Legal Theory Blog



All the theory that fits!

Home

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

RSS
This page is powered by Blogger. Isn't yours?
Friday, March 31, 2006
 
At Notre Dame Today I'm at the the Roundtable on Steve Smith's Law's Quandary at Notre Dame today. I'm really looking forward to this. If you haven't yet read Steve Smith's book, please do! Smith is one of the best writer's in the legal academy, and Law's Quandary explores some of the deepest issues in legal theory from Smith's unique and thoughtful perspective. Details for the roundtable are in today's calendar--scroll down.


 
Three by Bix Brian Bix has three new papers on SSRN:
    Contract Law Theory:
      This working paper is an early draft of two chapters (and the Preface and Bibliography) from a larger work on Contract Law (for the series, Cambridge Introductions to Philosophy and Law). The working paper covers the theory-focused part of the project. The paper analyzes what it means to have a theory of Contract, and what the criteria should be for evaluating such theories. The paper concludes that general or universal theories of Contract Law - at least those that have been presented to date (including economic theories of contract law, and deontological theories focusing on promising or autonomy) - cannot be justified, and we must seek instead to construct a theory that focuses on a particular legal system (or small group of legal systems), and that emphasizes the variety of principles and approaches within Contract Law, rather than seeking to find or impose a unity that does not exist. In the course of the argument, the paper also touches on the role of history in explaining legal doctrine, voluntariness in contract formation, the moral obligation to keep contracts, and the relationship between rights and remedies.
    Robert Alexy's Radbruch:
      Gustav Radbruch is well known for a “formula” that addresses the conflict of positive law and justice, a formula discussed in the context of the consideration of Nazi laws by the courts in the post-War German Federal Republic, and East German laws in the post-unification German courts. More recently, Robert Alexy has defended a version of Radbruch’s formula, offering arguments for it that are different from and more sophisticated than those that were adduced by Radbruch himself. Alexy also placed Radbruch’s formula within a larger context of conceptual analysis and theories about the nature of law. Both Radbruch and Alexy claim that their positions are incompatible with legal positivism, and therefore count as a rejection (and perhaps, refutation) of it. This paper, presented at a Conference on the work of Gustav Radbruch, looks at Radbruch’s formula and Alexy’s version of it. It focuses not so much on the merit of the Radbruch-Alexy formula, as on its proper characterization, and its appropriate placement within the larger context of legal philosophy. THe particular focus is the methodological question of what Radbruch and Alexy’s formulations - and their strengths and weaknesses - can show us about the nature of theorizing about law.
    Ross on Rights:
      Scandinavian legal realism was a movement of the early and middle decades of the 20th century, which paralleled the American legal realist movement, while presenting a more skeptical challenge to legal reasoning and discourse. The present paper was written for a collection on the work of Alf Ross, one of the most accessible of the Scandinavian realists. Ross's approach to jurisprudence was simultaneously simple and radical: he wanted to rid our thinking about law of all the mystifying references to abstract concepts and metaphysical entities. This paper offers a critical overview of Ross's views on legal rights, while also summarizing the critiques of Ross's view by the legal positivist H.L.A. Hart and the Scandinavian realist Karl Olivecrona.
    I always read Bix!


 
Friday Calendar
    University of Notre Dame: Law's Quandary, A Roundtable:
      8:45 a.m. Introduction (Room 100-104, Center for Continuing Education) 9:00-10:15 a.m. Discussion: Larry Solum paper / Mark Tushnet comment 10:15-10:30 a.m. Break 10:30-11:45 a.m. Discussion: Brian Bix paper / Connie Rosati comment 11:45-12:00 p.m. Break 12:00-1:30 p.m. Lunch at the Morris Inn, in the Donors Room 1:30-2:45 p.m. Discussion: Joseph Vining paper / Patrick Brennan comment 2:45-3:00 p.m. Conclusion 3:00-4:00 p.m. Break 4:00-5:30 p.m. Lecture, “The Always Imminent Death of the Law” in the Law School Courtroom 5:30-6:00 p.m. Break 6:00 - evening Cocktails & Dinner (Eck Visitors’ Center)
    University of Pennsylvania Philosophy: Amy Gutmann, University of Pennsylvania,The Lure of Extremism: Certainty and Single-mindedness
    Villanova Law: Mary-Rose Papandrea, Boston College Law School
    Oxford Institute of European and Comparative Law: French-English Conference: FORUM SHOPPING IN THE EUROPEAN JUDICIAL AREA
    University of Utah Law: PANEL DISCUSSIONs WITH HON. MARGARET H. MARSHALL: Law, Constitutions, and Rights: Local Utah Issues
      State Senator Scott McCoy (Utah Senate District 2), "Gay Rights and the Utah Constitution: Interpreting Amendment 3" Heidi McIntosh (Southern Utah Wilderness Society), "Democracy and the Right to Wilderness: The Utah Experience" Brett Scharffs (Law, Brigham Young University), "We are All a Religious Minority: Implications of Acting as if We Really Believed this Truth" moderated by Dean Robert Newman (College of Humanities, University of Utah)
    University of Maryland School of Law: The Impact of Film on Law, Lawyers, and the Legal System
    Boston College Law School, “Owning Standards”:
      William Bratton Georgetown University Michael Carroll Villanova Lawrence A. Cunningham Boston College A. Michael Froomkin University of Miami Herbert Hovenkamp University of Iowa Scott Kieff Washington University in St. Louis Mark Lemley Stanford University Joseph Liu Boston College Frank Partnoy University of San Diego Pam Samuelson University of California—Berkeley Sidney Shapiro Wake Forest University Greg Vetter University of Houston Alfred Yen Boston College
    Gerogetown Law & Economics: Nancy Staudt, Washington University School of Law (St. Louis)
    Florida State Law: Matthew McCubbins, University of California, San Diego. Joint workshop with FSU Political Science Department.
    Cornell Law: Jeremy A. Blumenthal, "Emotional Paternalism"


Thursday, March 30, 2006
 
Thursday Calendar
    University of Illinois College of Law, Criminal Law Colloquium: Jeannine Bell, Indiana University, Fattening a Frog to Feed a Snake: The (In)Effectiveness of Torture
    University of Illinois Law: Susanna Blumenthal (Assistant Professor of Law at the University of Michigan Law School, "The Default Legal Person"
    Yale Law Economics & Organization Workshop: Professor Gillian Hadfield, USC Law, The Quality of Law in Civil Code and Common Law Regimes: Judicial Incentives, Legal Human Capital and the Evolution of Law
    University of Michigan Law & Economics: Paul Heald, Georgia, The Problem of Social Cost in a Genetically Modified Age
    University of Arizona James E. Rogers College of Law: Professor Margo Bagley, Emory Univ. School of Law; Topic: "Academic Discourse and Proprietary Rights: Putting Patents in Their Proper Place."
    University of Cincinnati Law: Adam Feibelman, Contract, Priority, and Odious Debt
    Northwestern Advanced Topics in Taxation: Kyle D. Logue, Professor of Law, University of Michigan, "Deterring Abusive Tax Avoidance: Optimal Enforcement When the Law is Uncertain"
    University of Utah Law: PANEL DISCUSSIONs WITH HON. MARGARET H. MARSHALL:
      States' Rights, Minority Protections, and the Constitution
        Hon. Christine Durham, (Chief Justice, Utah Supreme Court), "State Constitutions and Affirmative Rights" Leslie Francis (Philosophy, and Law, University of Utah), "Federalism and Human Rights: An Unstable Combination?" Brenda Cossman (Law, University of Toronto), "Judicial Activism, Comparative Constitutionalism, and the Trope of Same Sex Marriage" moderated by Martha Ertman (Law, University of Utah)
      Human Rights, Law, and Constitutionalism: Transnational Resonances
        James Gibson, (Political Science, Washington University), "The Rule of Law as an Impediment to Tyranny?" Erika George (Law, University of Utah), "Constitutional Law Crossing Borders: The Role of International and Foreign Law in U.S. Supreme Court Jurisprudence" Linda Kerber (History, University of Iowa), "Thoughts on Statelessness in American History" Liz Borgwardt (History, University of Utah), ""The Four Freedoms, the Atlantic Charter, and the Reinvigoration of Rights Discourse in the World War II Era" moderated by President Michael Young (University of Utah)
    University of Utah Law: Hon. Margaret H. Marshall, Chief Justice, Massachusetts Supreme Judicial Court, Tension and Intention: The American Constitutions and the Shaping of Democracies Abroad
    Loyola, Los Angeles: Jeff Atik, Professor of Law, Loyola Law School, Embracing Price Discrimination: TRIPS and Parallel Trade in Phamaceuticals
    George Mason Law: Dean Lueck, University of Arizona Department of Economics, The Organization and Behavior of Bureaucracy: The Case of the Wildlife Agency
    Fordham Law: Deborah W. Denno, Professor of Law, Fordham University School of Law, "Mental State Across Ten Centuries: 1235
    Brooklyn Law School: Margaret Brinig, Iowa, Standards for Licensing and Driving
    Boston University Law: Nancy Moore, "Mens Rea Standards in Lawyer Disciplinary Codes"


 
Conference Announcement: Dual Process Theories of Rationality at Cambridge
    IN TWO MINDS: DUAL-PROCESS THEORIES OF REASONING AND RATIONALITY The Open University UK, 5-7 July 2006, at Fitzwilliam College, Cambridge An interdisciplinary conference on reasoning and rationality, organized by the Department of Philosophy at the Open University, in association with the University's Mind, Meaning and Rationality research group. AIMS There has been growing interest recently in so-called 'dual-process' theories of reasoning and rationality. Such theories postulate two distinct systems (or sets of systems) underlying human reasoning -- typically distinguishing an evolutionarily old system ('System 1') that is associative, automatic, unconscious, parallel, and fast, and a more recent, distinctively human system ('System 2') that is rule-based, controlled, conscious, serial, and slow. On some views, System 1 processes are held to be innate and to employ heuristics which evolved to solve specific adaptive problems, whereas System 2 processes are taken to be learned, flexible, and responsive to rational norms. Widespread cognitive illusions, such as the conjunction fallacy, can be ascribed to System 1, while superior individual performances can be explained as the result of System 2 processes overriding System 1 responses. Some writers also suggest that the two systems are associated with different conceptions of rationality. This three-day interdisciplinary conference will for the first time bring together the leading researchers on dual-processes theory in order explore the motivations for different dual-process theories, the connections and contrasts between them, and their implications for various disciplines. The focus will be on theoretical aspects of dual-process theory, rather than purely experimental work, and there will be special emphasis on the philosophical applications of work in this area. SPEAKERS The following people have agreed to speak at the conference: Peter Carruthers (University of Maryland); Nick Chater (University of Warwick); Zoltan Dienes (University of Sussex) Jonathan Evans (University of Plymouth); Keith Frankish (Open University); Vinod Goel (York University, Toronto); Paul Klaczynski (Pennsylvania State University); Matthew Lieberman (UCLA); Mike Oaksford (Birkbeck College London); David Over (University of Sunderland); Richard Samuels (King's College London); Steven Sloman (Brown University); Dan Sperber (Centre National de la Recherche Scientifique, Paris); Keith Stanovich (University of Toronto), and others. REGISTRATION For details of how to register for the conference, please go the conference website at www.open.ac.uk/arts/dualprocess ORGANIZER AND SPONSORS The conference is organized by the Philosophy Department of the Open University in conjunction with the University's Mind, Meaning and Rationality Group. The organizing committee consists of Keith Frankish and Carolyn Price of the Open University and Jonathan Evans of the University of Plymouth. The organizers gratefully acknowledge the generous support of the Mind Association, the Economic and Social Research Council, and the Open University. CONTACT Email: dualprocess@open.ac.uk Website: www.open.ac.uk/arts/dualprocess Mail: Dual-process conference, The Departmental Co-ordinator C/o Department of Philosophy, The Open University, Walton Hall, Milton Keynes, MK7 6AA, UK


Wednesday, March 29, 2006
 
Wednesday Calendar>
    University of Pennsylvania, Seventh Annual Bienniel Seybert Lectures: T.M. Scanlon, The Ethics of Blame
    William Mitchell Law: Robert Delahunty, St. Thomas Law, This call may be monitored: Is NSA wiretappling legal?
    NYU Legal History: Amalia Kessler, Assistant Professor, Stanford Law School, “A Revolution in Commerce: The Parisian Merchant Court and the Rise of Commercial Society in Eighteenth-Century France”


Tuesday, March 28, 2006
 
Opinio Juris Reception at ASIL I'm passing along the following:
    For those of you who will be at the Annual Meeting of the American WSociety of International Law (or just in DC), I wanted to let you know that Opinio Juris and the ASIL will sponsor a reception on Thursday evening, March 30th, from 7:30 to 8:30 in the Longworth Room of the Fairmont Hotel, 2401 M Street, NW (the location of the Annual Meeting). Besides wine and cheese, we will also have an informal discussion on international law and blogging. We expect that bloggers from other law blogs will be joining us as well. We hope this will be a chance for many of us who know each other via the Internet to actually get together in person. Please note that you do not need to be registered for the ASIL Annual Meeting in order to attend this reception. FYI, following is the description from the Annual Meeting program. We hope to see you there. Opinio Juris Wine and Cheese Reception on International Law Blogging Thursday, March 30th, 7:30–8:30 pm Join ASIL staff and the contributors of the international law blog Opinio Juris (www.opiniojuris.org) for an open and informal discussion about current trends in international law blogging. Established in 2005, Opinio Juris now includes six permanent law professor contributors (Chris Borgen, Peggy McGuinness, Julian Ku, Roger Alford, Kevin Heller, and Duncan Hollis) and has over 15,000 visits per month. If you are a blogger, reader, or just curious about this new medium, please join us.


 
Tuesday Calendar
    University of Pennsylvania, Seventh Annual Bienniel Seybert Lectures: T.M. Scanlon, Blame and Freedom
    University of Illinois College of Law: Amy Wax, Diverging Destinies: Economics, Behavior, and the Decline of Marriage
    University of Texas: Érica Gorga (UT) "Knowledge Resources and Their Implications for the Theory of the Firm and Corporate Governance"
    Georgetown Constitutional Law & Theory: Cristina Rodriguez (law, NYU) Language and Participation
    University of North Dakota Law: John Washburn, Convener of the American Non-governmental Organizations Coalition of the International Criminal Court (AMICC), “Genocide and Terrorism Attacked - The International Criminal Court at Work: Darfur, Congo, and Uganda”
    Yale Legal History: MICHAEL KLARMAN, University of Virginia School of Law "Brown and Lawrence (and Goodridge)"
    Vanderbilt Law Faculty Workshop: Katherine Franke, Columbia University Law School, "Subjects of Freed-dom"
    University of Texas Constitutional Studies Luncheon: Cindy Skach (Harvard)
    University of Chicago Law & Economics: Catherine Sharkey, Associate Professor of Law, Columbia University School of Law, Crossing the Punitive-Compensatory Divide
    University College, London, Faculty of Laws, The Constitutional Law Group: ‘Reforming and Reorganising Tribunals’
      Sir Robert Carnwath, Lord Justice of Appeal and Senior President of Tribunals Designate. Genevra Richardson, Professor of Public Law at Kings College London, Member of the Council on Tribunals. Cheryl Saunders, Arthur Goodhart Visiting Professor of Legal Science (University of Cambridge), Professor of Law (University of Melbourne), President of the International Association of Constitutional Law, former President of the Administrative Review Council (Australia)
    Ohio State Law: Alan C. Michaels, Ohio State, Reasonable Victims
    Marquette Law: Laurel Oates, Reading Skills & Law School Performance
    University of Houston Law Center, Third Annual Baker Botts Lecture: The Honorable Arthur J Gajarsa
    Georgetown Law Faculty Workshop: James Forman


 
Book Announcement: The Politics of Precedent by Hansford & Spriggs
    The Politics of Precedent on the U.S. Supreme Court Thomas G. Hansford and James F. Spriggs, II To read the entire book description or the introduction, please visit: http://pup.princeton.edu/titles/8204.html The Politics of Precedent on the U.S. Supreme Court offers an insightful and provocative analysis of the Supreme Court's most important task--shaping the law. Thomas Hansford and James Spriggs analyze a key aspect of legal change: the Court's interpretation or treatment of the precedents it has set in the past. Court decisions do not just resolve immediate disputes; they also set broader precedent. The meaning and scope of a precedent, however, can change significantly as the Court revisits it in future cases. The authors contend that these interpretations are driven by an interaction between policy goals and variations in the legal authoritativeness of precedent. From this premise, they build an explanation of the legal interpretation of precedent that yields novel predictions about the nature and timing of legal change. Cloth | $29.95 / £18.95 | ISBN: 0-691-12354-3


 
Allen on O'Connor & the Right to Die Michael Patrick Allen (Stetson University - College of Law) has posted Justice O'Connor and the "Right to Die": Constitutional Promises Unfulfilled (14 William & Mary Bill of Rights Journal, Vol. 14, No. 000, pp. 1-22, 2006) on SSRN. Here is the abstract:
    After nearly twenty-five years on the bench, Justice Sandra Day O’Connor left the Supreme Court at the end of January 2006. There has been much discussion of Justice O’Connor’s decisions in areas such as federalism, the First Amendment’s Establishment Clause, and affirmative action, among other topics. But very little has been written about her important role in the development of federal constitutional law concerning the “right to die.” This Essay seeks to fill this gap in the literature by exploring Justice O’Connor’s important concurring opinions in Cruzan and Glucksberg. I argue that these opinions created constitutional promises of a sort that remain unfulfilled as Justice O’Connor retires. I also explain why this need not have been the case while highlighting the real world consequences of the failure to live up to the promises.


 
McCluskey on Equality & Elitism Martha T. McCluskey (University at Buffalo - Law School) has posted How Equality Became Elitist: The Cultural Politics of Economics from the Court to the “Nanny Wars” (Seton Hall Law Review, 2006) on SSRN. Here is the abstract:
    In this essay, developed for the 2004 LatCrit conference on Countering Kulturkampf Politics, I challenge the presumption that the term “culture wars” captures controversies over the “social” or “moral” order distinct from the economic order. I argue that “free-market” economic ideology is a key hidden player on the right-wing team in the “culture wars.” In turn, the “culture wars” debate serves free-market economic fundamentalism by deploying “morality” both to mask and to legitimate rising economic inequality and the upward redistribution of resources. By turning class into culture, and culture into class, as journalist Thomas Frank suggests in his book What's the Matter with Kansas?, conservatives can enlist the non-wealthy in the cause of promoting economic inequality. Using examples from both recent Supreme Court rulings and popular media attention to work-and-family conflicts, I analyze the way in which the very division between economic and cultural politics works to undermine progressive and egalitarian visions of law. I compare Justice Scalia's criticism of the Court's involvement in the culture wars (in Lawrence v. Texas and Romer v. Evans) to the reasoning in Plessy v. Ferguson that divides social equality from questions of economic and political rights. In both, the invocation of culture makes the inequality at issue appear too contingent but at the same time too fixed and universal to be amenable to constitutional redress. Turning to popular culture, I analyze how the opposition between economic inequality and gender equality similarly works to undermine both in a 2004 Atlantic Monthly cover story by Caitlin Flanagan, How Serfdom Saved the Women's Movement: Dispatches from the Nanny Wars. Flanagan criticizes feminist advocacy of increased public support for child care as elitist, by presenting gender equality in the workplace as inevitably opposed to economic and racial equality. I show how Flanagan's purported effort to turn feminist attention to economic class, and particularly to the interests of low-waged immigrant domestic workers, actually serves to reinforce and naturalize not just gender inequality but also the economic and racial inequality that she claims to challenge. Flanagan uses the opposition between gender equality and economic equality to make poverty a personal moral matter, obscuring the legal decisions and political structures that promote gender, race and economic inequality.


 
Schor on the Rule of Law Miguel Schor (Suffolk University Law School) has posted The Rule of Law on SSRN. Here is the abstract:
    This essay explores the problem of establishing the rule of law in new democracies. Many of the new democracies in the world have regular elections yet lack the rule of law. Most scholars believe that these new democracies must adopt the “best practices” of Western democracies by reforming judicial systems and strengthening constitutional judicial review. This argument rests on the view that many new democracies lack the rule of law because political actors have the power to trump the legal system and that what is needed is a strengthening of judicial independence. The essay argues that this view is incomplete because it fails to take into account the problems that new democracies have in implementing the rule of law. These polities enjoy the “un-rule of law” rather than the rule of law. The un-rule of law is not an aberration but a logical response to the problem of development. For a poor nation faced with a myriad of social and economic difficulties, the logical response is to give nearly all power to one individual to deal with those problems. There is considerable political support for this concentration of power which is precisely why rule of law reforms often fail. The key to effectuating the rule of law lies not in adopting rules borrowed from developed democracies but in crafting a constituency for a legal system. Courts are the least dangerous branch. They lack power unless other actors are willing to implement judicial decisions. The reason why there is no rule of law in the developing world is that there is little political support for the judicial system. Courts are marginal to the politics of developing nations. Developed nations, on the other hand, have effective mechanisms in place for implementing judicial decisions and political and economic actors, therefore, can use the courts to achieve their aims. In short, establishing the rule of law requires constructing an effective transmission belt from judicial decisions to society. The view of most scholars that the developing world needs to separate law from politics fails to comprehend the processes by which the rule of law becomes effectuated. The rule of law does not rest on the negation of politics but on crafting the proper linkages between courts and the citizenry.


Monday, March 27, 2006
 
Weekend Update On Saturday, the Download of the Week was Presidents, Senates, and Failed Supreme Court Nominations by Keith Whittington and the Legal Theory Bookworm recommended When Courts and Congress Collide: The Struggle for Control of America's Judicial System by Charles Gardner. Sunday's Legal Theory Lexicon was on Fit and Justification and the Legal Theory Calendar rounded up the week's talks, workshops, and conferences.


 
Lando on Utilitarianism & Preferences for Fairness Henrik Lando (Copenhagen Business School - Department of Industrial Economics & Strategy (IVS)) has posted On Utilitarianism as an Objective Ethical Norm, and Preferences for Fairness on SSRN. Here is the abstract:
    The article discusses the claim, advanced e.g. by the philosopher R.G. Hare, that utilitarianism - conceived of as the summing of utilities of all parties affected by a social choice - is an 'objective' standard of fairness or justice that can be derived from simple principles which most people adhere to. I argue that this claim is difficult to reconcile with the notion that people derive utility from seeing reality conform to their standard of fairness or justice. Once standards of fairness or justice are recognized as sources of utility (and not seen only as convictions that can be altered by the logic of utilitarianism), it involves a contradiction to refute such standards on utilitarian grounds. I further briefly defend the view that fairness or justice standards are a source of utility, and argue against the view that including such preferences in social decision making would involve double counting of utilities.


 
Tillman on Ross on the Electoral College Seth Tillman has posted Betwixt Principle and Practice: Tara Ross's Defense of the Electoral College. Reviewing: Enlightened Democracy: The Case for the Electoral College (World Ahead Publishing 2004) on SSRN. Here is the abstract:
    Tara Ross has taken on a herculean task: an exposition of and a defense of the electoral college, in conjunction with a defense of prevailing state statutory and customary presidential election processes, including: first-past-the-post, winner-take-all with regard to appointing electors. It is a valiant, romantic, Don Quixote like effort. But in the end: the windmill still wins. It always does. Her explanation of prevailing practices falls short of the mark. And this I suggest might be a sign that the system is too complex and unwieldy. Ross also defends the electoral college for consistently producing the right winner, notwithstanding 1876 and 2000 where the electoral college winner (under the final tally) had fewer popular votes. But this defense, so common among defenders of the electoral college, fails to recognize that many states historically were rotten boroughs where those with the de jure and de facto vote controlled the whole state's slate of electors. So the if-it-ain't-really-really-broke-let's-not-fix-it-Burkean position is not so clear. Lastly, Ross's defense of the electoral college, rooted in federalism and states' rights concerns seems, to this reviewer at any rate, somewhat untethered from the actual details of the electoral college she seeks to defend. Since Ross published her book. Professor George C. Edwards III (Why the Electoral College Is Bad for America, Yale Press, 2004) and Professor Robert Bennett (Taming the Electoral College, Stanford Press, forthcoming 2006) have written books calling for -- you guessed it -- abandoning or reforming the electoral college. I hope to have a (joint) book review of their work out in short order.


 
Allen on Congress, Schiavo, and Constitutional Order Michael Patrick Allen (Stetson University - College of Law) has posted Congress and Terri Schiavo: A Primer on the American Constitutional Order? (West Virginia Law Review, Vol. 108, pp. 309-360, 2006) on SSRN. Here is the abstract:
    Much of America seemed to be captivated – or horrified – last year by the saga concerning Theresa Marie Schiavo and her approach to the end-of-life. One of the most unusual events in a story filled with them was Congressional passage of Public Law 109-03, An Act for the Relief of the Parents of Theresa Marie Schiavo. The Act, which provided a federal forum to consider the constitutional issues related to the removal of Ms. Schiavo’s feeding tube, was widely derided, a position with which I agree as a policy matter. However, there were also strident assertions that this Congressional action was unconstitutional. These arguments variously contended that the Act violated principles of federalism, separation of powers and/or constitutional protections of individual liberties. This Article considers the claim that the Act violated the structural constitutional principles concerning separation of powers and federalism. I ultimately conclude that it does not. In fact, I assert that understanding why the Act is consistent with the Constitution tells one a great deal about the American constitutional order.


 
Schor on Latin America & Constitutionalism Miguel Schor (Suffolk University Law School) has posted Constitutionalism Through the Looking Glass of Latin America (Texas International Law Journal, Vol. 41, p. 1, 2006) on SSRN. Here is the abstract:
    The Article is part of a larger work in progress dealing with constitutionalism in the Americas. It explores the following question: why did constitutionalism in Latin America take a different path than in the United States? Constitutions were adopted throughout the New World in the wake of independence movements in the late eighteenth and early nineteenth centuries to effectuate republican government. Yet constitutionalism in Latin America led to dictatorship whereas constitutionalism in the United States led to republican government. The conventional answer to this issue is that the constitution was entrenched in the United States because law is independent from politics, whereas constitutions were not entrenched in Latin America because law is subservient to politics. The conventional answer posits that the cure for the uncertain constitutional environment in Latin America lies in reforming the bits and pieces of democratic governance - the executive, the judiciary, the legislature, and state and local government - so that courts have the independence necessary to effectuate constitutional guarantees. This Article argues, however, that the conventional view overly emphasizes the role of independent courts in making constitutions work while ignoring the role of we the people. Constitutions become entrenched against political inroads when citizens are willing to mobilize on behalf of the fundamental rules of the game. The key to successful constitutionalism lies not in the separation of law and politics, as the conventional view posits, but rather in the separation of constitutional politics from ordinary politics. Constitutions become entrenched from politics when the citizens share a belief that constitutional change requires a higher degree of consensus than changing an ordinary law. Such beliefs are constructed when broad social movements arise that seek to effectuate rights. The issue of how constitutions become entrenched is an important one throughout the world as new democracies struggle with the problem of creating order. Democracies cannot establish order until constitutions have deep social moorings. The historical experience of Latin America is particularly instructive as it has a long experience with constitutions that lack citizen support or social moorings and the result was dictatorship, rather than republican government. In short, constitutions must be socially constructed if new democracies are to long endure.


 
Alexander on Academic Freedom Larry Alexander (University of San Diego) has posted Academic Freedom on SSRN. Here is the abstract:
    In this essay I take up the question of who is entitled to "academic freedom." By academic freedom I do not mean whatever first amendment rights professors and students possess with regard to the content of published research, class discussion, and informal remarks. That is a nettlesome topic, to be sure, but it is not mine, primarily because academic freedom is thought to extend to professors at private universities that are beyond the reach of the first amendment. Rather, by academic freedom I mean that freedom from job reprisals that is due academics when functioning as academics. And I argue that only when academics are so functioning is academic freedom their due. On many campuses today there is a sizeable number of academics who are not so functioning in their publications or in their classrooms. Rather, they are engaging in crude political polemics. That is because disciplinary standards have vanished from many departments, especially in the humanities and social sciences, largely due to the confluence of identity politics and crude postmodernism, and abetted by the overwhelming political orthodoxy of the academy. If faculty are not faithful to arguments and evidence, assessed by traditional disciplinary standards, but are engaging in political polemics undisciplined by such standards, then actual politicians have as much claim to control the academy as do these politicized ersatz academics. For academic freedom is not their due.
Alexander is one of the very best. Highly recommended.


 
Monday Calendar


 
Call for Papers: Social Science & Democracy
    CALL FOR PAPERS The Centre for Logic and Philosophy of Science of Ghent University, Belgium, invites papers for a conference: The Social Sciences and Democracy: a philosophy of science perspective. 28th – 30th of September 2006 Ghent, Belgium http://logica.ugent.be/SSD/ Keynote speakers are:
      Patrick Baert (University of Cambridge) James Bohman (Saint Louis University) Steve Fuller (University of Warwick) Harold Kincaid (University of Alabama) Philip Mirowski (University of Notre Dame) Stephen Turner (University of South Florida)
    The conference wants (a) to pay attention to the history of the social sciences and the relation with the development of democracy, the nation-states, the Cold War, globalisation, etc., which might help us to discuss the situation (and science policy) of the social sciences in our democracies today and in the future, and, (b) to analyse whether concepts of democratic theory might be useful in describing the relations between competing theories in the social sciences (e.g., consensus, pluralism, deliberation, minorities, etc.). Other possible topics are: scientific pluralism, explanatory pluralism, methodological pluralism; orthodox vs. heterodox theories; the division of labour in social science, etc. More details on possible topics can be found on the website: http://logica.ugent.be/SSD/ Abstracts should be minimum 150 and maximum 1000 words. Please send a Word- or PDF-file to Jeroen.VanBouwel@UGent.be. Abstracts received will be acknowledged within ten days by email. Authors will be informed on acceptance or rejection as soon as possible and not later than 30 April 2006. Deadline for abstracts is 31 March 2006. On the 27th of September a workshop will be organised in Brussels that may be of interest for the visitors of the conference. More info on: http://logica.ugent.be/ssd/workshop.php


 
Workshop Announcement: Practical Reasons at Leeds
    One-day Workshop on Practical Reasons University of Leeds 11:00 to 7:30 on Saturday, 6th May 2006 Room 37, Baines Wing, Leeds University Programme
      11:00 - 11:30 Registration 11:30 - 1:15 Niko Kolodny (University of California at Berkeley) "Why Be Consistent in One's Intentions?" 1:15 - 2:15 Lunch 2:15 - 4:00 Seiriol Morgan (Leeds University) “Agency Under the Idea of Obligation” 4:00 - 4:30 Coffee break 4:30 - 6:15 Joseph Raz (Oxford University) “Practical Reasons”
    For further information contact Ulrike Heuer School of Philosophy University of Leeds Tel.: 0113 343 1890 Email: u.heuer@leeds.ac.uk


 
Conference Announcement: BSET 2006
    The annual conference of the British Society for Ethical Theory will take place at the University of Southampton, UK, 10-12th July 2006. Registration information is here: http://www.philosophy.soton.ac.uk/events_pages/BSET/BSET%20registration.htm More general info is here: http://www.philosophy.soton.ac.uk/events_pages/BSET/BSET%20main.htm Keynote Speakers: Joseph Raz (University of Oxford and Columbia University) Mark Timmons (University of Arizona) Speakers: Melissa Barry (Williams College): "Realism, Rational Action, and the Humean Theory of Motivation" Elizabeth Brake (University of Calgary): "Marriage, Morality and Institutional Value" Tim Chappell (The Open University) "What is the Integrity Objection an Objection to?" Garrett Cullity (University of Adelaide): "Reasons and Decisions" Jules Holroyd (University of Sheffield): "A Recognitional Conception of Appraisal" Andrew Moore (University of Otago): "Does Ethical Theory Imply a Contradiction?" Philip Nickel (University of California at Irvine): "Trust and Obligation" David Sobel (Bowling Green State University): "The Misunderstood Demandingness Objection" Ariela Tubert (University of North Carolina at Chapel Hill): "Korsgaard: Actions, Reasons, Laws"


Sunday, March 26, 2006
 
Legal Theory Calendar
    Monday, March 27 Tuesday, March 28
      University of Pennsylvania, Seventh Annual Bienniel Seybert Lectures: T.M. Scanlon, Blame and Freedom
      University of Illinois College of Law: Amy Wax, Diverging Destinies: Economics, Behavior, and the Decline of Marriage
      University of Texas: Érica Gorga (UT) "Knowledge Resources and Their Implications for the Theory of the Firm and Corporate Governance"
      Georgetown Constitutional Law & Theory: Cristina Rodriguez (law, NYU) Language and Participation
      University of North Dakota Law: John Washburn, Convener of the American Non-governmental Organizations Coalition of the International Criminal Court (AMICC), “Genocide and Terrorism Attacked - The International Criminal Court at Work: Darfur, Congo, and Uganda”
      Yale Legal History: MICHAEL KLARMAN, University of Virginia School of Law "Brown and Lawrence (and Goodridge)"
      Vanderbilt Law Faculty Workshop: Katherine Franke, Columbia University Law School, "Subjects of Freed-dom"
      University of Texas Constitutional Studies Luncheon: Cindy Skach (Harvard)
      University of Chicago Law & Economics: Catherine Sharkey, Associate Professor of Law, Columbia University School of Law, Crossing the Punitive-Compensatory Divide
      University College, London, Faculty of Laws, The Constitutional Law Group: ‘Reforming and Reorganising Tribunals’
        Sir Robert Carnwath, Lord Justice of Appeal and Senior President of Tribunals Designate. Genevra Richardson, Professor of Public Law at Kings College London, Member of the Council on Tribunals. Cheryl Saunders, Arthur Goodhart Visiting Professor of Legal Science (University of Cambridge), Professor of Law (University of Melbourne), President of the International Association of Constitutional Law, former President of the Administrative Review Council (Australia)
      Ohio State Law: Alan C. Michaels, Ohio State, Reasonable Victims
      Marquette Law: Laurel Oates, Reading Skills & Law School Performance
      University of Houston Law Center, Third Annual Baker Botts Lecture: The Honorable Arthur J Gajarsa
      Georgetown Law Faculty Workshop: James Forman
    Wednesday, March 29
      University of Pennsylvania, Seventh Annual Bienniel Seybert Lectures: T.M. Scanlon, The Ethics of Blame
      William Mitchell Law: Robert Delahunty, St. Thomas Law, This call may be monitored: Is NSA wiretappling legal?
      NYU Legal History: Amalia Kessler, Assistant Professor, Stanford Law School, “A Revolution in Commerce: The Parisian Merchant Court and the Rise of Commercial Society in Eighteenth-Century France”
    Thursday, March 30
      University of Illinois College of Law, Criminal Law Colloquium: Jeannine Bell, Indiana University, Fattening a Frog to Feed a Snake: The (In)Effectiveness of Torture
      University of Illinois Law: Susanna Blumenthal (Assistant Professor of Law at the University of Michigan Law School, "The Default Legal Person"
      Yale Law Economics & Organization Workshop: Professor Gillian Hadfield, USC Law, The Quality of Law in Civil Code and Common Law Regimes: Judicial Incentives, Legal Human Capital and the Evolution of Law
      University of Michigan Law & Economics: Paul Heald, Georgia, The Problem of Social Cost in a Genetically Modified Age
      University of Arizona James E. Rogers College of Law: Professor Margo Bagley, Emory Univ. School of Law; Topic: "Academic Discourse and Proprietary Rights: Putting Patents in Their Proper Place."
      University of Cincinnati Law: Adam Feibelman, Contract, Priority, and Odious Debt
      Northwestern Advanced Topics in Taxation: Kyle D. Logue, Professor of Law, University of Michigan, "Deterring Abusive Tax Avoidance: Optimal Enforcement When the Law is Uncertain"
      University of Utah Law: PANEL DISCUSSIONs WITH HON. MARGARET H. MARSHALL:
        States' Rights, Minority Protections, and the Constitution
          Hon. Christine Durham, (Chief Justice, Utah Supreme Court), "State Constitutions and Affirmative Rights" Leslie Francis (Philosophy, and Law, University of Utah), "Federalism and Human Rights: An Unstable Combination?" Brenda Cossman (Law, University of Toronto), "Judicial Activism, Comparative Constitutionalism, and the Trope of Same Sex Marriage" moderated by Martha Ertman (Law, University of Utah)
        Human Rights, Law, and Constitutionalism: Transnational Resonances
          James Gibson, (Political Science, Washington University), "The Rule of Law as an Impediment to Tyranny?" Erika George (Law, University of Utah), "Constitutional Law Crossing Borders: The Role of International and Foreign Law in U.S. Supreme Court Jurisprudence" Linda Kerber (History, University of Iowa), "Thoughts on Statelessness in American History" Liz Borgwardt (History, University of Utah), ""The Four Freedoms, the Atlantic Charter, and the Reinvigoration of Rights Discourse in the World War II Era" moderated by President Michael Young (University of Utah)
      University of Utah Law: Hon. Margaret H. Marshall, Chief Justice, Massachusetts Supreme Judicial Court, Tension and Intention: The American Constitutions and the Shaping of Democracies Abroad
      Loyola, Los Angeles: Jeff Atik, Professor of Law, Loyola Law School, Embracing Price Discrimination: TRIPS and Parallel Trade in Phamaceuticals
      George Mason Law: Dean Lueck, University of Arizona Department of Economics, The Organization and Behavior of Bureaucracy: The Case of the Wildlife Agency
      Fordham Law: Deborah W. Denno, Professor of Law, Fordham University School of Law, "Mental State Across Ten Centuries: 1235
      Brooklyn Law School: Margaret Brinig, Iowa, Standards for Licensing and Driving
      Boston University Law: Nancy Moore, "Mens Rea Standards in Lawyer Disciplinary Codes"
    Friday, March 31
      University of Notre Dame: Law's Quandary, A Roundtable:
        8:45 a.m. Introduction (Room 100-104, Center for Continuing Education) 9:00-10:15 a.m. Discussion: Larry Solum paper / Mark Tushnet comment 10:15-10:30 a.m. Break 10:30-11:45 a.m. Discussion: Brian Bix paper / Connie Rosati comment 11:45-12:00 p.m. Break 12:00-1:30 p.m. Lunch at the Morris Inn, in the Donors Room 1:30-2:45 p.m. Discussion: Joseph Vining paper / Patrick Brennan comment 2:45-3:00 p.m. Conclusion 3:00-4:00 p.m. Break 4:00-5:30 p.m. Lecture, “The Always Imminent Death of the Law” in the Law School Courtroom 5:30-6:00 p.m. Break 6:00 - evening Cocktails & Dinner (Eck Visitors’ Center)
      University of Pennsylvania Philosophy: Amy Gutmann, University of Pennsylvania,The Lure of Extremism: Certainty and Single-mindedness
      Villanova Law: Mary-Rose Papandrea, Boston College Law School
      Oxford Institute of European and Comparative Law: French-English Conference: FORUM SHOPPING IN THE EUROPEAN JUDICIAL AREA
      University of Utah Law: PANEL DISCUSSIONs WITH HON. MARGARET H. MARSHALL: Law, Constitutions, and Rights: Local Utah Issues
        State Senator Scott McCoy (Utah Senate District 2), "Gay Rights and the Utah Constitution: Interpreting Amendment 3" Heidi McIntosh (Southern Utah Wilderness Society), "Democracy and the Right to Wilderness: The Utah Experience" Brett Scharffs (Law, Brigham Young University), "We are All a Religious Minority: Implications of Acting as if We Really Believed this Truth" moderated by Dean Robert Newman (College of Humanities, University of Utah)
      University of Maryland School of Law: The Impact of Film on Law, Lawyers, and the Legal System Boston College Law School, “Owning Standards”:
        William Bratton Georgetown University Michael Carroll Villanova Lawrence A. Cunningham Boston College A. Michael Froomkin University of Miami Herbert Hovenkamp University of Iowa Scott Kieff Washington University in St. Louis Mark Lemley Stanford University Joseph Liu Boston College Frank Partnoy University of San Diego Pam Samuelson University of California—Berkeley Sidney Shapiro Wake Forest University Greg Vetter University of Houston Alfred Yen Boston College
      Gerogetown Law & Economics: Nancy Staudt, Washington University School of Law (St. Louis)
      Florida State Law: Matthew McCubbins, University of California, San Diego. Joint workshop with FSU Political Science Department.
      Cornell Law: Jeremy A. Blumenthal, "Emotional Paternalism"


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


Saturday, March 25, 2006
 
Legal Theory Bookworm The Legal Theory Bookworm recommends When Courts and Congress Collide: The Struggle for Control of America's Judicial System by Charles Gardner Geyh. Here's a blurb:
    With Congress threatening to "go nuclear" over judicial appointments, and lawmakers accusing judges of being "arrogant, out of control, and unaccountable," many pundits see a dim future for the autonomy of America's courts. But do we really understand the balance between judicial independence and Congress's desire to limit judicial reach? Charles Geyh's When Courts and Congress Collide is the most sweeping study of this question to date, and an unprecedented analysis of the relationship between Congress and our federal courts. Efforts to check the power of the courts have come and gone throughout American history, from the Jeffersonian Congress's struggle to undo the work of the Federalists, to FDR's campaign to pack the Supreme Court, to the epic Senate battles over the Bork and Thomas nominations. If legislators were solely concerned with curbing the courts, Geyh suggests, they would use direct means, such as impeaching uncooperative judges, gerrymandering their jurisdictions, stripping the bench's oversight powers, or slashing judicial budgets. Yet, while Congress has long been willing to influence judicial decision-making indirectly by blocking the appointments of ideologically unacceptable nominees, it has, with only rare exceptions, resisted employing more direct methods of control. When Courts and Congress Collide is the first work to demonstrate that this balance is governed by a "dynamic equilibrium": a constant give-and-take between Congress's desire to control the judiciary and its respect for historical norms of judicial independence. It is this dynamic equilibrium, Geyh says, rather than what the Supreme Court or the Constitution says about the separation of powers, that defines the limits of the judiciary's independence. When Courts and Congress Collide is a groundbreaking work, requiring all of us to consider whether we are on the verge of radically disrupting our historic balance of governance.


 
Download of the Week The Dowload of the Week is Presidents, Senates, and Failed Supreme Court Nominations by Keith Whittington. Here is the abstract:
    With three controversial nominations to the Supreme Court just behind us, and the prospect of more in the near future, this is an opportune time to place the politics of Supreme Court appointments in broader perspective. Ultimately, what presidents care about is getting their nominees on the Court, and therefore this article manuscript focuses on those cases in which the Senate rejected the Supreme Court nomination of the president. The article examines what has accounted for these failed nominations and how the politics of appointment have changed over time. In addition to shedding light on our historical experience with Supreme Court appointments, it concludes that recent decades mark a reversal of earlier tendencies. The Senate is now far more focused on ideological disagreements and jurisprudential issues than it has traditionally been, and as a consequence nominations face far greater risks now during divided government than during unified government (the opposite pattern once prevailed). The central lesson of the defeat of Robert Bork is that it matters who controls the Senate, and thus it is neither surprising nor predictive that Roberts and Alito were able to be confirmed in a Republican Senate.
Download it while its hot!


 
Saturday Calendar
    Fordham Law: CENTENNIAL CONFERENCE: A New Constitutional Order?
      VI. Subnational Norms in the New Constitutional Order: Federalism (9:30 a.m.-10:45 a.m.) Richard Thompson Ford, Stanford Law School Rick Hills, University of Michigan Law School Kathleen Sullivan, Stanford Law School Moderator: Abner S. Greene, Fordham University School of Law VII. Subnational Norms in the New Constitutional Order: Civil Society and Families (11:00 a.m.-12:15 p.m.) William Galston, University of Maryland Department of Government Stephen Macedo, Princeton University Center for Human Values Linda C. McClain, Hofstra University School of Law (visiting at Pennsylvania) Moderator: Dorothy Roberts, Northwestern University School of Law (visiting at Fordham) Lunch (12:15 p.m.-2:00 p.m.) VIII. The International Migration of Constitutional Norms in the New World Order (2:00-3:30) Noah Feldman, New York University School of Law Martin Flaherty, Fordham University School of Law Vicki Jackson, Georgetown University Law Center Alec Stone-Sweet, Yale Law School Moderator: Catherine Powell, Fordham University School of Law
    Yale Law School: The Most Dangerous Branch? Mayors, Governors, Presidents and the Rule of Law: A Symposium on Executive Power:
      9:30-10:15 Breakfast 10:30-12:00 “Energy in the Executive:” The Power of Unitary Leadership The framers envisioned a proactive executive branch with a range of exclusive powers. What does that executive look like today? Is there a space between the lawless vigilante and legislative supremacy? Elena Kagan, Dean, Harvard Law School Paula Monopoli, University of Maryland Law School Richard Schragger, University of Virginia Law School John Yoo, U.C. Berkeley Boalt Hall School of Law, & Jide Nzelibe, Northwestern Law School Moderator: Heather Gerken, Harvard Law School 12:15-1:45 Lunch 2:00-3:30 Rewriting Article II for the Modern Presidency President Bush’s tenure in office has thrust presidential power into the spotlight. Can the Constitution be rewritten to provide a more clear standard of review? Or does its vagueness give us room to remake the branch as times demand? Jack Goldsmith & John Manning, Harvard Law School Jennifer Martinez, Stanford Law School Neal Katyal, Georgetown University Law Center Moderator: Sai Prakash, University of San Diego Law School


Friday, March 24, 2006
 
Whttington on Failed Supreme Court Nominations Keith Whttington (Princeton) has posted Presidents, Senates, and Failed Supreme Court Nominations on SSRN. Here is the abstract:
    With three controversial nominations to the Supreme Court just behind us, and the prospect of more in the near future, this is an opportune time to place the politics of Supreme Court appointments in broader perspective. Ultimately, what presidents care about is getting their nominees on the Court, and therefore this article manuscript focuses on those cases in which the Senate rejected the Supreme Court nomination of the president. The article examines what has accounted for these failed nominations and how the politics of appointment have changed over time. In addition to shedding light on our historical experience with Supreme Court appointments, it concludes that recent decades mark a reversal of earlier tendencies. The Senate is now far more focused on ideological disagreements and jurisprudential issues than it has traditionally been, and as a consequence nominations face far greater risks now during divided government than during unified government (the opposite pattern once prevailed). The central lesson of the defeat of Robert Bork is that it matters who controls the Senate, and thus it is neither surprising nor predictive that Roberts and Alito were able to be confirmed in a Republican Senate.
I'm a huge fan of Whittington's work. Highly recommended!


 
Friday Calendar I left off a very important conference at Fordham--so this is a revised version of the Calendar!
    Fordham Law: CENTENNIAL CONFERENCE: A New Constitutional Order?
      I. The Rehnquist Court and Beyond: Revolution, Counter-Revolution, or Mere Chastening of Constitutional Aspirations? (9:30 a.m.-11:00 a.m.) Jack Balkin, Yale Law School Sanford Levinson, University of Texas School of Law Robert Post, Yale Law School Reva Siegel, Yale Law School Jed Rubenfeld, Yale Law School Michael Seidman, Georgetown University Law Center Moderator: James E. Fleming, Fordham University School of Law II. Keynote Address (11:15 a.m.-12:30 p.m.) Terrorism and the Emergency Constitution: Beyond the Myth of Rediscovery Bruce Ackerman, Yale Law School Lunch (12:30 p.m.-2:00 p.m.) III. The Emergency Constitution in the Post-September 11 World Order (2:00 p.m.-3:30 p.m.) Philip Bobbitt, University of Texas School of Law Martha Minow, Harvard Law School Kim Lane Scheppele, Princeton University Program in Law and Public Affairs Adrian Vermeule, University of Chicago Law School Moderator: Thomas Lee, Fordham University School of Law (visiting at Columbia) IV. Constitutions in Exile: Is the Constitution a Charter of Negative Liberties or a Charter of Positive Benefits? (3:45 p.m.-5:00 p.m.) Sotirios A. Barber, University of Notre Dame Department of Government Randy E. Barnett, Boston University School of Law Lawrence G. Sager, University of Texas School of Law Moderator: Eduardo Penalver, Fordham University School of Law (visiting at Yale) V. Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (5:15 p.m.-6:30 p.m.) Mark A. Graber, University of Maryland Department of Government and School of Law Ran Hirschl, University of Toronto Department of Political Science and Faculty of Law Mark Tushnet, Georgetown University Law Center Moderator: Tracy Higgins, Fordham University School of Law Reception (6:30 p.m.)
    University of Texas Law: Louis Fisher, Special Assistant to Law Librarian- Library of Congress, "35 Years of Research for Congress: How CRS Operates"
    University of Texas Law, Leon Greeen Lecture: Hillel Steiner (Manchester) "A Famous Conflict" (For the version of this paper that Steiner delivered at University College recently, follow this link.
    University of North Dakota Law: Inaugural Distinguished Scholar-in-Residence, Professor Carol Gilligan (NYU), "From In a Different Voice to The Birth of Pleasure: An Intellectual Journey”
    Notre Dame Law: Professor Ellen D. Katz, The University of Michigan Law School
    Suffolk Law: STEM CELLS: 2006 SCIENCE, LAW & BUSINESS, Annual Intellectual Property Law Conference
    Georgetown Law & Economics: Ronen Avraham, Northwestern University School of Law
    Georgetown Law, Conference on Economic and Social Inequality:The Role of Race in Law, Markets, and Social Structures. Florida State Law: Roberto Romano, Yale Law School
    Yale Law School: The Most Dangerous Branch? Mayors, Governors, Presidents and the Rule of Law: A Symposium on Executive Power:
      12:30-2:00 Registration and box lunch for participants 2:00-2:15 Introductory Remarks: Dean Harold Koh 2:15-3:45 The Twenty-First Century Executive: Case Studies A survey of some the areas where executives have asserted new authority, or taken over policymaking that once belonged to courts and legislatures. David Barron, Harvard Law School Julian Ku, Hofstra Law School Jonathan Macey, Yale Law School William Marshall, University of North Carolina Law School Moderator: Todd Peterson, George Washington University Law School 4:00-5:30 The Efficient Executive Executives and their administrations have the advantage of accountability and expertise when they make policy, but does this efficiency come at a cost? What do Chevron and corporate law say about the way courts should approach administrative powers? Steven Calabresi, Northwestern Law School Ed Whelan Cass Sunstein, University of Chicago Law School K.A.D. Camara, Stanford University, & Paul Gowder, Civil Rights Lawyer Moderator: William Eskridge, Yale Law School


 
Mossoff on Patents & Natural Rights Adam Mossoff (Michigan State) has posted Who Cares what Thomas Jefferson Thought about Patents: Reevaluating the Patent Privilege in Historical Context on SSRN. Here is the abstract:
    The conventional wisdom holds that American patents have always been grants of special monopoly privileges lacking any justification in natural rights philosophy, a belief based in oft-repeated citations to Thomas Jefferson's writings on patents. Using privilege as a fulcrum in its analysis, this Article reveals that the history of early American patent law has been widely misunderstood and misused. In canvassing primary historical sources, including political and legal treatises, Founders' writings, congressional reports, and long-forgotten court decisions, it explains how patent rights were defined and enforced under the social contract doctrine and labor theory of property of natural rights philosophy. In the antebellum years, patents were civil rights securing important property rights - what natural-rights-influenced politicians and jurists called privileges. This intellectual history situates the Copyright and Patent Clause, the early patent statutes, and nineteenth-century patent case law within their appropriate political and constitutional context. In so doing, it resolves many conundrums arising from misinterpretation of the historical patent privilege. Doctrinally, it explains why Congress and courts in the early nineteenth century expansively and liberally construed patent rights, and did not limit patents in the same way they narrowly construed commercial monopoly grants, such as bridge franchises. It also exposes the near-universal misuse of history by lawyers and scholars today, who rely on Jefferson as undisputed historical authority in critiquing expansive intellectual property protections today. Ultimately, the conventional wisdom is a historical myth that obscures the early development of American patent law under the meaningful guidance of natural rights philosophy.


 
Two by Moss Scott Moss (Marquette) has posted two papers on SSRN:
    Against 'Academic Deference': How Recent Developments in Employment Discrimination Law Undercut an Already Dubious Doctrine:
      When the defendant in an employment case is a college or other institution of higher education, the plaintiff usually will face an “academic deference” argument. Citing the importance of their “academic freedom,” defendants and sympathetic courts have asserted that federal courts should decline to “invade” higher education with “federal court supervision.” Whether or not courts cite the “academic deference” doctrine expressly, they certainly have proven hostile to professors’ claims of discrimination, dismissing as a matter of law claims that seemed quite strong, or at least solid enough to allow a factfinder to rule either way. Indeed, empirical evidence shows that faculty plaintiffs rarely prevail in civil rights cases. The bulk of the “academic deference” precedents are gender discrimination cases, which illustrates the extent to which the doctrine has been a significant barrier to the use of Title VII to redress the gender segregation that has proven so persistent in academia and various professions. This Article argues that courts should reject the entire idea of a special “academic” deference to employment decisions challenged as discriminatory. The legislative history shows that Congress did not intend any special deference for academia, and there is no need for it, because courts can and do look for discrimination in other similar fields of employment. In many ways, there is less justification for deferring to academic than other employers, both for policy reasons (because of the importance of diversity in education) and doctrinal reasons (because of academic employers’ tendency to defend denials of tenure with little evidence other than self-interested testimony as to entirely subjective reasons). Courts’ frequent refusals to scrutinize academic employment decisions for discrimination risks leaving continued gender segregation and inequality in a large and important sector of both the labor market and our educational system. This risk of unredressed inequities is particularly troubling because academia is the sort of labor market in which social norms are unlikely to be effective at preventing discrimination. Social norms can be powerful protectors of fairness in other contexts, sometimes obviating the need for formal, legal protections. Yet academia has many characteristics making it the sort of labor markets in which social norms are likely to be weaker, unable to prevent misdeeds such as discriminatory employment decisions. While the “academic deference” doctrine has drawn criticism for quite some time, this Article adds an additional voice to the chorus by analyzing various unrelated strands of employment discrimination case law, mostly of recent vintage, that severely undercut the doctrine as a basis for granting employers summary judgment or judgment as a matter of law (“JMOL”) - the procedural devices that doom most academic plaintiffs’ claims. Specifically, courts have stressed that, under the leading recent Supreme Court precedent on proof of employment discrimination, summary judgment and JMOL are inappropriate where employers’ defenses are vague and subjective or where employers’ defenses rely too heavily on the testimony of interested parties. Thus, even if the notion of academic deference once had merit, it is in increasing tension with other, more firmly grounded employment discrimination principles. This Article also argues that even to the extent that courts accept the doctrine of academic deference, the rationale for such deference is limited to the context of promotion-to-tenure. Accordingly, courts applying the doctrine to failure-to-hire cases are applying precedent sloppily, extending a doctrine beyond its original rationale. In short, the penchant of many courts to dismiss employment discrimination claims based on “academic deference” is misguided in a host of ways. It threatens to leave academia an island of civil rights lawlessness, essentially exempt from Title VII - a dangerous outcome for a society in which there is such gender inequity in academia and such a consensus that equal educational opportunity is the path to social progress and personal success.
    Where There's At-Will, There are Many Ways: Redressing the Increasing Incoherence of Employment At-Will:
      Employment at-will, the doctrine that employees have no legal remedy for unfair terminations because they hold their jobs at the will of the employer, has become mired in incoherence. State courts praise the common law rule as essential to free enterprise and central to the free market, but in recent years they have riddled the rule with increasing exceptions, allowing employee claims for whistleblowing, fraud, etc. Yet states have neither rejected employment at-will nor shown any consistency in recognizing exceptions. Strikingly, states cite the same rationales to adopt and reject opposite exceptions, as a case study of two states illustrates: one state accepts exception X to protect employees while rejecting exception Y to maintain employment at-will; yet on the same rationales, the other accepts exception Y while rejecting X. This dissonance, undiscussed among legal scholars, has broader implications as to legal doctrine evolution. Inconsistent reliance upon a doctrine betrays judicial ambivalence: discomfort adhering to the rigid rule; discomfort rejecting it; and inability to find an alternative. This is a recurring phenomenon in constitutional law as well, most notably in the Supreme Court's recent treatment of abortion rights and governmental involvement in religion; in both fields, the Court has professed adherence to strict precedents while simultaneously eviscerating them. These examples show that what is happening to employment at-will is not just quirky decision-making, but a common phenomenon in a doctrine's evolution: when courts apply an established rule inconsistently, that may herald a decline, but not necessarily an imminent rejection, of that doctrine; and if courts handle the decline badly, the outcome can be doctrinal chaos. This Article suggests how courts can retain employment at-will while also lessening the doctrinal incoherence. Courts can recognize a range of employee claims based on a two-part theoretical structure: a broad economic conception of the public interest, plus the limits of social norm theory. Recent scholarship argues that social norms are powerful protectors of fairness that make employment lawsuits unnecessary; but this Article's analysis of how social norms operate distinguishes settings, like employment, where norms are too weak to substitute for lawsuits, leaving a need for a range of enforceable rights.


Thursday, March 23, 2006
 
Leiter & Weisberg on Evolutionary Psychology and Law Brian Leiter & Michael Weisberg have posted Why Evolutionary Biology is (so far) Irrelevant to Law on SSRN. Here is the abstract:
    Evolutionary biology—or, more precisely, two (purported) applications of Darwin’s theory of evolution by natural selection, namely, evolutionary psychology and what has been called “human behavioral biology”—is on the cusp of becoming the new rage among legal scholars looking for “interdisciplinary” insights into the law. We argue that as the actual science stands today, evolutionary biology offers nothing to help with questions about legal regulation of behavior. Only systematic misrepresentations or lack of understanding of the relevant biology, together with far-reaching analytical and philosophical confusions, have led anyone to think otherwise. Evolutionary accounts are etiological accounts of how a trait evolved. We argue that an account of causal etiology could be relevant to law if (1) the account of causal etiology is scientifically well-confirmed, and (2) there is an explanation of how the well-confirmed etiology bears on questions of development (what we call “the Environmental Gap Objection”). We then show that the accounts of causal etiology that might be relevant are not remotely well-confirmed by scientific standards. We argue, in particular, that (a) evolutionary psychology is not entitled to assume selectionist accounts of human behaviors, (b) the assumptions necessary for the selectionist accounts to be true are not warranted by standard criteria for theory choice, , and (c) only confusions about levels of explanation of human behavior create the appearance that understanding the biology of behavior is important. We also note that no response to the Environmental Gap Objection has been proferred. In the concluding section of the article, we turn directly to the work of Professor Owen Jones, a leading proponent of the relevance of evolutionary biology to law, and show that he does not come to terms with any of the fundamental problems identified in this article.
This is an important contribution to what should be one of the most important debates in contemporary legal theory. Highly recommended


 
Thursday Calendar
    Brooklyn Law School: Ken Simons (Boston University), Is Knowledge a Culpable State of Mind? I always learn from Simons's careful and illuminating papers.
    University of Texas Tom Sealy Endowed Lecture: Louis Fisher, Special Assistant to Law Librarian- Library of Congress, "State of War After 9/11"
    University of Texas Colloquium on Constitutional and Legal Theory: Hillel Steiner (Manchester), Freedom & Bivalence & Quantification of Freedom Steiner is a deeply interesting and articulate thinker.
    University of Michigan Law & Economics: Wesley Cohen, Duke, John Walsh, Illinois-Chicago, The View from the Bench: The Patenting and Licensing of Research Tools and Biomedical Innovation
    University of Arizona Law: Professor Jeff Rachlinski, Cornell Law School, “Judicial Psychology.”
    UCLA Tax Policy & Public Finance Colloquium: Bob Peroni, University of Texas Law School, Exploring the Contours of a Proposed U.S. Exemption (Territorial Tax System)
    NYU Colloquium on Tax Policy & Public Finance: Howell Jackson, Harvard Law School, "Counting the Ways: The Structure of Federal Spending."
    Institut Français (London): Susan James (Birkbeck), Spinoza: Politics and Imagination
    UC Berkeley, Kadish Center: Philip Pettit, William Nelson Cromwell Professor of Politics, Princeton University, RESPONSIBILITY INCORPORATED Pettit is a marvel!
    Georgetown Intellectual Property: J.H. Reichman, Bunyan S. Womble Professor of Law, Duke University Law School, Treating Clinical Trials as a Public Good: The Most Logical Reform
    George Mason Law: : Moin Yahya, University of Alberta School of Law and former Levy Fellow; Do You Need an Economic Theory for an Antitrust Complaint?
    Fordham Law: Catherine Sharkey, Associate Professor of Law, Columbia University School of Law, "Trespass in an Electronic A[ge]
    Boston University: Wendy Gordon.


Wednesday, March 22, 2006
 
Help on the Entry Level Hiring Reports: Rumors, Incomplete Reports, and No-Hire Reports Version 3.1 of the Entry-Level Hiring Report is up. If you have complete information on an entry-level hire, that's wonderful, but in order to complete the report, it is very helpful to receive incomplete information. Also, if your school is not making an entry-level hire, please let me know. Reports can be emailed to lsolum@gmail.com.
And thank you to everyone who has provided information so far!


 
Mattioli on Procedural Fair Use Michael R. Mattioli (University of Pennsylvania - School of Law) has posted Procedural Fair Use on SSRN. Here is the abstract:
    This article explores the advantages of opt-out plans, and identifies a critical shortcoming in Copyright's doctrine of Fair Use. The discussion is fueled by a current controversy: In December of 2004, Google, Inc. announced its plan to digitally scan thousands of copyrighted books as part of a massive new digital indexing service. Hedging against possible litigation, Google provided a free and easy opt-out procedure for authors who didn't want their books scanned. Despite this measure, two major authors' groups have sued Google, claiming the opt-out plan imposes an unfair burden. This article explores the fairness of established opt-outs in contract law, privacy law, and class action rules. Further, the discussion explores how Copyright already places similar burdens upon authors. Ultimately, these lessons are applied to the Google Book Search problem, and an important new Fair Use consideration is identified.


 
Levinson on Jury Priming Justin D Levinson (University of Hawaii at Manoa - William S. Richardson School of Law) has posted Suppressing the Expression of Community Values in Juries: How Legal Priming Systematically Alters the Way People Think (University of Cincinnati Law Review, Vol. 73, pp. 1059-1079, 2005) on SSRN. Here is the abstract:
    Legal systems that rely on juries assume that juror decision-making imports an accurate representation of community values and norms into legal decisions. Yet, rather than successfully importing community values into legal decision-making, the notion of "the law" itself may act as a unique cultural construct that primes jurors to unconsciously think in terms of shared implicit constructs of "law", "juror" and "justice" when in the legal setting. The author examined how lay decision-making changed in the United States and in China when dependent variables were framed as questions of legal impact. Results indicated that participants in both countries scored identical questions differently when questions were primed as legal questions, but that participants from each country were affected in opposite directions by the legal prime. American participants in the legal prime category made more culpable criminal judgments than participants in the non-legal domain, indicating that the legal context heightens culpability judgments for Americans. In contrast, Chinese participants in the legal prime category made less culpable judgments than in the non-legal domain, demonstrating that Chinese are more lenient in the legal setting than in lay judgments. The results raise the question of whether community values are truly reflected in jury decision making, or whether shared, primed notions of law and justice unconsciously overcome the influence of life experience and cultural diversity in decision-making. The author discusses whether implicit and prejudicial stereotypes may be systematically harbored in the American "legal culture".


 
Winn on Spyware Contracts Jane K. Winn (University of Washington - School of Law) has posted Contracting Spyware by Contract (Berkeley Technology Law Journal Vol. 20, p. 1345, 2005) on SSRN. Here is the abstract:
    The question of what constitutes “spyware” is controversial because many programs that are "adware" in the eyes of their distributors may be perceived as "spyware" in the eyes of the end user. Many of these programs are loaded on the computers of end users after the end user has agreed to the terms of a license presented in a click-through interface. This paper analyzes whether it might be possible to reduce the volume of unwanted software loaded on end users’ computers by applying contract law doctrine more strictly. Unwanted programs are often bundled with programs that the end user wants, but the disclosure that additional programs will be downloaded is usually buried deeply within dense form contracts. Even though this makes it difficult for end users to recognize that they are agreeing to have multiple programs installed at once and that some of those programs may be objectionable, US courts are unlikely to invalidate those disclosures. This is because in business to consumer online contracting cases in the US, courts have tended to be very deferential to the intentions of the merchants in designing the contract interfaces. In the EU, by contrast, such conduct by software distributors would not be binding on consumers. Under unfair contract terms laws in place in EU member states, consumer objections to bundled software could not be overridden by terms hidden in standard form contracts.


 
Strandburg on Curiosity Driven Driven Research Katherine J. Strandburg (DePaul University - College of Law) has posted Curiosity-Driven Research and University Technology Transfer on SSRN. Here is the abstract:
    The debate about university technology transfer policy would benefit from increased attention to two parts of the technology transfer equation: the societal purpose of basic scientific research and the characteristics of scientific researchers. One purpose of curiosity-driven research is to provide a demand function for that can serve as a proxy for the socially optimal (but unknowable) demand function for the unpredictable research which is necessary for long-term technological progress. Preserving the curiosity-driven research peer review “market” is thus important for that progress. The analysis highlights the importance of adequate funding for curiosity-driven research. A model of typical university scientists preferences can be used to assess how technology transfer policies may affect the social norms of the research community and the long term viability of the curiosity-driven research endeavor. The analysis suggests that patenting will be an ineffective technology transfer mechanism unless researchers are precluded from using patenting to maintain control over follow-on research.
I'm always impressed by Strandburg's work.


 
Wednesday Calendar
    Villanova Law: Elizabeth R. Schiltz, University of St. Thomas School of Law
    University of Toronto Tax Law & Policy Workshop: Joel Slemrod, University of Michigan Taxation and Big Brother: Information, Personalization, and Privacy in 21st Century Tax Policy
    University College London: The Constitutional Law Group (UK branch of the International Association of Constitutional Law), ‘Reforming and Reorganising Tribunals’
      Sir Robert Carnwath, Lord Justice of Appeal and Senior President of Tribunals Designate. Genevra Richardson, Professor of Public Law at Kings College London, Member of the Council on Tribunals. Cheryl Saunders, Arthur Goodhart Visiting Professor of Legal Science (University of Cambridge), Professor of Law (University of Melbourne), President of the International Association of Constitutional Law, former President of the Administrative Review Council (Australia)
    University College, London: Jonathan Seglow, Multiculturalism, recognition and respect


Tuesday, March 21, 2006
 
Tuesday Calendar
    Yale Legal History: MARY BILDER, Boston College Law School, "Repugnancy and Judicial Review"
    Vanderbilt Law: Michael Van Alstine, University of Maryland School of Law, "Executive Aggrandizement in Foreign Affairs Lawmaking"
    Vanderbilt Comparative Corporate Governance Seminar: Jennifer Hill, Vanderbilt Law School & Sydney Law School
    University of Texas Law: David Gamage, "What Constitutes a 'Tax Cut' or a 'Tax Hike'?"
    University of Pennsylvania Tax Policy Workshop: Alex Raskolnikov, Tax Shelter Penalties
    Marquette Law: Barrett McCormick, Marquette University, China and the Internet
    Lewis & Clark Law: Brian Blum Contempt of Court and the Courts' Inherent Power
    Georgetown Law: Mitt Regan
    Georgetown Constitutional Law & Theory Colloquium: Ruti Teitel (law, New York Law School), The Law of Humanity: Rule of Law for a Global Politics


 
Nominations Invited Digital Culture invites nominations for the best writing on Technology published in 2005. Here's the announcement:
    Taking a cue from the open-source movement, we're asking readers to nominate their favorite tech-oriented articles, essays, and blog posts from the previous year. The competition is open to any and every technology topic--biotech, information technology, gadgetry, tech policy, Silicon Valley, and software engineering are all fair game. But the pieces that have the best chances of inclusion in the anthology will conform to these three simple guidelines:
      1. They'll be engagingly written for a mass audience; if the article requires a doctorate to appreciate, it's probably not up our alley. Preference will be given to narrative features and profiles, "Big Think" op-eds that make sense, investigative journalism, sharp art and design criticism, intelligent policy analysis, and heartfelt personal essays. 2. They'll be no longer than 5,000 words. 3. They'll explore how technological progress is reshaping our world.
    Other Info
      Nominations must have been published between January and December, 2005. The deadline for submissions is 3.31.06. The Best of Technology 2006 will be published in Fall 2006 by digitalculturebooks, a new imprint of the Scholarly Publishing Office at the University of Michigan Library and the University of Michigan Press. It will be available in book form and on-line. The Best of Technology Writing 2006 will include an introduction by award-winning journalist Brendan I. Koerner. Koerner is a contributing editor for Wired, a columnist for both The New York Times and Slate, and a fellow at the New America Foundation. His first book will be published by Henry Holt & Company in 2008.
    Questions may be sent to digital-culture@umich.edu .
If you follow the link above, there is an online nominations form. Law and technology submissions are welcomed!


Monday, March 20, 2006
 
Monday CalendarPlease forgive the lateness of the calendar!


 
Kar on the Deep Structure of Law & Morality Robin Kar (Loyola, Los Angeles) has posted a new version of The Deep Structure of Law and Morality (Texas Law Review, Vol. 84, p. 877, 2006) on SSRN. Here's the abstract:
    Morality and law share a deep and pervasive structure, an analogue of what Noam Chomsky calls the deep structure of language. This structure arises not to resolve linguistic problems of generativity, but rather from the fact that morality and law engage psychological adaptations with the same natural function: to allow us to resolve social contract problems flexibly. Drawing on and extending a number of contemporary insights from evolutionary psychology and evolutionary game theory, this Article argues that we resolve these problems by employing a particular class of psychological attitudes, which are neither simply belief-like states nor simply desire-like states, though they bear affinities to both. The attitudes are obligata. Obligata breathe life into our moral and legal practices, and have a specific structure. They blend (i) agent-centered attitudes toward persons with (ii) attitudes toward shared standards for action as producing (iii) reasons that (iv) exclude some arising from personal interest. Obligata are (v) judgment-sensitive attitudes: reasons can be sensibly asked and offered for them. They incline us to (vi) react critically to deviations and perceive these reactions as warranted. Obligata nevertheless sensitize us to (vii) the standard excuses, thereby allowing us to mend our relationships after some seeming breaches. We express obligata in (viii) the special normative terminology that morality and law share, including (ix) in contexts of discussion and dispute that can become incredibly charged. In these interactions, obligata allow us to (x) meaningfully disagree, and sometimes thereby reach consensus, even when our resolutions are not traceable to any particular reasons we antecedently accepted. This talk thus engages (xi) underlying psychosocial mechanisms that can - in the appropriate social and political circumstances - help us maintain sufficient agreement over what we owe to one another to live well together. Obligata thereby allow us to enjoy our lives together. Finally, it is possible that our moral and legal judgments (xii) supervene on natural facts because there are natural facts - about what moral and legal rules would conduce to all our objective individual interests in the right way - that partly explain the shape that morality and law take in our lives. The structure of obligata is the deep structure of morality and law. This suggests that much of the legal literature - including familiar descriptive and normative accounts from law and economics scholars - have been presupposing a psychological picture that is deeply at odds with how we naturally think about obligation. Morality and law do not arise from, and could not be sustained only by, separable beliefs about the world and preferences for states of affairs. The challenge raised here runs deeper, however, than recent empirical work showing we deviate from instrumental rationality in numerous, systematic ways. Our capacities to reason instrumentally may not figure very centrally at all in our moral or legal practices, and we may necessarily misunderstand these normative phenomena if we keep trying to shoehorn them into that model. To understand morality and law, we must instead understand how our distinctive capacities to identify and respond appropriately to obligations function.
This is an important paper. Highly recommended!


 
Conference Announcement: Boundaries of Rights and Responsibilities at Rutgers-Camden
    Rutgers-Camden Institutie for Law & Philosophy CONFERENCE ANNOUNCEMENT The Boundaries of Rights and Responsibilities in Morality and Law http://lawandphil.rutgers.edu/upcoming.html May 21st-23rd, 2006 The Institutes's 2006 conference will take place over the course of two days and will feature scholars in law and philosophy from around the world presenting on the topic of The Boundaries of Rights and Responsibilities in Morality and Law. There will be a keynote address marking the beginning of the conference on the evening of May 21st. Confirmed Presenters:
      Antony Duff (University of Stirling, Scotland) Kimberly Kessler Ferzan (Rutgers-Camden) Claire Finkelstein (University of Pennsylvania) Jeremy Horder (Oxford University and Law Commission of England) Stephen Perry (University of Pennsylvania) Rahul Kumar (Queen's University, Canada) Maggie Little (Georgetown University) Stephen J. Morse (University of Pennsylvania) John Oberdiek (Rutgers-Camden) Victor Tadros (University of Edinburgh, Scotland) Benjamin Zipursky (Fordham University)
    Keynote Address on May 21st:
      What is the Right to Privacy? James Griffin Department of Philosophy, Rutgers-New Brunswick White's Professor of Moral Philosophy Emeritus, Oxford University
    For registration, as well as information about fees and lodging, please contact Jane Rhodes at jwrhodes@camden.rutgers.edu.
The Rutgers Law and Philosophy programs are absolutely fantastic! This looks like another great event.


 
Conference Announcement: Episteme at Toronto
    Third Annual EPISTEME Conference When Difference Makes a Difference: Epistemic Diversity and Dissent http://www.episteme.us.com/conferencetoronto.htm University of Toronto June 2-3, 2006 The focus of this year's meeting, which will be run as a workshop, is a cluster of questions about the epistemic implications of diversity among knowers and the epistemic functions of dissent within and between communities of knowers. What constitutes epistemically relevant diversity and epistemically appropriate dissent? How does social and cultural, as well as cognitive, difference enrich the resources of an epistemic community? When is dissent productive, and why? For additional information, each name is linked to home webpage wherever available: Finalized Program: Friday, June 2:
      9:00-12:45: chaired by James Robert Brown (University of Toronto)
        Elizabeth S. Anderson (University of Michigan): "The Epistemology of Democracy" Daniel Marc Weinstock (Université de Montréal): "What is Public Reason?" David Coady (University of Tasmania): "When Experts Disagree"
      2:30-6:15: chaired by James Beebe (SUNY at Buffalo)
        Miriam Solomon (Temple University): "Epistemic Diversity or Epistemic Randomness? (Or, More on the Invisible Hand of Reason)" John Beatty (University of British Columbia): "Group Deliberation" Deborah Perron Tollefsen (University of Memphis): "Scientific Teamwork: Is there room for dissent?"
    Saturday, June 3:
      9:00-12:45: chaired by Alison Wylie (University of Washington)
        Nancy Daukas (Guilford College): "Epistemic Trust and Social Location" Kristina Rolin (Academy of Finland Research, Helsinki School of Economics): "The Bias Paradox in Feminist Standpoint Epistemology" Rebecca Kukla (Carleton University): "Objectivity and Contingency in Empirical Knowledge"
      2:30-6:15:chaired by Ann Garry (CSU-Los Angeles)
        Miranda Fricker (Birkbeck College, University of London): "Epistemic Injustice in Social Knowledge" Sue Campbell (Dalhousie University): "Performing Counter-memory" Lorraine Code (York University): "Advocacy, Negotiation, and the Politics of Unknowing"
    Organizers:
      Alison Wylie, program (University of Washington): awylie@stanford.edu James Robert Brown, local arrangements (University of Toronto): jrbrown@chass.utoronto.ca Alvin Goldman, Episteme editor (Rutgers University): goldman@philosophy.rutgers.edu
    For further information about the program, please contact Alison Wylie: awylie@stanford.edu. For local arrangements, please contact James Robert Brown: jrbrown@chass.utoronto.ca. Location: Bahen Centre for Information Technology, Room 1230 (BA 1230), 40 St. George Street, University of Toronto. Click here for campus map - Bahen Centre is in the lower left-hand corner marked BA A special issue of EPISTEME, containing a selection of presented papers, will be released in conjunction with the conference. Alison Wylie (University of Washington, Seattle) will be the Guest Editor of the journal issue and James Robert Brown (University of Toronto) will host the conference.


Sunday, March 19, 2006
 
Legal Theory Calendar
    Monday, March 20 Tuesday, March 21
      Yale Legal History: MARY BILDER, Boston College Law School, "Repugnancy and Judicial Review"
      Vanderbilt Law: Michael Van Alstine, University of Maryland School of Law, "Executive Aggrandizement in Foreign Affairs Lawmaking"
      Vanderbilt Comparative Corporate Governance Seminar: Jennifer Hill, Vanderbilt Law School & Sydney Law School
      University of Texas Law: David Gamage, "What Constitutes a 'Tax Cut' or a 'Tax Hike'?"
      University of Pennsylvania Tax Policy Workshop: Alex Raskolnikov, Tax Shelter Penalties
      Marquette Law: Barrett McCormick, Marquette University, China and the Internet
      Lewis & Clark Law: Brian Blum Contempt of Court and the Courts' Inherent Power
      Georgetown Law: Mitt Regan
      Georgetown Constitutional Law & Theory Colloquium: Ruti Teitel (law, New York Law School), The Law of Humanity: Rule of Law for a Global Politics
    Wednesday, March 22
      Villanova Law: Elizabeth R. Schiltz, University of St. Thomas School of Law
      University of Toronto Tax Law & Policy Workshop: Joel Slemrod, University of Michigan Taxation and Big Brother: Information, Personalization, and Privacy in 21st Century Tax Policy
      University College London: The Constitutional Law Group (UK branch of the International Association of Constitutional Law), ‘Reforming and Reorganising Tribunals’
        Sir Robert Carnwath, Lord Justice of Appeal and Senior President of Tribunals Designate. Genevra Richardson, Professor of Public Law at Kings College London, Member of the Council on Tribunals. Cheryl Saunders, Arthur Goodhart Visiting Professor of Legal Science (University of Cambridge), Professor of Law (University of Melbourne), President of the International Association of Constitutional Law, former President of the Administrative Review Council (Australia)
      University College, London: Jonathan Seglow, Multiculturalism, recognition and respect
    Thursday, March 23
      Brooklyn Law School: Ken Simons (Boston University) Is Knowledge a Culpable State of Mind? I always learn from Simons's careful and illuminating papers.
      University of Texas Tom Sealy Endowed Lecture: Louis Fisher, Special Assistant to Law Librarian- Library of Congress, "State of War After 9/11"
      University of Texas Colloquium on Constitutional and Legal Theory: Hillel Steiner (Manchester), Freedom & Bivalence & Quantification of Freedom Steiner is a deeply interesting and articulate thinker.
      University of Michigan Law & Economics: Wesley Cohen, Duke, John Walsh, Illinois-Chicago, The View from the Bench: The Patenting and Licensing of Research Tools and Biomedical Innovation
      University of Arizona Law: Professor Jeff Rachlinski, Cornell Law School, “Judicial Psychology.”
      UCLA Tax Policy & Public Finance Colloquium: Bob Peroni, University of Texas Law School, Exploring the Contours of a Proposed U.S. Exemption (Territorial Tax System)
      NYU Colloquium on Tax Policy & Public Finance: Howell Jackson, Harvard Law School, "Counting the Ways: The Structure of Federal Spending."
      Institut Français (London): Susan James (Birkbeck), Spinoza: Politics and Imagination
      UC Berkeley, Kadish Center: Philip Pettit, William Nelson Cromwell Professor of Politics, Princeton University, RESPONSIBILITY INCORPORATED Pettit is a marvel!
      Georgetown Intellectual Property: J.H. Reichman, Bunyan S. Womble Professor of Law, Duke University Law School, Treating Clinical Trials as a Public Good: The Most Logical Reform
      George Mason Law: : Moin Yahya, University of Alberta School of Law and former Levy Fellow; Do You Need an Economic Theory for an Antitrust Complaint?
      Fordham Law: Catherine Sharkey, Associate Professor of Law, Columbia University School of Law, "Trespass in an Electronic A[ge]
      Boston University: Wendy Gordon.
    Friday, March 24


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


Saturday, March 18, 2006
 
Legal Theory Bookworm Ronald Dworkin's new book is out! The Legal Theory Bookworm recommends Justice in Robes by Ronald Dworkin. Here's a blurb:
    How should a judge's moral convictions bear on his judgments about what the law is? Lawyers, sociologists, philosophers, politicians, and judges all have answers to that question: these range from "nothing" to "everything." In his new book Ronald Dworkin argues that the question is much more complex than it has often been taken to be and charts a variety of dimensions--semantic, jurisprudential, and doctrinal--in which law and morals are undoubtedly interwoven. He restates and summarizes his own widely discussed account of these connections, which emphasizes the sovereign importance of moral principle in legal and constitutional interpretation, and then reviews and criticizes the most influential rival theories to his own. He argues that pragmatism is empty as a theory of law, that value pluralism misunderstands the nature of moral concepts, that constitutional originalism reflects an impoverished view of the role of a constitution in a democratic society, and that contemporary legal positivism is based on a mistaken semantic theory and an erroneous account of the nature of authority. In the course of that critical study he discusses the work of many of the most influential lawyers and philosophers of the era, including Isaiah Berlin, Richard Posner, Cass Sunstein, Antonin Scalia, and Joseph Raz. Dworkin's new collection of essays and original chapters is a model of lucid, logical, and impassioned reasoning that will advance the crucially important debate about the roles of justice in law.
Essential reading.


 
Download of the Week The Download of the Week is Why Enable Litigation?: A Positive Externalities Theory of the Small Claims Class Action by William B. Rubenstein. Here is the abstract:
    This Article appears in a Symposium commemorating the Supreme Court's decision in Phillips Petroleum Co. v. Shutts. The legal claims that gave rise to Shutts were meritorious, yet of relatively modest value. Individuals are unlikely to litigate such negative value claims because the costs of doing so outweighs the benefits they will receive; defendants are well-situated to escape liability. Conventionally, scholars describe this situation as posing a collective action problem and demonstrate how the class action mechanism works to solve that problem. In this Article, I discuss the problem of negative value claims in a related yet distinct manner. The fact that parties will not pursue these claims is, I argue, an example of the underproduction of a so-called public good. That good is a lawsuit. Litigation can be conceptualized as a public good, with its pursuit producing positive externalities. The Article enumerates these collateral social benefits, grouping them as: 1) decree effects; 2) settlement effects; 3) threat effects; and 4) institutional effects. The addition of this analysis to the scholarly literature serves several functions. Among these is that it illuminates how little collective action really takes places in small claims cases; how relatively unimportant the compensatory aspects of the case are compared to its other social functions; how the concept of deterrence does not capture these non-compensatory benefits as well as the concept of externalities does; and how small claims class actions are more like other types of class cases than generally presumed.
Download it while its hot!


Friday, March 17, 2006
 
Friday Calendar


 
Conference Announcement: World Poverty & the Duty of Assistance at the London School of Economics
    World Poverty and the Duty of Assistance London School of Economics Tuesday 27 June 2006, 9.30am - 6.15pm Old Theatre, Old Building, Houghton Street, London, WC2A Organised by the Forum for European Philosophy, in cooperation with the Department of Philosophy at the LSE, UNESCO, and the Institute of Philosophy at the School of Advanced Study. This conference brings together moral and political philosophers, social scientists, and development practitioners to discuss the nature of our duties to those in need in a way that is accessible to the general public.
      9.30 Prof. Jonathan Glover (KCL) "Poverty, Distance and Two Dimensions of Ethics" 10.30 Break 11.00 Dr. Linda Yueh (Oxford and LSE) "Economic growth and poverty reduction in China" Prof. Jan Breman (Amsterdam) "Looking at poverty in a village in India for half a century" 13.00 Lunch Break 14.00 Prof. Paul Collier (Oxford and formerly of the World Bank) "Beyond the role of victim: how we can best help Africa" Dr. Ekwow Spio-Garbrah (CEO of CTO and formerly Minister in Ghanaian government) responds 16.00 Break 16.30 Prof. David Miller (Oxford) "Who is responsible for global poverty?" Mr. David Mepham (IPPR and formerly of the UK Department of International Development) responds 18.00 Prof. Leif Wenar (Sheffield) Conclusion
    Admission free, open to all, no registration required Details at www.philosophy-forum.org/Povertyconference.htm Conference organisers: Dr. Catherine Audard (LSE), Dr. Nick Bunin (Oxford), Dr. Alex Voorhoeve (LSE). Further information from Catherine Lowe Tel: 0207 955 7539 Email: C.Lowe@lse.ac.uk


 
Conference Announcement: The Demandingness of Morality at Edinburgh
    The AHRC Scottish Ethics Network Conference on The Demandingness of Morality University of Edinburgh 9:30am- 5pm, Tuesday, 16th of May Chaplaincy, Room 2, Pleasance Building, University of Edinburgh Campus Programme:
      9:30-10:00 Welcome/Set-up 10:00-11:30 Elinor Mason (University of Edinburgh) "First world apathy: Are we mistaken, irrational, or just plain bad?" 11:30-11:40 Break 11:40-1:10 Robert Goodin (Australian National University, RSSS) "Demandingness as a Virtue" 1:10-2:00 Short Lunch Break 2:00-3:30 Thomas Pogge (Columbia) "Severe Poverty as a Human Rights Violation" 3:30-5:00 Rowan Cruft (Stirling University) "Rights, Fellowship, and Needs" 7:00 Dinner
    For more details contact: Michael Ridge Reader Dept of Philosophy University of Edinburgh David Hume Tower George Square Edinburgh EH8 9JX Tel: (+44) 0131 650 3657 http://www.michaelridge.com


 
Conference Announcement: Gender & IP at American University
    American University Program on Intellectual Property and the Public Interest Women and the Law Program Journal on Gender, Social Policy, and the Law present IP/Gender: The Unmapped Connections Friday, March 24, 2006 10:00 AM – 5:00 PM (Reception to Follow) This program brings together scholars in Intellectual Property and Gender Studies to present innovative scholarship that unites these two fields. This will be the third in a series of workshops discussing the intersection of gender-related imbalances in wealth; cultural access; political power, and social control; creative production and gender; the effect of stereotyping and the feminization and masculinization of participant roles in intellectual property; the gendered development of IP doctrine; and feminist jurisprudence insights about intellectual property law. American University, Washington College of Law 4801 Massachusetts Ave. NW ~ Room 603 Washington, DC 20016 event registration: www.wcl.american.edu/secle/cle_form.cfm or call 202-274-4148 Free to the Public CLE Credit Available* additional information & schedule: www.wcl.american.edu/ipclinic/ipgender.cfm presenters
      Authorship and Conceptions of the Self: A Feminist Inquiry into Creativity and Copyright Carys Craig Professor of Law York University, Osgoode Hall Law School Feminism and Dualism in Intellectual Property Dan L. Burk Professor of Law University of Minnesota Law School My Fair Ladies: Sex, Gender, and Transformative Use in Copyright Law Rebecca Tushnet Associate Professor of Law Georgetown University Law Center Breast Cancer and Patents: Molecules and Conflict Eileen M. Kane, Ph.D., J.D. Assistant Professor of Law Penn State Dickinson School of Law Trademarks of Privilege: Naming Rights and the Physical Public Domain Ann Bartow Associate Professor of Law University of South Carolina School of Law Counterfeit Chic: The Culture of the Copy in an Outlaw Medium Susan Scafidi Associate Professor of Law & Adjunct Professor of History Southern Methodist University How to Commodify an American Quilt: The Women of Gee’s Bend Victoria Phillips Assistant Director, Glushko-Samuelson Intellectual Property Clinic American University, Washington College of Law Gender Contradictions in Textile Production and IP Law in Ghana Boatema Boateng Assistant Professor University of California, San Diego
    commentators
      Christine Haight Farley Associate Professor of Law Associate Director, Program on Intellectual Property and the Public Interest American University, Washington College of Law Peter Jaszi Professor of Law Director, Program on Intellectual Property and the Public Interest American University, Washington College of Law Ann Shalleck Professor of Law Director, Women and the Law Program American University, Washington College of Law
    * WCL will apply for six credits of CLE. Since CLE credit is dependant on the rules of each state, actual credit hours may vary.


 
Workshop Announcement: Nationalism and Global Justice at Leuven
    Workshop on nationalism and global justice The Centre for Ethics, Social and Political Philosophy of the University of Leuven cordially invites you to a workshop with Prof. David Miller (University of Oxford) on: Nationalism and Global Justice Respondents: Veit Bader (University of Amsterdam), Wilfried Hinsch (University of Saarland), Roland Pierik (Tilburg University), Robert van der Veen (University of Amsterdam), Toon Vandevelde (University of Leuven) and Leif Wenar (University of Sheffield). Place: Institute of Philosophy, University of Leuven Date: March 24, 2006 Participation is free of charge, but registration is required. For registration and the program of the workshop: http://soc.kuleuven.be/pol/pol_denken/en/workshop.htm For more information regarding the workshop, please contact: Helder De Schutter (Helder.DeSchutter@hiw.kuleuven.be) or Ronald Tinnevelt (Ronald.Tinnevelt@soc.kuleuven.be)


Thursday, March 16, 2006
 
McKenna on the Normative Foundations of Trademark Mark McKenna (Saint Louis University) has posted The Normative Foundations of Trademark Law on SSRN. Here is the abstract:
    This paper challenges the conventional wisdom that trademark law traditionally sought to protect consumers and enhance marketplace efficiency. Contrary to widespread understanding, early trademark cases were decidedly producer-centered. Trademark claims, like all unfair competition claims, sought to protect a producer from illegitimate attempts to divert its trade, and consumer deception was relevant in these cases only to the extent it was the method by which trade was diverted. Moreover, American courts from the very beginning protected a party against improperly diverted trade by recognizing property rights derived from a natural rights theory of property. That traditional approach dictated very specific and workable restrictions on the scope of trademark protection. In fact, despite repeated claims that modern trademark law is illegitimate because it has lost its consumer focus, the expansion of trademark law in the twentieth century was more a consequence of the rise of consumer protection rhetoric than a rejection of that view. This paper argues that the broad protection trademark law now provides deserves sustained scrutiny, but that any criticisms leveled against modern doctrines must stand on their own merits and fairly confront the policy goals of modern trademark law. The criticisms cannot draw their normative force by pointing to “traditional” principles that did not exist.


 
Symposium Announcement: Debt as Control at Cincinnati
    Debt as a Lever of Control 19th Annual Corporate Law Symposium University of Cincinnati College of Law March 31-April 1, 2006 The law of corporations tends to focus on the relationships between and among shareholders, managers, and directors. As a result, lawyers and scholars often overlook important contributions that creditors and other parties play in the governance of firms. This symposium will consider various ways that debt creates a lever for some degree of control over firms and other entities. It takes as a point of departure recent scholarship on creditor control in the context of corporate reorganizations. The symposium will address the current scope of creditor control and governance in the U.S. and other countries – especially Japan. Participants will consider how private creditors and bondholders may exercise control in different ways and how credit derivative products may alter the role that private creditors play in corporate governance. Participants will also explore some of the regulatory implications of creditors’ efforts to affect the governance of corporations and other entities. Symposium papers: "The Prime Directive" Douglas Baird* & Robert Rasmussen* "Creditor Control in the Sovereign Contract" George Triantis* & Mitu Gulati "Credit Derivatives and Creditor Governance" David Skeel* & Frank Partnoy "Creditors, Courts, and the Construction of Corporate Governance" Melissa Jacoby "Creditors and Corporate Governance" Caroline Gentile* "The Myth of Creditor Monitoring in Japan" Mark Ramseyer* & Yoshiro Miwa "Lender Control and Bank Regulation" Adam Feibelman* *attending participants Additional information about the symposium is available at http://www.law.uc.edu/current/ccl06/index.html Please send questions about the symposium to corporatelawuc@yahoo.com


 
Thursday Calendar


 
Czarnezki on Dubitante Opinions Jason J. Czarnezki (Marquette University - Law School) has posted The Dubitante Opinion (Akron Law Review, Vol. 39, 2006) on SSRN. Here is the abstract:
    The 2004 Term of the United States Supreme Court resulted in 203 full opinions written, including 61 concurrences and 63 dissents. Judicial use of these three basic opinion types, the majority, concurring and dissenting opinions or variations thereof (e.g., concurring in part and dissenting in part) has been the norm in the Court and lower federal courts over recent decades. Yet, another type of opinion exists - the dubitante opinion. Judges rarely write dubitante opinions or use the term, and informal polling suggests not many legal scholars are aware of the practice. This short Essay endeavors to shed some light on the use of the term dubitante in judicial opinions and spark discussion as to the merits of the dubitante opinion - What is a dubitante opinion? When was the term first used, and how often is the term used? Who uses it and how? What are the consequences of its use?
And here's an excerpt from the text:
    A dubitante (pronounced d[y]oo-bi-tan-tee) opinion indicates that “the judge doubted a legal point but was unwilling to state that it was wrong.” Said Lon Fuller, “[E]xpressing the epitome of the common law spirit, there is the opinion entered dubitante—the judge is unhappy about some aspect of the decision rendered, but cannot quite bring himself to record an open dissent.”
Well, you can learn something new every day on Legal Theory Blog.


 
Charlow on Religious Equality Robin Charlow (Hofstra University School of Law) has posted The Elusive Meaning of Religious Equality (Washington University Law Review, Vol. 83, No. 5, Winter 2006) on SSRN. Here is the abstract:
    Raging national debates about the relationship of church and state often find parties sparring over whether the government is treating religious interests equally. This essay endeavors to explain why there is such widespread disagreement about the meaning of religious equality. It explores both jurisprudential and doctrinal sources of dispute, including: the multidimensional nature of equality generally, the uniqueness of religion, the difficulty of defining religion, and the problem of identifying the proper baseline or point of comparison for assessing religious equality. Ultimately, we cannot separate issues of religious equality from disputes about the meaning of the Constitution's religion clauses. The essay presents the thesis that, on a collective level, we may suffer from a long-standing, national uncertainty or ambiguity about religion and the ideal relationship between church and state, accounting in part for our endless conflict over the meaning of the religion clauses. The essay concludes by examining whether it is possible to resolve or avoid questions of religious equality and, if not, what useful lesson can be drawn from our uncertain history.


 
Whitford & Ochs on the Roots of Clemency Andrew B. Whitford and Holonna L. Ochs (University of Georgia - Department of Public Administration and Policy and University of Kansas) have posted The Political Roots of Executive Clemency on SSRN. Here is the abstract:
    It is a widespread conventional wisdom that presidential pardons – the only way for offenders to remove or eliminate all disabilities that arise from a federal or military offense – are political. We move beyond this belief and assess the relative contribution of the president’s own policy agenda, other policy agendas present in the separated powers system, and external social conditions on the president’s dispensation of federal pardons. We estimate a time series model of the president’s aggregate dispensation of clemency appeals (requests for pardons) and find that the probability of denials for executive clemency reflects the president’s own agenda and ideological position. We show that evidence appearing to support direct effects of Congressional attention to criminal justice issues and the homicide rate is spurious. In sum, while the president dispenses pardons as part of a system of separated powers, how he exercises this unilateral power depends mostly on his own policy positions.


 
Stern on Victim-Specific Libel Laws Nat Stern (Florida State University College of Law) has posted The Doubtful Validity of Victim-Specific Libel Laws on SSRN. Here is the abstract:
    Laws that single out for penalty defamation of certain individuals undermine the principle that government may not discriminate within a category of expression. The Supreme Court affirmed in R.A.V. v. City of St. Paul that this principle applies even to categories of speech that are otherwise unprotected under the First Amendment. In striking down an ordinance that prohibited fighting words addressed to certain topics, the R.A.V. Court also recognized that subject matter discrimination can sometimes amount to viewpoint discrimination. This article contends that victim-specific libel laws should trigger R.A.V.'s close scrutiny of content discrimination within proscribable categories, and that some such laws effect the tacit viewpoint discrimination that evoked the Court's particular skepticism in that case. Furthermore, this type of law does not presumptively meet any of the three exceptions that the R.A.V. opinion carved out from its general bar to selective limitations on proscribable speech.


 
Tillman on Congressional Continuity Seth Barrett Tillman has posted Model Continuity of Congress Statute on SSRN. Here is the abstract:
    This is a model continuity of Congress statute. States with constitutional provisions similar to U.S. Const. art. I, Section 7 could easily modify the act in light of their state constitutional and parliamentary nuances. I note one defect in the model act in a footnote. If anyone could suggest a solution, I would be very grateful.


Wednesday, March 15, 2006
 
Request for Help on the Entry Level Hiring Report Based on prior experience, there are still dozens of unreported entry-level hires. Although I greatly appreciate complete information about candidates, I also need incomplete reports. If you know of an entry-level hire that is not yet included, please email me at lsolum@gmail.com.
The current report can be found at this link.


 
Conference Announcement: Action, Ethics, and Responsibility
    9th annual Inland Northwest Philosophy Conference Topic: Action, Ethics, and Responsibility Dates: March 31-April 2, 2006 Location: Moscow, ID & Pullman, WA The Inland Northwest Philosophy Conference is a topic-focused, interdisciplinary conference, co-sponsored by the Philosophy Departments at the University of Idaho and Washington State University. Keynote Speaker: Frances Kamm, Harvard, “Intention, Responsibility, and Terrorism”, Saturday, April 1, 8:00 pm, CUE 203, WSU. Public Forum: “What Should We Do for Nature? Environmental Problems, Action, and Responsibility”, Friday, March 31, 7:30 pm, University Inn, Moscow. Other participants include Robert F. Allen, Hilary Bok, Randolph Clarke, John Martin Fischer, Caspar Hare, Elizabeth Harman, Sarah McGrath, Alfred Mele, Michael Moore, Derk Pereboom, Paul Russell, Carolina Sartorio, Saul Smilansky, Angela Smith, Peter van Inwagen, David Widerker, and David Zimmerman. Registration information about this conference can be obtained at our website: http://www.class.uidaho.edu/inpc . Please direct questions about the conference to inpc@uidaho.edu


 
Symposium Announcement: Corporate Law through History at Washington and Lee
    UNDERSTANDING CORPORATE LAW THROUGH HISTORY SPONSORED BY: THE FRANCES LEWIS LAW CENTER IN CONJUNCTION WITH THE WASHINGTON AND LEE LAW REVIEW AND THE WILLIAMS SCHOOL OF COMMERCE, ECONOMICS, AND POLITICS FRIDAY, MARCH 24, 2006 PARTICIPANTS: THE HONORABLE THOMAS L. AMBRO, U.S. Court of Appeals for the Third Circuit MR. ALLEN D. BOYER, Trial Counsel, Enforcement Division, New York Stock Exchange PROFESSOR BRIAN R. CHEFFINS, University of Cambridge Faculty of Law PROFESSOR LYNNE L. DALLAS, University of San Diego School of Law PROFESSOR COLLEEN A. DUNLAVY, University of Wisconsin Department of History PROFESSOR RON HARRIS, Tel Aviv University Faculty of Law PROFESSOR LYMAN P.Q. JOHNSON, Washington and Lee University School of Law THE HONORABLE STEPHEN P. LAMB, Delaware Court of Chancery PROFESSOR GREGORY A. MARK, Rutgers, The State University of New Jersey, The School of Law - Newark PROFESSOR DAVID MILLON, Washington and Lee University School of Law PROFESSOR LAWRENCE E. MITCHELL, The George Washington University Law School PROFESSOR LUCAS E. MOREL, Washington and Lee University, Williams School PROFESSOR ADAM C. PRITCHARD, The University of Michigan Law School PROFESSOR DONALD J. SMYTHE, Washington and Lee University, Williams School PROFESSOR USHA RODRIGUES, University of Georgia School of Law PROFESSOR DALIA TSUK, The George Washington University Law School THE HONORABLE E. NORMAN VEASEY, Weil, Gotshal & Manges, formerly Chief Justice, Delaware Supreme Court Can history deepen our understanding of current controversies in corporate law? Our conference will include four principal papers by leading scholars working on aspects of corporate legal history. Commenters will come from a range of legal and non-legal disciplines. The conference will conclude with a roundtable discussion involving distinguished judges and practitioners who, together with the academic participants, will consider the question, "does history matter? -- views from the bench and bar." Our hope is that a serious look at the relevance of legal history will add a fresh and stimulating perspective on pressing contemporary issues. For further information contact Lyman Johnson, johnsonlp@wlu.edu (540) 458-8515, David Millon, millond@wlu.edu (540) 458-8993, or visit http://law.wlu.edu/lawcenter/conference.asp


 
Wednesday Calendar


 
Solove's Census Daniel Solove's census of Law Professor Blogs has been updated. One tidbit:
    Since the last census in November 2005, the number of bloggers has grown by 25 bloggers -- from 202 to 227 -- an increase of about 12%.


Tuesday, March 14, 2006
 
Franklin on Presidential Popular Constitutionalism--Reposed with Link Fixed! David L. Franklin (DePaul College of Law) has posted Popular Constitutionalism as Presidential Constitutionalism? Some Cautionary Remarks (Chicago-Kent Law Review, Vol. 74, 2006) on SSRN. Here is the abstract:
    This essay, which focuses on Larry Kramer's book The People Themselves, makes three points. First, although Kramer makes popular constitutionalism the conceptual centerpiece of his book, it's not at all clear what popular constitutionalism is. Kramer's work can be read to embody two very different versions of popular constitutionalism: a populist sensibility model and a departmentalist model. Second, whichever model Kramer has in mind, he has performed a valuable service by reminding us that the meaning of the Constitution is not identical to the doctrines the Supreme Court uses to implement that meaning. Third, popular constitutionalism in 2006 may in practice mean presidential constitutionalism - an outcome that should give us cause for concern. The essay concludes with two brief case studies that illuminate this concern.
For my take on these issues, check out Popular? Constitutionalism? Very interesting paper!


 
Tuesday Calendar
    Loyola University of Chicago Law: Lawrence Solum, The Supreme Court in Bondage: The Supreme Court in Bondage: Constitutional Stare Decisis, Legal Formalism, and the Future of Unenumerated Rights
    Georgetown Colloquium on Constitutional Theory: William Scheuerman (political science, Minnesota), Carl Schmitt and the Road to Abu Ghraib
    University College, London, Constitutional Law Group: ‘Foxhunting, the Parliament Acts and the Courts’ with Sir John Laws, Lord Justice of Appeal, Adam Tomkins, John Millar Professor of Public Law, University of Glasgow, Chair: Sir Roger Toulson, Judge of the High Court, Queen’s Bench Division, Chairman of the Law Commission


 
Rubenstein on Small Claims Class Actions William B. Rubenstein (University of California, Los Angeles - School of Law) has posted Why Enable Litigation?: A Positive Externalities Theory of the Small Claims Class Action on SSRN. Here is the abstract:
    This Article appears in a Symposium commemorating the Supreme Court's decision in Phillips Petroleum Co. v. Shutts. The legal claims that gave rise to Shutts were meritorious, yet of relatively modest value. Individuals are unlikely to litigate such negative value claims because the costs of doing so outweighs the benefits they will receive; defendants are well-situated to escape liability. Conventionally, scholars describe this situation as posing a collective action problem and demonstrate how the class action mechanism works to solve that problem. In this Article, I discuss the problem of negative value claims in a related yet distinct manner. The fact that parties will not pursue these claims is, I argue, an example of the underproduction of a so-called public good. That good is a lawsuit. Litigation can be conceptualized as a public good, with its pursuit producing positive externalities. The Article enumerates these collateral social benefits, grouping them as: 1) decree effects; 2) settlement effects; 3) threat effects; and 4) institutional effects. The addition of this analysis to the scholarly literature serves several functions. Among these is that it illuminates how little collective action really takes places in small claims cases; how relatively unimportant the compensatory aspects of the case are compared to its other social functions; how the concept of deterrence does not capture these non-compensatory benefits as well as the concept of externalities does; and how small claims class actions are more like other types of class cases than generally presumed.


 
Dolovich on Private Prisons Sharon Dolovich (Harvard University - Radcliffe Institute for Advanced Study) has posted State Punishment and Private Prisons Duke Law Journal, Vol. 55, No. 3, p. 439, December 2005) on SSRN. Here is the abstract:
    To date, the debate over private prisons has focused largely on the relative efficiency of private prisons as compared to their publicly-run counterparts, and has assumed that, if private contractors can run the prisons for less money than the state without a drop in quality, then states should be willing to privatize. This "comparative efficiency" approach, however, has two significant problems. First, it is concerned exclusively with efficiency, despite the fact that the privatization of prisons arguably implicates more urgent values. Second, it accepts the current state of public prisons as an unproblematic baseline, thus failing to consider the possibility that neither public prisons as presently constituted nor private prisons in the form currently on offer are adequate to satisfy society's obligations to those it incarcerates. In this Article, I examine the private prisons issue from a third perspective, that of liberal legitimacy. On this standard, if our penal policies and practices are to be legitimate, they must be consistent with two basic principles: the humanity principle, which obliges the state to avoid imposing punishments that are gratuitously inhumane; and the parsimony principle, which obliges the state to avoid imposing punishments of incarceration that are gratuitously long. After sketching the foundation for this legitimacy standard, I then apply it to the case of private prisons. Approaching the issue of private prisons from this perspective helps to reframe the debate in two ways, both long overdue. First, it allows for a direct focus on the structure and functioning of private prisons, without being derailed by premature demands for comparison with public-sector prisons. It thus becomes possible to assess directly the oft-heard claim that the profit incentive motivating prison contractors will distort the decisions taken by private prison administrators and lead to abuses. Second, it makes it possible to see that the state’s use of private prisons is the logical extension of policies and practices that are already standard features of the penal system in general, thus throwing into sharper relief several problematic aspects of this system that are currently taken for granted. In this sense, the study of private prisons operates as a "miner's canary," warning that not just the structure of private prisons, but also that of American punishment practices more broadly, may need reconsideration.


 
Aprill on Churches, Politics, and Deductions Ellen P. Aprill (Loyola Law School (Los Angeles)) has posted Churches, Politics, and the Charitable Contribution Deduction (Boston College Law Review, Vol. 42, p. 843, 2001) on SSRN. Here is the abstract:
    Churches often bear the burden of the Internal Revenue Code's electioneering prohibition without their contributors enjoying the benefit of a tax deduction. Although contributions to religious congregations may be deducted, many, perhaps most of them, are not because many of those who give to churches do not itemize their income tax deductions. In the past two years, Congress has had before it several bills that would permit nonitemizing taxpayers to deduct their charitable contributions. This Article argues that extending the deduction to nonitemizers raises important issues of tax policy that should concern religious organizations. The author contends that religious congregations will benefit from considering some of the difficult questions about the relationship of the charitable contribution deduction to the standard principles of tax policy. If they do, they might support either a deduction only above a floor or a charitable contribution credit rather than a 100% deduction for nonitemizers.


Monday, March 13, 2006
 
Solove on E-Prints Check out Daniel Solove's The E-Print Experiment on Concurring Opinions. Solove sent out emails that gave recipients a choice of hard copy, PDF by attachment, and the link to SSRN. He reports on the result in the post. Here's taste:
    These stats indicate a relatively even distribution between those who prefer PDF attachment, SSRN, and snail mail reprint. I checked my SSRN download counts for the article, and since sending out my email, it logged an increase of 31 downloads. I am assuming that the vast majority of those downloads were inspired by the email, and that there were a few people who downloaded it from SSRN but didn't inform me via email.
For the record, I think E-prints are the way to go. And if you send me an SSRN, link, that's fine by me.


 
Monday Calendar
    UCLA Law: Andrew Geddis, Professor of Law, University of Otego, New Zealand, A Dual Track Democracy? The Symbolic Role of the Maori Seats in New Zealand's Electoral System
    Georgetown Law & Philosophy: Rebecca Saxe (Cognitive Neuroscience, Harvard Society of Fellows)
    Vanderbilt Law & Politics Workshop: Tim Johnson, Minnesota Political Science & Jim Spriggs, UC-Davis Political Science
    University of Alabama Law: Ronald Wright, Wake Forest
    Hofstra Law: John DeWitt Gregory, Hofstra Law School, “Termination of Parental Rights Under the Adoption and Safe Families Act: Hitting the Poor Where it Hurts Most”


Sunday, March 12, 2006
 
Legal Theory Calendar


 
Legal Theory Lexicon: Textualism
    Introduction One of the most important topics in legal theory is “legal interpretation,” the theory of the derivation of meaning from legal texts. Of course, legal interpretation is a very large topic, with several different dimensions and approaches. This post will focus on “textualism,” and provide some introductory ideas about interpretive theory in general. As always, the Legal Theory Lexicon is designed for law students—especially first year law students—with an interest in legal theory.
    Three Levels of Interpretive Theory I find it helpful to separate out three different “levels” at which theories of legal interpretation can operate:
    • Level One: Meta Theories of Interpretation—One kind of theory examines questions like, “What does ‘interpretation’ mean?” and “How is ‘interpretation’ possible?”
    • Level Two: Normative Theories of Interpretation—A second kind of theory addresses the normative question, “What should legal interpretations aim at?” Among the answers to this question are: (a) the morally best reading of the legal text; (b) the intentions of the authors of the legal text, and (c) the plain meaning of the legal text.
    • Level Three: Methodological Theories of Interpretation—A third kind of theory aims to provide practical advice to legal actors (judges, lawyers, administrative officials, and citizens) about the techniques they can use to interpret various types of legal texts.
    Textualism, the subject of this post, can operate at any one of these three levels. That is, textualism could be the view that what legal texts really mean is their plain meaning. Or textualism could be the view that legal interpreters ought to interpret legal texts to have their plain meaning, even if that is not their true or deep meaning according to the best meta theory of interpretation. Or textualism could simply be a practical technique—a method that judges should employ. In this post, the primary focus will be on level two—textualism as a normative theory—with some discussion of level three. Level one, metatheory, gets us into a thorny set of issues that I hope to take up in a subsequent entry in the Legal Theory Lexicon series.
    The Plain Meaning of the Text Let’s begin with a basic question: what do we mean when we say “the plain meaning of the text.” A really good answer to that question would require us to develop a theory of meaning in general, but we must avoid that enterprise--at least for the purposes of this post. At one level, the idea of plain meaning is pretty simple. The plain meaning of a legal text is the meaning that would be understood by regular folks who knew that they were reading a statute (or court decision, etc.).
    But this preliminary formulation is too simple. Some laws are meant for all citizens (e.g., criminal statutes) and some are meant only for specialists (e.g., some sections of the tax code). A text that means one thing in a legal context, might mean something else if it were in a technical manual or a novel. So the plain meaning of a legal text is something like the meaning that would be understood by competent speakers of the natural language in which the text was written who are within the intended readership of the text and who understand that the text is a legal text of a certain type.
    An Excursion into Speakers Meaning and Sentence Meaning I may be making a mistake, but I think that textualism is illuminated by an excursion into what is sometimes called speech act theory, and in particular, by looking at the concepts of “speaker’s meaning” and “sentence meaning.” So here goes:
      Speaker’s Meaning and Sentence Meaning This idea of plain meaning assumes a distinction that can be formulated in terms of the difference between speaker’s meaning and sentence meaning. The speaker’s meaning of a given utterance (or author’s meaning of a given text) is the meaning that the speaker intended the audience to glean for the utterance (or text). This involves a reflexive set of expectations. What? When I write a text, I understand that the reader know certain things about my having authored the text. When I try to communicate, I take these expectations into account in deciding how to use language to communicate a certain meaning. For example, if I know that my readers know that I know that they know a particular convention, then I can use that convention to communicate to them. (By the way, there are no typos in the prior sentence, all those “knows” are in there for a reason.)
      So when I blog, I know that the readers of blogs assign a particular meaning to the word “post,” and I also know that my readers know that I know that they know this blogospheric convention. So I can use the term “post” to refer to blog entries with confidence that my readers will understand what I mean. On the other hand, if I were writing about blogging for an audience that had never encountered a blog, I would probably need to define the term “post,” before I used it, and if I used the term “post” without defining it, then my audience would likely believe I was referring to mail and not blog entries.
      In other words, when someone speaks or writes for a particular audience on a particular occasion, the speaker or author can take into account what she knows about the audience, what the audience knows about her, but only insofar as the speaker knows that the audience knows what the speaker knows about the audience.
      Speaker’s meaning can be distinguished from sentence meaning. Sentence meaning is the meaning that an utterance has when the audience is unaware of the speaker’s intentions. When we identify sentence meaning, it is as if we were imaging a sot of generic speaker, who uttered the sentence in a generic context. Or putting this a bit differently, sentence meaning is the meaning we would assign sentences when we know that the speaker can’t assume that we are aware of special conventions and/or special intentions that would be relevant to meaning.
      Legal Texts, Sentence Meaning & Speaker’s Meaning Legal texts are sometimes intended for a timeless, generic readership. The authors of legislation, for example, know that many different actors (judges, lawyers, administrative officials, and ordinary citizens) will read the statute for an extended period of time in a variety of different conditions. Many of these readers will not be able to afford access to analysis of the legislative history of the statute; they will simply read the statute itself. Of course, they will know that the text they are reading is a statute, and they will therefore have a fair amount of knowledge about the likely intended meaning of various terms and phrases. Moreover, the legislature knows that the readers of statutes will have this knowledge. So it might make sense to assume that the speaker’s meaning that should be assigned to a legal text is a special version of the sentence meaning of the text, e.g. legal sentence meaning.
    The Case for Textualism If we view textualism as a normative theory of interpretation, we need to ask to ask why interpreters of legal texts should aim for interpretations that yield that “plain meaning of the text.” The usual answer to this question is that plain meaning best serves the rule of law values of publicity, predictability, certainty, and stability of the law. One of the important rule of law values is publicity: the law should be accessible to ordinary citizens. Ordinary citizens are likely to interpret statutes to have their plain meaning, because ordinary folks rarely have the training to understand legislative history and even if they did have such training, it would simply be too costly to analyze the legislative history of statutes to determine their meaning.
    Lawyers who counsel citizens and organizations do have the training to analyze legislative history, but can more easily and cheaply discern the plain meaning of a statute than some special meaning that only becomes clear once the legislative history is consulted. Moreover, analysis of legislative history can be quite complex, because some sources of legislative history (e.g. the statements of floor managers) are much more reliable than others (e.g. the statements of opponents of a bill or of the author of a bill). Because of the complexity of statutory interpretation, lawyers are likely to disagree about the meaning of legislative history and to err when predicting how a court will interpret legislative history.
    The same difficulties that afflict lawyers plague judges. Moreover, most legal research done for federal judges is done by very young lawyers serving as law clerks. This group usually lacks experience in researching legislative history, and their performance is likely to be highly variable. Moreover, because legislative history will frequently contain many conflicting, ambiguous, and vague statements, it is possible that legislative history is easily subject to manipulation, giving judges the opportunity to support their own policy preferences with evidence of the “intentions of the legislature.”
    Textualism as a Practical Methodology Even if textualism does not provide the best ideal theory of legal interpretation, it might be the case that textualism does provide the best practical method of interpretation given the capacities of real world judges and officials. Suppose that we want to interpret statutes to achieve the purposes of the legislature. At first blush, it might seem that the best way to do this would be to have courts and officials employ an intentionalist methodology, combing the legislative record for evidence of legislative intent. But as a practical matter, it may turn out that judges aren’t very good at doing this. So it might be the case that real-world judges are more likely to implement legislative purposes by employing a fairly simple plain-meaning approach as methodology for statutory interpretation. And to the extent that legislators know that judges will employ this approach, legislators could draft with the expectation that judges will use a plain-meaning methodology, which presumably would lead to even closer fit between the plain meaning and the achievement of legislative purpose.
    Conclusion “Textualism” is just one of many approaches to the theory of legal interpretation, but it is an especially good place to begin thinking about issues of interpretation in law. One of the very best ways to become a sophisticated thinker about these issues is to take a really good course in statutory interpretation. Not so long ago, statutory interpretation was considered a dead field, but today there is a tremendous flowering of interesting and exciting scholarship about the interpretation of statutes. I hope that this post has whetted your appetite!


Saturday, March 11, 2006
 
Legal Theory Bookworm The Legal Theory Bookworm recommends The Politics of Precedent on the U.S. Supreme Court by Thomas G. Hansford, James F., II Spriggs. Here's a blurb:
    The Politics of Precedent on the U.S. Supreme Court offers an insightful and provocative analysis of the Supreme Court's most important task--shaping the law. Thomas Hansford and James Spriggs analyze a key aspect of legal change: the Court's interpretation or treatment of the precedents it has set in the past. Court decisions do not just resolve immediate disputes; they also set broader precedent. The meaning and scope of a precedent, however, can change significantly as the Court revisits it in future cases. The authors contend that these interpretations are driven by an interaction between policy goals and variations in the legal authoritativeness of precedent. From this premise, they build an explanation of the legal interpretation of precedent that yields novel predictions about the nature and timing of legal change. Hansford and Spriggs test their hypotheses by examining how the Court has interpreted the precedents it set between 1946 and 1999. This analysis provides compelling support for their argument, and demonstrates that the justices' ideological goals and the role of precedent are inextricably linked. The two prevailing, yet contradictory, views of precedent--that it acts either solely as a constraint, or as a "cloak" that never actually influences the Court--are incorrect. This book shows that while precedent can operate as a constraint on the justices' decisions, it also represents an opportunity to foster preferred societal outcomes.


 
Download of the Week The Download of the Week is "Silence and Freedom" by Michael Seidman. The link takes you excerpts from Mike's new book. Based on excerpts, this will be an important and deeply interesting work. Here's a taste:
    My basic claim, though, is simple enough. It has two branches. First, silence can be an expression of freedom, and when it is, it is not alienating at all. A defiant silence demonstrates determination, courage, and will. For example, a long line of martyrs from a variety of faith traditions have given up their lives rather than renounce their god. I admire the courage Dashiell Hammett, who went to jail rather than name names, and of the thousands of anonymous draft resisters who refused to take a military oath that was a prelude to participation in an immoral war. And there are other kinds of silence that are also liberating. A contemplative silence can produce understanding, acceptance, and wisdom. Even in individual relationships, silence is not only sullen. Sometimes, it is the deepest form of communication.
    These silences speak to us. They are a manifestation of connection, commitment, and meaning. When we are free in this deepest sense, we are able to communicate by how we act and by who we are. Words only get in the way.
    Second, even when silence is the result of alienation, we need to protect it in order to give meaning to speech. Put slightly differently, for speech to be truly free, there must also be silence. While in some contexts, silence is freedom, in others, it is the necessary frame for freedom.
Download it while it's hot!


Friday, March 10, 2006
 
At Lewis and Clark Today I'm at the conference on Open Access Publishing and the Future of Legal Scholarship at Lewis and Clark in Portland today. As you might guess, I'm intensely interested in the topic. I hope to post later in the day about the discussion. Scroll up for the schedule and links to some of the papers.


 
Friday Calendar
    Lewis and Clark: Open Access Publishing and the Future of Legal Scholarship
      9:00 a.m.
        Michael Carroll - "The Open Access Law Movement" (pre-conference draft) Dan Hunter - "On the Prospect of Open Access to Infinite Content (in Law)"
      10:45 a.m.
        Jessica Litman - "The Economics of Open Access Publishing" (pre-conference draft) Olufunmilayo B. Arewa - "Open Access in a Closed Universe: Lexis, Westlaw and the Law School" (pre-conference draft)
      1:45 p.m.
        Lawrence B. Solum - "Download It While It’s Hot: Open Access, Intermediaries, and the Dissemination of Legal Scholarship" Ann Bartow - "Open Access, Law, Knowledge, Copyrights, Dominance and Subordination"(pre-conference draft)
      3:30 p.m. 5:00 p.m. Closing of Conference


Thursday, March 09, 2006
 
Lash & Harrison on Marshall and the Minority Report on the Alien and Sedition Acts Kurt T. Lash and Alicia Harrison (Loyola Law School, Los Angeles) have posted Minority Report: John Marshall and the Defense of the Alien and Sedition Acts on SSRN. Here is the abstract:
    In 1799, the Federalist minority of the Virginia House of Delegates produced an extended defense of the Alien and Sedition Acts. This "Minority Report" responded to Madison's famous Virginia Resolutions and efforts by Virginia Republicans to tar the Adams Administration with having exceeded its powers under the federal Constitution. Originally attributed to John Marshall by biographer Albert Beveridge, recent biographies of Marshall have omitted the episode or rejected Beveridge's claim. The current editors of the Papers of John Marshall omitted the Minority Report from their multi-volume collection of Marshall's work and have successfully lobbied editors of similar collections to remove Marshall’s name from the Report. What was once an assumed (if controversial) episode in Marshall's career has disappeared from otherwise exhaustive accounts of his life and work. As in Philip K. Dick’s story, Minority Report, an alternate view of events has been unceremoniously erased from the official record. The authors of this article challenge the decision to remove Marshall's name from the Minority Report. Marshall was the only person named at the time as the probable author, and Marshall had both reason and opportunity to draft the Address. The arguments of the Report not only track Marshall's views on the Constitution, they utilize constitutional arguments that were wholly unique at the time and would appear again, almost verbatim, in the future-Chief Justice's constitutional opinions. If Marshall penned this defense of the Acts, then this not only reveals the views of federal power he brought with him to the Supreme Court, it also helps illuminate public reaction to Chief Justice Marshall's nationalist jurisprudence. To his critics, Marshall's construction of federal power in McCulloch echoed the same arguments put forward to defend the hated Alien and Sedition Acts. The historical evidence suggests that not only were the arguments similar, they had flowed from the same pen.
I read a draft of this a few days ago. Very persuasive.


 
Thursday Calendar


Wednesday, March 08, 2006
 
Wednesday Calendar
    University of Georgia Law: Michael Perry (Emory): Is capital punishment constitutional under the Eighth Amendment? And if it's not, should the Supreme Court so rule?
    University College, London, Colloquium in Legal and Social Philosophy: Professor Hillel Steiner, Manchester, A Famous Conflict
    NYU Legal History: David Konig, Professor of Law & History, Washington University at St. Louis, "Credit, Courts, and the Formation of a Property Regime in Seventeenth-Century Virginia"
    University of Cincinnati Law: Rebecca Zietlow, University of Toledo College of Law, “Enforcing Equality: Congress, the Constitution and the Protection of Individual Rights.”


 
Conference Announcement: Criminal Legislation and Sentenching at Hebrew University
    Conference on Criminal Legislation and Sentencing (Hebrew University School of Law, March 9-10, 2006) Thursday, March, 9: Maiersdorf Faculty Club, Room 501, Mount Scopus 10.00-12.30 Morning Session: Drafting Criminal Codes 10.00-10.45 Paul Robinson will discuss issues concerned with drafting criminal codes, in light of his articles: "The Accelerating Degradation of American Criminal Codes" 56 Hastings L.J. 633 (2005)*, and "The Five Worst (and the Five Best) American Criminal Codes" 95 Northwestern University L. Rev. 1 (2000), pp. 1-20*. 10.45-12.30 Comment (Daniel Ohana and Keren Shapira) and Discussion 13.00-14.30 Lunch and conversation with Paul Robinson on his experiences in drafting an Islamic criminal code. 16.00-20.00 Afternoon Sessions: Binding Judicial Discretion in Sentencing 16.00-17.30 Session I: Theoretical Perspectives Presentations by Alon Harel, Oren Gazal, Shai Lavi and Yoram Shachar, followed by discussion. 18.00-20.00 Session II: The Proposal of the Ministry of Justice* Comments by a representative of the Ministry of Justice, a representative of the "Crime Group", Yoav Sapir (the Deputy Public Defender) and Paul Robinson, followed by discussion Friday, March 10: Belgium House, Room 13, Givaat Ram 09.30-10.15 Paul Robinson, "Intuitions of Justice". 10.15-11.00 Alon Klement and Alon Harel, "The Economics of Shaming: Why More Shaming May Deter Less". Oren Gazal, "Partial Ban on Pleas Bargains". 12.15-14.00 Assaf Hamdani, to be determined.


 
Lecture Announcement: Perry on Capital Punishment at Brooklyn
    Does Capital Punishment Violate the Eighth Amendment? Tue. April 04 Professor Michael Perry, Emory University School of Law Begin 4:00 pm End 5:00 pm Location Brooklyn Law School 250 Joralemon Street Subotnick Center Brooklyn, New York 11201 http://www.brooklaw.edu/news/calendars/index.php?evtID=3257&startDate=&month=4&calID= Directions http://www.brooklaw.edu/map/ RSVP RSVP online by March 28, 2006. Description Michael J. Perry is one of the nation's leading authorities on the relationship of morality and the law. He holds the Robert W. Woodruff Chair at Emory University School of Law, its highest honor, and has been a member of its faculty since 2003. Previously he was the University Distinguished Chair in Law at Wake Forest University, where he taught for six years, and the Howard J. Trienens Chair in Law at Northwestern University, where he taught for 15 years. Professor Perry's work has focused on three areas: American constitutional law, law and morality, and law and religion. He has written extensively on some of the most contentious issues of American law and politics, and is the author of nine books, published by Oxford, Cambridge and Yale University presses, and over 60 articles and essays. Perry received his A.B. from Georgetown University and his J.D. from Columbia University.


 
Conference Announcement: Demandingness in Dundee
    The AHRC Scottish Ethics Network First International Conference: Ethics and Demandingness Dundee, Scotland, July 14-16 2006 Confirmed plenary speakers: Liz Ashford (University of St Andrews) John Cottingham (University of Reading) Garrett Cullity (University of Adelaide) Keith Horton (Charles Sturt University) Brad Hooker (University of Reading) Tim Mulgan (University of St Andrews) David Sobel (Bowling Green State University) Christine Swanton (University of Auckland, NZ) Alan Thomas (University of Kent) Submitted papers from: Timothy Chappell (The Open University) Alison Hills (University of Bristol) Robin Lawlor (University of Leeds) Jennie Louise (University of Adelaide) James Mahon (Washington and Lee University) Michelle Mason (University of Minnesota) Soran Reader (University of Durham) Theo van Willigenburg (Free University of Amsterdam) Graduate papers from: Susan Hawthorne (University of Minnesota) Brian McElwee (University of St Andrews) Attila Tanyi (Central European University)* Mariette van den Hoven (University of Utrecht) To register: email t.d.j.chappell@dundee.ac.uk stating any dietary or other special needs you may have. Registration for the conference is free if you are based in a Philosophy Department in Scotland, or are giving a paper; there is a £30 registration fee for other delegates. Further information, including a full timetable, a list of suitable guest houses and hotels, and instructions on how to get to Dundee, will be posted shortly on the Dundee Philosophy Webpage.


Tuesday, March 07, 2006
 
Lateral Hiring Report Updated The ongoing lateral report at Concurring Opinions has been updated: Lateral Moves by Law School Faculty 2006.


 
Help on the Entry Level Report Thanks to everyone for all the help on the entry-level report, which now includes over 80 entry level hires. Please email reports to me at lsolum@gmail.com. In addition to reports of entry-level hires, I am also interested in hearing from schools that will not do any entry-level hiring in the 2005-06 hiring season.
The current version of the report can be found at this link.


 
Book Announcement:
    THE COMMON LAW TRADITION: A Collective Portrait of Five Legal Scholars by George W. Liebmann ISBN: 1-4128-0560-0; 385 pages; Paper; $29.95/ £22.50/$C36.95 "George Liebmann’s skillful blending of biography and legal history makes The Common Law Tradition a must-read book for anyone who wants to understand the development of American law in the twentieth century. His analysis of the values that animated his five protagonists also prompts reflection on the qualities of mind and character that are needed to sustain the rule of law in a democratic republic." —Mary Ann Glendon, Learned Hand Professor of Law, Harvard University This book commemorates a place and a time in American law teaching, but more importantly, an outlook: the common law tradition. That outlook was empirical and tolerant. These values were carried into expression by a group of people who were not part of a cult or faction nor ruled by the herd instinct. In The Common Law Tradition George W. Liebmann has prepared a collective portrait of five scholars who epitomize the tradition. The focus is Chicago in the 1960s, when the "law and economics" movement occupied a rather minor place. The five figures considered—Edward H. Levi, Harry Kalven, Jr., Karl Llewellyn, Philip Kurland, and Kenneth Culp Davis—did much to broaden the perspectives of the legal academy. Levi made use of sociology, economics, and comparative law. Kalven collaborated with sociologists on the Jury Project and with economists on tax law and auto compensation plans. Llewellyn’s commitment to empirical research underpinned his work on the Uniform Commercial Code. Kurland’s approach to constitutional law was highlighted by his insistence on the relevance of legal history. Davis was an energetic comparativist in his work on administrative law. What distinguished these Chicagoans is that their work was practical and rooted in the law, and hence yielded concrete applications. The group’s diversity, the tolerant atmosphere in which they taught and wrote, and the attachment of its individual members to empirical approaches differentiate them from today’s legal scholars and make their ideas of continuing importance. The Common Law Tradition examines these figures’ lives and achievements, and assesses the extent to which their immediate agendas were realized. In a year devoted to celebration of the constitutional heroics instigated by Brown v. Board of Education, this book provides a reminder of what has been lost during the last fifty years: a consensual, gradualist, and empirical approach to law reform. George W. Liebmann is a Baltimore lawyer in private practice with the firm of Liebmann and Shively, P.A. He has been Simon Industrial and Professional Fellow at the University of Manchester and Visiting Fellow at Wolfson College, Cambridge. He is the author of many works, including Maryland District Court Law and Practice, The Little Platoons, and Neighborhood Futures, published in a paperback edition by Transaction. ISBN: 1-4128-0560-0; 385 pages; Paper; $29.95/ £22.50/$C36.95 (Shipping and handling fees apply: For United States add $5.50 per book, for all others, please call or check website for details) Mention Code OF06 01GL and Save 20 %. Web orders also receive 20 % discount.


 
Roundup on Rumsfeld v. Fair Paul Caron has an excellent roundup of reaction to the Supreme Court's Solomon Amendment decision.


 
Conference Announcement: Nussbaum's Hiding from Humanity at Newcastle
    NUSSBAUM'S HIDING FROM HUMANITY: AUTHOR MEETS CRITICS Research Beehive 2.29, Old Library Building University of Newcastle, UK Monday, 3rd April 2006 Conference website: http://www.ncl.ac.uk/niassh/Nussbaum/ In 2004, Martha Nussbaum publisher her important new book _Hiding from Humanity: Shame, Disgust, and the Law_ (Princeton, NJ: Princeton University Press). This book explores the important and often neglected relationship between emotions and the law. The conference will bring together four philosophers---David Archard (Lancaster), Thom Brooks (Newcastle), Willie Charlton (Retired), and John Haldane (St Andrews)---with replies to each by Martha Nussbaum. Martha Nussbaum is Ernst Freund Distinguished Service Professor of Law and Ethics at the University of Chicago, appointed in the Philosophy Department, Law School and Divinity School. She is an Associate in the Classics Department and the Political Science Department, an Affiliate of the Committee on Southern Asian Studies, and a Board Member of the Human Rights Program. She is the founder and Coordinator of the new Center for Comparative Constitutionalism. Her Hiding From Humanity won the Association of American University Publishers Professional and Scholarly Book Award for Law in 2004. PROGRAMME: 10.30-11.00am Registration (tea/coffee) 11.00-12.15pm Speaker: Willie Charlton (Retired) Respondent: Martha Nussbaum (Chicago) Chair: Peter Jones (Newcastle) 12.15-1.15pm Lunch 1.15-2.30pm Speaker: David Archard (Lancaster) Respondent: Martha Nussbaum (Chicago) Chair: Sandra Marshall (Stirling) 2.30-2.45pm Break 2.45-4.00pm Speaker: Thom Brooks (Newcastle) Respondent: Martha Nussbaum (Chicago) Chair: Fabian Freyenhagen (Cambridge) 4.00-4.30pm Tea/coffee 4.30-5.45pm Speaker: John Haldane (St Andrews) Respondent: Martha Nussbaum (Chicago) Chair: Alison Stone (Lancaster) REGISTRATION: Students/unwaged: £10 Waged: £15 Registration includes two teas/coffees and buffet lunch. The conference is open to all. Funding for postgraduate students is available on a first come, first serve basis. Information on registration and travel is available from our conference website: http://www.ncl.ac.uk/niassh/Nussbaum/ For additional information, please contact Dr Thom Brooks (email: t.brooks@newcastle.ac.uk). The conference is supported generously by the Newcastle Institute for the Arts, Social Sciences, and Humanities (NIASSH); the Newcastle Legal Theory Network; the Newcastle Political Philosophy Group; Princeton University Press; the School of Geography, Politics, & Sociology; and the Society for Applied Philosophy.


 
Tuesday Calendar


Monday, March 06, 2006
 
Monday Calendar


Sunday, March 05, 2006
 
Legal Theory Calendar


 
Legal Theory Lexicon: Public and Private Goods
    Introduction One of the most powerful ideas that legal theory borrows from economics is the idea of a "public good." Sooner or later law students learn that within the framework of contemporary neoclassical economics, the standard line is that public goods (e.g. national security) should be provided by government whereas private goods (automobiles) ought to be provided by markets. For legal theorists, the line between public and private goods tracks one of the important fault lines in the law--between the private law fields of property, contract, tort, and so forth and public law fields such as environmental law, administrative law, and constitutional law. This post provides a basic introduction to the economic distinction between public and private goods for law students (especially first year law students) with an interest in legal theory.
    It may be helpful to quickly preview the basic idea. So here goes:
    • Public goods have two characteristics--nonrivalrousness and nonexcludability. For example, consumption of national defense is nonrivalrous (my being protected by the U.S. armed forces doesn't diminish your protection). National defense is a nonexcludable good: the Army cannot say to Mexico, "Solum hasn't paid his national defense bill, "Go ahead and attack him."
    • Private goods are rivalrous and excludable. If I own a laptop computer, my use of it diminished your ability to use it; therefore, my consumption of the laptop rivals yours. Moreover, I can exclude you from the use of my laptop (by locking it up when I am not using it).
    We use markets to provide goods like laptops (that excludable and rivalrous), but government provides goods like national defense (that are nonexcludable and nonrivalrous).
    A Note on Terminology: "Public Goods" versus "Public Interest" versus "Public Resources." Before we go any further, let's make sure we agree about how we are using the phrase "public good." This is important because the same phrase is used for different purposes in different contexts. So let's stipulate to the following:
    • The phrase "public good" or "public goods" shall be used to refer to the economists’ idea of good that meets the criteria of nonrivalrousness and nonexcludability.
    • The phrases "public interest" or "common good" shall be used to refer to the idea of goods that benefit the public at large as distinguished from goods or interests that benefit a faction (or "special interest group").
    • The phrase "public resource" shall be used to refer to private goods that are owned by the government or held in trust for the public. National parks are indisputably public resources, but it may not be the case that they are public goods in the economic sense.
    We could use the phrase "public good" to refer to the public interest or to public resources, but for the purposes of this post, let's stipulate that "public good" shall be reserved for the economic sense of the phrase.
    The Criteria for Public Goods There are two criteria by which public goods and distinguished from private goods. A good is public only if it is both nonrivalrous and nonexcludable. A good is private only if it is both rivalrous and excludable. (We will deal with the mixed cases in just a bit.)
    "Rivalrousness" is a property of the consumption of a good. Consumption of a good is rivalrous if consumption by one individual X diminished the opportunity of other individuals, Y, Z, etc., to consume the good. Some goods are rivalrous because they are "used up." If I drink a glass of Heitz Martha's Vineyard, then you cannot drink that same glass of wine. If set off a firecracker, you cannot set off the same firecracker. Other goods are rivalrous because of crowding effects. If I am using the free internet terminal at the student lounge, then you cannot use the same time slice of the terminal--because only one person can sit in front of the screen at the same time.
    "Excludability" is also a property of consumption of a good. It is helpful to distinguish two forms of excludability: (1) excludability through self help, and (2) excludability through law. If I want to exclude you from my land, I can build a fence--the exclusion results from self help. But if I want to exclude you from copying a novel that I've written and I want to make the novel generally available for sale, self help will not work. (It would be ridiculously expensive to hire a guard to monitor each copy or every photocopy machine.) Government, however, can make unauthorized copying a criminal offense or actionable civil wrong, thereby creating exclusion through law.
    Markets and Government The conventional view is that markets should provide private goods and government should provide public goods. The case for market provision of private goods relies on the idea of Pareto efficiency. The weak Pareto Principle is the simple idea that if some action would make at least one person better off and no one worse off, then that action is good. If we have a private good, e.g. a widget, and a willing buyer and seller, then allowing the sale is Pareto efficient: the buyer prefers the widget to the money and the seller prefers the money to the widget. If we assume that the transaction has no external costs (harms to third parties), then allowing the transaction makes buyer and seller better off and hence is required by the weak Pareto principle.
    But when we come to public goods, markets simply don't work. Why not? Most simply, because if a good is nonexcludable, then no one will pay for it. Suppose someone goes into the business of cleaning the air with a pollution removal machine. I won't voluntarily pay for this service, because I will be able to breathe the air even if I don't pay. If a private firm offered to defend me against foreign invaders, I won't voluntarily sign on. My individual payment would have a negligible effect on the size of the armed force. If others pay, I don't need to. If others don't pay, then my payment won't do any good. Of course, you will recognize that I am describing the free rider problem, a form of the Prisoner's Dilemma. Because markets cannot provide public goods, governments should.
    As you might expect, the argument for government provision of public goods and market provision of private goods is controversial. Socialists argue that governments may do a better job of providing private goods, because government planning can create welfare benefits that cannot be realized by markets. Libertarian legal theorists argue that markets can provide most if not all private goods for various reasons, including arguments that nonexcludability can often be overcome by ingenious market solutions. I won't get into either the socialist or the libertarian critique of the argument for market provision of private goods and government provision of public goods, but you should know that these criticisms have been extensively developed.
    The Expanded Typology: Public, Private, Toll, and Common Pool Goods So far, we have been assuming that excludability and rivalrousness go together and hence that there are only two categories, public goods and private goods. In fact, it is possible to have a good that is rivalrous but nonexcludable or one that is nonrivalrous but excludable. So there are four categories, not two:
      1. Public goods are nonrivalrous and nonexcludable.
      2. Private goods are rivalrous and excludable.
      3. Toll goods are nonrivalrous and excludable.
      4. Common pool goods are rivalrous and nonexcludable.
    Table One shows the four categories as a two-by-two matrix:
    Table One: Public, Private, Common Pool, Toll, and Club Goods.
    __________________________Excludable___________Nonexcludable___ _______________________________________________________________ ____________________|____________________|____________________| ____________________|____________________|____________________| ____________________|____________________|____________________| ____________________|_____Pure___________|_____Common_________| __________Rivalrous_|_____Private________|_____Pool___________| ____________________|_____Good___________|_____Good___________| ____________________|____________________|____________________| ____________________|____________________|____________________| _______________________________________________________________ ____________________|____________________|____________________| ____________________|____________________|____________________| ____________________|_____Club Good______|____________________| ____________________|____________________|_____Pure___________| _______Nonrivalrous_|____________________|_____Public_________| ____________________|_____Toll Good______|_____Good___________| ____________________|____________________|____________________| ____________________|____________________|____________________| _______________________________________________________________

    We've covered the first two categories, but we need to consider categories three and four. So let's do that now.
    Toll Goods and Intellectual Property A toll good is characterized by nonrivalrous consumption but excludability. Suppose we have a highway in a rural area, where the capacity of the highway would never be approached even if access were free. Nonetheless, use of the highway can be limited by the installation of toll booths. This means that we can charge for access to the highway. Economists call goods that are nonrivalrous but excludable "toll goods."
    One of the most important applications of the concept of a toll good in legal theory arises in the context of intellectual property. A simplified version of the conventional story goes something like this. Without intellectual property rights created by law, the information (e.g. the invention or composition) would be a pure public good. In a world without intellectual property, for example, the first copy of a new book could be copied by the first purchasers. This copy could then be copied by others. Eventually, the "free" copies would dominate the market. And this would destroy the incentives of authors to write! (More on the question whether this is right towards the end of this post.) Intellectual property law comes to the rescue. By enforcing patents and copyrights through legal sanctions, intellectual property law transforms information from a public good to a toll good. Intellectual property law creates excludability, but not rivalrousness. For more on this, see Water Wells and MP3 Files: The Economics of Intellectual Property.
    Common Pool Goods and the "Tragedy of the Commons" Common pool goods are rivalrous but non excludable. An example might be the fish resource in those portions of the ocean that are outside national waters (the high seas). This resource is rivalrous, because over fishing can result in a reduction of the stock of fish. But excludability is difficult to establish. Self-help would work for a localized fishing area where the fish population does not range over a large area; in theory a patrol boat could establish a virtual fence. But this solution won't work if the fish population ranges over a wide area of the high seas. Unless some international treaty regime can establish enforceable quotas, the result may be a "tragedy of the commons." Each fisher has an incentive to take the most she can, but the result of all fishers doing this is a depletion in the stock of fish that harms everyone. (Once again, we have a version of the Prisoner's Dilemma.)
    Club Goods We are almost done, but we have one or two more ideas to pick up. One is the idea of a "club good." A club good is a good where the utility of each individual's consumption of the good is a function of the number of others who consume the good. Take a golf course. If too many people try to use the course simultaneously, then the utility that each derives from the experience goes down. Golfers have to wait for tee times, the course is crowded, and so forth. In other words, there are "crowding" problems. One solution to such problems is to form a "club," which limits the number of persons with the right to use the golf course.
    Private Goods and the "Tragedy of the Anticommons" And finally, we should note the flip side of the tragedy of the commons, dubbed by Frank Michelman, "the tragedy of the anticommons." This refers to the phenomenon where ownership in a resource has been divided among so many owners that transaction costs and holdout problems prevent Pareto efficient transactions from occurring. For example, when property was "privatized" in the former Soviet Union, a single apartment building might end up with many, many fractional owners, including ownership interests by various government entities and the residents of the building. In theory, every owner must agree before a transaction involving the building could take place. Given the large number of owners, the costs of completing the transaction and paying off the holdouts (those who withhold consent in order to increase their share of the profits) can make the transaction economically unattractive. This is a case where the market is incapable of efficiently allocating a pure private good.
    Conclusions The public/private goods distinction is basic to a variety of topics in legal theory. Whenever you encounter a resource allocation problem, ask yourself, "Is this resource a public, private, toll, or common pool good?" And then ask, "Could a change in the legal rules governing this resource change its status?" Although the terminology may be daunting at first, they are really very simple and straightforward.


Saturday, March 04, 2006
 
Legal Theory Bookworm The Legal Theory Bookworm recommends Before the Next Attack : Preserving Civil Liberties in An Age of Terrorism by Bruce Ackerman. Here is a blurb:
    Terrorist attacks regularly trigger the enactment of repressive laws, setting in motion a vicious cycle that threatens to devastate civil liberties over the twenty-first century. In this clear-sighted book, Bruce Ackerman peers into the future and presents an intuitive, practical alternative. He proposes an “emergency constitution” that enables government to take extraordinary actions to prevent a second strike in the short run while prohibiting permanent measures that destroy our freedom over the longer run. Ackerman’s “emergency constitution” exposes the dangers lurking behind the popular notion that we are fighting a “war” on terror. He criticizes court opinions that have adopted the war framework, showing how they uncritically accept extreme presidential claims to sweeping powers. Instead of expanding the authority of the commander in chief, the courts should encourage new forms of checks and balances that allow for decisive, but carefully controlled, presidential action during emergencies. In making his case, Ackerman explores emergency provisions in constitutions of nations ranging from France to South Africa, retaining aspects that work and adapting others. He shows that no country today is well equipped to both fend off terrorists and preserve fundamental liberties, drawing particular attention to recent British reactions to terrorist attacks. Written for thoughtful citizens throughout the world, this book is democracy's constitutional reply to political excess in the sinister era of terrorism.


 
Download of the Week The Download of the Week is "Therapeutic Forgetting: The Legal and Ethical Implications of Memory Dampening" by Adam Kolber. Here is the abstract:
    Neuroscientists have made surprising advances in identifying drugs to dampen the emotional intensity of traumatic memories. Such drugs hold promise for those plagued by painful memories of terrorism, military conflict, assault, car accidents, and natural disasters. Yet some ethicists, including members of the President’s Council on Bioethics, claim that memory-dampening drugs may lead us to forget people and events that we are obligated to remember. They also fear that such drugs will reduce the value of eyewitness testimony and help criminals hide their tracks. After describing the legal and ethical implications of memory dampening, I argue that the Council is unnecessarily alarmed. While memory is an essential component of personal identity and we do sometimes have obligations to remember, the Council’s concerns are founded on controversial premises that unjustifiably privilege our natural cognitive abilities. Furthermore, while perhaps we ought sometimes restrict memory dampening, a general prohibition would be unjustified. We have a deeply personal interest in controlling our own minds that entitles us to a certain “freedom of memory.”
Highly recommended!


Friday, March 03, 2006
 
Friday Calendar
    Samford, Cumberland Law: Christine Hurt, Regulating Public Morals and Private Markets: Online Securities Trading, Internet Gambling and the Speculation Paradox.
    Boston College: Martha L. Minow, Harvard Law School
    Georgetown Law & Economics: Scott Baker, University of North Carolina School of Law, "Incomplete Contracts in a Complete Contracts World" (with K. Krawiec)
    Loyola, Los Angeles: Roger C. Park, Distinguished Professor of Law, UC Hastings College of the Law, "The Utility of Cross-Examination"
    Notre Dame Law: Professor Douglas Kysar, Cornell Law School
    Ohio State Law: Elizabeth Garrett, The Promise and Perils of Hybrid Democracy*
    UCLA Law: Richard C. Schragger, Associate Professor of Law, University of Virginia School of Law, "Can Strong Mayors Empower Weak Cities? Considering the Power of Local Executives in a Federal System"
    University of Texas Law: David Barron, Harvard University, "International Local Government Law"
    University of Maryland, Conference:
      2:00-3:25ish PM Session 1: The Liberal Tradition and America's Past
        Robin Rix Nackenoff Frymer
      3:35ish-5:00ish PM Session 2: The Liberal Tradition and America's Present/Future
        Kahn Smith Silverstein Novkov
    St. Johns Law: Federalism Past, Federalism Future: A Constitutional Law Symposium
    University of Arizona Law: Economic Torts Conference
      8:30 a.m. Welcome * Toni M. Massaro, Dean, The University of Arizona James E. Rogers College of Law * Debora de Hoyos, Esq., Managing Partner, Mayer, Brown, Rowe & Maw, LLP * Lance Liebman, Director, The American Law Institute 8:45 a.m Introductory Remarks * Ellen M. Bublick, The University of Arizona James E. Rogers College of Law 9:00 a.m. Opening Speaker * The Honorable Richard A. Posner, U.S. Court of Appeals, Seventh Circuit Economic Loss and Misrepresentation 9:30 a.m. Questions & Answers 10:00-11:45 a.m. Panel 1: The Economic Loss Rule and Its Limits Moderator: Dan B. Dobbs, The University of Arizona James E. Rogers College of Law Speakers: * Mark P. Gergen, The University of Texas School of Law Non-Contractural Undertakings of a Duty of Care * Anita Bernstein, Emory University School of Law and New York Law School Why No Liability for Pure Economic Loss? * Jean Braucher, The University of Arizona James E. Rogers College of Law The Dormant Law of Economic Torts in the Shadow of Consumer Protection Statutes * Jay M. Feinman, Rutgers, The State University of New Jersey School of Law, Camden The Economic Loss Rule and Private Ordering * Commentator: Robert L. Rabin, Stanford Law School 12:00 noon Lunch * Helmut Koziol, Executive Director, European Centre of Tort and Insurance Law and Director of the Research Unit for European Tort Law of the Austrian Academy of Sciences Recovery for Economic Loss in the European Union 1:30-3:00 p.m. Panel 2: Principles of Recovery in Economic Torts Moderator: The Honorable Andrew D. Hurwitz, Arizona Supreme Court Speakers: * Deborah A. DeMott, Duke Law School Breach of Fiduciary Duty * Ellen Smith Pryor, Southern Methodist University Dedman School of Law Bad Faith * Ian Ayres, Yale Law School and Gregory Klass Georgetown University Law Center New Rules for Promissory Fraud * Commentator, Theodore J. Schneyer The University of Arizona James E. Rogers College of Law 3:15-4:15 p.m. Panel 3: Economic Torts: A View From Experience Moderator: Herbert Zarov, Mayer, Brown, Rowe & Maw, LLP Speakers: * Charles J. Kalil, Corporate Vice President, General Counsel and Corporate Secretary, The Dow Chemical Company * Howard Roin, Mayer, Brown, Rowe & Maw, LLP * Deborah R. Hensler, Stanford Law School


 
Larson on the Constitutional Law of Treason Carlton Larson (UC Davis) has posted The Forgotten Constitutional Law of Treason and the Enemy Combatant Problem on SSRN. Here is the abstract:
    This Article argues that the issue of enemy combatant detentions should be studied through the lens of the Treason Clause of Article III. Specifically, the Article argues that the Treason Clause prohibits the exercise of military authority over individuals who are subject to the law of treason, a category that includes not only United States citizens, but almost all persons merely present within the United States. From at least the seventeenth century through the nineteenth century, English and American treatise writers, public officials, and courts consistently distinguished between persons subject to the law of treason, and thus entitled to trial under the ordinary processes of the criminal courts, and persons who could be treated as enemies under military authority. This long-standing rule was abandoned without coherent explanation by the Supreme Court in the 1942 decision of Ex parte Quirin, a decision unfortunately affirmed in 2004 by Hamdi v. Rumsfeld. This Article argues for reinstatement of the traditional rule. The Article also argues that many terrorist actions are appropriately punished as treason, either as acts of levying war against the United States or of adhering to their enemies. Rather than representing a fundamental departure from the ordinary criminal law paradigm, terrorist actions fit comfortably within it.


Thursday, March 02, 2006
 
Hoffman Writes the Best Puffery Article Ever David Hoffman (Temple) has posted The Best Puffery Article Ever (forthcoming Iowa Law Review) on SSRN. Here is the abstract:
    This Article provides the first extensive legal treatment of an important defense in the law of fraud and contracts: "puffery." Legal authorities commonly say they make decisions about whether defendants should be able to utter exaggerated, optimistic, lies based on conclusions about buyer behavior, concluding that consumers do not rely on such speech. However, as the Article shows, such conclusions are proxies for a deeper analytical question: does the speech encourage or discourage a type of consumption activity that the court deems welfare maximizing. The Article presents a novel constitutional analysis of puffery doctrine that focuses on the meaning of "misleading" speech, a term of art at the heart of the Supreme Court's contested and still evolving commercial speech jurisprudence. Missing from that jurisprudence is a satisfactory account of how consumers and investors react to speech that is not literally false but which has false implications. I present such an account, focused on the incentives and capabilities of sellers to exploit buyers' cognitive vulnerabilities. I draw on economic, marketing, psychology and consumption literatures. I conclude by offering a novel liability proposal. Because legal authorities are incapable of satisfactorily drawing a line between harmful and innocuous puffery, the law should make sellers presumptively liable if their speech contains exaggerated, but vague boasts. This approach would place the onus on sellers to balance the costs and benefits of puffery, and thus lead both to more satisfying doctrine and a more optimal level of fraud.
Mere puffery cannot do this article justice.


 
Conference Announcement:
    Duke Law Journal 36th Annual Administrative Law Conference: "Administrative Law and Emergency Management: Hurricane Katrina and Beyond." Website: http://www.law.duke.edu/conference/dlj/ The conference will be held at Duke University on March 24, 2006. The website has a list of speakers and the topics they will be addressing. Also, there is a link to a webform for people to register and pay for the conference. Last, CLE credit is available.


 
Lateral Hiring Report Check out Lateral Moves by Law School Faculty 2006 over at Concurring Opinions. Lot's of data!


 
Thursday Calendar
    Yale Legal Theory Workshop: Jennifer Mnookin, UCLA (Law), Envisioning Evidence: Expertise and Visual Proof in the American Courtroom
    Boston University Law: Henry Smith (Visiting Professor of Law, Harvard Law School and Professor of Law & Cognitive Science, Yale Law School), "Modularity in Intellectual Property"
    Brooklyn Law: Daniel Greenwood, Visiting Professor of Law, Brooklyn Law School, Are Shareholders Entitled to the Residual?
    Florida State Law: Jill Fisch, Fordham University School of Law
    Fordham Law: Sonia K. Katyal, Associate Professor of Law, Fordham University School of Law, "Trademark Intersectionality"
    UC Berkeley Center for Law and Technology & Berkeley Center for Law, Business and the Economy: Symposium on Legal and Policy Issues in Stem Cell Research
    UC Berkeley, Kadish Center: Hans Sluga, Professor of Philosophy, University of California, Berkeley, The Care of the Common
    NYU Colloquium on Tax Policy and Public Finance: Joseph Bankman, Stanford Law School, and David Weisbach, University of Chicago Law School, “The Superiority of an Ideal Consumption Tax Over an Ideal Income Tax.”
    Northwestern Tax Series: Calvin H. Johnson, Andrews & Kurth Centennial Professor, University of Texas at Austin "Tales From the KPMG Skunk Works: The Basis-Shift or Defective-Redemption Shelter"
    Oxford Jurispurdence Discussion Group: Juan Cruz Parcero, Reasons to Justify Rights
    Oxford Public International Law Discussion Group: Judge Allan Rosas, International Law in the European Court of Justice
    Stanford Law & Economics: Marcel Kahan (New York University Law School), "Hedge Funds in Corporate Governance and Corporate Control"
    University College, London, Current Legal Problems Lecture: Mindy Chen-Wishart, (Merton College Oxford), ‘Undue Influence: Vindicating Relationships of Influence’
    University of North Dakota, Indian Law Center: Philip S. (Sam) Deloria, "Indians in Legal Education"


 
Kolber on Therapeutic Forgetting Adam Kolber (University of San Diego School of Law) has posted "Therapeutic Forgetting: The Legal and Ethical Implications of Memory Dampening" on SSRN. Here is the abstract:
    Neuroscientists have made surprising advances in identifying drugs to dampen the emotional intensity of traumatic memories. Such drugs hold promise for those plagued by painful memories of terrorism, military conflict, assault, car accidents, and natural disasters. Yet some ethicists, including members of the President’s Council on Bioethics, claim that memory-dampening drugs may lead us to forget people and events that we are obligated to remember. They also fear that such drugs will reduce the value of eyewitness testimony and help criminals hide their tracks. After describing the legal and ethical implications of memory dampening, I argue that the Council is unnecessarily alarmed. While memory is an essential component of personal identity and we do sometimes have obligations to remember, the Council’s concerns are founded on controversial premises that unjustifiably privilege our natural cognitive abilities. Furthermore, while perhaps we ought sometimes restrict memory dampening, a general prohibition would be unjustified. We have a deeply personal interest in controlling our own minds that entitles us to a certain “freedom of memory.”
I've been reading this paper, which is highly recommended!


Wednesday, March 01, 2006
 
Wednesday Calendar
    University College, London, Colloquium in Legal & Social Philosophy: Scott Shapiro (Michigan), Massively shared agency
    NYU Legal History: Bernadette Meyler, Assistant Professor, Cornell Law School, "Towards a Common Law Originalism”
    UCLA Legal History Workshop: Risa Goluboff, University of Virginia School of Law, « Back, The Lost Origins of Modern Civil Rights
    University of Georgia Law: Michael Wells (UGA): "Sociological Legitimacy" in the Supreme Court
    University of Toronto, Tax Law & Policy Workshops: Reuven Avi-Yonah, University of Michigan The Three Goals of Taxation.
    Villanova Law: Milton Regan, Georgetown University Law Center
    UC Hastings: Judge Loren Smith, US Court of Federal Claims, Life, Liberty, and (Whose) Property? with commentary by Prof. Bhagwat, UC Hastings.