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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

One of the most influential arguments in contemporary philosophy and cognitive science is Chomsky's argument from the poverty of the stimulus. In this response to an essay by Chandra Sripada, I defend an analogous argument from the poverty of the moral stimulus. I argue that Sripada's criticism of moral nativism appears to rest on the mistaken assumption that the learning target in moral cognition consists of a series of simple imperatives, such as 'share your toys' or 'don't hit other children.' In fact, the available evidence suggests that the moral competence of adults and even young children is considerably more complex and exhibits many characteristics of a well-developed legal code, including abstract theories of crime, tort, contract, and agency. Since the emergence of this knowledge cannot be explained by appeals to explicit instruction, or to any known processes of imitation, internalization, socialization and the like, there are grounds for concluding it may be innate. Simply put, to explain the development of intuitive jurisprudence in each individual, we must attribute unconscious knowledge and complex mental operations to her that go well beyond anything she has been taught.

A political philosopher's reflections on politics, philosophy and law. "Enlightenment is man's emergence from his self-incurred immaturity" (Immanuel Kant, 1784).

But there is one key aspect of the relationship between blogging and legal scholarship that I think Solum is missing. He describes blogging as a world of disintermediation, a world that removes intermediaries such as law review editors and advisory boards at academic presses. Solum suggests that the interaction of blogging, SSRN, and Google contribute to a new world that eschews the middle man. But I question this conclusion. That may feel right today, in a day when the barriers to entry for legal blogging are low and the legal blogosphere is still relatively pristine and untrammeled. But I strongly suspect that ten years from now the barriers to entry for successful blogging will be quite high. In a decade or so, a successful legal blog will be simply another intermediary.

Does blogging have anything to do with legal scholarship? Could blogging transform the legal academy? This paper suggests that these are the wrong questions. Blogs have plenty to do with legal scholarship - that’s obvious. But what blogs have to do with legal scholarship isn’t driven by anything special about blogs qua weblogs, qua collections of web pages that share the form of a journal or log. The relationship between blogging and the future of legal scholarship is a product of other forces - the emergence of the short form, the obsolesce of exclusive rights, and the trend towards the disintermediation of legal scholarship. Those forces and their relationship to blogging will be the primary focus of this paper. The transition from the “long form” to the “short form” involves movement from very long law review articles and multivolume treatises to new forms of legal scholarship, including the blog post, the idea piece, and the use of collaborative online authoring environments such as wikis. The transition from exclusive rights to open source requires publication in formats that provide full text searchability and the use of copyright to insure that scholarship can be freely downloaded and duplicated. The trend toward disintermediation reflects the diminished role of traditional intermediaries such as student and peer editorial boards and the growing role of search engines such as Google. These trends are the result of technology change and the fundamental forces that drive legal scholarship. Each of the three trends, the short form, open access, and disintermediation reduces search costs and access costs to legal scholarship. Reducing costs has other important implications, including the facilitation of the globalization of legal scholarship and the reduction of lag times between the production and full-scale dissemination of new scholarship. Each of these important trends is facilitated by blogs and blogging, but the blog or weblog is only one form that these trends can take. Blogs express and facilitate the fundamental forces that are already transforming legal scholarship in fundamental ways.

Boston University Law: THE ROLE OF THE JUDGE IN THE TWENTY-FIRST CENTURY
Panel discussions will provide an overview of the evolution of the judicial role in American society and the independence of the judiciary, as well as an examination of the issues regarding the judicial role in national security, contemporary case management, the role of social science in the judicial process and the relevance of international sources of law to judicial decision-making in the United States. Judge Richard A. Posner of the United States Court of Appeals, one of America's leading legal thinkers, will deliver the keynote address. Speakers include the Honorable Richard A. Posner, Guido Calabresi, Michael Boudin, Alex Kozinski and Stephen Reinhardt
University of Miami Law: Kevin A. Kordana & David H. Tabachnick, On Belling the Cat: Rawls & Corrective Justice
Villanova Law: Christopher Drahozhol, University of Kansas School of Law
University of Texas Law: Cindy Estlund (Columbia University)
University of Georgia International Law: Ed Swaine (University of Pennsylvania, Wharton School), "Judicial States"
University of Georgia Law: Thomas Lee (Fordham), Federal Court Review of Federal Law Voluntarily Incorporated into State Law
UCLA Law: Devon Carbado, UCLA School of Law
Ohio State Legal History: Thomas D. Morris, Norms and Facts: Racially Mixed Juries in Reconstruction South Carolina
Notre Dame Law: Professor Heather Gerken, Harvard Law School
Yale Information Society Project: Access to Knowledge (A2K) Conference
Georgetown Law & Economics: Michael Trebilcock, University of Toronto Law School

Slotting contracts involve manufacturer payments for retail shelf space. Slotting is an increasingly important part of the competitive process in many product markets, and has been the subject of congressional hearings, agency investigations, antitrust litigation, and scholarly debate. However, very little is known about the competitive consequences of slotting. This paper uses a unique data set consisting of slotting contracts at military commissaries prior to an exogenously imposed slotting ban to identify the impact of slotting on consumer welfare. This natural experiment provides a unique opportunity to directly answer the crucial policy counterfactual: would banning slotting contracts increase consumer welfare? The analysis measures the impact of slotting, at both the product and category levels, on prices, output, and product variety. I find no evidence that slotting is anticompetitive. To the contrary, the results suggest that slotting contracts provide substantial ne t benefits to consumers once one accounts for the unmeasured pass-through of slotting payments.

This article proposes subsidiarity as a tool for understanding the problem of religious establishments and the function of the Establishment Clause of the U.S. Constitution. Subsidiarity is a theory with roots deep in European political thought. It concerns how persons become genuinely free by associating with others, and what those associations imply about state authority. Subsidiarity’s goal is to empower assocations by conditioning the intervention of state authority. State authority should foster, protect, and coordinate associations, but never absorb their functions. In this way, associations will provide genuine freedom and development for the individuals within them. As a political theory, subsidiarity has been applied to a wide array of problems—from international human rights and the International Criminal Court, to corporate governance and the European Union. Subsidiarity promises interesting applications to establishments and the Establishment Clause. The article concludes that, as a substantive norm, subsidiarity provides a viewpoint from which to assess the role of religious associations within a pluralistic society. It also furnishes an illuminating way of understanding the problem of religious establishments as such. As a structural norm, subsidiarity helps place the Establishment Clause within the federal framework of the U.S. Constitution. It invites us to view the Clause as a structural strategy for dealing with the problem of religious establishments faced by the authors and ratifiers of the U.S. Constitution. The conclusions promise a helpful reorientation of the typical discourse about religious establishments in U.S. jurisprudence and scholarship.

One of the most influential arguments in contemporary philosophy and cognitive science is Chomsky's argument from the poverty of the stimulus. In this response to an essay by Chandra Sripada, I defend an analogous argument from the poverty of the moral stimulus. I argue that Sripada's criticism of moral nativism appears to rest on the mistaken assumption that the learning target in moral cognition consists of a series of simple imperatives, such as 'share your toys' or 'don't hit other children.' In fact, the available evidence suggests that the moral competence of adults and even young children is considerably more complex and exhibits many characteristics of a well-developed legal code, including abstract theories of crime, tort, contract, and agency. Since the emergence of this knowledge cannot be explained by appeals to explicit instruction, or to any known processes of imitation, internalization, socialization and the like, there are grounds for concluding it may be innate. Simply put, to explain the development of intuitive jurisprudence in each individual, we must attribute unconscious knowledge and complex mental operations to her that go well beyond anything she has been taught.

University of Texas Colloquium on Constitutional and Legal Theory: Michael Perry (Emory), "The United States Constitution as a Charter of Human Rights"
Yale Legal Theory: Robin West, Georgetown (Law), Unenumerated Duties
William Mitchell Law Review Symposium: 8 Cases You Need to Know
University of North Dakota Indian Law: Rebecca Tsosie, "Native Peoples and Reparations: Toward a Vision of Justice and Reconciliation"
UCLA Tax Policy & Public Finance: Joel Slemrod, University of Michigan, Ross School of Business, Professor of Business Economics and Public Policy, Taxation and Big Brother: Information, Personalization, and Privacy in 21st Century Tax Policy
UCLA Legal Theory Workshop: David A. Strauss, University of Chicago
Stanford Law & Economics: Howard Chang (University of Pennsylvania Law School), "Cultural Communities in a Global Labor Market: Immigration Restrictions as Residential Segregation"
NYU Tax: Jeffrey Liebman, Harvard University, Kennedy School of Government
UC Berkeley, Kadish Center: Ruth Chang, Philosophy Rutgers University, PERSONAL AND IMPERSONAL REASONS
Fordham Law: Fordham Annual Conference on Intellectual Property Law and Policy
George Mason Law: Dean Williamson, U.S. Department of Justice; Title: Organization, Control and the Single Entity Defense in Antitrust

Back by popular demand: the Conglomerate Junior Scholars Workshop for untenured law professors or candidates entering the law teaching market this fall. Last August, Conglomerate hosted this workshop for the first time, and we had great feedback both from the authors that participated and from the readers who commented. Among some of the constructive feedback we received was advice about the timing and the duration of the workshop, and we have tailored this year's workshop accordingly.

The blogs included in this collection are listed below, with the number of citations for each blog in parentheses. The blogs with the most citations are Sentencing Law and Policy (60), The Volokh Conspiracy (41), Legal Theory Blog (24), How Appealing (19), SCOTUS Blog (19), Lessig Blog (17), Balkinization (14), and ProfessorBainbridge.com (11).

This Essay uses train-sparks negligence cases to highlight tensions between traditional American tort common law and post-Coasean torts law and economics. In a train-sparks case, a railroad prima facie liable for negligence argues that the plaintiff was contributorily negligent by putting his stacks too close to the railroad's tracks. Coase and other economists have used such cases to refute the common law harm-benefit distinction, and to argue instead that common law "harms" are really the product of reciprocal economic externalities. In reality, however, the common law harm-benefit distinction makes substantial sense in light of American natural-law/natural-rights theory. The Essay argues that the difference between the common law/natural-rights approach and the economic approach to torts is primarily a difference between fundamentals and fine tuning. The leading common law train-sparks cases preferred fundamentals. They generated a hard distinction between harms and benefits because they designed property rights primarily to secure owners' investment and labor and to accommodate the many conflicting uses to which similar property assets are put. By contrast, post-Coasean torts law and economics prefers fine-tuning. It prefers to view disputes through the reciprocal-externality paradigm because it seeks to maximize the total product of the competing property uses. That focus on productive efficiency, however, abstracts away from less quantifiable but still important policy concerns about investment and ordering. The Essay teaches two important lessons. One lesson is for moral property theorists. For them, this Essay suggests that moral theories of property can defend the harm-benefit distinction better than economists and other property scholars commonly suppose. The other lesson is for economist property theorists. For them, this Essay suggests that law and economists might want to consider other forms of efficiency when they analyze bilateral incompatible use conflicts. Coase and others have focused mainly on productive efficiency; complete economic analysis might also want to consider dynamic efficiency and the efficient minimization of the information costs associated with private property.

UCLA Legal History: Jonathan M. Zasloff, Professor of Law UCLA School of Law, "More Realism About Realism: Law, Power, and the Origins of the Cold War"
NYU Legal History: Rebecca Rix, Golieb Fellow, NYU School of Law, "Policing the General Welfare in Post-World War I Progressive Reconstitution"
Emory Law: Owen Jones, Vanderbilt Law School, "Evolutionary Analysis and the Endowment Effect: An Empirical Investigation."

Metaphysics 2006, the Third World Conference, will be held in Rome, July 6-9, 2006. The previous two World Conferences brought together a significant number of philosophers and representatives of other disciplines from twenty-seven countries (Europe, North and South America, the Middle East, Asia, and Australia), interested in exploring proposals for a reconsideration of metaphysical perspectives in the twenty-first century while taking into account the contributions of the past. On the basis of this broad contact with scholars from varied backgrounds, and in the light of their interests and expertise, the following topic areas have been selected: * Metaphysics and Culture * Metaphysics and Epistemology * Metaphysics and the Arts * Metaphysics and Ethics * Metaphysics, Mystical Experience, and Comparative Religion * Metaphysics and Education * Metaphysics and Experimental Science * Metaphysics and Law * Metaphysics and Personhood * Metaphysics and Global Development There will also be a special section on Metaphysics and Criminology, in collaboration with philosophers from Cambridge, among others, which will examine the impact of altered worldviews on violent behavior. The assumption behind this framework is that all human dimensions and activities are open to--and, indeed, call for--an account of their ultimate grounding. For information on presenting papers and registration, visit www.idente.net Send abstracts (limit: 200 words) to the Program Committee: RomeMetaphysics@gmail.com Other inquiries should be sent to the Conference Secretariat: g.fioretti@idente.net

Western New England--rumor of four entry-level hires Ohio Northern--rumor of two entry-level hires Southern Illinois--rumor of two entry-level hires Charleston--rumor of one entry-level hires

Vanderbilt Law: John Goldberg, Vanderbilt Law School, "Tort Law and Moral Luck"
Northwestern Constitutional Law & Theory: Martha Nussbaum, University of Chicago, "The Fixed Star" Chapter 2 & Chapter 3
Lewis & Clark: Joseph Miller Ordinary Artisans' Ordinary Inventions: Toward Reality-Based Patent Law
Georgetown Law: Bob Pitofsky
Georgetown Constitutional Law & Theory: Tom Ginsburg (law and political science, Illinois)

In this paper, we employ simple formal models drawn from political science to explain the occurrence of gridlock in the federal judicial selection process, and to explore the implications of the nuclear option, by which a bare majority of senators employs parliamentary tactics to abolish the filibuster with respect to judicial nominations. Our application of a pivotal politics model leads us to reject the notion that appointments gridlock is a straightforward consequence of divided government. Instead, meaningful changes to the ideological balance of the federal bench require a more demanding ideological alignment of multiple veto players relative to the status quo. This conclusion is confirmed by the recent history of the federal judicial appointments process. We then adapt the pivotal politics model to the existence of the nuclear option by introducing a new player, the nuclear pivot, who supplies the last vote needed to trigger the nuclear option, and whose precise identity is uncertain - perhaps even to the nuclear pivot herself. Introduction of the nuclear pivot curtails the extent of gridlock and makes possible some change in the status quo, albeit less change than would be possible in the outright absence of the filibuster. We conclude not only that the threat of the nuclear option works to the detriment of the minority Democrats, but also that the Democrats have gained nothing of substance from the agreement reached by a group of moderate senators - the so-called Gang of 14 - that has indefinitely forestalled actual exercise of the nuclear option. However, both uncertainty over the location of the nuclear pivot and the degree to which the Democrats have successfully prolonged the confrontation over judicial nominees may hinder the President from capitalizing upon the advantage otherwise conferred by the threat of the nuclear option.

Religious leaders and activists have always spoken provocatively — and even prophetically — about faith's implications for citizens, candidates, policies and elections. Not surprisingly, these reminders often prompt criticism and resistance in the pews, the news media and the public square. But we should neither demand nor expect our faith commitments or religious ministers to tell us only what we want to hear, or always to assure us that we and the status quo are doing just fine. What's more, it should not be the place of government officials or IRS agents to impose and enforce a line between pastors' stirring sermons and partisan stump speeches.

Update: Georgetown Law & Philosophy: John Mikhail (Law, Georgetown), "Law, Cognitive Science, and Human Rights: Exploring the Connections."
Update: Emory Law: Bill Buzbee, Emory School of Law, "Westway, the City, and the Law."
University of Cincinnati Law: Prof. William Henderson, Indiana (Bloomington) University School of Law, “The Changing Economic Geography of the Am Law 200"
Yale Workplace Theory & Policy: ROLAND FRYER, Economics, Harvard University, The Simple Economics of Affirmative Action
University of Texas Law: Jens Dammann (UT), Extraterritorial Courts for Corporate Law
University of Alabama Law: Roland Mitchell, LSU School of Education
NYU Law: Geoff Miller
Marquette Law: Dan Capra, Fordham Law School, The Relationship Between Supreme Court Decision Making and Federal Evidence Rulemaking: Crawford and Other Interruptions
Hofstra Law: Barton Beebe, Cardozo Law School, “An Empirical Analysis of the Multifactor Tests for Trademark Infringement”
Columbia Law & Economics: Jack Goldsmith of Harvard Law School, "Democracy, Prudence, Intervention"

Monday, April 17
University of Cincinnati Law: Prof. William Henderson, Indiana (Bloomington) University School of Law, “The Changing Economic Geography of the Am Law 200"
Yale Workplace Theory & Policy: ROLAND FRYER, Economics, Harvard University, The Simple Economics of Affirmative Action
University of Texas Law: Jens Dammann (UT), Extraterritorial Courts for Corporate Law
University of Alabama Law: Roland Mitchell, LSU School of Education
NYU Law: Geoff Miller
Marquette Law: Dan Capra, Fordham Law School, The Relationship Between Supreme Court Decision Making and Federal Evidence Rulemaking: Crawford and Other Interruptions
Hofstra Law: Barton Beebe, Cardozo Law School, “An Empirical Analysis of the Multifactor Tests for Trademark Infringement”
Georgetown Law & Philosophy: Nancy Sherman (Philosophy, Georgetown)
Columbia Law & Economics: Jack Goldsmith of Harvard Law School, "Democracy, Prudence, Intervention"

Tuesday, April 18
Vanderbilt Law: John Goldberg, Vanderbilt Law School, "Tort Law and Moral Luck"
Northwestern Constitutional Law & Theory: Martha Nussbaum, University of Chicago, "The Fixed Star" Chapter 2 & Chapter 3
Lewis & Clark: Joseph Miller Ordinary Artisans' Ordinary Inventions: Toward Reality-Based Patent Law
Georgetown Law: Bob Pitofsky
Georgetown Constitutional Law & Theory: Tom Ginsburg (law and political science, Illinois)

Wednesday, April 19
UCLA Legal History: Jonathan M. Zasloff, Professor of Law UCLA School of Law, "More Realism About Realism: Law, Power, and the Origins of the Cold War"
NYU Legal History: Rebecca Rix, Golieb Fellow, NYU School of Law, "Policing the General Welfare in Post-World War I Progressive Reconstitution"
Emory Law: Owen Jones, Vanderbilt Law School, "Evolutionary Analysis and the Endowment Effect: An Empirical Investigation."

Thursday, April 20
University of Texas Colloquium on Constitutional and Legal Theory: Michael Perry (Emory), "The United States Constitution as a Charter of Human Rights"
Yale Legal Theory: Robin West, Georgetown (Law), Unenumerated Duties
William Mitchell Law Review Symposium: 8 Cases You Need to Know
University of North Dakota Indian Law: Rebecca Tsosie, "Native Peoples and Reparations: Toward a Vision of Justice and Reconciliation"
UCLA Tax Policy & Public Finance: Joel Slemrod, University of Michigan, Ross School of Business, Professor of Business Economics and Public Policy, Taxation and Big Brother: Information, Personalization, and Privacy in 21st Century Tax Policy
UCLA Legal Theory Workshop: David A. Strauss, University of Chicago
Stanford Law & Economics: Howard Chang (University of Pennsylvania Law School), "Cultural Communities in a Global Labor Market: Immigration Restrictions as Residential Segregation"
NYU Tax: Jeffrey Liebman, Harvard University, Kennedy School of Government
UC Berkeley, Kadish Center: Ruth Chang, Philosophy Rutgers University, PERSONAL AND IMPERSONAL REASONS
Fordham Law: Fordham Annual Conference on Intellectual Property Law and Policy
George Mason Law: Dean Williamson, U.S. Department of Justice; Title: Organization, Control and the Single Entity Defense in Antitrust

Friday, April 21
Villanova Law: Christopher Drahozhol, University of Kansas School of Law
University of Texas Law: Cindy Estlund (Columbia University)
University of Georgia International Law: Ed Swaine (University of Pennsylvania, Wharton School), "Judicial States"
University of Georgia Law: Thomas Lee (Fordham), Federal Court Review of Federal Law Voluntarily Incorporated into State Law
UCLA Law: Devon Carbado, UCLA School of Law
Ohio State Legal History: Thomas D. Morris, Norms and Facts: Racially Mixed Juries in Reconstruction South Carolina
Notre Dame Law: Professor Heather Gerken, Harvard Law School
Yale Information Society Project: Access to Knowledge (A2K) Conference
Georgetown Law & Economics: Michael Trebilcock, University of Toronto Law School

Introduction This entry in the Legal Theory Lexicon is a bit unusual. Rather than explicating concepts that are important to legal theory, the point of this post is to debunk two concepts that are unimportant (or even meaningless), strict construction and judicial activism.
Strict Construction Strict construction is short hand for the idea that the United States Constitution should be strictly construed. The phrase appears to have become popular as a campaign slogan used by Richard Nixon when he ran for President in 1968. Nixon promised that he would appoint judges who were "strict constructionists" as opposed to the "judicial activism" that characterized the Warren Court, but the phrase has much earlier origins and may go back as far as the late eighteenth century.
The question is: what does strict construction mean? Is there really a method of constitutional interpretation described by the phrase "strict construction" or is this a mere political slogan? The confusion engendered by the term is illustrated by the following definition (offered on law.com):
strict construction (narrow construction) n. interpreting the Constitution based on a literal and narrow definition of the language without reference to the differences in conditions when the Constitution was written and modern conditions, inventions and societal changes. By contrast "broad construction" looks to what someone thinks was the "intent" of the framers' language and expands and interprets the language extensively to meet current standards of human conduct and complexity of society.
This definition borders on incoherence, opposing "strict construction" to both originalism and to the notion of a living constitution--ideas that might be thought antithetical to one another. So can we offer a better definition of strict construction? One way to approach this question is via the method of separation of cases. What are the possible meanings of strict construction?
• Strict Construction as "Textualism". One possibility is that strict construction refers to textualism--the idea that all constitutional interpretations must be grounded in the text of the Constitution. There are two difficulties with this suggestion. First, almost all of the Warren Court jurisprudence to which strict constructionism was opposed was rooted in the text of the Constitution in some way. Even the "unenumerated rights" jurisprudence (e.g. the right to privacy at issue in Griswold v. Connecticut and Roe v. Wade) was grounded in the text of the 14th amendment. Second, this definition provides no content to the idea that constructions must be "strict."
  
• Strict Construction as "Literalism". Another possibility is that strict construction involves literal rather than purposive interpretations of the constitutional text. Perhaps, a strict construction is one that reads each clause of the Constitution to mean what the plain language says and nothing more. This idea is more promising than textualism, because it gives some real bite to the idea of "strictness" in construction. The difficulty is that the proponents of "strict construction" (and others) have rarely advocated a thorough-going literalism. That approach would, for example, mean that the First Amendment to the Constitution applies only to Congress (and not to the states, the executive, or to common-law doctrines). Other provisions of the Constitution don't seem to have any determinate literal meaning--the due process clause, the privileges and immunities clause, and the republican form of government clause come to mind.
  
• Strict Construction as "Originalism". Yet another possibility is that strict construction refers to some form of originalism, either original-intention originalism or original-meaning originalism. (The former looks to the intentions of the framers, whereas the latter looks to the way the text would have been understood by citizens when it was adopted.) Original-intentions originalism does not fit well with the label "strict constructionism" as it would allow courts to take into account intentions of the framers that are not "strictly speaking" in the constitutional text. The latter is a much better fit with the idea of strict construction, but the label "strict construction" is simply not very descriptive of the idea that the constitutional text should be read today in a way that fits the way it would have been read at the time it was adopted.
  
• Strict Construction as a "Presumption of Constitutionality". Yet another possibility is that the constitution should be construed against challenges to the constitutionality of legislation or executive action. The idea of a presumption in favor of the constitutionality of challenged action is certainly a coherent idea, but it is not clear why such a presumption should be called "strict construction." One might naturally assume that a strict construction of the constitution would invalidate government action that contravened the meaning of the constitutional text.
We could go on, but I think you will now see the point. It simply isn't clear what "strict construction" means. Once you actually give content to the idea of strict construction, then the label isn't particularly description and better names can be given to the view that strict construction could name. For this reason, most serious constitutional theorists avoid using the phrase "strict construction." If you think you have a good reason to continue using this phrase, you might give serious consideration to offering a very careful definition when you first introduce the term.
Judicial Activism In conservative political discourse in the United States, "strict construction" is good and "judicial activism" is bad. But what is judicial activism? Once again, it is not clear that this phrase has any real meaning. The standard argument against the use of the term "judicial activism" is that it translates best as "judicial decision making with which I disagree." To see why this is so, once again let us consider the possible interpretations of the phrase:
• Judicial Activism as Nonabstention. One idea would be that activist judges decide cases, whereas passive judges abstain. This would make sense of "judicial activism," but it is completely unattractive as a normative ideal. Judges need to decide cases; they need to be active in the sense that they resolve controversies.
  
• Judicial Activism as Exercise of the Power of Judicial Review. A second possibility is that judicial activism means striking down statutes or invalidating executive action. A passive judge approves the conduct of the other branches of government; an active judge strikes such conduct down. Once again, this interpretation is coherent, but hardly anyone thinks that it is per se wrong for judges to invalidate unconstitutional governmental action. Very few critics of "judicial activism" would criticize a court that struck down a federal statute requiring every American to attend the services of a particular denomination. Nor would many critics of judicial activism endorse a judicial decision that upheld a law reestablishing slavery. So activism is not meant to be equated with "deciding to strike down a statute or executive action."
  
• Judicial Activism as Incorrect Exercise of the Power of Judicial Review. What is usually meant by judicial activism is not simply judicial activity or judicial activity invalidating action by the political branches. Rather, judicial activism means judicial activity that wrongfully invalidates action by the political branches. This naturally leads to the question, "What makes an exercise of the power of judicial review wrongful?" The answer to that question is a theory of constitutional interpretation. Different theories authorize different sets of invalidations. So, adherents of different constitutional theories would apply the label "judicial activism" to different sets of decisions.
And that's the problem with the phrase "judicial activism." One can define judicial activism in a way that doesn't boil down to "wrong," but those definitions make the phrase useless as a term of criticism. Or one can define judicial activism in such a way that it has real critical bite, but then the phrase ends up as a synonym for incorrect. Either way, "judicial activism" is not a useful term for constitutional theorists.
Conclusion This post has had two goals. The first is to convince you that "strict construction" and "judicial activism" are simply not very useful as theory terms for academic constitutional lawyers. The second is to illustrate the importance of clear explication of constitutional concepts. Constitutional theory is a value-laden activity. Debates about positions in constitutional theory are frequently extensions of debates in moral and political theory generally. For that reason, it is very important for constitutional theorists to be very careful about their use of language.
Links Chad Oldfather, Defining Judicial Inactivism: Models of Adjudication and the Duty to Decide

This book represents the most comprehensive account to date of an important but widely contested approach to ethics--intuitionism, the view that there is a plurality of moral principles, each of which we can know directly. Robert Audi casts intuitionism in a form that provides a major alternative to the more familiar ethical perspectives (utilitarian, Kantian, and Aristotelian). He introduces intuitionism in its historical context and clarifies--and improves and defends--W. D. Ross's influential formulation. Bringing Ross out from under the shadow of G. E. Moore, he puts a reconstructed version of Rossian intuitionism on the map as a full-scale, plausible contemporary theory. A major contribution of the book is its integration of Rossian intuitionism with Kantian ethics; this yields a view with advantages over other intuitionist theories (including Ross's) and over Kantian ethics taken alone. Audi proceeds to anchor Kantian intuitionism in a pluralistic theory of value, leading to an account of the perennially debated relation between the right and the good. Finally, he sets out the standards of conduct the theory affirms and shows how the theory can help guide concrete moral judgment. The Good in the Right is a self-contained original contribution, but readers interested in ethics or its history will find numerous connections with classical and contemporary literature. Written with clarity and concreteness, and with examples for every major point, it provides an ethical theory that is both intellectually cogent and plausible in application to moral problems.

Roger Crisp, St. Anne's College, University of Oxford:
Robert Audi's magisterial The Good in the Right offers the most comprehensive and developed account of rational ethical intuitionism to date.
Hugh J. McCann, Texas A&M University:
This is an excellent book. Far reaching in import, it develops a convincing alliance between an intuitionist approach to moral epistemology and a Kantian treatment of moral theory.
Betsy Postow, University of Tennessee:
Among Audi's many mighty achievements in this rewarding book, two are especially illuminating to me: his brilliant analysis of the separable elements of classical intuitionism and his formulation of a moderate vision of intuitionism, which neatly avoids the problems afflicting its distinguished forebears.
Brad Hooker, University of Reading, author of "Ideal Code, Real World":
The Good in the Right will end up being thought of as one of the most important books in moral philosophy published in this decade. In my view, the fate of Kantian ethics hangs on the force of Audi's arguments.
Michael J. Zimmerman, author of "The Nature of Intrinsic Value" and "The Concept of Moral Obligation":
This is a remarkable book--remarkably ambitious, remarkably successful. It is a work of extraordinary scope and depth. Audi offers an attractive account of moral epistemology that provides him with the means to mine a variety of normative ethical theories, extract what is most promising in them, and combine these elements into a new theory that is both coherent and novel and is readily applicable to a host of problems in practical ethics. The upshot is a highly original and powerful theory of morality that is both theoretically and practically appealing.

Most everyone assumes that impeachment is the only means of removing federal judges and that the Constitution’s grant of good behavior tenure is an implicit reference to impeachment. This article challenges these widely shared assumptions. Using evidence from England, the colonies, and the revolutionary state constitutions, the article demonstrates that at the time of the founding good behavior tenure and impeachment had only the most tenuous of relationships. Good behavior, when discussed in the context of the government, consisted of a tenure in office whereby the officer would forfeit her office upon a judicial finding of misbehavior. There would have to be a trial, the hearing of witnesses, and the introduction of evidence, with misbehavior proved by the party seeking to oust the tenured individual. Impeachment, by contrast, referred to a criminal procedure conducted in the legislature that could lead to an array of criminal sanctions. In England and in the colonies, impeachment was never seen as a means of judging whether someone with good behavior tenure had forfeited her office by reason of misbehavior. Most state constitutions did not equate good behavior tenure with impeachment either. Indeed, some distinguished them explicitly. Compared to prior scholarship on good behavior tenure, this article provides a more complete, and therefore more credible, understanding of good behavior tenure. In particular, we demonstrate several propositions for the first time: 1) that the English understanding of good behavior tenure had migrated to her colonies and continued in independent America; 2) that good behavior tenure was not limited to government officials but could be granted to anyone, including tenants in land, licensees, and employees; 3) that the English writ of scire facias was not the only mechanism for ousting those with good behavior tenure; and 4) that the state constitutions generally did not regard impeachment as a means of judging good behavior. Taken together, these propositions devastate the conventional conflation of good behavior tenure with impeachment.

The central question of environmental law is “how much?” How much pollution should we emit into the air and water? How much resource exploitation should we engage in? While for other “how much” questions our society tends to rely (at least in theory) on the market, when it comes to environmental harms, the tragedy of the commons frequently causes the market to fail - that is, to get the “how much” question wrong. According to generally accepted wisdom, there are two potential solutions to the tragedy of the commons: 1) government regulation, or 2) privatization. When the U.S. environmental movement began in the 1970s, government regulation seemed the obvious choice. But in recent years, intellectual fashions have changed, and privatization has become the preferred solution. The privatization solution, however, is a myth that exists, if at all, only in a world of theory. Government regulation and privatization can usefully be distinguished from each other based on who answers the “how much” question. Under the former, government answers the “how much” question, and under the latter, the market answers it. The “privatization solution” to the tragedy of the commons really conflates two distinct solutions. The first - “the private property solution” - involves dividing the commons up into private parcels of property in such a way that there are no remaining spillover effects or externalities between parcels. In this scenario, the tragedy is solved because each individual owner bears the full costs and benefits of her individual decisions (externalities are internalized.) The second solution - “the market solution” requires that transaction costs be eliminated or minimized so that spillover effects across property boundaries will be reduced to optimal levels through Coasian bargaining. None of the regimes commonly cited as examples of the privatization solution to the tragedy of the commons actually are. In some instances, the mistake is conceptual. Environmental trading markets and water markets are often mischaracterized as privatization solutions when in fact they rely on government to answer the “how much” question. In other instances, the mistake occurs in the application of the theoretical concept to the circumstances likely to exist in the real world. Thus, proposed privatization regimes involving land, oceans, and wildlife could conceivably meet the conditions for the private property or market solutions in a theoretical world, but the dynamics of ecological degradation are such that it is impossible for those idealized conditions to be met, or even reasonably approximated, in the real world.

University of Illinois, Institute for Law & Philosophy: Kevin A. Kordana & David H. Tabachnick, On Belling the Cat: Rawls & Corrective Justice
University of Georgia Interntional Law: Roger Alford (Pepperdine), Foreign Relations as a Matter of Interpretation: The Use and Abuse of Charming Betsy
UCLA Law: Scott L. Cummings, Acting Professor of Law, UCLA School of Law, "Transnational Public Interest Law"

Yale Workplace Theory & Practice: ANN ORLOFF, Sociology, Northwestern University, From Maternalism to "Employment for All"
Yale Law, Economics & Organizations: Professor Alison Morantz, Stanford, Law, Post-Accident Drug Testing & Workers' Compensation Claims in a Fortune 500 Company
University of Illinois Criminal Law Colloquium, Susan Klein, University of Texas, Enhancing the Judicial Role in Criminal Plea and Sentence Bargaining
University of North Dakota Indian Law: Erma J. Vizenor, "Tribal Sovereignty, the Federal Trust Responsibility, and Constitutional Reform"
University of Michigan Law & Economics: Daniel Gervais, Ottawa, Intellectual Property and Development: Towards a Strategy
UCLA Tax Policy & Public Finance: Dennis Ventry, Visiting Scholar in Taxation, UCLA School of Law, Suspicious Minds: The Uneasy Relationship Between Tax Lawyers and the IRS
UCLA Law: Fernando Rámon Vegas Torrealba, Venezuelan Supreme Court Justice, "Democracy in Venezuela under the 1999 Bolivarian Constitution"
Northwestern Tax: Lee Ann Fennell, Associate Professor, University of Illinois College of Law, "Taxation Over Time"
NYU Tax: Mitchell Kane, University of Virginia Law School, "Risk and Redistribution in Open and Closed Economies."
George Mason Law: Iliana Ilieva, GMU School of Law Levy Fellow
Florida State Law: Barbara Fried, Stanford Law School, Contractarianism as the Site of Justice

In the war on terrorism, the Executive Branch has sometimes opted to use the criminal justice system to prosecute defendants for terrorism-related offenses; and at other times, it has opted to use military force to kill or capture so-called enemy combatants. Arguably, the Executive Branch should be given discretion to choose which approach to use depending on the particular circumstances. Overseas actions might call for military force, while domestic terrorism might call for prosecution (and, upon conviction, punishment). However, military detention is especially harsh, with conditions of confinement worse than those in maximum security prisons, and because much uncertainty abounds as to the procedural rights accorded to military detainees - even ones who are U.S. citizens. As a result, the Executive Branch may be able to extract (and may already have extracted) guilty pleas from terrorism defendants by threatening them with military detention if they do not plead guilty. In this Article, I argue against unilateral Executive Branch power to transfer criminal defendants into military detention, precisely because of the opportunity, whether intentional or not, for the government to profit from the coercive potential of such transfers. I use blackmail theory to show why such government conduct should be prohibited, and I use the doctrine of vindictive prosecution to show that a constitutional mechanism already exists for courts to protect defendants against coercive actions by prosecutors.

Some scientific research in rational choice theory and behavioral economics - call it choice-theoretic research - seems to point to the conclusion that addicts are fully responsible for what they do. I argue in this paper, however, that the choice-theoretic approach to human behavior presupposes a theory of action that is inconsistent with the assumptions about moral responsibility that are imbedded in the notion of criminal liability. While the economic view of behavior may be perfectly adequate to certain other policy concerns of the law, a theory of action adequate to the understanding of criminal responsibility must take into account factors that are not countenanced in the economic view. I examine three different philosophical approaches that are consistent with the economic view, and show that they are inadequate to distinctions made in the criminal law. I then argue what is missing is a factor that is once more being taken seriously in the philosophy of action, the notion of will. Whether the required sense of will can be made consistent with a naturalistic view of human beings is a separate question.

The Supreme Court’s decision in the eminent domain case of Kelo v. New London was greeted with anger and frustration. The public outcry reaction came to be called the “Kelo backlash,” and news reports and editorials declared throughout the fall of 2005 that this backlash was leading to statutory reforms in many state legislatures. Following Justice Stevens’ suggestion in the Kelo opinion that states could provide greater protection for property owners than the federal courts provided, and recognizing that some state courts had imposed stricter limits on eminent domain through the “public use” requirements in state constitutions, activists and legislators in 38 states began working on changing state laws regarding property seizure. So far, the backlash has produced few results. Largely because most state legislatures have been in recess since shortly after the Kelo decision was announced, only four states have passed legislation regarding eminent domain. Unfortunately, those four provide little protection for property owners. Proposals in other states, including two brought forward in the California Legislature, even appear to have been consciously designed to effect no meaningful change. On the other hand, a bill recently passed by the Pennsylvania House of Representatives and now pending before the state Senate, as well as federal legislation which appears likely to be enacted into law, do include significant limits on eminent domain. These bills give reason to hope that meaningful reform is on the horizon once other state legislatures return from winter recess. But proponents of these measures must resist the pressure to include loopholes and exceptions that have so severely weakened the four new reform laws In this article, I survey these four new laws, as well as three proposals that were shot down by the legislature of California, to see how they promise far more than they actually deliver. I will also examine bills recently passed by the Pennsylvania Legislature, and by the United States House of Representatives, which, if enacted, would provide genuine protection for property owners. After a brief background on the law of eminent domain after Kelo, and the public reactions to that decision, I explore each bill in sequence. I then conclude with some observations as to the two biggest obstacles faced by those hoping for serious eminent domain reform: the political influence of powerful redevelopment proponents, and the lack of serious philosophical support for opposition to the outcome of Kelo.

Altruism and Moral Psychology Conference Sheffield, 17th-18th June 2006 About the Conference This interdisciplinary conference will explore the psychological underpinnings of altruism and moral norms, and the implications of these psychological systems for ethical theory. The conference will address such questions as: What is altruism? What is the psychological basis for altruistic behavior? How do we represent moral norms? What is the structure of the psychological systems involved in the acquisition, processing, complying with, and enforcing moral norms? To what extent is moral psychology culturally universal? To what extent is it culturally variable? How are moral norms culturally transmitted? What can we learn about moral norms from the nature of the cutlural transmission? How does empirical work on moral psychology interact with normative theories in ethics and meta-ethical theory? Speakers John Doris (Philosophy, Washington University, St. Louis) How (Not) to Build a Person Abstract pending Simon Gächter (Economics, University of Nottingham) Title pending Abstract pending Nicola Knight (Anthropology, London School of Economics) The Psychology of Normative Judgement and Explanation Abstract pending Aimee Plourde (Archaeology, University Collee London) Title pending Abstract pending Peter Richerson (Environmental Science & Policy, UC Davis) Darwin's Theory of Moral Evolution in Modern Garb Abstract pending Stephen Stich (Philosophy, Rutgers University) Is the Moral / Conventional Distinction a Myth? Abstract pending David Sloan Wilson (Biology, SUNY Binghamton) The Ecology of Altruism in Everyday Life Abstract One further speaker TBA. The conference will take place at the Humanities Research Institute (34 Gell Street, Sheffield S3 7QW) at the University of Sheffield (see map — opens in a new window).

Conventional wisdom supposes that the President enjoys a power to remove all presidentially appointed officers, save for judges. A corollary of this belief is that neither Congress nor the judiciary may remove such officers, for when the Constitution grants the President a power it often follows that no one else can enjoy that power. This article argues that these orthodoxies are false. First, contrary to the Court's hasty conclusion in Bowsher v. Synar, Congress can pass statutes that remove officers. Congress can terminate offices, thereby removing incumbent officers; it can set tenure limits for officers, thus mandating their eventual removal; and it can make removal a consequence of a criminal conviction. Most importantly, Congress can also pass statutes that directly remove officers. Second, the conventional wisdom overstates presidential removal authority in some respects while understating it in others. The accepted view overstates presidential power because it supposes that the President may remove all presidentially appointed officers. If the Constitution grants the President a distinct removal power, that power only encompasses executive officers. Any removal power would not extend to the quasi-legislative, quasi-judicial heads of the independent agencies. On the other hand, the orthodoxy arguably understates presidential power because it supposes that all executive officers must have tenure during pleasure. It may well be that the President may grant executive officers a more secure tenure, such as tenure during good behavior. Third, federal courts may remove all inferior judicial officers, however they were appointed. Each inferior judicial officer receives an implicit grant of authority from the court she serves. When a court withdraws all of its authority from an inferior judicial officer, the court has removed the officer. In this way, each branch may remove officers, albeit in different ways and to different degrees.

University of Illinois College of Law: Robin Wilson, Professor of Law at the University of Maryland, "Nanotechnology: The Challenges of Regulating Known Unknowns."
Investment in nanotechnology has accelerated at a dizzying pace, with billions of dollars pouring into its development worldwide. The National Science Foundation now predicts that nanotechnology will have a $1 trillion economic impact by 2015. Nanotechnology involves the manipulation of matter on a molecular and sometimes atomic scale to creates devices and structures with purposely-engineered characteristics. The resulting structures are too small to see with the naked eye and often behave in ways that we would not predict of larger structures. Very little is known, for example, about nanoparticle accumulation in living organisms or the toxicity of nanoparticles, although many have been deployed in the human body. Although largely confined to topical uses at present, nanodevices are poised for much wider healthcare applications. Researchers at Georgia Tech have used zinc oxide nanosprings to detect individual molecules of a protein, like anthrax, while researchers at Harvard have developed nanowire arrays that can detect cancer in blood. Some charge that "[t]he world's most powerful emerging technology is developing in an almost-total political and regulatory vacuum." The talk will explore the challenges to regulating nanotechnology. It maps out different policy paths we may take with respect to nanotechnology's research and development from a minimalist response-"some form of regulatory control will be necessary to assure that nanotechnology is developed safely"-to placing nanotechnology off limits, an approach advocated for in Europe and elsewhere. The talk also explores definitional issues raised by nanotechnology, as well as difficulties with regulating it as a single technology, and asks whether existing federal regulations adequately address the novel properties associated with nanomaterials and products. More broadly, this paper considers how precisely society can regulate a technology that is in its infancy.
Vanderbilt Comparative Corporate Governance Seminar: David Skeel, Pennsylvania Law School, "Corporate Anatomy Lessons"
University of Georgia Law: Alan Watson (UGA), Lord Mansfield: Judicial Integrity or its Lack: Somerset's Case
NYU Legal History: Alison LaCroix, Golieb Fellow, NYU School of Law, "Drawing the Line: The Pre-Revolutionary Origins of Federal Ideas of Sovereignty."

University of Chicago Law & Economics: George Triantis, Perre Bowen Professor of Law, Nicholas Chimicles Research Professor in Business Law and Regulation and Director, John M. Olin Program in Law & Economics, University of Virginia Law School, Economic and Legal Boundaries of Firms
University of Pennsylvania Tax Policy: Mitchell Kane
University of Oxford-University of Texas Law Faculty Interchange
Ms. Catherine Appleton, Research Officer, Centre for Criminology - University of Oxford, "The Aftermath of Homicide: A Comparative Study of the Experiences of Families of Homicide Victims in Jurisdictions with and without the Death Penalty", Discussant: Professor Jordan Steiker, UT School of Law
Ms. Mindy Chen-Wishart, Fellow in Law - Merton College, Oxford; University Lecturer and Director of Undergraduate Studies, Law Faculty - University of Oxford, "Undue Influence: Vindicating Relationships of Influence", Discussant: Professor Mark Gergen, UT School of Law
Dr. Wanjiru Njoya, Fellow in Law - St. John's College, Oxford, "Employee Participation in Corporate Governance: the End, the Beginning of the End, or Perhaps the End of the Beginning?", Discussant: Professor Jens Dammann, UT School of Law
Ms. Sandra Meredith, IT Training & Development Officer - Bodleian Law Library; Law Faculty - Oxford University, "The Oxford Law Legal Research Skills Programme", Discussant: Ms. Jeanne Price, Tarlton Law Library
Dr. Katja Ziegler, Lecturer in Law, Fellow and Deputy Director of the Institute of European and Comparative Law - University of Oxford, "The Constitutionalisation of the British Constitution?: Recent Aspects of Constitutional Change in the UK Through 'the Two Europes' - Towards a Judicial Review of Statutes?", Discussant: Professor Ernie Young, UT School of Law
Mr. Nicholas Bamforth, Fellow in Law - The Queen's College, Oxford; University Lecturer in Law - University of Oxford, "The Constitutional Status and Impact of the [UK] Human Rights Act 1998", Discussant: Professor H.W. Perry Jr., UT School of Law; Government Department
Chicago-Kent College of Law, Chicago IP Colloquium: Professor Greg Lastowka, Rutgers School of Law-Camden, Digital Attribution: Shifting Information Policy from Copyright to Trademark
Georgetown Law: Julie Cohen
Georgetown Constitutional Law & Theory: Ted Ruger (law, Pennsylvania), The Chief Justice's Special Authority and the Norms of Judicial Power

Embedded in the way we use the law is the tendency of human reason to justification; in the words of one philosopher, a "thirst for rationality [that] is a major source of lies". I contend that this tendency is exacerbated by the conflation of what is knowable as a matter of science, and that which we might believe is normative. I rely on Kant’s critique of theoretical and practical reason to assess claims to objectivity in social science approaches to law, and to suggest it is not surprising that the operation of theoretical and practical reason would tend to the conflation of the descriptive and the normative. When we understand the illusions of which reason is capable, we may be more circumspect about claims of objective knowledge and more willing to challenge assertions of a single right answer on normative issues (the modus operandi of most legal argumentation). Nevertheless, we have a sense that there are objective standards of right and wrong, bespeaking right answers, if not single right answers, on difficult issues, and these are the basis for ethics, if not law. How does one bring broad universalisms down to practical application, and have the confidence one’s judgments are right, and not someone else’s view of dogmatism? I discuss the mystery that lies behind the process of judgment, and conclude that the best check against the illusions of reason is our ability to have a relation with, and understand the viewpoints of, others. In particular, I consider Buber’s concept of dialogue, and how it might affect common types of ethical decisions in business.

Berkman Center for Internet & Society at Harvard Law School “Bloggership: How Blogs are Transforming Legal Scholarship” Friday, April 28, 2006. Please join us for a series of four panel discussions featuring more than twenty prominent legal bloggers from both inside and outside the academy. Participants will include, to name just a few: Glenn Reynolds (InstaPundit), Eugene Volokh (The Volokh Conspiracy), Ann Althouse (Althouse), Larry Solum (Legal Theory Blog), Peter Lattman (The Wall Street Journal Law Blog) and Howard Bashman (How Appealing). The discussions will be moderated by Paul Caron, Charles Hartsock Professor of Law at the University of Cincinnati College of Law, author of the Tax Prof Blog as well as the Publisher and Editor-in-Chief of the Law Professor Blogs Network. A current schedule of events for the conference is available at . Draft versions of the papers to be presented at the conference will be linked from this page approximately one week before the conference. Final versions of the papers will be issued this fall as part of the Berkman Publications Series and will be linked from the Berkman Center home page. The conference will be held Friday, April 28, 2006 from 8:30 a.m. to 5:15 p.m. in the Ames Moot Courtroom on the second floor of Austin Hall at Harvard Law School. The conference is free and open to the public. We hope you will join us! If you are interested in the subject but cannot attend, the audio feed from the conference will be webcast and accessible from the Berkman Center’s home page at . For more information, please contact Berkman Staff Assistant Arielle Silver (asilver@cyber.law.harvard.edu) or Berkman Fellow Tim Armstrong (tarmstrong@cyber.law.harvard.edu). Thanks for your time.

University of Cincinnati Law: Garry W. Jenkins, Ohio State, "Preventing Philanthropic Isolationism: The Case for International Philanthropy in the Wake of Terrorism and Charitable Need"
University of Texas Law: Stefanie Lindquist (Vanderbilt), "Judicial Review by the Burger and Rehnquist Courts: Explaining Justices' Responses to Constitutional Challenges"
UCLA Law: Professor Jerry Kang and Professor Gary Blasi, UCLA School of Law, "Behavioral Realism in Law: Implicit Cognition & Social Justice"
NYU Law: Lily Batchelder
Cardozo Intellectual Property Law Program: Srividhya Ragavan, University of Oklahoma, Replacing Sticks with Carrots: Is the Enforcement Mechanism under the WTO working?
Georgetown Law & Philosophy: John Mikhail (Law, Georgetown)

Most everyone assumes that impeachment is the only means of removing federal judges and that the Constitution’s grant of good behavior tenure is an implicit reference to impeachment. This article challenges these widely shared assumptions. Using evidence from England, the colonies, and the revolutionary state constitutions, the article demonstrates that at the time of the founding good behavior tenure and impeachment had only the most tenuous of relationships. Good behavior, when discussed in the context of the government, consisted of a tenure in office whereby the officer would forfeit her office upon a judicial finding of misbehavior. There would have to be a trial, the hearing of witnesses, and the introduction of evidence, with misbehavior proved by the party seeking to oust the tenured individual. Impeachment, by contrast, referred to a criminal procedure conducted in the legislature that could lead to an array of criminal sanctions. In England and in the colonies, impeachment was never seen as a means of judging whether someone with good behavior tenure had forfeited her office by reason of misbehavior. Most state constitutions did not equate good behavior tenure with impeachment either. Indeed, some distinguished them explicitly. Compared to prior scholarship on good behavior tenure, this article provides a more complete, and therefore more credible, understanding of good behavior tenure. In particular, we demonstrate several propositions for the first time: 1) that the English understanding of good behavior tenure had migrated to her colonies and continued in independent America; 2) that good behavior tenure was not limited to government officials but could be granted to anyone, including tenants in land, licensees, and employees; 3) that the English writ of scire facias was not the only mechanism for ousting those with good behavior tenure; and 4) that the state constitutions generally did not regard impeachment as a means of judging good behavior. Taken together, these propositions devastate the conventional conflation of good behavior tenure with impeachment.

Monday, April 10
University of Cincinnati Law: Garry W. Jenkins, Ohio State, "Preventing Philanthropic Isolationism: The Case for International Philanthropy in the Wake of Terrorism and Charitable Need"
University of Texas Law: Stefanie Lindquist (Vanderbilt), "Judicial Review by the Burger and Rehnquist Courts: Explaining Justices' Responses to Constitutional Challenges"
UCLA Law: Professor Jerry Kang and Professor Gary Blasi, UCLA School of Law, "Behavioral Realism in Law: Implicit Cognition & Social Justice"
NYU Law: Lily Batchelder
Cardozo Intellectual Property Law Program: Srividhya Ragavan, University of Oklahoma, Replacing Sticks with Carrots: Is the Enforcement Mechanism under the WTO working?
Georgetown Law & Philosophy: John Mikhail (Law, Georgetown)

Tuesday, April 11
University of Chicago Law & Economics: George Triantis, Perre Bowen Professor of Law, Nicholas Chimicles Research Professor in Business Law and Regulation and Director, John M. Olin Program in Law & Economics, University of Virginia Law School, Economic and Legal Boundaries of Firms
University of Pennsylvania Tax Policy: Mitchell Kane
University of Oxford-University of Texas Law Faculty Interchange
Ms. Catherine Appleton, Research Officer, Centre for Criminology - University of Oxford, "The Aftermath of Homicide: A Comparative Study of the Experiences of Families of Homicide Victims in Jurisdictions with and without the Death Penalty", Discussant: Professor Jordan Steiker, UT School of Law
Ms. Mindy Chen-Wishart, Fellow in Law - Merton College, Oxford; University Lecturer and Director of Undergraduate Studies, Law Faculty - University of Oxford, "Undue Influence: Vindicating Relationships of Influence", Discussant: Professor Mark Gergen, UT School of Law
Dr. Wanjiru Njoya, Fellow in Law - St. John's College, Oxford, "Employee Participation in Corporate Governance: the End, the Beginning of the End, or Perhaps the End of the Beginning?", Discussant: Professor Jens Dammann, UT School of Law
Ms. Sandra Meredith, IT Training & Development Officer - Bodleian Law Library; Law Faculty - Oxford University, "The Oxford Law Legal Research Skills Programme", Discussant: Ms. Jeanne Price, Tarlton Law Library
Dr. Katja Ziegler, Lecturer in Law, Fellow and Deputy Director of the Institute of European and Comparative Law - University of Oxford, "The Constitutionalisation of the British Constitution?: Recent Aspects of Constitutional Change in the UK Through 'the Two Europes' - Towards a Judicial Review of Statutes?", Discussant: Professor Ernie Young, UT School of Law
Mr. Nicholas Bamforth, Fellow in Law - The Queen's College, Oxford; University Lecturer in Law - University of Oxford, "The Constitutional Status and Impact of the [UK] Human Rights Act 1998", Discussant: Professor H.W. Perry Jr., UT School of Law; Government Department
Chicago-Kent College of Law, Chicago IP Colloquium: Professor Greg Lastowka, Rutgers School of Law-Camden, Digital Attribution: Shifting Information Policy from Copyright to Trademark
Georgetown Law: Julie Cohen
Georgetown Constitutional Law & Theory: Ted Ruger (law, Pennsylvania), The Chief Justice's Special Authority and the Norms of Judicial Power

Wednesday, April 12
Vanderbilt Comparative Corporate Governance Seminar: David Skeel, Pennsylvania Law School, "Corporate Anatomy Lessons"
University of Georgia Law: Alan Watson (UGA), Lord Mansfield: Judicial Integrity or its Lack: Somerset's Case
NYU Legal History: Alison LaCroix, Golieb Fellow, NYU School of Law, "Drawing the Line: The Pre-Revolutionary Origins of Federal Ideas of Sovereignty."

Thursday, April 13
Yale Workplace Theory & Practice: ANN ORLOFF, Sociology, Northwestern University, From Maternalism to "Employment for All"
Yale Law, Economics & Organizations: Professor Alison Morantz, Stanford, Law, Post-Accident Drug Testing & Workers' Compensation Claims in a Fortune 500 Company
University of Illinois Criminal Law Colloquium, Susan Klein, University of Texas, Enhancing the Judicial Role in Criminal Plea and Sentence Bargaining
University of North Dakota Indian Law: Erma J. Vizenor, "Tribal Sovereignty, the Federal Trust Responsibility, and Constitutional Reform"
University of Michigan Law & Economics: Daniel Gervais, Ottawa, Intellectual Property and Development: Towards a Strategy
UCLA Tax Policy & Public Finance: Dennis Ventry, Visiting Scholar in Taxation, UCLA School of Law, Suspicious Minds: The Uneasy Relationship Between Tax Lawyers and the IRS
UCLA Law: Fernando Rámon Vegas Torrealba, Venezuelan Supreme Court Justice, "Democracy in Venezuela under the 1999 Bolivarian Constitution"
Northwestern Tax: Lee Ann Fennell, Associate Professor, University of Illinois College of Law, "Taxation Over Time"
NYU Tax: Mitchell Kane, University of Virginia Law School, "Risk and Redistribution in Open and Closed Economies."
George Mason Law: Iliana Ilieva, GMU School of Law Levy Fellow
Florida State Law: Barbara Fried, Stanford Law School, Contractarianism as the Site of Justice

Friday, April 14
University of Illinois, Institute for Law & Philosophy: Kevin A. Kordana & David H. Tabachnick, On Belling the Cat: Rawls & Corrective Justice
University of Georgia Interntional Law: Roger Alford (Pepperdine), Foreign Relations as a Matter of Interpretation: The Use and Abuse of Charming Betsy
UCLA Law: Scott L. Cummings, Acting Professor of Law, UCLA School of Law, "Transnational Public Interest Law"

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

Welfare and the Constitution defends a largely forgotten understanding of the U.S. Constitution: the positive or "welfarist" view of Abraham Lincoln and the Federalist Papers. Sotirios Barber challenges conventional scholarship by arguing that the government has a constitutional duty to pursue the well-being of all the people. He shows that James Madison was right in saying that the "real welfare" of the people must be the "supreme object" of constitutional government. With conceptual rigor set in fluid prose, Barber opposes the shared view of America's Right and Left: that the federal constitutional duties of public officials are limited to respecting negative liberties and maintaining processes of democratic choice. Barber contends that no historical, scientific, moral, or metaethical argument can favor today's negative constitutionalism over Madison's positive understanding. He urges scholars to develop a substantive account of constitutional ends for use in critiquing Supreme Court decisions, the policies of elected officials, and the attitudes of the larger public. He defends the philosophical possibility of such theories while also offering a theory of his own as a starting point for the discussion the book will provoke. This theory holds, for example, that voucher schemes which drain resources from secular public schools to schools that would train citizens to submit to religious authority are unconstitutional; First Amendment issues aside, such schemes defeat what is undeniably an element of the "real welfare" of the people, individually and collectively: the capacity to think critically for oneself.

Contemporary accounts of the allocation of war powers authority often focus on textual or historical debates as to whether the President or Congress holds the power to initiate military hostilities. In this Essay, we move beyond such debates and instead pursue a purely functional or comparative institutional analysis of the relationship between Congress and the President on war powers. More specifically, we focus on the following question: Which war powers system would best enhance the effectiveness of the United States in making decisions on war and peace? Our answer draws on one of the few facts considered to be close to an empirical truth in international relations: democracies do not tend to go to war with each other. First, we articulate and evaluate the various arguments that underpin the democratic peace literature and analyze their relationship to the United States constitutional structure of war powers. Second, we distinguish between two types of constitutional processes that would be most necessary for successfully combating different regimes. We argue that if the United States were involved in a dispute with another democracy, the President ought to involve Congress because a dual branch process would help facilitate a peaceful resolution to the dispute by allowing the United States to signal more effectively its intentions. If, however, the United States were involved in a dispute with a non-democracy or a terrorist organization, a unilateral presidential approach might make much more sense because a non-democratic regime or terrorist organization is unlikely to appreciate the value of congressional participation. Finally, we conclude with the observation that in the war powers debate, only an approach that gives the President the complete flexibility to seek congressional participation would permit the United States to adapt its domestic decision making structure to the exogenous demands of the international system.

University of Arizona James E. Rogers College of Law: Professor Oliver Houck, Tulane Law School, “Can We Save New Orleans?”
Duke Law School: Animal Law Conference:
Panel discussion: 10:00am – 11:30am, room 3037 “Big Business and Animal Rights” Panel discussion: 11:45am – 1:00pm, room 3037 “Animal Agriculture and the Law” Keynote Speaker, Professor Gary Francione: 1:00pm – 2:30pm, Burdman Lounge (3rd floor) “Animal Rights: The Last Ten Years” Panel discussion: 3:00pm, room 3037 “Promotion of Animal Welfare: Legislation, Mediation, and More”
Georgetown Law & Economics: Edward Morrison, Columbia Law School
Notre Dame Law: Jacqueline Lipton, Associate Director, Frederick K. Cox International Law Center, Case Western Reserve University School of Law
Location: Quinnipiac-Yale Dispute Resolution Workshop: Catherine A. Rogers, Louisiana State University, "Regulating International Arbitrators: A Consent-Based Approach to Enforcement of Misconduct-Tainted Awards"
UCLA Media, Entertainment, and Culture Workshop:
9:30 a.m. - 10:45 a.m.
Eli M. Noam Professor of Finance and Economics Director, Columbia University Institute for Tele-Information Columbia University Business School "Media Scholars as Activists: Media De-Concentration as Social Reform?"
11:00 a.m. - 12:15 p.m.
Christopher Yoo Professor of Law Vanderbilt University Law School "Network Neutrality and the Economics of Congestion"
12:30 p.m. - 2:00 p.m.
Randal C. Picker Paul H. and Theo Leffmann Professor of Commercial Law Senior Fellow, The Computation Institute of the University of Chicago and Argonne National Laboratory University of Chicago Law School "Mistrust-Based Digital Rights Management"
2:30 p.m. - 3:45 p.m.
Roger Noll Professor of Economics Stanford University "Napster's Copyright Abuse Defense and the Future of Digital Entertainment Downloads"
University of Alabama Law: Miriam Cherry, Samford University, Cumberland School of Law
University of Georgia Law: John Langbein (Yale), Trust Law as Regulatory Law
University of Georgia International Law Colloquium: Diane Orentlicher (American University): "Whose Justice? Reconciling Universal Jurisdiction with Democratic Principles"
University of Texas Law: Anthony Sebok, Brooklyn Law School, "Punitive Damages: From Myth to Theory"
Villanova Law: Benjamin Barton, University of Tennessee College of Law
William Mitchell Law: Michael Hurley, Counterterrorism Office, U. S. State Department>
UCLA School of Law, Analytic Legal Philosophy Conference Schedule:
9:00am - 9:30am: BREAKFAST 9:30am - 11:15am: SESSION 1 Roger Shiner Professor of Philosophy Emeritus University of Alberta "What is a Crime: A Theory of the Legislative Response" 12:00pm - 1:15pm: LUNCH 1:30pm - 3:15pm: SESSION 2 Gideon Yaffe Associate Professor of Philosophy University of Southern California "Trying, Acting and Attempted Crimes" 4:00pm - 5:45pm: SESSION 3 Seana Shiffrin Associate Professor of Philosophy and Professor of Law UCLA School of Law "The Divergence of Promise and Contract" 6:30pm: Drinks/Cocktails at Kerkhoff Hall 7:00pm - 9:00pm: Dinner at Kerkhoff Hall

Breaking Frames: Economic Globalisation and the Emergence of Lex Mercatoria:
The author argues that globalisation processes imply the self-deconstruction of the hierchary of legal norms. Thus, legal pluralism is no longer only an issue for legal sociology, but becomes a challenge for legal practice itself. Traditionally, rule making by private regimes has been subjugated under the hierarchical frame of the national constitution. When this frame breaks, then the new frame of legal institutions can only be heterarchical. The origin of global non-state law as a sequence of recursive legal operations is an as if, not only a founding myth as a self-observation of law, rather the legal fiction of concrete past operations. This fiction however depends on social conditions outside of legal institutions, on a historical configuration in which it is sufficiently plausible to assume that also in former times legal rules have been applied.
Contracting Worlds: Invoking Discourse Rights in Private Governance Regimes:
I. Il buon Governo Revisited II. Private Law in a Fragmented Society III.Reconstructing Relational Contract (1) Contract as non-individual obligation (2) Contract as discursive project (3) Contract as interdiscursive translation IV. Normative Perspectives: Freedom of Translation V. Discourse Rights in the Private Sphere

It is essential to correctly classify situations in the world as ones of war or peace: human lives depend on the distinction, but so do liberty, property, and the integrity of the natural environment. President Bush’s “war on terror” finds war where suspected members of al Qaeda are found. By contrast, war under international law exists where hostilities are on-going. To the extent there is ambiguity, the United States should err on the side of pursuing terrorists within the peacetime criminal law enforcement paradigm, not a wartime one. Not only does the criminal law better protect important human rights and other interests, it avoids elevating terrorists to the status of combatants in a war with the world’s only superpower.

Individuals spend billions of dollars every year on precautions to protect themselves from crime. Yet the legal academy has criticized many private precautions because they merely shift crime onto other, less guarded citizens, rather than reduce crime. The conventional wisdom likens such precaution-taking to rent-seeking: citizens spend resources to shift crime losses onto other victims, without reducing the size of those losses to society. The result is an unambiguous reduction in social welfare. This Article argues that the conventional wisdom is flawed because it overlooks how the law systematically understates the harms suffered by some victims of crime, first, by ignoring some types of harm altogether in grading and sentencing decisions, and second, by ignoring wide disparities in the amount of harm caused in individual cases. It follows that the same “crime”, as defined by the law, may inflict significantly different amounts of harm on different victims, and by aggregation, on society. Thus it cannot be safely assumed that displacing a given crime from one citizen to the next is necessarily wasteful, from a social point of view. Indeed, this Article argues that shifting crime may be beneficial to society, from an economic point of view, since eggshell victims - those who are harmed more by crime - tend to take more precautions. The implication is that private crime fighting efforts that displace crime - universally criticized in the literature - may be more socially useful than previously acknowledged. The Article discusses the implications for the ongoing debates over the regulation of precaution-taking.

The purpose of this article is to provide a better understanding of how law students learn in the context of case analysis. As new students approach case analysis for the first time, the case brief is an effective “schema” to provide students with a framework within which to analyze a legal opinion. Case briefing does more than simply allow students to pull out the holding of a case; it helps beginning students organize a legal opinion’s analytical framework accurately and efficiently. The more students learn about the world of law, the better their analysis of cases becomes. Although some can argue that most good lawyers had to struggle in law school and that this struggle is emblematic of good learning, the research says otherwise. In any context of learning, and particularly in law school, it is the legal educator’s job to make the hidden aspects of learning apparent. By understanding the cognitive processes behind case analysis, we can unmask the cognitive mysteries of how we learn the law.

Self to Self: Themes from the Work of J David Velleman Conference Centre for Applied Philosophy & Public Ethics Dates: 18 - 20 April, 2006 The Conference will commence at 5.00pm on Tuesday 18th April with the keynote address and close around 1.00pm on Thursday 20th April. Location: University House The Australian National University Canberra ACT Australia Background: In the introduction to his new collection, Self to Self (Cambridge University Press 2005) David Velleman defines the self as a reflexive mode of presentation in different guises, “under which parts or aspects of a person are presented to his own mind”. There are, he says, at least three different contexts where such presentation takes place: (a) self-sameness: the self of identity, the remembering/anticipating self, (b) autonomous agency, and (c) self-image: the self as the subject of moral reflection and moral emotions. The essays in this collection are unified by an encompassing thesis, that there is no single entity denoted by "the self," as well as by themes from Kantian ethics, psychoanalytic theory, social psychology, and Velleman's work in the philosophy of action. The conference will take up the themes and challenges in this collection. Keynote Speaker: David Velleman Speakers and Respondents: Tim Bayne (Macquarie), Jennan Ismael (Arizona/Sydney), Karen Jones(Melbourne), Jeanette Kennett (CAPPE ANU/Monash), Catriona Mackenzie(Macquarie), Justin Oakley (Monash) Francois Schroeter (Melbourne), Laura Schroeter (Monash), John Sutton(Macquarie), Nick Zangwill(Oxford). Contact: Jeanette Kennett Email: Jeanette.Kennett@anu.edu.au Steve Matthews Email: stmatthews@csu.edu.au Jacqueline Lau Centre for Applied Philosophy and Public Ethics LPO Box 8260 ANU Canberra ACT 2601 Australia Telephone: +61 2 61258467 Facsimile: +61 2 61256579 Email: Jacqueline.Lau@anu.edu.au Registrations: Registration is free but is essential for catering and other purposes. Please submit your registration online, including your name, affiliation, and days attending. Please note that dinner is $35.00, and $15 for postgraduates and unwaged. Accommodation: A number of rooms have been block booked at University House for the conference. Please say you are with the conference when booking. These rooms will only be held until 3 weeks before the date of the conference. Following are some accommodation suggestions, all within walking distance of the conference venue.

This article addresses the long-standing debate over whether federalism constrains the treaty power and challenges the view that courts may authoritatively resolve that debate. Until recently, scholars generally accepted that the treaty power operated free from federalism limits based on Justice Holmes’ opinion in Missouri v. Holland. Lately, however, scholars have questioned whether Missouri remains good law. Two camps have emerged. On one side lie “nationalists” who seek to defend Missouri by invoking constitutional text, structure, history, doctrine and prudential claims. On the other side reside “new federalists” who suggest the Court should overrule Missouri in light of: (1) adjustments to Congress’ commerce power via Lopez and its progeny; and (2) changes in the subjects and substantive obligations of U.S. treaties. Despite their disagreements, both sides focus on the same subject­the Supreme Court. This article demonstrates, however, that this judicial focus is misplaced. An examination of the Court’s doctrine reveals little likelihood that it will revisit Missouri. More importantly, while the Court has chosen to disengage, the Executive has interpreted the treaty power’s scope and devised its own mechanisms for accommodating federalism in U.S. treaties. To date, however, scholars have largely ignored the Executive’s efforts to self-judge when and how federalism limits U.S. treaty-making -- efforts that I label “Executive Federalism.” But Executive Federalism has significant domestic and international ramifications. First, it requires rethinking federalism’s nature by demonstrating that federalism need not function solely as a judicial or legislative safeguard for states’ rights. Second, while it serves as a vehicle for Executive self-restraint, Executive Federalism still has structural implications, weakening the authority of other actors (the courts, the legislature, and even future Presidents) to voice their views on federalism in the treaty context. Third, it provides us with valuable information about how the holder of the treaty power­the Executive­conceives of its scope. Finally, Executive Federalism can affect U.S. foreign relations, preventing some treaty-making altogether, constraining U.S. negotiating positions, imposing extra costs to achieve U.S. goals, and complicating questions of U.S. compliance. In sum, Executive Federalism presents the case for re-conceptualizing the treaty power debate to recognize the Executive as an essential subject in its own right.

Conference Announcement and Invitation Works in Progress Intellectual Property Colloquium 2006 The University of Pittsburgh School of Law will host the 2006 Works in Progress Intellectual Property Colloquium on Friday and Saturday, October 6-7, 2006. The Colloquium offers an opportunity for intellectual property scholars to present their works-in-progress and get early feedback from their colleagues. All participants are welcome to present, but presentation is not required. To view the program from last year's colloquium go to: http://law.wustl.edu/wipip2005/Conference Schedule.htm The colloquium will begin at noon on Friday, October 6 and will conclude before dinner on Saturday, October 7. Dinner on Friday and lunch on Saturday will be provided, as well as coffee breaks. To register as a participant, and for more information, contact Professor Michael J. Madison by e-mail at madison@law.pitt.edu or telephone at (412) 648-7855.

Lavender Law 2006 will be held Sept. 7-9 in Washington, D.C. The conference provides a unique opportunity for academics, practitioners and students to explore theoretical and practical perspectives on cutting-edge legal issues affecting LGBT individuals. Potential topics include constitutional law developments, estate planning and drafting, employment discrimination, HIV/AIDS, immigration, workplace diversity, domestic violence, and LGBT issues in academe, the military, and the family. Lavender Law welcomes workshop proposals from academics. PROPOSAL DEADLINE: Friday, April 21, 2006 For more information or to submit a proposal: http://www.lavenderlaw.org/

American University Washington College of Law & The Hoover Institution, Stanford University present: Institutionalizing the War on Terror Through Congressional Legislation Monday, April 10, 8:30 am - 2:00 pm, including lunch American University Washington College of Law, 4801 Massachusetts Avenue, NW The Bush administration and many others have declared that the war on terror is a long term effort that will outlast any particular presidential administration and in some ways resembles the combined military and ideological struggle of the Cold War. In the long term war on terror, is it possible to conduct it by relying primarily on the power and authority of the executive branch, or does the long term struggle require that Congress institutionalize it through legislation? Three panels in this one day conference will consider ways in which the war on terror should be institutionalized for the long term through congressional legislation, rather than relying primarily upon executive authority. The first panel will debate the question of whether the war on terror should be legislated - it debates the fundamental premise of legislative action underlying the other two panels. The second panel considers some of the most incendiary questions in the war on terror - how to legislate legal rules for detention, rendition, interrogation, and what crosses the legal line into torture. The third panel considers what rules should be set for the use of force that does not rise to the legal definition of armed conflict, but is arguably not simply criminal law enforcement, either - should there be such a category of force at all, and if so, what should the legal rules be?
8:30-9:00 Registration and Coffee 9:00-9:15 Opening Comments – Kenneth Anderson 9:15-10:30 Discussion 1: Executive Power versus Congressional Legislation in the War on Terror Presenters: Bradford Berenson; Amanda Frost; Jamin Raskin; David Rivkin; Ruth Wedgwood; Benjamin Wittes. Moderator: Daniel Marcus 10:45-12:00 Discussion 2: Standards for Detention/ Rendition/ Interrogation/ Defining Torture Presenters: Kenneth Anderson; Lee Casey; Jennifer Daskal; Andrew McCarthy; Matthew Waxman; Ruth Wedgwood. Moderator: Tod Lindberg 12:00-12:30 Buffet Lunch 12:30-1:45 Discussion 3: Standards for Use of Force Legally Short of War Presenters: Lee Casey; Lee Feinstein; Andrew McCarthy; Laura Olson; Matthew Waxman. Moderator: Kenneth Anderson
Participants:
Kenneth Anderson, professor, WCL, and a research fellow of the Hoover Institution; Bradford Berenson, partner at Sidley & Austin, from 2001-2003 Associate Counsel to the President; Lee Casey, a lawyer formerly with the Justice Department under the Reagan and first Bush administrations; Jennifer Daskal, United States advocacy director for Human Rights Watch; Lee Feinstein, senior fellow for US foreign policy and international law with the Council on Foreign Relations; Amanda Frost, professor, WCL; Tod Lindberg, editor of Policy Review and a research fellow of the Hoover Institution; Andrew McCarthy, senior fellow of the Foundation for the Defense of Democracies; Daniel Marcus, professor, WCL, served as counsel to the 9-11 Commission; Laura Olson, legal advisor to the International Committee of the Red Cross; Jamin Raskin, professor, WCL; David Rivkin, a lawyer formerly in the Justice Department under the Reagan and first Bush administrations; Matthew Waxman, deputy director of the Office of Policy Planning, US State Department, and formerly responsible for detainee affairs in the Department of Defense; Ruth Wedgwood, professor, School of Advanced International Studies, Johns Hopkins University; Benjamin Wittes, an editorial writer with the Washington Post.
For More Information and to register, please Contact the Office of Special Events & CLE at 202.274.4075 or secle@wcl.american.edu or register online at www.wcl.american.edu/secle/cle_form.cfm

Notre Dame Law, Natural Law Lecture: Lawrence Solum, Natural Justice
UC Berkeley, Kadish Center: Julie Tannenbaum, Assistant Professor of Philosophy University of California, Santa Cruz, THE "SHOULD" OF FULL PRACTICAL REASON
Michigan State University: John C.P. Goldberg (Vanderbilt University) "The Constitutional Status of Tort Law: Due Process and the Right to a Law for the Redress of Wrongs."
Brooklyn Law School: Michael Perry, Emory University School of Law, The Constitutionality of Capital Punishment: Originalism, Yes; Scalia, No
Boston University Law: Wendy Mariner
Florida State Law: Darryl Brown, Washington & Lee, Rethinking Overcriminalization
Fordham Law: Devon Carbado, Professor of Law, UCLA School of Law, "Racial Naturalization"
George Mason Law: Christine Kymn, GMU School of Law Levy Fellow; Title: Strategic Signaling in Supreme Court Nominations (with Ross Davies)
NYU Colloquim on Tax Policy & Public Finance: Ed McCaffery, USC Law School, “Shakedown at Gucci Gulch: A Tale of Death, Money, and Taxes”
UCLA Legal Theory Workshop: Liam Murphy, Professor of Law and Professor of Philosophy, New York University School of Law
University of Michigan Law & Economics: Scott Baker, North Carolina, Incomplete Contracts in a Complete Contracts World
University of Texas Law: Mike Tigar (American University), "Universal Rights & Wrongs: Roper vs. Simmons"
Yale Legal Theory Workshop: Elizabeth Harman, New York University (Philosophy), The Mistake in "I'll Be Glad I Did It" Reasoning: Why Curing Deafness isn't Wrong, and Aborting You or Me Wouldn't Have Been Either

The literature on heuristics and biases in decision-making, as well as on emotional influences on judgments, is burgeoning. Commentators reviewing such work have begun to discuss its practical implications for the law. Most recently, they have focused in particular on what the research might suggest for an increased third-party role to help protect individuals from their own biases. That is, the most recent discussion has focused on the findings’ implications for the appropriateness and scope of paternalistic policies. This paternalism discussion, however, has been incomplete in a number of contexts. First, despite a substantial focus on the implications of the first line of scholarship (documenting cognitive biases), commentators have addressed the implications of emotional biases far less. Second, much of the most recent discussion has been in the context of intervention by private parties (such as a company’s conduct encouraging employees to participate in 401(k) plans), rather than addressing potential governmental steps, legislative or judicial, to protect individuals from their errors. Finally, although commentators have recently noted the importance of comparing the costs and benefits of paternalistic interventions, there has been little specification of those costs and benefits. In particular, commentators in this area have largely avoided the question of how difficult it might be to correct such biases, and thus how effective any such interventions might in fact be. In this Article I evaluate and extend this developing discussion of using social science data to justify paternalism, addressing these three gaps in the literature as well as other issues and examples. After a critical review of the existing literature, including discussion of whether paternalistic intervention is justified in the first place, I move to remedy some of these gaps. I document not only cognitive but emotional biases that people are subject to, including a number that have been little discussed in legal academia. I note the importance of such emotional biases to legal decision-making and illustrate potential legal errors to which they may lead. I also mention implications of such errors for paternalistic intervention by government, both by legislatures and by courts. In the distinct contexts of cognitive and emotional biases, one sort of government intervention may be appropriate where another is not. Finally, I take steps toward evaluating the effectiveness of measures to correct cognitive and emotional biases, a step mentioned but not pursued in discussions of social science and paternalism. Specifically, I draw on empirical social science literature to examine whether effective mechanisms exist to correct various cognitive and emotional biases at the individual level, with implications for policy at the larger interpersonal and societal level. Throughout, I identify potential objections to some of the points I raise, summarizing and concluding with further speculation about the appropriateness of paternalistic intervention by the State. This is, however, an early working paper. Accordingly, comments and feedback are welcome, but please do not cite or quote without permission.

This Essay responds to Reserving, a forthcoming Article by Professor Edward T. Swaine to be published in the Yale Journal of International Law. The Essay first reviews the Article’s explanation of the complex and often counterintuitive rules that govern the filing of unilateral reservations to multilateral treaties. It then offers three modest additions to Professor Swaine’s insightful contribution to the growing body of interdisciplinary scholarship on treaty design. First, the Essay applies Swaine’s theory of state interests and information to a dynamic model that takes account of temporal issues such as when states file reservations and how treaty commitments change over time. Second, it extends Reserving’s analysis to the flexibility devices that states employ when they preclude reservations or bargain around the default rules in the Vienna Convention on the Law of Treaties. Third, it considers the relationships between reservations and other treaty flexibility tools and explores the consequences of those relationships for managing the risks of international agreement.

Contemporary accounts of the allocation of war powers authority often focus on textual or historical debates as to whether the President or Congress holds the power to initiate military hostilities. In this Essay, we move beyond such debates and instead pursue a purely functional or comparative institutional analysis of the relationship between Congress and the President on war powers. More specifically, we focus on the following question: Which war powers system would best enhance the effectiveness of the United States in making decisions on war and peace? Our answer draws on one of the few facts considered to be close to an empirical truth in international relations: democracies do not tend to go to war with each other. First, we articulate and evaluate the various arguments that underpin the democratic peace literature and analyze their relationship to the United States constitutional structure of war powers. Second, we distinguish between two types of constitutional processes that would be most necessary for successfully combating different regimes. We argue that if the United States were involved in a dispute with another democracy, the President ought to involve Congress because a dual branch process would help facilitate a peaceful resolution to the dispute by allowing the United States to signal more effectively its intentions. If, however, the United States were involved in a dispute with a non-democracy or a terrorist organization, a unilateral presidential approach might make much more sense because a non-democratic regime or terrorist organization is unlikely to appreciate the value of congressional participation. Finally, we conclude with the observation that in the war powers debate, only an approach that gives the President the complete flexibility to seek congressional participation would permit the United States to adapt its domestic decision making structure to the exogenous demands of the international system.

The McDonnell-Douglas three-part burden-shifting framework has come under increasing attack in recent years. While policy arguments in favor of eliminating the standard are important, one of the strongest arguments in favor if its demise, is that the standard was adopted without proper regard to the operative text, the legislative history, and the broad policies of Title VII. This Article examines the McDonnell-Douglas framework through four leading models of statutory construction and concludes that a satisfactory statutory justification for the test is lacking. While it arguably may have been appropriate to justify this lapse in the past by claiming that the test was merely an evidentiary standard and could be created through the Supreme Court’s supervisory authority without reference to normal principles of statutory construction, this argument is no longer compelling. In recent years, courts have begun to water down or eliminate McDonnell-Douglas’ use as an evidentiary standard by juries, and, in the process, weakened the argument for its continued legitimacy.

While the controversial doctrine of strict liability occupies an important place in modern criminal law, existing theories fail to explain when and why this doctrine is used instead of mens rea. This Essay advances a new understanding of strict criminal liability and explores its implications. The drawback of a mens rea standard is that it assures ignorant offenders that they can engage in the prohibited conduct without being penalized. This shortcoming, however, will be mitigated when offenders find that the market imposes too high a cost on ignorance. If ignorance is sufficiently costly, offenders will take steps to become (or remain) informed notwithstanding the adverse incentive created by the mens rea standard. The Essay thus predicts that, other things being equal, strict liability is likely to govern only those elements of a criminal offense for which ignorance is virtually costless. The Essay proceeds to demonstrate the illuminating power of this theory by analyzing the seemingly puzzling application of strict liability to liquor-sale to minors, statutory rape, child-pornography, regulatory offenses, criminal liability of corporate officers, and mistakes of law and fact. The Essay concludes by exploring whether alternative doctrines may induce offenders to acquire information without producing the harsh and unfair consequences often attributed to strict liability.

On Saturday 22nd April, 2006, the Department of Philosophy at the University of Reading will host the Ratio one-day conference on the theme: Wittgenstein and Reason The conference speakers will be: Crispin Wright (University of St. Andrews) Joachim Schulte (University of Zurich) Jane Heal (University of Cambridge) Hans-Johann Glock (University of Reading) Registration will take place from 9.30-9.55 am. Conference sessions begin at 10 am, and go on until 5.15 pm, after which there will be a wine reception, sponsored by Blackwell’s publishers. The registration fee of £40 includes lunch and refreshments (NB applications received after 7th April will be subject to a £10 late booking fee). To apply, please contact philosophy@reading.ac.uk Full details will be sent to those who register. Thanks to a generous grant from the Analysis Trust, we are able to offer up to 30 bursaries to graduate students, allowing them to attend the conference at a reduced fee of £20. Those wishing to apply for such a bursary should contact the above address as soon as possible. The University of Reading is easily accessible from the M4 motorway, and is a short bus or taxi ride from Reading British Rail train station. Fast trains between London, Paddington and Reading, and between Oxford and Reading, take 30 minutes. The RATIO conference on Wittgenstein and Reason acknowledges the generous support of The Analysis Trust and Blackwell Publishers.

Michigan State University: John C.P. Goldberg (Vanderbilt University) "The Constitutional Status of Tort Law: Due Process and the Right to a Law for the Redress of Wrongs."
Notre Dame Law, Natural Law Lecture: Lawrence Solum, Natural Justice
UC Berkeley, Kadish Center: Julie Tannenbaum, Assistant Professor of Philosophy University of California, Santa Cruz, THE "SHOULD" OF FULL PRACTICAL REASON
Brooklyn Law School: Michael Perry, Emory University School of Law, The Constitutionality of Capital Punishment: Originalism, Yes; Scalia, No
Boston University Law: Wendy Mariner
Florida State Law: Darryl Brown, Washington & Lee, Rethinking Overcriminalization
Fordham Law: Devon Carbado, Professor of Law, UCLA School of Law, "Racial Naturalization"
George Mason Law: Christine Kymn, GMU School of Law Levy Fellow; Title: Strategic Signaling in Supreme Court Nominations (with Ross Davies)
NYU Colloquim on Tax Policy & Public Finance: Ed McCaffery, USC Law School, “Shakedown at Gucci Gulch: A Tale of Death, Money, and Taxes”
UCLA Legal Theory Workshop: Liam Murphy, Professor of Law and Professor of Philosophy, New York University School of Law
University of Michigan Law & Economics: Scott Baker, North Carolina, Incomplete Contracts in a Complete Contracts World
University of Texas Law: Mike Tigar (American University), "Universal Rights & Wrongs: Roper vs. Simmons"
Yale Legal Theory Workshop: Elizabeth Harman, New York University (Philosophy), The Mistake in "I'll Be Glad I Did It" Reasoning: Why Curing Deafness isn't Wrong, and Aborting You or Me Wouldn't Have Been Either

This is a critical review of Professor Marci A. Hamilton’s book, God vs. The Gavel: Religion and the Rule of Law (Cambridge Univ. Press 2005). It focuses on Hamilton’s conception of what she terms “the public good” and its application to the relationship between government and religious institutions and believers. The review offers several criticisms of Hamilton’s public good and argues that the conception she advocates is ambiguous, unstable, and frequently merely a stand-in for her policy preferences on a variety of issues. The review considers the ways in which religion or religious interests could ever play a role in Hamilton’s public good, concluding that Hamilton’s profound disillusionment with religion has led her to vest an unjustifiably high degree of trust in the legislature to determine moral worth.

Desert appears to be in ascendence as a distributive principle for criminal liability and punishment but there is confusion as to whether it is a deontological or an empirical notion of desert that is or should be promoted. Each offers a distinct advantage over the other. Deontological desert, derived as it is from principles of right and good, transcends community and situation to give a notion of justice that can be relied upon even to reveal errors in popular notions of justice. On the other hand, empirical desert can be more easily operationalized than deontological desert because, contrary to common wisdom, there is a good deal of agreement on its meaning, but it fails to provide the transcendent foundation that deontological desert can provide. Empirical desert can only tell us what people believe is just not what actually is just. What role do moral philosophers play in the competition between deontological and empirical desert? One might assume them on the deontological side, facing the research social psychologists who are mapping shared intuitions of justice for empirical desert, but the situation is more complex. Moral philosophy has come to rely upon intuitions of justice in both its formal and informal analytic methods, which both helps and hurts its usefulness. The moral philosophy literature today is the richest available source of intuitions of justice, which any serious research scientist ought to use as their starting point in mapping intuitions. But moral philosophers' reliance on intuitions of justice can undermine their ability to produce a deontological notion of desert that transcends the popular view and that can tell us, among other things, when shared intuitions of justice are wrong.

For nearly seventy years, the analysis of contract remedies has been dominated by Fuller and Perdue’s classification of the interests protected by remedies: expectation, reliance, and restitution. Fuller and Perdue clarified the complex picture of contract remedies, yet has concomitantly obstructed our view of some of the picture’s elements. This Article argues that in many instances courts and legislatures award remedies that do not aim at any of the familiar interests, but rather aim at another interest, unidentified heretofore by legal scholars, namely, restoration of the contractual equivalence, or the restoration interest. Restoration remedies do not aim to place the injured party in the position she would have been in had the contract been fully performed or had she never made the contract, nor do they aim to put the breaching party in any of these two positions. Rather, they strive to put the injured party in a position similar to the one she would have occupied had the parties made (and performed) a contract in which their obligations were adjusted to the actual performance by the breaching party, while maintaining the contractual equivalence in terms of the agreed value of performance, the chronological relation between their respective obligations, etc. Thus, for example, restoration remedies may put a buyer in a monetary position similar to the one she would have occupied had the contract referred to a smaller amount of goods, to goods of inferior quality, or to delivery at the (belated) time in which the goods were actually delivered. The Article makes three types of arguments. Analytically, it demonstrates that restoration of the contractual equivalence is a distinctive goal of contract remedies and explores the interrelations between this interest and the familiar ones. Descriptively, a survey of contract doctrines, judicial and legislative, demonstrates that various remedies for partial, defective or delayed performance are best understood as aiming at restoring the contractual equivalence; while attempts to explain them as aiming at any of the other interests are forced and unpersuasive. Normatively, the Article shows that protection of the restoration interest is justified by various theories of contract law, including the will theory, corrective and distributive justice, economic efficiency, and contract as cooperative relationship. Among other things, it is argued that restoration remedies realize the parties’ will and provide potentially stronger (and more efficient) incentives to perform, especially when there is a gap between the promisee’s subjective valuation of the promisor’s performance and its market value. Restoration remedies can sometimes be attained without recourse to the court system, and even when they require a lawsuit the cost of getting them is usually lower than that of other remedies – two important advantages from both distributive and efficiency perspectives. Protection of the restoration interest also promotes the notion of contract as cooperative relationship. The central policy proposal of the Article is to make restoration remedies more systematically and generally available to the injured party in instances of partial and defective performance, as well as for delays in performance.

In September 2003, United Nations Secretary General Kofi Annan launched another round of United Nations reform. By October 2005, commentators conclude the attempt accomplished little. But there were results and possibly more important results than simply adding more seats to the Security Council: the United Nations Charter principles regulating the use of force were saved from destruction. The vast majority of UN members endorsed a return to orthodoxy. They renewed their commitment to banning the use of force except in self-defense to an armed attack or with the authorization of the Security Council. The reform process also highlighted the need for the Council to respect international legal principles when it authorizes force. These results may mitigate damage to the international legal system caused by the 1999 Kosovo intervention and the 2003 Iraq invasion.

This Article considers aggregation in criminal law. Procedural aggregation, such as joinder or consolidation, occurs only in limited circumstances during criminal trials due to fundamental constitutional rights to an individual day in court. By way of contrast, in civil cases, courts permit a range of aggregate litigation, including in class actions. Nevertheless, the boundaries between civil and criminal law approaches to aggregation are more permeable than conventionally understood. Courts now aggregate criminal cases, and they do so without violating constitutional rights, by joining cases only before trial and during appeals. I present five case studies examining novel aggregative procedures that courts employed to remedy systemic criminal procedure violations such as the lack of proportionality in death sentencing, wrongful convictions, forensic fraud and inadequate indigent representation. Second, I frame due process safeguards to structure future aggregation in criminal law. Finally, I develop a possible second wave of institutional reform that could flow from intermediate models that do not aggregate but accomplish similar goals, using innocence commissions, prosecutorial case review, special masters, and two-tier models of judicial review. I conclude that aggregation can potentially transform criminal adjudication, leading to a more efficient, accurate, and fair criminal justice system.

Georgia State Law: Lawrence Solum, The Supreme Court in Bondage: Constitutional Stare Decisis
Georgia State Philosophy: Lawrence Solum, Virtue Jurisprudence: An Aretaic Theory of Law
UCLA Legal History: « Back Legal History Workshop: Clifford Ando, USC Law School, "Citizen and Alien in Roman Law"
Northwestern Constitutional Theory: Einer Elhauge, Carroll and Milton Petrie Professor of Law, Harvard University, "Statutory Default Rules," Chapters 11, 12, and 14
Marquette Law: Jason Czarnezki, Marquette University Law School and Sara Benesh, University of Wisconsin-Milwaukee, Ideology or Interpretative Philosophy: Testing the Legal and Attitudinal Models of the Seventh Circuit
Topic: Ideology or Interpretative Philosophy: Testing the Legal and Attitudinal Models of the Seventh Circuit Georgetown Law: Ethan Yale
Georgetown Colloquium on Constitutional Law & Theory: Oren Gross (law, Minnesota)

Congress recently enacted a statute requiring that every educational institutional that receives federal funding must hold a program about the Constitution in conjunction with Constitution Day. This very short comment, which arises from the author’s effort to provide entertainment during his school’s first Constitutional Day program, analyzes the legality of the statute under both the Constitution and constitutional law.

The focus of this study is on implementation of rights enshrined in the International Covenant on Social, Economic and Cultural Rights that seek to protect interests relating to work, social security, and health. Domestic implementation of the ICESCR in Canada occurs on two planes. On the first, political plane, the legislative and executive branches of government exercise constitutional authority to establish and administer social policy programs that protect interests typically associated with international social rights. On the second, juridical plane, domestic implementation occurs through judicial interpretation. Despite their appellations, each plane contains elements of the other. In exercising legislative and administrative authority, political actors are responsible for interpreting and applying judicially formulated legal principles and rules. On the juridical plane, constitutional and legislative provisions require substantive normative content to acquire adjudicative significance in specific disputes. Text and precedent underdetermine legal outcomes, producing a politics of judicial interpretation surrounding the distribution of legislative authority, the scope of constitutional rights, and the reach of statutory protection. Judicial choices in each of these contexts frame the location and terms of democratic contestation over the appropriate relationship between market and state. These choices both shape and are shaped by developments on the political plane in ways that minimize the domestic significance of Canada’s international legal obligations.

SECRECY AND NATIONAL-SECURITY INVESTIGATIONS analyzes, and recommends improvements to, the secrecy requirements that apply when the Executive Branch conducts counterterrorism and espionage investigations. It begins by surveying the interests implicated by government secrecy, including the Executive Branch’s need to mount effective national-security investigations; the respective interests of investigative targets and third-party witnesses in privacy and free speech; and the interests of the public and Congress in overseeing the Executive and participating in democratic deliberations. The article also formulates a taxonomy of secrecy rules; it identifies five issues that must be addressed when building a secrecy regime from the ground up - e.g., should secrecy be imposed automatically or only upon a special showing by the government? How long should secrecy persist? - and arranges the possible policy choices on a set of intersecting axes. After describing the operation of the existing secrecy system, the article proposes four reforms that would ensure a tighter fit between the requirements of secrecy law and the underlying values they implicate. First, current law only forbids third parties from revealing that the government is conducting an investigation; a mechanism should exist to restrict, in exceptional cases, disclosure of the underlying data the government seeks to collect. Second, the relatively weak secrecy rules associated with certain real-time surveillance techniques (such as wiretapping) should be strengthened, to reflect the danger that a target’s awareness of real-time monitoring will prevent the information sought from being created at all. Third, the current system generally imposes secrecy automatically; these requirements should be replaced with rules under which the government must demonstrate the need for secrecy on a case-by-case basis. And fourth, the perpetual secrecy rules that characterize the existing regime should be amended to permit the elimination of secrecy when no longer justified.

Most of the time, in measuring the breadth of judicial power under modern personal jurisdictional doctrine all that is required is to take into account the direct acts (or omissions) of a defendant in relation to the forum. That is, we frequently need look no further than to see whether the defendant’s own conduct makes her amenable to suit. The courts have recognized, however, that jurisdiction may also be triggered not by the defendant’s direct contacts with the forum but also by the contacts or forum nexus of another. Of course, to make this jurisdictional leap a valid basis is needed for treating another person or entity’s jurisdictionally sufficient contacts as though they were the defendant’s. That is, there must be some substantive legal rule that permits the court to disregard a juridical entity’s otherwise separate legal existence. As it turns out, the attribution of contacts of one person or entity to another for jurisdictional purposes is a frequently-seen and often invoked form of traditional jurisdictional argument. Yet, even if there may be valid reasons for turning to substantive law for jurisdictional purposes, its incorporation into the measure of adjudicatory jurisdiction can also be highly problematic. While there may be sound and necessary reasons for relying on agency law to identify a non-natural entity’s relevant forum contacts, agency law and other substantive law doctrines, such as respondent superior, civil and criminal conspiracy and, especially, the corporate law doctrine of veil piercing, may also be misused in a manner that produces jurisdictional determinations that are neither sound nor necessary. Veil piercing and agency law are the most frequently invoked areas of substantive law to justify the exercise of vicarious jurisdiction; as a result, this article concentrates on the intersection of these two doctrines of substantive law with the law of judicial jurisdiction. The use of veil piercing law for jurisdictional purposes occurs frequently in our modern case law, yet its origins may be traced to a convergence of paths that occurred more than three quarters of a century ago in Cannon Mfg. Co. v. Cudahy Packing Co., 267 U.S. 333 (1925). And, although much has changed since 1925 the questions that bedeviled the Court then remain just as relevant and perplexing to us now. How should the substantive law treat persons who act through the corporate form? To what extent does limited liability shield owners from suit? Even before reaching these substantive questions, there was and still is the a priori matter of determining the breadth of state court territorial authority to bind corporations and corporate actors not present in the forum. To be sure, the modalities of the doctrinal debates regarding both corporate and jurisdictional law have shifted and evolved over the last seventy-five years; but the issues that were joined in the Cannon case at the end of the first quarter of the twentieth century remain challenging at the start of the next. The conventional academic view has not challenged the use of veil piercing or other substantive law doctrines for jurisdictional purposes. In this article, the author argues that the use of substantive law (and veil piercing in particular) for jurisdictional purposes is unwarranted as a matter of precedent and unwise as a matter of policy. The author revisits the Cannon case based on original historical research. The author also argues that, even if we leave the proper interpretation of Cannon to one side, there are doctrinal and pragmatic arguments to be made against the misuse of substantive law for jurisdictional purposes.

Royal Institute of Philosophy Workshop Justice in Healthcare Conference Centre, Lancaster University Saturday 20th May 2006, 1.00pm - 5.30pm This workshop is open to all, but places are limited and there is a charge to cover costs. To reserve a place please send a cheque for £5 (waged) or £2.50 (unwaged), payable to Lancaster University, to: Rachel Cooper, IPPP, Furness College, Lancaster University, Lancaster, LA1 4YG. (Please include an address or e-mail so I can send you more details of the workshop nearer the time) Speakers and Talks: 1-2pm Dr. Véronique Munoz-Dardé (University College, London) When Numbers Count 2-3pm Prof. David Archard (Lancaster) Justice and Assisted Reproduction 3-3.30pm coffee 3.30-4.30pm Dr. Angus Dawson (Keele) Justice for Children: Access to routine vaccination in the UK and beyond 4.30-5.30pm Prof. John O'Neill (Lancaster) Equality, Community and Contract: Gift and commerce in medicine

The Founding Fathers and the Place of Religion in America Frank Lambert To read the entire book description or the introduction, please visit: http://pup.princeton.edu/titles/7500.html How did the United States, founded as colonies with explicitly religious aspirations, come to be the first modern state whose commitment to the separation of church and state was reflected in its constitution? Frank Lambert explains why this happened, offering in the process a synthesis of American history from the first British arrivals through Thomas Jefferson's controversial presidency. "A responsible, clearly written analysis of the currently disputed mindset of the Founding Fathers regarding the role of religion in American society. Numerous quotations from the personal and professional writings of the Founding Fathers themselves bring a refreshing vitality to Lambert's work while simultaneously dispelling the absolutized assumptions of contemporary conservatives and liberals alike."--Religion and Liberty Paper | $18.95 / £12.50 | ISBN: 0-691-12602-X Cloth | 2003 | $34.95 / £22.95 | ISBN: 0-691-08829-2

After Brown The Rise and Retreat of School Desegregation Charles T. Clotfelter To read the entire book description or the introduction, please visit: http://pup.princeton.edu/titles/7768.html The United States Supreme Court's 1954 landmark decision, Brown v. Board of Education, set into motion a process of desegregation that would eventually transform American public schools. This book provides a comprehensive and up-to-date assessment of how Brown's most visible effect--contact between students of different racial groups--has changed over the fifty years since the decision. Paper | $17.95 / £11.95 | ISBN: 0-691-12637-2 Cloth | 2004 | $26.95 / £17.50 | ISBN: 0-691-11911-2

University of Texas Law: Andy Morriss (Case Western), "Defining What to Regulate: Silica & the Problem of Regulatory Categorization" & "The Production, Consumption and Content of Legal Scholarship: A Longitudinal Analysis"
Ruth Wedgwood of Johns Hopkins University, International Law & Organization Program, "UN Reform and Competitive Multilateralism"
Fixing the UN_ The Virtues of Competitive Multilateralism.pdf Give the United Nations a Little Competition.pdf The Evident Virtues (and Vices) of the United Nations.pdf
UCLA Law: Prof. M.V. Lee Badgett, Williams Institute, UCLA School of Law, "Can Separate Be Equal Enough? Practical and Principled Alternatives to Marriage"
NYU Law: Oren Bar-Gill
University of Alabama Law: Mary Ann Case, University of Chicago
Yale Workplace Law & Theory: NICOLE RAEBURN, Sociology, University of San Francisco, Inside Out: The Struggle for Lesbian, Gay, and Bisexual Rights in the Workplace

Law, Religion and Social Change An International Conference Organised by the Law Program, Research School of Social Sciences, The Australian National University Canberra, 25-27 May 2006 National Museum of Australia This major conference is designed to encourage innovative exploration of relationships between law, religion and spirituality from diverse perspectives. Two broad themes will provide focal points for the conference: Religion and the architecture of law, including religion and constitutional design and religion as an aspect of legal pluralism; Religion and the regulation of life, death, sexuality, work and education. *Conference registration is now open* Keynote Speakers Other Speakers Conference Convenors Registration Form (PDF) - Registration deadline 12 May 2006 Conference Brochure (PDF) National Museum of Australia Draft Program (PDF) Early Career Researchers Day - 25 May 2006 To receive information and updates, subscribe to the conference mailing list. Contact the Conference Administrator, Sinead Clifford, at lawandreligion at anu dot edu dot au

In this article I argue that the current problem with punitive damages in the United States is not, as is popularly believed, that they are “out of control” and threatening the orderly function of the tort system. Punitive damages suffer from a different sort of crisis - courts now lack an adequate theory to explain to themselves, lawyers, and litigants the purpose of punitive damages. The argument contains the following steps. First, I illustrate that the dominant rationale in recent years for punitive damages has been efficient deterrence. Second, I argue that the current practice of punitive damages is ill-suited to the achievement of efficient deterrence, which explains why it has been so easy for critics of the tort system to characterize punitive damages as a failed branch of civil litigation. Third, I argue that the remaining significant non-deterrence theories of punitive damages (including the theory developed by the United States Supreme Court in a series of recent decisions) fail to provide an adequate theory of punitive damages. Fourth, I argue that the point of punitive damages can be understood as a form of private retribution, and I use the history of punitive damages in England and the United States as well as the work of the philosopher Jean Hampton to illustrate my point. Fifth, I argue that the theory of punitive damages as “private retribution”—which sounds odd to the modern ear - fits surprisingly well with modern theories of the tort system which view tort law as a system of civil recourse for citizens who have suffered wrongs in private law.

This Article attempts to map the challenges raised by recent encounters between intellectual property and development. It proposes a normative principle of global intellectual property - one that is responsive to development paradigms that have moved far beyond simple utilitarian measures of social welfare. Recent insights from the field of development economics suggest strongly that intellectual property should include a substantive equality principle, measuring its welfare-generating outcomes not only by economic growth but also by distributional effects. A new principle of substantive equality is a necessary corollary to the formal equality principle of national treatment that is now imposed on virtually all countries regardless of their level of development. Indeed this principle is arguably the very core of a human development-driven concept of “development,” a term that is highly indeterminate but lately used by many developing countries to express an equality concern within various global intellectual property regimes such as the WTO and WIPO. This proposed principle of substantive intellectual property equality would be analogous to strict scrutiny review in the judicial context of U.S. constitutional law. It would be foundational to any form of intellectual property decision making. Simply put, a decision maker would accord much less deference and exercise much more skepticism towards the proposed government action (in this case, the regulatory intervention by the state in the form of the grant of intellectual property protection, or the withholding of an exception or limitation to an intellectual property grant) when a knowledge good that affects basic human development capabilities, such as basic education or health care, is implicated. Certain foundational capacities, whether viewed as the sum of individual capabilities in knowledge or as national capacities in production of knowledge goods, should guide application and creation of intellectual property norms. This proposed substantive equality principle would match intellectual property’s innovation mandate to the actual local conditions and concerns of developing countries seeking to join the global knowledge economy.

Corporate governance scholarship is awash with theories of the firm: these are “stories” or metaphors that try to shed light on the nature and purpose of the firm as an institution and on one or more of the following questions: (i) how the institution of the firm “evolved” (or its economic or social purpose); (ii) whether “the firm” is a reality or a rhetorical device; and (iii) the relationship between “the firm” and stakeholders, political society and so on. Theories of the firm are used both to explain and to help develop law and policy. If the theory is misconceived, or pushed too far, then policy based on that theory can be destructive. This paper will argue that John Finnis’ natural law theory (John Finnis, Natural law and natural rights, (Oxford, 2003)) provides: (i) an understanding of the firm as a human community; and (ii) a framework that can be used to evaluate more specialised theories of the firm. No single theory of the firm can capture the full reality and, so, there is a need for a meta-theory capable of evaluating and sifting the more partial and specialised theories of the firm. The first part of this paper will explain John Finnis’ natural law theory and show how it can be applied to our understanding of the firm. The second part will critique Williamsons’ Transaction Cost Economics (“TCE”) and agency theory from the perspective of natural law theory. It will be argued that they are flawed because of failures to address the goods that drive human behaviour and to understand the nature of human communities (and relations within them). Agency theory can be a useful way of thinking about the relationship between passive investors and management but not as a generalised account of the firm. Several commentators believe that pushing agency theory and TCE too far has been both morally corrupting and economically inefficient.

Although the All Writs Act traces its lineage back to the Judiciary Act of 1789, the historical origins of the statute largely have remained in obscurity. One of the more modern and potent issues involving the All Writs Act concerned whether the statute may be used as an independent basis of original jurisdiction. For nearly two hundred years no court had ever relied on section 1651(a) to ground its jurisdiction over a case removed from state to federal court. But in 1988 a court first approved use of the All Writs Act as an independent basis for removal. Thereafter, the number of federal district and circuit courts grounding removal in the All Writs Act grew rapidly. Over the next decade or so, approximately thirty federal courts considered, and at least twenty approved, use of the All Writs Act as an independent basis for removal, principally on the premise that resort to the All Writs Act was necessary to protect or preserve a prior federal judgment. Finally, in Syngenta Crop Protection, Inc. v. Henson, 537 U.S. 28 (2003) the U.S. Supreme Court unanimously ruled that the All Writs Act does not afford an independent basis of jurisdiction to support removal of a state suit into federal court. In this article, written before (and subsequently cited by Justice Stephens in his concurrence in) Syngenta, the author undertakes a critical analytic and historical examination of the All Writs Act. Even after Syngenta, the author’s work examining the historical and doctrinal underpinnings of the All Writs Act remains relevant as one of the most common invocations of statute is to permit a district court to issue injunctive relief. Proper understanding of the scope and limits of section 1651a thus remains a vital part of any treatment of the boundaries of the federal judicial injunctive power.

Monday, April 3
University of Texas Law: Andy Morriss (Case Western), "Defining What to Regulate: Silica & the Problem of Regulatory Categorization" & "The Production, Consumption and Content of Legal Scholarship: A Longitudinal Analysis"
Ruth Wedgwood of Johns Hopkins University, International Law & Organization Program, "UN Reform and Competitive Multilateralism"
Fixing the UN_ The Virtues of Competitive Multilateralism.pdf Give the United Nations a Little Competition.pdf The Evident Virtues (and Vices) of the United Nations.pdf
UCLA Law: Prof. M.V. Lee Badgett, Williams Institute, UCLA School of Law, "Can Separate Be Equal Enough? Practical and Principled Alternatives to Marriage"
NYU Law: Oren Bar-Gill
University of Alabama Law: Mary Ann Case, University of Chicago
Yale Workplace Law & Theory: NICOLE RAEBURN, Sociology, University of San Francisco, Inside Out: The Struggle for Lesbian, Gay, and Bisexual Rights in the Workplace

Tuesday, April 4
Georgia State Law: Lawrence Solum, The Supreme Court in Bondage: Constitutional Stare Decisis
Georgia State Philosophy: Lawrence Solum, Virtue Jurisprudence: An Aretaic Theory of Law
UCLA Legal History: « Back Legal History Workshop: Clifford Ando, USC Law School, "Citizen and Alien in Roman Law"
Northwestern Constitutional Theory: Einer Elhauge, Carroll and Milton Petrie Professor of Law, Harvard University, "Statutory Default Rules," Chapters 11, 12, and 14
Marquette Law: Jason Czarnezki, Marquette University Law School and Sara Benesh, University of Wisconsin-Milwaukee, Ideology or Interpretative Philosophy: Testing the Legal and Attitudinal Models of the Seventh Circuit
Topic: Ideology or Interpretative Philosophy: Testing the Legal and Attitudinal Models of the Seventh Circuit Georgetown Law: Ethan Yale
Georgetown Colloquium on Constitutional Law & Theory: Oren Gross (law, Minnesota)

Wednesday, April 5
Loyola, Los Angeles: Kurt Lash, Professor of Law, Loyola Law School, Minority Report: John Marshall and the Defense of the Alien and Sedition Acts This is an impressive paper!
NYU Legal History: Chaim Saiman, Golieb Fellow, NYU School of Law, “Legal Realism as American Exceptionalism”. Here's a snippet from this fascinating paper:
Realist policy science has replaced the traditional modes of legal scholarship based on the organization, classification and clarification of legal doctrine. Even mentioning the word doctrine sounds retrograde, and any would-be proponent is branded with the curse of formalism. When it does exists, doctrinal analysis is shunted off to the middling treatise writers in the less-than-famous law schools and practitioners journals—places where no serous academic dare publish his thoughts. Elite scholarship invariably pushes outwards, articulating and criticizing or re-imagining the forces responsible for the production of legal doctrine. A variety of perspectives are fair game so long as they do not involve tinkering within the narrow details of the law’s technical rules.
University of Toronto Tax Law & Policy: Tsilly Dagan, Bar Ilan University, Ordinary People, Necessary Choices
Villanova Law: Lisa Lehman, Catholic University, Columbus School of Law

Thursday, April 6
Michigan State University: John C.P. Goldberg (Vanderbilt University) "The Constitutional Status of Tort Law: Due Process and the Right to a Law for the Redress of Wrongs."
Notre Dame Law, Natural Law Lecture: Lawrence Solum, Natural Justice
UC Berkeley, Kadish Center: Julie Tannenbaum, Assistant Professor of Philosophy University of California, Santa Cruz, THE "SHOULD" OF FULL PRACTICAL REASON
Brooklyn Law School: Michael Perry, Emory University School of Law, The Constitutionality of Capital Punishment: Originalism, Yes; Scalia, No
Boston University Law: Wendy Mariner
Florida State Law: Darryl Brown, Washington & Lee, Rethinking Overcriminalization
Fordham Law: Devon Carbado, Professor of Law, UCLA School of Law, "Racial Naturalization"
George Mason Law: Christine Kymn, GMU School of Law Levy Fellow; Title: Strategic Signaling in Supreme Court Nominations (with Ross Davies)
NYU Colloquim on Tax Policy & Public Finance: Ed McCaffery, USC Law School, “Shakedown at Gucci Gulch: A Tale of Death, Money, and Taxes”
UCLA Legal Theory Workshop: Liam Murphy, Professor of Law and Professor of Philosophy, New York University School of Law
University of Michigan Law & Economics: Scott Baker, North Carolina, Incomplete Contracts in a Complete Contracts World
University of Texas Law: Mike Tigar (American University), "Universal Rights & Wrongs: Roper vs. Simmons"
Yale Legal Theory Workshop: Elizabeth Harman, New York University (Philosophy), The Mistake in "I'll Be Glad I Did It" Reasoning: Why Curing Deafness isn't Wrong, and Aborting You or Me Wouldn't Have Been Either

Friday, April 7
University of Arizona James E. Rogers College of Law: Professor Oliver Houck, Tulane Law School, “Can We Save New Orleans?”
Duke Law School: Animal Law Conference:
Panel discussion: 10:00am – 11:30am, room 3037 “Big Business and Animal Rights” Panel discussion: 11:45am – 1:00pm, room 3037 “Animal Agriculture and the Law” Keynote Speaker, Professor Gary Francione: 1:00pm – 2:30pm, Burdman Lounge (3rd floor) “Animal Rights: The Last Ten Years” Panel discussion: 3:00pm, room 3037 “Promotion of Animal Welfare: Legislation, Mediation, and More”
Georgetown Law & Economics: Edward Morrison, Columbia Law School
Notre Dame Law: Jacqueline Lipton, Associate Director, Frederick K. Cox International Law Center, Case Western Reserve University School of Law
Location: Quinnipiac-Yale Dispute Resolution Workshop: Catherine A. Rogers, Louisiana State University, "Regulating International Arbitrators: A Consent-Based Approach to Enforcement of Misconduct-Tainted Awards"
UCLA Media, Entertainment, and Culture Workshop:
9:30 a.m. - 10:45 a.m.
Eli M. Noam Professor of Finance and Economics Director, Columbia University Institute for Tele-Information Columbia University Business School "Media Scholars as Activists: Media De-Concentration as Social Reform?"
11:00 a.m. - 12:15 p.m.
Christopher Yoo Professor of Law Vanderbilt University Law School "Network Neutrality and the Economics of Congestion"
12:30 p.m. - 2:00 p.m.
Randal C. Picker Paul H. and Theo Leffmann Professor of Commercial Law Senior Fellow, The Computation Institute of the University of Chicago and Argonne National Laboratory University of Chicago Law School "Mistrust-Based Digital Rights Management"
2:30 p.m. - 3:45 p.m.
Roger Noll Professor of Economics Stanford University "Napster's Copyright Abuse Defense and the Future of Digital Entertainment Downloads"
University of Alabama Law: Miriam Cherry, Samford University, Cumberland School of Law
University of Georgia Law: John Langbein (Yale), Trust Law as Regulatory Law
University of Georgia International Law Colloquium: Diane Orentlicher (American University): "Whose Justice? Reconciling Universal Jurisdiction with Democratic Principles"
University of Texas Law: Anthony Sebok, Brooklyn Law School, "Punitive Damages: From Myth to Theory"
Villanova Law: Benjamin Barton, University of Tennessee College of Law
William Mitchell Law: Michael Hurley, Counterterrorism Office, U. S. State Department>
UCLA School of Law, Analytic Legal Philosophy Conference Schedule:
9:00am - 9:30am: BREAKFAST 9:30am - 11:15am: SESSION 1 Roger Shiner Professor of Philosophy Emeritus University of Alberta "What is a Crime: A Theory of the Legislative Response" 12:00pm - 1:15pm: LUNCH 1:30pm - 3:15pm: SESSION 2 Gideon Yaffe Associate Professor of Philosophy University of Southern California "Trying, Acting and Attempted Crimes" 4:00pm - 5:45pm: SESSION 3 Seana Shiffrin Associate Professor of Philosophy and Professor of Law UCLA School of Law "The Divergence of Promise and Contract" 6:30pm: Drinks/Cocktails at Kerkhoff Hall 7:00pm - 9:00pm: Dinner at Kerkhoff Hall
Saturday, April 8
UCLA School of Law, Analytic Legal Philosophy Conference Schedule:
8:00am - 8:30am: BREAKFAST 8:45am - 10:30am: SESSION 1 Paul Boghossian Professor of Philosophy New York University "What is Relativism" 11:00am - 12:45pm: SESSION 2 Matthew Smith Assistant Professor of Philosophy Yale University "The Greatest Unity Alongside the Greatest Extension: How Legal Institutions Are Social Practices"

Introduction Our topic this week is “holism,” more particularly the idea that theories of the law are (or “should be” or “can be”) holistic. Legal holism can be captured in a famous slogan, “The law is a seamless web,” and the contemporary legal theorist who is most associated with legal holism is Ronald Dworkin.
As always, the Legal Theory Lexicon is aimed at law students (especially first year law students) with an interest in legal theory.
And before we get on with it, a brief digression on the origins of the phrase. The idea of the law as a seamless web seems to be derived from a related idea--that thistory is a seamless web--found in the writiings of Frederic Maitland: "Such is the unity of all history that any one who endeavours to tell a piece of it must feel that his first sentence tears a seamless web." Frederic William Maitland, A Prologue to a History of English Law, 14 L.QUARTERLY REV. 13 (1898).
The Law is a Seamless Web The idea that the law is a seamless web is familiar to almost every law student, but what on earth does this phrase mean? I think the best initial approach to this idea is to place it in the context of a common-law system. Suppose we have an unsettled question of law (e.g. a question about proximate causation in tort law). The question is unsettled in our jurisdiction, so there is no binding precedent—no prior decision of a higher court addresses the issue. But the lack of binding precedent does not imply that precedent is irrelevant to our question. The judge deciding our case with a tricky proximate cause question will want to look at the cases that deal with analogous issue. Her search for relevant case law might begin with cases on causation in tort law, but from there, it could lead to other issues and distinct doctrinal fields. For example, causation in tort is analogous to causation in criminal law. So our judge might base her reasoning in part on the way an analogous question was decided in the criminal context. And causation also arises in a variety of other legal contexts, leading our judge to move from fields that are closely related to torts, to more distant topics, including environmental law, administrative law, or even tax. Moreover, questions of proximate causation are only partly about causation, they also involve judgments about responsibility and reasonableness of conduct. In a common law system, the law is a seamless web in the sense that common-law ideas connect with one another in complex relationships of consistency and mutual support. A tremor in one region of the web of the law can in principle resonate in other region.
Coherence and Holism The idea that holism involves wide and deep relationships of consistency and mutual support can be captured by introducing a related notion coherence. We might say that legal holists believe that a principle of coherence applies to the law as a whole. Each proposition of law ought to be consistent with every other proposition. Coherence can require more than mere consistency, however. A system of law achieves coherence at a deeper level if the normative justifications for legal propositions are consistent and mutually supporting.
Cohererence can be local or global. The theory that the law is a seamless web can be rephrased as “the law is globally coherent,” and we might call that view “global legal holism.”
Herculean Holism Ronald Dworkin’s theory, “law as integrity,” takes the idea that the law is seamless web to its logical conclusion. Dworkin illustrated his theory with an imaginary judge, Hercules. Because Hercules acts on the basis of the premise that the law is a seamless web, Hercules is required to construct the theory that best fits and justifies the law as a whole in order to decide any particular case. Given the holistic assumption that a change anywhere in the law can produce consequences everywhere, Hercules must constantly revise his theory—checking to assure himself that a recent change in the law of trusts does not have consequences for the best interpretation of the reasonable person standard in torts.
Of course, actual judges are not like Hercules in this regard. No actual judge could possible construct a theory of the whole law of her jurisdiction. Actual judges must make do with theories that are local rather than global in nature. This is not to say that no actual judge has a tacit (or even partially explicit) view about the way the law hangs together as whole. Indeed, some real world judges have views that account for many different regions of the law. The most intellectual judges (Richard Posner, for example) have comprehensive legal theories that provide consistent explanations across many different doctrinal fields. But even these Herculean judges cannot actually produce a theory that fits and justifies all of the law—that would take longer than a human lifespan permits and most of the work would be terribly dull.
Holism versus Particularism So far, I’ve been presenting a fairly sympathetic view of legal holism. But holism is a controversial view in the law. One might believe that holism is domain specific. That is, it might be the case that all of tort law hangs together, but that tort law is a more or less closed system. It could be the case that criminal law operates on a different set of principles than those that operate in tort, and hence that conclusions reached in criminal law are different from those reached in tort law on analogous questions. Of course, the domain of coherence could be a higher or lower level of generality than doctrinal field. Perhaps, perhaps all of private law is coherent, but public law operates on different principles. Alternatively, perhaps the common law and statutory law form two different fields—each coherent within its own realm but not consistent with each other. Moving to the other end of the spectrum, it might be that the law governing the tort of negligence is coherent, but that negligence and battery operate on entirely different principles.
At the opposite end of the spectrum from global legal holism (“The law is a seamless web.”) there is at least logical space for a local legal particularism (“Take each case on its own merits.”).
Is Holism Normative, Descriptive, or Interpretive? Before we come to a close, let’s address one final question: what kind of theory is legal holism? You may have notice that I’ve been deliberately ambiguous in my phrasing of holist claims using locutions like “is or ought to be.” One view of global legal holism is that it is a normative claim: the law ought to form a seamless web. Why? Well, that’s a big question, but one cluster of reasons for preferring consistency in the law centers around the rule of law values of predictability, certainty, and publicity.
Another view of global legal holism is that it is a descriptive theory. As a matter of fact, judges (in common law systems) strive for consistency. The phrase—the law is a seamless web—is couched as a descriptive claim. Of course, this will be a special sort of descriptive claim, because no one thinks that the law actually is fully consistent at the global level.
Yet another view of global legal holism is that it an interpretive theory. On this view, legal holism bears a relationship to the idea of the hermeneutic circle. The meaning of any given legal rule must be interpreted in light of the whole set of rules, and the meaning of the whole set depends on the meaning of the particular members. On this view, holism is quasi-descriptive and quasi-normative: legal interpretation both is imperfectly holistic and legal interpretation aims at global consistency.
Conclusion The distinction between holism and particularism is quite useful. Once you begin to look, you will quickly find that many legal arguments depend on implicit assumptions about the presence or desirability of coherence in the law. In particular, it often edifying to look for how some legal arguments turn on assumptions about whether coherence should be global or local.

Law clerks have been a permanent fixture in the halls of the United States Supreme Court from its founding, but the relationship between clerks and their justices has generally been cloaked in secrecy. While the role of the justice is both public and formal, particularly in terms of the decisions a justice makes and the power that he or she can wield in the American political system, the clerk has historically operated behind closed doors. Do clerks make actual decisions that they impart to justices, or are they only research assistants that carry out the instructions of the decision makers—the justices? Based on Supreme Court archives, the personal papers of justices and other figures at the Supreme Court, and interviews and written surveys with 150 former clerks, Sorcerers’ Apprentices is a rare behind-the-scenes look at the life of a law clerk, and how it has evolved since its nineteenth-century beginnings. Artemus Ward and David L. Weiden reveal that throughout history, clerks have not only written briefs, but made significant decisions about cases that are often unseen by those outside of justices' chambers. Should clerks have this power, they ask, and, equally important, what does this tell us about the relationship between the Supreme Court’s accountability to and relationship with the American public? Sorcerers’ Apprentices not only sheds light on the little-known role of the clerk but offers provocative suggestions for reforming the institution of the Supreme Court clerk. Anyone that has worked as a law clerk, is considering clerking, or is interested in learning about what happens in the chambers of Supreme Court justices will want to read this engaging and comprehensive examination of how the role of the law clerk has evolved over its long history.

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.