Privy Council. President Washington wrote:
      The Senate when these powers are exercised, is evidently a Council only to the President, however [necessary] its concurrence may be to his Acts. It seems incident to this relation between them, that not only the time but the place and manner of consultation should be with the President. It is probable that the place may vary. The indisposition or inclination of the President may require, that the Senate should be summoned to the President's House. Whenever the Government shall have buildings of its own, an executive Chamber will no doubt be provided, where the Senate will generally attend the President. It is not impossible that the place may be made to depend in some degree on the nature of the business. In the appointment to offices, the agency of the Senate is purely executive, and they may be summoned to the President.
    President Washington’s understanding was that the Senate could be called by the President to give advice and consent on his timetable. This understanding accords with the role of the Privy Council in the England. Fourth, early in the history of the Republic, the settled practice became that the Senate would remain in its own chamber, but would give the President advice and consent within a reasonable time. Although Washington’s specific proposal was not adopted, his understanding of the fundamentally executive nature of the Senate’s role in advice and consent provides an important insight into the meaning of the Article II, Section 2, Clause 2. From the text and early history, a general principle can be adduced. This general principle is that advice and consent must be timely. President Washington believed that this principle could be implemented by giving the President the authority to demand advice and consent when he deemed it necessary. The first Senate countered by providing advice and consent that was timely, while reserving to itself the authority to schedule its own executive sessions. Fifth, the duty to give timely advice and consent means, at a minimum, that the Senate should vote on nominations during the Session in which the nomination is made. The text of the advice and consent clause when read in light of the early historical practice provides compelling evidence that the Senate has a constitutional duty to give advice and consent to the President. From the existence of the duty, it follows that the duty must be completed in a timely fashion. If the Senate has a constitutional duty to give advice and consent, it cannot escape that duty through indefinite delay. The constitution does not provide a specific period of days, and hence it might be argued that the Senate may wait for months or even years before acting on a nomination. There is, however, strong evidence from another provision of the Constitution as to the outer limit of constitutionally permissible delay. The Recess Appointments Clause, Article II, Section 2, Clause 3, provides:
      The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
    This provision strongly suggests that the founders contemplated that the Senate would give and advice and either grant or deny consent within the session in which the nomination was made. Any delay of advice and consent beyond the session in which the nomination was made would be a breach of the Senate’s constitutional duty. Sixth, allowing indefinite filibusters of Presidential nominees is inconsistent with the constitutional duty to provide advice and consent in a timely fashion. This is not to say that the Senate cannot provide individual Senators or the Minority with a procedural opportunity to trigger extended debate. But that opportunity cannot be so extensive as to allow its abuse by extending debate beyond the end of the current Session of Congress—excepting of course in the case of a nomination that is submitted at the end of the Session. Seventh, the current extended filibusters of multiple nominees require the Senate to address the question whether its rules provide a sufficient guarantee that the Senate will fulfill its constitutional duty to give advice and consent within a reasonable time. It is true that this question should also have been raised in a variety of situations. It is possible that prior Senates have not fulfilled their constitutional responsibilities. But this is not excuse for ducking the question. In sum, the text and history of the Constitution suggest that the Senate has a duty to give advice and consent in a timely fashion. Although the constitution does not provide a period of days, the relationship between the Advice and Consent Clause and the Recess Appointments Clause suggests that the Senate’s constitutional duty should be fulfilled during the session in which the nomination is made. The current Senate Rules permit a determined minority to breach that Constitutional duty through a filibuster. The Senate can cure this constitutional defect by amending its rules in a variety of ways. The Senate might provide that debate can be closed by a simple majority vote after a reasonable period of time has elapsed, or the Senate might provide that nominations will come to the floor automatically within a specific number of days after submission. There is, of course, another route by which the Senate could fulfill its constitutional duty to give advice and consent in a timely fashion. The Minority could end the filibuster voluntarily. In the long run, this course might be the wisest. Amending the rules over the objection of the minority will do little to restore the spirit of cooperation that is vital to the Senate’s role as the “cooling plate” for the “hot tea” produced by the House. Thank you for the opportunity to submit this letter. Sincerely yours, Lawrence B. Solum Professor of Law


 
A Valuable Website My colleague, Adam Kolber, did me the very great favor of bringing this website to my attention: Conference Alerts. Basically, it is a worldwide, multidisciplinary listing of academic conferences. Among its nifty features is the ability to subscribe:
    Receive free e-mailed updates of conferences matching your interests, available dates and preferred destinations. Click on 'Subscribe' to stay up to date with what's happening in your field.
Check it out!


 
Legal Theory Bookworm The Legal Theory Bookworm recommends Lack of Character: Personality and Moral Behavior by John M. Doris--just out in paperback. Here is a description:
    This book is a provocative contribution to contemporary ethics and moral psychology, challenging fundamental assumptions about character dating to Aristotle. John Doris draws on an array of social scientific research, especially experimental social psychology, to argue that people often grossly overestimate the behavioral impact of character and grossly underestimate the behaviorial impact of situations. Circumstance, Doris concludes, often has extraordinary influence on what people do, whatever sort of character they may appear to have. He then considers the implications of this observation for a range of issues in ethics, arguing that with more realistic picture effect, cognition, and motivation, moral psychology can support more compelling ethical theories and more humane ethical practices.
And a brief review from Choice:
    "Lack of Character is a very important book both for psychologists and philosophers. It presents the best summary available of the psychological literature documenting the typically weak effects of personality on moral behavior and the massive effects that situations can have. The book also presents a powerful case against 'virtue ethics', which assumes that people act morally to the degree that they have certain dispositions." --Richard E. Nisbett, Theodore M. Newcomb Distinguished University Professor, Department of Psychology, University of Michigan, Ann Arbor "Adopting a new stance towards character in moral psychology as Doris suggests ought to bring a welcome revolution..." Metapshychology "Lack of Character is a very important book both for psychologists and philosophers. It presents the best summary available of the psychological literature documenting the typically weak effects of personality on behavior and the massive effects that situations can have. The book also presents a powerful case against philosophical 'virtue ethics,' which assumes that people act morally to the degree that they have certain dispositions. Richard E. Nisbett, Theodore M. Newcomb Distinguished University Professor, Dept. of Psychology, Univ. of Michigan, Ann Arbor "Doris is a punchy, spirited and bold writer who tackles the important issue of whether we are justified in our belief that there is something called stable moral character that leads to predictable behavior... His arguments do moral psychology proponents an important service by indicating how to integrate moral philosophy with current empirical research... His work should cause quite a stir within virtue ethics circles. At the very least, it should lead to a reexamination of time-worn views about character traits and their manifestations in coherent patterns of actions." Nancy Sherman, Professor of Philosophy, Georgetown Univ. "...Lack of Character is by far the best thing I know of written on the implications of recent social psychology for philosophical discussions of virtue and character. The book refers to and assesses an extraordinarily large literature in psychology, philosophy, and beyond, and works out in considerable detail one very plausible way of thinking of ethics in the light of the facts of psychology. Gilbert Harman, Stuart Professor of Philosophy, Princeton University "In addition to presenting his ideas in a clear and jaunty way that allows undergraduates to follow him with little difficulty, Doris has written a book that will interest especially those working on moral theory.... This book is particularly appropriate for collections serving a philosophy major. Recommended."
For some thoughts about Doris's work, see my post Do Humans Have Character Traits?.


 
Downloads of the Week
    I am recommending two papers this week.
    The Cycles of Constitutional Theory First is The Cycles of Constitutional Theory by Barry Friedman. Here is the abstract:
      Constitutional theorists today are confronting a problem that always lurks, but rarely shows its potential quite this clearly. The problem is that theoretical arguments tend to cycle as the ideological composition of institutions changes. Constitutional theory, like constitutional law itself, cannot avoid an ideological cast. Thus, when the Supreme Court was liberal, conservatives argued for restraint and originalism, while progressives sought to justify activist judicial review. In response to today’s conservative Court, progressive and conservative scholars have switched sides. Constitutional theories designed at one time, under one set of circumstances, may have less appeal at a later time, under different circumstances. Yet, can something really be called a "theory" if its application depends on the ideology of the actors applying it? This article explains that constitutional theorists confront a very real problem. If theory shifts in response to institutional ideological change, it runs the risk of looking like scholarly advocacy rather than theory. On the other hand, if theory ignores present institutional agendas, it runs the risk of irrelevance. Throughout history, constitutional scholars have confronted both of these difficulties. Although the problem is a difficult one, the article explains that there are approaches that can ameliorate it. Theorists should demonstrate humility, both about the empirical basis of their claims, and about what the future might bring. In particular, theorists ought to consider the possibility of institutional change, and develop their theories with this in mind. Contextualized and narrower theories, and theories that avoid recommending structural change, are more likely to stand the test of time.
    Judging our Ancestors And my second recommendation is Judging our Ancestors: Lessons from the Criminal Law by Eric Muller. Here is the abstract:
      How should we assess the wrongdoing of our ancestors? This is an important question in an age when slavery reparations are debated and antiterrorism policies are criticized as repetitions of the Palmer Raids shortly after World War I and the Japanese American internment of World War II. Debate about the wrongdoing of past generations typically swings back and forth from shrill denunciation to credulous justification. Credulous justification seems, at the moment, to have the upper hand: mass-market books defending the Japanese American internment, McCarthyism, and southern secession climb the bestseller lists. This essay notes that American criminal law has already worked through a problem quite similar to that of judging past generations. It is the problem of the so-called "cultural defense"—the claim tendered by immigrant defendants charged with violent crime, who maintain that they should be judged by their own cultural standards rather than this country's. The analogy to the problem of our ancestors is clear: just as a person might be excused because of where he is from, so might he be excused because of when he is from. Yet American criminal law has largely rejected the cultural defense, primarily out of a recognition that to indulge such claims is to place powerless victims—typically abused women and children—at greater risk. The essay maintains that there is no clearly better reason for us to indulge claims for contextual excuse on behalf of those who come to us from another time than those who come to us from another place.
    Download them while their hot!


Friday, March 11, 2005
 
Friday Calendar
    Georgetown International Legal Theory Colloquium: Andrew Guzman, Boalt Hall, University of Cal. at Berkeley, "The Design of International Agreements".
    Oxford Globalisation & Sustainable Development Law Group in conjunction with Centre for International Sustainable Development Law: Ms Christine Frison (Belgium), Access and Benefit Sharing in the International Treaty on Plant Genetic Resources for Food and Agriculture and Sustainable Development.
    UCLA School of Law: Margo Schlanger, Washington University school OF law, "Damage Action Deterrence".
    Australian National University RSSS: Alan Hájek (RSSS), TBA


 
Book Announcement: The Common Law Tradition
    THE COMMON LAW TRADITION: A Collective Portrait of Five Legal Scholars by George W. Liebmann “George Liebmann’s skillful blending of biography and legal history makes The Common Law Tradition a must-read book for anyone who wants to understand the development of American law in the twentieth century. His analysis of the values that animated his five protagonists also prompts reflection on the qualities of mind and character that are needed to sustain the rule of law in a democratic republic.” —Mary Ann Glendon, Learned Hand Professor of Law, Harvard University This book commemorates a place and a time in American law teaching, but more importantly, an outlook: the common law tradition. That outlook was empirical and tolerant. These values were carried into expression by a group of people who were not part of a cult or faction nor ruled by the herd instinct. In The Common Law Tradition George W. Liebmann has prepared a collective portrait of five scholars who epitomize the tradition. The focus is Chicago in the 1960s, when the “law and economics” movement occupied a rather minor place. The five figures considered—Edward H. Levi, Harry Kalven, Jr., Karl Llewellyn, Philip Kurland, and Kenneth Culp Davis—did much to broaden the perspectives of the legal academy. Levi made use of sociology, economics, and comparative law. Kalven collaborated with sociologists on the Jury Project and with economists on tax law and auto compensation plans. Llewellyn’s commitment to empirical research underpinned his work on the Uniform Commercial Code. Kurland’s approach to constitutional law was highlighted by his insistence on the relevance of legal history. Davis was an energetic comparativist in his work on administrative law. What distinguished these Chicagoans is that their work was practical and rooted in the law, and hence yielded concrete applications. The group’s diversity, the tolerant atmosphere in which they taught and wrote, and the attachment of its individual members to empirical approaches differentiate them from today’s legal scholars and make their ideas of continuing importance. The Common Law Tradition examines these figures’ lives and achievements, and assesses the extent to which their immediate agendas were realized. In a year devoted to celebration of the constitutional heroics instigated by Brown v. Board of Education, this book provides a reminder of what has been lost during the last fifty years: a consensual, gradualist, and empirical approach to law reform. George W. Liebmann is a Baltimore lawyer in private practice with the firm of Liebmann and Shively, P.A. He has been Simon Industrial and Professional Fellow at the University of Manchester and Visiting Fellow at Wolfson College, Cambridge. He is the author of many works, including Maryland District Court Law and Practice, The Little Platoons, and Neighborhood Futures, published in a paperback edition by Transaction. ISBN: 0-7658-0281-3; Cloth; 375 pages; $59.95/£44.50/$73.95Can $47.95/£35.95/$59.50Can; 2005


 
Hollander-Blumoff & Bodie on Jury Ignorance About Damage Caps REBECCA E HOLLANDER-BLUMOFF (New York University - School of Law) and MATTHEW T. BODIE (Hofstra University - School of Law) have posted The Effects of Jury Ignorance About Damage Caps: The Case of the 1991 Civil Rights Act (Iowa Law Review, Forthcoming) on SSRN. Here is the abstract:
    The 1991 Civil Rights Act revolutionized employment discrimination litigation by allowing for compensatory and punitive damages. At the same time, however, the Act capped those damages and forbade courts from informing jurors about the cap. This Article explores the effects of this imposed secrecy on the jury deliberation process and on the jury system itself. First, our article delves into the wealth of psychological literature about jury decision-making to determine how disclosing or hiding the caps might affect the jury's damage calculations. We explore decision-making biases and heuristics that might systematically affect the jurors' judgment about damage awards, and discuss how those awards might be changed if jurors were informed of the caps. Second, we discuss the potential effects that such secrecy has on perceptions of the legitimacy and fairness of the jury system, through its impact on parties, attorneys, and jurors. We conclude, in light of relevant psychological literature, that disclosure of the caps is likely to affect the jury's decision-making process, but that non-disclosure has the potential to threaten the integrity of the jury system more broadly, because hiding the caps could result in a failure of procedural justice that would affect the integrity of the judicial process. Ultimately, we argue that disclosing the caps, particularly if included within a framework of additional information about the purpose of compensatory and punitive damages, would result in better jury awards and more public satisfaction with the judicial system.


 
Tiersma on Precedent Peter Tiersma (Loyola Law School (Los Angeles)) has posted The Textualization of Precedent on SSRN. Here is the abstract:
    Statutes have long been regarded as quintessentially written law. In contrast, the other main source of law in a common-law system, judicial opinions or precedents, have traditionally been extolled as lex non scripta, or "unwritten law," even though cases have been reported in writing since the thirteenth century. In fact, it is true that the common law was traditionally unwritten in an important way. For many hundreds of years, English judges expressed their opinions orally; those opinions were only later summarized in writing by a reporter, and sometimes not reported at all. Even today, precedential opinions may be delivered orally in England, and they are, moreover, often delivered seriatim. Because there may be no clearly authoritative text of a judicial opinion, the nature of English precedent remains relatively conceptual. In such a system, the ratio decidendi, or holding, of a case is something that must be deduced by reasoning rather than by close analysis of the text. In the United States, on the other hand, precedent has become far more textual as a result of judicial innovations such as requiring judges to write their opinions, elimination of seriatim opinion delivery, the appointment of official reporters, and the increasing availability of verbatim copies of the judge's opinion. Additionally, appellate courts have started to express their holdings in formulaic or canonical fashion, which results in language that resembles the authoritative texts produced by legislatures. Lawyers and judges are consequently interpreting opinions in more textual ways. A related development is the adoption by many state and federal courts of rules that designate only certain appellate opinions for publication, thus entailing that only those opinions are binding precedent. Opinions not designated for publication have been reduced to persuasive status or may not be cited at all. Recently, there has been a counter-movement that aims to allow all cases to once again be cited as authority. If adopted, such a measure might return us to an earlier state of the common law, where all cases were precedents, but where the value of a precedent was variable, depending on factors such as the prestige of the judges, the strength of their reasoning, or the number of other cases reaching a similar result. The attraction of this proposal is its potential to detextualize precedent by affording judges greater flexibility to reinterpret earlier cases. In reality, however, changes in the profession (the vastly increasing numbers of lawyers and judges), as well as technological innovations (especially the development of large on-line databases of cases) make it likely that allowing all cases to function as precedents will only further textualize the common law. The textualization of precedent has some real advantages in a large and relatively bureaucratic jurisdictions, particularly in promoting the rule of law. At the same time, it reduces the flexibility of courts that must apply the rules. In writing their opinions, judges should therefore carefully consider just how textual their holdings ought to be.
This is an important treatment of a fascinating topic. More on this next week, but meanwhile, Highly Recommended!


 
Erichson on the Inevitability of Mass Aggregate Litigation Howard M. Erichson (Seton Hall School of Law) has posted Mississippi Class Actions and the Inevitability of Mass Aggregate Litigation" on SSRN. Here is the abstract:
    Mass disputes happen, and lawyers on both sides handle such matters collectively rather than individually. With or without the judicial imprimatur of class certification, multi-claimant disputes routinely are litigated and resolved on a collective basis. Mississippi declined to adopt a class action rule in order to avoid the burdens, controversies, and complexities of mass aggregate litigation, but mass aggregate litigation in Mississippi happened anyway. The real question is not whether there will be mass litigation, but whether it will be subject to formal safeguards and judicial supervision. This article explains why Mississippi needs a class action rule by comparing the class action to its realistic alternatives. The Mississippi experience confirms that a prohibition on class actions channels mass disputes into other modes of formal and informal aggregate dispute resolution, some of which are inferior mechanisms to class actions for resolving mass disputes.
Very interesting paper. Highly recommended!


 
Ambrams on Legal Feminism & the Emotions Kathryn R. Abrams (University of California, Berkeley - School of Law (Boalt Hall)) has posted Legal Feminism and the Emotions: Three Moments in an Evolving Relation (Harvard Womens Law Journal, Forthcoming) on SSRN. Here is the abstract:
    This paper examines the trajectory of the relation between feminist legal theory on the one hand, and scholarship on law and the emotions, on the other. It asks whether these two bodies of work, once tightly intertwined because feminist (legal) scholars considered emotion 1) to provide a unique window on women's distinctive circumstancies and identities; or 2) to provide a basis for critiquing objectivist epistemologies, both in law and in other disciplines, still enjoy a close and mutually constitutive relationship, as feminist legal theory has become more constructivist in its orientation. Although the paper argues that, in this constructivist period, feminist legal theory and scholarship on law and the emotions have had a looser and more continent relationship, there is still potential for a fruitful relation, in scholarship emphasizing the social construction of the emotions, and in work highlighting the interiority of the decentered, constructivist subject.
Abrams did this very interesting paper at San Diego not too long ago. Take a look!


 
Robinson on Criminal Justice in the Information Age Paul H. Robinson (University of Pennsylvania Law School) has posted Criminal Justice in the Information Age: A Punishment Theory Paradox (Ohio State Criminal Law Journal, Vol. 1, 2004) on SSRN. Here is the abstract:
    This paper suggests how the information age might produce high capture and conviction rates and speculates on the effect of such developments on the criminal justice system's punishment theory. The low rate at which offenders presently are punished makes a deterrent threat of official sanction of limited effect. With a high punishment rate, however, a distribution of liability and punishment based upon a deterrence principle might, for the first time, make sense. On the other hand, the greater deterrent effect might eliminate crime as a serious social concern. And, without the pressure of a serious crime problem, the theory for distributing punishment might revert to distribution based upon community notions of desert, with social science research suggests is the lay person's default distributive principle. (Even a desert distribution of punishment would convey a strong deterrent in a world of high conviction rates.) In other words, the success of deterrence might paradoxically pave the way for its demise and for the domination of desert as the operating theory for the distribution of punishment.


Thursday, March 10, 2005
 
Black, Silver, Hyman, and Sage on the Medical Malpractice "Crisis" BERNARD S. BLACK (University of Texas at Austin - School of Law; University of Texas at Austin - Red McCombs School of Business), CHARLES SILVER (University of Texas Law School), DAVID A. HYMAN (University of Illinois College of Law), and WILLIAM M. SAGE (Columbia Law School) have posted Stability, Not Crisis: Medical Malpractice Claim Outcomes in Texas, 1988-2002 on SSRN. Here is the abstract:
    Using a comprehensive database of closed claims maintained by the Texas Department of Insurance since 1988, this study provides evidence on a range of issues involving medical malpractice litigation, including claim frequency, payout frequency, payment amounts, defense costs, and jury verdicts. The data present a picture of remarkable stability in most respects and slow, predictable change in others. We find no evidence of the medical malpractice crisis that produced headlines over the last several years and led to legal reform in Texas and other states. The rapid changes in insurance premiums that sparked the crisis appear to reflect insurance market dynamics, largely disconnected from claim outcomes. Controlling for population growth, the number of large paid claims (over $25,000 in real 1988 dollars) was roughly constant from 1991-2002. Controlling for the quantity of health care delivered (based either on real health care spending or number of physicians), the frequency of large paid claims declined over this period. The number of small paid claims declined sharply. Payout per claim on large claims was constant over 1988-2002, while jury awards were constant or even declined. Real defense costs rose at 4.4% per year, and produced an average 1% annual increase in the real total cost to insurers per large paid claim. Jury verdicts showed no significant trend.
Download it while its hot!


 
Blogger Problems I could not get blogger (the back engine for blogspot) to post this morning. My apologies for the late posting of the calendar. Remember, you can always access the calendar for the whole week by scrolling down to Sunday.


 
Barnett on Entry-Level Legal Academic Jobs Randy Barnett comments on this topic over at the Conspiracy:
    But I wanted to make the point that, while no one credential is essential, the more you have the better are your chances (though there are still no guarantees). The best ways to increase your odds is (a) do very well in your first year and then try to graduate with honors (b) consider transferring to a higher status law school, (c) compete for law review and if you don’t make it join an alternative journal, (d) write a publishable piece while on the journal (the failure to do so is taken as a negative sign), (e) apply for a federal clerkship, (f) take a more prestigious job after graduation, (g) specialize in a field that is always in demand and is considered less political–like corporations or tax (h) WRITE A PUBLISHED SCHOLARLY ARTICLE in your field [CORRECTION: MAKE IT TWO ARTICLES], (i) consider getting an SJD or LLM from a higher status school than your JD, (j) consider applying for Visiting Assistant Professor programs that give you the opportunity to teach and write. Oh yes, you should TALK IN CLASS and see your professors outside of class so they get to know you and can be knowledgeable references for you. Strongly consider identifying the more successful scholars on your law school’s faculty and apply to be their research assistant for the summer between your first and second year. This will enable them to advise you and go to bat for you when the time comes. And you will get to observe first hand how a productive scholar works, which will give you something to emulate. If you really want a teaching job, then you should be willing to extend yourself to get it.
Right on the money--except that the magic number for publications is THREE not two. "Why three?" you ask. Because the AALS form that you will need to fill out leaves room for exactly three articles & you want to have a post-graduation article for each of the three spaces. The hardest part of the process is getting past the initial screen--when members of faculty appointments committees read hundreds and hundreds of AALS forms. Increasingly, their eyes seek out the part of the form with the three publications--so you want to make your best impression right at that moment!
Update: The above advice--like Barnett's--is intended for those without stellar credentials. If you went to a top three law school, have a PhD or Supreme Court clerkship, and great recommendations from academic stars, then you certainly don't need three post-graduation publications. On the other hand, if you went to a law school outside the top fifty, didn't clerk, and don't have any degree besides the JD, think seriously about publishing BEFORE you go on the job market.


 
Thursday Calendar
    UC Berkeley, Workshop in Law, Philosophy, and Political Theory: Christopher Kutz, Berkeley, THE DIFFERENCE UNIFORMS MAKE: COLLECTIVE VIOLENCE IN CRIMINAL LAW AND WAR. Here is a taste:
      The wars in Iraq and Afghanistan have put front and center the problem of dealing with non-uniformed combatants. They have also made central profound questions of the legitimacy of resorting to martial violence, and responsibility for picking up the pieces thereafter. I argue here that the special problem of non-uniformed combatants and the general problem of justifying war are profoundly linked. War, I shall argue, is but one form of a more general species: collective violence. Collective violence poses a particular set of challenges to the application of moral principles. In what follows, I identify a conflict between two themes in our response to collective violence. I call these themes of inculpation and exculpation. I illustrate these themes with three stories derived from actual events.
    UCLA Legal Theory Workshop: Lawrence G. Sager, University of Texas School of Law, Equal Liberty. Here is a taste:
      In this Chapter, we elaborate an alternative understanding of religious freedom that incorporates these equality principles. The model, which we call “Equal Liberty,” has three distinct components. First, it insists in the name of equality that no members of our political community ought to be devalued on account of the spiritual foundations of their important commitments and projects. Religious faith receives special constitutional solicitude in this respect, but only because of its vulnerability to hostility and neglect. Second, and again in the name of equality, Equal Liberty insists that aside from this deep and important concern with discrimination, we have no constitutional reason to treat religion as deserving special benefits or as subject to special disabilities. Finally, Equal Liberty insists on a broad understanding of constitutional liberty. It demands that all persons enjoy rights of free speech, personal autonomy, associative freedom and private property that, while neither uniquely relevant to religion nor defined in terms of religion, will allow religious practice to flourish. We will refer to Equal Liberty’s first two components as its anti-discrimination and neutrality principles, respectively, and its third component as its general liberty principle.
    Fordham University School of Law: Julie E. Cohen, Professor of Law, Georgetown University Law Center, "Cyberspace as/and Space".
    Loyola Marymount University, Loyola Law School: Patrick B. Crawford, Tax Fellow and Adjunct Professor of Law, Loyola Law School, "Kant's Critique of Welfarism (and related doctrines) in the Law" (A Reply to Kaplow and Shavell's Fairness versus Welfare).
    Northwestern Tax: Ajay Mehrotra, Associate Professor of Law, University of Indiana, TBA.
    University of Bremen, Germany: Social Justice in a Changing World:
      Social Justice in a Changing World March 10 - 12, 2005 University of Bremen http://www.gsss.uni-bremen.de/socialjustice/ Welcome to the "Social Justice" Conference at the Graduate School of Social Sciences at the University of Bremen, Germany, to take place March 10-12th, 2005. Researchers working in GSSS' three thematic fields of Transnational Relations and Political Theory, The Modern Welfare State and Social Change, Population Dynamics and the Life Course have come together to conceive an interdisciplinary conference designed to explore contemporary social and political processes of internationalization and privatization and their implications for social justice. 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 privatised markets and transnational regimes for social justice on different levels.
    St. John’s University Law School: Brad Wendel (Cornell), “Legal Ethics and the Separation of Law and Morals”


 
Conference Announcement: Third International Conference, Cyberspace 2005
    www.cyberspace.law.muni.cz Call for papers (printable version at http://www.cyberspace.law.muni.cz/en/call4papers-EN.pdf) CYBERSPACE 2005 CONFERENCE www.cyberspace.law.muni.cz Brno, Czech Republic November 7–8, 2005 organized by Faculty of Law in cooperation with School of Social Studies Masaryk University Paper abstracts are solicited for submission to the following workshops of III. International Conference Cyberspace 2005: 1)e-government, e-justice (chaired by JUDr. Danuše Spacilova) 2)philosophy and sociology of cyberspace (chaired by Mgr. et Mgr. Martin Skop, Ph.D.) 3)psychology and internet (chaired by PhDr. David Smahel, Ph.D.) 4)law in cyberspace (chaired by JUDr. Radim Polcak) 5)crime and security in cyberspace (chaired by prof. ing. Vladimir Smejkal, CSc.) 6)regulatory framework of electronic communications (chaired by RNDr. Bohumir Stedron, CSc.) Authors of accepted papers will be asked to present them and/or to make them available for publication in conference proceedings. Authors of accepted papers will be provided with free accommodation, conference meals and admission to all conference events. All accepted papers will be peer refereed. Each submission requires author names, affiliations, addresses and e-mail addresses, the applicable topic and paper abstract. For papers with more than one author, indicate which author will serve as the point of contact. Important dates --------------- Abstracts submission due: May 31, 2005 Notice on acceptance due: June 30, 2005 Accepted papers due: August 31, 2005 Peer reference due: September 31, 2005 Camera-ready papers, visuals due: October 20, 2005 Final proceedings contributions due: November 30, 2005 Abstract formal requirements ---------------------------- Language: English, Czech, Slovak Range: max. 1.500 characters Format: any common text format (.doc, .rtf, .txt) Media: mail to cyberspace@law.muni.cz Contact ------- Address: Masaryk University in Brno Faculty of Law Department of Legal Theory Veve?í 70 611 80 Brno, Czech Rep. Phone: +420–549–496–445 Central address: cyberspace@law.muni.cz Web page: www.cyberspace.law.muni.cz Organizational board -------------------- JUDr. Radim Polcak, general chair prof. ing. Vladimir Smejkal, CSc. associate chair PhDr. et Mgr. David Smahel, Ph.D. associate chair JUDr. Danuse Spacilova organizational chair doc. JUDr. Vera Kalvodova, CSc. academic chair Mgr. et Mgr. Martin Skop, Ph.D. publication chair Mgr. Jakub Macek publicity chair Programme Committee ------------------- PhDr. Jan Cincera, Ph.D. (Liberec, CZ); prof. Dr. Ludwig Gramlich (Chemnitz, D); prof. JUDr. Jan Hurdik, CSc. (Brno, CZ); prof. JUDr. Dalibor Jilek, CSc. (Brno, CZ); doc. JUDr. Vera Kalvodova, CSc. (Brno, CZ); JUDr. Radim Polcak (Brno, CZ); prof. ing. Vladimir Smejkal, CSc. (Praha, CZ); JUDr. Danuše Spacilova (Brno, CZ); Dr. Dan Svantesson, Ph.D. (Gold Coast, Aus); PhDr. et Mgr. David Šmahel, Ph.D. (Brno, CZ); Mgr. et Mgr. Martin Skop, Ph.D. (Brno, CZ); RNDr. Bohumir Stedron, CSc. (Praha, CZ); prof. JUDr. Ivo Telec, CSc. (Brno, CZ); JUDr. Zden?k Vanicek (Praha, CZ); Dr. Irini Vassilaki, PD Dr. (Feldafing, D); doc. PhDr. Zbynek Vybiral, Ph.D. (Brno, CZ); prof. Dr. Andreas Wiebe, LL.M. (Wien, A)


 
Lemley on the Meaning of Patent Claims Mark A. Lemley (Stanford Law School) has posted The Changing Meaning of Patent Claim Terms on SSRN. Here is the abstract:
    In order to construe the claims of a patent, the court must fix the meaning of the claim terms as of a particular point in time. Both the knowledge of the PHOSITA in a particular field and the meaning of particular terms to that PHOSITA will frequently change over time. But at which point in time shall we fix the meaning of the claims? It is a fundamental principle of patent law that the time at which we determine the meaning of claim terms varies depending on what legal rule is at issue. Where the question is one of novelty or nonobviousness - whether the invention is truly new - the courts compare the patented invention to the prior art as both were understood at the time of the invention. Where the question is one of enablement or written description - whether the inventor understood and described the invention in sufficient detail - courts evaluate the adequacy of the disclosure based on the meaning of the claims at the time the patent application was filed. Where the question involves the meaning of a special patent claim element called a "means-plus-function" claim, courts evaluate the scope of that claim element at the time the patent issues. And where the question involves alleged infringement of the patent, courts evaluate infringement in at least some circumstances based on the meaning of the claim at the time of infringement. An equally fundamental principle of patent law is that patent claims must be construed as an integrated whole. In particular, patentees (or accused infringers, for that matter) are not permitted to argue that a patent claim means one thing when it comes to validity and something else entirely when it comes to infringement. Instead, courts give claims a single meaning in any given case, engaging in only one act of claim construction for any given patent. These two principles contradict each other. In this paper, I seek to resolve this conflict. In Part I of this paper, I document the distinguished pedigree of both principles. In Part II, I argue that patent claim terms should have a fixed meaning throughout time, and that that meaning should be fixed at the time the patent application is first filed. Part II also discusses some complications that arise as a result of the prosecution process, and how to deal with the problem of later-developed technology.


 
Esper & Keating on Duty Dilan A. Esper and Gregory C. Keating (Stein & Flugge and University of Southern California Law School) have posted Abusing 'Duty' on SSRN. Here is the abstract:
    Black-letter law has it that "duty" - the first element of a prima facie case of negligence in tort - is a nonissue in most cases. "Duty" fixes the legal standard applicable to the conduct in question and that standard is generally the tort obligation to exercise reasonable care for the protection of those who might foreseeably be endangered by one’s actions. Commentators from Oliver Wendell Holmes to the drafters of the pending Restatement Third of Torts have recognized a general duty not to subject others to unreasonable risk of physical harm as the very foundation of modern negligence law. Courts from the time of Heaven v. Pender and MacPherson v. Buick on have affirmed their claim. Because the obligation to exercise reasonable care is a pervasive one, "duty" is only an issue in special cases - in cases where the legal standard applicable to the kind of conduct at issue must be tightened, relaxed, or suspended. Contemporary California courts, however, are in the midst of unsettling a century's worth of doctrine by making "duty" a live issue in every case. This paper explores and criticizes their efforts. We argue that the contemporary use of "duty" doctrine by the California courts has three effects. First, it reconfigures the division of labor among tort, contract and property in a way which is both haphazard and undesirable. Haphazard because the reconfiguration is fact-specific ruling by fact-specific ruling. Undesirable because these decisions chip away at the twin revolutions of Buick v. MacPherson Motor Co., and Rowland v. Christian. To the extent that the rash of "no duty" decisions in contemporary California form a larger figure in the carpet of California tort law, they give the free use of property and freedom of contract priority over the safety and physical integrity of the person. This is exactly backwards: No sane person values her property or her economic interests more than her life and it is indefensible partiality to value one's own property or economic interests more than someone else's life. Second, the contemporary use of "duty" doctrine by the California courts upsets the division of labor between judge and jury in an arbitrary and incoherent way. Traditional "duty": doctrine assigns the task of law articulation to judges and task of law application to juries. Making "duty" a live issue in every case makes hash of this coherent and principled division of labor, puts nothing in its place and, indeed, precludes a principled division of labor between judge and jury. Third, the practice of making "duty" a contestable issue in every case involves a conceptual contradiction. "Duty" cannot be up for grabs in every case, because the legal standard governing conduct cannot be up for grabs in every case. The cure for what ails California law is to return "duty" doctrine to its proper, categorical role of fixing the legal standard applicable to the conduct at hand. "Duty" should be a nonissue in most cases of physical injury because, as the California legislature long ago decreed, "the general rule" is and ought to be that "all persons have a duty to use ordinary care to prevent others from being injured as a result of their conduct."


 
Persily & Anderson on Direct Legislation in Election Law Reform Nathaniel Persily and Melissa Anderson (University of Pennsylvania Law School and University of California, Berkeley) have posted Regulating Democracy Through Democracy: The Use of Direct Legislation in Election Law Reform (Southern California Law Review, 2005) on SSRN. Here is the abstract:
    The study examines a wealth of election law reforms - term limits (for governor and state legislators), campaign finance reform (contribution limits and public funding), redistricting (pre-Baker v. Carr and creation of commissions), creation and regulation of primaries, and women's suffrage - to figure out whether differences exist between the election law regimes in initiative and non-initiative states and whether these differences (if any) might be attributed to the use of the initiative process. We find that in very few cases - legislative term limits and perhaps redistricting commissions - do initiative states differ noticeably from non-initiative states, and in most initiative states election reforms pass through normal legislative means. However, in some cases,such as with contribution limits, laws passed through the initiative process differ in character from those passed through the legislature.


 
Gulati, Rachlinski, & Langevoort on Fraud by Hindsight G. Mitu Gulati , Jeffrey J. Rachlinski and Donald C. Langevoort (Georgetown University Law Center , Cornell Law School and Georgetown University Law Center) have posted Fraud by Hindsight on SSRN. Here is the abstract:
    In securities-fraud cases, courts routinely admonish plaintiffs that they are not permitted to rely on allegations of "fraud by hindsight." In effect, courts disfavor plaintiffs' use of evidence of bad outcomes to support claims of securities fraud. Disfavoring hindsight evidence appears to tap into a well known, well-understood, and intuitively accessible problem of human judgment of "20/20 hindsight." Events come to seem predictable after unfolding, and hence, bad outcomes must have been predicted by people in a position to make forecasts. Psychologists call this phenomenon the hindsight bias. The popularity of this doctrine among judges deciding securities cases suggests that judges actively seek techniques that enable them to correct for psychological biases that might otherwise affect their decision-making. This paper assesses the hypothesis that judges have adopted the "fraud-by-hindsight" doctrine so as to avoid erroneous judgment infected with the hindsight bias. We find that although judges have identified a real problem in human judgment, they are not developing a doctrine to remedy the influence of hindsight on judgment. Rather, they are using this problem of human judgment as the justification for expanding their authority to manage the complex, high-stakes securities cases that come before them. The result provides judges with the greater case-management authority they seek, but leaves the securities litigation without a meaningful doctrine to ameliorate the influence of hindsight on judgment.


Wednesday, March 09, 2005
 
Friedman on the Cycles of Constitutional Theory Barry Friedman (New York University School of Law) has posted The Cycles of Constitutional Theory (Law and Contemporary Problems Vol. 67, p. 149, 2004) on SSRN. Here is the abstract:
    Constitutional theorists today are confronting a problem that always lurks, but rarely shows its potential quite this clearly. The problem is that theoretical arguments tend to cycle as the ideological composition of institutions changes. Constitutional theory, like constitutional law itself, cannot avoid an ideological cast. Thus, when the Supreme Court was liberal, conservatives argued for restraint and originalism, while progressives sought to justify activist judicial review. In response to today’s conservative Court, progressive and conservative scholars have switched sides. Constitutional theories designed at one time, under one set of circumstances, may have less appeal at a later time, under different circumstances. Yet, can something really be called a "theory" if its application depends on the ideology of the actors applying it? This article explains that constitutional theorists confront a very real problem. If theory shifts in response to institutional ideological change, it runs the risk of looking like scholarly advocacy rather than theory. On the other hand, if theory ignores present institutional agendas, it runs the risk of irrelevance. Throughout history, constitutional scholars have confronted both of these difficulties. Although the problem is a difficult one, the article explains that there are approaches that can ameliorate it. Theorists should demonstrate humility, both about the empirical basis of their claims, and about what the future might bring. In particular, theorists ought to consider the possibility of institutional change, and develop their theories with this in mind. Contextualized and narrower theories, and theories that avoid recommending structural change, are more likely to stand the test of time.
Very interesting and well-argued paper! This is a topic which has long interested me. I think I am in almost absolutely complete disagreement with Friedman when it comes to "approaches that can ameliorate" the cylces. Contextualized and narrow theories are fine; they have their place. But the enterprise of constructing large-scale theories of the constitution is an important one; it would be irresponsible for constitutional scholars to ignore the "big picture." The solution, it seems to me, is for normative constitutional scholarship to refocus on a search for truth and therefore to "ignore[] present institutional agendas". This does not make constitutional theory irrelevant--but it may lead some constitutional scholars to conclusions that are politically uncomfortable. That result, it seems to me, would be a good and not an evil. Highly recommended. Download it while its hot!


 
Conference Announcement: Persons and Society
    International Congress of Philosophy Person and Society: Perspectives for the Twenty-First Century Braga, Portugal: November 17-19, 2005 In the tradition inaugurated by the organization of the First National Congress of Philosophy in 1955 and the First Luso-Brazilian Congress of Philosophy in 1981, the Faculty of Philosophy (Braga) of the Catholic University of Portugal and the Revista Portuguesa de Filosofia plan to host an International Congress of Philosophy in November, 2005. In the very year in which we shall celebrate the centenary of Emmanuel Mounier’s, Jean-Paul Sartre’s and Emmanuel Levinas’s births as well as the first 150 years after the death of Sören Kierkegaard and 50 after the deaths of Pierre Teilhard de Chardin and Albert Einstein, the Congress wishes to offer the occasion to bring into discussion the great philosophical questions concerning the nature of the human person and his/her place in society and the cosmos. Besides those who are involved directly in the study and teaching of philosophy, the Congress would like to address the interests of theologians, jurists, educators, psychologists, as well as researchers in the natural and human sciences. The aim is to reaffirm the ongoing relevance of the philoso­phi­cal issues that every generation is obliged to confront anew and differently. For this reason, the Congress seeks to explore, taking into account both the historical and the phenome­no­logical dimensions of the problem, the perspectives on the human person for the twenty-first century according to the following thematic areas: Anthropology Art and Communication Economy and Politics Ethics and Justice Gender Questions History of Ideas Metaphilosophy Mind and Body Multiculturalism Ontology and Metaphysics Phenomenology and Hermeneutics Philosophy and Literature Problems in Bioethics Religion and Culture Science and Technology Society of Information The languages used in the addresses given in the Congress by its participants will be Portuguese, English, Spanish, French and Italian; the organization will try to provide translations of the addresses given by the invited speakers. In each of the three days, there will be plenary sessions and symposia proffered by internationally known thinkers. In addition, there will be parallel sessions for those who wish to give a paper in the domain of one of the above-mentioned thematic areas. With the understanding that the presenta­tion of these papers is not to exceed 15-20 minutes, the organization asks those inte­rested to send a summary of a proposal (300 words maximum) until April 15, 2005. The organization further requests that a complete text of the accepted proposals be sent until September 15, 2005. A selection of these texts will be published. The costs for participa­tion will be the following (registration before October 15; after that, please, add 20 Euros): 50 Euros for professionals; 20 Euros for students (undergraduates). For further information, please contact: João J. Vila-Chã, PhD. Faculdade de Filosofia Praça da Faculdade 1 P – 4710-297 Braga e-mail: jvila-cha@facfil.ucp.pt PORTUGAL


 
Tuesday Calendar
    Oxford Jurisprudence Discussion Group: Zofia Stemplowska, The Significance of Responsibility to Justice.
    University College, London, Colloquium in Legal and Social Philosophy: Professor Michael Martin (UCL), 'On having one's mind made up'.
    Lewis & Clark Law School: Alan Watson (University of Georgia), Comparative Law and Legal Understanding.
    NYU Legal History: Richard Bernstein, New York Law School, Beyond Cincinnatus: Thomas Jefferson and the Invention of the Ex-President and John Adams and America's War for Intellectual Independence.
    Oxford Centre for Socio-Legal Studies: Patrick Glenn, The Idea of Legal Culture, a Critical Assessment.
    Oxford Centre for Criminology: Federico Varese, Mob and Mobility – How Mafias Migrate.
    Royal Institution of Philosophy, London: John McDowell, Intention in Action


Tuesday, March 08, 2005
 
Muller on Judging our Ancestors Eric Muller (University of North Carolina at Chapel Hill - School of Law) has posted Judging our Ancestors: Lessons from the Criminal Law on SSRN. Here is the abstract:
    How should we assess the wrongdoing of our ancestors? This is an important question in an age when slavery reparations are debated and antiterrorism policies are criticized as repetitions of the Palmer Raids shortly after World War I and the Japanese American internment of World War II. Debate about the wrongdoing of past generations typically swings back and forth from shrill denunciation to credulous justification. Credulous justification seems, at the moment, to have the upper hand: mass-market books defending the Japanese American internment, McCarthyism, and southern secession climb the bestseller lists. This essay notes that American criminal law has already worked through a problem quite similar to that of judging past generations. It is the problem of the so-called "cultural defense"—the claim tendered by immigrant defendants charged with violent crime, who maintain that they should be judged by their own cultural standards rather than this country's. The analogy to the problem of our ancestors is clear: just as a person might be excused because of where he is from, so might he be excused because of when he is from. Yet American criminal law has largely rejected the cultural defense, primarily out of a recognition that to indulge such claims is to place powerless victims—typically abused women and children—at greater risk. The essay maintains that there is no clearly better reason for us to indulge claims for contextual excuse on behalf of those who come to us from another time than those who come to us from another place.
Highly recommended! But I wonder about the ultimate claim of the essay: "[T]here is no clearly better reason for us to indulge claims for contextual excuse on behalf of those who come to us from another time than those who come to us from another place." When we judge our ancestors, we are not engaged in the same practical enterprise as does the criminal law. When the criminal law establishes an excuse, that excuse can then become a conduct rule, because information about the decision rule instituttionalizing the excuse can and likely will leak to the public at large. When we judge prior generations, there is perfect acoustic separation--prior generations can never learn that we excused them. (This business about conduct rules, decision rules, and acoustic separation is from the famous essay by Meir Dan-Cohen, see this installment in the legal theory lexicon.) When we create a legal excuse, we need to be prepared to pay the price of changing conduct. When we engage in moral judgment about the conduct of a prior generation, we know that we will not pay that price.
Update: Replying to the acoustic separation point, Muler writes:
    I think your claim about "pefect acoustic separation" . . . is vastly overstated. It's quite right, of course, to say that the analogy between judging a Hmong immigrant and judging Franklin Roosevelt is imperfect. One of the ways it's imperfect is in the way you identify. But the essay's claim is not that the two instances of judging are the same; the claim is that the one instance of judging is merely similar enough to the other to slow us down in our usual rush to say that our ancestors were reasonable actors in their time and that claims to the contrary are mere anachronistic hindsight.
(See also Muller's Larry Solum on "Judging our Ancestors") But this reply seems wide of the mark. First, and quite obviously, the acoustic separation is indeed literally perfect with respect to the prior generation. Muller can't mean to question this with respect to our nonliving ancestors--absent extravagent metaphysical claims. Second, the point of the criticism is not that criminal punishment and moral evaluation are different and therefore, it follows directly that there are no relevant similarities. Rather, the criticism relies on a structural difference between moral evaluation and criminal punishment--the latter establishes conduct rules that are different in kind from those established by the former. In the essay, Muller makes the following claim:
    Finally, the risk of excusing conduct that is approved in a different culture is similar to the risk of excusing conduct that was approved at an earlier time. In both cases, the excuse endangers those who might again be victimized by the sort of behavior that first caused injury.
And this may be true, although the question whether morally excusing past generations does have behavioral effects is an empirical one. But the point of the criticism is that legal excuses have an additional effect--because of acoustic leakage, they create conduct rules and hence change behavior by eliminating the risk of punishment. If a future generation excuses my conduct, it cannot affect my payoff structure--again assuming that causation cannot operate backwards in time. Of course, I might engage in some immoral conduct based on the notion that even if I am acting badly, some future generation may decide that my conduct was excusable--but, really!, how likely is that, especially in comparison to the effect of a legal excuse that has the effect of relieving me of criminal punishment? Another point: synchronic cultural differences can in principle be bridged: I can seek to understand the values of a wider culture of which my subculture is a part. But diachronic cultural differences are not bridgeable in the same way: I cannot seek to know the culture of subsequent generations--at least not without time travel.
And for discussion in the blogosphere see Pocahontas or Robert E. Lee? and Historical Judgement and Judging Our Own Ancestors
Download it while its hot!.


 
Tuesday Calendar
    Ave Maria School of Law: Lawrence Solum, University of San Diego, Virtue Jurisprudence: An Aretaic Theory of Law. Here's an abstract:
      Contemporary legal theory in the United States has been dominated by the realist paradigm. The extreme version of realism is captured by the slogan of the critical legal studies movement: “Law is politics!” Other heirs to the realist tradition (including normative law and economics, the legal process school, legal pragmatism, and so forth) coalesce around what we might call the instrumentalist thesis—the point of legal institutions (especially courts) is to use the law as an instrument to achieve the goals of some normative theory (such as welfarism or deontology ) or a political ideology (of the left, right, or center). There are, of course, opposing tendencies in contemporary legal theory. Some neoformalists emphasize the duty of adjudicators to follow the law and give the parties what they are due; in a rough and ready sort of way, these neoformalists adopt a deontological perspective on legal theory that competes with the consequentialism of contemporary neorealists. In this paper, I sketch an alternative direction for contemporary legal theory, an approach that I call “virtue jurisprudence.” My core idea is quite simple. In moral theory, virtue ethics offers a third way—an alternative to the deontological and consequentialist approaches that dominated modern moral philosophy until very recently. What would happen if we transplanted virtue ethics into normative legal theory? This paper offers the sketch of an answer to that question.
    Oxford Legal Philosophy Colloquium 2005 (Password required for papers): Lewis & Clark Law School: Alan Watson (University of Georgia), The Shame of American Legal Education.
    Correction: Princeton Program in Law & Public Affairs: Richard Posner, Seventh Circuit, "Preventing Surprise Attacks: Intelligence Reform in the Wake of 9/11".


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


 
Vermeule on Libertarian Panics Adrian Vermeule (University of Chicago Law School) has posted Libertarian Panics (Rutgers Law Journal, Symposium Issue, Forthcoming) on SSRN. Here is the abstract:
    In a standard analysis, the history of civil liberties is characterized by a series of security panics. A range of mechanisms - cognitive heuristics and biases, various forms of cascading and herding, conformity and preference falsification, and so on - cause periodic panics in which aroused publics demand repressive measures to curtail the civil liberties of perceived enemies of the nation, particularly noncitizens or other outsiders. Government officials may themselves panic, or will at least supply the panicky measures that constituents demand. The standard remedy is to urge changes to legal doctrine or institutions, in order to curtail government's power to repress civil liberties in response to security panics. The standard model of security panics has been criticized on several grounds. Sometimes security panics are justified, even if produced by disreputable mechanisms; fear can motivate beneficial action as well as detrimental action. In any event, legal doctrines, and perhaps even institutional design, will prove incapable of constraining a genuinely panicked public. In what follows I will sketch a different criticism of the standard model. Even if that model is right as far as it goes, it is fatally incomplete. My central claim is that the mechanisms underlying security panics have no necessary or inherent pro-security valence. The very same mechanisms are equally capable of producing libertarian panics: episodes in which aroused publics become irrationally convinced that justified security measures represent unjustified attempts to curtail civil liberties. I will suggest that libertarian panics have been a regular occurrence in American history, and that we may be living through one now, in the form of a widespread and thoroughly irrational, even hysterical, reaction to small legal changes adopted after 9/11. Indeed, the tendency to diagnose the existence of a security panic can itself be symptomatic of a libertarian panic. The existence of libertarian panics undermines the institutional reforms urged by the advocates of the standard model. The very reforms that would minimize the risks and harms of security panics will maximize the risks and harms of libertarian panics. The institutional-design problem, then, is to optimize in light of these offsetting risks; whatever legal and institutional arrangements turn out to be optimal, they will necessarily prove less protective of civil liberties than the arrangements favored by advocates of the standard model.


 
Miller Maps Sentencing Marc L. Miller (Emory University School of Law) has posted A Map of Sentencing and A Compass for Judges: Sentencing Information Systems, Transparency and the Next Generation of Reform (Columbia Law Review, Vol. 105, 2005) on SSRN. Here is the abstract:
    No modern structured sentencing system provides easily accessible data describing individual sentences or dynamic sentencing patterns and practices. Limited availability of either individual or systemic data (in contrast to annual and other special reports) goes hand-in-hand with paltry efforts by state reformers to compare sentencing law and experience across states or to compare states to the federal system. The limited access to information and lack of visible efforts to craft an active sentencing reform dialogue may help to explain the undue scholarly focus on the failed federal reforms over far more positive state sentencing reform experiments. Sentencing reform everywhere can be improved if state actors make sentencing information and sentencing data publicly available and easily accessible and speak to and acknowledge other systems. One promising approach to improve sentencing systems and sentencing discourse is sentencing information systems ("SIS"). SIS depict decisions within each system and allow observers without technical data skills, including judges, to ask a variety of questions that relate to individual case decisions, assessments of particular sentencing factors, sentencing variation, sentencing process, and even sentencing purposes.


 
Hunter on Pinello Nan D. Hunter (Brooklyn Law School) has posted Federal Courts, State Courts and Civil Rights: Judicial Power and Politics (Review Essay of Daniel R. Pinello, GAY RIGHTS AND AMERICAN LAW) (Georgetown Law Journal, Vol. 92, No. 941, 2004) on SSRN. Here is the abstract:
    Daniel Pinello, a lawyer and political scientist, studied every appellate decision in a gay rights case in either federal or state court, approximately 400 in all, between 1981 and 2000. The data he amassed point to rampant anti-gay prejudice among judges. Pinello's first major conclusion is that federal courts not only were less receptive than state courts to gay rights claims, but that they were systemically hostile. This pattern is directly traceable to the political party affiliation of the President who appointed the judges in each given case. This question takes the reader directly into the longstanding debate on institutional parity: whether state court systems are on par with the federal courts in providing the appropriate level of protection for constitutional rights. Pinello's study, together with other scholarship, punctures the longstanding belief that the federal judiciary with its guarantee of lifetime tenure is less susceptible than state courts to ideological manipulation. What in the past has been an accepted starting point for debates over whether parity is a myth, as Burt Neuborne argued, now amounts to a myth of insulation. Pinello's second institutional claim is that the personal policy preferences of judges control the outcome of cases almost as much as law does. GAY RIGHTS AND AMERICAN LAW seeks to build upon what is now a substantial body of empirical literature on the question of whether judges' personal beliefs have a greater impact on judicial decisions than law does. Pinello's goal is to enrich the political science discussion with consideration of a bigger pool of possible variables that could predict judicial bias. Serious problems, however, stem from the nature of empirical work and from Pinello's approach. Many of the same factors that make gay rights cases so fertile for investigation of the relationship between law and politics also make them exceedingly difficult to fit into an empirical model. The litigation context may involve abstract principles of constitutional law or the particulars of a custody case or the technicalities of immigration law. It is not even always clear which decisions should count as "gay rights" determinations. Nor is it necessarily obvious whether to code certain cases as wins or losses. Pinello did not create these shortcomings in the method, but unfortunately he also did not entirely succeed in surmounting them. Most significantly, such a study cannot measure the structures of consciousness that shape not only what courts decide, but what lawyers argue, which cases they elect to bring, whether they appeal, and the terms upon which cases are litigated and decided. The third important feature of GAY RIGHTS AND AMERICAN LAW consists of questions left both unasked and unanswered, and these are in many ways the most interesting. Lying just beneath the surface of its text, this book poses questions about the relationship between claims of liberty and equality based on sexual orientation and a series of structural constitutional questions. The recent history of gay rights law provides a context not only for a comparison between federal and state courts, but also for understanding the evolving relationship between judicial and legislative branches in the development of civil rights laws. How judges interact with legislatures and the extent to which statutes, rather than case law, dominate the field are both important. Likewise, the tension between the executive and legislative branches over appointments to the federal bench is beginning to intersect with the politics of gay rights, and is likely to do so increasingly in the future, which will lead to heightened debates over the extent to which views on homosexuality affect a candidate's fitness to serve in the judicial branch. In my view, the most fascinating pieces of the puzzle of how and why the courts have shifted in their treatment of sexual orientation law are the ones missing from this book.


 
Conference Announcement: Agency & Causation in the Human Sciences
    International Conference on AGENCY AND CAUSATION IN THE HUMAN SCIENCES Trento (Italy), 9-11 June 2005. Scientific Organization: Edmund Runggaldier, Josef Quitterer (University of Innsbruck), Francesca Castellani, Giuliano di Bernardo (University of Trento) Confirmed speakers: Raymond Boudon (Sorbonne), Jonathan Lowe (Durham), Timothy O'Connor (Indiana), Alfred Mele (Florida), Achille Varzi (Columbia), Geert Keil (Berlin), Uwe Meixner (Regensburg) and others. For further information please consult www.unitn.it/events/agency


Monday, March 07, 2005
 
Hasen on FEC Regulation of Political Blogging Check out Rick Hasen's commentary for the Personal Democracy Forum. Here is a taste:
    The predictable blogstorm that erupted following Federal Election Commission Commissioner Bradley Smith’s C|NET News interview suggesting a "coming crackdown on blogging" should not obscure the fundamental and important questions facing the FEC: now that the Internet has become an important part of political life and campaigning in the U.S., what regulations are appropriate and constitutional? Appropriate regulation should meet two fundamental criteria: (1) grassroots activities should be regulated little, if at all; and (2) large-scale campaign activity—like advertising—that already faces regulation when done outside of the Internet should be regulated equally when the activity takes place through the Internet. The most difficult questions, as we’ll see, concern the role of popular blogs and online magazines that report on—and express opinions about—candidates for federal office. They should get a special exemption from reporting and coordination requirements, but they should have to disclose on their sites payments from candidates or committees to take a particular position in a federal race.


 
And Yet Still More on Getting at Entry Level Job in the Legal Academy Larry Ribstein, who chairs the faculty appointments committee at the University of Illinois, has some thoughts over at Ideoblog. Here is a taste:
    I look for intellectual depth, curiosity and agility and, most importantly, an urge to think and write. Normally this requires transition from practice or law school into a period of thinking, learning, and reflection, usually but not necessarily at one of the law professor training programs such as Chicago’s Bigelow. This is a good idea even for the PhD, who still has to show that he or she can make the transition to legal academia. This is pretty standard. But perhaps I am more idiosyncratic in looking also for some modesty and realism about how much the candidate has accomplished so far. One should, of course, expect the work of an entry level candidate to have some flaws. The question I try to answer is whether this person will develop and ultimately reduce or eliminate these flaws. The candidate who thinks he or she already has the theory of everything – particularly the one who’s had the misfortune to get his or her first article into Harvard – is at risk of freezing intellectually.
And Orin Kerr adds this worthwhile comment:
    [M]y relatively limited experience suggests that there is a wide gap between the success rates of candidates who are committed to getting a teaching job and those who are less committed to it. Some people express a wish to teach tempered by a number of caveats: they'll do it only if they can get a job at a top school, or only if they can be in a particular city or region. Most people who impose these sorts of restrictions give up along the way. At the same time, those who are willing to work really hard, write up a storm, and are flexible about what jobs they'll take usually end up with something eventually. Of course, it's hard to generalize on a point like this. I don't want to make it seem like anyone can be a law professor if they try hard enough; that's not true. But in my admittedly limited experience, my sense is that those who keep knocking on the door have a pretty good chance of having someone let them in.
See also:


 
Weekend Update My plea for help on the 2005 entry-level hiring report is here, with some preliminary results--this will be moved to the top of the blog from time to time. On Saturday, the Download of the Week was Canonical Construction and Statutory Revisionism: The Strange Case of the Appropriations Canon by Mathew D. McCubbins and Daniel B. Rodriguez and the Legal Theory Bookworm recommended A Court Divided: The Rehnquist Court and the Future of Constitutional Law by Mark Tushnet. On Sunday, the Legal Theory Lexicon entry was on Virtue Jurisprudence and the Legal Theory Calender previewed this weeks talks and conferences.


 
Monday Calendar
    Ave Maria School of Law: Lawrence Solum, University of San Diego, A Neoformalist Manifesto.
    Oxford Legal Philosophy Colloquium 2005 (Password required for papers): Oxford Moral Theory Seminar: Philip Stratton-Lake (Reading): 'Eliminativism about derivative prima facie duties'.
    Columbia Law & Economics: Douglas G. Baird, The University of Chicago, The Law School and Robert K. Rasmussen, Vanderbilt University Law School, "When Good Managers Go Bad: Controlling the Agents of Enterprise". Here's an abstract:
      Traditional approaches to corporate governance focus on shareholders. These approaches, however, are necessarily incomplete. Creditors play a large and growing role in corporate governance. Investors as a group rely upon creditors to craft loan covenants that ensure the business remains on track, especially when it encounters rough times. Among other things, these covenants now give creditors the power to replace under-performing managers with new ones of their own choosing. A new type of manager, the chief restructuring officer, has come into being. Picked by creditors, paid by the hour, and reporting directly to the board, the CRO occupies center stage of financially distressed businesses. Loan covenants are now the mechanism of choice to ensure that managers who lose their touch are replaced.
    Hofstra University School of Law: Edward Rubin, University of Pennsylvania Law School, "Sex, Politics and Morality".
    New York University School of Law: Herwig Schlunk (Visiting from Vanderbilt University Law School), A Lifetime Income Tax.
    Oxford University Middle Temple Society: The Rt Hon Lord Butler GCB CVO, How Law is Made.
    Oxford Social Sciences Division, Inaugural Lecture Series: Chris McCrudden, Legal research, public policy, and the social sciences.
    UCLA School of Law: Amy Zegart, UCLA School of Public Policy.
    University of Texas School of Law: Charles Silver and Bernard Black, UT School of Law, "What Medical Malpractice Crisis? Evidence on Claim Outcomes in Texas, 1988-2002"
    University of Texas School of Law: Tom Baker, University of Connecticut, "Making Sense with Numbers: The Uses and Abuses of Empirical Research on the Validity of Medical Malpractice Claims".
    George Mason University, Politics, Philosophy & Economics: Stephan Voigt, Kassel University (Germany) The Economic Effects of Judicial Accountability.
    University of Chicago Political Theory Workshop: Charles Beitz, Princeton University, Human Rights and International Toleration. Discussant: Mara Marin.
    London School of Economics, Centre for Philosophy of the Natural and Social Sciences: John Harris (Manchester), An Ethical Market for Transplant Organs.
    Stanford Center for Internet and Society and the Stanford Law and Technology Association: Daniel J. Solove, The Digital Person.


 
Fennell on Eminent Domain Lee Anne Fennell, University of Illinois College of Law, has posted Taking Eminent Domain Apart (Michigan State Law Review, p. 957, 2004) on SSRN. Here is the abstract:
    Part of a symposium on public use, this essay presents an analytic framework for eminent domain that begins by breaking condemnations into two parts: a swap of property for fair market value, and the confiscation of what I term the uncompensated increment. The uncompensated increment is made up of three distinct components: (1) the increment by which the property owner's subjective value exceeds fair market value; (2) the chance of reaping a surplus from trade (that is, of obtaining an amount larger than one's own true subjective valuation); and (3) the autonomy of choosing for oneself when to sell. Whether government can appropriate this uncompensated increment in a given instance gets to the heart of the public use inquiry. I suggest that the answer to the inquiry can be found in the same unloved and amorphous factors that determine whether other uncompensated appropriations of value amount to regulatory takings. The analytic template of regulatory takings law does a good job of grappling with important features of eminent domain fact patterns such as the degree of market thinness and the potential for political malfunction. The aim of a regulatory takings inquiry is to determine whether compensation is required in order for the government to pursue an objective that is within its legitimate compass. In the eminent domain context, compensation is already being paid; hence, one might think that the application of regulatory takings factors to the uncompensated increment would merely go to the question of whether the level of compensation ought to be adjusted upward. But there is an incommensurability problem that is suggested by the autonomy component of the uncompensated increment. At least in some subset of cases, overriding autonomy with an involuntary sale seems problematic even if the amount of compensation is adjusted upward; the extra dollars, in a sense, are the wrong currency in which to provide just compensation for a taking. I will suggest some ways to set the parameters for this autonomy-based constraint on eminent domain, and will also discuss how principles of self-assessment might be employed to overcome the difficulties associated with forced sales in situations where public use is contested.


 
Helfer & Slaughter Reply to Posner & Yoo Laurence R. Helfer and Anne-Marie Slaughter (Vanderbilt University - School of Law and Princeton University - Woodrow Wilson School of Public and International Affairs) have posted Why States Create International Tribunals: A Response To Professors Posner and Yoo (California Law Review, Vol. 93, May 2005) on SSRN. Here is the abstract:
    A recent article in the California Law Review by Professors Eric Posner and John Yoo, Judicial Independence in International Tribunals, argues that the only effective international tribunals are "dependent" tribunals, by which the authors mean ad hoc tribunals staffed by judges closely controlled by governments through the power of reappointment or threats of retaliation. Independent tribunals, by contrast, meaning tribunals staffed by judges appointed on similar terms as those in domestic courts, pose a danger to international cooperation. According to Posner and Yoo, independent tribunals are suspect because they are more likely to allow moral ideals, ideological imperatives or the interests of other states to influence their judgments. In this response, we identify the many shortcomings in the theory, methodology, and empirics in Judicial Independence in International Tribunals. We do so to challenge the authors' core conjecture: that formally dependent international tribunals are correlated with effective judicial outcomes. We then offer our own counter-theory; a theory of "constrained independence" in which states establish independent international tribunals to enhance the credibility of their commitments and then use more fine grained structural, political, and discursive mechanisms to limit the potential for judicial excesses.


 
Chorvat on Taxing Utility Terrence R. Chorvat (George Mason University School of Law) has posted Taxing Utility (Journal of Socio-Economics, Forthcoming) on SSRN. Here is the abstract:
    In order to assess the efficiency of a tax, we should examine its effect on the behavior of individuals. In general, the less a tax affects behavior, the more efficient it is thought to be. The standard example of a non-distorting tax is a lump-sum tax, which does not change with the behavior of the taxpayer. However, this article demonstrates that behavioral distortions can and do arise from a change in even a lump-sum tax. The only truly non-distortionary tax would be one based on utility itself. Utility, which has been used as a norm for distributional analysis, is also the ideal base for efficiency analysis. In fact, any reasonable attempt to describe a minimally distortive basis of taxation will significantly resemble the notion of a tax on utility. Therefore, utility itself is the best basis for evaluation of the efficiency of a tax. Such a tax has many additional features which make it more useful for analytical purposes than lump sum taxes.


 
Eichner on Fineman Maxine Eichner (University of North Carolina at Chapel Hill - School of Law) has posted Dependency and the Liberal Polity: On Martha Fineman's The Autonomy Myth (California Law Review, Vol. 93, 2005) on SSRN. Here is the abstract:
    This review essay considers Martha Fineman's provocative new book, The Autonomy Myth (2004). In it, Fineman argues that popular ideology in the United States has become fixated on the myth that citizens are and should be autonomous. Yet the fact that dependency is unavoidable in any society and must be dealt with to sustain the polity, Fineman contends, gives the state the responsibility to support caretaking. Fineman surveys a range of public policies and argues that the autonomy myth has caused the United States to fail woefully in this task. She also criticizes proposals to shore up and subsidize marriage and the marital family as misguided attempts to cabin dependency issues within families. This review essay discusses the contributions that The Autonomy Myth makes, as well as assesses Fineman's normative proposals. I argue that Fineman carries her point that dependency is a condition for which a good and just polity should assume responsibility. Fineman's conceptualizing this responsibility in terms of a debt that society owes to caregivers, however, raises particular conceptual difficulties that weaken her claim for state support. In place of Fineman's framing of this issue, I suggest that the state's responsibility should be conceived as grounded on its obligation to protect its most vulnerable citizens. This alternative conceptualization, I contend, not only provides a firmer ground for the state's duty to support caretaking, it also more clearly delineates the limits of that support in a liberal society that seeks to pursue multiple goods. The essay also situates Fineman’s proposal in context with competing feminist proposals for dealing with the issue of caretaking, and argues that the state should seek to support caretaking in a manner that encourages citizens to integrate these responsibilities with work in the labor market. Finally, this essay asserts that while Fineman is correct that the fact of dependency should cause the state to redirect much of its support toward caretaker-dependent relationships, this does not require the state to abandon civil recognition of relationships between adults, as Fineman would have it. Instead I argue that according legal status to relationships between adults can be one of the ways through which the state takes account of dependency.


 
Conference Announcement: Virtue Ethics vs. Kantian Ethics
    Description:
      The conference, to be held April 1-3, 2005, is titled Virtue Ethics vs. Kantian Ethics. It is being co-sponsored by the University of Cincinnati Department of Philosophy, the University of Cincinnati College of Law, and the Hebrew Union College. It is free and open to the public. Participants include prominent scholars of Kantian ethics and virtue ethics: Marcia Baron, Paul Guyer, Thomas Hill, Jr., Rosalind Hursthouse, Richard Kraut, Anselm Mueller, Nancy Sherman, and Michael Slote.
    Friday, April 1
      Marcia Baron, Indiana University Bloomington "Virtue Ethics and Kantian Ethics: Are they Really Incompatible?" Michael Slote, University of Miami "The Difficulty We All Have with Deontology"
    Saturday, April 2
      Anselm Müller, Universität Trier, Germany "Practical Teleology: What Aristotle Should Have Said" Nancy Sherman, Georgetown University "Aristotle, the Stoics, and Kant on Emotions" Richard Kraut, Northwestern University "Flourishing and Moral Rightness" Thomas Hill, Jr., University of North Carolina, Chapel Hill "Kant on Virtue as Strength of Moral Will"
    Sunday, April 3
      Paul Guyer, University of Pennsylvania "Kantian Perfectionism" Rosalind Hursthouse, The University of Auckland, New Zealand "Moral Knowledge in Aristotelian Virtue Ethics"
    For more information, including schedules and abstracts, visit: http://asweb.artsci.uc.edu/philosophy/news/news_EthicsConf05.html.


 
Conference Announcement: Practical Reason at Brown
    April 8-9, 2005: Practical Reason Conference Brown University Guest Speakers:
      Jesse Prinz, Associate Professor of Philosophy, UNC Thomas Scanlon, Alfred Professor of Natural Religion, Moral Philosophy and Civil Politics, Harvard Stephen Darwall, John Dewey Collegiat Professor of Philosophy, University of Michigan
    Commentators:
      Ruth Chang, Associate Professor of Philosophy, Rutgers Nadeem Hussain, Assistant Professor of Philosophy, Stanford Sigrun Svavarsdottir, Ohio State University


Sunday, March 06, 2005
 
Legal Theory Calendar
    Monday, March 7
      Ave Maria School of Law: Lawrence Solum, University of San Diego, A Neoformalist Manifesto.
      Oxford Legal Philosophy Colloquium 2005 (Password required for papers): Oxford Moral Theory Seminar: Philip Stratton-Lake (Reading): 'Eliminativism about derivative prima facie duties'.
      Columbia Law & Economics: Douglas G. Baird, The University of Chicago, The Law School and Robert K. Rasmussen, Vanderbilt University Law School, "When Good Managers Go Bad: Controlling the Agents of Enterprise". Here's an abstract:
        Traditional approaches to corporate governance focus on shareholders. These approaches, however, are necessarily incomplete. Creditors play a large and growing role in corporate governance. Investors as a group rely upon creditors to craft loan covenants that ensure the business remains on track, especially when it encounters rough times. Among other things, these covenants now give creditors the power to replace under-performing managers with new ones of their own choosing. A new type of manager, the chief restructuring officer, has come into being. Picked by creditors, paid by the hour, and reporting directly to the board, the CRO occupies center stage of financially distressed businesses. Loan covenants are now the mechanism of choice to ensure that managers who lose their touch are replaced.
      Hofstra University School of Law: Edward Rubin, University of Pennsylvania Law School, "Sex, Politics and Morality".
      New York University School of Law: Herwig Schlunk (Visiting from Vanderbilt University Law School), A Lifetime Income Tax.
      Oxford University Middle Temple Society: The Rt Hon Lord Butler GCB CVO, How Law is Made.
      Oxford Social Sciences Division, Inaugural Lecture Series: Chris McCrudden, Legal research, public policy, and the social sciences.
      UCLA School of Law: Amy Zegart, UCLA School of Public Policy.
      University of Texas School of Law: Charles Silver and Bernard Black, UT School of Law, "What Medical Malpractice Crisis? Evidence on Claim Outcomes in Texas, 1988-2002"
      University of Texas School of Law: Tom Baker, University of Connecticut, "Making Sense with Numbers: The Uses and Abuses of Empirical Research on the Validity of Medical Malpractice Claims".
      George Mason University, Politics, Philosophy & Economics: Stephan Voigt, Kassel University (Germany) The Economic Effects of Judicial Accountability.
      University of Chicago Political Theory Workshop: Charles Beitz, Princeton University, Human Rights and International Toleration. Discussant: Mara Marin.
      London School of Economics, Centre for Philosophy of the Natural and Social Sciences: John Harris (Manchester), An Ethical Market for Transplant Organs.
      Stanford Center for Internet and Society and the Stanford Law and Technology Association: Daniel J. Solove, The Digital Person.
    Tuesday, March 8
      Ave Maria School of Law: Lawrence Solum, University of San Diego, Virtue Jurisprudence: An Aretaic Theory of Law.
      Oxford Legal Philosophy Colloquium 2005 (Password required for papers): Lewis & Clark Law School: Alan Watson (University of Georgia), The Shame of American Legal Education.
      Princeton Program in Law & Public Affairs: Donald S. Bernstein, Seventh Circuit, "Preventing Surprise Attacks: Intelligence Reform in the Wake of 9/11".
    Wednesday, March 9
      Oxford Jurisprudence Discussion Group: Zofia Stemplowska, The Significance of Responsibility to Justice.
      University College, London, Colloquium in Legal and Social Philosophy: Professor Michael Martin (UCL), 'On having one's mind made up'.
      Lewis & Clark Law School: Alan Watson (University of Georgia), Comparative Law and Legal Understanding.
      NYU Legal History: Richard Bernstein, New York Law School, Beyond Cincinnatus: Thomas Jefferson and the Invention of the Ex-President and John Adams and America's War for Intellectual Independence.
      Oxford Centre for Socio-Legal Studies: Patrick Glenn, The Idea of Legal Culture, a Critical Assessment.
      Oxford Centre for Criminology: Federico Varese, Mob and Mobility – How Mafias Migrate.
      Royal Institution of Philosophy, London: John McDowell, Intention in Action
    Thursday, March 10
      UC Berkeley, Workshop in Law, Philosophy, and Political Theory: Christopher Kutz, Berkeley, THE DIFFERENCE UNIFORMS MAKE: COLLECTIVE VIOLENCE IN CRIMINAL LAW AND WAR. Here is a taste:
        The wars in Iraq and Afghanistan have put front and center the problem of dealing with non-uniformed combatants. They have also made central profound questions of the legitimacy of resorting to martial violence, and responsibility for picking up the pieces thereafter. I argue here that the special problem of non-uniformed combatants and the general problem of justifying war are profoundly linked. War, I shall argue, is but one form of a more general species: collective violence. Collective violence poses a particular set of challenges to the application of moral principles. In what follows, I identify a conflict between two themes in our response to collective violence. I call these themes of inculpation and exculpation. I illustrate these themes with three stories derived from actual events.
      UCLA Legal Theory Workshop: Lawrence G. Sager, University of Texas School of Law, Equal Liberty. Here is a taste:
        In this Chapter, we elaborate an alternative understanding of religious freedom that incorporates these equality principles. The model, which we call “Equal Liberty,” has three distinct components. First, it insists in the name of equality that no members of our political community ought to be devalued on account of the spiritual foundations of their important commitments and projects. Religious faith receives special constitutional solicitude in this respect, but only because of its vulnerability to hostility and neglect. Second, and again in the name of equality, Equal Liberty insists that aside from this deep and important concern with discrimination, we have no constitutional reason to treat religion as deserving special benefits or as subject to special disabilities. Finally, Equal Liberty insists on a broad understanding of constitutional liberty. It demands that all persons enjoy rights of free speech, personal autonomy, associative freedom and private property that, while neither uniquely relevant to religion nor defined in terms of religion, will allow religious practice to flourish. We will refer to Equal Liberty’s first two components as its anti-discrimination and neutrality principles, respectively, and its third component as its general liberty principle.
      Fordham University School of Law: Julie E. Cohen, Professor of Law, Georgetown University Law Center, "Cyberspace as/and Space".
      Loyola Marymount University, Loyola Law School: Patrick B. Crawford, Tax Fellow and Adjunct Professor of Law, Loyola Law School, "Kant's Critique of Welfarism (and related doctrines) in the Law" (A Reply to Kaplow and Shavell's Fairness versus Welfare).
      Northwestern Tax: Ajay Mehrotra, Associate Professor of Law, University of Indiana, TBA.
      University of Bremen, Germany: Social Justice in a Changing World:
        Social Justice in a Changing World March 10 - 12, 2005 University of Bremen http://www.gsss.uni-bremen.de/socialjustice/ Welcome to the "Social Justice" Conference at the Graduate School of Social Sciences at the University of Bremen, Germany, to take place March 10-12th, 2005. Researchers working in GSSS' three thematic fields of Transnational Relations and Political Theory, The Modern Welfare State and Social Change, Population Dynamics and the Life Course have come together to conceive an interdisciplinary conference designed to explore contemporary social and political processes of internationalization and privatization and their implications for social justice. 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 privatised markets and transnational regimes for social justice on different levels.
    Friday, March 11
      Georgetown International Legal Theory Colloquium: Andrew Guzman, Boalt Hall, University of Cal. at Berkeley, "The Design of International Agreements".
      Oxford Globalisation & Sustainable Development Law Group in conjunction with Centre for International Sustainable Development Law: Ms Christine Frison (Belgium), Access and Benefit Sharing in the International Treaty on Plant Genetic Resources for Food and Agriculture and Sustainable Development.
      UCLA School of Law: Margo Schlanger, Washington University school OF law, "Damage Action Deterrence".
      Australian National University RSSS: Alan Hájek (RSSS), TBA


 
Legal Theory Lexicon: Virtue Jurisprudence
    Introduction Law students with a background in philosophy are sure to notice the strong influence of moral philosophy on legal thinking. Theories like Kant's have had a profound influence on the idea of fairness in legal theory and on the conception of rights that is at the heart of deontological legal theory. Utilitarianism and the law reform agenda of Jeremy Bentham provide an important part of the normative version of law and economics. But if you recently studied moral philosophy as an undergraduate or in graduate school, you might notice that something is missing. The moral philosophy pie can be cut in many ways, but the conventional slicing divides normative moral theory into three kinds: (1) deontological moral theores (e.g. Kant), (2) consequentialist moral theory (e.g. utilitarianism), and (3) aretaic moral theory (e.g. virtue ethics). Recently, however, a variety of legal theorists have begun to consider the implications of aretaic (virtue-centered) moral theory for the law.
    This entry in the Legal Theory Lexicon series provides an introduction to "virtue jurisprudence." As always, the discussion is aimed at law students, especially first-year law students, with an interest in legal theory.
    Modern Moral Philosophy and Contemporary Legal Theory The Legal Theory Lexicon already includes entries on Utilitarianism and Deontology, two of the most influential approaches for moral philosophy. In an essay titled Modern Moral Philosophy, Elizabeth Anscombe famously noted persistent problems with the deontological and utilitarian approaches that dominated normative ethics when she wrote in 1958. Anscombe's suggestion was for moral philosophers to return to Aristotle, and that is just what happened. Starting in the 1960s and accelerating through the 1980s and 1990s, there was a trickle and then an avalanche of philosophical work on virtue ethics--an approach to moral theory that emphasizes character and the virtues--as opposed to right action (deontology) or good consequences (utilitarianism). A prior entry in the Legal Theory Lexicon provided an introduction to virtue ethics and you might want to review that before you continue with this post.
    Modern legal theory has strong connections with modern moral philosophy. Historically, the connection is evident in the work of Jeremy Bentham: his work combined a conceptual separation of law and morality with a utilitarian program of legal reform. Contemporary legal scholarship frequently invokes general moral theories, including preference-satisfaction utilitarianism and deontological theories like Kant’s, to make arguments about what the law should be. Such normative legal theories are addressed to lawmakers (in the broad sense), including legislators and adjudicators. Developments in political philosophy, sparked by John Rawls’s A Theory of Justice and its libertarian and communitarian critics, have met with avid attention from the legal academy.
    Virtue Ethics and Legal Theory There is, however, an exception to general reflection of developments in moral philosophy in legal theory. Legal philosophy (as practiced by philosophers or academic lawyers) has only recently paid attention to one of the most significant developments in moral theory in the second half of the twentieth century, the emergence of virtue ethics.
    An outpouring of articles and monographs attests to the interest of philosophers in virtue ethics. In the law, the situation has been different. The hegemony of deontological and utilitarian theories prevails, at least among legal theorists working in the common-law tradition. There are, however, a growing number of exceptions to this hegemony. Kyron Huygens (of Punishment Theory) and Stephen Bainbridge (of ProfessorBainbridge.com) are just two of a growing number of legal scholars who have discussed virtue ethics in their work.
    Towards a Virtue Jurisprudence A full account of the implications of virtue ethics and epistemology for legal theory is a very large topic. Among the issues raised by virtue jurisprudence are the following:
    • Virtue ethics has implications for an account of the proper ends of legislation. If the aim of law is to make citizens virtuous (as opposed to maximizing utility or realizing a set of moral rights), what are the implications for the content of the laws?
    • Virtue ethics has implications for legal ethics. Current approaches to ethical lawyering emphasize deontological moral theory, i.e. duties to clients and respect for client autonomy, and these deontological approaches are reflected in the various codes of professional conduct that have been devised for lawyers, judges, and legislators. How can we reconceive legal ethics from a virtue-centered perspective?
    • Accounts of the virtue of justice (in particular, Aristotle’s and Aquinas’s theories of natural justice) have implications for debates between natural lawyers and legal positivists over the nature of law.
    In this Legal Theory Lexicon post, however, I will discuss only one aspect of virtue jurisprudence--a virtue-centered theory of judging in general and the virtue of justice in particular. Virtue-centered theories of judging answer the question: How should judges decide the controversies that are presented to them? A virtue-centered theory of judging provides an answer along the following lines: Judges should decide cases in accord with the virtues, or judges should render the decisions that would be made by a virtuous judge.
    A Virtue-Centered Theory of Judging How would a virtue-centered theory of judging go? Let’s begin with the uncontroversial idea that good judging is inconsistent with the worst judicial vices and that it requires some minimal set of judicial virtues.
      The Thin Theory of Judicial Vice Begin with the assumption that humans have characters. More particularly, let’s assume that humans have dispositional traits that incline them to behave in more or less predictable ways. Our vocabulary is rich with words to describe such traits. We use terms like “coward,” “procrastinator,” “reliable,” “hard-working,” “studious,” “curious,” “sensitive,” and so forth. Following Aristotle, let’s sort the traits, picking out those which we count as human excellences, “virtues,” and those which we count as defects, “vices.” Let’s set the virtues and any traits that are neutral to the side, and focus on the defects—traits like cowardice, gluttony, avariciousness, foolishness, and so forth.
      Are there judicial vices that are inconsistent with excellence in judging? Once asked, the question answers itself. Hardly anyone thinks that corruption and incompetence are consistent with excellence in judging.
      We can systematize the worst judicial vices, borrowing Aristotle’s distinction between intellectual and moral character traits. There are two important intellectual vices that are inconsistent with excellent judging. The first of these is judicial stupidity. Judges who suffer from this vice in its worst form lack the intelligence (and hence also the knowledge) necessary to do the complex intellectual work required of judges. They do not know what the rules of law are, and they are unable to see how they could be applied in particular fact situations. The second intellectual vice is judicial foolishness. Even a very smart judge can have terrible practical judgment. A foolish judge may know the law, but he cannot discern the difference between the rules that are important to the case and those that are only marginally relevant. Foolish judges are likely to make impractical demands are the lawyers and parties who appear before them.
      There are also moral vices that should are inconsistent with excellent adjudication. The most obvious of these is corruption. Judges should not accept bribes. Although judges are only infrequently in physical danger, they are more frequently faced with situations in which rendering the legally correct decision might injure their popularity, social standing, or opportunities for promotion or nonjudicial work. Hence we should not select civil cowards for judicial office. Judges are often placed in anger-inducing situations. A judge who is prone to fly off the handle at small provocations is not likely to be effective in the courtroom, and hence we ought not to select the hot-tempered for judicial office.
      What I have offered is a thin theory of judicial vice. This is a thin theory, because it rests on very weak assumptions about what counts as bad character. So far as I can see, no sensible normative account of judicial selection provides good reasons to reject the normative implications of the thin theory of judicial vice. No one wants stupid, foolish, corrupt, cowardly, or hot-tempered judges. Of course, these vices are not always apparent when candidates are nominated and confirmed for judicial office. There are, I am afraid, some judges on the bench today who possess the full range of these vices.
      The Thin Theory of Judicial Virtue The next step in our investigation of the judicial virtues is simple. If you accept the thin theory of judicial vice, you should also accept a thin theory of judicial virtues. Why? The basic reason is conceptual: virtue is required for the absence of vice. To select a judge who lacks the intellectual defect of judicial stupidity, you must select a candidate who has the corresponding virtue of judicial intelligence. To avoid, civic cowardice, you must select a judge with the virtue of civic courage. To avoid corruption, you must select a judge with the virtue of temperance. To avoid, ill temper, you must look for candidates who have judicial temperaments. A fully-developed virtue jurisprudence would flesh out this list of judicial virtues--specifying the character traits and mental abilities that make for good judging.
    A Preliminary List of the Judicial Virtues So let's make a tentative list of judicial virtues:
      Judicial Sobriety "Sober as a judge" is the say that expresses the idea that judges should have what was classically called the virtue of temperance. Good judging requires that one’s desires be in order. This is clear when the temperate judge is contrasted to the judge who lacks the ability to control her appetites. Judges who care too much for their own pleasures are prone to temptation; they are likely to be swayed from the course of reason and justice by the temptations of pleasure. A libertine judge may indulge in pleasures that interfere with the heavy deliberative demands of the office. Hence, the saying “sober as a judge,” reflects the popular understanding that excessive indulgence in hedonist pleasures would interfere with excellence in the judicial role.
      Judicial Courage A second virtue, judicial courage is a form of “civic courage.” The courageous judge is willing to risk career and reputation for the ends of justice.
      Judicial Temperament A third virtue, judicial temperament, corresponds to the vice of bad temper. The traditional concern in judicial selection with judicial temperament is illuminated by Aristotle's account of the virtue of good temper or proates: the disposition to anger that is proportionate to the provocation and the situation. The virtue of good temper requires that judges feel outrage on the right occasions for the right reasons and that they demonstrate their anger in an appropriate manner.
      Judicial Intelligence The corrective for the vices of judicial stupidity and ignorance is a form of sophia or theoretical wisdom. I shall use the phrase “judicial intelligence” to refer to excellence in understanding and theorizing about the law. A good judge must be learned in the law; she must have the ability to engage in sophisticated legal reasoning. Moreover, judges need the ability to grasp the facts of disputes that may involve particular disciplines such as accounting, finance, engineering, or chemistry. Of course, judicial intelligence is related to theoretical wisdom in general, but the two are not necessarily identical. The talents that produce theoretical wisdom in the law may be different from those that produce the analogous intellectual virtue in physics, philosophy, or microbiology. Or it may be that theoretical wisdom is the same for all these disciplines. If this is the case, then judicial intelligence may simply be general theoretical wisdom supplemented by the skills or knacks that produce fine legal thought combined with deep knowledge of the law.
      Judicial Wisdom The final virtue on my short list is the corrective for bad judgment or foolishness. I shall use the phrase “judicial wisdom” to refer to a judge’s possession of the virtue of phronesis or practical wisdom: the good judge must possess practical wisdom in her selection of the proper legal ends and means. Practical wisdom is the virtue that enables one to make good choices in particular circumstances. The person of practical wisdom knows which particular ends are worth pursuing and knows which means are best suited to achieve those ends. Judicial wisdom is simply the virtue of practical wisdom as applied to the choices that must be made by judges. The practically wise judge has developed excellence in knowing what goals to pursue in the particular case and excellence in choosing the means to accomplish those goals. In the literature of legal theory, Karl Llewellyn’s notion of “situation sense” captures much of the content of the notion that judicial wisdom corresponds to the intellectual virtue of phronesis.
      This abstract account of judicial wisdom can be made more concrete by considering the contrast between practical wisdom and theoretical wisdom in the judicial context. The judge who possesses theoretical wisdom is the master of legal theory, with the ability to engage in sophisticated legal reasoning and insight into subtle connections in legal doctrine. But even a judge who possesses judicial intelligence is not necessarily a reliably good judge, even if she employs the correct decision procedure in her judicial decision-making. Why not? An answer to this question begins by clarifying the distinction between judicial intelligence and judicial wisdom.
    Beyond a Thin Theory of Judicial Virtue A thin theory of judicial virtue should prove uncontroversial because it avoids the tough questions about judging. Formalists and realists, conservatives and liberals—all can endorse a thin theory of judicial virtue, because thin theories don’t answer hard questions. We can distinguish thin theories of judicial virtue from theories that are “thick.” A thick theory of judicial virtue expands the list of judicial excellences to include characteristics of mind and will that are controversial. Corresponding to any particular normative theory of judging we can postulate a thick theory of judicial virtue that specifies those dispositions and capacities that are required for excellent judging according to the criteria provided by the particular theory.
    An example may help. Consider Dworkin’s imaginary judge, Hercules, who decides cases by constructing the theory that fits and justifies the law as a whole; this task can only be accomplished by someone who is able to appreciate legal complexity and to see the subtle interconnections between various legal doctrines summarized in the slogan, “the law is a seamless web.” Moreover, Dworkin’s theory requires judges to have a special concern for the coherence of the law, a virtue we might call “judicial integrity.” But other normative theories of judging may not value this characteristic. For example, “judicial integrity” might not be important to an act-utilitarian theory of judging. Perhaps, the act-utilitarian would consider Hercules to be obsessed with consistency—the hobgoblin of a foolish mind.
    Instrumental and Virtue-Centered Theories Thick theories of judicial virtue may be divided in two kinds, instrumental and virtue-centered. Instrumental theories of judicial virtue are those which begin with some independent criteria for what constitutes a good judicial decision and then selects a list of judicial virtues based on those criteria. For example, many normative theories of judging are decision (or outcome) centered. A decision-centered theory offers criteria for what should count as a good, right, just, or legally valid decision. For a decision-centered theory of virtue, the notion of a correct decision is primary and the judicial virtues are derived from it. Thus, Dworkin’s description of Hercules begins with the criteria for good decisions and then constructs the ideal judge who is able to render such decisions. By way of contrast, a virtue-centered theory does not proceed in this way. Rather, a virtue-centered theory begins with the an account of the virtuous judges as primary and then proceed to derive the notion of a virtuous decision from it.
    A Virtue-Centered Theory So what would a virtue-centered theory look like? This is just a blog post, so I can only give you a brief outline. For the sake of simplicity and clarity, we can formulate a virtue-centered theory of judging in the form of five definitions:
    • A judicial virtue is a naturally possible disposition of mind or will that when present with the other judicial virtues reliably disposes its possessor to make just decisions. The judicial virtues include but are not limited to temperance, courage, good temper, intelligence, wisdom, and justice.
    • A virtuous judge is a judge who possesses the judicial virtues.
    • A virtuous decision is a decision made by a virtuous judge acting from the judicial virtues in the circumstances that are relevant to the decision.
    • A lawful decision is a decision that would be characteristically made by a virtuous judge in the circumstances that are relevant to the decision. The phrase “legally correct” is synonymous with the phrase “lawful” in this context.
    • A just decision is identical to a virtuous decision.
    The central normative thesis of a virtue-centered theory of judging is that judges ought to be virtuous and to make virtuous decisions. Judges who lack the virtues should aim to make lawful or legally correct decisions, although they may not be able to do this reliably given that they lack the virtues. Judges who lack the judicial virtues ought to develop them. Judges ought to be selected on the basis of their possession of (or potential for the acquisition of) the judicial virtues.
    Conclusion Of course, this very short introduction raises many more questions than it answers. But I hope that even this very sketchy account of one aspect of virtue jurisprudence has sparked your interest. Some of the most interesting applications of virtue ethics to legal theory can be found in torts and criminal law, and we haven't even touched on those. Another very interesting set of questions arises from the notion that the aim of the law is to inculcate virtue--an idea that may be at odds with pluralist idea that morals is a matter of individual choice.
    For a short introduction to my own work, check out Virtue Jurisprudence: An Aretaic Theory of Judging.


 
Yet More on Getting an Entry Level Law School Job, Updated with reader comments Read Leiter--whose analysis is right on the money. Also remarks by David Bernstein amd Orin Kerr. And another comment from Christine Hurt, who points out:
    However, hiring seems to have changed at many schools in recent years. At a lot of schools, certain criteria were emphasized 20 years ago, such as practice experience, whereas other criteria are emphasized now. To get a good sense of hiring practices now, you have to look at recent hires, such as Prof. Solum's survey last year. I am only saying this because I had to learn this the hard way. When I went through the meat market with my Texas degree, I had no guarantees. Even if I was interviewing with professors who had J.D.'s from non-Top 20 schools, they still knew what the expectations were and applied them. I had people tell me, "You know, I'm glad I'm not interviewing today. I don't think I could get a job."
Hurt is right. Hiring has changed. There was a day when a strong graduate of a regional law school who went on to a good clerkship and a prestige practice (e.g. elite law firm or Assistant U.S. Attorney) had a very good chance at getting several offers from other regional schools. That still happens, but it is much rarer, as graduates from Yale, Harvard, Stanford (and a handful of other schools) have come to dominate the entry-level market at less prestigious institutions. This does not mean that anyone should give up on the idea of a career as a legal academic. It does mean that if you are attending a school outside the top three (or top twenty), you should think about creating an environment that will enable you to write before you go on the job market--that could be an LlM or SJD program, PhD program, a Visiting Assistant Professorship, or a legal writing position at one of the schools (like Chicago) that emphasizes preparation for the academic job market for the instructors. Oh, and by the way, even if you are currently at Yale, Harvard, or Stanford, you should be thinking about your first two or three post-graduation law review articles now before you graduate. Update: And a reader (in law practice) writes:
    You should do more than think about them. You should *write* them, at least if you intend to work at a large firm afterwards. You will *not* have time after you graduate. I speak from experience, alas.
But another reader replies:
    I wanted to register my disagreement with the practicing lawyer who said that you can't find time while practicing to write. Indeed, looking at people who were successful at last year's job market (the ones I knew) the thing that actually distinguished them was writing while practicing. . . . It can be done. You just have to be efficient.
And a faculty member who was reporting an entry level hiring added the following:
    Exactly as you (and others) have said, [the entry-level candidate] got [the position] based on his publications. In addition to his law review comment, he co-authored an essay in [a major law review], and has a piece forthcoming in [a significant peer-edited journal]. (He was a VAP at [two law schools], and already notched an invite to [a conference aimed at junior faculty].


Saturday, March 05, 2005
 
Legal Theory Bookworm The Legal Theory Bookworm recommends A Court Divided: The Rehnquist Court and the Future of Constitutional Law by Mark Tushnet. Here is a description:
    In this balanced, insightful assessment of the dynamics of today's Supreme Court (which may change very soon, with Chief Justice Rehnquist's illness), Tushnet, a constitutional law scholar at Georgetown, says that, in addition to the obvious divisions between conservative and liberal justices, fault lines have opened up within the conservative wing. On the touchy issue of judicial activism, Tushnet argues that all the justices are activists in pursuing their judicial goals. To explain the justices' activism and diverse agendas, the author delves into individual personal and intellectual histories. Each justice is profiled in relation to an area of constitutional law in which he or she holds distinctive views, such as Justice Scalia's search for absolute rules favoring free speech and Justice Ginsburg's concern with sex discrimination. Justices holding generally conservative opinions form a majority on the Court, yet only in cases involving economics has it produced results favored by the right. On hot-button social issues, like abortion, Tushnet concludes, the Court's conservatives have fragmented, leaving Roe v. Wade in place and striking down laws criminalizing homosexual conduct. Tushnet believes that these results accord with the politics prevailing in the country as a whole, where economic conservatism is ascendant but Americans are moderately liberal on social issues. In this calm, unbiased study, Tushnet explains clearly how and why the Supreme Court reflects the nation's uneasy political consensus.
Balanced? I'm not sure Tushnet would appreciate that adjective! (But Mark writes that he does indeed approve of that characterization!) I always learn from Tushnet's keen intelligence and magisterial command of constitutional theory. As always with Tushnet, highly recommended!


 
Download of the Week The Download of the Week is Canonical Construction and Statutory Revisionism: The Strange Case of the Appropriations Canon by Mathew D. McCubbins and Daniel B. Rodriguez. Here is the abstract:
    In this article, we consider the impact of positive political theory on legislative interpretation and, in particular, the debate over interpretive canons. Our vehicle for this consideration is the appropriations canon. By virtue of this canon, courts construe narrowly legislative changes to statutes made through the appropriations process. We consider the underlying logic and rationale of this canon - essentially, that the appropriations process is unrepresentative and insufficiently deliberative - and use this analysis to investigate, more broadly, the processes of canonical construction in the modern statutory interpretation jurisprudence. Canonical construction, we argue, must be attentive to the equilibrium effects of judicial approaches and, moreover, it must be based upon a normatively compelling theory of lawmaking and the legislative process. The appropriations canon fails both of these tests; and, in its structure, it reveals some of the weaknesses of the contemporary reliance on canons to illuminate statutory meaning.
If you don't already know McCubbins & Rodriguez's important work on the relationship between positive political theory & statutory interpretation, you should definitely catch up! Highly recommended!


Friday, March 04, 2005
 
Friday Calendar
    University of San Diego, Kyoto Prize Lecture: Jurgen Habermas, "The Public Role of Religion in Secular Contexts" with a response by Robert Bellah.
    UCLA School of Law: Albert Yoon, Northwestern University Law School, "Offer-of-Judgment Rules and Civil Litigation: An Empirical Study of Insurance Litigation in the East"
    Oxford Globalisation & Sustainable Development Law Group in conjunction with Centre for International Sustainable Development Law: Globalisation & Sustainable Development Law Lectures, 2005 Hilary Term : Christopher Tung (Hong Kong), Climate Change Action and Sustainable Development in China.
    Georgetown International Legal Theory Colloquium: Rosa Ehrenreich Brooks, U. of Virginia School of Law, "Failed States, or The State as Failure?".


 
Smith on the Declension of Belief Steven Douglas Smith (University of San Diego School of Law) has posted Hollow Men: Law and the Declension of Belief on SSRN. Here is the abstract:
    If believing is central to what makes us persons, then how do we react when our core beliefs come under serious challenge? The "purest" responses are probably to engage in responsible apologetics, defending our beliefs against the challenges, or else adjustment or relinquishment of our beliefs in accordance with what we come to understand the truth to be. Often, however, we resort to less "pure" responses. We "bend the truth" or "fudge the facts" to deflect challenges to our beliefs. Or, in a response that entails more implicit philosophical sophistication, we deflate our very conceptions of truth and belief: in this case, this essay suggests, we may continue to affirm propositions even though we no longer fully and in good faith believe them. This essay, presented as part of a lecture series on "Christian Contributions to Contemporary Jurisprudence," argues that this last "declensionist" response produces a kind of hollowness in our personhood. The essay then explores manifestations of such declensionist strategies in modern thinking about the nature of law. It concludes by sketching some possible alternatives that Christian legal thinkers might take in response to such declension.


 
Haque on Feldman Adil Ahmad Haque (Yale University - Law School) has posted Review of Noah Feldman, What We Owe Iraq: War and the Ethics of Nation Building (Yale Journal of International Law, Vol. 30, 2005) on SSRN. Here is the abstract:
    Noah Feldman's engaging and often confessional second book disappoints in at least three respects. First, Feldman declines to evaluate the legality and morality of the titular war (pp. 4-5). Second, Feldman declines to discuss the titular project of nation building - the formation of an autonomous collective moral agent - writing instead only of state building - the formation of stable political institutions (p. 19). Finally, although Feldman makes a great number of ethical claims, they do not amount to a theory of what we owe Iraq, of the affirmative obligations of the United States to aid in reconstruction. When pressed to defend his strongest ethical claims, Feldman makes no reference to his theory, drawing instead on more familiar and compelling moral grounds.


 
Seto on Originalism & Precedent Theodore P. Seto, Loyola Law School (Los Angeles), has posted Originalism vs. Precedent: An Evolutionary Perspective (Loyola of Los Angeles Law Review, Vol. 38, 2005) on SSRN. Here is the abstract:
    This essay asks whether originalist interpretive methods, on average, are likely to produce better or worse rules than nonoriginalist methods. By originalist I mean to refer to any text-based decision-making technique that permits its user to ignore intervening learning and rely on some aspect of the original text whenever the two conflict. I am not asking about legitimacy; originalist methods may well produce more legitimate outcomes. My focus is rather on the merits of the resulting rules themselves. The approach the essay takes is to describe how cultures learn and, on the basis of that description, assert that such learning is itself generally adaptive. If cultures learn and such learning is adaptive, then any decision-making procedure that systematically ignores such learning is problematic.


 
More on Law Teaching In addition to Eric Goldman's posts from yesterday see this post and this post from Chris Geidner. Chris addresses the question whether you really must go to a top twenty school in order to have a realistic chance to become a law professor. The 2004 Report on Entry Level Hiring has data from last year, and the 2005 Report should be posted in a few weeks. Just a few short observations:
  • Going to Harvard, Yale, or Stanford--if you can--is clearly a good move. Chicago, Berkeley, Columbia, Georgetown, Michigan, Penn, Virginia, and Texas also place significant numbers of graduates in entry-level positions.
  • There are lots of exceptions. I have several friends in the legal academy who went to second or third tier law schools, and who became very successful legal academics, but they faced more challenges getting their first academic job.
  • Write! Write! Write! The entry-level market in changing. Two of the four entry-level offers made by USD this year were to candidates with monographs published by prestigious academic presses and multiple articles in scholarly journals. If your JD is from an institution that does not place significant numbers of graduates in entry-level academic positions, then writing is all the more significant. Of course, really excellent academic writing requires time and a supportive environment; that is why I know recommend various options--the Bigelow program at Chicago, LLM programs, SJD programs, Visiting Assistant Professorships--as alternatives to the more traditional clerkship, prestigious law firm route.


Thursday, March 03, 2005
 
McCubbins & Rodriguez on the Appropriations Canon Mathew D. McCubbins and Daniel B. Rodriguez (University of California at San Diego and University of San Diego School of Law) have posted Canonical Construction and Statutory Revisionism: The Strange Case of the Appropriations Canon (Journal of Contemporary Legal Issues, 2005) on SSRN. Here is the abstract:
    In this article, we consider the impact of positive political theory on legislative interpretation and, in particular, the debate over interpretive canons. Our vehicle for this consideration is the appropriations canon. By virtue of this canon, courts construe narrowly legislative changes to statutes made through the appropriations process. We consider the underlying logic and rationale of this canon - essentially, that the appropriations process is unrepresentative and insufficiently deliberative - and use this analysis to investigate, more broadly, the processes of canonical construction in the modern statutory interpretation jurisprudence. Canonical construction, we argue, must be attentive to the equilibrium effects of judicial approaches and, moreover, it must be based upon a normatively compelling theory of lawmaking and the legislative process. The appropriations canon fails both of these tests; and, in its structure, it reveals some of the weaknesses of the contemporary reliance on canons to illuminate statutory meaning.


 
Ramsey & Prakash on the Jeffersonian Executive Saikrishna Prakash and Michael D. Ramsey (University of San Diego School of Law and University of San Diego School of Law) have posted Foreign Affairs and the Jeffersonian Executive: A Defense on SSRN. Here is the abstract:
    This article addresses leading objections to the theory that the President enjoys a residual foreign affairs power by virtue of Article II, Section 1's grant of the "executive Power." Opponents dispute the central proposition that the Article II vesting clause vests any independent executive power, and the secondary proposition that the executive power includes foreign affairs power. Yet these objections to the residual theory suffer from conceptual and historical difficulties that greatly undermine their persuasiveness. First, opponents have no competing theory of the Constitution's text, never answering basic questions: Did the Constitution, as originally understood, completely allocate foreign affairs power, and if so, how? Second, opponents of the residual theory rhetorically inflate the powers it would locate in the President. Critics protest that the Framers did not wish to constitute the President as a king. The residual theory does not lead to presidential supremacy but instead ensures a balanced and divided allocation of foreign affairs powers. Third, critics associate the residual theory with some ill-defined claim of historical or logical inevitability. In fact, the residual theory makes no claims about what the Framers had to do. Instead, it tries to make sense of what they actually did - vesting the executive power in the President - by examining the historical meaning of the phrase "executive power" in the eighteenth century, and by examining how early statesmen, such as Thomas Jefferson, described and justified the President's foreign affairs powers. Finally, to the extent opponents of theory engage these claims, they have little text or history on their side. Despite prodigious efforts, no one is able seriously to dispute that eighteenth century political writers used the phrase "executive power" to include foreign affairs power; that Americans adopted this vocabulary in discussing the Continental Congress, during the drafting and ratifying debates, and in describing President Washington's assertion of key foreign affairs authorities.
Download it while its hot!


 
Appleman on the System of Legal Education Laura I Appleman, Center for Appellate Litigation, has posted The Rise of the Modern American Law School: How Professionalization, German Scholarship, and Legal Reform Shaped Our System of Legal Education (New England Law Review, Vol. 39, p. 251, 2005) on SSRN. Here is the abstract:
    American law schools were decisively transformed by an amalgam of forces: German scholastic methods, British common law and philosophy, the professionalization of the bar, and the legal elite's concern about the expansion of the profession. This article integrates these historical narratives and shows how this welter of educational trends and social/political concerns created the modern American law school. Part I analyses how reform, professionalism, and prejudice played roles in restructuring the way law was practiced, taught, and regulated, both in the schools and in the cities. Part II explores the effect and allure of England, scrutinizing the power of British common law, Darwinism, and the ethnic-racial cult of Anglo-Saxonism. Part III examines the German educational influence on nineteenth-century university reformers, and details the effect of German scientific method on elite law schools. I argue that although much has been written on the birth of the modern American law school, these individual narratives are incomplete and misleading unless they are combined into one cohesive whole.


 
Eric Goldman on Law Teaching Careers Eric Goldman has a four part series on law teaching careers. Here are the links:


 
Hasen on the Confirmation Wars Election-law superblogger Rick Hasen has a good post entitled Nuclear Options and Term Limits in the Judicial Wars: What Will It Take to Overcome the Impasse? Here's a taste:
    The power here is in the hands of the President more than anyone else. There's a world of difference between the nomination of a Michael McConnell versus an Edith Jones. That is, if the President chooses as a nominee someone (no doubt, a conservative) who is respected for his or her intellect and integrity by people on both sides of the political aisle, it will be much less likely that Republicans will have to go nuclear and Democrats will have to retaliate. If Democrats approve a McConnell nomination, that could go a long way toward diffusing tensions, though it will also give the Democrats renewed strength to oppose some lower court nominees and an Edith Jones nomination down the road.


 
Thursday Calendar
    University of Texas School of Law: Akhil Amar, America's Constitution: A Guided Tour. Here is a taste:
      This book has tried to offer a comprehensive account of America’s Constitution, introducing the reader both to the legal text (and its consequences) and to the political deeds that gave rise to that text. Surprisingly enough, virtually nothing else in print aims to do this. There is of course a vast outpouring of superb work on the Constitution. But within the legal literature, most books and articles focus on some specific aspect of constitutional law—executive power, judicial review, free speech, or what have you—and make no effort to encompass the constitutional system as a whole. Many law-trained authors concentrate on Supreme Court decisions, thereby privileging the United States Reports over the United States Constitution. Other law books are dense treatises aimed only at legal professionals. While political scientists routinely analyze Congress, the presidency, and the judiciary, they, too, rarely ponder the Constitution as a whole. True, historians have offered rich accounts of the Founding era and its colorful personalities. Yet these chroniclers have devoted less attention to the Constitution as a legal text, and what work they have done on the document often focuses only on the original version framed at Philadelphia. Rarely do they carry the story forward to include all the amendments over the next two centuries.* Finally, there are a few general classroom textbooks about the Constitution, most of which are distillations of conventional wisdom pitched at an average ninth grader. In the preceding pages I have aimed higher, targeting undergraduates, law students, graduate students, history buffs, civil libertarians, opinion leaders, politicians, judges, lawyers, teachers, professors, and general-interest readers.
    Yale Law, Economics, & Organization Workshop: Mark Roe, Harvard/Law, Delaware's Politics. Here is a taste:
      Delaware makes the corporate law governing most large American corporations. Since Washington can take any, or all, of that lawmaking away, a deep conception of American corporate law should show how, when, and where Washington leaves lawmaking authority in state hands, and how it affects what the states do. The interest groups and ideas in play in Delaware are narrow, those in Congress wide. Three key public choice results emanate from that observation. First, interest groups powerful enough to dominate Delaware lawmaking forgo a winner-take-all strategy because state-level losers can call for federal action and either ally there with new interest groups or appeal to ideas not in play in Delaware. Second, the major statelevel players usually want to confine federal authority in making corporate law, because a local deal cuts in fewer players; a federal deal splits the pie with outsiders. Third, we can delineate the space in which the states have room to maneuver and where they risk federal action. It’s when Delaware acts first—as it often can because the federal agenda is large and Delaware’s small—that it gains most of its discretion vis-à-vis the federal authorities. When it moves first, especially when its two main players¾managers and investors¾agree on what to do, those two players largely determine American corporate law’s initial content. Federal authorities might then change the state-made result, and players and ideologies absent in Delaware but big in Washington affect the federal result. Those new players and ideas give the original Delaware players reason to resist federal action. Doctrines that limit federal effort—corporate law’s principle that the incorporating state should govern its corporations’ internal affairs, for example—are public-regarding justifications for deferring to interests that prevail on the state level. But when Delaware cannot act first—either because media saliency puts the matter on the federal agenda or because its primary players disagree—then Delaware loses its dominance. I then analogize the relationship between Delaware and Congress to that between federal agencies and Congress. Federal agencies have discretion and first-mover advantages, but their independence even when wide is confined, ending when they provoke Congress. So it is with Delaware. The interstate race is overrated as the chief structural determinant of American corporate law. Without taking account of how Congress and Delaware interact, we cannot see core characteristics of American corporate law. And to understand that federal-state relationship, we must grapple with the how the interest groups and ideas in play in Delaware differ from those in Congress.
    Stanford Law & Economics: Alan Sykes (University of Chicago Law School), "Public vs. Private Enforcement of International Economic Law". Here is a taste:
      This paper develops a positive theory of the rules regarding standing and remedy in international trade and investment agreements. In the investment setting, the paper argues that a central objective of investment treaties is to reduce the risks confronting private investors and thereby to lower the cost of capital for capital importing nations. This objective requires a credible government-to-firm commitment (or signal) that the capital importer will not engage in expropriation or related practices. A private right of action for money damages is the best way to make such a commitment. In the trade setting, by contrast, importing nations have no direct interest in reducing the risks confronting exporters of goods and services, and will desire to make market access promises more secure only if such behavior facilitates reciprocal benefits for their own exporters. Consequently, commitments in trade agreements are best viewed as government-to-government rather than government-to firm. The parties to trade agreements can enhance their mutual political welfare by declining to enforce commitments that benefit politically inefficacious exporters, and can most cheaply do so by reserving to themselves the standing to initiate dispute proceedings – a right to act as a “political filter.” The paper also suggests why governments may prefer to utilize trade sanctions rather than money damages as the penalty for breach of a trade agreement.
    Boston University School of Law: Lewis Kornhauser (NYU), "Contingency and Control: A Theory of Contracts".
    Florida State University School of Law: Nancy Staudt, Washington University-St. Louis.
    George Mason University School of Law: Iliana Ilieva, GMU School of Law Levy Fellow, Law and Economics in Mutualfundland (with D. Bruce Johnsen).
    George Washington University IP Series: David Nimmer, "Codifying Copyright Comprehensibly".
    Georgetown Workshop on Transnational Legal Issues: Laurel Terry, Dickinson Law School "WTO, GATS, and the Regulation of Transnational Law Practice".
    Yale Legal Theory Workshop: Walter Benn Michaels, University of Illinois (English).


Wednesday, March 02, 2005
 
Welcome to the Blogosphere . . . . . . to Automatic Say, a weblawg devoted to bankruptcy law, legal issues and politics, focusing on the Fifth Circuit and Texas, by Debra L. Innocenti.


 
Conference Announcement: Nature in the Kingdom of Ends
    Conference in Iceland: Nature in the Kingdom of Ends Registration is now open for the conference Nature in the Kingdom of Ends in Selfoss, Iceland, June 11th-12th. Well known artists and scholars will discuss the question What is nature and how nature is a source of both aesthetic and ethical values. Ecological crises, climatic changes, and natural catastrophes have made us increasingly aware of the place of man in a fragile natural environment which constrains human life in various ways. But, at the same time, nature has appeared as a source of values opening up new ways for creative and meaningful life. This status of nature is reflected in new trends in art and ethics. Registration: http://www.midja.is/fraedslunet/?pID=31 Lecturers: http://www.midja.is/fraedslunet/?pID=lec Conference documents: http://www.midja.is/fraedslunet/?pID=33 Visit website for further information about the conference: www.midja.is/fraedslunet Olafur Pall Jonsson Department of Philosophy University of Iceland opj@hi.is Nature in the kingdom of ends Conference in Selfoss, Iceland June 11-12, 2005 E-mail: conference@midja.is Website: www.midja.is/fraedslunet


 
Call for Papers: Emotions and Rationality in Moral Philosophy
    CALL FOR PAPERS International Colloquium (French / German / English) Emotions and Rationality in Moral Philosophy From Thursday, the 27th of October to Saturday, the 29th of October 2005 UNIVERSITY OF NEUCHATEL (SWITZERLAND) FACULTE DES LETTRES ET SCIENCES HUMAINES INSTITUTE OF PHILOSOPHY ORGANISATION Institut de philosophie Faculté des Lettres et Sciences humaines Université de Neuchâtel CONTACT anne.meylan@unine.ch In his essay « Rationalism in Ethics », Harry Frankfurt draws the following conclusion: "The most fundamental source of moral normativity is not in our rationality but in our love for the condition and style of life that moral principles envisage." This is one recent attempt to link morality with emotions rather than rationality. Can it be successfully maintained? Emotions have been attracting a great deal of attention from philosophers of diverse subdisciplines for the last few decades. In moral philosophy, emotions provoke a series of highly fascinating questions this colloquium intends to discuss. What kinds of emotions are relevant in moral philosophy? Which is their place within the different motives that lead to a moral action? Are there genuinely moral emotions, such as compassion, benevolence or remorse, as it has frequently been held? Which is the function of moral emotions in human beings? Furthermore, there are a number of questions of special interest involved in any philosophical project to determine the respective roles of emotions and rationality in moral philosophy. Which is the place to be accorded to emotions and rationality in a definition of morality? Are there cases of moral dilemmas where rationality and emotions are in conflict? To what extent do emotions influence moral reflection and action? How do different concepts of rationality relate to emotions in moral philosophy? Can moral emotions be subjected to rational evaluation? This colloquium aims at assembling Ph.D. students and specialists to discuss systematic as well as historical aspects of the questions indicated above. Papers are accepted in French, English, and German. We invite submissions of 300-500 word abstracts of papers. The presentations (30 minutes) will be followed by a discussion of equally half an hour. Please send abstracts to the following eMail-address: anne.meylan@unine.ch until May 31. Notification of acceptance will be mailed by June 30, 2005. Address of the colloquium: Institut de philosophie FLSH 1, Espace Louis-Agassiz CH-2000 Neuchâtel e-mail : anne.meylan@unine.ch


 
Wednesday Calendar
    Notre Dame Law School: Lawrence Solum, University of San Diego, "Virtue Jurisprudence: An Aretaic Theory of Law." Scroll down to last Wednesday for an abstract.
    University College, London, Colloquium in Legal and Social Philosophy: Professor Seana Shiffrin (UCLA), 'What's wrong with compelled association?'. Here is a taste:
      Roberts v. United States Jaycees held that it was constitutionally permissible for Minnesota to require the Jaycees, as a public accommodation, to desegregate and to admit women. Sixteen years later, Boy Scouts of America v. Dale held that it was constitutionally impermissible for New Jersey to require the Boy Scouts, as a public accommodation, to remain partly desegregated and to retain an openly gay Scoutmaster. It is no surprise that Dale caused gnashing of teeth by those who applauded Roberts v. Jaycees: the Court’s commitment to integration seemed all too limited. Women counted; gays and lesbians did not. This analysis may be a partly accurate diagnosis of Dale’s resolution, but it does not fully capture what is troubling about Dale. From a First Amendment perspective, both Jaycees and Dale should have occasioned even greater dental damage. Those who support Roberts v. Jaycees, especially liberals, should have been disturbed by Dale, not entirely because of its outcome, but because the reasoning of Dale and the debate between the justices was foreshadowed by Justice Brennan’s majority opinion in Jaycees. The opinions in Dale, and in particular the dissenting opinions of the liberal justices, follow the lead of Justice Brennan. In so doing, they reflect and forward a message-centered view of freedom of association that, while familiar, is importantly and unpalatably incomplete. In this Essay, I will argue that Jaycees was correctly decided but that Justice Brennan’s majority opinion reflects and has reinforced a messagecentered approach to freedom of association that denigrates its value and implicitly distorts and underplays its intimate connection to freedom of speech. A parallel mistake occurs in a common articulation of the objection to certain forms of compelled speech. Drawing upon a core, but underemphasized, aspect of liberalism, I will re-fashion the case against compelled speech in a way that concomitantly provides a stronger foundation for freedom of association. Specifically, the fundamental wrong of compelled speech in cases such as West Virginia State Board of Education v. Barnette, which found the compulsory recitation of the Pledge of Allegiance unconstitutional, does not depend on any external effect, in particular on outsiders possibly misunderstanding a person’s compelled speech as his own. It has more to do with the illicit influence compelled speech may have on the character and autonomous thinking process of the compelled speaker, and with illicit and disrespectful governmental efforts, however fruitless, to exert such influence.
    Northwestern University, Constitutional Theory Colloquium: Charles Lawrence, Georgetown, "Forbidden Conversations: On Race, Privacy and Community". Here is a taste:
      This article considers the subject of my silence, the relationship between the constitutional injury of racial segregation and the privatization of education. When I speak of privatization here I do not only mean the flight to private schools, or the corporatization of school systems, or the politics of school vouchers,4 although these are all symptoms of the larger problem I wish to explore. The larger problem is something I will call the privatization of care and concern for and conversation about the education of our children. I believe that increasingly public policy makers and individual parents alike think and speak about children’s right to equal educational opportunity as if that project were primarily about giving parents the chance or “liberty” to be consumers in the education market on behalf of their own children. The decisions about how to educate our children (meaning the children in our nuclear family)—where we will school them, who their classmates will be, what curriculum they will be taught—are thought of as private, protected by our constitutionally protected liberty to raise our children as we see fit. When my colleague asks about a good school for his son he is not engaging me in a conversation about what school is best for his children and mine, much less for the poor black children who live in D.C. When parents search for a good school for their children, they do not see the project as collective, as about how we will engage the political process as a community to determine what is best for all our children and see to it that they get it.
    Fordham University School of Law: Grainne De Burca; European University Institute, Visiting Professor, New York University School of Law, "The European Constitution: In Search of Europe's International Identity?".


Tuesday, March 01, 2005
 
Tuesday Calendar
    Oxford Jurisprudence Discussion Group: Stephen Perry, Associative Obligations and the Obligation to Obey the Law. Here is a taste:
      One of the strands woven into the complex fabric of Law’s Empire is an argument that there exists, under certain conditions, a general moral obligation to obey the law. Whether or not there can ever be such an obligation is an age-old problem in political philosophy, and Dworkin’s argument is offered, in part, as a contribution to that particular philosophical tradition. But it is more than that, because the argument also constitutes an integral part of Dworkin’s general theory of law. That is why I say it is one strand of a complex fabric; for Dworkin, political and legal philosophy are inextricably connected. For many of the philosophers who have addressed the question of political obligation, as I shall call it, there is no such inevitable connection. Notice, to begin, that no respectable theory of political obligation ever claimed that a person is obligated no matter what to obey the laws of a legal system to which he or she is subject. Every minimally plausible theory sets out certain conditions under which such an obligation is said to arise, and Dworkin’s is no exception. Many such theories have, however, regarded these conditions as ones that do not figure in any essential way in the concept of law itself. They assume that law constitutes a system of norms the existence and content of which can be established by, say, looking to certain kinds of social facts, and then asking whether or not a given legal system meets a set of independently specifiable conditions; if these conditions are met, then a general obligation to obey is said to exist. Arguments based on consent are often (although not necessarily) of that form; they look to an independently specifiable condition that asks whether or not everyone who is subject to a legal system has validly consented to obey its laws, whatever they are. The argument from fair play is also of this form; it looks to an independently specifiable set of conditions that asks, first, whether the content of the norms of the system show it to be a mutually beneficial scheme of cooperation, and, second, whether or not those subject to the system have “accepted” its benefits.2 There are, as Dworkin points out, well-known problems with both arguments if they are regarded as the basis of a general obligation to obey the law, since it is never the case that everyone subject to any given legal system has validly consented to obey it or has accepted, in the appropriate sense, certain benefits it happens to provide (LE at 192-95). My present point, however, is that these arguments treat the philosophical problem of political obligation as for the most part independent of the philosophical problem about the nature of law.
    Georgetown University School of Law: Abbe Smith.
    Northwestern Empirical Legal Studies: Margaret Brinig, William G. Hammond Distinguished Professor of Law, University of Iowa, "The Effect of Change in Child Custody Standards".
    Oxford Centre for Socio-Legal Studies: Richard Whitecross, Legal Culture: Bringing the Theoretical and Empirical Closer Together: Citizenship and Belonging: Law and Identity in a Himalayan State.
    Oxford Intellectual Property Research Centre: Dr Christine Greenhalgh & Dr Mark Rogers, Intellectual Property in the New Millennium: The Use of Intellectual Property by the UK Financial Services Sector.


 
Berman on World Law Harold Berman (Emory University - School of Law) has posted World Law: An Ecumenical Jurisprudence of the Holy Spirit on SSRN. Here is the abstract:
    By "world law" is meant the common features of the legal systems of the world, and especially the body of customary law that is gradually being created by the people of the world in their transnational interrelationships. Included are many aspects of world economic law, such as bankers' letters of credit, negotiable instruments, and documentary trade terms. Included also inter alia are world sports law enforced by the Court of Arbitration of Sport in Lausanne, Switzerland, universal criminal law administered by the International Criminal Court, much of intellectual property law, and much of human rights law. The article proposes a theory of jurisprudence that is appropriate to the development of such a common law of mankind. Such a jurisprudence would integrate the traditional schools of positivism, natural-law theory, and the historical school - positivism stressing will (the policies of the lawmaker), natural law stressing reason (moral values inherent in human nature), and the historical school stressing group memory (community traditions). According to St. Augustine, these three interlocking qualities of the human mind - will, reason, and memory - reflect the image of the tri-une God and were implanted by Him in man. In the West, the three schools of legal thought split apart from each other in the nineteenth and early twentieth centuries. In the new world economy and the emerging world society of the late twentieth and twenty-first centuries, the Holy Spirit challenges us to re-integrate them in the gradual creation of the body of world law.


 
Johnson and Fuentes-Rohwer on Racial Diversity on the Judiciary Kevin R. Johnson and Luis E. Fuentes-Rohwer (University of California, Davis - School of Law and Indiana University School of Law - Bloomington) have posted A Principled Approach to the Quest for Racial Diversity on the Judiciary (Michigan Journal Race & Law, Vol. 10, 2005) on SSRN. Here is the abstract:
    As has been the case with respect to many political and social institutions in American society, diversity has been demanded, and at times pursued, in the nomination and appointment of state and federal judges. Nonetheless, commentators have long lamented the lack of diversity among judges in the United States. U.S. Supreme Court appointments epitomize the glaring lack of diversity on the federal judiciary. Not until 1967 did President Lyndon Baines Johnson appoint the first African American Justice, Thurgood Marshall, to the Court. Since then, a more diverse group of judges has served on the state and federal courts than throughout much of U.S. history. Work remains to be done, however. No Latina/os, Asian Americans, or Native American have ever served on the U.S. Supreme Court. Relatively few African Americans, Latina/os, and Asian Americans, and no Native Americans serve on the federal bench today. Scholars rarely analyze what concrete impact diversifying the judiciary may have on the operation of the courts, including judicial decision-making and the public’s perception of the justice system. Even if advocating greater diversity among judges, few observers have been particularly clear about the concrete benefits to be gained by appointing and nominating a more diverse cadre of judges. This article, which is part of a symposium on judicial selection, explores the substantive impacts that increased racial diversity of judges might have on the decision-making process as well as in how the general public views the courts, as fair and impartial tribunals or not. This article brings to bear fundamental tenets of Critical Race Theory - specifically, the concept of a "voice of color" - on the analysis of the possible impacts of greater racial diversity on the courts. It further analogizes the judges to juries and contends that, as diversity among juries does, pulling a group of judges from a cross section of the community may both benefit the decision-making process and improve public perceptions of the impartiality of judicial decision-making. Importantly, a more diverse judiciary is more likely to be an independent judiciary. To the extent that judges are racial minorities, they can be expected to be more independent than other judges.


 
Shepherd on End-of-Life Decisionmaking Lois Shepherd (Florida State University - College of Law) has posted Shattering the Neutral Surrogate Myth in End-of-Life Decisionmaking: Terri Schiavo and Her Family (Cumberland Law Review, Forthcoming) on SSRN. Here is the abstract:
    In the Terri Schiavo case, different family members who want the legal authority to make decisions for Terri Schiavo have sought different treatment options - with results as opposed as life and death. Had the case not come before the courts, Michael Schiavo, Terri's husband, would have had Terri's feeding tube removed long ago; Terri's parents, Mary and Robert Schindler, if either had been named surrogate in Michael's stead, would continue feeding her indefinitely. Recognizing, as the Schiavo case highlights, that who among family members speaks for the patient can determine the course of treatment or non-treatment for a patient, it is necessary to turn renewed attention to the question of why families, whether we define them as spouses or parents, are involved in the end-of-life decisionmaking of their relatives. Are they merely a representative or even fiduciary of the patient or are they stakeholders in their own right? Do we look to family members as surrogates because they ensure a sounder process, a neutral process, for determining patient preferences and interests, or do we look to family members as surrogates because we recognize that families want to be (and perhaps should be?) involved? This paper argues that some deference to family members' own interests can be justified on the grounds of a broad notion of patient self-determination, but some degree of deference might also be justified out of respect for family members' own interests. Our law should not demand strict neutrality of these family members, but should acknowledge that their interests may have value as well. At the same time, there must be limits: the family's preferences and interests should not be allowed to overshadow those of the patient.