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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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Monday, October 31, 2005
 
Hasen Predicts Check out Rick Hasen's prediction re the outcome of the Alito nomination here. Here's a taste:
    am ready to make my next prediction: Judge Alito will not be confirmed, because Democrats will threaten to use the filibuster for a nominee they will strongly paint as anti-choice. Moderate Republicans, such as Olympia Snowe, won't vote to trigger the nuclear option, and Judge Alito will not get a vote on the floor of the Senate. My level of confidence in this prediction: not high.


 
Weekend Update On Saturday, the Download of the Week was Putting a Price on Pain-and-Suffering Damages: A Critique of the Current Approaches and a Preliminary Proposal for a Change by Ronen Avraham and the Legal Theory Bookworm recommended America's Constitution : A Biography by Akhil Reed Amar. On Sunday, the Legal Theory Lexicon entry was Deontology and the Legal Theory Calendar previewed this weeks workshops and conferences.


 
Monday Calendar
    University of Alabama Law: Margaret Howard, Washington and Lee, Bankruptcy Federalism.
    Columbia Legal Theory Workshop: Alon Harel of Hebrew University in Jerusalem, "The Right to Judicial Review"
    London School of Economics: Meghnad Desai (LSE), Measures of Development
    NYU Law: Sam Estreicher & Shmuel Leshem
    UCLA Law: Professor Muneer Ahmad, American University, Washington College of Law, Interpreted Communities: Lawyering Across Language Difference


 
Call for Papers: Collective Intentionality
    CALL FOR PAPERS (closing date 15 February 2006) CONFERENCE ON COLLECTIVE INTENTIONALITY V 31st August – 2nd September 2006 Helsinki, Finland http://www.valt.helsinki.fi/staff/tuomela/collint/ Keynote Speakers: Michael E. Bratman (Stanford University) Margaret Gilbert (University of Connecticut) Larry May (Washington University) Georg Meggle (University of Leipzig) The research project “The We-Perspective, Social Institutions and Social Change” (located at the Department of Social and Moral Philosophy, the University of Helsinki) and the Philosophical Society of Finland invite papers for the 5th International Conference on Collective Intentionality. Part of the conference will be devoted to the special theme of collective responsibility, but papers on any aspect of the theory of collective intentionality are most welcome to the conference. Although the theory of collective intentionality has for the most part been a philosophical affair, also social scientists, psychologists, cognitive scientists and computer scientists are strongly encouraged to submit papers to the conference. Please see the conference website for more information both on the special theme and on the different areas of research the conference covers. Submission should include an extended abstract (1500-2000 words) outlining the argument of the paper and a separate title page listing the author’s name, address, phone number, and e-mail address. There should be no identifying information in the body of the abstract. Reviewing will be blind and carried out in co-operation with the international scientific committee formed to support the collective intentionality conferences. The material (abstract, title page) should be sent in as an attachment to an e-mail (preferably in PDF, MS Word, RTF, or PDF format) to the following e-mail address: collint-v@helsinki.fi. The closing date for submissions is Wednesday 15th February 2006. Notification of accepted papers will be sent by 15th April 2006. Full papers (presentation time strictly no more than 30 minutes) are expected by 15th June 2006. This is to ensure that the papers can be made available at the conference website in advance of the conference. The conference is open to all researchers and scholars. However, all participants are asked to register by sending an email to collint-v@helsinki.fi by 15th May 2006. A conference fee (amount to be confirmed) will be payable at the conference. For more information, please consult the conference website at http://www.valt.helsinki.fi/staff/tuomela/collint/ or email collint- v@helsinki.fi.


 
Conference Announcement: Comparative Hate Speech Regulation at Cardozo
    A Comparative Examination of Hate Speech Protection Cardozo School of Law November 6 &7, 2005 Hardly a day goes by without another report of a legal controversy somewhere in the world regarding the regulation of hate speech. Three French writers and Le Monde are ordered to pay one Euro each to Attorneys Without Borders for defaming Jews in an op-ed article. An Englishman is prosecuted for posting a sign saying “Islam out of Britain”; his conviction is upheld by the European Court of Human Rights. An Australian preacher is found to have violated the Racial and Religious Tolerance Act as a result of statements made during a seminar on Islam and the future of Australia. A Canadian court concludes that holocaust denial is not a form of legally proscribed hate speech. A Pentecostal pastor is found guilty of violating Sweden’s hate-speech law with a sermon that labeled homosexuality “a deep cancerous tumor” and equated it with pedophilia; a court of appeals overturns the conviction. The Council of Europe approves an amendment to a cybercrime treaty that would make it illegal to distribute or publish anything online that “advocates, promotes or incites hatred (or) discrimination”; both the Bush Administration and the American Civil Liberties Union immediately voice their opposition. The problem is not only topical, it is one that is approached in quite disparate ways by different jurisdictions. In the United States, courts are generally hostile to regulation of hate speech, applying the First Amendment with vigor and assuming that the solution to the harms hate speech causes is not suppression but more speech. In most of the rest of the world, in contrast, “reasonable” regulation of hate speech is accepted as both important and supportive of democratic values. The goal of this international conference is to better understand the regulation of hate speech in a comparative perspective. By drawing participants from around the world to consider the fundamental issues of the protection or regulation of hate speech, the hope is that insights can be achieved by considering the divergent approaches of different jurisdictions that are unavailable when focusing on a single system or tradition. For more information, see www.cardozohatespeech.com. SCHEDULE Sunday, November 6, 2005 3:00 – 3:30 Registration, Coffee 3:30 – 3:45 Opening Remarks, Michael Herz, Cardozo School of Law 3:45 – 5:30 Panel I - Overview: The Jurisprudence and Nature of Hate Speech Regulation Ed Baker, University of Pennsylvania Law School Alon Harel, Hebrew University of Jerusalem Fred Schauer, Kennedy School of Government, Harvard University Wayne Sumner, University of Toronto 6:00 – 8:00 Dinner for Panelists and Conference Fellows Monday, November 7, 2005 9:15 – 9:45 Registration, Coffee 9:45 – 10:00 Hate Speech and Media Freedom Miklos Haraszti, Representative on Freedom of the Media, Organization for Security and Co-operation in Europe 10:00 – 12:00 Panel II - Hate Speech Dichotomies: liberty/equality, speech/conduct, suppression/counterspeech Katharine Gelber, University of New South Wales Peter Molnar, Central European University Russell Robinson, UCLA Law School Bernhard Schlink, Humboldt University 12:00 – 1:00 Lunch 1:15 – 2:00 Keynote Address by Bhikhu Parekh Lord Parekh, Member of the House of Lords, and Professor of Political Philosophy, University of Westminster, will speak on “Is There a Case for Limiting Hate Speech?” 2:15 – 4:00 Panel III - Comparative Inquiries Thomas Hochmann, University of Paris I – Sorbonne Morris Lipson, Open Society Foundation Yared Legesse Mengistu, Central European University Amnon Reichman, University of Haifa Julie Chi-hye Suk, Cardozo School of Law 4:00 – 4:15 Coffee 4:15 – 5:45 Roundtable Discussion Kathleen Mahoney, University of Calgary Tarlach McGonagle, University of Amsterdam Otto Pfersmann, University of Paris I – Sorbonne Andras Sajo, Central European University Mark Tushnet, Georgetown University Law Center James Whitman, Yale Law School David Rudenstine, Cardozo School of Law (discussion leader)


 
Alito President Bush will nominate Samuel Alito to replace Sandra Day O'Connor as Associate Justice of the Supreme Court of the United States. Some links:The official announcement will be at 8:00 a.m. Eastern Standard Time.


Sunday, October 30, 2005
 
Legal Theory Calendar
    Monday, October 31
      University of Alabama Law: Margaret Howard, Washington and Lee, Bankruptcy Federalism.
      Columbia Legal Theory Workshop: Alon Harel of Hebrew University in Jerusalem, "The Right to Judicial Review"
      London School of Economics: Meghnad Desai (LSE), Measures of Development
      NYU Law: Sam Estreicher & Shmuel Leshem
      UCLA Law: Professor Muneer Ahmad, American University, Washington College of Law, Interpreted Communities: Lawyering Across Language Difference
    Tuesday, November 1
      Georgetown Law: Jonathan Marks, "9/11 + 3/11 + 7/7 = ?: What Counts in Counterterrorism"
      Lewis & Clark Law: Susan Mandiberg, Why the Federal Sentencing Guidelines Were Doomed to Failure.
      Oxford Intellectual Property Research Centre: Dr Greenhalgh & Dr Mark Rogers, Trade Marks & Performance in Services
      USC : Direct Democracy on the Brink: The California Special Election. This looks like a fabulous event! Be sure to click through for the lineup of speakers!
    Wednesday, November 2
      University of Chicago, Law & Economics: Eric Talley, USC Law School, Optimal LIability for Terrorism
      University College, London, Mellon Foundation: Andrea Baumeister (Stirling), Diversity and Unity: The Problem with Constitutional Patriotism
      Philosophy of Education, London: Graham Haydon, On the Duty of Educating Respect: a response to Robin Barrow's 'On the Duty of Not Causing Offence'
      Northwestern Law & Economics: Randy Kroszner, Professor of Economics, University of Chicago.
      NYU Legal History: Gerard Magliocca, Associate Professor of Law , Indiana University School of of Law, Indianapolis, "One Turn of the Wheel: Andrew Jackson and the Modern Constitution."
      Oxford Centre for Criminology: Susanne Karstedt, Al Quaida is not a Network but an Ideology: Global Social Movements and Local Terror
      Villanova University Law: Marc Galanter, University of Wisconsin Law School.
    Thursday, November 3
      Oxford Jurisprudence Discussion Group: Richard Ekins, Balliol College, Oxford, Legislative Intent and Group Action.
      University of Michigan Law & Economics: Jesse Fried, UC-Berkeley, The Vulnerability of Common Shareholders in VC-Backed Firms
      University of Minnesota Public Law Workshop: Regina Austin, University of Pennsylvania Law School, Article: Law-Genre Documentaries and Visual Legal Advocacy
      Brooklyn Law School: Kimberly Yuracko, Northwestern University School of Law, Trait Discrimination as Race Discrimination: An Argument About Assimilation
      Boston University Law: David Lyons, "Rights and Recognition"
      Fordham University Law: Rachel Moran, Robert D. & Leslie-Kay Raven Professor of Law, University of California at Berkeley (Bacon-Kilkenny Distinguished Visiting Professor, Fordham University School of Law, Fall 2005), "Of Doubt and Diversity: The Future of Affirmative Action in Higher Education"
      Florida State University Law: Paul Rubin, Emory University School of Law.
      American University, The First Annual Distinguished Lecture on Intellectual Property: Pamela Samuelson, UC Berkeley, “Copyright and Consumer Protection”
      London Institute of Philosophy Conference and Seminar Series: Lizzie Fricker (Oxford), Testimony and Epistemic Authority
      British Institute of Human Rights, London: Michael Drolet (Oxford), Foundations and Anti-Foundations: Quentin Skinner and Jacques Derrida on Power and the State
      NYU Colloquium in Law, Philosophy, and Political Theory: Elizabeth Harman - Reading # 9 - November 3rd, 2005 Elizabeth Harman, The Mistake in "I'll Be Glad I Did It" Reasoning: The Significance of Future Desires & Sacred Mountains and Beloved Fetuses: Can Loving or Worshipping Something Give It Moral Status?
      Loyola Law School, Los Angeles: John T. Parry, Visiting Professor of Law, Lewis & Clark Law School, "The Shape of Modern Torture: Extraordinary Rendition and Ghost Detainees"
      Oxford Public International Law Discussion Group: Dr Rosalie Balkin, Diplomatic conference on the revision of the Suppression of Unlawful Acts Against the Safety of Maritime Navigation Treaties
      Oxford Institute of European and Comparative Law: Professor Javier Lete Achirica, The Regulation of Unfair Contract Terms in Spanish Law.
      Oxford Centre for Socio-Legal Studies & Public Interest Law Programme: Daniel Machover and Kate Maynard, The recent attempt by Metropolitan Police to arrest the Israeli General, Doron Almog, at Heathrow Airport for grave breach of the Fourth Geneva Convention 1949, in the Occupied Territories of West Bank and Gaza
      University College London, Faculty of Law: Dr Jorge Fedtke (UCL), ‘Identity Cards and Data Protection: Security Interests and Individual Freedom in Times of Crisis’
      University of Pennsylvania Philosophy: Michele Moody-Adams, Cornell University, What's So Special About Academic Freedom?
      Vanderbilt Law: Christopher Yoo, Vanderbilt Law School, "Copyright and the Theory of Impure Public Goods"
      Yale Legal Theory Workshop: Peyton Young, Johns Hopkins University (Economics), The Power of Norms
    Friday, November 4
      Georgetown Intenational Human Rights Colloquium: Laura Dickinson, University of Connecticut School of Law, "Democracy and Trust"
      University of Mississippi Law: The Americans with Disabilities Act at 15: Past, Present, and Future. Participants include Peter Blanck, Kaaryn Gustafson, Ann Hubbard, Miranda McGowan, Camile Nelson, Michael Stein, and Michael Waterstone.
      Boston College Law: Adam J. Hirsch, William and Catherine VanDercreek Professor of Law, Florida State University College of Law, Visiting Professor of Law, Boston College Law School.
      Thomas Jefferson Law: Patent Law Symposium.
      Ohio State Legal History: Scott D. Gerber, Ohio State, The Origins of an Independent Judiciary: A Study in Early American Constitutional Development, 1606-1787
      UCLA Law: Kirk Stark, UCLA School of Law.
      University of Pennsylvania Philosophy: Michele Moody-Adams, Cornell University, Arguing with the Past.
      University of Texas Law: Samuel Issacharoff, NYU School of Law, "Backdoor Federalization: Grappling with the Risk to the Rest of the Country"
      William Mitchell Law: Juvenile Justice Symposium


 
Legal Theory Lexicon: Deontology
    Introduction Two weeks ago, the Legal Theory Lexicon explored utilitarianism, an approach to normative moral theory that has had an enormous influence on legal thought. This week, I take up one of utilitarianism's main rivals, deonotology. Deontological moral theories vary in myriad ways, but the focal point for deontology is the concept of duty with its correlative notions of rights and permission. Thus, the distinctive thesis of deontology in general might be formulated as the claim that the rightness of action is a function of whether the action is required, prohibited, or permitted by a moral duty. This is, of course, a simple formulation, and contemporary philosophical theories in the deontological tradition offer more sophisticated and nuanced formulations. This post aims to introduce the central idea of deontological moral theory with special reference to the interests of a first-year law student with an interest in legal theory. Almost every first year course will include deontological ideas. In criminal law, deontology is reflected in the notions that an action cannot be a crime unless it is the violation of a moral duty and in retributive theories of punishment. In torts, deontological theories argue against the economic analysis of tort law and for the idea that tort law is best explained by a theory of corrective justice. In property law, deontological theories emphasize the role of property in creating spheres of autonomy. In contracts, the deontological approach results in the idea that contract is fundamentally explained by the duty to keep a promise. And even in civil procedure, deontological ideas appear in the view that litigants have a right to a "day in court."
    What Rights and Duties Do We Have? The idea that some actions are wrong and therefore forbidden has a strong intuitive appeal. And we can easily generate a list of action types that are at least ceteris paribus wrongful: telling lies, breaking promises, intentionally killing or injuring an innocent person, stealing, and so forth. For some purposes, a simple list of wrongs may be sufficient. But philosophers and legal theorists are unlikely to be satisfied with a list. Why not? Because the content of the list is likely to become controversial. Lying belongs on the list, but what about the failure to make a full disclosure to a stranger in an arms length commercial transaction? Battery is on the list, but should the exception for self-defense be extended to defense of property?
    So what method or principle allows us to identify the list of duties, rights, and permissions that would provide the content of a fully specified deontological moral theory? One possibility is that we would identify the list by appeal to our sense of what is right and wrong. Let's give that sense a fancy name: call it "moral intuition." One possible method for identifying the content of a deontological moral theory would be to consult our moral intuitions about particular cases. But objections to this method are likely to arise immediately. For example, my intuition may not agree with your intuition. What then? Even if I consult only my own intuition, I may come to see that my intuitions about particular cases are not consistent at the level of principle. My intuition makes an exception for lies told to instructors as excuses for turning in late papers, but not for lies told to friends as excuses for extreme lateness.
    Raw moral intuitions might be refined through a technique suggested by the philosopher John Rawls--the method of reflective equilibrium. We might aim to order our raw moral intuitions by positing some general principles that would explain and unify our considered judgments about particular cases. Once we have a set of general principles, it may turn out that some of our considered judgments about particular cases need to be revised. In other cases, a general principle may conflict with a considered judgment about a particular case that we hold very firmly. In such a case, we may wish to modify our general principles. If we work at it, we might eventually reach a point where our revised general principles are in agreement with our revised judgments about particular cases. Rawls call this state "reflective equilibrium." The same procedure might be used collectively to resolve conflicts between the judgments of different individuals; Norman Daniels call this interpersonal use of reflective equilibrium, "wide reflective equilibrium."
    Kant Reflective equilibrium is one way to specify the content of a deontological moral theory. The German philosopher Immanuel Kant provides another. Before I proceed any further, I want to make it clear that what I am about to say does not provide anything close to even a basic introduction to Kant's moral philosophy. That would take a series of several Legal Theory Lexicon posts. Nonetheless, we can get a glimpse of one of Kant's most important ideas, the categorical imperative. Kant believed that duty was the central moral idea, and he recognized the problem of specifying duty. Kant had a particularly deep and interesting solution to that problem which begins with the idea of a good will: "Nothing can possibly be conceived in the world or out of it that can be called good without qualification except a good will." And a good will is a will that aims for the good and not merely for the objects of desire and inclination. If we act on the basis of a hypothetical imperative (if I want X, then I should do Y), we act on the basis of desire and inclination--"heteronomously" in Kant's terminology. In order to aim for the right, we must act on the basis of a categorical imperative, that is, on the basis of a reason or principle that does not include a desire or inclination. (In Kant's terminology, this would be acting "autonomously.") So what would a categorical imperative look like? Kant's answer to this question is stunningly brilliant--one of the most awesome moves in the history of philosophy. Kant suggested that one could act on the basis of a categorical imperative by consulting what he saw as three equivalent formulas:
      The Formula of the Law of Nature: "Act as if the maxim of your action were to become through your will a universal law of nature."
      The Formula of the End Itself: "Act in such a way that you always treat humanity, whether in your own person or in the person of any other, never simply as a means, but always at the same time as an end."
      The Formula of the Kingdom of Ends: "So act as if you were through your maxims a law-making member of a kingdom of ends."
    Onora O'Neill, the great Kant scholar, has a really wonderful essay called A Simplified Account of Kant's Ethics. If you are still reading this post and you haven't already read O'Neill's piece, download the word file and read it now--believe me it is worth it.
    O'Neill focused on the formula of the end itself, so let me say just a few words about the formula of the law of nature by giving an example. Suppose you are deciding whether to tell a lie to a friend to get out of a lunch date. You first ask yourself, "What is the maxim (or principle) of my action?" Suppose the answer is "Lie when convenient!" Now, you imagine that if you were to lie to your friend the principle upon which you acted would become a universal law of nature--everyone would one lie when it was convenient. Could or would you do this? Arguably not, for two reasons. First, if everyone were to lie whenever it was convenient, human communication might become impossible, because no one could be trusted. The maxim--lie whenever convenient--has a contradiction in conception, because the lie would never be believed in the possible world in which the maxim of your action was a universal law of nature. Second, if one can imagine a world in which everyone lies when convenient, you might not be willing to lie on this occasion if the result of your action was that the maxim--lie whenever convenient--were to become a universal law of nature as a result. You might not want others to lie to you when they thought it was convenient--we can call this a contradiction in the will. Of course, my analysis of this example has been very sketchy and crude, but I hope that I have done enough to give you the general idea.
    Some Objections to Deontology All of the main approaches to moral theory are controversial, and because the debates have been raging for centuries, the arguments are now enormously complex. So I am going to give two very simple objections to deontology, with the warning that the current state of play on these objections is now so complex and ramified that you really must be a specialist to give even a rough summary.
      The Indeterminacy Objection. The first objection is that the content of a deontological moral theory is underdeveloped by the various methods for deriving a set of duties, rights, and permissions. So, for example, the method of reflective equilibrium may help us to order our considered judgments about particular rights, duties, and permissions, but it might be objected that this method is unlikely to settle any of the major disputes about what the duties, rights, and permissions actually are. Different people will arrive at different reflective equlibria. Even a single individual may come to believe that a variety of equilibriums are equally plausible or that her view of the most stable equilibrium is unstable, changing frequently in response to new examples or arguments. Kant's approach is subject to the same objection, with many critics arguing that Kant's method does not produce unique answers to particular questions about duty. Deontological moral theorists might counter that although their methods may not always produce unambiguous answers that will produce universal assent, that this is an unrealistic criterion for an acceptable moral theory. Particular deontological theories may allow the zone of moral disagreement to be narrowed and provide illuminating insights about particular cases.
      The Rigor Objection. The second objection begins with the assumption that deontology does produce determinate answers to particular questions of morality, but argues that the answers are implausible, because they are too demanding or inflexible. Consequentialist critics of deontology argue that absolute rights, duties, and permissions can lead to consequences that would not be morally acceptable. One famous hypothetical, based on Kant's discussion of lying, imagines that you are in Germany before World War II and a Nazi has come to your door and inquired whether you have seen a Jew who has escaped. If there is an absolute moral duty to tell the truth, then you are not permitted to lie in response, but telling a lie may be the only way to save the life of an innocent person. Surely, the consequentialist argues, telling the lie is not only morally permissible, it is morally required. Deontologists can try to escape from examples like these in a variety of ways. For example, the deontologist might simply argue that there is no duty to tell the truth to evil doers who will use the truth for evil purposes. Or the deontologist might argue that this is a case which duties conflicts, and that some higher order principle favors the duty to protect the innocent person from evil over the duty to tell the truth. Or the deontologist might allow that duties can be overridden by consequences in some circumtances. Some deontologists may bite the bullet and argue that one is required to tell the truth, even if the consequences are horrific.
    Conclusion In a sense, the battle between deontology and consequentialism is one of the great battles of contemporary legal theory. Legal theorists argue over deontological and consequentialist theories of contract, tort, property, criminal law, procedure, constitutional law, and many other doctrinal fields. As a law student, you might start to look for deontological arguments in cases and class discussion. Almost every time class discussion turns to the question, "What should the rule be?," you will be able to construct both consequentialist and deontological arguments for and/or against the various possible rules. Getting the hang of normative legal theory is, in large part, a matter of mastering a set of consequenitalist and deontological moves.
    Links Bibliography


Saturday, October 29, 2005
 
Saturday Calendar


 
Legal Theory Bookworm The Legal Theory Bookworm recommends America's Constitution : A Biography by Akhil Reed Amar. Here's a review by Scott Turow:
    By granting federal judges lifetime tenure, our Constitution did not merely seek to guarantee the independence of the judiciary but also its stability. Thus the recent twin vacancies on the Supreme Court portend dramatic changes in the personality of an institution not built for hairpin turns. But the uniqueness of the moment has largely been lost to common perception because the political rhetoric surrounding it is so familiar. When President Bush first introduced John G. Roberts Jr., who ultimately became his choice to replace the late William Rehnquist as the 17th chief justice, Bush said he was confident that Roberts "will strictly apply the Constitution" and would "not legislate from the bench." The president chose his phrases carefully: "Strict construction" of the actual words of the Constitution has been political code for some time now. Conservatives have been calling for unrelenting adherence to the sacred founding text since the 1960s in the wake of decisions like Griswold v. Connecticut, which struck down a state ban on contraceptive sales; Justice William O. Douglas, speaking for the court, determined that there was a constitutional right to marital privacy divined because the "specific guarantees of the Bill of Rights have penumbras formed by emanations from those guarantees." (Ironically, during his confirmation hearings, Roberts agreed with the result in Griswold and with the fact that there is a constitutional right of marital privacy.) But leaving aside the shapes found in the shadows, what exactly does the Constitution say? It's a fair bet that many on both sides of the "strict construction" debate don't really know; after all, a recent poll by the American Bar Association indicated that nearly half of all Americans couldn't even identify the three branches of government. Thus Akhil Reed Amar's America's Constitution: A Biography is auspiciously timed. The book's aim -- in the words of Amar, a professor at Yale Law School -- is "introducing the reader both to the legal text (and its consequences) and to the political deeds that gave rise to the text." This volume is nothing less than a word-by-word examination of the controlling phrases in the Constitution, beginning with the preamble and continuing through the 27th and most recent amendment. The result is a book that is elegantly written, thorough but concise, and consistently enlightening. As the subject suggests, however, it is far from light reading. In college, I was taught that the Constitution was essentially a reactionary document, a view that had become standard in the wake of the historian Charles A. Beard's epochal 1913 study, An Economic Interpretation of the Constitution of the United States. Beard had contended that the Declaration of Independence contained a broadly idealistic vision of American democracy premised on John Locke's notion that "all men are created equal." The Constitution, on the other hand, was meant to serve the interests of the wealthy; it subverted democratic ideals, especially with its odious compromise providing that each slave be counted as three-fifths of a person for purposes of determining the population upon which congressional districts would be based. Not so, Amar argues. Beginning with its ringing first words -- "We the People of the United States" -- the Constitution, in his view, embodies a profoundly democratic vision of the nation it summoned into being. He points out that the ratification process for the new Constitution "allowed a uniquely broad class of citizens to vote" for the delegates to the state conventions that approved the document -- often reducing (or, in the case of New York, entirely abandoning) property qualifications for free adult males wanting to vote. While an electorate that excluded more than half the voting-age population is nothing to celebrate by contemporary lights, Amar notes that at the time "all this was breathtakingly novel. In 1787, democratic self-government existed almost nowhere on earth." He buttresses this point repeatedly as he analyzes the Constitution's provisions, emphasizing, for example, Madison's celebration that the Constitution established "no qualification of wealth, of birth, of religious faith, or of civil profession" for election to any federal office, including the presidency. Indeed, Amar posits that the idea of a fundamental equality between citizens was pivotal if the Constitution was to accomplish the strategic aims of the federalists, who wanted to create a durable union with a united defense. They were inspired, in large measure, by a fear that the former colonies were headed the way of Europe, a continent of pocket sovereignties beset by perpetual rivalries and wars. By emphasizing the conviction that power was derived from the people rather than from the states, the Framers found an intellectual foundation for a perpetual union from which no individual state could then withdraw. That vision, however, collided with the reality that the sovereign states had to be persuaded to join. To accomplish that, the Framers adopted the three-fifths rule, which guaranteed that the slaveholding states, which would be outnumbered in the new Senate, could offset that advantage by wielding political authority in the House greater than their actual number of voters. Indeed, in one of his most fascinating asides, Amar argues that the electoral college -- often derided as one more anti-democratic mechanism intended to prevent the people from directly choosing their president -- was in fact an element of this compromise with the South. Direct election of the president, he argues, was impossible in 1787; after all, before the rise of political parties, presidential candidates were virtually unknown outside their home states. The point of the electoral college, which apportioned votes among the states based on their total number of representatives in the House and Senate, was to extend the legislative power that the South had achieved with the three-fifths rule to the executive branch as well. As one expects from the best history, America's Constitution illumines many contemporary debates. One of the book's principal lessons is an unsurprising one: Even careful attention to the actual words of the Constitution can lead to interpretative disputes. For example, as was often evident during the Roberts hearings, many on both sides of the aisle in Congress have been greatly chagrined by a series of Rehnquist court decisions espousing a view that observers have labelled "the New Federalism." These opinions have struck down congressional enactments on the grounds that they do not fall within the powers granted Congress under the "commerce clause" and require that the issues addressed be left to the states. (Article I empowers Congress "To regulate Commerce with foreign Nations, and among the several States. . . . ") One reason these decisions came as such a surprise is that "Commerce" has traditionally been read by the Supreme Court as referring to commercial activity, leaving Congress free to act whenever there is any national economic effect to the conduct it has sought to regulate. But in 2000, in United States v. Morrison, the Rehnquist court struck down a portion of the 1994 Violence Against Women Act that had created a federal right to sue for gender-inspired violence, with the chief justice stating that the commerce clause still requires "a distinction between what is truly national and what is truly local." In these pages, Amar contributes a novel interpretation that might clarify the present debate and even bolster the New Federalism. He notes that " 'commerce' also had in 1787, and retains even now, a broader meaning referring to all forms of intercourse in the affairs of life." So read, Congress's power to act would hinge not on the question of whether an activity had a potential economic effect but whether "a given problem genuinely spilled across state or national lines." On the other hand, Amar also emphasizes that contemporary judicial power, in which even the supposedly conservative Rehnquist court freely declared acts of Congress constitutionally out-of-bounds, may itself be a departure from the original text, notwithstanding the mantra-like invocations of "strict construction." The Constitution speaks repeatedly of a "supreme Court" -- with, as Amar points out, a small "s." As envisioned by the framers, the judicial branch was clearly subordinate to the other two. Judges were selected through the combined power of the president and Senate, and the courts' authority to hear appeals was to be exercised "with such Exceptions, and under such Regulations as the Congress shall make." The size of the Supreme Court and the very existence and location of inferior federal courts were purely matters of congressional will. Thus the words of the Constitution give little reason to anticipate that the Supreme Court, for example, would decide a presidential election, as it did in 2000, rather than leaving the matter to Congress. Amar's gloss on the text helps explain a growing cleavage on the right in which congressional conservatives like House Majority Leader Tom DeLay (R-Tex.) have recently criticized even the Rehnquist court for having far overreached its constitutional role. I have only one cavil with this book, and that does not deal with its merits but with the way it is being marketed. Amar's publisher calls this a "general-audience book." If that means that Amar writes with ease and precision and largely avoids the desiccated abstractions of constitutional analysis -- no lay person would want to try to understand the differences between "strict scrutiny" and "medium scrutiny," for example -- it is surely true. But the subtitle "A Biography" suggests that, like recent popular volumes about John Adams, George Washington and Alexander Hamilton, this is another exciting story of America's founding. Amar is a chaired professor at one of America's best law schools, and his book is, at heart, a scholarly work of intellectual history, accompanied by 128 pages of endnotes. It is about ideas and words, not personalities. Even James Wilson, whom Amar promotes as a framer whose significance and wisdom have been overlooked, appears here only as a voice without a body or biography. I expect to be taking Amar's volume off my shelf for years to come as an indispensable reference whenever I want to know more about the actual words that underpin contemporary constitutional debates. But there is no dramatic arc to this book, no story to its history: It simply goes from the front of the Constitution to the back. It is, however, an uncommonly engaging work of scholarship and deserves to be valued as such.


 
Download of the Week The Download of the Week is Putting a Price on Pain-and-Suffering Damages: A Critique of the Current Approaches and a Preliminary Proposal for a Change by Ronen Avraham. Here is the abstract:
    Pain-and-suffering awards make up approximately fifty percent of total awards, at least in some areas of personal injury cases. It is the subject of almost every tort reform, including the current administration attempts to reform medical malpractice law. Is there a rational way to quantify pain-and-suffering awards? In this paper, written for a special centennial issue of NU law review, I explain some of the suggestions for pricing pain-and-suffering put forward in the literature and preliminary offer a different way to look at the problem. The theoretical approach I adopt in this paper to the pricing of pain-and -uffering is to analyze it from a law and economics standpoint, which also incorporates a limited notion of global fairness. My starting point is the "majority view" which states that efficient tort law requires pain-and-suffering damages to be awarded so tortfeasors will internalize the full social costs of their conduct, including the non-monetary ones. My focus in this paper is the fundamental unresolved issue of how to price such damages. After reviewing various proposals for pricing pain-and-suffering, I argue that all of these proposals are analytically problematic, and undesirable as a matter of policy. I then propose a new way to price pain-and-suffering. Under my proposal, a system of age-adjusted multipliers would be assigned to plaintiffs' medical costs (but not to other economic costs) in order to calculate the pain-and-suffering component. The multipliers would be non-binding, allowing the jury to fairly deviate when justice required. This system solves the problem of unpredictability and, at the same time, approximates optimal deterrence, all at very low administrative costs. It combines the advantages of efficiency and fairness by having a jury determine awards on a case-by-case basis, without the high complexity of assessing pain-and-suffering losses present in other proposals.
Download it while its hot!


 
Welcome to the Blogosphere . . . to Right Reason, with Roger Kimball, Edward Feser, John Kekes, Roger Scruton, Graeme Hunter, Rob Koons, Francis Beckwith, Chris Tollefsen, and many others.


Friday, October 28, 2005
 
Friday Calendar
    University of Alabama Law: Fred Zacharias, University of San Diego School of Law, The Images of Lawyers
    University of Chicago Legal Forum: Symposium, Life and Law: Definitions and Decisionmaking. Fred Schauer will be giving the keynote address.
    Georgetown International Human Rights Colloquium: Allison Marston Danner, Vanderbilt University School of Law, "When Courts Make Law: How International Criminal Tribunals Recast the Laws of War"
    William Mitchell Symposium: Special Tactics for a Secret War
      Keynote Speaker: John A. Rizzo, Acting General Counsel, Central Intelligence Agency Panelists: Douglas Jehl, The New York Times; John Norton Moore, Walter L. Brown Professor of Law & Director of the Center for National Security Law, University of Virginia; Neal K. Katyal, Georgetown University Law Center Moderator: A. John Radsan, William Mitchell College of Law
    UCLA Law: Bryant Garth, Southwestern, "Law, Lawyers, and Empire: From Foreign Policy Establishment to Technical Legal Hegemony"
    New. St. John’s University School of Law: Edward J. Imwinkelried, The Alienability of Evidentiary Privileges: Of Property and Evidence, Burden and Benefit, Hearsay and Privilege.


 
Announcement: Values in Public Life at the Heytrop Institute
    Heythrop Institute for Religion, Ethics & Public Life VALUES IN PUBLIC LIFE SEMINARS Seminar 1: Values in Public Life: their Sources, Meanings, Expressions Date and Time: 1000 – 1700 on 26 November 2005 (registration from 0930) Venue: Brinkman Room, Heythrop College, Kensington Square, London W8 5HQ Programme
      1000 Welcome and Introductions 1015 Dr Timothy Chappell: ‘Understanding Human Goods’ followed by questions and discussion 1130 Coffee/Tea 1145 Dr Margaret Atkins: ‘Making Sense of Common Goods’ followed by questions and discussion 1300 Lunch 1415 Dr Patrick Riordan SJ: ‘Solidarity in Fulfilment – A Vision for Politics?’ followed by questions and discussion 1530 Coffee/Tea 1545 Panel Discussion with the three speakers 1700 Close
    About the speakers: Dr Margaret Atkins was formerly Senior Lecturer in Theology at Trinity and All Saints College, Leeds, and is Senior Research Fellow at Blackfriars, Oxford. Her publications include editions of Cicero: On Duties (co-edited with Miriam Griffin, 1990), Augustine: Selected Political Writings (co-edited with Robert Dodaro 2001) and Thomas Aquinas Disputed Questions on the Virtues (co-edited with T. Williams, 2005). Dr Timothy Chappell is Reader in Philosophy at the University of Dundee. He is the author of The Inescapable Self (2005), Reading Plato’s Theaetetus (2005), Understanding Human Goods (1998), The Plato Reader (1996), and Aristotle and Augustine on Freedom (1995). He has edited the collections Values and Virtues: Aristotelianism in contemporary ethics (2006) and Philosophy of the Environment (1997), and co-edited, with David Oderberg, the collection Human Values. New Essays on Ethics and Natural Law (2004). Dr Patrick Riordan SJ is Associate Director of the Heythrop Institute forReligion, Ethics & Public Life. He teaches political philosophy at Heythrop College, University of London. His main areas of research are religion in public life, citizenship, and the common good. His publications include Philosophical Perspectives on People Power (2001), and A Politics of the Common Good (1996). To book a place, please write, enclosing a cheque for £25.00 (or the discount rate of £60 if you wish to attend all three seminars in this series) to Moyra Tourlamain, Heythrop Institute for Religion, Ethics & Public Life, Heythrop College, Kensington Square, London W8 5HQ.


 
Request for Proposals: AALS Workshop on Intellectual Property
    Request for Proposals for Paper Presentations and Concurrent Sessions at the AALS 2006 Workshop on Intellectual Property On June 14-16, 2006, the AALS Workshop on Intellectual Property IP in the 21st Century: Policy, Politics, and the Constitution will take place in Vancouver, British Columbia. The Workshop will be part of the AALS Mid-Year Meeting, which also includes the Conference on “New Ideas for Experienced Teachers” and the “Workshop on Criminal Justice Reaching Beyond Its Boundaries: Insights from Other Disciplines and Changing.” By this memorandum, the Planning Committee is requesting proposals for Paper Presentations on intellectual property and competition, and Concurrent Sessions on any topic related to intellectual property. Both requests are described below. I. Paper Presentations on IP and Competition The Planning Committee is soliciting proposals for papers pertaining generally to Intellectual Property and Competition. The Committee takes and encourages a very broad view of the relationship between Intellectual Property and Competition. Papers may deal with topics that consider areas of law traditionally identified as “competition law,” or they may deal with any other way in which competition manifests itself in Intellectual Property. The selected papers will be presented in sessions that will run concurrently following the plenary session on Competition, which will take place on June 15, 2006. The concurrent sessions will run from 10:45 a.m. through 12:00 noon. We are seeking 5 papers and will reserve between 2-3 slots for faculty with less than 7 years experience. Interested faculty should submit a brief (1-3 single spaced page) written description of their proposed paper and a CV. The Planning Committee will select up to five sessions for inclusion in the Conference program by early January 2006. Completed manuscripts of accepted papers will be due by May 15, 2006. These manuscripts will be posted on the AALS website. Authors will also be able to submit an outline or abstract of up to 5 pages for inclusion in the conference program and materials. This outline will be due by April 15 in order to meet deadlines for sending the conference program to print. II. Concurrent Sessions The Planning Committee has reserved a portion of the Conference for sessions proposed and managed by those who are not members of the Committee. These sessions will take place on Friday, June 16, 2006, from 11:45 a.m. through 1 p.m. Sessions may be in any format (e.g. paper presentations, open discussions, panels). Proposals should be from 1-3 single spaced pages and should contain information about the topic, format, and speakers proposed. The Committee is pleased to receive proposals dealing broadly with intellectual property from any perspective. Please submit proposals indicating your name, school, and whether you are submitting for a Paper Presentation or a Concurrent Session. Send the 1-3 page single spaced proposals by e-mail to the AALS care of Gehan Girguis at ggirguis@aals.org by November 15, 2005. Any questions about the proposal should be directed to Professor Alfred C. Yen, Chair of the Planning Committee, at yen@bc.edu. Speakers must pay the registration fee for the workshop and will be responsible for their own travel and other expenses.


 
Conference Announcement: Impartiality and Partiality in Ethics at Reading
    Impartiality and Partiality in Ethics First of Three Annual Conferences organised by the Department of Philosophy at the University of Reading Friday 2nd and Saturday 3rd December 2005 Friday 2nd of December
      1pm Registration and Coffee, Foyer 2pm Prof. Niko Kolodny, University of California at Berkeley, ‘Which Relationships?’ 3.30pm Tea & Coffee, Foyer 3.45pm Prof. John Cottingham, University of Reading, ‘Impartiality and Ethical Formation’ 5.15pm Tea & Coffee, Foyer 5.30pm Prof. Bernard Gert, Dartmouth College, 'Impartiality and Morality’ Saturday 3rd December 9.15am Coffee, Foyer 9.30am Prof. Timothy Mulgan, University of St. Andrews, ‘What should impartialists think about God?’ 11am Tea & Coffee, Foyer 11.15am Dr. Michael Ridge, University of Edinburgh, ‘Fairness and Non-compliance’ 12.45pm Buffet Lunch in The Blue Room, Park House 2pm Prof. Stephen Darwall, University of Michigan, ‘Responsibility Within Relations’ 3.30pm Tea & Coffee
    The last few decades have seen a growing interest in the concepts of impartiality and partiality and their role in ethical theory. From the perspective of virtue ethics and the theory of the good life, it has been argued that favourable treatment for those who stand in some special relationship to oneself (friends, family etc.), and perhaps also for oneself and one’s own projects, is ethically justifiable: certainly permissible and possibly even required. Consequentialist and Kantian approaches, by contrast, have often been concerned to emphasise the idea of impartiality as basic to the moral point of view, and there has been much debate about whether these respective approaches should endeavour to accommodate, or alternatively to resist, the demands of partiality. The problems and tensions inherent in this debate have a long ancestry: for example partialistic elements are prominent in much of Aristotelian ethics, while a strongly impartialist perspective is discernible in some of Plato’s writings; or again, the writings of medieval and early-modern philosophers from Aquinas down to Spinoza and beyond reflect the dual concerns within the Judaeo-Christian moral outlook both for personal affection and commitment on the one hand, and on the other hand for the call for equal concern and impartial treatment for all mankind. The conference will address the question of how far there can be a coherent philosophical framework for reconciling the ethical demands of impartiality and of partiality, and the question of whether the various approaches listed above can be seen to converge, or whether the they turn out to represent ultimately incompatible perspectives. Conference venue: Seminar Room 1, Black Horse House University of Reading Whiteknights Campus Berkshire RG6 6AA UK Please direct enquiries to: Dr. Brian Feltham b.m.feltham@reading.ac.uk Department of Philosophy University of Reading Whiteknights Berkshire RG6 6AA UK


 
Book Announcement: The Judicialization of Politics in Latin American
    The Judicialization of Politics in Latin America by Alan Angell, Line Schjolden, and Rachel Sieder ISBN: 1-4039-7086-6 Binding: hardback Publishing: December, 2005 Pages: 320 Availability: Not Yet Published Publisher: Palgrave Macmillan List Price: $69.95 Reviews
      “This exceptional volume does a splendid job of illuminating the myriad dimensions of the judicialization of politics in Latin America. No phenomenon is more central to understanding recent trends in democratic governance throughout the region. The first-rate authors treat the subject from diverse perspectives, with impressive conceptual sophistication, rigor, and sensitivity to national variations. The result is a thoroughly original and stimulating contribution that fills an important gap in the literature and that will doubtless be of keen interest to academics, policy makers and advocates alike.”--Michael Shifter, Vice President for Policy, Inter-American Dialogue “This book eloquently maps the judicialization of politics in contemporary Latin America and its consequences. It weaves politics, law and society together into a rich and sophisticated analysis of the inter-relationship between judicialization and Latin American democracy in the 1990s and 2000s. Its comparative framework makes a valuable contribution to our understanding of how judicialization enables and constrains democratization and the search for justice. This is an impressive and original work that fills an important gap in the literature.”--David Sugarman, Professor at Law School, Lancaster University, England “This book is essential reading to understand the important new trend of judicial activism in Latin America. Does it strengthen democracy by enhancing individual rights, the rule of law, the propriety of the exercise of power, and electoral fairness? Or as part of a ‘judicialization of politics’, is it the expression of an unwarranted instrumentalization of the judiciary by powerful actors as well as an extension of judicial authority over domains best left to political negotiations in governmental and legislative arenas? Does it, then, undermine rather than contribute to deepening the quality of democracy? In a set of highly nuanced analysis the authors provide evidence for all these assessments.”--J. Samuel Valenzuela, Kellogg Institute
    Book Description
      During the last two decades the judiciary has come to play an increasingly important political role in Latin America. Constitutional courts and supreme courts are more active in counterbalancing executive and legislative power than ever before. At the same time, the lack of effective citizenship rights has prompted ordinary people to press their claims and secure their rights through the courts. This collection of essays analyzes the diverse manifestations of the judicialization of politics in contemporary Latin America, assessing their positive and negative consequences for state-society relations, the rule of law, and democratic governance in the region. With individual chapters exploring Argentina, Brazil, Chile, Colombia, Costa Rica, Mexico, Peru and Venezuela, it advances a comparative framework for thinking about the nature of the judicialization of politics within contemporary Latin American democracies.
    Table of Contents
      Introduction: The Judicialisation of Politics in Latin America--Rachel Sieder, Line Schjolden & Alan Angell * Judicialisation of Politics: The Changing Political Role of the Judiciary in Mexico--Pilar Domingo * Changing Dynamics:The Political Impact of Costa Rica’s Constitutional Court--Bruce M. Wilson * The Judicialisation of Politics in Colombia: The Old and the New--Manuel José Cepeda Espinosa * The Judicialisation of Chilean Politics: The Rights Revolution That Never Was--Javier A. Couso * Judicialisation and Regime Transformation: The Venezuelan Supreme Court--Rogelio Pérez-Perdomo * Petitioning and Creating Rights: Judicialisation in Argentina--Catalina Smulovitz * Community Justice Institutions and Judicialisation: Lessons from Rural Peru--Julio Faundez * Private Conflicts, Public Powers: Domestic Violence in the Courts in Latin America--Fiona Macaulay * Constitutionalism, the expansion of Justice and the Judicialisation of Politics in Brazil--Rogério B. Arantes * The Transnational Dimension of the Judicialisation of Politics in Latin America--Kathryn Sikkink * Afterword--Guillermo O’Donnell
    Author Biography
      Rachel Sieder is Senior Lecturer in Politics at the Institute for the Study of the Americas, School of Advanced Studies, University of London. Sieder has published articles in numerous journals, including Democratization, The Bulletin of Latin American Research, and Citizenship Studies. Her most recent volume (ed.) is Multiculturalism in Latin America: Indigenous Rights, Diversity and Democracy (2002). She is editor of the Journal of Latin American Studies. Line Schjolden is currently Assistant Professor of Latin American History and Culture at the University of Bergen, Norway. She was previously Hewlett Postdoctoral Research Fellow in Latin American Law and Politics at the Institute for the Study of the Americas, University of London and the Latin American Centre, St. Antony’s College, University of Oxford. She holds a PhD in History from the University of California, Berkeley. Her research is in the field of legal and labor history in early twentieth century Argentina. Alan Angell was Director of the Latin American Centre, St Antony’s College, Oxford, Lecturer in Latin American Politics, and a Fellow of St Antony's College. He has published Politics and the Labour Movement in Chile (1972); En Busca de la Utopia: La Politica Chilena entre Alessandri y Pinochet (1994); and edited with Dr. Benny Pollack, The Legacy of Dictatorship: Political, Economic and Social Change in Pinochet's Chile (1993). His most recent research was conducted jointly with Rosemary Thorp and Pamela Lowden and published as Decentralising Development: the Political Economy of Institutional Change in Colombia and Chile (OUP 2001).


Thursday, October 27, 2005
 
Conference Announcement: The Chief Justice & the Institutional Judiciary at Penn
    The University of Pennsylvania Law Review is pleased to present the 2005-2006 Symposium: THE CHIEF JUSTICE AND THE INSTITUTIONAL JUDICIARY Featuring keynote speeches by
      Linda Greenhouse Supreme Court Correspondent, The New York Times Prof. Erwin Chemerinsky Alston & Bird Professor of Law and Professor of Political Science, Duke University Law School
    University of Pennsylvania Law School Levy Conference Center Thursday, November 10 & Friday, November 11, 2005 Full conference program and speaker biographies Click here for details on CLE and to register Schedule:
      CONFERENCE SCHEDULE Thursday, November 10, 2005 9:30 AM - 10:00 AM REGISTRATION & CONTINENTAL BREAKFAST 10:00 AM - 10:30 AM OPENING REMARKS 10:30 AM - 12:00 PM THE CHIEF JUSTICE FROM A HISTORICAL PERSPECTIVE Prof. Frank Goodman, Moderator Dr. Charles F. Hobson, Defining the Office: John Marshall as Chief Justice Natalie Wexler, In the Beginning: The First Three Chief Justices Prof. G. Edward White, The Internal Powers of the Chief Justice: The Nineteenth Century Legacy 12:15 PM - 1:45 PM LUNCH KEYNOTE: Linda Greenhouse, How Not To Be Chief Justice 2:00 PM - 3:30 PM THE SELECTION, TENURE, AND EXTRAJUDICIAL AUTHORITY OF THE CHIEF JUSTICE AND OTHER JUSTICES Prof. Stephen B. Burbank, Proposals to Change the Tenure of Supreme Court Justices: An Interdisciplinary Perspective Prof. Theodore W. Ruger, The Chief Justice's Special Authority and the Norms of Judicial Power Prof. Judith Resnik, A Democratic Deficit: The Multiple Sources and Kinds of Power of the Chief Justice of the United States 3:45 PM - 5:15 PM DOCTRINAL AND STRATEGIC INFLUENCES OF THE CHIEF JUSTICE Prof. Jeffrey Segal, Moderator Prof. Frank B. Cross (probable) & Stefanie A. Lindquist, The Decisional Significance of the Chief Justice Prof. Edward Swaine, Hail, No: Changing the Chief Prof. Paul J. Wahlbeck, The Impact of Opinion Assignment Friday, November 11, 2005 10:00 AM - 10:30 AM REGISTRATION & CONTINENTAL BREAKFAST 10:30 AM - 12:00 PM A COMPARATIVE VIEW OF THE CHIEF JUSTICE’S ROLE Prof. Kim Lane Scheppele, Moderator Prof. Peter E. Quint, Leading a Constitutional Court: Perspectives from the Federal Republic of Germany Prof. J. Mark Ramseyer, The Case for Managed Judges: Evidence from Japan After the Political Upheaval of 1993 (with Prof. Eric B. Rasmusen) 12:15 PM - 1:45 PM LUNCH KEYNOTE: Prof. Erwin Chemerinsky, The Phases of the Rehnquist Court 2:00 PM CLOSING REMARKS


 
Miers Withdraws Here's an excerpt from the New York Times story:
    In recent days, several prominent members of the Republican Party had begun to publicly question Ms. Miers's nomination, suggesting was not conservative enough on issues such as abortion. Others, including Democrats and Republicans, have questioned Ms. Miers's lack of judicial experience since her nomination was announced on Oct. 3. * * * Concern among conservatives over her views on abortion and judicial philosophy heightened on Wednesday when The Washington Post reported that Ms. Miers, in a 1993 speech in Dallas, spoke approvingly about a trend toward "self-determination" in resolving debates about law and religion, including those involving abortion rights and religion in public schools and public places.
Comments from Owen Kerr at Volokh here. From Kerr's post:
    The question now is who the President will pick as a replacement. It's impossible to know, of course: Who expected that Bush would select Miers? If I had to guess, though, the current political situation will push the White House to pick someone with broad and deep support on the Right who also won't cause a revolt among Democrats. To me that suggests someone like Michael McConnell or Karen Williams.


 
Thursday Calendar
    Georgetown Law: Orly Lobel, University of San Diego, "Sleeping with the Enemy or Effective Public Management?: Government/Industry Cooperation for Promoting Workers' Rights." (link is to longer paper). (For comments on an earlier version of this talk, surf here.)
    Oxford Jurisprudence Discussion Group: Pavlos Eleftheriadis, Rights in Deliberation
    Stanford Law & Economics: Ian Ayres (Yale Law School), "An Option Theory of Legal Entitlements"
    University of Minnesota Public Law Workshop: Myron Orfield, University of Minnesota Law School, "The Minneapolis Desegregation Settlement"
    University of Michigan Law & Economics: Sean Griffith, Connecticut, Unleashing a Gatekeeper: Why the SEC Should Mandate Disclosure of Details Concerning Directors' & Officers' Liability Insurance Policies
    Brooklyn Law School: Susan N. Herman, Brooklyn Law School, The Patriot Act and the Submajoritarian Fourth Amendment.
    Fordham University School of Law: Linda C. McClain, Rivkin Radler Distinguished Professor of Law, Hofstra University School of Law, and James E. Fleming, Professor of Law, Fordham University School of Law, "Constitutionalism, Judicial Review, and Progressive Change".
    NYU Colloquium in Law, Philosophy, and Political Theory: Tommie Shelby, Black Solidarity After Black Power.
    Boston University School of Law: Eric Blumenson (Suffolk), "The Challenge of a Global Standard of Justice: Peace, Pluralism, and Punishment at the International Criminal Court". Here is the abstract:
      This article addresses what is often described as the 'peace versus justice' problem, in the context of prosecutorial discretion at the International Criminal Court. The problem typically arises when the threat of prosecution would derail peace negotiations or deter a tyrant from relinquishing power. It already confronts the ICC in its first referral, concerning crimes against humanity committed during an on-going civil war in Uganda, where many victims and their families are imploring the prosecutor to foreswear prosecution. They argue that indictments will deter the rebels from negotiations, and that their traditional restorative justice mechanisms will serve to promote justice and reconciliation far better than prosecutions. ICC decisions on this and other early cases will shape the contours of an emerging standard of global criminal justice. This article analyzes the conflicting claims of peace, pluralism and punishment in such cases. Among the central questions explored in the article are the following: (1) Does justice in the aftermath of crime always require prosecution? The answer explores the nature of retributive justice and its relationship to victims of crime. (2) Are the obligations of retributive justice absolute? The analysis considers three alternative ways of handling a conflict between the obligations of justice and the dire impact fulfilling them would have on third parties, when such is the case. This discussion includes a detailed response to one approach to such conflicts advocated by Profs. Sunstein and Vermeule in their forthcoming article in favor of capital punishment. (3) As a global institution, how much deference should the ICC afford to diverse state approaches to confronting the past? The article suggests that for procedural, substantive, and pragmatic reasons, the Court and its prosecutor should adopt a pluralist philosophy in its charging decisions and complementarity assessments.
    Florida State University Law: Thomas Main, McGeorge School of Law (visiting at FSU).
    Forum for European Philosophy (Londong): Matt Cavanagh (IPPR), Sen and Williams: Consequentialism and Public Policy
    Oxford Public International Law Discussion Group: Anthony Carty, The Limits of Institutionalism and Pragmatism in International Law - Any Other Way Forward?
    Oxford Institute of European and Comparative Law: Matthias Mahlmann, A New War of Religions? Problems and Prospects of Religious Tolerance
    University College, London: Charles Mitchell, "Equitable Rights and Wrongs"
    Vanderbilt Law: Glynn Lunney, Tulane University Law School, "The Law, Economics, and Morality of File Sharing"
    Vanderbilt Law: John Yoo, UC-Berkeley, Boalt Hall School of Law, "Force and Institutions"


Wednesday, October 26, 2005
 
Top Ten Law Blogs Opinio Juris links to a recent list of the top-ten law blogs.


 
Wednesday Calendar
    UC Davis Law: Ethan Leib, "Supermajoritarianism and the American Criminal Jury."
    Northwestern Law & Economics: Catherine Sharkey, Associate Professor of Law, Columbia University, "Crossing the Punitive-Compensatory Divide"
    NYU Legal History: William Nelson, Weinfeld Professor of Law, NYU School of Law “The Common Law in Colonial America,” part II.
    Loyola Law School, Los Angeles: Peter Oh, Assistant Professor of Law, William Mitchell College of Law, "The Dutch Auction Myth"
    Oxford Clarendon Law Lectures: Stephen Cretney, Gay marriage, constitutional reform, social policy and democracy
    New. University of Toronto James Hausman Tax Law and Policy Workshop Series: Kirk J. Stark (UCLA), Time Consistency and the Choice of Tax Base. (Thanks to Paul Caron!)


 
Lobel on Work Law Orly Lobel (University of San Diego) has posted The Four Pillars of Work Law (Michigan Law Review, 2006) on SSRN. Here is the abstract:
    In our contemporary legal landscape, a student of the law of the workplace has scarce opportunity to encounter an integrated body of scholarship which analyzes the labor market as the subject of government regulation, contractual duties, collective action, and individual rights. This essay, reviewing two new books on workplace policies - Katherine V. W. Stone, FROM WIDGETS TO DIGITS: EMPLOYMENT REGULATION FOR THE CHANGING WORKPLACE (2004) and Raymond L. Hogler, EMPLOYMENT RELATIONS IN THE UNITED STATES: LAW, POLICY, AND PRACTICE (2004) - offers a vision for integrating the fields of "employment law," "labor law," "employment discrimination" and the tax-oriented "employee benefits law" under the conceptual framework of Work Law. Although the four pillars of work law have developed relatively independently from one another, the realities of contemporary work defy this fragmented structure and its conceptual satellites. The subjects and regulatory tools of all four fields overlap significantly and it is increasingly problematic to study and regulate them separately.
Highly recommended.


 
Stras on Judicial Retirement David Stras has posted The Incentives Approach to Judicial Retirement (Minnesota Law Review, Vol. 90, 2006) on SSRN. Here is the abstract:
    The concept of life tenure for judges has been roundly criticized in the legal academy, with many scholars advocating a mandatory retirement age or term limits for justices. These "command and control" approaches, however, do not target the most important factors in the retirement decision. Empirical studies demonstrate that workload, income, and prestige are the paramount factors influencing judicial retirement. Using empirical evidence, this essay proposes a judicial retirement function that can be used to model the retirement decisions of justices and other judicial actors. Rather than constitutional amendment, the incentives approach to retirement suggests that Congress should focus its attention on making incremental institutional modifications, such as to pensions and workload, to encourage retirement.


 
Chesney on International Detainee Transfers Robert Chesney (Wake Forest University - School of Law) has posted Leaving Guantanamo: The Law of International Detainee Transfers (University of Richmond Law Review, 2006) on SSRN. Here is the abstract:
    Revelations about the C.I.A.'s "extraordinary rendition" program have generated heated debate regarding the legal issues that come into play when the United States transfers an individual to the custody of a foreign state in circumstances involving an appreciable risk that the person will be tortured. Relatively little attention has been paid, however, to the related issues that arise when the U.S. military transfers Guantanamo (GTMO) detainees to the custody of their own governments. Dozens of such transfers have occurred over the past several years, and the Pentagon has announced that hundreds more are in the offing as the United States whittles the GTMO population down to a core group of relatively high-value detainees. Meanwhile, against a backdrop of heightened public interest in torture issues, in the spring and summer of 2005 nearly 100 of the detainees moved for preliminary injunctive relief in anticipation of a potential transfer, citing risk-of-torture concerns. These motions prompted a little-notice intra-circuit split among the judges of the federal district court in D.C., and in the process demonstrated that the constitutional, statutory, treaty, and administrative law concepts applicable to this issue are not yet well-understood. My article aims to fill this gap, with particular attention paid to issues of judicial enforceability and the special circumstances associated with GTMO (taking into account Rasul v. Bush). In Part I, I orient the reader with a survey of the transfers and litigation that have occurred up to this point (including an online appendix providing detailed information relating to the detainees and their habeas petitions). Part II analyzes Article 3 of the Convention Against Torture, its implementing legislation, and a host of related issues ranging from diplomatic assurances to the Administrative Procedure Act. Parts III and IV consider the impact of the law of war on the transfer issue, with particular attention paid to conflict-status and detainee-status issues. In Part V, I draw on the state-created danger doctrine to explore the consequences for the transfer issue should the courts ultimately conclude that GTMO detainees have federal constitutional rights. Comments and criticisms are welcome.


 
Avraham on Pain-and-Suffering Damages Ronen Avraham (Northwestern University - School of Law) has posted Putting a Price on Pain-and-Suffering Damages: A Critique of the Current Approaches and a Preliminary Proposal for a Change (Northwestern University Law Review, Vol. 100, Fall 2005) on SSRN. Here is the abstract:
    Pain-and-suffering awards make up approximately fifty percent of total awards, at least in some areas of personal injury cases. It is the subject of almost every tort reform, including the current administration attempts to reform medical malpractice law. Is there a rational way to quantify pain-and-suffering awards? In this paper, written for a special centennial issue of NU law review, I explain some of the suggestions for pricing pain-and-suffering put forward in the literature and preliminary offer a different way to look at the problem. The theoretical approach I adopt in this paper to the pricing of pain-and -uffering is to analyze it from a law and economics standpoint, which also incorporates a limited notion of global fairness. My starting point is the "majority view" which states that efficient tort law requires pain-and-suffering damages to be awarded so tortfeasors will internalize the full social costs of their conduct, including the non-monetary ones. My focus in this paper is the fundamental unresolved issue of how to price such damages. After reviewing various proposals for pricing pain-and-suffering, I argue that all of these proposals are analytically problematic, and undesirable as a matter of policy. I then propose a new way to price pain-and-suffering. Under my proposal, a system of age-adjusted multipliers would be assigned to plaintiffs' medical costs (but not to other economic costs) in order to calculate the pain-and-suffering component. The multipliers would be non-binding, allowing the jury to fairly deviate when justice required. This system solves the problem of unpredictability and, at the same time, approximates optimal deterrence, all at very low administrative costs. It combines the advantages of efficiency and fairness by having a jury determine awards on a case-by-case basis, without the high complexity of assessing pain-and-suffering losses present in other proposals.


 
Barnes on Spyware Wayne Barnes (Texas Wesleyan University - School of Law) has posted Rethinking Spyware: Questioning the Propriety of Contractual Consent to Online Surveillance (UC Davis Law Review, Vol. 39, 2006) on SSRN. Here is the abstract:
    The spyware epidemic has reached new heights on the Internet. Computer users are increasingly burdened with programs they did not knowingly or consciously install, which place strains on their computers' performance, and which also trigger annoying "pop-up" advertisements of products or services which have been determined to match the users' preferences. The users' purported preferences are determined, in turn, by the software continuously monitoring every move the consumer makes as she "surfs the Internet." The public overwhelmingly disapproves of spyware which is surreptitiously placed on computers in this manner, and also largely disapproves of the pop-up advertising paradigm. As a result, there have been many legislative proposals, on a state and federal level, to address the spyware problem. All of the proposals assume that, if knowing and effective consent to spyware installation is granted by the consumer, then the software is lawful. Existing case law would seem to provide a means for corroboration of this conclusion. However, the implications of allowing such profound and invasive surveillance appear to be largely ignored in all of the proposals and discussion concerning spyware. This may be because of the "problem of perspective" concerning online activities, as first highlighted by Professor Orin Kerr. This article seeks to illuminate the true nature of the spyware bargain, and questions the propriety of sanctioning such "surveillance bargains" under principles of contract law. Such bargains may often be unenforceable because a term allowing continual surveillance may be beyond the range of reasonable expectations of most consumers. Even if not, however, the privacy implications are such that we as a society may wish to condemn such "bargains to be spied upon," and conclude that such contracts should simply be unenforceable as a matter of public policy, and therefore banned.


 
Call for Papers: Perspectives on Evil and Human Wickedness
    7th Global Conference: Perspectives on Evil and Human Wickedness Monday 13th March - Friday 17th March 2006 Salzburg, Austria Call for Papers (please cross post where appropriate) This inter-disciplinary and multi-disciplinary conference seeks to examine and explore issues surrounding evil and human wickedness. Perspectives are sought from those engaged in the fields of anthropology, criminology, cultural studies, legal studies, literature, philosophy, psychology, sociology, and theology. Perspectives are sought from those working in the caring professions, the media, prison services, politics, psychiatry and other work-related and vocational areas. Papers, reports, work-in-progress and workshops are invited on issues related to any of the following themes: * the concept and language of 'evil' and 'wickedness' * the nature and sources of evil and human wickedness * moral intuitions about dreadful crimes * psychopathic behaviour - mad or bad? * choice, responsibility, and diminished responsibility * social and cultural reactions to evil and human wickedness * the portrayal of evil and human wickedness in the media and popular culture * suffering in literature and film * individual acts of evil, group violence, holocaust and genocide; obligations of bystanders * terrorism, war, ethnic cleansing; the evils of terrorism, fear of terrorism, international relations especially with regard to the modern nation state, superpower interventionist strategies, post-war reorganisation following the evils of war * the search for meaning and sense in evil and human wickedness * the nature and tasks of theodicy * religious understandings of evil and human wickedness * postmodern approaches to evil and human wickedness * ecocriticism, evil and suffering * gender and evil * evil and the use/abuse of technology; evil in cyberspace The Steering Group particularly welcomes the submission of pre-formed panel proposals. Papers will also be considered on any related theme. 300 word abstracts should be submitted by Friday 2nd December 2005. If an abstract is accepted for the conference, a full draft paper should be submitted by Friday 17th February 2006. 300 word abstracts should be submitted to the Organising Joint Chairs; abstracts may be in Word, WordPerfect, PDF or RTF formats. Organising Committee : Margaret Breen Department of English, University of Connecticut, Groton, CT, USA Email: margaret.breen@uconn.edu Rob Fisher Inter-Disciplinary.Net, Freeland, Oxfordshire, UK Email: evil7@wickedness.net Stephen Morris Independent Scholar, New York, USA Email: smmorris58@yahoo.com Eight themed volumes have and/or are in the process of being published. All papers accepted for and presented at the conference will appear in an ISBN eBook. In addition, selected papers accepted for and presented at this conference will also be published in themed volumes. The conference is part of a larger series of ongoing conferences, run under the general banner 'At the Interface'. It aims to bring together people from different areas and interests to share ideas and explore various discussions which are innovative and exciting. For further details about the project, please visit: http://www.wickedness.net/pehw.htm For further details about the conference please visit: http://www.wickedness.net/Evil/Evil%207/e7cfp.html


 
Book Announcement: The Jewish Social Contract by Novak
    The Jewish Social Contract: An Essay in Political Theology by David Novak To read the entire book description or a sample chapter, please visit: http://pup.princeton.edu/titles/8071.html The Jewish Social Contract begins by asking how a traditional Jew can participate politically and socially and in good faith in a modern democratic society, and ends by proposing a broad, inclusive notion of secularity. David Novak takes issue with the view--held by the late philosopher John Rawls and his followers--that citizens of a liberal state must, in effect, check their religion at the door when discussing politics in a public forum. Novak argues that in a "liberal democratic state, members of faith-based communities--such as tradition-minded Jews and Christians--ought to be able to adhere to the broad political framework wholly in terms of their own religious tradition and convictions, and without setting their religion aside in the public sphere. Cloth | $39.50 / £26.95 | ISBN: 0-691-12210-5


Tuesday, October 25, 2005
 
McAdams on Special Prosecutors Over at the University of Chicago Law Schools, "The Faculty Blog," Richard McAdams has a post entitled The Special Prosecutor's Authority. Here's a taste:
    In anticipation of possible indictments in the Plame investigation, commentators have recently expressed the hope that the Special Prosecutor Patrick Fitzgerald will not charge anyone with only cover-up offenses such as perjury or obstruction of justice. The idea is that Fitzgerald should pass on charging such offenses unless he can also charge the same person with a "substantive" crime, especially the crime that gave rise to the investigation, which (roughly) prohibits those with security clearances from knowingly disclosing a covert operative's status. Two days ago Sen. Kaye Hutchinson stated on "Meet the Press" that she hoped that, if there were an indictment, it would be "on a crime and not some perjury technicality." Nicholas Kristof makes essentially that point in today’s New York Times. In the Weekly Standard, Bill Kristol makes a similar but weaker point – that Fitzgerald should not bring a perjury charge unless it is "clear cut" nor any obstruction charge unless it is "willful and determined."
Check it out!


 
Tuesday Calendar
    University of Illinois College of Law: Heidi Hurd, "Promises Schmomises"
    Georgetown Law: Jonathan Molot.
    NYU Colloquium in Law, Economics, and Politics: Robert Inman (The Wharton School - University of Pennsylvania) with Daniel Rubinfeld (University of California, Berkeley and NYU School of Law), "Federal Institutions and the Democratic Transition: Learning from South Africa" & Accompanying tables and appendix
    Oxford Human Rights Discussion Group: Jeff King and Gregoire Webber, Human Rights and the Role of Courts: A Debate
    Oxford EC Law Discussion Group: Stephen Weatherill, EC law and sport - will the Oulmers case destroy international football?
    Oxford Centre for Socio-Legal Studies: HE Yoweri Kaguta Museveni, Developing Nations & Human Rights: A perspective on present day Uganda.
    Oxford Clarendon Law Lectures: Stephen Cretney, Partnership or Marriage: "Gay, straight, black or white, marriage is a civil right"
    Vanderbilt Law: Howard Erichson, Seton Hall Law School, "Mississippi Class Actions and the Inevitability of Mass Aggregate Litigation"


 
Lemos on Criminal Punishment and the Commerce Clause Margaret H. Lemos (New York University - School of Law) has posted The Commerce Power and Criminal Punishment: Presumption of Constitutionality or Presumption of Innocence? (Texas Law Review, Vol. 84, 2006) on SSRN. Here is the abstract:
    The Constitution requires that the facts that expose an individual to criminal punishment be proved to a jury beyond a reasonable doubt. In recent years, the Supreme Court has taken pains to ensure that legislatures cannot evade the requirements of proof beyond a reasonable doubt and jury presentation through artful statutory drafting. Yet current Commerce Clause jurisprudence permits Congress to do just that. Congress can avoid application of the reasonable-doubt and jury-trial rules with respect to certain critical facts - the facts that establish the basis for federal action by linking the prohibited conduct to interstate commerce - by finding those facts itself rather than providing for case-by-case proof to a jury. As the Court's decision last Term in Gonzales v. Raich illustrates, such findings-based statutes are subject to a presumption of constitutionality and will be sustained so long as the underlying legislative judgment was rational. The conflict between legislative findings and the constitutional requirements for criminal prosecutions is ignored in the vast literature on the commerce power, which focuses overwhelmingly on whether Congress can reach certain activities (and whether courts can or should impose meaningful limits on Congress's legislative authority), but pays scant attention to how Congress legislates. Commentators assume that, since Congress's power to act on the basis of its own findings regarding the connection between the regulated conduct and interstate commerce is well-established in the civil sphere, it must be equally clear in the criminal context. As this article demonstrates, however, findings-based statutes generate unique costs in criminal prosecutions by depriving defendants of procedural protections designed to make it harder for the government to send an individual to jail than to regulate her conduct by civil means. The common justifications for leaving questions of commerce largely to Congress's discretion, moreover, ring hollow when considered in the context of criminal law. Given the considerable costs of findings-based criminal prohibitions and the absence of any countervailing benefits, I argue that legislative findings should not serve as the basis for criminal punishment. Instead, courts should require case-by-case proof of the facts that demonstrate the necessary connection between the defendant's conduct and interstate commerce.


 
Call for Papers: Joint Session 2005
    CALL FOR PAPERS 2006 JOINT SESSION OF THE MIND ASSOCIATION AND THE ARISTOTELIAN SOCIETY UNIVERSITY OF SOUTHAMPTON, 7TH –9TH JULY OPEN SESSIONS A number of parallel sessions on Saturday and Sunday afternoons will be available for the presentation of papers not previously published. There will be a considerable number of these sessions available, allowing room for many submissions to be included. The intention is to accommodate all philosophical material suitable for presentation to a professional audience, so far as time and space in the programme allow, and not to operate a selective policy. Each presentation should last no more than 20 minutes, so that a further 10-15 minutes may be allowed for discussion. Presented papers should aim to introduce material involving recent research. There are no restrictions on the areas of philosophy which papers may address. Philosophers whose papers are included in this part of the programme must be or become subscribing members of one of the organising societies. Those wishing to make a presentation should submit by e-mail attachment a copy of their paper (no more than 2000 words), together with a 250-word abstract, to joint-session@soton.ac.uk by 1st March 2006. Decisions on whether papers have been accepted will be made by the end of April 2006. Papers accepted for the Open Sessions will not be published in the Supplementary Volume of the Aristotelian Society (unlike papers invited for the plenary programme of the conference); and expenses will not be paid. POSTGRADUATE SESSIONS Two parallel sessions on the Saturday afternoon will be devoted to short presentations by graduate students (or those who have recently obtained a postgraduate degree). Each student should speak for 20 minutes, allowing 10 minutes for discussion. Students wishing to participate should send their paper, preferably by attachment in Word 98 or higher, otherwise in two hard copies, by 1st February 2006 to: Dr. Mark Eli Kalderon, Department of Philosophy, University College London, Gower Street, London WC1E 6BT. Email: m.kalderon@ucl.ac.uk. The paper should be about 2000 words but no more than 2500 words, including notes and bibliography, and should begin with a brief abstract. It should be typewritten in 12-point text, single-spaced throughout (i.e. including references and quotations), on one side of white A4 paper. All pages should be numbered and have margins of 1 inch or more. Papers containing symbols liable to distortion in transmission should be submitted as hard copies; otherwise soft copy is welcome. Please ensure that there are no self-identifying references in the text. Submissions should be accompanied by a separate page containing the title of the paper, the name of the author, institution and status, and email and postal addresses. Authors are advised to consult supervisors about what may be suitable for presentation to a largely professional audience. Given the tight word-limit, they are advised to give as much space as they can to the statement of their own ideas. The papers will be sent to referees, and a maximum of eight will be selected for presentation at the Joint Session. The programme will be settled in May 2006. The selected authors will have their conference fee and accommodation expenses (but not their travel costs) paid by the Mind Association and the Aristotelian Society. Some papers may subsequently be considered for publication in the Proceedings of the Aristotelian Society. Nobody should submit a paper for both the Postgraduate and the Open Sessions, and only one paper may be submitted per individual. However, graduate students whose submission for the Postgraduate Sessions is unsuccessful may subsequently be advised that their paper has been accepted for the Open Sessions. Conference costs, however, will not be paid by the organisers. INVITED SPEAKERS Inaugural Address – Timothy Williamson Symposia: Andy Clark and Naomi Eilan Sally Haslanger and Jennifer Saul John Hawthorne and Scott Sturgeon Lloyd Humberstone and Brian Morrison Tom Hurka and John Tasioulas Ken Gemes and Christopher Janaway For information about the Aristotelian Society & the Joint Session see http://www.aristoteliansociety.org.uk


Monday, October 24, 2005
 
Miers Blogging Check out What Should Democrats Do About Miers? Beyond the Popcorn Strategy by Jack Balkin & Why AG Gonzales Will Not Be Nominated to Replace Harriet Miers and What We Might Get Instead by Rick Hasen. Here's a taste from Hasen's post:
    [T[he new nominee could well be to the right of MIers, especially on issues like voting rights and affirmative action. Jack Balkin explores the alternative scenarios for nomination. Jack thinks the Gang of 14 might block a more conservative nominee, making it more likely that Bush will nominate a moderate. I disagree with the latter part of this analysis. The Gang of 14 could well block the nominee, but I think this helps Bush. If Bush nominates a Janice Rogers Brown, he gives the conservatives the fight they want, and regains capital with them. If he later fails after the strong Senate battle, he can come back with a more moderate nomiinee and a more supportive base.


 
Monday Calendar
    New! UC Berkeley, Center for the Study of Law and Society: David Law, The Paradox of Omnipotence: Courts, Constitutions, and Commitments".
    Columbia Law & Economics: Justin Wolfers, The Wharton School, University of Pennsylvania, "Did Unilateral Divorce Laws Raise Divorce Rates? A Reconciliation and New Results"
    Boston College School of Law: Dorothy A. Brown, Professor of Law, Alumni Faculty Fellow and Director of the Frances Lewis Law Center, Washington & Lee University School of Law, "The Ownership Society and Private Accounts"
    George Mason Law: Adam Mossoff, Michigan State University College of Law, “Who Cares What Thomas Jefferson Thought About Patents: Reconsidering the Patent 'Privilege' in Historical Context”
    Georgetown Environmental Research Workshop: Professor Michael Vandenbergh, Vanderbilt University School of Law, "The Private Life of Public Law"
    Hofstra Law: Timothy Zick, St. John’s University School of Law, “Property, Place, and Public Discourse”
    Aristotelian Society (London): Kinch Hoekstra, The End of Philosophy (The Case of Hobbes).
    NYU Law: Chris Sanchirico.
    Ohio State Law: Jennifer Wriggins, University of Maine, The Value of Injury: Race, Gender, Torts (1900-1950)
    University of Alabama Law: Austin Sarat, Amherst College (rescheduled from Aug. 31) What Happened to Mercy? On the Paradox of Sovereign Prerogative in Capital Cases.
    Oxford Centre for Socio-Legal Studies: Jeanne Flavin, Security, Citizenship and the Law: regulating boundaries: Regulating poor women's reproduction in the United States
    Oxford Clarendon Law Lectures: Stephen Cretney, Homosexuality: from "odious crime" to the love that dares speak its name
    UCLA Law: Professor Richard Steinberg, UCLA School of Law, The Formation and Transformation of Trading States in Poor Countries
    Vanderbilt Law & Business: James Cox, Duke University School of Law, "Empirically Reassessing the Lead Plaintiff Provision: Is the Experiment Paying Off?"
    University of Texas Law: Bob Rasmussen, Vanderbilt University, Private Debt and the Missing Lever of Corporate Governance


 
Porter on the Economics of Rural Failure Katherine M. Porter (University of Iowa, College of Law) has posted Going Broke the Hard Way: The Economics of Rural Failure (Wisconsin Law Review, 2005) on SSRN. Here is the abstract:
    Despite their role at the forefront of empirical research on the legal system, bankruptcy scholars are typical of the legal academy in their ignorance of the perspectives and experiences of rural Americans. No empirical study has systemically considered or acknowledged the role of community size in understanding when and why Americans turn to the bankruptcy system. Until now, the plight of rural families has been ignored. Overlooking the rural experience has impoverished our understanding of the financial pressures facing Americans. Without knowledge about rural Americans, who make up one-fifth of the U.S. population, our collective knowledge about the bankruptcy system generally and the economic pressure on all families is deeply flawed. The original data developed in this Article reveal that rural America is home to extraordinary, unexplored economic distress. Contrary to conceptions about a rural cultural resistance to debt and the pastoral nature of rural life, rural families appear to be facing more severe financial hardship than their urban counterparts. The bankruptcy data reveal the depth and nature of the financial squeeze on rural families. Rural Americans live in areas where low wages and reduced job opportunities leave them with smaller incomes, but at the same time, they pay the same or higher prices for many of the same goods and services that urban Americans do. This is the worst of both worlds. Rural households have fewer dollars to spend and more demands on those dollars -both from past debts and current expenses. The nature of rural bankruptcies reflects the declining rural economy and the losing struggle of rural families who are trying to make ends meet despite severe income, job and medical problems. Far from being immune from the financial pressures on American households, rural families inhabit the deepest hollows in a map of economic well-being. Exploring this terrain offers critical insights on legal scholarship and bankruptcy policy. The data presented in this Article expose important differences in the economics of bankrupt families that correlate with place of residence. Because these differences between urban and rural families have gone unexplored until now, our understanding of the bankruptcy system has been distorted. This distortion is more pernicious because scholars have frequently failed to acknowledge their urban bias. In showing how rural residence creates differences among bankruptcy filers, this Article exposes the need to consider rural perspectives in studies of all legal fields. Exploring how the role of place shapes use of the legal system opens up a new way to flush out variations in how laws actually operate. My conclusions suggest that future legal scholarship in all disciplines should be cognizant of the ways in which rurality, like race, gender, non-citizen status, or age, may influence perspectives on law. The suffering of rural families revealed in the bankruptcy data has powerful implications for our understanding of the American economy as a whole. Learning how the economics of rural failure differ from that identified in urban areas allows a critical evaluation of how prior studies may have underreported the financial distress of bankrupt families by overlooking place of residence as a relevant factor. The rural bankruptcy data also offer a compelling example of the need for specialized rural policy in America. These findings highlight the need to build a healthy rural economy and offers insights into the problems that push rural families to bankruptcy, a financial breaking point.


 
Lewyn on Government's War Against Public Transportation Michael Lewyn (George Washington University Law School) has posted Campaign of Sabotage: Big Government's War Against Public Transportation (Columbia Journal of Environmental Law, Vol. 26, p. 259, 2001) on SSRN. Here is the abstract:
    Historically, American politicians have been far more generous to highways than to public transit. The political elite's failure to support public transit is based on the view that despite decades of state and federal support, transit ridership has dwindled. This article criticizes that theory, by explaining that far from promoting public transit, government at all levels has sabotaged transit in a variety of ways: by building highways to suburbs unserved by public transit, by loading down transit systems with unfunded mandates, by using housing, education and tax policy to encourage migration to those suburbs, and by using zoning policy to make suburbs as auto-dependent as possible.


 
Perry on the Marriage Amendment Michael J. Perry (Emory University School of Law) has posted Why the Federal Marriage Amendment is not Only not Necessary, but a Bad Idea (San Diego Law Review, Vol. 42, pp. 925-34, 2005) on SSRN. Here is the abstract:
    The proposed Federal Marriage Amendment states:
      Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, nor the constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman.
    In this paper, which is my contribution to a symposium issue of the San Diego Law Review, I explain - as the title indicates - why the Federal Marriage Amendment is not only not necessary, but a bad idea. This paper is a response to another paper in the symposium: Christopher Wolfe, Why the Federal Marriage Amendment Is Necessary.


 
Goldberg on E Tax as VAT Daniel S. Goldberg (University of Maryland - School of Law) has posted E Tax: The Flat Tax as an Electronic Credit VAT (Tax Notes, Forthcoming) on SSRN. Here is the abstract:
    The article builds on the Hall-Rabushka Flat Tax and proposes a consumption tax called the E Tax, which is an electronically collected credit invoice VAT. The Hall-Rabushka Flat Tax is a two-tier consumption tax that is based on a subtraction method VAT. The Hall-Rabushka nuance, however, allows a deduction for wages as if they were purchases of materials by the employer. Wage earners would be taxed on those wages at rates that could be set as graduated or flat, with or without a zero rate or bracket amount and with or without personal exemptions and deductions. Hall and Rabushka proposed a flat rate equal to the VAT rate, with a zero bracket amount, personal exemptions and limited individual deductions. The E Tax modifies the Flat Tax by substituting a credit invoice business level VAT for the subtraction VAT. As such, the business tax would become a point of sale or transaction tax, which could be collected in each transaction rather than annually. Thus, one could combine the credit invoice VAT, modified for wages (as discussed in detail in the article), with a wage tax in order to build in progressivity. This modification to the two tier Flat Tax structure would both improve compliance and facilitate a pay-as-you-go collection system. Transaction taxes lend themselves to electronic tracking and tax collection, and therefore impose an automatic framework to the taxing process. Moreover, the administrative characteristic of annual accounting and collection can be eliminated by basing the tax on a modified credit invoice VAT instead of a subtraction VAT. As suggested above, progressivity and any desired personalizing of the tax would be introduced at the wage earner level, as it could be with the Hall-Rabushka Flat Tax. The mechanics of the wage tax collection, however, would be slightly different under the E Tax. The modification suggested in the paper builds in the prospect of graduated rates and a substitute for the Earned Income Tax Credit in an automatic way. Thus, the E Tax, in contrast to the Flat Tax, is a transaction tax and therefore facilitates point-of-sale collection. Nevertheless, like the Flat Tax, it still permits greater progressivity than a straight business level VAT, because the separate wage tax component of the tax allows for flexibility in tax rates, exemptions and deductions. Although this characteristic may appear to be a simple detail without a great conceptual difference, the characteristic of taxing transactions and dispensing with annual accounting in fact makes an enormous practical difference. It would facilitate electronic collection and auditing to ensure compliance. It thereby should reduce costs of compliance and significantly reduce the tax gap. Moreover, the E Tax takes advantage of computer technology that will only get better as the twenty-first century progresses and the shift continues away from cash transactions to electronic transactions, including debit cards, credit cards and electronic funds transfers.


Sunday, October 23, 2005
 
Legal Theory Calendar
    Monday, October 24
      Columbia Law & Economics: Justin Wolfers, The Wharton School, University of Pennsylvania, "Did Unilateral Divorce Laws Raise Divorce Rates? A Reconciliation and New Results"
      Boston College School of Law: Dorothy A. Brown, Professor of Law, Alumni Faculty Fellow and Director of the Frances Lewis Law Center, Washington & Lee University School of Law, "The Ownership Society and Private Accounts"
      George Mason Law: Adam Mossoff, Michigan State University College of Law, “Who Cares What Thomas Jefferson Thought About Patents: Reconsidering the Patent 'Privilege' in Historical Context”
      Georgetown Environmental Research Workshop: Professor Michael Vandenbergh, Vanderbilt University School of Law, "The Private Life of Public Law"
      Hofstra Law: Timothy Zick, St. John’s University School of Law, “Property, Place, and Public Discourse”
      Aristotelian Society (London): Kinch Hoekstra, The End of Philosophy (The Case of Hobbes).
      NYU Law: Chris Sanchirico.
      Ohio State Law: Jennifer Wriggins, University of Maine, The Value of Injury: Race, Gender, Torts (1900-1950)
      University of Alabama Law: Austin Sarat, Amherst College (rescheduled from Aug. 31) What Happened to Mercy? On the Paradox of Sovereign Prerogative in Capital Cases.
      Oxford Centre for Socio-Legal Studies: Jeanne Flavin, Security, Citizenship and the Law: regulating boundaries: Regulating poor women's reproduction in the United States
      Oxford Clarendon Law Lectures: Stephen Cretney, Homosexuality: from "odious crime" to the love that dares speak its name
      UCLA Law: Professor Richard Steinberg, UCLA School of Law, The Formation and Transformation of Trading States in Poor Countries
      Vanderbilt Law & Business: James Cox, Duke University School of Law, "Empirically Reassessing the Lead Plaintiff Provision: Is the Experiment Paying Off?"
      University of Texas Law: Bob Rasmussen, Vanderbilt University, Private Debt and the Missing Lever of Corporate Governance
    Tuesday, October 25
      University of Illinois College of Law: Heidi Hurd, "Promises Schmomises"
      Georgetown Law: Jonathan Molot.
      NYU Colloquium in Law, Economics, and Politics: Robert Inman (The Wharton School - University of Pennsylvania) with Daniel Rubinfeld (University of California, Berkeley and NYU School of Law), "Federal Institutions and the Democratic Transition: Learning from South Africa" & Accompanying tables and appendix
      Oxford Human Rights Discussion Group: Jeff King and Gregoire Webber, Human Rights and the Role of Courts: A Debate
      Oxford EC Law Discussion Group: Stephen Weatherill, EC law and sport - will the Oulmers case destroy international football?
      Oxford Centre for Socio-Legal Studies: HE Yoweri Kaguta Museveni, Developing Nations & Human Rights: A perspective on present day Uganda.
      Oxford Clarendon Law Lectures: Stephen Cretney, Partnership or Marriage: "Gay, straight, black or white, marriage is a civil right"
      Vanderbilt Law: Howard Erichson, Seton Hall Law School, "Mississippi Class Actions and the Inevitability of Mass Aggregate Litigation"
    Wednesday, October 26
      UC Davis Law: Ethan Leib, "Supermajoritarianism and the American Criminal Jury."
      Northwestern Law & Economics: Catherine Sharkey, Associate Professor of Law, Columbia University, "Crossing the Punitive-Compensatory Divide"
      NYU Legal History: William Nelson, Weinfeld Professor of Law, NYU School of Law “The Common Law in Colonial America,” part II.
      Loyola Law School, Los Angeles: Peter Oh, Assistant Professor of Law, William Mitchell College of Law, "The Dutch Auction Myth"
      Oxford Clarendon Law Lectures: Stephen Cretney, Gay marriage, constitutional reform, social policy and democracy
    Thursday, October 27
      Georgetown Law: Orly Lobel, University of San Diego, "Sleeping with the Enemy or Effective Public Management?: Government/Industry Cooperation for Promoting Workers' Rights." (link is to longer paper). (For comments on an earlier version of this talk, surf here.)
      Oxford Jurisprudence Discussion Group: Pavlos Eleftheriadis, Rights in Deliberation
      Stanford Law & Economics: Ian Ayres (Yale Law School), "An Option Theory of Legal Entitlements"
      University of Minnesota Public Law Workshop: Myron Orfield, University of Minnesota Law School, "The Minneapolis Desegregation Settlement"
      University of Michigan Law & Economics: Sean Griffith, Connecticut, Unleashing a Gatekeeper: Why the SEC Should Mandate Disclosure of Details Concerning Directors' & Officers' Liability Insurance Policies
      Brooklyn Law School: Susan N. Herman, Brooklyn Law School, The Patriot Act and the Submajoritarian Fourth Amendment.
      Fordham University School of Law: Linda C. McClain, Rivkin Radler Distinguished Professor of Law, Hofstra University School of Law, and James E. Fleming, Professor of Law, Fordham University School of Law, "Constitutionalism, Judicial Review, and Progressive Change".
      NYU Colloquium in Law, Philosophy, and Political Theory: Tommie Shelby, Black Solidarity After Black Power.
      Boston University School of Law: Eric Blumenson (Suffolk), "The Challenge of a Global Standard of Justice: Peace, Pluralism, and Punishment at the International Criminal Court". Here is the abstract:
        This article addresses what is often described as the 'peace versus justice' problem, in the context of prosecutorial discretion at the International Criminal Court. The problem typically arises when the threat of prosecution would derail peace negotiations or deter a tyrant from relinquishing power. It already confronts the ICC in its first referral, concerning crimes against humanity committed during an on-going civil war in Uganda, where many victims and their families are imploring the prosecutor to foreswear prosecution. They argue that indictments will deter the rebels from negotiations, and that their traditional restorative justice mechanisms will serve to promote justice and reconciliation far better than prosecutions. ICC decisions on this and other early cases will shape the contours of an emerging standard of global criminal justice. This article analyzes the conflicting claims of peace, pluralism and punishment in such cases. Among the central questions explored in the article are the following: (1) Does justice in the aftermath of crime always require prosecution? The answer explores the nature of retributive justice and its relationship to victims of crime. (2) Are the obligations of retributive justice absolute? The analysis considers three alternative ways of handling a conflict between the obligations of justice and the dire impact fulfilling them would have on third parties, when such is the case. This discussion includes a detailed response to one approach to such conflicts advocated by Profs. Sunstein and Vermeule in their forthcoming article in favor of capital punishment. (3) As a global institution, how much deference should the ICC afford to diverse state approaches to confronting the past? The article suggests that for procedural, substantive, and pragmatic reasons, the Court and its prosecutor should adopt a pluralist philosophy in its charging decisions and complementarity assessments.
      Florida State University Law: Thomas Main, McGeorge School of Law (visiting at FSU).
      Forum for European Philosophy (Londong): Matt Cavanagh (IPPR), Sen and Williams: Consequentialism and Public Policy
      Oxford Public International Law Discussion Group: Anthony Carty, The Limits of Institutionalism and Pragmatism in International Law - Any Other Way Forward?
      Oxford Institute of European and Comparative Law: Matthias Mahlmann, A New War of Religions? Problems and Prospects of Religious Tolerance
      University College, London: Charles Mitchell, "Equitable Rights and Wrongs"
      Vanderbilt Law: Glynn Lunney, Tulane University Law School, "The Law, Economics, and Morality of File Sharing"
      Vanderbilt Law: John Yoo, UC-Berkeley, Boalt Hall School of Law, "Force and Institutions"
    Friday, October 28
      University of Alabama Law: Fred Zacharias, University of San Diego School of Law, The Images of Lawyers
      Georgetown International Human Rights Colloquium: Allison Marston Danner, Vanderbilt University School of Law, "When Courts Make Law: How International Criminal Tribunals Recast the Laws of War"
      William Mitchell Symposium: Special Tactics for a Secret War
        Keynote Speaker: John A. Rizzo, Acting General Counsel, Central Intelligence Agency Panelists: Douglas Jehl, The New York Times; John Norton Moore, Walter L. Brown Professor of Law & Director of the Center for National Security Law, University of Virginia; Neal K. Katyal, Georgetown University Law Center Moderator: A. John Radsan, William Mitchell College of Law
      UCLA Law: Bryant Garth, Southwestern, "Law, Lawyers, and Empire: From Foreign Policy Establishment to Technical Legal Hegemony"
      New. St. John’s University School of Law: Edward J. Imwinkelried, The Alienability of Evidentiary Privileges: Of Property and Evidence, Burden and Benefit, Hearsay and Privilege.
    Saturday, October 29


 
Legal Theory Lexicon: Public Reason
    Introduction How should citizens in a modern pluralist democracy debate and discuss public affairs? What kinds of reasons are appropriate in the context of judicial opinions, legislative debate, or administrative decisionmaking? There is wide agreement that the government should not censor public debate about politics, at least not without very good reason. But when it comes to a related question of political morality - "To what ideal should citizens aspire in political debate?" - the issue is cloudy. For example, some have argued that religious reason should be excluded from public debate; others argue for the exclusion of statements which degrade people on the basis of their religion, race or ethnicity. Still others contend that in public debate, an ideal of political morality should mirror the freedom of expression: all viewpoints should contend in a marketplace of ideas. An ideal of public reason can provide guidance on these issues. This post provides a very short introduction to the idea of public reason--with a special emphasis on the role of that idea in the work of John Rawls.
    Before we get into the background and complications, let's briefly state the core idea of John Rawls's idea of public reason--the version of the idea that has been most influential in legal theory. Rawls argued that public political debate about the constitutional essentials should be conducted on the basis of public reasons. His view was that public reason included common sense, the noncontroversial results of science, and public political values. Nonpublic reasons include the deep and controversial premises of particular moral and religious theorys; for example, the utilitarian idea that only consequences count would be a nonpublic reason. Rawls thought that the Supreme Court's deliberations and opinions about the meaning of the United States Constitution exemplified the idea of public reason.
    Historical Perspective Where does the idea of public reason come from? Contemporary scholarship sometimes assumes that the notion of public reason was invented out of whole cloth by Rawls, but in fact, it has a long philosophical history. For example, the phrase "public reason" is found in Thomas Hobbes' Leviathan. The section of Leviathan in which this passage appears addresses the question, whose reason should govern the question of whether a purported miracle has occurred?
      For in these times, I do not know one man, that ever saw any such wondrous work, done by the charm, or at the word, or prayer of a man, that a man endued but with a mediocrity of reason, would think supernaturall: and the question is no more, whether what we see done, be a Miracle; whether the Miracle we hear, or read of, were a reall work, and not the act of a tongue, or pen; but in plain terms, whether the report be true, or a lye. In which question we are not every one, to make our own private Reason, or Conscience, but the Publique Reason , that is, the reason of God's Supreme Lieutenant, Judge; and indeed we have made him Judge already, if wee have given him a Soveraign power, to doe all that is necessary for our peace and defence. A private man has alwaies the liberty, (because thought is free,) to beleeve, or not beleeve in his heart, those acts that have been given out for miracles, according as he shall see, what benefit can accrew by mens belief, to those that pretend, or countenance them, and thereby conjecture whether they be Miracles, or Lies. But when it comes to confession of that faith, the Private Reason must submit to the Publique ; that is to say, to God's Lieutenant.
    In this passage, Hobbes uses the phrase "public reason" to refer to the reason or judgment of the sovereign.
    A second use of the phrase "public reason" is found in Rousseau's Discourse on Political Economy:
      In effect, though nature's voice is the best advice a good father could listen to in the fulfillment of his duty, for the magistrate it is merely a false guide which works constantly to divert him from his duties and which sooner or later leads to his downfall or to that of the state, unless he is restrained by the most sublime virtue. The only precaution necessary to the father of a family is that he protect himself from depravity and prevent his natural inclinations from becoming corrupt, whereas it is these very inclinations that corrupt the magistrate. To act properly, the former need only consult his heart; the latter becomes a traitor as soon as he listens to his. Even his own reason ought to be suspect to him, and the only rule he should follow is the public reason , which is the law. Thus nature has made a multitude of good fathers of families, but it is doubtful that, since the beginning of the world, human wisdom has ever produced ten men capable of governing their peers.
    Rousseau's use of the phrase "public reason" is quite different than Hobbes'. Public reason is contrasted to the reason of private individuals. The latter sort of reason is self-interested; the former sort is concerned with the common good. This suggests a connection between Rousseau's idea of public reason and his notion of the general will. The general will (like public reason) is concerned with the good of all; whereas, the individual will (like private reason) is concerned with the good of the individual.
    Another early use of the phrase "public reason" is found in Thomas Jefferson's Second Inaugural Address:
      [I]t is proper that you should understand what I deem the essential principles of our government, and consequently those which ought to shape its administration . . . . [They include] the diffusion of information and the arraignment of all abuses at the bar of public reasons
    Jefferson's notion of public reason seems connected to an ideal of democratic government. Information should be widely diffused so that government actions may be judged at the bar of public reason - which in this case seems to be the collective reason of the citizens of a democratic society. In this view, the quality or efficacy of public reason is connected to the freedom of speech and press.
    In What is Enlightenment, Kant introduces the idea of public reason as an answer to a question that might be phrased, "What restrictions on freedom of public discourse will facilitate public enlightenment?" Kant replies:
      The public use of man's reason must always be free, and it alone can bring about enlightenment among men; the private use of reason may quite often be very narrowly restricted, however, without undue hinderance to the progress of enlightenment. But by the public use of one's own reason I mean that use anyone may make of it as a man of learning addressing the entire reading public . What I term the private use of reason is that which a person may make of it in a particular civil post or office with which he is entrusted.
    As Kant uses the phrase, "public reason" is defined in terms of the audience to which reasons are given. Public reason is addressed to the entire public. Public reason should be free if the public is to become enlightened - that is, if citizens are to rely on their own reason without the guidance of another. Notice Kant's use of the phrase is, in a sense, diametrically opposed to Hobbes'. For Hobbes, public reason is reason bound by the judgment of the sovereign; for Kant, public reason is precisely that reason which is free from such constraint.
    Here is the point of the history: the idea of public reason is contested, with different theorists offering different conceptions public reason. I am about to give you Rawls's ideas about public reason, but it is very important to realize that Rawls's theory is just one of many, and that new theories of public reason are likely to emerge in the years ahead.
    Rawls and Public Reason In an early formulation, Rawls explained what he has called the "idea of free public reason":
      [G]reat values fall under the idea of free public reason, and are expressed in the guidelines for public inquiry and in the steps taken to secure that such inquiry is free and public, as well as informed and reasonable. These values include not only the appropriate use of the fundamental concepts of judgment, inference, and evidence, but also the virtues of reasonableness and fair-mindedness as shown in the adherence to the criteria and procedures of common sense knowledge, and to the methods and conclusion of science when not controversial, as well as respect for the precepts governing reasonable political discussion.
    Although this discussion contains the core of the Rawls' position, a few additional points deserve separate discussion:
      First, Rawls understands public reason as the reason of a political society. A society's reason is its "way of formulating its plans, of putting its ends in an order of priority and of making its decisions accordingly." Public reason contrasts with the "nonpublic reasons of churches and of many other associations in civil society." Both public and nonpublic reason share features that are essential to reason itself, such as simple rules of inference and evidence. Public reasons, however, are limited to premises and modes of reasoning that can appeal to the public at large. Rawls argues that these include "presently accepted general beliefs and forms of reasoning found in common sense, and the methods of science when these are not controversial." By contrast, the nonpublic reason of a church might include premises about the authority of sacred texts and modes of reasoning that appeal to the interpretive authority of particular persons.
      Second, the limits imposed by Rawls' ideal of public reason do not apply to all actions by the state or even to all coercive uses of state power. Rather, his ideal is limited to what he calls "the constitutional essentials" and "questions of basic justice." Thus, the scope of the freedom of speech and qualifications for the franchise would be subject to the Rawlsian ideal, but the details of tax legislation and the regulation of pollution control would not.
      Third, Rawls' ideal of public reason applies to citizens and public officials when they engage in political advocacy in a public forum; it also governs the decisions that officials make and the votes that citizens cast in elections. The ideal does not apply to personal reflection and deliberation about political questions; by implication it could not apply to such reflection or deliberation about questions that are not political in nature.
    With these features in mind, we can offer a summary of the Rawlsian ideal of public reason; this ideal has three main features: (1) The ideal of public reason limits the use of reason to (a) the general features of all reason, such as rules of inference and evidence, and (b) generally shared beliefs, common- sense reasoning, and the noncontroversial methods of science. (2) The ideal applies to deliberation and discussion concerning the basic structure and the constitutional essentials. (3) The ideal applies (a) to both citizens and public officials when they engage in public political debate, (b) to citizens when they vote, and (c) to public officials when they engage in official action - so long as the debate, vote or action concerns the subjects specified in (2). With Rawls' view in mind, we proceed to two preliminary subjects: first, the role of the idea of public reason in the regulation of public discourse and, second, the ways in which a particular ideal of public reason might be justified.
    Public Reason and Law How is the idea of public reason relevant to legal theory? One answer to this question might begin with Rawls's observation that judicial reasoning, for example the reasoning of the Supreme Court, exemplifies public reason. It would be unusual to see a Supreme Court justice rely on a particular religion or on a deep philosophical view about the meaning of life or the ultimate nature of the good. There are exceptions, however. One of the most infamous Supreme Court opinions in the contemporary period is Chief Justice Burger's concurring opinion in Bowers v. Hardwick, the case that was recently overruled in Lawrence v. Texas. Burger argued that criminalization of homosexual conduct was constitutionally permissible, because the prohibition on such conduct was rooted in Judeo-Christian morality. Arguably this argument exceeded the bounds of public reason, because the United States is a pluralist society in which there are many citizens outside of the Judeo-Christian tradition, including, for example, Buddhists, adherents of Native American religions, and nonbelievers.
    One of the interesting features of the idea of public reason is that it provides an argument against what we might call going deep in legal theory. By going deep, I mean making arguments that rely on deep philosophical premises, about ultimate values on the one hand or metaethics and moral psychology on the other. So, for example, it might be argued that utilitarianism (or welfare economics) is an inappropriate source of legal arguments, when the argument relies on a deep utilitarian premises, such as the notion that only utility (e.g. hedonic value or preference satisfaction) is valuable. That premise, it might be argued, goes beyond public reason.
    The idea of public reason is deeply controversial and the subject of heated debate, but the connections between public reason and law have only recently begun to be explored in depth.


Saturday, October 22, 2005
 
Legal Theory Bookworm The Legal Theory Bookworm recommends The Failure of the Founding Fathers: Jefferson, Marshall, and the Rise of Presidential Democracy by Bruce Ackerman. Here's a blurb:
    The ink was barely dry on the Constitution when it was almost destroyed by the rise of political parties in the United States. As Bruce Ackerman shows, the Framers had not anticipated the two-party system, and when Republicans battled Federalists for the presidency in 1800, the rules laid down by the Constitution exacerbated the crisis. With Republican militias preparing to march on Washington, the House of Representatives deadlocked between Thomas Jefferson and Aaron Burr. Based on seven years of archival research, the book describes previously unknown aspects of the electoral college crisis. Ackerman shows how Thomas Jefferson counted his Federalist rivals out of the House runoff, and how the Federalists threatened to place John Marshall in the presidential chair. Nevertheless, the Constitution managed to survive through acts of statesmanship and luck. Despite the intentions of the Framers, the presidency had become a plebiscitarian office. Thomas Jefferson gained office as the People's choice and acted vigorously to fulfill his popular mandate. This transformation of the presidency serves as the basis for a new look at Marbury v. Madison, the case that first asserted the Supreme Court's power of judicial review. Ackerman shows that Marbury is best seen in combination with another case, Stuart v. Laird, as part of a retreat by the Court in the face of the plebiscitarian presidency. This "switch in time" proved crucial to the Court's survival, allowing it to integrate Federalist and Republican themes into the living Constitution of the early republic. Ackerman presents a revised understanding of the early days of two great institutions that continue to have a major impact on American history: the plebiscitarian presidency and a Supreme Court that struggles to put the presidency's claims of a popular mandate into constitutional perspective.
It's by Bruce Ackerman. 'Nuff said.


 
Download of the Week The Download of the Week is Property Rules and Liability Rules, Once Again by Keith Hylton. Here is the abstract:
    Calabresi and Melamed published the seminal article on property rules and liability rules in 1972. In recent years new articles presenting rigorous analyses of bargaining incentives have overturned some of the fundamental claims of the Calabresi-Melamed analysis. In particular, the proposition that property rules are socially preferable to liability rules when transaction costs are low appears to be either no longer valid or severely weakened under the new analyses. This paper reexamines the property rule versus liability rule question in light of the contributions of the recent bargaining theory literature. In contrast to this literature, I find that the fundamental propositions of Calabresi-Melamed remain valid, and I extend the framework to provide a more detailed positive economic theory of common law rules. The key contribution of this paper is pointing out the importance of subjective valuations in the analysis of property and liability rules. This allows for a synthesis of Calabresi-Melamed and the bargaining theory literature within an expanded framework.
Download it while its hot!


Friday, October 21, 2005
 
Confrence Today: Comparative Fiscal Federalism at Michican Courtesy of Paul Caron:
    Comparative Fiscal Federalism: Comparing the European Court of Justice and the U.S. Supreme Court's Tax Jurisprudence The University of Michigan hosts a conference today on Comparative Fiscal Federalism: Comparing the European Court of Justice and the U.S. Supreme Court's Tax Jurisprudence. Here is the schedule of speakers and their topics: 9:00 - 9:10 am: Welcoming Remarks Reuven Avi-Yonah (Conference Organizer, Michigan) Evan Caminker (Dean, Michigan) Michael Kennedy (Director, European Union Center, Michigan) 9:10 - 10:30 am: The ECJ's Tax Decisions Daniel Halberstam (Michigan), Moderator Michael Lang (Vienna University of Economics and Business Administration), Principal Presenter Ruth Mason (NYU) Albert Raedler (Linklaters, Oppenhoff & Raedler) Claudio Sacchetto (University of Turin) Kees van Raad (University of Leiden) 11:00 - 12:30 pm: The US Supreme Court's State Tax Decisions Kyle Logue (Michigan), Moderator Walter Hellerstein (University of Georgia), Principal Presenter Tracy Kaye (Seton Hall) Michael McIntyre (Wayne State) Charles McLure (Hoover Institute, Stanford) 2:00 - 4:00 pm: The Future of Nondiscrimination: EU and US Perspectives Reuven Avi-Yonah (Michigan), Moderator Michel Aujean (EU Commission) Michael Graetz (Yale), Co-Principal Presenter James Hines (Michigan) Wolfgang Schoen (Max Plank Institute, Munich) Servatius van Thiel (EU Council) Alvin Warren (Harvard), Co-Principal Presenter


 
Conference Today: The Future of the Supreme Court
    2005 Minnesota Law Review LINDQUIST & VENNUM SYMPOSIUM The Future of the Supreme Court: Institutional Reform and Beyond October 21, 2005 8:00 a.m. to 4:15 p.m. University of Minnesota Law School Walter F. Mondale Hall Room 25 REGISTER NOW! To register, visit the Minnesota Law Review web site (http://www.law.umn.edu/lawreview/symposium.html) Schedule:
      8:00-8:30 Registration 8:30-8:45 Welcome (Dean Alex Johnson) 8:45-9:15 Introductory presentation Adrian Vermeule: "The Obstacles to Supreme Court Reform" 9:15-10:40 Panel: The Role of Politics and Precedent in Limiting the Court's Judicial Power Michael Gerhardt: "Super Precedent" Daniel Farber: "The Rule of Law and the Law of Precedent" Randy Barnett: "Precedent: The New Judicial Supremacy" 10:40-10:50 Break 10:50-12:15 Panel: Decision Making at the Court: A Convergence of People, Ideas, and Shifting Values Thomas Lee: "The Second-Image Reversed: The Influence of Geopolitics on Supreme Court Decisions in U.S. Foreign Relations Law" Angela Onwuachi-Willig and Guy-Uriel E. Charles: "Representative Government, Representative Court?" Mark Tushnet: "Can Knowing Less Be Better Than Knowing More?" 12:15-1:15 Lunch 1:15-2:40 Panel: Political Controversy and the "Suprapolitical" Third Branch Stephen Smith: "The Supreme Court and the Politics of Death" Martin Redish: "The Supreme Court, the Rules Enabling Act, and the Politicization of the Federal Rules: Constitutional and Statutory Implications" Neal Devins: "Should the Supreme Court Fear Congress?" 2:40-2:50 Break 2:50-4:15 Panel: The Past, Present, and Future of the Supreme Court's Workload Kenneth Starr: "The Supreme Court and its Shrinking Docket: The Ghost of William Howard Taft" Steven Calabresi: "A Proposal to Reinstitute Circuit Riding" David Stras: "Supreme Court Justices & the Incentives Approach to Retirement" 4:15 Adjourn
I've read drafts of several papers--this should be great event!


 
Friday Calendar
    Florida State University College of Law: Marjorie Kornhauser, Tulane Law School. This has been cancelled.
    Georgetown International Human Rights: David M. Golove, New York University School of Law, "Is the Commander-in-Chief Above the Rule of (International) Law"
    Ohio State Legal History: John Fabian Witt, Elias Hill's Exodus: Exit and Voice in Reconstruction Constitutionalism.
    SLAPP Research Workshop: Bertha Amisi, Maxwell School, "Official Mediation in Africa: Patterns of Usage by Civil Society"


 
York on the Miers Team Over at NRO, Byron York has a piece entitled The Miers Support Team: Gloomy and Demoralized. Here is a taste:
    Strategists working with the White House in support of the Supreme Court nomination of Harriet Miers are becoming increasingly demoralized and pessimistic about the nomination's prospects on Capitol Hill in the wake of Miers's meetings with several Republican and Democratic senators. On a conference call held this morning, they even discussed whether Miers should simply stop visiting with lawmakers, lest any further damage be done — and so that time spent in such get-acquainted sessions will not cut into Miers's intensive preparation for her confirmation hearing.


 
Port on the IP Curriculum Kenneth L. Port (William Mitchell College of Law) has posted Essay on Intellectual Property Curricula in the United States (IDEA: The Intellectual Property Law Review, Vol. 46, 2006) on SSRN. Here is the abstract:
    In 1999, Professor Roberta Kwall of DePaul University Law School published rather interesting statistics regarding intellectual property course offerings at American law schools. Apparently, much has changed in the six short years since she conducted her survey. In 1999 Kwall reported that there were 56 law schools offering a course titled Patent Law and 54 law schools offering a course titled Copyright Law. Today, there are 139 law schools offering Patent Law and 123 law schools offering Copyright Law. All but seven law schools in America offer at least one course in intellectual property. Fifty-two schools offer 1 to 4 classes, 89 schools offer 5 to 10 classes, and 20 schools offer more than 10 courses. Clearly, American legal academia has "discovered" intellectual property. It seems inappropriate any longer to refer to it as a "hot new area." To date, except for Kwall's survey, there has been no nation-wide, systematic study of the status of intellectual property course offerings. This essay examines the state of intellectual property law curricula in the United States today.


 
Chutkow Dawn M. Chutkow (Cornell University - Government Department) has posted Jurisdiction Stripping: Ideology, Institutional Concerns, and Congressional Control of the Court on SSRN. Here is the abstract:
    Positive political theory models predict that Congress removes jurisdiction strategically from the federal courts to control the judiciary's influence over policy when congressional and court preferences differ. Conventional wisdom holds that Congress rarely strips courts of jurisdiction. Findings from this study reveal that Congress does remove court jurisdiction, and that the incidence of this jurisdiction stripping increases over time. Based on a database of all public laws containing jurisdiction stripping provisions from the 78th through the 108th Congress, I test for correlations between ideological distance and incidence of jurisdiction stripping by generating measures of ideological space between the Supreme Court, federal appellate courts, Congress, and agencies. The results indicate that, contrary to positive political theory models, administrative concerns, particularly regarding federal court caseloads, influence jurisdiction stripping, but ideology does not.


 
Bibas on Fifth Amendment Incrementalism Stephanos Bibas (University of Iowa, College of Law) has posted The Rehnquist Court's Fifth Amendment Incrementalism (George Washington Law Review, Vol. 74, 2006) on SSRN. Here is the abstract:
    The conventional academic wisdom criticizes the Rehnquist Court's self-incrimination case law as unprincipled, inconsistent, and results-oriented. This essay, originally presented at a George Washington Law Review symposium on the legacy of the Rehnquist Court, challenges that critique. I argue that the Court deserves more credit, both for the merits of its Fifth Amendment decisions and the way that it has reached them. In fits and starts, the Rehnquist Court retreated from both the expansive rationales and results that reached well beyond the Fifth Amendment's text and history. Out of respect for stare decisis, the Court left in place Miranda's warnings but restricted its exclusionary rule and largely declined to extend Miranda. The resulting doctrine is far from neat and theoretically pure, and the Court's sparse reasoning frustrates scholars. Nevertheless, the resulting rules are clear and narrow enough to guide law enforcement without unduly constraining it. Viewed this way, the Rehnquist Court's changes merit praise. Slowly, over time, the Court moved toward a consensus that it might never have reached if it had tried to articulate and rely on divisive grand theories from the start. That consensus was more restrained and better grounded than the Warren Court's forays into the field. It came closer to reflecting the historical theory behind the Fifth Amendment itself. It also seems more in keeping with the judiciary's restrained, incremental role in social change. And yet this stability came at a high price. Ultimately, the piecemeal approach was flawed in other ways. Miranda was a social experiment on a grand scale, and it has failed to yield the results promised. Demolishing the entire Miranda edifice in Dickerson could have spurred legislatures to enact more promising reforms, such as mandatory audio- and videotaping of police interrogations. Leaving it in place as a rigid constitutional rule freezes the flawed status quo in place.


 
Call for Papers: Psychiatry and the Moral Emotions
    THE ASSOCIATION FOR THE ADVANCEMENT OF PHILOSOPHY & PSYCHIATRY CALL FOR ABSTRACTS 2006 MEETING: May 20 & 21, 2006, Toronto, Ontario THEME: Psychiatry and the Moral Emotions The “moral” emotions, which have attracted increased interest among philosophers, psychiatrists and psychologists in the past two decades, are those that arise in the context of events that are perceived to have a moral component or that serve to motivate a person toward moral action (or inaction). The category is vague, but typical moral emotions include the “reactive” attitudes of guilt, shame, regret, contrition, remorse, resentment and envy, as well as such positive emotions as awe, love, empathy, and gratitude. Because a degree of cognitive self-reflection about one’s own role is part of many of these emotions, they are also referred to as emotions of self-consciousness or self-assessment. This element of self-awareness connects the moral emotions to issues around metaphysics, consciousness, spiritual life, and existential concepts like freedom and authenticity. Further puzzles about the moral emotions involve the long-standing controversies concerning the relationships of emotion to rationality, the influence of emotions in general as motivators for human action (or inaction), and the significance of the moral emotions in the development of character and personality. The moral emotions relate to psychiatric theory and practice in a variety of ways. Psychiatry has traditionally been interested in the pathological aspects of the moral emotions. Guilt and shame are prominent in the phenomenology in depressive and anxiety disorders, including PTSD. Similarly, guilt, shame, and humility figure prominently (if primarily as deficits) in personality disorders like Antisocial, Narcissistic, and Borderline Personality Disorder. More recently, interest has extended to the neurobiology subserving the moral emotions. Neurobiological explanations of the moral emotions may reframe questions of moral and legal responsibility. Evolutionary psychology and psychiatry have raised the question of the adaptive significance of the moral emotions. Questions that arise at the philosophical/psychiatric interface include: Which are the moral emotions? What are the components of these complex emotions? What is the relationship between moral and mental health norms? What are the differences between shame and guilt, and when are these emotions healthy and when not? How do personality and the moral emotions interact? Has psychiatry reduced the moral worries and conflicts to a series of neurotic symptoms? How shall psychiatric practice examine moral conflict in its understanding and treatment of patients? Abstracts should be 600 words or less, and must be accompanied by a separate cover sheet with the author(s) name, mailing address, and telephone number. This facilitates AAPP's blind review policy. Mail abstracts in triplicate to: Jerome Kroll, M.D., Community-University Health Care Clinic, 2001 Bloomington Avenue South, Minneapolis, MN 55404, or (fax) 612-273-9779 or (e-mail) kroll001@ umn.edu Submissions must be postmarked by November 30, 2005 to be considered. Each abstract will have a blind review by three members of the AAPP Executive Council and their designees. Acceptances will be mailed no later than January 15, 2006. Approximately 18 papers will be accepted. Accepted papers should be of length to present within a strict 20-minute time limit.


Thursday, October 20, 2005
 
Thursday Calendar
    Oxford Jurisprudence Discussion Group: Sameer Singh, Reasons and Reparation. Boston College Legal History: Professor Marilynn Johnson, Boston College, hallenging Police Repression: Federal Activism and Local Reform in New York City.
    Boston University School of Law: M. Amin Al-Midani (Arab Centre for International Law and Human Rights Education).
    Richard Abel, University of California at Los Angeles School of Law, Brooklyn Law School: Practicing Immigration Law in Filene’s Basement
    Fordham University School of Law: Laurence R. Helfer, Professor of Law, Vanderbilt University Law School, "Exiting Treaties"
    George Mason University School of Law: Don Langevoort, Georgetown Law Center, The Law and Economics of Corporate Cultures
    NYU Colloquium in Law, Philosophy, and Political Theory: Benedict Kingsbury, The Problem of the Public in Public International Law.
    Oxford Public International Law Discussion Group: Morten Bergsmo, Between legitimacy and efficacy: challenges in international criminal justice
    Oxford Institute of European and Comparative Law, Barbara Pozzo, Comparative Law Discussion Group: Problems of Terminology and Translation in European Private Law
    University College London School of Law: Mavis MacLean (Oxford), ‘Family Law &Family Justice'
    University of Georgia Law: Julian A. Cook III (Michigan State Univesity), Crumbs From the Master's Table: The Supreme Court, Pro Se Defendants and the Federal Guilty Plea Process
    University of Michigan Law & Economics: Adam Pritchard, Michigan, The Screening Effect of the Private Securities Litigation Reform Act
    Yale Law Economics & Organizations: Gary King, Harvard, Government, When Can History be Our Guide? The Dangers of Counterfactual Inference.
    Vanderbilt University Law: Robert Post, Yale Law School, "Compelled Subsidization of Speech: Johanns v. Livestock Marketing Ass'n"


 
Conference Announcement: Legal Ethics, Conscience, and Utopian Justice
    The Center for Thomas More Studies is hosting a conference this November entitled Legal Ethics, Conscience, and Utopian Justice: The Perspective of Thomas More, “Lawyer of the Millenium.” Some of the leading Thomas More scholars in North America will participate, including Joseph Koterski, SJ, chair of Philosophy at Fordham University and Prof. Steven D. Smith of San Diego Law School, among others. The conference will take place at the University of Dallas from November 4th-6th. The registration deadline is October 1st. For more information and registration information, please see the attached poster and the Center’s website (http://www.thomasmorestudies.org/).


 
Heise on Educational Adeaquacy Michael Heise (Cornell Law School) has posted Educational Adequacy as Legal Theory: Implications From Equal Educational Opportunity Doctrine on SSRN. Here is the abstract:
    Evolving school finance litigation theory reflects an evolving equal educational opportunity doctrine. Decades ago race and school desegregation litigation forged the initial modern understanding of equal opportunity. More recently, school finance litigation displaced desegregation litigation as the major instrument for enhancing equal educational opportunity. Within the school finance litigation movement equity theory understood equal educational opportunity from the perspective of school resources, principally per pupil spending. Current school finance litigation theory - adequacy - approaches the equal educational opportunity doctrine with an eye towards results, notably student academic achievement. If my central claim that adequacy litigation is the most recent judicial articulation of an evolving equal educational opportunity doctrine is correct, an understanding of adequacy litigation requires some understanding of educational opportunity. Society's unending quest for greater educational opportunity, at least since the mid-twentieth century, implies a robust role for state and federal courts. Advocates' reliance on the courts for a drive toward enhanced educational opportunity, however, places critical - and increasingly uneasy - institutional stress on the judiciary. As a consequence, adequacy litigation's future efficacy relies partly on the equal educational opportunity doctrine's stability as well as the courts' institutional capacity to achieve desired educational policy changes.


 
Hylton on Property Rules and Liability Rules Keith N. Hylton (Boston University School of Law) has posted Property Rules and Liability Rules, Once Again on SSRN. Here is the abstract:
    Calabresi and Melamed published the seminal article on property rules and liability rules in 1972. In recent years new articles presenting rigorous analyses of bargaining incentives have overturned some of the fundamental claims of the Calabresi-Melamed analysis. In particular, the proposition that property rules are socially preferable to liability rules when transaction costs are low appears to be either no longer valid or severely weakened under the new analyses. This paper reexamines the property rule versus liability rule question in light of the contributions of the recent bargaining theory literature. In contrast to this literature, I find that the fundamental propositions of Calabresi-Melamed remain valid, and I extend the framework to provide a more detailed positive economic theory of common law rules. The key contribution of this paper is pointing out the importance of subjective valuations in the analysis of property and liability rules. This allows for a synthesis of Calabresi-Melamed and the bargaining theory literature within an expanded framework.


 
Fontana on APA Reform David Fontana (Oxford University) has posted Reforming the Administrative Procedure Act: Democracy Index Rulemaking (Fordham Law Review, Vol. 74, No. 81, 2005) on SSRN. Here is the abstract:
    This Essay argues that the current regime of administrative law should be changed by creating legal incentives for agencies to involve the public in the rulemaking process via "democracy index rulemaking." Democracy index rulemaking would create a clear incentive for agencies to involve the public by requiring that the more participation that occurred during the rulemaking process, the more deference that such an agency rule would receive in court. An agency could receive this deference by using normal notice and comment procedures and receiving a large number of relevant and non-repetitive comments on a proposed rule, with the precise amount of deference then tied to the number of comments received. Alternatively, the agency could use a special procedure, called deliberative notice and comment, which would involve jury deliberations (involving a set of juries composed of stakeholders as well as of members of the general public) regarding the proposed administrative rule. An agency using this special democratic process would guarantee itself deference. Either way, democracy index rulemaking would create a system that would encourage public participation, with all of its virtues, while at the same time avoiding many of the negatives of other regimes of public participation.


 
Greenberger on Katrina Michael Greenberger (University of Maryland - School of Law) has posted The Role of the Federal Government in Response to Catastrophic Health Emergencies: Lessons Learned from Hurricane Katrina on SSRN. Here is the abstract:
    In much of the recent thought devoted to the role of states in responding to catastrophic public health emergencies, as most clearly evidenced by the commentary surrounding the Centers for Disease Control and Prevention - sponsored Model State Emergency Health Powers Act (Model Act), there is a focus on state governments being viewed as the exclusive controlling governmental agent supervising the governmental response. Much of that thinking is premised on a view of limitations placed on Congress' power to act in public health emergencies emanating from Commerce Clause restrictions in the Supreme Court decisions of U.S. v. Lopez, 514 U.S. 549 (1995) and U.S. v. Morrison, 529 U.S. 598 (2000). This state-oriented focus has tended to blind state and local emergency responders to the substantial assets that can be deployed by the federal government either as an important supplement to the state and local response; or, in appropriate circumstances and under Congressional authority, that may preempt the state response if it is deemed ineffective by the federal government. Any purported commerce clause limitations are belied by a careful reading of the Supreme Court jurisprudence in this area and the fact that Congress itself has repeatedly authorized a prominent federal role in responding to incidents of national significance through a plethora of enactments. Moreover, the Department of Homeland Security's National Response Plan (NRP) promulgated in December 2004 in response to a Congressional directive contemplates federal leadership in responding to catastrophic public health emergencies that could override conflicting state actions. The response to Hurricane Katrina only serves to buttress this point. The widely recognized federal ineffectiveness in initially reacting to Katrina has now driven the Bush Administration to state affirmatively that the federal government must assume the leading role in response to future major disasters, including possible use of the active military either pursuant to exceptions to the Posse Commitatus Act or proposed legislation designed to amend that statute. This article explores the issues surrounding the relationship between federal and state governments responding to catastrophic public health emergencies.


 
Beerman & Marshall on Presidential Transitions Jack Michael Beermann and William P. Marshall (Boston University School of Law and University of North Carolina at Chapel Hill - School of Law) have posted The Law of Presidential Transitions (North Carolina Law Review, Vol. 84, No. 4) on SSRN. Here is the abstract:
    Presidential transition periods are times of uncertainty and contradiction. The outgoing president retains all the formal legal powers of the presidency, yet his last electoral success is four years removed and his political capital is at low ebb. Further complicating the matter is that the transition agendas of the two presidents are unlikely to be aligned. Even if both presidents are from the same political party, their goals in the transition period may be widely disparate. The outgoing president will be concerned with preserving his legacy. The incoming president, on the other hand, will be focused on beginning her own initiatives. When the incoming and outgoing presidents are from opposing political parties the conflicts during the transition period may be even more acute. The outgoing president will want to protect his policies or accomplishments from being reversed or undermined and may also want to create obstacles to prevent his successor from too quickly achieving political and policy success. The incoming president, in turn, may desire to expeditiously reverse the policies of the previous president and may choose to tarnish the record of her predecessor in order to weaken any remaining support for his programs. Not surprisingly, then, presidential transitions have historically followed no consistent pattern. This article investigates whether there are the legal principles that guide the conduct of the president during presidential transitions and, if so, how far those obligations extend. We introduce the issue by reviewing the procedures for selecting and inaugurating the president and by canvassing the historical record as to how transitions have previously been accomplished. We then discusses whether Constitutional provisions such as the Take Care Clause, the Oath Clause, and the Term Clauses and/or the president's implied foreign policy and national security powers confer legal duties on the president with respect to transition. We conclude that presidential transitions impose some constitutional obligations upon the president but that outside the area of foreign policy, the extent of those obligations are relatively limited. We suggest that the outgoing president must offer sufficient briefings and assistance to assure that the new president is able and prepared to execute her powers from the first day in office. We contend, however, that the outgoing president is under no obligation to implement the new president's political agenda or to end implementing his own even if the new president may be forced by the outgoing president's actions to expend her political capital to undo the previous administration's work. The Constitution does not demand that the outgoing president pave the political way for his successor.


 
Berg on Minority Religions Thomas Berg (University of St. Thomas, St. Paul/Minneapolis, MN - School of Law) has posted Minority Religions and the Religion Clauses (Washington University Law Quarterly, Vol. 82, No. 3, 2004) on SSRN. Here is the abstract:
    This Article explores a minority-protection approach to interpreting the First Amendment's Religion Clauses. Under such a theory, the Religion Clauses together should be read to protect minority religious beliefs and practices from government burdens, and to equalize the status of minority religions before the government with that of majority faiths. Protecting minorities is not the sole or overriding purpose of the clauses, but it is a significant one. I build on previous scholarly work concerning religious minorities, but in some respects I critique them and reach different conclusions about where a minority-protection approach properly leads. Part I argues that protection of minority religions should be an important consideration in interpreting the Religion Clauses. Part II addresses difficulties and complications in the idea of protecting minority faiths. The constitutional text protects all religious faiths, not just minorities. In addition, defining which faiths are minorities is more complicated than previous commentators have allowed. Because of America's complex patterns of religious identities, who is a minority will often vary depending on the geographical location, on the institutional setting of a legal dispute, and on how one chooses the key religious differences that sort groups into different categories. Given these complications, courts generally should refrain from singling out certain religious groups as minorities and treating them differently than other groups. Instead, courts should develop principles for various cases that are applicable to all faiths, but that tend to protect whoever happens to be a minority in the given geographical location, institution, or cultural atmosphere. Part III develops such principles for the leading categories of Religion Clause disputes. As other commentators have argued, courts seeking to protect religious minorities should read the Free Exercise Clause expansively to exempt religiously motivated conduct from certain laws that impose significant burdens on the conduct. Likewise, the Establishment Clause should be broadly interpreted to restrict government-sponsored religious practices in public schools and other government institutions because of their inherent majoritarian bias. However, contrary to the common strict-separationist wisdom, permitting government assistance for private religious education and social services can have positive aspects for many religious minorities. The Court's increasing approval of programs of aid is quite defensible under a minority-protection approach, if the program includes measures to protect children and families from being pushed into schools that teach a faith different from their own.


Wednesday, October 19, 2005
 
How Many University of Chicago Law Professors Does It Take . . . Over at the University of Chicago Law School's Faculty Blog, Lior Strahilevitz has a post entitled Chicago's Phantom Professors, criticizing the study by David Horowitz and Joseph Light on ideological bias in law school and journalism faculties. Here's a taste:
    My strong reaction is where the heck did all these Chicago law professors come from? The study claims to exclude clinical faculty and adjunct faculty, but still manages to find 100 full-time law professors at the University Chicago, or 67 more professors than our own web site indicates we have (show "full-time faculty").
Yeah, where did all those phantom professors come from?


 
Law School Rankings Department And speaking of Paul Caron (see post immediately below), check out his The U.S. News Silly Season.


 
The "Not Legal Theory" Department Many readers of LTB are in the academy & may be interested in the following in Tax Planning of a Visiting Professorship by Myron Hulen. The link was supplied by Paul Caron on his marvelous blog.


 
USA Today on the Miers Vetting Process Joan Biskupic and Toni Locy have a story entitled Miers was vetted by few in administration in USA Today. Here's a taste:
    “It strikes me as quite unusual that she would have a process unlike that for any other one under consideration,” said Michael Gerhardt, a University of North Carolina law professor who has written extensively about nominations. Gerhardt suggested that the way the White House handled Miers' selection left her vulnerable to the ongoing criticism — much of it from fellow conservatives such as commentators Pat Buchanan and George Will — about Miers' credentials. “The norm is to do as much of a background check as possible to prepare yourself for all possible attacks,” Gerhardt said. “They did not do that here.”


 
Pocket Part The Yale Law Journal now has an online "companion" called Pocket Part. Check out Of Property and Federalism by Abraham Bell & Gideon Parchomovsky with respones by Robert C. Ellickson and Stephen F. Williams. Here's a taste:
    Federalism is an engine of legal innovation in the United States. As Justice Brandeis commented, “[i]t is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” Through these experiments, citizens are able to get better laws. Charles Tiebout famously observed that while political mechanisms for local government services and taxes may be clumsy and inefficient, citizens can always vote with their feet by immigrating to jurisdictions that provide better services for their tax money. The Tiebout hypothesis shows that even without direct markets for government services, federal competition can lead to efficient outcomes.


 
Wednesday Calendar
    NYU Legal History: William Nelson, Weinfeld Professor of Law, NYU School of Law, “The Common Law in Colonial America: The Chesapeake and New England, 1607-1660, Part I"
    Oxford Criminology Seminar Series: Ian Loader, Civilizing Security: The Necessary Virtues of the State
    Villanova University School of Law: Amy Uelmen, Fordham University School of Law, The Evils of "Elasticity": Reflections on the Rhetoric of Professionalism and the Part-Time Paradox in Large Firm Practice


 
McKenna on Publicity & Self Definition Mark McKenna (Saint Louis University) has posted The Right of Publicity and Autonomous Self-Definition on SSRN. Here is the abstract:
    Legal protection against unauthorized commercial uses of an individual's identity has grown significantly over the last fifty years as it has relentlessly pursued economic value. It was forced to focus on value because a false distinction between the harms suffered by private citizens and celebrities seemingly left celebrities without a privacy claim for commercial use of their identities. But the normative case for awarding individuals the economic value of their identity is weak, since celebrities do not need additional incentive to invest in either their native skill or in developing a persona. Still, while the prevailing justification is inadequate, as are other theories offered by supporters, courts and commentators have long ignored an important interest implicated by commercial use of identity that is applicable to both celebrities and non-celebrities. An individual's choices with regard to the companies and products with which she associates reflect her values, and unauthorized use of one's identity may interfere with her ability to express her values to the world. There are costs attendant to that loss of control, and those costs are borne uniquely by the individual to whom the identity refers. Thus, every individual has an interest in preventing uses of her identity that strip her of control over the meaning of her identity. It is that interest, and only that interest, that the law should protect. This paper sketches the outline of a claim based on an individual's interest in autonomous self-definition.


 
Jacobs on Intent-Based Parentage Principles Melanie B. Jacobs (Michigan State University College of Law) has posted Applying Intent-Based Parentage Principles to Nonlegal Lesbian Coparents (Northern Illinois University Law Review, Vol. 25, pp. 433-48, 2005) on SSRN. Here is the abstract:
    I have previously advocated using the UPA as a preferred method by which nonlegal lesbian coparents may be adjudicated a legal parent. More specifically, I argued that applying the principles of functional parenthood, a nonlegal mother could be adjudicated a legal mother under the UPA, thus providing her with full parental status. I argue that such application is consistent with the policies of the UPA. For instance, under the UPA, the mother and child relationship is established either by the woman's having given birth to the child, adoption of the child by the woman, or an adjudication of the woman's maternity. By recognizing that maternity may be established other than by birth or adoption, the Act opens the door to other methods of maternity adjudication. One method may be proof of genetic motherhood; another may be proof of functional parenthood, specifically holding oneself out as the child's parent. As courts attempt to recognize means of establishing parentage other than through biology and adoption, several have embraced the concept of intent-based parenthood, meaning that the party who intended to bring about the birth of the child should be declared the legal parent. However, parenthood by intention has been largely used to resolve parentage issues that arise in assisted reproduction cases involving married couples. To date, courts have demonstrated greater reluctance to use intention to establish legal parentage for nonlegal lesbian coparents. A second difficulty of the intent doctrine as currently applied is that it focuses purely on pre-birth parenting intention; it does not encompass the intent to parent that may accompany functional parenting that begins after the child's birth. Thus, when courts are required to make initial parentage determinations among multiple potential parents, intent is often useful to choose between them. When only two parties are involved, however, intent should be considered either to establish parentage in the first instance, or later, as a component of a functional parenthood analysis. Finally, while intention is a good alternative to parental determinations predicated on biology or the marital presumption, the intent principle should not preclude other methods of parental establishment. As discussed in this Article, some appellate courts concluded that if initial intent to parent is not present, functional parenthood is irrelevant. I wrote this Article while three lesbian coparent cases were pending before the California Supreme Court. In each case, an appellate court was asked to determine whether a lesbian coparent could be declared a legal parent under the UPA. In two cases, the courts felt constrained by the intentional parent test, first articulated in Johnson v. Calvert, and did not use the UPA to determine legal parentage. Specifically, the two courts noted the Johnson intention test applied to married couples where only one legal mother would be established. I argue that reading of Johnson is too narrow and inconsistent with the court's opinion. The third appellate case correctly recognized (I argue) that the UPA embraces intentional and functional parentage and is not limited to a strict nuclear family application. In fact, the California Supreme Court has now heard the appeals of the three above-referenced cases and has ruled that the UPA can, indeed, be used to establish legal parentage for lesbian coparents.


 
Carroll on Uniformity Cost in IP Michael W. Carroll (Villanova University School of Law) has posted One for All: The Problem of Uniformity Cost in Intellectual Property Law on SSRN. Here is the abstract:
    Intellectual property law protects the owner of each patented invention or copyrighted work of authorship with a largely uniform set of exclusive rights. Historically, this uniformity may have been justified in light of the relative homogeneity of market conditions applicable to protected subject matter, such as books or mechanical inventions. Technological progress since the founding has led to considerable growth in the range of inventions and expressive works to which patent and copyright law apply, respectively. In the modern context, it is clear that innovators' needs for intellectual property protection vary substantially across industries and among types of innovation. Applying a socially costly, uniform solution to problems of differing magnitudes means that the law necessarily imposes uniformity costs by underprotecting those who invest in certain costly innovations and overprotecting those with low innovation costs or access to alternative appropriability mechanisms. This Article argues that reducing uniformity cost is the central problem for intellectual property policymaking. There are three approaches for reducing uniformity costs: (1) granting real options to obtain or maintain intellectual property rights (such as renewable terms); (2) using standards rather than rules to define rights, thereby making their application more context-sensitive; and (3) tailoring rights legislatively or judicially. This Article focuses on the ways in which current law deploys these approaches to reduce uniformity cost and argues that recent changes in the law have exacerbated the problem of uniformity cost.


 
Resta on Social Change in Congo Odette Boya Resta (International Development Law Organization) has posted Contentious Politics and Social Change in Congo (Security Dialogue, Vol. 32, No. 1, pp. 71-85, March 2001) on SSRN. Here is the abstract:
    This paper begins by tracing the disintegration of the Congolese state (Democratic Republic of Congo) over three decades under Mobutu Sese Seko. The failed democratic transition of the 1990s was a process that exposed deep cleavages among the Congolese political class that culminated in a power vacuum filled by the Kabila regime in 1997. Since the advent of the new Kabila government foreign elements have 'had their way,' so to speak, with Congo in ways reminiscent of the years of the Belgian King's fiefdom and subsequent colonial period. The war which began in 1998 - and has wrought the ravaging of Congo's human and material resources by foreign elements both African and non-African - stems largely from the Congolese state's inability to protect itself, the most essential function of a nation-state. Thus state-building and peace-building must go hand in hand in Congo. In this paper Charles Tilly's model of 'contentious politics' is applied to the current Congo conflict. The article concludes with an assessment of the 1999 Lusaka Peace Agreement, a document that aims to address peace-building and state-building simultaneously as complementary notions, indeed a challenge for many post-conflict nations. The article asks the question: do peace agreements by themselves represent viable paths forward for the political development of countries emerging from conflict or, in the case of Congo, is there a need for a broad and popular consensus and a comprehensive national security program to end the devastating war?


Tuesday, October 18, 2005
 
Paulsen and Yoo on a Litmust Test for Miers Michael Stokes Paulsen and John Yoo have an op/ed entitled Make Miers pass a 'litmus test' in the Los Angeles Times. Here is a taste:
    The only way out of this mess is for GOP senators to ask — and to require Miers to answer, as a condition of confirmation — direct questions about her judicial philosophy and its application to concrete constitutional issues. Republicans should test Miers' core legal principles. And if she fails the test, or refuses to take it, they can vote against her. The administration's stealth strategy assumes that it is improper for senators to ask, or for a nominee to answer, a question about Roe vs. Wade or any other substantive constitutional question. This has things exactly backward. The Constitution not only permits such questioning, it arguably requires it. Although the Constitution makes judges independent after appointment, it sets up an explicitly political appointment process before a judge is approved. Why on Earth would determining a nominee's approach to interpreting the Constitution be thought to be out of bounds, before giving her a lifetime appointment to do exactly that
I find this claim puzzling. So far as I can tell, the founders used a "political appointments process" as a mean to secure the most virtuous judges--not ones who would give the most politically acceptable answers to questions about particular issues! But even more radical is this claim:
    Is there any line of inquiry that the Constitution does not permit? Yes. It would be improper to try to exact a pledge as to how a nominee will rule in future cases. As long as the inquiry stops short of that, it does not violate the Constitution's protection of judicial independence, nor does it violate judicial ethics.
In other words, it would be permissible to ask Miers how she would likely vote in particular cases to be argued and decided when she was on the Court, so long as there was no "pledge." Astonishing!
Thanks to Rick Hasen for the link!


 
Conference Announcement: Limits of International Law at Georgia
    The Limits of International Law: A Symposium on the Book by Jack Goldsmith and Eric Posner (Oxford University Press 2004) University of Georgia Law School, October 28-29, 2005 Participants: Jack Goldsmith, Harvard University Law School Eric Posner, University of Chicago Law School Kenneth Anderson, American University Law School Allen Buchanan, Terry Sanford Institute of Public Policy, Duke University David Golove, New York University School of Law Andrew Guzman, Boalt Hall School of Law, University of California, Berkeley Peggy McGuinness, University of Missouri-Columbia Law School Kal Raustiala, UCLA Law School & Program on Global Studies Philippe Sands, Faculty of Laws, University College London Conveners: Daniel Bodansky, University of Georgia Law School Peter J. Spiro, University of Georgia Law School Papers to be published in the Spring 2005 edition of the Georgia Journal of International & Comparative Law Information: Laura Kagel, lkagel@uga.edu


 
Wilson on Removing Violent Parents Robin Fretwell Wilson (University of Maryland School of Law) has posted Comment: Removing Violent Parents from the Home: A Test Case for the Public Health Approach (Virginia Journal of Social Policy and the Law, Vol. 12, No. 3, 2005) on SSRN. Here is the abstract:
    Few decisions are as determinative of a child's well-being and long-term success as the decision to remove a child from his or her own home following an allegation of abuse by a parent. Using the public health lens Professor Marsha Garrison develops elsewhere in this Issue, this Comment examines one of the most critical questions Child Protective Services agencies face thousands of times a day: whether to remove a child who is a possible victim of abuse or neglect from his or her home. This evidence-based approach shows that the choice to remove the child rather than the alleged offender is driven largely by two suppositions: misunderstandings about the legality of excluding alleged offenders from their home, compounded by the equally entrenched, but wrong-headed view that a non-abusing parent who fails to protect once will do so again. Ironically, many caseworkers and other decision makers falsely believe that only the child-victim is at risk from the alleged offender, and therefore remove only that child. Yet, in cases of intra-familial sexual abuse, perpetrators rarely stop with the first victim. This Comment argues that CPS agencies legally can, and should, place the burden of homelessness on the alleged offender rather than compromising children's safety. It begins by dissecting the empirical factors driving the decision to remove children from their home, and illustrates that baseless suppositions of "maternal culpability" have led caseworkers reflexively to remove the victim, rather than pursuing the more direct and meaningful remedy of removing the threat to the child's safety. It also demonstrates that a shift in CPS' default remedy protects not only the victim, but his or her siblings who, left within the alleged offender's immediate grasp, would likely become the next victim. The Comment then examines how judges and legislators in nine states have laid the groundwork for excluding the alleged offender pending a full investigation. It considers and rejects several possible limitations of accepting exclusion of the alleged offender as the default remedy in cases of alleged child abuse. Using Professor Garrison's evidence-based approach, this Comment ultimately concludes that we have come a long way since Florence Rush asked in 1974, "[h]as anyone thought of the fantastic notion of getting rid of the [accused] father?"


 
Tuesday Calendar
    Georgetown University School of Law: Tamiko Brown-Nagin.
    Lewis & Clark School of Law: Todd Lochner, Assistant Professor, Political Science Department, Lewis & Clark College, Stacking the Deck and Shuffling the Cards: Agency Influence on Prosecutorial Agenda Setting.
    Loyola Law School, Los Angeles: Tung Yin, Associate Professor of Law, The University of Iowa, College of Law, "Coercion and Terrorism Prosecutions in the Shadow of Military Detention"
    Ohio State University Law: L. Camille Hébert, Why Don't Reasonable Women Complain of Sexual Harassment?
    University of Chicago Law & Economics: Dhammika Dharmapala, University of Connecticut, The Just World Bias and Hate Crime Statutes


 
Redding & Mrozoski on Juvenile Justice Decisionmaking Richard E. Redding and Barbara Mrozoski (Villanova University School of Law and Villanova University School of Law) have posted Adjudicatory and Dispositional Decision Making in Juvenile Justice (JUVENILE DELINQUENCY: PREVENTION, ASSESSMENT, AND INTERVENTION, K. Heilbrun, N.E. Goldstein, and R.E. Redding, eds., Oxford University Press, copyright © 2005, Used by permission of Oxford University Press, Inc.) on SSRN. Here is the abstract:
    Juvenile court judges and others working in the juvenile justice system have a wide variety of dispositional and sentencing options available for the juvenile offenders under their jurisdiction. For serious, violent or chronic offenders, these options increasingly involve transferring juveniles from juvenile court for trial and sentencing in the criminal court as well as blended juvenile and adult sentences. This chapter provides an overview of the adjudicatory and dispositional options available for handling juvenile offenders in the juvenile and criminal justice systems. The research on adjudicatory and dispositional decision making is reviewed, and directions for future law and policy development are proposed.


 
Hatfield & Weiser on Spectrum Property Dale Hatfield and Phil Weiser (University of Colorado at Boulder and University of Colorado at Boulder - School of Law) have posted Property Rights In Spectrum: Taking the Next Step on SSRN. Here is the abstract:
    On the views of almost all commentators, the primary obstacle to recognizing property rights in spectrum is either a lack of economic sophistication or political will by the relevant policymakers. To such commentators, the FCC (or a court) could simply enforce property rights at the geographic boundary of a coverage area as well as at the boundaries (or edges) of different frequency bands. On such a view, if a spectrum licensee did not respect such boundaries - i.e., trespassed onto a neighboring geographic area or frequency band - the FCC (or a court) should issue an injunction to prevent such conduct. This paper explains that the transition to a property rights model for spectrum is far more complex than commonly portrayed. First, unlike real property, radio spectrum does not allow for clear boundaries, as radio waves propagate in varying ways depending on a variety of circumstances and practical filtering constraints prevent total isolation between adjacent frequency bands. Second, if property rights are granted in a manner that would allow injunctions for trespass, it is quite possible that parties could bring actions solely to threaten an injunction and obtain a license along the lines of the much-criticized patent trolls. Finally, and most significantly, any workable system of property rights will need to rely on (at least to some degree) the predictive models - i.e., statistical predictions as to how often interference is likely to occur - that generally govern how spectrum is used today. Notably, any such reliance begs the question of how such models will be integrated into an enforcement system and with the reality of whether interference is actually present. We do not have all of the answers worked out for how a property rights system for spectrum would work in practice. We do, however, believe that the overly simple assumptions underlying the claims of most property rights advocates could lead to unfortunate results and unintended consequences. To avoid such results, commentators - particularly those integrating technological, economic, and legal expertise - need to engage on the merits of a critically important policy challenge. Although we do not yet grasp all of the particulars of the ideal model for property rights in spectrum, we do believe that it will look quite different from its real property counterpart to which it is often inaccurately compared.


 
Holbrook on Possession in Patent Law Timothy R. Holbrook (Chicago-Kent College of Law) has posted Possession in Patent Law (SMU Law Review, Vol. 59, No. 1) on SSRN. Here is the abstract:
    Every patent system in the world requires an inventor to disclose his invention in the patent document. The courts rationalize this obligation as part of the quid pro quo of the patent system: the patentee must disclose the invention to the public in exchange for the patent's exclusive rights. The patent thus teaches the world about this new creation and enhances the storehouse of knowledge. The quid pro quo view of the patent system, however, is inconsistent with the theoretical justifications for patent law. Patents are meant to combat free-riding, yet this view of the patent as "teaching" the invention is based on the view that free-riding is normatively good. This article explains this apparent inconsistency by recognizing that the teaching function is not the primary purpose for disclosure. Instead, the purpose of disclosure, and specifically the manner of making the invention, is to demonstrate that the inventor was in possession of the invention. This shift in perspective from "teaching" to "possession" reconciles patent theory with the disclosure obligations and also provides significant normative power in explaining how patent law could work more effectively.


 
Trachtman on the WTO Joel P. Trachtman (Tufts University - The Fletcher School) has posted Building the WTO Cathedral on SSRN. Here is the abstract:
    The WTO law of remedies for violation appears incoherent. States that fail to comply with their obligations are subject to WTO-authorized retaliation. First, this retaliation takes the inefficient form of blocked trade by the complaining state. This remedy is unlikely to be useful to developing countries. Second, the amount of trade blocked by the violation is often used as the measure of authorized retaliation. This measure is not necessarily incentive compatible, as it is not necessarily linked to welfare. Thus, its use may result in inefficient breach, or inefficient compliance, with WTO law. Third, only states that engage in dispute resolution proceedings are authorized to retaliate, artificially reducing the possible incentives to comply. Fourth, authorization to retaliate is granted only prospectively, and there are generally no formal remedies for damages accruing before adjudication and the passage of permitted time for compliance. This also artificially reduces incentives to comply. This paper analyzes the rationale for, and structure of, welfare-based remedies that could form the basis for cash compensation in WTO law.


Monday, October 17, 2005
 
Monday Calendar
    Columbia Legal Theory Workshop: Stanley Fish of University of Illinois at Chicago, "There Is No Textualist Position"
    Georgetown Environmental Research Workshop: Professor Nina Mendelson, University of Michigan School of Law, "Regulatory Beneficiaries and Informal Agency Policymaking"
    George Washington Intellectual Property: Professor Andrew Chin, University of North Carolina Law School, “Artful Prior Art and the Quality of DNA Patents”
    Hofstra University School of Law: Miriam Cherry, Cumberland School of Law (Visiting at Hofstra Law School), “Markets for Markets: Origins and Subjects of Information Markets”
    University of London School of Public Policy: Thomas Pogge (Columbia/ANU), Recognised and Violated by the International Law: the Human Rights of the Global Poor.
    NYU School of Law, Ricky Revesz.
    Oxford Centre for Socio-Legal Studies: Christine Parker, Security, Citizenship and the Law: regulating boundaries: Meta-regulating corporate governance: legal accountability for corporate social responsibility
    UCLA School of Law: Jeffrey Wasserman, RAND Corporation, Legal and Other Perspectives on Public Health Preparedness
    UCLA School of Law: Goodwin Liu, Boalt Hall School of Law.
    University of Alabama School of Law: Jonathan Simon of the UC Berkeley, Boalt Hall School of Law, Risk and Reflexivity: What Socio-Legal Studies Adds to the Study of Risk and the Law
    University of Texas Law: Omri Ben Shahar, University of Michigan, "Boilerplate and Economic Power in Auto Manufacturing Contracts"
    University of Minnesota Public Law Workshop: Kathryn Abrams, Boalt Hall, Black Judges and Ascriptive Group Identification.
    Vanderbilt Law & Business: David Denis, Purdue University, Krannet School of Management, "Earnouts A Study of Financial Contracting in Acquisition Agreements"


 
Call for Papers: Are we at War? Global Conflict & Insecurity Post 9/11 at Chapman
    CALL FOR PAPERS Chapman University School of Law through its Center for Global Trade and Development is hosting a conference on April 6-8, 2006, entitled "Are we at War? Global Conflict & Insecurity Post 9/11." The conference will take place in sunny Orange, California. It is an interdisciplinary conference drawing from law, economics, philosophy, all other fields of social sciences, hard sciences, and other areas including film & media, literature, and medicine. All Papers and Proposals should be submitted in Word or WordPerfect format, along with CV and an Abstract of 1-3 pages, no later than December 5, 2005, by e-mail to the Conference Program Committee at: global-center@chapman.edu Honorariums for Papers, travel and hotel accommodations are available and will be awarded on a merit and need basis by the Conference Program Committee. Are we "at war"? In what ways does it matter how we classify, describe or justify today's global conflicts? What is war? Is it simply the absence of peace? Or might war, like peace, contemplate a more proactive approach to organizing and applying society's resources? Scholars in a wide range of fields are beginning to reconsider the significance of war as a rhetorical device, as an institutional reality, or as a principled means of organizing society's priorities and resources. For further information:
      The Center for Global Trade & Development global-center@chapman.edu Ms. Annalisa Goode Program Administrator, The Center for Global Trade & Development goode@chapman.edu


 
Miers & Roe John Fund has an op/ed in the Wall Street Journal entitled Judgment Call. Here is a taste:
    Dr. Dobson says he spoke to Mr. Rove on Oct. 2, the day before President Bush announced the nomination. Mr. Rove assured Dr. Dobson that Ms. Miers was an evangelical Christian and a strict constructionist, and said that Justice Hecht, a longtime friend of Ms. Miers who'd helped her join an evangelical church in 1979, could provide background. Later that day, a personal friend of Dr. Dobson's in Texas called him and suggested he speak with Judge Kinkeade, a friend of Ms. Miers's for decades. Dr. Dobson says he was surprised to learn that Messrs. Hecht and Kinkeade were joining the Arlington Group call. He was asked to introduce them, which he considered awkward, given that he'd never spoken to the former and only once to the latter. He introduced them, nonetheless, by saying, "Karl Rove suggested that we talk with these gentlemen because they can confirm specific reasons why Harriet Miers might be a better candidate than some of us think." What followed was a free-wheeling discussion about many topics, including same-sex marriage. Justice Hecht said he'd never discussed that issue with Ms. Miers. Then an unidentified voice asked the two men, "Based on your personal knowledge of her, if she had the opportunity, do you believe she would vote to overturn Roe v. Wade?" "Absolutely," said Judge Kinkeade. "I agree with that," said Justice Hecht. "I concur."


 
Bernstein on Kersch David Bernstein has a short review of Constructing Civil Liberties: Discontinuities in the Development of American Constitutional Law by Ken I. Kersch over at the Volokh Conspiracy. Here's a taste:
    This is a relentlessly interesting book, one that can’t help but change the way the reader understands twentieth century American constitutional development. As Kersch persuasively argues, for much of the late twentieth century, American constitutional history was dominated by a whiggish narrative in which progressive forces consistently supportive of civil rights and civil liberties triumphed over the dark forces of reaction. This whiggish narrative, however, is full of holes. For example, progressives of the early twentieth century fought mightily against privacy rights protected by the fourth and fifth amendments, in the name of the right of publicity. More specifically, the statebuilding project supported by progressives required that American businesses be subjected to intrusive and unprecedented inspection by regulatory and other legal authorities. Even future Supreme Court Justice Louis Brandeis’s famous 1890 article supporting a constitutional “right to privacy”—later cited as the progenitor of modern “right to privacy” cases such as Griswold v. Connecticut—actually did not advocate a right to privacy that modern civil libertarians would even begin to recognize. Quite to the contrary, the article advocated recognition of a tort for invasion of privacy as a means of censoring even rather tepid tabloid journalism. Only after progressives had soundly defeated the “old” right to privacy in the economic sphere and established the modern bureaucratic state did they reimagine the right to privacy in terms congenial to modern liberalism, as an island of personal autonomy in a sea of statism. This victory also allowed them to revive the Fourth and Fifth Amendments in the service of protecting street criminals.
Check it out!


 
Gamage on Consideration and Commodification David Gamage has posted Resolving the Paradox of the Consideration Doctrine: The Implications of Inefficient Signaling and of Anti-Commodification Norms on SSRN. Here is the abstract:
    This paper addresses one of the central problems of contract law, a puzzle that has troubled generations of contracts scholars: Why do we only enforce promises backed by consideration? Or, how can we justify insisting on the bargain context, but not requiring that the bargains be adequate? The lack of a theoretical solution to this puzzle has plagued the application of the consideration doctrine in courts of law. We resolve this paradox through two innovations. First, using a game theory model based on asymmetric information, we dispute the common wisdom that the law should honor parties' intentions as articulated at the time of contract formation. We show how parties' expressed intentions may not conform to their underlying desires. Crucially, the mere fact that parties take advantage of a legally binding option does not imply that they desire the existence of that option. When courts create an option for the legal enforcement of promises, parties can essentially be forced into exercising that option. How then can the law determine which promises to enforce? Our second innovation shows how social norms against commodification limit the availability of the consideration form. Where previous scholarship has assumed that anyone so wishing can invoke nominal consideration, we argue that anti-commodification norms make even nominal consideration unavailable within certain social contexts. Moreover, the contexts in which norms block the use of consideration are precisely the circumstances where creating a legally binding option would be most likely to harm both promisors and promisees. Ultimately, what matters is not whether the parties actually do offer consideration, but rather whether they can voice consideration. Only when norms allow the use of consideration should we conclude that parties truly desire the option to have their promises legally enforced.


 
Yu on Protecting IP in China Peter K. Yu (Michigan State University College of Law) has posted From Pirates to Partners (Episode Two): Protecting Intellectual Property in Post-WTO China on SSRN. Here is the abstract:
    In From Pirates to Partners: Protecting Intellectual Property in China in the Twenty-First Century, I criticized the ineffectiveness and short-sightedness of the U.S.-China intellectual property policy. As I argued, the approach taken by the administration in the 1980s and early 1990s had created a cycle of futility in which China and the United States repeatedly threatened each other with trade wars only to back down in the eleventh hour with a compromise that did not provide sustainable improvements in intellectual property protection. Since I wrote that article five years ago, China has joined the WTO and undertook a complete overhaul of its intellectual property system. Because of China's WTO membership, the United States can no longer impose unilateral sanctions on the country, as it threatened to do a decade ago. Instead, the United States has to resolve the dispute through the WTO dispute settlement process. As the U.S. administration is currently reviewing its options and preparing for a possible WTO dispute against China, it is timely and important to reopen the debate about how to design an effective American intellectual property policy toward China. This article begins by challenging the conventional view that the intellectual property law amendments introduced in China in the wake of WTO accession were mostly introduced to conform Chinese intellectual property laws to WTO standards. It argues that many of the amendments were created as responses to the emerging socialist market economy and the rapidly-changing local conditions in the country. In addition, the article takes on the recent proposals for the U.S. administration to file a formal complaint with the WTO Dispute Settlement Body over inadequate enforcement of intellectual property rights in China and explains why the United States should not do so. The article then explores alternative protection strategies by presenting five case studies in which intellectual property rights holders were able to protect their assets without relying on intellectual property laws. It questions the effectiveness of the litigious approach taken by foreign businesses while exploring differences between the Chinese and Western legal cultures. The article concludes by examining the progress China made in the intellectual property arena by focusing on three widely-reported incidents: the unauthorized reproduction, translation, and adaptation of Harry Potter novels, the State Intellectual Property Office's recent decision to invalidate Pfizer's patent in Viagra, and the Chinese authorities' heightened effort to protect trademarks used in relation to the 2008 Beijing Olympics.


 
McCann on Cognitive Bias & Heuristics Among Professional Atheletes Michael McCann (Mississippi College School of Law) has posted It's Not About the Money: The Role of Preferences, Cognitive Biases and Heuristics Among Professional Athletes on SSRN. Here is the abstract:
    Professional athletes are often regarded as selfish, greedy, and out-of-touch with regular people. They hire agents who are vilified for negotiating employment contracts that occasionally yield compensation in excess of national gross domestic products. Professional athletes are thus commonly assumed to most value economic remuneration, rather than the "love of the game" or some other intangible, romanticized inclination. Lending credibility to this intuition is the rational actor model, a law and economic precept which presupposes that when individuals are presented with a set of choices, they rationally weigh costs and benefits, and select the course of action that maximizes their wealth, happiness, or satisfaction. Since athletes are generally presumed to most value financial compensation, they simply behave "rationally" by selecting the most lucrative offer. Intriguingly, however, for every apparent athletic mercenary, there appear to be many who significantly discount financial compensation. Indeed, for a variety of expressed motivations, professional athletes regularly select the non-optimal contract offer, at least in a traditional sense of optimality. Risk aversion and other deliberative strategies occasionally provide explanation, but more often explanatory is value in intangibles, such as loyalty, regional affinity, weather preferences, familiarity with certain teammates or coaches, prospects for team success, and demographic traits. A law and economic explanation for such behavior would illuminate the ranking of alternative preferences, and then, as reflected by choice, a maximization of such ranking. Put differently, by accepting a less remunerative offer, professional athletes may consciously substitute subjective value for objective value, and their choice simply reflects that which makes them most happy. Though diagrammatic in many instances, preferences may not universally explain decision-making among professional athletes. Indeed, like all individuals, professional athletes appear vulnerable to cognitive biases, which are subconscious mental errors triggered by simplified informational processes, and heuristics, which are convenient, if unfinished predictive cues. Though cognitive biases and heuristics enable individuals to manage a complex array of stimuli, they often distort preferences and adversely affect decision-making. For instance, because of confirmation bias, individuals are subject to ignore or discount information that challenges existing beliefs. Alternatively, optimism bias leads individuals to assume that general risks do not apply with equal force to themselves. In the context of professional sports, these and other cognitive distortions may impair not only the pursuit of objective value, but also rational assessment of subjective value. This is especially true when teams adroitly manipulate distortions, such as impressing illusory variances among themselves and other teams. Accordingly, when accepting a less remunerative offer, professional athletes may have unknowingly misinterpreted their preferences and rankings. To date, no published analysis has addressed the potential influence of behavioral tendencies on professional athletes in contemplation of contract offers. Perhaps this is not surprising, given the relative paucity of professional athletes among the general population, their presumptively unique modes of employment, and a general aversion among academics for the study of sports. A more scrupulous assessment of professional athletes, however, suggests a uniquely desirable group for examination. Indeed, aside from their striking influence on the world and economy around them, professional athletes, unlike most groups commonly studied by academics, furnish published commentary of their thought processes, typically through newspaper, television, and radio interviews. Accordingly, professional athletes offer a wealth of narration as to their values, beliefs, and priorities, and, equally important, such narration occurs in real world settings, rather than in experimental circumstances. Along those lines, by evading the alleged "experimental flaw" of many behavioral law and economic studies, analysis of decision-making among professional athletes may prove extraordinarily salient in the broader discussion of behavioral sciences and their influence on traditional law and economics. In pursuit of the above phenomena, this Article will begin by exploring the rational actor model, and how individuals utilize preferences in determining their optimal choice. This Article will then discuss limitations to the rational actor model, namely the role of cognitive biases and heuristics. Thereafter, this Article will canvass decision-making among professional athletes in contemplation of contract offers. In that regard, this Article will examine why some professional athletes pursue the most lucrative offer, while others do not, and to what extent cognitive biases and heuristics influence their decision-making. This Article will conclude by highlighting implications for professional sports and proposing recommendations for further analysis by economists, psychologists, and legal academics.


 
Wesson on State of Mind Marianne Mimi Wesson (University of Colorado at Boulder - School of Law) has posted State of Mind: The Hillmon Case, the McGuffin, and the Supreme Court on SSRN. Here is the abstract:
    The case of Mutual Life Insurance Company v. Hillmon is one of the most influential decisions in the law of evidence. Decided by the Supreme Court in 1892, it invented an exception to the hearsay rule for statements encompassing the intentions of the declarant. But this exception seems not to rest on any plausible theory of the categorical reliability of such statements. This article suggests that the case turned instead on the Court's understanding of the facts of the underlying dispute about the identity of a corpse. The author's investigations into newspaper archives and the original case documents point to a different understanding, and proposes that this important rule of evidence may have grown out of an historical mistake.


 
Trachtman on the WTO Constitution Joel P. Trachtman (Tufts University - The Fletcher School) The WTO Constitution: Toward Tertiary Rules on SSRN. Here is the abstract:
    Constitutions have many dimensions. These dimensions include at least the following:
      - an economic constitution in the sense of a set of rules for exchange of value and authority, - an interfunctional constitution that allows for the integration of various social values, - a political constitution that reflects the cultural and democratic integrity of a group of people, - a legal and judicial constitution that provides rules for the making of other rules, and for determining supremacy and the scope of judicial application of rules, - a human rights constitution that limits the sphere of governmental authority, and - a redistributive constitution founded on social solidarity.
    The WTO constitution has already grown along some of these dimensions. As we assess the constitutional development of the WTO, we must first analyze these dimensions separately. Second, we must examine how these dimensions relate to one another. Third, we must examine how these dimensions of the WTO "constitution" relate to the general international legal system's constitution. Finally, we must examine how these dimensions of the WTO "constitution" relate to the domestic constitutions of the WTO's member states.


 
Weiser on a Deregulatory Era Phil Weiser (University of Colorado at Boulder - School of Law) has posted The Relationship of Antitrust and Regulation In A Deregulatory Era (Antritrust Bulletin, Vol. 50, September 2005) on SSRN. Here is the abstract:
    In Verizon v. Trinko, the Supreme Court set forth a new stance toward antitrust oversight of regulated industries. As this Article discusses, the particulars of that stance remain open for debate and are likely to generate considerable disagreement. Notably, an ambitious reading of Trinko suggests that courts should avoid evaluating antitrust claims where a regulatory agency is empowered to oversee the conduct at issue. This Article, by contrast, calls for a less ambitious application of Trinko's rule of antitrust restraint. In particular, it explains that antitrust courts should make discretionary judgments about whether the effectiveness of regulation in a given set of circumstances renders antitrust oversight unnecessary. By so doing, antitrust courts would defer to regulatory agencies only where those agencies are reasonably capable of managing the competition policy matter at issue. If antitrust courts opt for a broader rule of restraint, such a stance would only fuel an unfortunate trend of devaluing the role of antitrust oversight and overly valuing the capabilities of alternative institutional actors. Rather than adopt that stance, antitrust courts should evaluate what revisions to legal doctrine and procedural practices can best evaluate claims that antitrust courts might otherwise seek to dismiss under Trinko.


 
Romero on Lawrence v. Texas Victor C. Romero (Pennsylvania State University - The Dickinson School of Law) has posted An "Other" Christian Perspective on Lawrence v. Texas (Journal of Catholic Legal Studies, Vol. 45, No. 1, 2005) on SSRN. Here is the abstract:
    The so-called "Religious Right's" reaction to Lawrence v. Texas has been both powerful and negative, characterizing the case as an assault on the traditional conception of marriage and family life. This essay is an attempt to present a different Christian view. Modeled on the life and teachings of Jesus, this perspective celebrates the Lawrence case as consistent with God's call to social justice for the oppressed. It also outlines a Christian sexual ethic that lifts up genuine, monogamous, committed love between two individuals, whether of the same or opposite sex.


 
Millstone and Subramanian on Oracle v. PeopleSoft David Millstone and Guhan Subramanian (Independent and Harvard Law School) have posted Oracle v. PeopleSoft: A Case Study (Harvard Negotiation Law Review, Forthcoming) on SSRN. Here is the abstract:
    This case describes Oracle's hostile takeover bid to acquire PeopleSoft, which began with an unsolicited cash tender offer at $16.00 per share in June 2003 and ended with a negotiated deal at $26.50 per share in December 2004. Novel questions of corporate law are raised by the prolonged use of a poison pill against a structurally non-coercive, all-cash, fully-financed offer; as well as PeopleSoft's unprecedented Customer Assurance Program (CAP), which promised PeopleSoft customers between two and five times their money back if Oracle acquired PeopleSoft and then reduced support for PeopleSoft products. This case study will be published as part of a dealmaking symposium in the Harvard Negotiation Law Review, followed by commentaries from practitioners involved in the deal, judges, and academics.


Sunday, October 16, 2005
 
Legal Theory Calendar
    Monday, October 17
      Columbia Legal Theory Workshop: Stanley Fish of University of Illinois at Chicago, "There Is No Textualist Position"
      Georgetown Environmental Research Workshop: Professor Nina Mendelson, University of Michigan School of Law, "Regulatory Beneficiaries and Informal Agency Policymaking"
      George Washington Intellectual Property: Professor Andrew Chin, University of North Carolina Law School, “Artful Prior Art and the Quality of DNA Patents”
      Hofstra University School of Law: Miriam Cherry, Cumberland School of Law (Visiting at Hofstra Law School), “Markets for Markets: Origins and Subjects of Information Markets”
      University of London School of Public Policy: Thomas Pogge (Columbia/ANU), Recognised and Violated by the International Law: the Human Rights of the Global Poor.
      NYU School of Law, Ricky Revesz.
      Oxford Centre for Socio-Legal Studies: Christine Parker, Security, Citizenship and the Law: regulating boundaries: Meta-regulating corporate governance: legal accountability for corporate social responsibility
      UCLA School of Law: Jeffrey Wasserman, RAND Corporation, Legal and Other Perspectives on Public Health Preparedness
      UCLA School of Law: Goodwin Liu, Boalt Hall School of Law.
      University of Alabama School of Law: Jonathan Simon of the UC Berkeley, Boalt Hall School of Law, Risk and Reflexivity: What Socio-Legal Studies Adds to the Study of Risk and the Law
      University of Texas Law: Omri Ben Shahar, University of Michigan, "Boilerplate and Economic Power in Auto Manufacturing Contracts"
      University of Minnesota Public Law Workshop: Kathryn Abrams, Boalt Hall, Black Judges and Ascriptive Group Identification.
      Vanderbilt Law & Business: David Denis, Purdue University, Krannet School of Management, "Earnouts A Study of Financial Contracting in Acquisition Agreements"
    Tuesday, October 18
      Georgetown University School of Law: Tamiko Brown-Nagin.
      Lewis & Clark School of Law: Todd Lochner, Assistant Professor, Political Science Department, Lewis & Clark College, Stacking the Deck and Shuffling the Cards: Agency Influence on Prosecutorial Agenda Setting.
      Loyola Law School, Los Angeles: Tung Yin, Associate Professor of Law, The University of Iowa, College of Law, "Coercion and Terrorism Prosecutions in the Shadow of Military Detention"
      Ohio State University Law: L. Camille Hébert, Why Don't Reasonable Women Complain of Sexual Harassment?
      University of Chicago Law & Economics: Dhammika Dharmapala, University of Connecticut, The Just World Bias and Hate Crime Statutes
    Wednesday, October 19
      NYU Legal History: William Nelson, Weinfeld Professor of Law, NYU School of Law “The Common Law in Colonial America: The Chesapeake and New England, 1607-1660, Part I"
      Oxford Criminology Seminar Series: Ian Loader, Civilizing Security: The Necessary Virtues of the State
      Villanova University School of Law: Amy Uelmen, Fordham University School of Law, The Evils of "Elasticity": Reflections on the Rhetoric of Professionalism and the Part-Time Paradox in Large Firm Practice
    Thursday, October 20
      Oxford Jurisprudence Discussion Group: Sameer Singh, Reasons and Reparation. Boston College Legal History: Professor Marilynn Johnson, Boston College, hallenging Police Repression: Federal Activism and Local Reform in New York City.
      Boston University School of Law: M. Amin Al-Midani (Arab Centre for International Law and Human Rights Education).
      Richard Abel, University of California at Los Angeles School of Law, Brooklyn Law School: Practicing Immigration Law in Filene’s Basement
      Fordham University School of Law: Laurence R. Helfer, Professor of Law, Vanderbilt University Law School, "Exiting Treaties"
      George Mason University School of Law: Don Langevoort, Georgetown Law Center, The Law and Economics of Corporate Cultures
      NYU Colloquium in Law, Philosophy, and Political Theory: Benedict Kingsbury, The Problem of the Public in Public International Law.
      Oxford Public International Law Discussion Group: Morten Bergsmo, Between legitimacy and efficacy: challenges in international criminal justice
      Oxford Institute of European and Comparative Law, Barbara Pozzo, Comparative Law Discussion Group: Problems of Terminology and Translation in European Private Law
      University College London School of Law: Mavis MacLean (Oxford), ‘Family Law &Family Justice'
      University of Georgia Law: Julian A. Cook III (Michigan State Univesity), Crumbs From the Master's Table: The Supreme Court, Pro Se Defendants and the Federal Guilty Plea Process
      University of Michigan Law & Economics: Adam Pritchard, Michigan, The Screening Effect of the Private Securities Litigation Reform Act
      Yale Law Economics & Organizations: Gary King, Harvard, Government, When Can History be Our Guide? The Dangers of Counterfactual Inference.
      Vanderbilt University Law: Robert Post, Yale Law School, "Compelled Subsidization of Speech: Johanns v. Livestock Marketing Ass'n"
    Friday, October 21
      Florida State University College of Law: Marjorie Kornhauser, Tulane Law School.
      Georgetown International Human Rights: David M. Golove, New York University School of Law, "Is the Commander-in-Chief Above the Rule of (International) Law"
      Ohio State Legal History: John Fabian Witt, Elias Hill's Exodus: Exit and Voice in Reconstruction Constitutionalism.
      SLAPP Research Workshop: Bertha Amisi, Maxwell School, "Official Mediation in Africa: Patterns of Usage by Civil Society"


 
Legal Theory Lexicon: Utilitarianism
    Introduction This installment of the Legal Theory Lexicon is an introduction to utilitarian moral and political philosophy tailored to law students (especially first-year law students) with an interest in legal theory. Law students learn early on that classroom discussion of cases and statutes may begin with questions about what the rule is but is likely to turn to questions about what the rule should be. And in most law school classrooms, analysis of the “should” question is likely to go down one of two paths. The first path leads to fairness (which outcome in this case is fair to the parties; which rule will produce fair results in the future). The second path leads to policy (which rule will produce the best consequences in the future). Theories about fairness will be covered in future installments of the Legal Theory Lexicon; today, we focus on arguments of policy and the theoretical question, “What does it mean to say that a rule would produce the best consequences?” One answer to that question is “utilitarianism,” a theory of enormous interest and influence. But what exactly is “utilitarianism” and how might it be criticized or defended?
    What is “utilitarianism”? Just about every law student has some basic familiarity with the idea of utilitarianism, but unless you were a philosophy or economics major, you may have only a fuzzy notion of what this term really means. In this history of moral philosophy, utilitarianism is strongly associated with two historical figures, Jeremy Bentham and John Stuart Mill. Mill’s views are important and deeply interesting, but they are also extremely difficult to sort out properly. Jeremy Bentham, however, provides a wonderful entrée into the world of utilitarian moral and political philosophy. Law students should be especially fond of Bentham, because with only a bit of exaggeration, we can say than Bentham is the original disgruntled law student. Bentham, you see, was highly displeased with William Blackstone’s lectures on law at Oxford University. The common law, Bentham thought, was a disorganized body of rules. Common-law judges irrationally worshipped historical pedigree and had an immoral disregard of the consequences of legal rules. Legal rules, Bentham believed, should be codified, and the codes should be written so as to produce “the Greatest Good, for the Greatest Number.” That is, we should adopt those legal rules that will maximize utility.
    Consequentialism Utilitarianism is just one member of a more general family of moral theories, which we might call “consequentialist.” Consequentialism is the view that morality is about consequences of decisions. Utilitarianism is a particular form of consequentialism, but not the only form. Consequentialism is sometimes contrasted to deontology, where deontological moral and political theories maintain that there are moral rules or principles, the violation of which cannot be justified on the ground that good consequences would result. Thus, a consequentialist might believe that one may tell lies, break promises, or injure innocent persons in order to accomplish a greater good, whereas a deontologist might believe that such actions are forbidden--even if good consequences will result.
    Disambiguating Utilitarianism Let’s pause for a moment. It turns out that “utilitarianism,” the term, refers to many different interrelated theories. “Utilitarianism” is ambiguous, and so we need to specify what we mean by utilitarianism by answering some questions:
    • What is utility? That is, when we say, the greatest “good” for the greatest number, what do we mean by “good?”

    • What is scope of decision? That is, what should maximize utility, individual actions, general rules, principles, or something else?

    • What does it mean to maximize utility?

    • Does the rightness of an action depend on actual or expected utilities?
    What is utility? What is utility? What is a good consequence? Or to use a bit of jargon, what is a “utile,” where the word “utile” stands for a unit of utility? There are many possible answers to this question, but here are three versions of utilitarianism that give three different answers to this question:
      Hedonistic Utilitarianism. Bentham himself believed that utility was pleasure and the absence of pain. Suppose it were possible to measure and quantify pleasures and pains. We might then call one unit of pleasure a positive “hedon” and one unit of pain a negative “hedon.” Maximizing utility then, would simply be to maximize the sum of hedons. When we evaluated legal rules, we would engage in what Bentham called a “hedonic calculus.”
      Eudaimonistic Utilitarianism. But is the good really just a matter of pleasures and pains? Many of Bentham’s critics argued that not all pleasures are good. Would you really want to live your life carrying around a device that constantly stimulated the pleasure center of your brain and suppressed the pain center? Rather than maximize pleasure, we might instead maximize “happiness”—eudaimonia in ancient Greek. Happiness may be related to pleasure, but it includes more abstract satisfactions. Climbing a mountain may involve much more pain than pleasure, but this activity may still contribute to the happiness of the climber.
      Preference Satisfaction Utilitarianism. But if happiness seems a better candidate for “good” than pleasure, there are difficulties with the proposition that the law should maximize “happiness.” Happiness is notoriously difficult to define, and different persons have different views about what makes for a happy life. Moreover, happiness, like pleasure, is difficult to measure directly. For these reasons and others, some utilitarian theorists (especially economists) substitute “preference” for happiness as the “good” to be maximized. Preferences can be measured in a variety of ways. For example, we can ask individuals to simply rank order their preferences among various states of affairs, giving us an ordinal utility function for the individual. Economists have devised a variety of techniques for translating these rank orderings (1st best, 2nd best, etc.) into numerical values. Thus, we can construct a cardinal utility function for an individual. Because preference-satisfaction is measurable, most economists use a preference-based conception of utility. And because of the influence of economics on legal theory, this form of utilitarianism has had the greatest impact on contemporary legal theory as well.
    There are other versions of utilitarianism, but you get the idea.
    Scope of Decision So let’s assume we have a working conception of utility. Our next question is: What exactly is the decision that is supposed to maximize utility? Is each individual action required to maximize utility? Or is it general rules that we are concerned with? Or principles? Or something else? I am going to call this question, the scope of decision question. Different forms of utilitarianism give different answers to the scope of decision question. Let’s take a quick look at some of the possibilities:
    • Act Utilitarianism. (abbreviated AU) The first possibility is that each individual action should maximize utility. Given this answer to the scope of decision question, we might formulate utilitarianism as follows:
        Act so that your action maximizes utility as opposed to any alternative action that you could perform.
      Suppose, for example, that you must decide whether to break or keep a promise to have lunch with a friend. You would ask yourself, “Would keeping my promise produce greater utility than breaking it?” Thus, you would consider the costs of your decision, such as: (1) your friend will be hurt, (2) you will miss out on the satisfaction of having lunch with your friend, and (3) your friend may not trust your promises in the future if you break this promise. And you would consider the benefits, such as: (1) you will be able to use a free ticket to go to the baseball game if you break the promise, and (2) you will not have to listen to your friend's boring stories. You then add the utilities for each action, and choose the action that produces the greatest utility.
    • Rule Utilitarianism. (abbreviated RU) The case of promises reveals a potential problem with AU. If I calculate utilities every time, I decide whether to break or keep a promise, my promises may not be viewed by others as trustworthy. And if my promises are not trustworthy, then I will not be able to use the institution of promising to coordinate my behavior with that of other people. But the ability to coordinate through promises produces good consequences. One way out of these difficulties is to shift the scope of decision from individual actions to general rules. Thus, although the individual actions of breaking my promise might maximize utility as compared to the alternative, the general rule, “keep your promises,” might produce more utility than the alternative rules, such as “keep your promises, but only when there is nothing better to do.”
      Rule utilitarianism itself has two important subvariants, and we can add a third, specifically legal, variant as well:
        Ideal Rule Utilitarianism (IRU) says that you should act in accordance with the set of “ideal rules” that would maximize utility if everyone were actually to act in conformity with the rules.
        Actual Rule Utilitarianism (ARU) says that you should act in accord with the set of “actual rules” that would maximize utility if it were adopted as the moral code of a real society in which persons will sometimes fail to live up to the requirements of the moral code.
        Legal Rule Utilitarianism (LRU) responds to an obvious fact about the application of utilitarianism to the law. The law is concerned with individual acts (e.g. an individual judge's decision in an individual case at the trial level), but it is also concerned with rule-creating acts (e.g. the decision of a legislator to vote for or against a given bill). So it is reasonable for legal theorists to advance a more specialized version of utilitarianism, which we can call "Legal Rule Utilitarianism," as a theory about legal rules. Notice, however, that LRU will have a set of variants. So we can distinguish the utility of an ideal system of legal rules (with perfect compliance) versus an actual system of legal rules (with disobedience and enforcement costs) versus a single nonideal actual rule (where the status quo system of rules is assumed and we look at the utility of changing only a single rule).
    • Utilitarian Generalization (abbreviated UG) There is one more answer to the scope of decision problem that is worth mentioning. UG is the view that one should act on the basis of principles (or maxims) that would produce the greatest utility if they were generalized (e.g. we acted upon by everyone. Because this form of utilitarianism, plays very little role in legal thought, I won't discuss it further.
    What does it mean to maximize utility? There is yet another ambiguity about utilitarianism that is really important to its application. What does "the greatest good for the greatest number" mean? Alternatively, what does it mean to maximize utility? This is a really complex topic. Right off the bat, it has both an intrapersonal and interpersonal dimension. To simplify, I will focus on the interpersonal problem. Let's assume we have utility values for individuals. What do we do with them? You may think the answer is obvious, "Add them up!," but it isn't so easy. Here are some alternatives:
    • Classical Utilitarianism. "Add them up" is the classic answer. That is, we simply sum individual utilities. Sometimes this is called the "utilitarian social welfare function" by economists. This can lead to some confusion as this is what some economists think the term "utilitarianism" means.
    • Average Utilitarianism. But we could average rather add. That is, we could take the sum of individual utilities and divide by the number of persons. You, gentle reader, undoubtedly have run way ahead of me and seen that this will make a big difference to things like population policy. We might have a choice between a larger population with a lower average utility but a greater sum, and a smaller population, with a higher average, but a lower sum.
    • Bernoulli-Nash John Nash (of A Beautiful Mind fame) is associated with another alternative. We might multiply rather than add utilities. I won't go into the reasons why this might be a good idea, except to tell you that multiplication makes more sense if we our utility values for individuals are relative rather than absolute.
    Actual or Expected Utilities We rarely know with certainty what consequences will result from actions or rules. Utilitarianism might look to the actual consequences of rules. If so, then some actions that looked right at the time will turn out to be very wrong, because of some unanticipated effect of the action. The alternative is to say that the rightness or wrongness of an action depends on its expected consequences. Given the phenomenon of uncertainty, a given action may lead to several different possible future states of the world. If we could assign a probability to each state, then the expected consequences of a given action could be calculated by taking the product of the utility value for the state and the probability that the state will coming into being. Take the following choice situation:
      Action A has a 50% chance of producing a utility of 10 and a 50% chance of producing a probability of 0. Since .5*10 + .5*0 = 5, the expected utility of action A is 5.
      Action B has a 90% chance of producing a utility of 0, and a 10% chance of producing a utility of 100. Since .9*0 +.1*100 = 10, the expected utility of action A is 10.
      And since 10 > 5, action A has the greater expected utility. Of course, it may turn out that action B produces a utility of zero, but if what counts is expected utility, then this ex post fact is irrelevant to the moral evaluation of action A.
    Some Objections to Utilitarianism Utilitarianism is an enormously controversial view, with adamant defenders and critics. It is worth our while to examine a few of the most prominent objections, but we will only be sliding across the surface of a deep and complex topic.
      The Rights Objection. Utilitarianism evaluates actions on the basis of the consequences they produce, and therefore does not require respect for moral or legal rights. The literature is full of hypotheticals in which utilitarianism is alleged to justify intuitively unattractive rights violations. Suppose, for example, the slavery is contrary to a moral right, but that in a particular society, enslaving a small minority of the population would produce greater utility for the majority than it produced disutility for the enslaved minority. If these facts were true, the utilitarianism seems to say that slavery would be morally required. But most people would disagree, saying that slavery cannot be justified simply because it produces good consequences: “We have a moral right not to be enslaved." Utilitarians are likely to get quite huffy when this argument is made. They may say, “But slavery does not produce good consequences. It produces bad consequences, and that’s why we think slavery is so awful.” And then the critic might say, “But suppose slavery did produce good consequences, what then?” You can see how this debate could go on for quite some time before we made any progress. Notice, however, that act utilitarianism seems more open to the rights objection than does rule utilitarianism. Rules against rights violations may produce good consequences, even if individual acts of rights violation could be justified on utilitarian grounds.
      The Self-Defeating Objection Another objection is that utilitarianism may be self-defeating. Suppose that everyone tried to deliberate as a utilitarian. It might turn out that nonetheless they would make decisions that led to bad consequences. For example, some people may be extremely bad at predicting the consequences of their actions. Others may systematically overestimate their own utilities while systematically underestimating those of others. One answer to this objection is famously associated with the British moral philosopher R.M. Hare. Hare proposed a two-level theory of morality. Utilitarianism, Hare argued, operates at the level of detached moral theorizing. Ultimately, an action is deemed good or bad based on its utility. But ordinary moral deliberation, Hare continued, operates at a different level. Ordinary folks should deliberate on the basis of moral rules of thumb, such as keep your promises, don’t steal, and don’t enslave your enemies when you vanquish them. As you might guess, there are many criticisms of two-level theories, but you get the general idea.
      The Impossibility of Interpersonal Utility Comparisons This one gets very complicated, very fast. So let me just state the general idea. Suppose we are trying to add up individual utilities for everyone in society. How do we come up with values that are truly comparable across persons. That is, how do we know that X amount of my pleasure or happiness or preference satisfaction is equal to Y amount of yours? This problem is especially vexing for economists, and one solution is simply to limit the conclusions of economics to cases that involve making everyone better off—hence obviating the need for interpersonal comparisons.
      The Demandingness Objections The list of objections goes on and on, but let’s do just one more. It is frequently argued that utilitarianism (especially act utilitarianism) is too demanding. Why? Imagine that it is your day off. You have two choices. You can either read a novel or your can work for Oxfam. If you read a novel, you will produce some positive utility—your enjoyment of the novel. But if you worked for Oxfam, you would save 1.7 starving children in the third world from death. Well, of course, you should work for Oxfam. But the problem is that it will always be the case that I could produce more utility for others if I dedicated my time to helping the least fortunate. Utilitarianism seems to require me to work for Oxfam after work and to stay up as late as I possibly can. In fact, I may be able to maximize utility by neglecting my health and family. If this is true, many would find utilitarianism too demanding and hence implausible.
    Utilitarianism and Legal Theory In the law, utilitarian thinking is most associated with normative law and economics. It is useful to review the various forms of utilitarianism in this context:
      --Normative law and economics uses preferences rather than pleasure or happiness as its concept of utility.
      --Normative law and economics usually assumes that the system of legal rules (as opposed to individual actions or ideal moral rules) provide the relevant scope of decision.
      --Normative law and economics usually assumes that utilities are to be summed—although this issue is rarely addressed in any detail.
      --Normative law and economics usually assumes that it is expected utilities, rather than actual utilities, that are to be maximized.
    If you are interested in the relationship between utilitarianism and legal theory, you will definitely want to check out Kaplow and Shavell’s book, Fairness versus Welfare. Kaplow and Shavell don’t take a stand on the question as to whether utilities should be summed, multiplied, or combined in some other way, but they do offer a trenchant defense of consequentialism as well as an attack on nonconsequentialist approaches to legal theory.
    Links Bibliography The literature on utilitarianism is vast, but here are some good starting points: And finally, on a personal note, I was privileged to take the class on utilitarianism that was taught by Greg Kavka at UCLA more than twenty years ago. Kavka's tragic early death deprived us of an excellent philosopher and a wonderful human being.
For past and future installments of the Legal Theory Lexicon, go here.


Saturday, October 15, 2005
 
Legal Theory Bookworm The Legal Theory Bookworm recommends Advice And Consent: The Politics of Appointing Federal Judges by Lee Epstein and Jeffrey A. Segal. Here is a blurb:
    From Louis Brandeis to Robert Bork to Clarence Thomas, the nomination of federal judges has generated intense political conflict. With the coming retirement of one or more Supreme Court Justices--and threats to filibuster lower court judges--the selection process is likely to be, once again, the center of red-hot partisan debate. In Advice and Consent, two leading legal scholars, Lee Epstein and Jeffrey A. Segal, offer a brief, illuminating Baedeker to this highly important procedure, discussing everything from constitutional background, to crucial differences in the nomination of judges and justices, to the role of the Judiciary Committee in vetting nominees. Epstein and Segal shed light on the role played by the media, by the American Bar Association, and by special interest groups (whose efforts helped defeat Judge Bork). Though it is often assumed that political clashes over nominees are a new phenomenon, the authors argue that the appointment of justices and judges has always been a highly contentious process--one largely driven by ideological and partisan concerns. The reader discovers how presidents and the senate have tried to remake the bench, ranging from FDR's controversial "court packing" scheme to the Senate's creation in 1978 of 35 new appellate and 117 district court judgeships, allowing the Democrats to shape the judiciary for years. The authors conclude with possible "reforms," from the so-called nuclear option, whereby a majority of the Senate could vote to prohibit filibusters, to the even more dramatic suggestion that Congress eliminate a judge's life tenure either by term limits or compulsory retirement. With key appointments looming on the horizon, Advice and Consent provides everything concerned citizens need to know to understand the partisan rows that surround the judicial nominating process.
This is an excellent and accessible introduction to the political science literature on judicial selection.


 
Download of the Week The Download of the Week is The Case for Nietzschean Moral Psychology by Joshua Knobe and Brian Leiter. Here is the abstract:
    Contemporary moral psychology has been dominated by two broad traditions, one usually associated with Aristotle, the other with Kant. The broadly Aristotelian approach emphasizes the role of childhood upbringing in the development of good moral character, and the role of such character in ethical behavior. The broadly Kantian approach emphasizes the role of freely chosen conscious moral principles in ethical behavior. We review a growing body of experimental evidence that suggests that both of these approaches are predicated on an implausible view of human psychology. This evidence suggests that both childhood upbringing and conscious moral principles have extraordinarily little impact on people's moral behavior. This paper argues that moral psychology needs to take seriously a third approach, derived from Nietzsche. This approach emphasizes the role of heritable psychological and physiological traits in explaining behavior. In particular, it claims that differences in the degree to which different individuals behave morally can often be traced back to heritable differences between those individuals. We show that this third approach enjoys considerable empirical support - indeed that it is far better supported by the empirical data than are either the Aristotelian or Kantian traditions in moral psychology.
Download it while its hot!


 
Garnett on Fund on the Miers Selection Process Rick Garnett responds to John Fund. Here's a taste:
    Now, I admit it: Unlike Fund, I have no talkative-but-unnamed "senior White House official[s]" or "former Justice Department officials" as sources. I do not know what candidates were considered or which (if any) took themselves out of the running. I do not know if, or why, the president determined that the nominee had to be a woman; and I do not know anything about the behind-the-scenes process that produced Ms. Miers's nomination. But, I do know Bill Kelley very well. And, I am as sure as I am of anything that there is zero possibility — zero — that Kelley would have shrunk from raising tough questions about or pointing out problems with the nomination, or that he would have subordinated concern for the Court and dedication to the Constitution to worries about his own standing or advancement in the White House.


Friday, October 14, 2005
 
Friday Calendar


 
Fund on the Vetting Process for Miers Check out John Fund'sHow She Slipped Through at the Wall Street Journal. Here's a taste:
    Even though several highly regarded female lawyers were on Mr. Bush's short list, President Bush and Mr. Card discussed the idea of adding Ms. Miers. Mr. Card was enthusiastic about the idea. The New York Times reported that he "then directed Ms. Miers' deputy . . . to vet her behind her back." For about two weeks, Mr. Kelley conducted a vetting he has described to friends as thorough. It wasn't. A former Justice Department official calls it "barely adequate for a nominee to a federal appeals court." One Texas lawyer called by the White House was struck by the fact "that the people who were calling about someone from Texas and serving a Texas president knew so little about Texas." (Mr. Kelley didn't return my telephone calls.) It is unlikely that the vetting fully explored issues surrounding Ms. Miers that are sure to figure in her confirmation hearings, such as her work as Mr. Bush's personal lawyer. Another issue will involve Ms. Miers's tenure as head of the Texas Lottery Commission, where lottery director Nora Linares was fired in a scandal involving influence-peddling and lottery contracts. In a curious move, the White House announced this week that regarding the Linares matter, "Harriet Miers has never commented and will not now on what was a personnel matter." That is unlikely to remain a tenable position.


 
Knobe & Leiter on Moral Psychology Joshua Knobe and Brian Leiter (University of North Carolina at Chapel Hill and University of Texas at Austin - School of Law & Department of Philosophy) have posted The Case for Nietzschean Moral Psychology on SSRN. Here is the abstract:
    Contemporary moral psychology has been dominated by two broad traditions, one usually associated with Aristotle, the other with Kant. The broadly Aristotelian approach emphasizes the role of childhood upbringing in the development of good moral character, and the role of such character in ethical behavior. The broadly Kantian approach emphasizes the role of freely chosen conscious moral principles in ethical behavior. We review a growing body of experimental evidence that suggests that both of these approaches are predicated on an implausible view of human psychology. This evidence suggests that both childhood upbringing and conscious moral principles have extraordinarily little impact on people's moral behavior. This paper argues that moral psychology needs to take seriously a third approach, derived from Nietzsche. This approach emphasizes the role of heritable psychological and physiological traits in explaining behavior. In particular, it claims that differences in the degree to which different individuals behave morally can often be traced back to heritable differences between those individuals. We show that this third approach enjoys considerable empirical support - indeed that it is far better supported by the empirical data than are either the Aristotelian or Kantian traditions in moral psychology.
And here is a taste from the paper itself:
    Putting all of these sources of evidence together, we arrive at a strong case for a single basic thesis. It seems that people do sometimes have the conscious experience of making decisions on the basis of certain considerations, but that this sort of experience can sometimes mislead people about the true causes of their behavior. Thus, the mere fact that people have a conscious experience of choosing to perform a behavior on the basis of certain moral principles does not show that these moral principles actually have any causal impact on the behaviors people perform (as the Kantians require). The only way to know whether a given factor actually has any causal impact is to perform systematic experiments, and as we have seen, these experiments tend to suggest that consciously held moral principles have very little influence on behavior.
This is a fascinating paper. Leiter and Knobe do a fine job of concisely summarizing the lay of the land in moral psychology and also summarize clearly a wide range of empirical research. Highly recommended!


 
Garrett on Hybrid Democracy Elizabeth Garrett (University of Southern California - Law School) has posted The Promise and Perils of Hybrid Democracy (The Henry Lecture, University of Oklahoma Law School, October 13, 2005) on SSRN. Here is the abstract:
    For most Americans, democracy in the United States is not entirely representative in structure, and none of us lives in a pure direct democracy where laws are made only through popular votes. Instead, for over seventy percent of Americans, including those in Oklahoma, government is a hybrid democracy - a combination of direct democracy and representative institutions at the state and local levels, which in turn influences national politics. Hybrid democracy is here to stay, so we need to better understand how its components interact. But even if we were writing on a clean slate and had the ability to choose between a purely representative system and one with some elements of direct democracy, I think we would do well to adopt some sort of hybrid. A system that allows the possibility of the initiative and referendum provides a check on elected representatives beyond the accountability of periodic elections. In this Lecture, I will suggest some of the benefits that a hybrid system can provide in three realms. First, hybrid elections allow candidates to make more credible promises by running on a platform that includes simultaneous enactment of initiatives. The association of an initiative with a candidate may also provide a richer information environment for voters, although recent scholarship draws into question whether voting cues are invariably enhanced by the strategic use of direct democracy by politicians. Second, the initiative process provides a way to circumvent the self-interest of legislators in designing institutions of government. Third, the possibility of using initiatives to enact policy supplies political actors with a tool that can serve majoritarian interests and counter special interest influence in legislative bargaining. As Governor Arnold Schwarzenegger is demonstrating in California, governance by initiative profoundly changes the dynamics of interbranch bargaining, although it does not seem to be a sustainable strategy if used frequently. As I discuss these benefits, I will also underscore the dangers of hybrid democracy and discuss reforms that seek to reduce the perils while maximizing the promise of our hybrid system.
And here is a taste from the paper itself:
    For over a year, it appeared that Schwarzenegger would succeed in creating an entirely new method of governing. He could threaten to take policies to the people, negotiate a compromise with intimidated legislators, and then avoid actually going to the voters in many cases. At first, his threat was credible and appeared to change bargaining dynamics sufficiently to suggest that politics-as-usual in Sacramento would be disrupted. In 2005, however, the limitations of governance that frequently uses hybrid democracy have become apparent. Even a wealthy celebrity with access to unprecedented amounts of campaign money like Arnold Schwarzenegger cannot effectively govern entirely – or even largely – using this strategy. There are several reasons why this is a perilous path. First, initiatives necessary to govern, as opposed to those used purely for political advantage, are very likely to be initiatives that are difficult to pass. Unlike cryptoinitiatives, ballot measures proposed as a way to implement real change in policy and governance are quite likely to engender effective opposition; after all, the reason the governor is resorting to the threat is his inability to pass his reforms through the legislature. To enact meaningful, long-term budget reform, the Governor had to propose change that elicited strong negative reaction from well-funded and organized interest groups. To govern by initiative requires that the Governor propose several, relatively complicated measures that may expand the number of opposing groups and dilute his focus. The effective opposition to the pension reform proposal mounted by teachers, nurses and law enforcement officers not only caused the governor to back away from this proposal, but it also hurt him in all his other battles.
If you are interested in direct democracy, you will want to read this paper. Highly recommended!


 
Laurence R. Helfer (Vanderbilt University - School of Law) has posted Collective Management of Copyright and Human Rights: An Uneasy Alliance (COLLECTIVE MANAGEMENT OF COPYRIGHT AND RELATED RIGHTS, Daniel J. Gervais, ed., Kluwer Law International, 2006) on SSRN. Here is the abstract:
    This essay explores the relevance of the intellectual property provisions of the International Covenant on Economic Social and Cultural Rights (ICESCR) to the collective administration of copyright and neighboring rights in general and to the policies and practices of collective rights organizations (CROs) in particular. Until recently, the ICESCR's intellectual provisions were all but unexplored. Within the last year, however, these treaty clauses have been extensively analyzed by the United Nations Committee on Economic, Social and Cultural Rights. The Committee has produced a draft general comment on ICESCR Article 15(1)(c), "the right of everyone to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author." The draft suggests the outlines of an emerging human rights framework for intellectual property, one aspect of which - a human rights framework for collective administration of copyright - I analyze in this essay.
I always learn from Helfer's careful and thoughtful work.


 
Gamage on Corrective Taxes in Campaign Finance David Scott Gamage (University of Texas (Austin) School of Law) has posted Taxing Political Donations: The Case for Corrective Taxes in Campaign Finance (Yale Law Journal, Vol. 113, p. 1283, 2004). Here is the abstract:
    Command-and-control regulations are generally inferior to incentive-based alternatives. This Note proposes an incentive-based approach for regulating campaign finance. In place of our current regime of contribution ceilings, the Note calls for a graduated system of contribution taxes. Rather than capping the size of political donations at a specified dollar level, we should tax donations based on a schedule of graduated rates - the larger the size of a contribution, the higher the level of taxation. Contribution taxes generate two primary advantages over contribution ceilings. First, contribution taxes preserve more total surplus. This surplus can be shared by the donors and by society as a whole, with society benefiting from the tax revenue. Second, contribution taxes lead fewer donors to divert their contributions through loopholes. We cannot possibly prevent all diversions of this sort under our current constitutional precedents, and these diversions serve to undermine our system of campaign finance. The Note also refutes the arguments that contribution taxes would engender greater inequality or corruption; that contribution taxes would be found unconstitutional; and that contribution taxes would be defeated by our inability to quantify the harms caused by political donations.


 
Wexler on Intelligent Design & the First Amendment Jay Wexler (Boston University - School of Law) has posted Intelligent Design and the First Amendment: A Response (Washington University Law Quarterly, Forthcoming) on SSRN. Here is the abstract:
    In September 2005, a federal district judge in Pennsylvania began presiding over the nation's first trial regarding the constitutionality of introducing the concept of "intelligent design" (ID), a purportedly scientific alternative to the theory of evolution, into the public schools. My previous work has argued that teaching ID in the public schools would raise serious constitutional problems. In a series of writings, including a full length book and several articles, Baylor University professor Francis Beckwith has argued that public schools may constitutionally teach ID. In doing so, Beckwith has critiqued a number of arguments I have previously advanced in my own writing, calling them, for example, "wide of the mark" and "patently unreasonable." In this essay, I respond to Beckwith's arguments regarding ID, both those that specifically critique my own arguments, as well as those that stand on their own. Specifically I disagree with Beckwith in three substantive areas: whether courts should find that ID constitutes a religious belief, whether the Supreme Court's decision in Edwards v. Aguillard casts doubt on the constitutionality of teaching ID, and whether teachers have any first amendment academic freedom right to teach ID in direct contravention of clear school policy.


 
Geis on Indefinite Contracts George S. Geis (University of Alabama - School of Law) has posted An Embedded Options Theory of Indefinite Contracts (Minnesota Law Review, Vol. 90, 2006) on SSRN. Here is the abstract:
    Option theory is beginning to generate robust insights in the legal literature, and it is particularly well-suited to contract law. This Article develops an embedded options theory of indefinite contracts, focusing on the proper scope of the indefiniteness doctrine - a core principle of contract law invalidating contracts that are too vague. This approach offers answers to two puzzling questions. First, why do parties write deliberately vague contracts, especially when they can contract with precise, verifiable metrics at a low cost? Second, what should a court do when confronted with an indefinite contract? Should it throw out the entire contract, impose a popular term, or do something else? This Article shows how the use of indefinite terms plus active judicial gap-filling can create an embedded option - the valuable opportunity to take action in the future based on outcomes that are uncertain today. It then argues that these embedded options can be problematic from an economic point of view because they are unlikely to be fully appreciated by both parties to the contract. This means that embedded interpretative options will sometimes distort efficient trade and investment decisions. In short, there are under-explored costs to contractual gap-filling. Ultimately, then, courts should resist the temptation to instinctively plug gaps and recognize that the indefiniteness doctrine has a meaningful role to play in contract law.


 
Hahn & Litan on Improving Regulation Robert W. Hahn and Robert E. Litan (AEI-Brookings Joint Center for Regulatory Studies and Ewing Marion Kauffman Foundation) have posted Improving Regulation: Start with the Analysis and Work from There This testimony reviews research from the Joint Center on regulatory impact analyses and provides five recommendations for improving the regulatory process. These recommendations include: making regulatory impact analyses publicly available on the Internet; providing a regulatory impact summary table for each regulatory impact analysis that includes information on costs, benefits, technical information, and whether the regulation is likely to pass a benefit-cost test; establishing an agency or office outside the executive branch to assess independently existing and proposed federal rules' requiring that the head of a regulatory agency balance the benefits and costs of a proposed regulation; and requiring that all regulatory agencies adhere to established principles of economic analysis when doing a regulatory impact analysis.


Thursday, October 13, 2005
 
Political Parties and "Elite" Law School Faculties Paul Caron supplied a link to David Horowitz & Joseph Light, Representation of Political Perspectives in Law and Journalism Faculties asserting that Democrats outnumber Republicans 8:1 on the faculties of 10 elite law schools (and 9 journalism schools). Here is a taste:
    America’s professional schools of journalism and law have collectively become a one party state. Students have little chance of encountering any ideological diversity in the classrooms of these schools. Only one school we surveyed, the University of Kansas Journalism School, showed genuine intellectual diversity.
Of course, "ideological diversity" and political-party registration are two different things. And intellectual diversity in academia is not the same thing as ideological diversity. Nonetheless, I expect this work will provoke a strong reaction.


 
Thursday Calendar


 
IP Conference Blog Many thanks and kudos to Michael Madison for IP & IT Conferences, a blog that lists conferences on intellectual property, information technology, and internet related issues.


 
Gervais on Copyright and the Internet Daniel J. Gervais (University of Ottawa - Common Law) has posted Use of Copyright Content on the Internet: Considerations on Excludability and Collective Licensing on SSRN. Here is the abstract:
    The Internet has been a catalyst for problems latent within the copyright system. Fundamentally, the question is to determine under what circumstances should a copyright holder have a right to exclude others from using her copyright work on the Internet? This is the topic of this chapter. The underlying hypothesis is that policy analysis concerning copyright has shifted because it is now facing a number of formidable opponents, in most cases for the first time on that scale. Those opponents are other rights, including privacy. Copyright is not or no longer a closed system with exceptions looping back to a set of exclusive rights in which an appropriate equilibrium in the regulation of knowledge creation and dissemination was supposed to be reached. After an analysis of the problems that have emerged in trying to use copyright to exclude use on the Internet, the Chapter suggests possible solutions articulated along three types of use: those that should be free; those that should be licensed collectively (i.e., where the power to exclude is replaced with a remuneration system accompanied by standard conditions) and a small set of uses that can be licensed transactionally. In suggesting a greater role for collective (as opposed to individual) licensing, the paper considers the introduction of an Extended Repertoire System in Canada.
One of the central insights of this paper--that copyright faces a new environement because of the conflict with privacy--is crucially important. Highly recommended.


 
Outterson on Reparations for Health Care Disparities Kevin Outterson (West Virginia University - College of Law) has posted Tragedy & Remedy: Reparations for Disparities in Black Health on SSRN. Here is the abstract:
    The Tragedy of American health care is the stubborn persistence of disparities in Black health, one hundred and forty years after Emancipation, and more than four decades after the passage of Title VI. Formal legal equality has not translated into actual health equality. This Tragedy is deeper and older than mere legal forms; it has been supported by powerful social institutions, including some governments, charities, market participants, religions, ideologies, and cultures. Black health disparities interact with other vestiges of slavery such as disparities in wealth, education, employment and housing. They have permeated the American health experience. Efforts to eliminate Black health disparities will require something more transformative than Title VI. One possible remedial candidate is reparations for disparities in Black health.


 
Yium on Defining Commercial Speech Matthew J. Yium (Lewis & Clark College) has posted Law School Profits, Politics, and the Promise of Free Speech: Defining Commercial Speech After Nike v. Kasky (Lewis & Clark Law Review, Vol. 9, p. 720, Fall 2005) on SSRN. Here is the abstract:
    As consumer demands become more sophisticated, companies like Nike, Wal-Mart and McDonald's seek to carve out a corporate identity that will separate them from their competitors. These corporations adopt marketing strategies that align their brand image with political ideology in the hopes of reaching a demographic similarly aligned with those beliefs. Yet when a corporation takes a stand on a political issue, courts have not agreed on whether such expression constitutes commercial or political speech. The distinction makes a difference: commercial speech, as a medium of expression motivated by profits, has been deemed less worthy of First Amendment protection than political speech. In this Note, the author traces the development of the commercial speech distinction from its origins up to the recent Nike v. Kasky case, which illustrated the seemingly inevitable clash between commercial and political speech. The author then proposes a proof scheme that would facilitate the distinction. Finally, the author offers a justification for continued adherence to the distinction in the interest of consumer protection.


 
Amann on External Norms in Constitutional Decision Making Diane Marie Amann (University of California at Davis Law School) has posted Raise the Flag and Let it Talk: On the Use of External Norms in Constitutional Decision Making (International Journal of Constitutional Law, Vol. 2, No. 4, pp. 597-610, October 2004) on SSRN. Here is the abstract:
    Landmark judgements in 2003 prompted comments that the U.S. Supreme Court had abandoned a tradition of insularity in favour of allowing external norms to inform its internal constitutional deliberations. Viewing these judgements against the backdrop of the Court's prior jurisprudence, this essay finds a willingness to look at foreign law, as well as an unexplained selectivity with regard to the circumstances in which this is deemed to be appropriate. It identifies two threshold criteria for consultation: the presence of similar experiences; and the resolution of questions in accordance with norms derived from a shared commitment to fundamental rights. Even when both criteria are met, the Court is likely to rely only on those external norms that are imbued with internal resonance; that is, on foreign law whose application serves an American vision of what is just.


Wednesday, October 12, 2005
 
Wednesday Calendar


 
Cohen on Copyright & Users Julie E. Cohen (Georgetown University Law Center) has posted The Place of the User in Copyright Law (Fordham Law Review, Vol. 74, 2005) on SSRN. Here is the abstract:
    The past decade has witnessed an upsurge of interest, on the part of both copyright owners and copyright scholars, in users of copyrighted works. Copyright doctrine, however, is characterized by the absence of the user. This absence produces a domino effect that ripples through the structure of copyright law, shaping both its unquestioned rules and its thorniest dilemmas. The essay traces the effects of the user's absence, and argues that a theory of the user is needed to restore doctrinal and theoretical balance. Specifically, it is commonly understood that users play two important roles within the copyright system: users receive copyrighted works, and some users become authors. Both roles further the copyright system's larger project to promote the progress of knowledge. But copyright law and policy have shown little interest in understanding the processes by which these roles are performed, nor in inquiring what users need to perform their roles in a way that optimizes the performance of the copyright system as a whole. The models of the user offered by copyright scholars have not helped as much as they could in answering these questions. In broad brush, scholarly efforts to cast the user have produced three fully-fledged candidates, each more unrealistic than the last: the economic user, the "postmodern" user, and the romantic user. As the essay shows, none of these characters provides a satisfying account of the user's role within the copyright system. This essay introduces a new character, the situated user, who engages cultural goods found within the context of her culture through a variety of activities ranging from consumption to creative play, and whose activities are the vehicle through which copyright's collective project is advanced.
Highly recommended!


 
Kairys on Legislative Intervention in Adjudication David Kairys (Temple University - Beasley School of Law) has posted Legislative Usurpation: The Early Practice and Constitutional Repudiation of Legislative Intervention in Adjudication (University of Missouri-Kansas City Law Review, Vol. 73, No. 4, p. 945-950, 2005) on SSRN. Here is the abstract:
    In the United States, we usually think of separation of powers as easy and obvious. Legislatures make rules of general application; courts decide cases between parties based on existing law; and executives enforce and implement the laws. Sometimes the lines shift or get fuzzy, but the principle was fundamental to the framers of the Constitution and still has the feel and supporting authority of a foundational precept. However, this was not always so. In the pre-constitutional history of the United States, legislatures regularly exercised judicial functions, intervened in adjudication, and interfered with accrued or vested rights. Congress seems poised to test the basic principle once again with a bill that bars the pending city lawsuits and most other litigation against handgun manufacturers and dealers. This short historical essay addresses the early practice of legislative intervention in litigation and its repudiation by the framers of the Constitution.


 
Bagenstos on Disability & Choice Samuel R. Bagenstos (Washington University School of Law) has posted Disability, Life, Death, and Choice (Harvard Journal of Gender & Law, 2006) on SSRN. Here is the abstract:
    The dominant narrative of the Schiavo case ignores an important point: That case is the latest of several instances in which disability rights activists - many of whom consider themselves to be neither conservative nor opponents of abortion rights - entered into a conflict between pro-life and pro-choice forces and sided with the pro-lifers. This disability rights/right to life connection deserves close attention, for there is good reason to believe that it represents a model that anti-abortion advocacy will increasingly follow outside of the disability context in the coming years. Beginning with the "Baby Doe" cases in the 1980s, and extending through the Schiavo case, many disability rights activists have made common cause with anti-abortion activists on a number of significant right-to-life/right-to-die issues. Those disability rights advocates embrace the notion of "choice," but they contend that societal stigmas and other social pressures effectively coerce people into making decisions that reflect biases against people with disabilities. It follows that regulation of a decision like abortion is not inconsistent with a commitment to free choice; such regulation in fact might be necessary to promote free choice. In the case of assisted suicide, disability rights advocates have taken this point to an extreme and urged that the social and professional pressures are so great that no regulation will be sufficient to protect free choice; a flat ban on the practice is necessary. Disability rights advocates have identified similar pressures on abortion decisions in cases where prenatal testing reveals fetal disability, but many have pointedly refused to endorse a regulatory solution. Even if most disability rights advocates do not seek regulation of abortion, however, anti-abortion activists clearly will favor it. As I show in this Essay, current Supreme Court abortion doctrine practically invites anti-abortion activists to justify regulation on the "pro-choice" ground that it overcomes private and social obstacles to "truly" free choice. That doctrine is rooted in a principle of autonomy - that the woman gets to choose - but it embraces the Legal Realist point that private as well as public actions may impinge on individual freedom. It thus permits regulations that are calculated to remove (private or societal) obstacles to a woman's free choice. But the Supreme Court's Legal Realist move faces a classic Legal Realist problem: Once we recognize that private as well as public pressures may interfere with autonomy, we cannot know which pressures are coercive (and thus can justify regulation) unless we can judge them against some normative standard independent of free choice itself. Although disability rights activists have deployed their arguments only in settings where the choice relates in some way to disability, those arguments, when read in the light of the Court's recent abortion decisions, suggest a more general line of attack for opponents of abortion rights: Restrictions on abortion even outside the disability context might be justified based on the argument that the regulation counteracts social pressures that would otherwise coerce a choice to abort. These prospects present a dilemma for the many disability rights advocates who are firm supporters of abortion rights. Although the logic of their critique of selective abortion might seem naturally to justify regulation of that practice - just as they believe that the same critique justifies a ban on assisted suicide - disability rights advocates cannot endorse regulation in the abortion context without setting a precedent that may be applied to scale back abortion rights in areas that go far beyond disability.


 
Amann on Impartiality in International Criminal Justice Diane Marie Amann (University of California at Davis Law School) has posted Saddam Hussein and the Impartiality Deficit in International Criminal Justice on SSRN. Here is the abstract:
    This article examines - in light of what here is called an impartiality deficit critique - the tribunal that is now scheduled to begin trial of deposed Iraqi President Saddam Hussein and his associates on October 19, 2005. The term is derived from democracy deficit, the label by which multilateral institutions are faulted for lack of accountability mechanisms common in modern constitutional states. Critics have extended that latter notion to a centerpiece of the international criminal justice project, the permanent International Criminal Court that began operations in 2002. In contrast, the impartiality deficit critique assumes the propriety of establishing international criminal justice mechanisms. In the hope of improving the quality of those mechanisms, it exposes instances in which defendants were denied any component of this injunction of the International Covenant on Civil and Political Rights: In the determination of any criminal charge against him, ... everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. Within this analysis, one might examine several tribunals to see whether they meet a single fairness criterion, such as the duty of judges to act without bias; alternatively, one might assess a single tribunal in light of several criteria. This article opts for the latter course, applying the impartiality deficit critique to the Iraqi High Criminal Court, which stands poised to try persons charged with responsibility for torture, killings, and other crimes of repression over a thirty-five-year period. The article first lays out key concerns of the impartiality deficit critique and then evaluates the Court in light of them. It shows that initial implementation occurred in a manner so devoid of basic guarantees that there seemed little likelihood that the accused would receive either the appearance or reality of a fair trial.


Tuesday, October 11, 2005
 
Tuesday Calendar


 
Greenberg on the Doomsday Argument Mark Greenberg (UCLA School of Law and Department of Philosophy) has posted Apocalypse Not Just Now (London Review of Books, Vol. 21, No. 19, July 1999) on SSRN. Here is the abstract:
    The Doomsday Argument is a case-study in 'probabilistic illusion', for it rests on a web of insidious intuitions, hidden assumptions and seductive but imprecise analogies. The Argument claims that the observation that we are alive now increases the probability that Homo sapiens will become extinct in the relatively near future. It does not predict Doom at a specific time or with a specific probability. Its conclusion is more abstract and puzzling: whatever our best estimate would be (based on all available evidence, including the latest scientific, historical or other research) of the probability that our species is relatively close to extinction, it must be revised upwards. In reaching this conclusion, the Argument does not rely on evidence in the ordinary sense or, indeed, on anything peculiar to our present situation; it would yield the same conclusion at any point in human history. It may seem preposterous that such a conclusion could be reached by armchair reasoning from the mere fact of our being alive now. Yet it would be wrong to rush to judgment. The counter-intuitive nature of probability is itself a reason for caution; moreover, the Doomsday Argument involves issues about time and existence, which are themselves notoriously resistant to intuition. Many who encounter it immediately conclude that it is unsound. Their objections tend not to hold up under scrutiny, however, and some of the initially sceptical join the ranks of the converted, which now include several eminent scientists and philosophers. The debate has endured for nearly two decades, resurfacing regularly in philosophical, mathematical and scientific journals. John Leslie, the Argument's foremost proponent, has responded indefatigably and ingeniously to a host of objections. The widespread sense that something is wrong with it is, however, correct, and its failings illuminate a main source of our trouble with understanding probability: its close connection to randomness or unpredictability. Randomness seems to confound us. For example, we have a tendency to infer non-randomness from apparent patterns in random events (witness the incorrigible optimists who spot trends in the spins of a roulette wheel or the ups and downs of the FT Share Index); at the same time, the history of statistics suggests that, when random samples are required, we often mistake the merely haphazard - or whatever happens to be near at hand - for the truly random. As I will show, the Doomsday Argument's fundamental mistake is to rely on the intuitive but misguided notion that we can in general take ourselves to be typical humans, and thus, in effect, random samples of the species.
Greenberg is a remarkably clear and interesting thinker. Highly recommended!


 
Weatherall on Private Copying Kimberlee Gai Weatherall (Melbourne Law School, University of Melbourne) has posted A Comment on the Copyright Exceptions Review and Private Copying on SSRN. Here is the abstract:
    The issue of private copying, and how it fits with copyright law, has hit front and centre of the current copyright exceptions review. While copying is widespread, and iPods are popular, under current Australian copyright law, almost all private copying - including time-shifting and format-shifting (or space-shifting) is an infringement of copyright. It appears that one aim of the current copyright exceptions review is to address this mismatch. The relationship between copyright and private copying is a highly complex issue, particularly in a digital environment. A brief paper cannot hope to cover all the relevant issues involved in a manner which is anywhere near comprehensive. The aim of this paper is twofold. First, it provides a set of seven premises for assessing any proposed solution. Second, it uses these premises, and some information about systems in other countries, to offer comments on three major issues in reaching a solution. In general terms, the attitude of the writer is that specific fair dealing defences will be less useful than a more general, open-ended exception based on the principles of fair use, and that a private copying levy is unlikely to offer the best solution, involving, as it would, significant costs and opportunities for rent-seeking with little likely benefit for consumers as the use of digital rights management increases.
Kim is the author of a terrific blog & this is a very important topic. Highly recommended!


 
Leib on Supermajoritarianism & the Criminal Jury Ethan Leib (UC Hastings) has posted Supermajoritarianism and the American Criminal Jury (Hastings Constitutional Law Quarterly) on SSRN. Here is the abstract:
    This piece argues for a supermajoritarian decision rule for conviction by a criminal jury and a simple majority decision rule for acquittal. It rejects requiring high degrees of consensus for acquittals above the majority threshold so that we can (1) give due respect to the presumption of innocence, (2) lower the number of hung juries, and (3) incentivize deliberation. By lowering the number of jurors the minority (presumptively for acquittal) must convince to get its desired verdict during the deliberation stage, we are most likely to encourage members of the minority to try to convince a few jurors in the supermajority (presumptively for conviction) to achieve their verdict preference. If a small superminority had to convince a full supermajority to get its desired result, it would much more likely keep quiet and would not have many incentives to participate in deliberation; as soon as the members of the minority see that they are outnumbered by a supermajority, they are unlikely to believe they can turn the verdict around. But if they only need to convince a few jurors to get their way, they will engage fully to achieve an acquittal. The Article’s main argument, however, is to support a supermajoritarian rule for conviction, finding supermajoritarian rules to dominate the American political and constitutional landscape. The Article investigates the puzzling persistence of unanimous decision rules for both conviction and acquittal in the face of the American commitment to supermajoritarianism generally. It argues that many different kinds of decision rules can be properly considered to be democratic—and that institutional context and certain external cost considerations can help us select an appropriate rule. While exposing the United States as a supermajoritarian regime, I am able to offer a coherentist account for why the criminal jury should adhere to supermajoritarianism in the context of criminal jury convictions but not acquittals. This decision rule hybrid has never been argued for in the context of the American criminal jury: supermajority to convict and majority to acquit. Usually those committed to giving effect to the presumption of innocence suggest that we simply allow acquittals to be entered for any jury that cannot reach the threshold required to convict; this Article offers a new asymmetrical rule that should command widespread support.


 
Peerenboom on the Relationship Between Human Rights & the Rule of Law Randall Peerenboom (University of California, Los Angeles - School of Law) has posted Human Rights and Rule of Law: What's the Relationship? (Georgetown Journal of International Law, Vol. 36, 2005) on SSRN. Here is the abstract:
    This article considers several explanations for the international human rights movement's sudden heightened attention to rule of law. The human rights movement has increasingly encountered conceptual, normative and political challenges. Perhaps, as de Mello suggested, rule of law will be a "fruitful principle to guide us toward agreement and results," and "a touchstone for us in spreading the culture of human rights." We still live in a world where widespread human rights violations are the norm rather than the exception. Rule of law is seen as directly integral to the implementation of rights. Rule of law may also be indirectly related to better rights protection in that rule of law is associated with economic development, which is related to better rights performance. Rule of law is integral to and necessary for democracy and good governance. Attempts to democratize without a functional legal system in place have resulted in social disorder. Rule of law is said to facilitate geopolitical stability and global peace. According to some, it may help prevent wars from occurring in the first place. It also provides guidelines for how war is carried out, and is central to the establishment of a rights-respecting post-conflict regime. Post 9-11 concerns over terrorism have also focused attention on rule of law. In addition, rule of law provides a rhetorical basis for challenging the world's sole reigning superpower. Taking each of these factors in turn, I critically analyze the relationship between rule of law and human rights. The relationship is complex and defies easy summary across such a broad range of issues. Nevertheless, a provisional summary that highlights some of the key findings and conclusions may be helpful. First, on the whole, rule of law is desirable. However, it is clearly no panacea for any of these problems. Second, rule of law is more useful in addressing some concerns than others. Appealing to rule of law will do little to resolve the conceptual and normative difficulties at the core of the human rights agenda. Third, the empirical evidence to support the assertion that rule of law leads to more rights and wellbeing is limited, and subject to doubts about causality. There is good reason to believe that wealth rather than rule of law is mainly responsible for better rights performance, although rule of law may also have some independent impact. Fourth, although rule of law and liberal democracy generally go hand in hand, they need not. Rule of law is possible in non-democratic states, and in democratic but non-liberal states. Rule of law may proceed, and is generally a precondition for, democratic consolidation. Fifth, we should not put too much faith in the ability of rule of law to prevent war, limit atrocities during war, or rein in a superpower bent on going its own way. Finally, rule of law is only one component of a just society. In some cases, the values served by rule of law will need to give way to other values. Invoking rule of law in most cases signals the beginning of normative and political debate, not the end of it.


 
Schwabach on Harry Potter & the Law Aaron Schwabach (Thomas Jefferson School of Law) has posted Harry Potter and the Unforgivable Curses: Norm-formation, Inconsistency, and the Rule of Law in the Wizarding World (Roger Williams University Law Review, 2005) on SSRN. Here is the abstract:
    The astounding success of the Harry Potter series of children's fantasy novels is an unexpected cultural phenomenon, but a welcome one for lawyers and legal academics: Harry's story is a story about law, and about a society trying to establish a rule of law. There is law in every chapter, and on almost every page, of all six books. Sometimes the legal questions hang in the background, while at other times they are the focus of the story: We see numerous trials, and the author gives us statutes, regulations, school rules, and even international agreements to consider. Harry's world is administered, ineptly, by the Ministry of Magic. The Ministry of Magic's muddling misrule is not quite dictatorship, but it is not fair and just, either. Under the stress of the first war against Voldemort's Death Eaters the Ministry regime, like some Muggle governments in similar circumstances, adopted an ad hoc and inconsistent approach to justice. It imprisons people, and sometimes executes them, without a trial. It keeps careful tabs on law-abiding citizens, but is unable to track down terrorists. It reaches inaccurate results in about half of its criminal trials, in large part because defendants are not represented by counsel. This article attempts to examine the problems with the wizarding word's legal system by focusing on one particular problem: the Unforgivable Curses, three spells whose use on humans is punishable by life imprisonment. The three Unforgivable Curses are the Cruciatus Curse, which causes unbearable pain; the Imperius Curse, which allows the user to control the actions of the victim; and the Killing Curse, which causes instant death. There are inconsistencies both in the application of the law and in the selection of certain curses as Unforgivable. The choice to outlaw these three spells, and not others that may be even worse, reflects something about the values of both Harry's world and ours. The article explores the moral assumptions underlying this choice, examining the legal treatment of these spells under the Ministry's regime as well as under relevant British (Muggle) and international law.


 
Llewelyn & Tehan on on Agreements with Indigenous Peoples David Llewelyn and Maureen Tehan (University of Melbourne - Faculty of Law and University of Melbourne - Faculty of Law) have posted 'Treaties', 'Agreements', 'Contracts' and Commitments' - What's in a Name? The Legal Force and Meaning of Different Forms of Agreement Making (Balayi: Culture, Law and Colonialism, Vol. 7, pp. 6-40, 2005) on SSRN. Here is the abstract:
    The multi-dimensional nature of treaty and agreement making has assumed a central focus in the conduct of relations between Indigenous peoples and settlers in Australia and elsewhere. Whether as a means of resolving disputes, delivering government programmes, or establishing common understandings, agreement making, however defined and named, has become the key tool for engagement between Indigenous and non-Indigenous Australians. Agreements come in all shapes and sizes ranging from registered Indigenous Land Use Agreements (ILUA) to Statements of Commitment, Memorandums of Understanding and Regional Agreements. In other jurisdictions these may be called ‘treaties’. This paper examines the plethora of agreements in Australia from the point of view of their enforceability,with particular reference to the categories of agreement and the status of the parties. The paper discusses various categories of agreement and the enforceability of each type. This discussion aims to provide practitioners and native title parties information to assist them choose the appropriate agreement type for their purpose, and to understand the language, meaning and consequences of particular agreements. The paper does not seek to provide an exhaustive legal analysis of the elements of each type of agreement. Rather, it highlights the significant characteristics of each type of agreement, including its common legal status and its most frequent applications. In doing so, the paper provides an accessible insight into the intersection between contract law and agreement making.


Monday, October 10, 2005
 
In the Supreme Court Archives Check out Justice O’Connor, Midkiff and Kelo: A Short Morality Play in Two Acts by Ben Barros over at PropertyProf Blog. Here's a taste:
    This summer, my research assistant Jackie Pfursich and I spent a great deal of time at the Library of Congress. We were doing research in the files of past Supreme Court justices looking for material on the Court's major takings cases, especially the Justices' conference notes. For those unfamiliar with the Court's inner workings, the Justices meet in conference to discuss and vote on cases. Only the Justices (not clerks or anyone else) are present at the conference. Many Justices take notes at the conference, and some of the Justices included their notes in their personal papers given to the Library of Congress or, in some cases, archives at other institutions. The Justices' files also include memoranda circulated to the other members of the Court (often also called in the context "the conference") on cases. Del Dickson's book The Supreme Court in Conference, 1940-1985 : The Private Discussions Behind Nearly 300 Supreme Court Decisions is an outstanding source for more detailed information about the conference and conference notes generally.
Surf on over!


 
Monday Calendar
    University of Illinois College of Law: Tom Ginsburg, "The Draft Iraqi Constitution in Comparative Perspective."
    University of Illinois College of Law: Rolf Wank (University of Bochum), "Latest Developments in Antidiscrimination Law-EC, Germany, and the United States"
    Columbia Law & Economics: Henry E. Smith, Yale Law School, Moduarity in Contracts: Boilerplate and Information Flow
    Florida State University College of Law: Nancy McLaughlin (University of Utah Law), Responding to Changed Conditions in the Conservation Easement Context.
    NYU Law: John Coates.
    UCLA Law: Professor Richard Sander, UCLA School of Law.
    University of Alabama School of Law: Bill Henning, University of Alabama, Implementing Private International Conventions through State Law.
    University of Texas Law: Oren Bar-Gill, NYU, Consumer Misperceptions and Market Reactions: The Case of Competitive Bundling
    Vanderbilt Law: Jeffrey Coles, Arizona State University, W.P. Carey School of Business, "Boards: Does One Size Fit All?"


 
Conference Announcement: Emotions and Rationality in Moral Philosophy
    EMOTIONS AND RATIONALITY IN MORAL PHILOSOPHY CONFERENCE October 27-29 2005 Neuchâtel-Berne, Switzerland The University of Neuchâtel and The Swiss association for Graduate Students in Philosophy (Sequitur) is proud to announce its conference on “Emotion and Rationality in Moral Philosophy” which will be held at the Universities of Neuchâtel and Bern (CH) from October 27 to October 29 (Thursday to Friday). Speakers include: Ronald De Sousa (Toronto), Kevin Mulligan (Geneva), Peter Goldie (Manchester), Christine Tappolet (Montréal), Laurent Jaffro (Clermont-Ferrand) Program and all relevant information concerning the conference can be found on the conference website: www.unine.ch/philo/emotions If you wish to attend the conference, please follow the instructions posted here: http://draco.unine.ch/philo/page8711_en.html (INSCRIPTION DEADLINE: 15.10.2005)


 
Call for Papers: Disability & Philosophy
    CALL FOR ABSTRACTS FOR A COLLECTION ON DISABILITY AND PHILOSOPHY In recent years, an increasing number of philosophers have begun to think and write more critically about disability, about how philosophical discourses represent disabled people, how these discourses impact on this socially constituted and disadvantaged group, and how the discipline of philosophy must be modified in order to include disabled philosophers. These critical reflections have coincided with, and to a large extent have been motivated by, worldwide political changes with respect to disabled people's participation in and access to society. Furthermore, this new philosophical work on disability seems to have been influenced by, and to have influenced, the work of disability theorists and researchers in the growing field of Critical Disability Studies. This call seeks detailed abstracts of 500-750 words for an edited collection on disability and philosophy that aims to bring together some of this exciting and path-breaking philosophical work. Topics suitable for the collection include (but are not limited to): bioethics meets biopolitics feminist analyses of disability reconsidering prenatal testing, selective abortion, assisted suicide? what does equality for disabled people require? taking another look at Rawls, Dworkin, Sen, etc. on disability and distributive justice situated knowledges, epistemic privilege, and disability disability and intersectional approaches to oppression the ethics and politics of disabled people's narratives and the approaches of cognitive science phenomenological analyses of disability and shame, self-respect, and self-esteem disability and aesthetics, conceptions of beauty, ugliness, wholeness, and the abject philosophy of biology and the very idea of normal species-typical functioning integrating disability theory into philosophy DEADLINE FOR SUBMISSION OF ABSTRACTS: Nov. 15, 2005. Notification of acceptances by January 15, 2006. Completed papers due by May 15, 2006. Abstracts and all enquiries about the collection should be directed to: Dr. Shelley Tremain at stremain@utm.utoronto.ca OR stremain@porchlight.ca. Please send a brief biographical statement (affiliation, relevant publications, etc.) with your abstract.


 
Saunders on Law & Neuroscience Kevin W. Saunders (Michigan State University College of Law) has posted A Disconnect Between Law and Neuroscience: Modern Brain Science, Media Influences, and Juvenile Justice (Utah Law Review, Vol. 2005, pp. 695-741, 2005) on SSRN. Here is the abstract:
    Modern brain science has discovered a second period of physcal development of the brain in the adolescent years. Paralleling the cognitive development of infancy and early childhood, the judgmental and inhibitory regions of the brain go through a process of synaptic overblooming and later paring in this later period of life. Just as environment affects cognitive development, it appears it also has an effect on judgment and inhibition. This has consequences that should influence the development of the law. First, if environment affects which synapses remain in the developed brain and later influence judgment, there is greater reason to be concerned about the media environment children face. Second, if children are unable to make adult judgments and inhibit their actions, rather than simply unwilling to do so, that should speak in favor of a juvenile justice system that recognizes that juvenle offenders may be more amendable to rehabilitation than adults.


 
Starnes on Divorce Discourse Cynthia Lee Starnes (Michigan State University-DCL College of Law) has posted Mothers as Suckers: Pity, Partnership, and Divorce Discourse (Iowa Law Review, Vol. 90, pp. 1513-52, April 2005) on SSRN. Here is the abstract:
    Aiming to protect divorcing mothers from the market costs of caretaking, the American Law Institute has proposed a new alimony model based on loss sharing. Good intentions notwithstanding, the Institute's rationale and vocabulary perpetuate a dispiriting view of mothers as suckers, economically incapacitated by their unpaid family labor. A far better reform discourse lies in the gender-neutral language and egalitarian principles of partnership. In this Article, Professor Starnes offers an enriched partnership model that complements the marital partnership model she earlier proposed. This new model provides a compelling rationale for income sharing during the minority of marital children, even as it casts mothers as full stakeholders in marriage, equal rather than subservient, empowered rather than incapacitated, respected rather than pitied.


 
Brown on Raich George D. Brown (Boston College Law School) has posted Counterrevolution? - National Criminal Law after Raich (Ohio State Law Journal, Vol. 66, No. 5, November 2005) on SSRN. Here is the abstract:
    This article provides an in-depth analysis of the Supreme Court's recent decision in Gonzales v. Raich. The Court rejected by a margin of 6-3 a Ninth Circuit holding that the federal Controlled Substances Act would probably be found unconstitutional as applied to intrastate users of marijuana who were in conformity with California's Compassionate Use Act. Although the majority, and Justice Scalia concurring, found the case to present a relatively straight forward problem in the application of Commerce Clause doctrine, the three dissenters (Justice O'Conner joined by Chief Justice Rehnquist, and Justice Thomas) sounded sharp notes decrying a betrayal of New Federalism principles as well as an abandonment of United States v. Lopez and United States v. Morrison. The article begins with a detailed analysis of the four different opinions that the case generated in the Supreme Court, as well as a look at the Ninth Circuit decision. This decision's willingness to prefer state law over federal, as well as the strong federalism themes of the dissent, represent an important data point in any overall consideration of where national power under the Commerce Clause is headed. The article also devotes substantial attention of the use by Justices Stevens and Scalia of Wickard v. Filburn. Wickard, with its aggregation principle, has long been a sore point for conservatives. However, no Justice in Raich called for its overruling, and the Wickard-based analysis of class of activities statutes emerged stronger than ever. The second section of the article discusses the potential impact of Raich on the current Court's New Federalism initiative, or perhaps initiatives. I contend that to adopt the view of the Ninth Circuit would have constituted a substantial advance of that set of precepts. However, the fact that Raich came out the way it did does not necessarily constitute a rollback for the New Federalism. In particular, Justice Stevens' insistence on the need for an economic/commercial subject of regulation as the overall test of validity of statutes with a purported effect on interstate commerce represents a reaffirmation of Lopez and Morrison. The open question is whether his lack of reference to the non-attenuation or noninfinity arguments of the majority in those cases represents any form of retreat. In the third section I consider some implications of Raich for the federal criminal law. The article presents the case as vindicating the view that the American system will continue to be noteworthy for the presence of two largely overlapping sets of criminal statutes. The article also examines specific issues such as the use of jurisdictional elements, as-applied challenges, and the reach of federal criminal law at the outer boundaries of national authority. The cases involving federal prosecution for child pornography are used to illustrate this latter problem as well as to provide a further elucidation of the general discussion of the current status of federal criminal laws, particularly those passed under the Commerce Clause.


 
Shvets on Courts and External Credit of Russian Enterprises Julia Shvets (University of Cambridge, Corpus Christi College) has posted Courts, Firms, and Allocation of Credit on SSRN. Here is the abstract:
    The paper investigates whether and how performance of regional commercial courts has affected external credit of Russian enterprises between 1995 and 2002. The results show that more reliable courts lead to higher bank lending to firms. This occurs predominantly through expansion of the number of businesses which have access to bank financing. There is limited evidence that trade credit also responds to changes in quality of courts. However, credit from suppliers is considerably less sensitive to court performance than bank credit. Court reliability is precisely defined and measured objectively using appeal rates of lower court decisions. The paper analytically derives the relationship between reliability of courts, appeal rates and lending to firms, identifying a specific channel through which law enforcement affects external financing. Empirical analysis is based on a new panel dataset which measures credit at the level of a firm and permits a number of robustness tests.


Sunday, October 09, 2005
 
Legal Theory Calendar


 
Michael Levine on the Politics of Judicial Selection And speaking of Balkinization, check out Michael Levine's Why are Bush's Nominees so Moderate?--an excelent post. Here's a taste:
    In President Bush's current circumstances, pressed from the right and wishing to avoid a divisive fight that will highlight the disarray his administration is teetering toward, this means staying well within the boundaries defined by the Gang. There are two ways to do this: one, nominate a minimalist conservative (one who avoids legislating from the bench and would have a preference for staying within precedent where possible, in contrast to one who wants to rewrite law to enshrine an earlier, or perhaps unprecedented, view of the Constitution) who so stellar that the only possible objection to him is extreme ideology of the left or right. Enter Mr. Chief Justice Roberts. Two, nominate someone whose views are known well only to the President, allowing him to defend her to the right by saying he really knows her and they should trust him and to defend her to the left by making sure that she has left no imprint that would suggest that she is an ideologue. Enter Mme. Meier. What are President George W. Bush's "real" views on what kind of nominee or Court he wants? We'll never know. But we know what kind he can have.


 
Welcome to the Blogosphere . . . . . . to Steve Griffin of Tulane, who is now Blogging on Katrina recovery at Balkinization. Check out his What Does it Mean to Rebuild New Orleans?


 
Legal Theory Lexicon: The Prisoner's Dilemma and Game Theory
    Introduction One of the most useful tools in analyzing legal rules and the policy problems to which they apply is game theory. The basic idea of game theory is simple. Many human interactions can be modeled as games. To use game theory, we build a simple model of a real world situations as a game. Thus, we might model civil litigation as a game played by plaintiffs against defendants. Or we might model the confirmation of federal judges by the Senate as a game played by Democrats and Republicans. This week's installment of the Legal Theory Lexicon discusses one important example of game theory, the prisoner's dilemma. This introduction is very basic--aimed at a first year law student with an interest in legal theory.
    An Example Ben and Alice have been arrested for robbing Fort Knox and placed in seperate cells. The police make the following offer to each of them. "You may choose to confess or remain silent. If you confess and your accomplice remains silent I will drop all charges against you and use your testimony to ensure that your accomplice gets a heavy sentence. Likewise, if your accomplice confesses while you remain silent, he or she will go free while you get the heavy sentence. If you both confess I get two convictions, but I'll see to it that you both get light sentences. If you both remain silent, I'll have to settle for token sentences on firearms possession charges. If you wish to confess, you must leave a note with the jailer before my return tomorrow morning." This is illustrated by Table One. Ben's moves are read horizontally; Alice's moves read vertically. Each numbered pair (e.g. 5, 0) represents the payoffs for the two players. Ben's payoff is the first number in the pair, and Alice's payoff is the second number.
    Table One: Example of the Prisoner's Dilemma.
    ________________________________________Ben
    __________________________Confess______________Do Not Confess___ _______________________________________________________________ ____________________|____________________|____________________| ____________________|____________________|____________________| ____________________|____________________|____________________| ____________________|____________________|____________________| __________Confess___|_____1, 1___________|_____0, 5___________| ____________________|____________________|____________________| ____________________|____________________|____________________| ____________________|____________________|____________________| _____Alice_____________________________________________________ ____________________|____________________|____________________| ____________________|____________________|____________________| ____________________|____________________|____________________| ____________________|____________________|____________________| ___________Do not___|_____5, 0___________|_____3, 3___________| ___________Confess__|____________________|____________________| ____________________|____________________|____________________| ____________________|____________________|____________________| _______________________________________________________________

    Suppose that you are Ben. You might reason as follows. If Alice confesses, then I have two choices. If I confess, I get a light sentence (to which we assign a numerical value of 1). If Alice confesses and I do not confess, then I get the heavy sentence and a payoff of 0. So if Alice confesses, I should confess (1 is better than 0). If Alice does not confess, I again have two choices. If I confess, then I get off completely and a payoff of 5. If I do not confess, we both get light sentences and a payoff of 3. So if Alice does not confess, I should confess (because 5 is better than 3). So, no matter what Alice does, I should confess. Alice will reason the same way, and so both Ben and Alice will confess. In other words, one move in the game (confess) dominates the other move (do not confess) for both players.
    But both Ben and Alice would be better off if neither confessed. That is, the dominant move (confess) will yield a lower payoff to Ben and Alice (1, 1) than would the alternative move (do not confess), which yields (3, 3). By acting rationally and confessing, both Ben and Alice are worse off than they would be if they both had acted irrationally.
    The Real World The prisoner's dilemma is not just a theoretical model. Here is an example from Judge Frank Easterbrook's opinion in United States v. Herrera, 70 F.3d 444 (7th Cir. 1995):
      Cynthia LaBoy Herrera survived a nightmare. She and her husband Geraldo Herrera were arrested after a drug transaction. The couple, separated by the agents, then played and lost a game of Prisoner's Dilemma. See Page v. United States, 884 F.2d 300 (7th Cir.1989); Douglas G. Baird, Robert H. Gertner & Randal C. Picker, Game Theory and the Law 312-13 (1994). Cynthia told agents who their suppliers were. Learning of this, Geraldo talked too. When both were out on bond, Geraldo decided that Cynthia should pay for initiating the revelations. Geraldo clobbered Cynthia on the back of her head with a hammer; while she tried to defend herself, Geraldo declared that she talked too much to the DEA. As Cynthia grappled with the hand holding the hammer, Geraldo used his free hand to punch her in the face. Geraldo got the other hand free and hit Cynthia repeatedly with the hammer; she lapsed into unconsciousness.
    Communication and Bargains How can we overcome a prisoner's dilemma? You have probably noticed that the prisoner's dilemma assumed that the two prisoner's were isolated from each other. This was not an accident. If the two prisoner's can communicate with each other, then they might reach an agreement. Alice might say to Ben, "I won't confess if you won't," and Ben might say, "I agree." Of course, this might not solve the prisoner's dilemma. Why not? Suppose they do agree not to confess, but each is then taken to a separate room and given a confession to sign. Ben might reason as follows, "If I keep the bargain, and Alice does not, then she will get off while I get a heavy sentence." So Ben may be tempted to defect from their agreement. And Alice may reason in exactly the same way. On the other hand, it may be that Ben and Alice have a reason to trust one another. For example, they may have had prior dealings in which each proved trustworthy to the other. Of course, trust can be established in another way. If each party can make a credible threat of retaliation against the other, then those threats may change the payoff structure in such a way as to make the cooperative strategy dominant. One situation in which the threat of retaliation is built into the model is the iterative (repeated) prisoner's dilemma.
    Iterated Game As described above, the prisoner's dilemma is a one-shot game. But in the real world, may prisoner's dilemmas involve repeated plays. You can imagine a series of moves, for example:
      Round One--Alice Confesses, Ben Does Not Confess Round Two--Alice Confesses, Ben Confesses Round Three--Alice Does Not Confess, Ben Does Not Confess
    We can imagine various strategies of play for Ben and Alice. One of the most important strategies is called tit for tat. Alice might say to herself, "If Ben Confesses, then I will retaliate and confess, but if Ben does not confess, then neither will I." Add one more element to this strategy. Suppose both Ben and Alice say to themselves, on the first round of play, I will cooperate and not confess. Then we would get the following pattern:
      Round One--Alice Does Not Confess, Ben Does Not Confess Round Two--Does Not Confess, Ben Does Not Confess Round Three--Alice Does Not Confess, Ben Does Not Confess
    Thus, if both Ben and Alice play tit for tat, the result might be a stable pattern of cooperation, which benefits both Ben and Alice.
    If you want to get a really good feel for the iterative prisoner's dilemma, go to this website, where you can actually try out various strategies.
    One more twist. Suppose that this game is finite, i.e. it has a fixed number of moves, e.g. ten. How will Ben and Alex play in the "end game." Ben might reason as follows. If I defect and confess on the tenth move, Alice cannot retaliate on the eleventh move (because there is no eleventh round of play). And Alice might reason the same way, leading both Ben and Alice to confess in the final round of play. But now Ben might think, since it is rational for both of us to defect in the tenth round, I need to rethink my strategy in the ninth round. Since I know that Alice will confess anyway in the tenth round, I might as well confess in the ninth round. But once again, Alice might reason in exactly this same way. Before we know it, both Alice and Ben have decided to defect in the very first round.
    Conclusion This has been a very basic introduction to the prisoner's dilemma, but I hope that it has been sufficient to get the basic concept across. As a first year law student, you are likely to run into the prisoner's dilemma sooner or later. If you have an interest in this kind of approach to legal theory, I've provided some references to much more sophisticated accounts. Happy modeling!
    References Here are some links to game theory and prisoner's dilemma resoures on the web:


Saturday, October 08, 2005
 
Legal Theory Bookworm The Legal Theory Bookworm recommends Congress and the Constitution (Neal Devins and Keith E. Whittington, editors). Here's a description:
    For more than a decade, the U.S. Supreme Court has turned a skeptical eye toward Congress. Distrustful of Congress's capacity to respect constitutional boundaries, the Court has recently overturned federal legislation at a historically unprecedented rate. This intensified judicial scrutiny highlights the need for increased attention to how Congress approaches constitutional issues. In this important collection, leading scholars in law and political science examine the role of Congress in constitutional interpretation, demonstrating how to better integrate the legislative branch into understandings of constitutional practice. Several contributors offer wide-ranging accounts of the workings of Congress. They look at lawmakers' attitudes toward Congress's role as a constitutional interpreter, the offices within Congress that help lawmakers learn about constitutional issues, Congress's willingness to use its confirmation power to shape constitutional decisions by both the executive and the courts, and the frequency with which congressional committees take constitutional questions into account. Other contributors address congressional deliberation, paying particular attention to whether Congress's constitutional interpretations are sound. Still others examine how Congress and the courts should respond to one another's decisions, suggesting how the courts should evaluate Congress's work and considering how lawmakers respond to Court decisions that strike down federal legislation. While some essayists are inclined to evaluate Congress's constitutional interpretation positively, others argue that it could be improved and suggest institutional and procedural reforms toward that end. Whatever their conclusions, all of the essays underscore the pervasive and crucial role that Congress plays in shaping the meaning of the Constitution.
And here are some blurbs:
  • “Congress and the Constitution is a timely and provocative book on whether, when, and how Congress thinks about the meaning of the Constitution. The excellent scholarship in this volume raises deep questions about the relationship between Congress and the courts in interpreting the Constitution and sets an agenda for further work in this important area. In so doing, the book makes a significant contribution.” --ELENA KAGAN, Dean of Harvard Law School
  • “The subject of this collection--the treatment of the Constitution by legislators in Congress--is both extremely interesting and important, and I do not believe that there is any other single book that is so effective in bringing together a wide range of relevant materials.” --SANFORD LEVINSON, W. St. John Garwood and W. St. John Garwood Jr. Centennial Professor of Law and Government, University of Texas at Austin


 
Download of the Week The Download of the Week is Rescue Without Law: An Empirical Perspective on the Duty to Rescue by David Hyman. Here is the abstract:
    For more than a century, legal scholarship on the duty to rescue has proceeded on a sophisticated theoretical plane. Proponents of a duty to rescue have argued that it will decrease the frequency of non-rescue without creating undue distortions or other difficulties. Opponents of a duty to rescue have argued that such statutes are ineffective, infringe on individual liberties, may actually discourage rescue, and are likely to be misused by politically ambitious prosecutors. No effort has been made to test any of these claims empirically, even though from a policy perspective, the critical threshold question - how often do Americans fail to rescue one another in circumstances where only a generalized duty to rescue would require them to do so - is entirely factual. This article provides the first empirical study of the no-duty rule in action. Using more than twenty independent data sources, the article provides a "law and reality" perspective on rescue and non-rescue that complicates - and sometimes is flatly inconsistent with - the positions of both proponents and opponents of a duty to rescue. The results paint a rich and largely reassuring picture of the behavior of ordinary Americans faced with circumstances requiring rescue, and indicate that both more and less is at stake in the debate over the no-duty rule than has been commonly appreciated. Law professors and judges have been fascinated with the no-duty rule for theoretical reasons, but the ongoing debate should not obscure the reality that in the real world, rescue is the rule - even if it is not the law.
Download it while its hot!


Friday, October 07, 2005
 
Breyer on His New Book Justice Breyer was interviewed by George Stephanopolouson Breyer's new book, "Active Liberty." Here is a link: http://abcnews.go.com/ThisWeek/.


 
Chandler on Network Theory and the UCC I just got back to my office from a talk by Seth Chandler (Houston, Law) at the Mathematica conference here in Champaign. He gave a brilliant talk on the application of network theory to the UCC. That paper isn't available online, but his earlier paper, The Network Structure of Supreme Court Jurisprudence, can be downloaded from SSRN. Download it while its hot!


 
Friday Calendar
    Harvard Public Law Workshop: Randy Barnett, The Ninth Amendment: It Means What It Says. This should be quite an event. Barnett is a premier constitutional theorist & the leading scholar of the Ninth Amendment. This paper responds to important new work by Kurt Lash and others. Go or read the paper!
    UCLA Law: Dorothy Roberts, Northwestern School of Law, "Privitization and Punishment in the New Age of Reprogenetics".
    Loyola Law School, Los Angeles: Catherine Rogers, Richard C. Cadwallader Associate Professor of Law, Paul M. Hebert Law Center, Louisiana State University, "The Vocation of the International Arbitrator"
    Georgetown University International Human Rights Colloquium: Kenneth Anderson, Washington College of Law, American University.
    SLAPP Research Workshop: Speaker: Professor Lief Carter, Colorado College, "The Good Look: How College Football Referees Construct and Achieve Judicial Impartiality"
    University of Texas Law: Louise Weinberg, The Supreme Court and the Election of 1860
    Vanderbilt Law: Kip Viscusi, Harvard Law School, "Economics of Environmental Improvement"
    Vanderbilt Law & Behavioral Biology Seminar: Paul Glimcher, New York University, Center for Neural Science, "Neuroeconomics"


 
Citron on VOIP & Minimum Contacts danielle k citron (University of Maryland - School of Law) has posted Minimum Contacts in a Borderless World: Voice over Internet Protocol and the Coming Implosion of Personal Jurisdiction Theory (U.C. Davis Law Review, Vol. 39, No. 4, April 2006). Here is the abstract:
    Modern personal jurisdiction theory rests on the twin pillars of state sovereignty and due process. A non-resident's "minimum contacts" with a forum state are treated as the equivalent of her territorial presence in the state and hence justify a state's exercise of sovereignty over her. At the same time, the non-resident's "purposeful availment" of opportunities within the state is seen as implying her agreement to that state's jurisdiction in exchange for the protection of its laws. 'This theory presumes that a non-resident directs voice communications to known places by dialing a telephone number's area code. Voice over Internet Protocol (VoIP) and the borderless communications of the twenty-first century belie this assumption. Area codes will no longer reliably correspond to known locations; individuals can call, and do mischief in, a state without ever realizing that they are contacting that state. With VoIP and its emerging applications, most means of interstate communications - voice, fax, file-sharing, e-mail, and video - will lack geographic markers. This will force the Court to choose which value is paramount: state sovereignty or the implied contract approach to due process. In a few cases arising from cellular-phone calls, lower courts have privileged the implied contract theory. This effectively returns the law of personal jurisdiction to the nineteenth-century formalism of Pennoyer v. Neff by limiting jurisdiction to defendants' home states. This wholesale evisceration of state sovereignty is unwarranted. Other means can protect a non-resident defendant from abusive process. Securing state sovereignty over harmful borderless communications advances both the Court's decentralizing judicial federalism agenda and its centralizing efforts to preserve a national market and identity.


 
Confernce Announcement: Natural Law at Navarra
    The Department of Philosophy at the University of Navarra will hold a conference on Natural Law, March 27th-29th, 2006. A schedule is copied below. For more details, see: http://www.unav.es/filosofia/actividades/leynatural/ingles/program.html Monday, 27th March Aula Magna, Edificio Central
      8.45 Registration 9.00 Opening speech 9.30 Dra. Ana Marta González (Universidad de Navarra). Ley natural como concepto límite. Una lectura de Tomás de Aquino. 10.30 Dr. Juan Cruz Cruz (Universidad de Navarra). El fundamento formal de la ley natural en el Siglo de Oro. Acerca de Vázquez y Suárez. 11.15 Coffe-break 11.30 Dr. Knud Haakonssen (University of Sussex). Natural Law without Metaphysics. A Protestant Tradition. 12.30 Presentation of papers (Aulas 30, 37 y 18 Edificio Central) 14.15 Lunch 16.30 Dr. David Oderberg (University of Reading). The Metaphysical Foundations of Natural Law. 17.30 Colloquium* (Aula 30 Edificio Central).
    Tuesday, 28th March Aula Magna, Edificio Central
      9.30 Dr. Alejandro Llano (Universidad de Navarra). Primeros principios y filosofía práctica. 10.30 Dr. Urbano Ferrer (Universidad de Murcia). ¿Alcanza la falacia naturalista a la ley natural? 11.15 Coffe-break 11.30 Dr. Robert Spaemann (Ludwig-Maximilian-Universität München). Finalidad. 12.30 Presentation of papers (Aulas 30, 37 y 18 Edificio Central) 14.15 Lunch 16.30 Dr. Richard Hassing (The Catholic University of America). Difficulties for Natural Law Based on Modern Conceptions of Nature. 17.30 Colloquium* (Aula 30 Edificio Central).
    Wednesday, 29th March Aula Magna, Edificio Central
      9.30 Dr. Carmelo Vigna (Universidad de Venecia). Legge naturale e universalità umana. 10.30 Dr. Alfredo Cruz (Universidad de Navarra). Lo universal en el ámbito de lo práctico. Ley, derecho y virtud. 11.15 Coffe-break 11.30 Dr. Russell Hittinger (University of Tulsa). Natural Law and the Human City. 12.30 Presentation of papers (Aulas 30, 37 y 18 Edificio Central) 14.15 Lunch 16.30 Dra. Montserrat Herrero (Universidad de Navarra). Naturaleza y ley en la configuración política de la libertad. 17.30 Colloquium (Aula 30 Edificio Central). 18.30 Closing speech


 
Call for Papers: Duke Law Journal Administrative Law Conference
    THE 36TH ANNUAL DUKE LAW JOURNAL ADMINISTRATIVE LAW CONFERENCE CALL FOR PAPERS The Thirty-Sixth Annual Duke Law Journal Administrative Law Conference will consider the administrative law issues raised by Hurricanes Katrina and Rita, and more generally on the administrative law issues surrounding emergency preparedness and response. The conference will be held at the Duke University School of Law on March 24, 2006. The death and destruction wreaked by these hurricanes has shocked and saddened all of us. They have also brought a number of important administrative law issues into sharp relief. For example, important questions remain to be answered about federalism, including the legal limits on federal involvement and the proper resolution of conflicts between federal and state agencies in crisis scenarios; the intertwined history of domestic crises and the growth of the administrative state; judicial review of administrative decisions made under crisis conditions; governmental liability for pre-crisis administrative failings or post-crisis responses; emergency powers in times of domestic emergency; and the role of race and class in administrative responses to catastrophe. The Duke Law Journal hopes to provide a forum for exceptional papers addressing one or more of the administrative law issues raised by the hurricanes and their aftermath, or more generally on administrative law and emergency preparedness and response. The Journal is interested in papers from a variety of disciplines, including law, political science, and public policy, with participants to be chosen through a competitive selection process. If you would like to participate, please submit a short (no more than 1,500 words)overview of the topic you propose to address. Proposal submissions should be sent to dlj@law.duke.edu or mailed to the address above. All submissions should be accompanied by a C.V. and an indication of the author’s availability on the conference date. The deadline for these proposals is October 31, 2005. Authors of accepted proposals will be expected to develop their ideas into scholarly papers of no more than 20,000 words, including footnotes. Completed papers will also be circulated among the participants to facilitate discussion at the Conference; discussion-quality drafts of accepted papers will therefore be due to the Journal by February 1, 2006. If you have any questions, please contact the Duke Law Journal at dlj@law.duke.edu. We look forward to reading your submissions. DUKE LAW JOURNAL DUKE UNIVERSITY SCHOOL OF LAW CORNER OF TOWERVIEW ROAD & SCIENCE DRIVE BOX 90371 DURHAM, NC 27708-0371 (919) 613-7103 DLJ@LAW.DUKE.EDU


Thursday, October 06, 2005
 
Hyman on the Duty to Rescue Revised & Moved to the Top of the Blog David Hyman (Illinois) has posted Rescue Without Law: An Empirical Perspective on the Duty to Rescue on SSRN. Here is the abstract:
    For more than a century, legal scholarship on the duty to rescue has proceeded on a sophisticated theoretical plane. Proponents of a duty to rescue have argued that it will decrease the frequency of non-rescue without creating undue distortions or other difficulties. Opponents of a duty to rescue have argued that such statutes are ineffective, infringe on individual liberties, may actually discourage rescue, and are likely to be misused by politically ambitious prosecutors. No effort has been made to test any of these claims empirically, even though from a policy perspective, the critical threshold question - how often do Americans fail to rescue one another in circumstances where only a generalized duty to rescue would require them to do so - is entirely factual. This article provides the first empirical study of the no-duty rule in action. Using more than twenty independent data sources, the article provides a "law and reality" perspective on rescue and non-rescue that complicates - and sometimes is flatly inconsistent with - the positions of both proponents and opponents of a duty to rescue. The results paint a rich and largely reassuring picture of the behavior of ordinary Americans faced with circumstances requiring rescue, and indicate that both more and less is at stake in the debate over the no-duty rule than has been commonly appreciated. Law professors and judges have been fascinated with the no-duty rule for theoretical reasons, but the ongoing debate should not obscure the reality that in the real world, rescue is the rule - even if it is not the law.
I am a big fan of Hyman! This corrects an error in the post from yesterday--where I said that I was a "bit" fan. Supremely embarassing, especially since David's office is next door to mine! Download it while its hot!


 
Thursday Calendar


 
Welcome to the Blogosphere . . . . . . to Concurring Opinions, featuring Daniel J. Solove, Kaimipono Wenger, and Nathan Oman.


 
Vandervelde on Capture Lea S. Vandervelde (Iowa) has posted The Role of Captives in the Rule of Capture (Environmental Law, Vol. 35, 2005) on SSRN. Here is the abstract:
    This article makes two important comments about how the Rule of Capture as a distributional measure excludes certain groups. First, The Rule of Capture as formulated by John Locke effectively shut out two kinds of co-claimants from the commons of North America: free original inhabitants and men and women who were in the service of others, even when these people were indispensable to the act of capture. Though the Capture rule resonates as an ethically based distributional principle, its three ethical premises are not carried through when applied to the commons of North America. The three premises are: 1. first in time, first in right; 2. the deservedness of the laboring person who capture the resource; and 3. hunger as a human condition shared by all. The article demonstrates how Native Americans are excluded in Locke's formulation though they have strong claims of first in time, and servants and slaves are excluded despite having strong claims to deservedness as the laboring person who actually does the capturing of the resource. Hence, Locke's formulation as an apologist for conquest and domination appears to have the instrumental and anti-democratic objective of delegitimating the claims of these two groups of peoples to the commons. Second, using the example of York, William Clark's slave and companion in the Corps of Discovery, the article demonstrates how historical practices operated to continue the subordination of slaves utilized in various phases of conquest. Slaves, like York, were instrumentally used to advance American efforts at Conquest and later settlement. An examination of Lewis and Clark's accounts of York show that these masters treated him with respect and almost partnership while in the wilderness and on Indian lands during the voyage of discovery only to relegate him to slavery in several of its worst treatments when the successful mission returned. Having seen the West, having survived the wilderness travel and aided in the mission's success, York was disappointed in his hopes and expectation of winning freedom for his heroic efforts upon returning to civilization. His treatment was completely at odds with the treatment of every other member of the troupe who were showered with laurels of increased recognition, status, and material gain.


 
Peerenboom on Human Rights in China Randall Peerenboom (University of California, Los Angeles - School of Law) has posted Assessing Human Rights in China: Why the Double Standard? (Cornell International Law Journal, Vol. 38, No. 71, 2005) on SSRN. Here is the abstract:
    China is often singled out as one of worst human rights violators in the world today. On the other hand, the Chinese government regularly issues reports chock-full of statistics showing considerable progress on a wide variety of fronts, and proudly claims that Chinese citizens enjoy more rights than ever before. While not denying that much remains to be done, the government maintains its critics are biased, human rights are being misused for political purposes, and China is being subject to a double standard. Many Chinese citizens feel the same way. The very fact that government leaders and Chinese citizens feel China is being held to double standards, whether or not it is true, has several negative consequences for human rights. Beijing has been reluctant to allow visits by inspectors from the U.N. or other countries, and has imposed restrictions on their visits. In response to the annual U.S. State Department report, China now issues its own critical report on the rights situation in the U.S. In addition, China has cancelled bilateral dialogues on human rights and programs on rule of law in response to the attempts to censure it in Geneva. The public's support for international reform efforts has also been weakened. Many citizens are suspicious about the motives of NGOs. Public opinion about America, seen as the leader of Western critics, has undergone a dramatic shift in the last twenty years, from wildly supportive to highly critical. Is China subject to a double standard? I argue based on comparative empirical studies of rights performance that it is, and offer several explanations why. Part I provides a brief overview of China's official policy on human rights and China's involvement in international human rights regime. Part II examines how China does relative to other countries, particularly other countries at its income level, in physical integrity rights, civil and political rights, social and economic rights; quality of governance; law and order and social stability; women's rights; and cultural or minority rights. While China scores well below the average in its lower middle income category on civil and political rights, it outperforms the average country in its income class on virtually all other indicators, supporting the claim that China is subject to a double standard. Part III considers several reasons why China seems to be held to a higher standard than other countries. Some critics argue the attention paid to China is warranted because, given China's huge population, addressing problems in China will benefit so many people. However, India has a population nearly as large as China. And yet, despite a human rights record that falls short of China's on most indicators, India has not received anywhere near as much critical scrutiny as China. A second, more likely explanation is that the international human rights community remains biased toward civil and political rights, the area in which China is the weakest. Third, and related, non-democratic countries are held to higher standards than democratic countries. Fourth, China is singled out because of its geopolitical importance. For some, China has assumed the role played by Russia during the Cold War – the evil empire that must be opposed at every turn. Fifth, China presents a normative challenge to the human rights regime. As suggested by the debate over Asian values, China is likely to take advantage of its growing economic and geopolitical influence to defend and advocate rights policies and normative vision of the world at odds with current rights policies based on secular liberalism even in the face of Western opposition. Sixth, much of the reporting on China by the general media and human rights monitors tends to focus on particular horrific cases of human rights violations that are not representative of the system as a whole. This creates a mistaken impression of how serious the problems are. On the other hand, the government's lack of transparency, combined with the egregious nature of some violations, leads people to suspect the worse, and fuels images of China as a repressive totalitarian state. Part IV concludes with a brief discussion of the benefits of avoiding a double standard.


 
Greenwood on Corporate Law Metaphors Daniel J.H. Greenwood (S.J. Quinney College of Law-University of Utah) has posted Introduction to the Metaphors of Corporate Law (Seattle Journal for Social Justice, 2005) on SSRN. Here is the abstract:
    Corporate law is dominated by a series of metaphors that present corporations as private, individualized, egalitarian and market-like, hiding their organizational, institutional, political and power distributing aspects. These metaphors - property, contract/market, agency and individuality - drive current interpretations of the law but remain in strong conflict with it, in part because historic corporate law stemmed from explicitly political conceptions. Although the metaphors have taught us to ignore the group and institutional characteristics of corporations, treating them as powerless and passive players in the markets, corporations in fact are powerful governance and economic institutions.


Wednesday, October 05, 2005
 
Book Announcement: Mercy on Trial by Sarat
    Mercy on Trial: What It Means to Stop an Execution by Austin Sarat To read the entire book description or a sample chapter, please visit: http://pup.princeton.edu/titles/8018.html On January 11, 2003, Illinois Governor George Ryan--a Republican on record as saying that "some crimes are so horrendous . . . that society has a right to demand the ultimate penalty"--commuted the capital sentences of all 167 prisoners on his state's death row. Critics demonized Ryan. For opponents of capital punishment, however, Ryan became an instant hero whose decision was seen as a signal moment in the "new abolitionist" politics to end killing by the state. In this compelling and timely work, Austin Sarat provides the first book-length work on executive clemency. He turns our focus from questions of guilt and innocence to the very meaning of mercy. Cloth | $29.95 / £18.95 | ISBN: 0-691-12140-0


 
Wednesday Calendar
    University of Illinois College of Law: R. Kent Greenawalt (Columbia University School of Law)“Objections in Conscience to Medical Procedures: Does Religion Make a Difference?” Greenawalt is one of the most thoughtful and interesting thinkers in the legal academy. This should be fun.
    Northwestern Law & Economics: Mark Geistfeld, Crystal Eastman Professor of Law, New York University, "Economic Analysis in a Rights-Based Conception of Tort Law"
    Alison LaCroix, Golieb Fellow NYU, "The Authority for Federalism: Madison’s Negative and the Transition from Imperial to Federal Supremacy."


Tuesday, October 04, 2005
 
Symposium Announcement: Law's Quandary at CUA
    In Law's Quandary (Harvard University Press 2004), Professor Steven D. Smith explores the significance of contemporary law's continuing reliance on age-old legal notions like 'the law of the case' or the 'meaning of a statute' in the face of a vanishing theoretical consensus on justifications for doing so. The perplexity encountered in this anomaly is metaphysical. Law's Quandary poses sharp and unavoidable questions about the very coherence and intelligibility of law in the absence of 'thick' ontological commitments of classical legal thinkers. At the same time, the book seems to find meaning and hope in this very impasse. The Catholic University of America’s Center for Law, Philosophy and Culture, with The Catholic University Law Review, will present a Symposium, "Steven D. Smith’s Law’s Quandary: The Perplexity is Metaphysical," on Tuesday October 25, 2005, 9 a.m. - 6:30 p.m., at Columbus School of Law, The Catholic University of America, 3600 John McCormack Rd., N.E., Washington, D.C. 20064. The Columbus School of Law is located adjacent to the Brookland/CUA Stop of Redline of Metrorail. To reserve a seat and for further information about attendance, please contact Mrs. Constantia Dedoulis, Office of Institutes and Special Programs, at (202) 319-6081 or by email at dedoulis@law.edu. Symposium Speakers include: Steven D. Smith, Warren Distinguished Professor of Law, University of San Diego School of Law; and Patrick Brennan, John F. Scarpa Professor in Catholic Studies, Villanova University School of Law, The Honorable Antonin Scalia, Associate Justice, United States Supreme Court, Joseph Vining, Harry Burns Hutchins Professor of law, University of Michigan Law School, and Lloyd L. Weinreb, Dane Professor of Law, Harvard Law School. The Symposium's Co-Organizers are V. Bradley Lewis, School of Philosophy, and William J. Wagner, Columbus School of Law, The Catholic University of America. For further detail, including the symposium schedule, please consult the symposium brochure found in the pdf file attached. For more about the Center for Law, Philosophy and Culture, visit http://law.cua.edu/LPCI/index.cfm.


 
Tuesday Calendar


 
Barnett on Miers Check out Randy Barnett's op/ed "Cronyism" from today's Wall Street Journal. Here is a taste:
    Ms. Miers would be well qualified for a seat on a court of appeals, where she could develop a grasp of all these important issues. She would then have to decide what role text and original meaning should play in constitutional interpretation in the context of close cases and very difficult decisions. The Supreme Court is no place to confront these issues for the very first time.
    Given her lack of experience, does anyone doubt that Ms. Miers's only qualification to be a Supreme Court justice is her close connection to the president? Would the president have ever picked her if she had not been his lawyer, his close confidante, and his adviser? Of course, Hamilton also thought that the existence of Senate confirmation would deter the nomination of cronies:


Monday, October 03, 2005
 
Federalist No. 76 In Number 76 of the Federalist Papers, Alexander Hamilton wrote:
    To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. In addition to this, it would be an efficacious source of stability in the administration. It will readily be comprehended, that a man who had himself the sole disposition of offices, would be governed much more by his private inclinations and interests, than when he was bound to submit the propriety of his choice to the discussion and determination of a different and independent body, and that body an entier branch of the legislature. The possibility of rejection would be a strong motive to care in proposing. The danger to his own reputation, and, in the case of an elective magistrate, to his political existence, from betraying a spirit of favoritism, or an unbecoming pursuit of popularity, to the observation of a body whose opinion would have great weight in forming that of the public, could not fail to operate as a barrier to the one and to the other. He would be both ashamed and afraid to bring forward, for the most distinguished or lucrative stations, candidates who had no other merit than that of coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure.
And thanks to Randy Barnett for reminding me about 76!


 
Miers's Political Contributions The chart is here. As would be expected for a political lawyer, Miers's donated to campaign committee's for Bush, Hutchinson, and her law firm's PAC.


 
Goldstein's Prediction on Miers Over at Scotus Blog, Tom Goldstein predicts:
    The themes of the opposition will be cronyism and inexperience. Democratic questioning at the hearings will be an onslaught of questions about federal constitutional law that Miers in all likelihood won't want to, or won't be able to (because her jobs haven't called on her to study the issues), answer. I have no view on whether she should be confirmed (it's simply too early to say), but will go out on a limb and predict that she will be rejected by the Senate. In my view, Justice O'Connor will still be sitting on the Court on January 1, 2006.


 
Monday Calendar
    Florida State Law: Christopher Peterson, University of Florida.
    Georgetown Environmental Research Workhsop: Professor Jonathan Adler, Case Western University School of Law, "Why States Regulate: The Impact of Federal Action on StateRegulatory Choices"
    Hofstra Law: Edward Hartnett, Seton Hall University School of Law, “Deference, Facial Challenges, and the Comparative Competence of Courts”
    NYU Law: Heather Gerkin.
    UCLA Law: Professor Jared Diamond, UCLA Department of Geography.


 
Harriet Miers The AP Reports:
    President Bush has chosen Harriet Miers, White House counsel and a loyal member of the president's inner circle, to replace retiring Justice Sandra Day O'Connor on the Supreme Court, a senior administration official said Monday.
And here is a bit about her background up to her being named to current position as deputy counsel:
    Ms. Miers [served] as Assistant to the President and Deputy Chief of Staff. Most recently, she served as Assistant to the President and Staff Secretary. Prior to joining the White House staff, Ms. Miers was Co-Managing Partner at Locke Liddell & Sapp, LLP, where she helped manage an over 400-lawyer firm. Previously, she was President of Locke, Purnell, Rain & Harrell, where she worked for 26 years. In 1992, Ms. Miers became the first woman elected Texas State Bar President following her selection in 1985 as the first woman to become President of the Dallas Bar Association. She also served as a Member-At-Large on the Dallas City Council. Ms. Miers received her bachelor's degree and J.D. from Southern Methodist University.
And from the BBC profile:
    White House counsel Harriet Miers has been a trusted and loyal adviser to US President George Bush since the 1980s. The two met in Texas, where she was his personal lawyer, then served on his gubernatorial campaign in 1994 and again during his presidential election of 2000. Officially described as deputy chief of staff for policy, Harriet Miers, 60, has been serving as President Bush's top legal counsel since November 2004.
And here is another story: Quiet but Ambitious White House Counsel Makes Life of Law. And here is the Washington Post story on the announcement.


Sunday, October 02, 2005
 
Legal Theory Calendar
    Monday, October 3
      Florida State Law: Christopher Peterson, University of Florida.
      Georgetown Environmental Research Workhsop: Professor Jonathan Adler, Case Western University School of Law, "Why States Regulate: The Impact of Federal Action on StateRegulatory Choices"
      Hofstra Law: Edward Hartnett, Seton Hall University School of Law, “Deference, Facial Challenges, and the Comparative Competence of Courts”
      NYU Law: Heather Gerkin.
      UCLA Law: Professor Jared Diamond, UCLA Department of Geography.
    Tuesday, October 4 Wednesday, October 5
      Northwestern Law & Economics: Mark Geistfeld, Crystal Eastman Professor of Law, New York University, "Economic Analysis in a Rights-Based Conception of Tort Law"
      Alison LaCroix, Golieb Fellow NYU, "The Authority for Federalism: Madison’s Negative and the Transition from Imperial to Federal Supremacy."
    Thursday, October 6 Friday, October 7


 
Legal Theory Lexicon: The Veil of Ignorance (and the Original Position)
    Introduction This installment in the Legal Theory Lexicon is intended to introduce law students (especially first years) to "the veil of ignorance"--an idea from political philosophy that has had an important influence on legal theory.
    From the Ex Ante Perspective to the Veil of Ignorance Law students quickly learn that law school focuses more about the normative ("Is it a good rule?") than the descriptive ("What is the rule?"). ("Just give me the black letter law!" is a cry in the wilderness!) Once you've learned that lesson, another one quickly follows. (Either it creeps up on you, or perhaps it just hits in one of those glorious a ha moments!) The legal academy (and hopefully your section) is full of different (radically different) perspectives on normative questions about the law. The ex ante/ex post distinction is all about normative perspective. We can look at legal rules ex post (backwards from the present), and ask, "Does this rule provide a fair resolution of this particular controversy?" Of we can look at legal rules ex ante (forward from the present) and ask, "Will the adoption of this rule produce good consequences if applied to similar situations in the future?" The move to the ex ante perspective is the crucial move made by consequentialist legal theories--and in particular, by normative law and economics.
    But there is another important perspective on legal rules that is not captured by the the distinctin between ex post/ex ante perspective. This alternative perspective is frequently associated with the twentieth century's most important political philosopher, the late John Rawls. Rawls is famous for his book, A Theory of Justice, which argued for two principles of justice (the liberty principle and the difference principle) using a striking thought experiment called "the original position." The basic idea is that principles of justice for the basic structure of society are to be chosen by representative parties behind a veil of ignorance. That is, the representatives are deprived of information about the talents, abilities, and socio-economic status of the parties they represent. Rawls saw the original position as an improved and generalized form of the "state of nature" that Hobbes, Rousseau, and Locke used as the choice situation for the adoption of a social contract. Rawls's basic intuition was that the state of nature allowed morally irrelevant factors--e.g. the strategic advantages of the strong and cunning--to determine the content of the social contract. The point of the veil of ignorance is to filter out these factors, yielding a fair choice situation. Whereas classical social contract theory asks, "What would be chosen in a state of nature?," Rawls asks, "What would be chosen in the original position from behind the veil of ignorance?"
    Going Behind the Veil, Part One So how do you use the veil of ignorance when doing legal theory? I want to start with a very simple answer to that question (in Part One), then we will introduce some objections and clarifications, and give a more complicated answer (n Part Two). So here goes.
    "Going behind the veil of ignorance" means performing a thought experiment. You ask yourself: "What legal rule would I choose if I didn't know such and such information." Right away, you see that we must fill in the blank! What information is placed behind the veil of ignorance. Let me give some examples:
    • Position as plaintiff or defendant. In evaluating procedural rules, we might want to ask, "What rules would be chosen by the parties if they didn't know whether they were the plaintiff or the defendant?"
    • Wealth and income. And we might make the veil a bit thicker. My choice of procedural rules might be affected by my knowledge of my wealth and income. (For example, if I am wealthy, I might prefer rules that allow wealth and income to influence the outcome of litigation by making the quality of privately financed representation (e.g. buying a good lawyer) a major determinant of the chance of success.
    So, if we placed these two kinds of knowledge behind the veil of ignorance, the question becomes, "What system of procedural rules would I want if knew that I was a litigant in a civil action, but I didn't know whether I was a plaintiff or a defendant and I didn't know whether I was rich or poor?" Let's get really, really simple. Suppose I have a choice between four legal regimes with respect to the provision of counsel:
      (1) Each side pays for its own lawyer. This is the so-called American rule.
      (2) The government pays for all lawyers. Some socialist systems provide for this rule.
      (3) If the plaintiff wins, the defendant pays for both the plaintiff's and the defendant's lawyer, but if the defendant wins, each side pays for its own lawyer. This is the rule that currently prevails under several statutes, e.g. 28 U.S.C. Section 1983.
      (4) The loser pays for its own lawyer and for the winners lawyer. This is the so-called English rule.
    Which of these rules would you select if you were behind a veil of ignorance and you didn't know whether you were a plaintiff or defendant, rich or poor? Obviously, we would need to know a lot about consequences to answer this question, but already, gentle reader, you are running ahead of me, and drawing certain conclusions. For example, you might be thinking that from behind the veil of ignorance, you might reject the rule that makes the defendant pay if the plaintiff wins but does not make the plaintiff pay if the defendant wins. Why would I accept that rule?, you might say to yourself, if I can could end up as a defendant? Of course, it isn't as simple as that, but you get the idea.
    Objections The veil of ignorance is a controversial tool. So its worth our while to briefly scan some of the objections to its employment:
    • Impoverished conception of the person. Michael Sandel (Government, Harvard) made this objection famous. In Rawls's original position, the veil of ignorance is very thick indeed. The representative parties in the original position are placed behind a very thick veil that excludes knowledge of the actual interests (life plans and conceptions of the good) of the represented citizens. So when the representatives compare various options they do so based on the shares that citizens will receive of the primary goods (basic rights, wealth, income, etc.). In the real world, people have complex plans of life and they often care as much or more about what other people get as they do about their own share of the primary goods. Frankly, this objection misses the boat as applied to Rawls's theory, but it is also completely irrelevant to most uses of the veil of ignorance by legal theorists. That's because when we use the veil to compare legal rules, we almost always employ a much thinner veil of ignorance--taking people more or less as they are, concealing only information about their relative positions with respect to the legal dispute (or general class of legal disputes) at hand.
    • The veil of ignorance produces utilitarian reasoning. This objection is associated with the economist, John Harsanyi and in legal theory, with Louis Kaplow and Steve Shavell. Here is the idea. Behind the veil of ignorance, you don't know who you are, and therefore, you will take the interests of all persons into account. If we assume that behind the veil of ignorance, you will try to maximize expected utility, then persons behind the veil of ignorance will always choose the legal rule that maximizes utility. (The original version of this objection was aimed at Rawls, so substitute "theory of justice" for "legal rule" to get Harsanyi's argument.) Once again, as applied to Rawls this objection has been more or less trounced, but it has even less relevance to the use of the veil in the context of legal theory. Legal theorists rarely need to impose a veil so thick that the parties behind the veil will judge legal policies solely on the basis of "expected utilities." Rather, parties behind the veil can take into account the full range of their interests and concerns, including their interests in being treated fairly.
    • One cannot go behind the veil. One final objection: sometimes it is argued that it is just plain impossible to go behind the veil. How can one shed one's knowledge of one's identity? I have to admit that the sheer silliness of this objection leaves me gasping for breath! Of course, going behind the veil of ignorance doesn't literally mean forgetting who you are! In fact, veil of ignorance thought experiments are usually performed by third parties, e.g. by a legal theorist imagining that they were a member of a certain legally-relevant group. And the kind of thought experiment demanded by the veil is very familiar to ordinary people as a means of moral deliberation. Suppose your eldest daughter is hitting her younger sister, and you say to her, "How would you feel if your sister did that to you?" I'm sure, gentle reader, that are galloping ahead of me. This kind of thought experiment is simply a less formal version of the veil of ignorance. There is nothing fancy or mysterious about going behind the veil of ignorance--it is simply good, old-fashioned counterfactual reasoning applied to moral problems.
    Going Behind the Veil, Part Two Something important can be learned by considering the objections to the veil of ignorance. You can learn a lot more from going behind the veil, if you are very clear about the set up of your thought experiment. Here are some particular questions you might want to answer when you devise a veil of ignorance thought experiment:
    • Who is going behind the veil? The parties to a particular dispute? Or representatives of the general class of persons involved in the generic set of similar disputes? Or all citizens?
    • What information is allowed behind the veil and what information is excluded? Usually, you will want to deprive those behind the veil of knowledge of their position in the particular dispute. (E.g. behind the veil, they will not know whether they are the plaintiff or the defendant, or the victim of the accident versus the person who caused the accident, etc.) But you may want to exclude other information as well. For example, you may want to deprive the parties of information about their wealth, their gender or ethnicity, their skills and abilities, and so forth.
    • When are the parties located in time? At the beginning of the lawsuit? Before the events that triggered the legal dispute had even occurred? At a sort of timeless moment, when we are choosing legal rules to govern our society?
    • How do parties behind the veil of ignorance deliberate? For the most part, legal theorists will want to leave the deliberative processes relatively untouched. Huh? By that I mean that unlike Rawls, legal theorists do not need to specify that the parties pursue some particular goal (maximimizing their share of the primary goods) but can leave the parties with the interests they have before the veil descends. Rawls specified a particular decision rule for the parties--the maximin rule--which required the parties to maximize the share of the primary goods that would be held by the worst-off group. Again, legal theorists may not need this very strong assumption about how the parties deliberate.
    Another Objection And this brings us to yet another objections to Rawls's original position. The objection is simple: what comes out of the original position depends entirely on what goes into its set up. Of course! But by itself, this is no objection. Think of the analogous case of "How would you feel if your sister did that to you?" Of course, asking the question in this way is designed to elicit a certain outcome. But the question is nonetheless morally salient, because the norm of reciprocity that it brings to the fore is itself morally salient. The veil of ignorance is not some magical divining rod that allows us to discover ex nihilo moral intuitions that otherwise would be undiscoverable. The point of the veil is to enable us to think in a clear and rigorous way about what is fair and what isn't. So here is the important point, when you answer the who, what, when, and how questions about the set up of your veil of ignorance thought experiment, you are making explicit to yourself the factors that you think are morally relevant to judgments of fairness. In a sense, it is doing that work that is the whole point of the veil of ignorance. The fact that behind the veil thought experiments also elicit powerful moral intuitions is, in a sense, just a wonderful side benefit.
    Back to the Classroom So if you are a theoretically inclined first-year law student, how can you use the veil of ignorance. Here is my suggestion. At least some of the time, when you are reading and thinking about a morally interesting case--one where you say, this case involves questions about fairness--ask yourself the following three questions: (1) ex post, which rule provides the fair resolution of this controversy; (2) ex ante, which rule would produce the best consequences if applied to similar cases in the future, and (3) from behind the veil of ignorance, which rule would I choose if I didn't know whether I was the plaintiff or the defendant? Sometimes, as you begin to answer that third question, you will find yourself interested by the questions as to who is behind the veil of ignorance, what they know, when they decide, and how they deliberate. Spend a few minutes thinking about those questions, and you may find that you have a deeper understanding of the concerns of principle or fairness that are relevant to the case.
    A cautionary note: The veil of ignorance is controversial. In some classrooms, an attempt to introduce the veil into a classroom discussion will be welcomed; in others, you will draw a withering stare or a dismissive comment. Go with the flow!


Saturday, October 01, 2005
 
Legal Theory Bookworm The Legal Theory Bookworm recommends Playing by the Rules: A Philosophical Examination of Rule-Based Decision Making in Law and in Life by Fred Schauer. Here's a blurb:
    Rules are a central component of such diverse enterprises as law, morality, language, games, religion, etiquette, and family governance, but there is often confusion about what a rule is, and what rules do. Offering a comprehensive philosophical analysis of these questions, this book challenges much of the existing legal, jurisprudential, and philosophical literature, by seeing a significant role for rules, an equally significant role for their stricter operation, and making the case for rules as devices for the allocation of power among decision-makers.
And you might also check out Rules and Reasoning: Essays in Honour of Fred Schauer.


 
Download of the Week The Download of the Week is Bottom-Up Versus Top-Down Lawmaking by Jeff Rachlinski. Here is the abstract:
    Democratic legal systems make law in one of two ways: by abstracting general principles from the decisions made in individual cases (from the bottom up); or by declaring general principles through a centralized authority that are to be applied in individual cases (from the top down). These two processes are, respectively, adjudication and legislation. Each process presents the underlying legal issue from a different cognitive perspective, highlighting and hiding different aspects of a legal problem. The single-case perspective of adjudication can seem cognitively inferior to the broad perspectives that legislatures can incorporate into their decision-making processes, but adjudication also has its advantages. The adjudicative approach, however, has advantages that are less obvious. Notably, the adjudicative process is more likely to facilitate that adoption of simple, elegant rules for decision making. The assessment of which approach is superior is therefore indeterminate. Each has its strengths and weaknesses that make it more or less appropriate for different contexts.
Download it while its hot!