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

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Wednesday, May 31, 2006
 
Gillman at Empirical Legal Studies Blog Howard Gillman, about whom I cannot say enough good things, is guest blogging at Empirical Legal Studies blog. Check him out here, here, and here. Don't miss this.


 
Wednesday Calendar
    University College, London: Annual Antitrust & Regulation Forum on'European State Aid Reform'
      Chaired by Professor Mario Monti, President of Università Bocconi, Milan; former European Commissioner for Competition The European Commission’s position on State aid reform: Philip Lowe, Director General, DG Competition, European Commission The role of economic analysis in State aid policy and enforcement: Mathias Dewatripont, Professor of Economics, ECARES, Universitè Libre de Bruxelles; Centre for Economic Policy Research The role of private litigants and Member States in State aid enforcement: Frédéric Jenny, Cour de Cassation, Paris; Visiting Professor, University College London
    University of Arizona Law: Ellen Bublick, The Restatement (Third) of Economic Torts


 
Welcome to the blogosphere . . . . . . to The Fire of Genius (Academic commentary about patent law, i.p. law, creativity, and more) by Joseph Miller of Lewis & Clark Law School.


Tuesday, May 30, 2006
 
Hasen on Renewal of the Voting Rights Act Check out What Congress Should Consider Before Renewing the Voting Rights Act: A Chance to Preempt Supreme Court Invalidation, and Better Protect Minority Voting Rights by Rick Hasen on Findlaw. Here's a taste:
    [T]here is a very serious risk that the Roberts Court would strike down a renewed section 5 as unconstitutional. The Supreme Court, as part of its "New Federalism" jurisprudence, has recently been limiting the ability of Congress to pass civil rights laws. Beginning with the 1997 case of City of Boerne v. Flores, the Court has held that Congress must produce a strong evidentiary record of intentional state discrimination to justify laws that burden the states. In addition, whatever burden is placed on the states must be "congruent and proportional" to the extent of the violations. Under this standard, Congress could well have an evidentiary problem with a renewed section 5.


 
Welcome to the Blogosphere . . . . . . to Carrollogos by Michael Carroll of Villanova University School of Law (and the Board of Creative Commons.


 
Seminar on Benkler at Crooked Timber Check out The Wealth of Networks seminar over at Crooked Timber! Here's a snippet:
    Yochai Benkler’s The Wealth of Networks: How Social Production Transforms Markets and Freedom is a very exciting book. It captures an important set of developments – how new information technologies make it easier for individuals to collaborate in producing cultural content, knowledge, and other information goods. It draws links across apparently disparate subject areas to present a theory of how these technologies are reshaping opportunities for social action. Finally, it presents a highly attractive vision of what society might be like if we allow these technologies to flourish, as well as the political obstacles which may prevent these technologies from reaching their full potential. If you’re interested in debates on Creative Commons, on Wikipedia, on net neutrality, or any of a whole host of other issues, this is an essential starting point.
Contributers include Henry Farrell, Dan Hunter, John Quiggin, Eszter Hargittai, Jack Balkin, Siva Vaidhyanathan, and Yochai Benkler. Highly recommended!


 
Green on Rutledge & Executive Detention Craig Green (Temple University) has posted Wiley Rutledge, Executive Detention, and Judicial Conscience at War on SSRN. Here is the abstract:
    Wiley Rutledge is not well known in modern legal circles, but he should be. Rutledge was a truly exceptional judge, whose work compares in quality with Jackson 's, Frankfurter's, or Black's. Also, his life and career track the rich, understudied period in Supreme Court history between Lochner's death and Brown 's birth. More importantly, Rutledge's jurisprudence about executive detention holds vital lessons for decisions in the War on Terror. This Article divides executive detention jurisprudence into three phases: jurisdiction, uncharged detentions, and trials by military commission. At each step, I compare a case from Rutledge's era to one from our own. The Article's comparative analysis includes as highlights: (1) a clearer view of Rasul v. Bush's jurisdictional holding concerning Guantanamo Bay, (2) a novel, revisionist account of the Japanese-American cases, Hirabayashi and Korematsu, (3) praise for Justice Souter's opinion in Hamdi v. Rumsfeld, concerning indefinite detention of American citizens, and (4) two important arguments for the petitioner in Hamdan, a pending military commission case. The occasion for my attempt at a Rutledge Revival is John Ferren's superb biography, Salt of the Earth, Conscience of the Court. By way of brief conclusion, I sketch a theory of judicial biographies' role in the constructing cultural heroes and villains, and I suggest that certain tendencies within the genre risk distorting our intuitions and assumptions about judicial role and judicial business.


Monday, May 29, 2006
 
Monday Calendar>


 
Leiter on Toleration of Religion Brian Leiter (University of Texas at Austin - School of Law & Department of Philosophy) has posted Why Tolerate Religion? on SSRN. Here is the abstract:
    Religious toleration has long been the paradigm of the liberal ideal of toleration of group differences, as reflected in both the constitutions of the major Western democracies and in the theoretical literature explaining and justifying these practices. While the historical reasons for the special “pride of place” accorded religious toleration are familiar, what is surprising is that no one has been able to articulate a credible principled argument for tolerating religion qua religion: that is, an argument that would explain why, as a matter of moral or other principle, we ought to accord special legal and moral treatment to religious practices. There are, to be sure, principled arguments for why the state ought to tolerate a plethora of private choices, commitments, and practices of its citizenry, but none of these single out religion for anything like the special treatment it is accorded in, for example, American and Canadian constitutional law. So why tolerate religion? Not because of anything that has to do with it being religion as such - or so this paper argues.
A nice paper. I might add the following: From a Rawlsian perspective, religious beliefs from comprehensive (or partially comprehensive) conceptions of the good. Although contemporary pluralist societies characteristically have a plurality of religious and nonreligious comprehensive conceptions, this has not always been true. When the modern concept of toleration was formed, it is arguable that all (or almost all) of the comprehensive conceptions that competed for the allegiance of citizens were religious and hence that toleration of competing conceptions of the good was more or less equivalent to toleration of religion. Once that changed, then the relationship between religion and toleration also changed. Highly recommended.


 
Van Alstine on Executive Foreign Affairs Lawmaking Michael P. Van Alstine (University of Maryland - School of Law) has posted Executive Aggrandizement in Foreign Affairs Lawmaking (UCLA Law Review, Vol. 54, 2006) on SSRN. Here is the abstract:
    This article analyzes the power of the President to create federal law on the foundation of the executive’s status as the constitutional representative of the United States in foreign affairs. Executive branch advocates have claimed such a power throughout constitutional history. Recent events also have revived this constitutional controversy with particular vigor. In specific, President Bush recently issued a surprise “Determination” which asserted that the implied executive powers of Article II of the Constitution permit the President to enforce in domestic law the obligations owed to foreign states under international law. The article first sets the legal and factual context for the lawmaking powers of the President in foreign affairs. After a brief review of President’s constitutional powers in foreign affairs, it reviews the historical assertions of executive lawmaking authority over foreign affairs lawmaking. The initial part of the article then examines the recent revival of the controversy by the Bush Administration in its claim to a unilateral, discretionary power to define and enforce international law. The article then develops three core principles of executive lawmaking on the foundation of the formal foreign affairs obligations of the United States. Briefly, these three principles hold: (1) that the Constitution does not vest in the President a general lawmaking authority in foreign affairs, even to enforce formal rights or obligations owed to other states under international law; (2) that the President nonetheless may obtain such a power through an express or implied delegation from Congress, including through the vehicle of a treaty; and (3) that the Constitution itself delegates to the President certain powers in foreign affairs, but the domestic incidents of these powers are both few and limited, and must yield to congressional power in any event.


 
Kyriacou, Bacaria & Congleton on Menu Federalism Andreas P. Kyriacou , Jordi Bacaria and Roger Congleton (University of Girona - Department of Economics , Department d'Economia Aplicada and Center for Study of Public Choice) have posted A Theory of Menu Federalism: Decentralization by Political Agreement (Constitutional Political Economy, Vol. 14, pp. 167-190, 2003) on SSRN. Here is the abstract:
    This paper analyzes agreements between governments that determine the division of policy-making power between central and regional governments. Our analysis demonstrates that initial circumstances and political risks affect the degree of centralization that will be adopted, and that asymmetric forms of federalism are often consequences of ongoing negotiations between regional and central governments over the assignment of policy-making authority. We analyze three settings where gains from constitutional exchange may exist: (i) the under-centralized state, (ii) the over-centralized state, and (iii) the constitutional convention. In each case, an asymmetric form of federalism is the predicted outcome, although the degree of asymmetry differs according to starting point. Modern and historical examples are used to illustrate the relevance of our analysis.


 
Symeonides on Territoriality and Personality in Tort Conflicts Symeon C. Symeonides (Willamette University - College of Law) has posted Territoriality and Personality in Tort Conflicts (INTERCONTINENTAL COOPERATION THROUGH PRIVATE INTERNATIONAL LAW: ESSAYS IN MEMORY OF PETER NYGH, T. Einhorn, K. Siehr, eds., pp. 401-433, T.M.C. Asser Press, 2004) on SSRN. Here is the abstract:
    The history of conflicts law, at least in the area of torts, has been characterized by a constant antagonism between two grand operating principles - territoriality and personality of the laws. For the last eight centuries, territoriality has been the dominant principle in most countries, including the United States. This position appeared to be in serious jeopardy with the advent of the American choice-of-law “revolution” of the 1960s. Indeed, as a result of the revolution, 42 U.S. jurisdictions abandoned the traditional, territorially-based lex loci delicti rule in favor of applying the law of the state that has “personal” connections with the tortfeasor and the victim. Does this portend the demise of territoriality? This Article explores this question and delineates the current position of these two grand principles. The Article finds that, although the revolution caused a fundamental reorientation in choice-of-law analysis and methodology, it has had a much lesser impact in reducing the dominance of territorialist results. Specifically, territoriality has lost ground in only one category of tort conflicts - those in which both the tortfeasor and the victim are domiciled in the same state and the tort occurs in another state. In these cases, the courts have uniformly applied the law of the parties’ common domicile, but only if the conflict involved an issue of “loss distribution” rather than “conduct regulation.” In contrast, territoriality continues to reign supreme in conflicts between conduct-regulating rules. In these conflicts, the courts disregard the parties’ domiciles and apply the law of the state or states that have one or both of the territorial contacts - the place of conduct, and the place of injury. This leaves the middle ground of loss-distribution conflicts of the split-domicile pattern. This is the arena in which territoriality and personality continue to challenge each other. Although the courts that have abandoned the lex loci rule consider both the personal and the territorial contacts, the majority of courts end up applying the law of the state that has the territorial contacts (even if that state also has a personal contact), rather than the state that has only a personal contact. Thus, at least for now, territoriality continues to carry the day in these middle conflicts. If the revolution’s goal was to banish territoriality, the revolution has scored only a partial victory. However, the revolution’s goals were neither as deliberate nor as narrow. The chief goal was to free the choice-of-law process from the shackles of a mechanical rule that inexorably mandated the application of the law of a state that had a single contact - which happened to be territorial - regardless of any other contacts or factors, such as the content or policies of the conflicting laws, and regardless of the issue involved in the conflict. Judged in this light, the revolution has succeeded in demolishing not only this particular rule, but also the mind set that gave birth to it. Along the way, the revolution has brought about a new accommodation or equilibrium between territoriality and personality. This Article contends that this equilibrium can form the basis for the next step in the evolution of American conflicts law, which should lead to the formulation of new, issue-directed, content-sensitive, flexible and evolutionary choice-of-law rules based on the accumulated experience of American courts. It is hoped that, by cataloguing and analyzing the results of actual cases, this Article can make a small contribution in this direction.


Sunday, May 28, 2006
 
Legal Theory Calendar
    Monday, May 29 Tuesday, May 30
      Oxford Human Rights Discussion Group: Dr Alison L Young , Sections 3 and 4 HRA: A Constitutional or Institutional Analysis?
      Oxford EC Law Discussion Group: Ulf Bernitz, The Duty to Refer Cases to the ECJ under Art 234 EC
    Wednesday, May 31
      University College, London: Annual Antitrust & Regulation Forum on 'European State Aid Reform'
        Chaired by Professor Mario Monti, President of Università Bocconi, Milan; former European Commissioner for Competition The European Commission’s position on State aid reform: Philip Lowe, Director General, DG Competition, European Commission The role of economic analysis in State aid policy and enforcement: Mathias Dewatripont, Professor of Economics, ECARES, Universitè Libre de Bruxelles; Centre for Economic Policy Research The role of private litigants and Member States in State aid enforcement: Frédéric Jenny, Cour de Cassation, Paris; Visiting Professor, University College London
      University of Arizona Law: Ellen Bublick, The Restatement (Third) of Economic Torts
    Thursday, June 1
      Oxford Jurisprudence Discussion Group: William Edmundson, The Virtue of Law-Abidance I've read an earlier version of this in draft. Highly recommended!
      Oxford Law Faculty, Invited Seminars in Constitutional Theory 2006: Professor John Bell, 'Managing the Judiciary and Judicial Independence'
      Florida State University Law: Benjamin J. Priester, Florida State University College of Law


 
Legal Theory Lexicon: Metaethics
    Introduction Suppose that we are debating a question in normative legal theory--e.g., whether gay couples should have a constitutional right to marry or whether tort law should replace the negligence standard with strict liability. In debates about what the law ought to be, two kinds of questions can arise. There are first order questions, e.g. the conventional arguments of principle or policy for and against particular legal rules. These first order questions involve issues of political morality; that is, normative legal theory involves first-order questions of normative ethics. Sometimes, however, a different sort of issue arises. Second order questions might include the following: "What do statements about what the law should be mean?" or "Are the propositions of normative legal theory objective?" These second order questions of normative legal theory are a subclass of the more general class of second order questions of moral and ethical theory. This is the domain of metaethics.
    "Metaethics" may sound rather esoteric, but, in fact, metaethical argumentation is very common, both in ordinary life and in legal theory. Perhaps the most familiar example is the use of moral relativism (or similar positions) in normative argumentation. When one party in an argument asserts something like, "Homosexuality is morally wrong," the reply might be, "No, it isn't. You are mistaken," but another common (perhaps more common) reply is, "That's just a value judgment." The implication is that moral judgments are relative or subjective or just an expression of emotional reactions.
    Metaethics is a very big topic, and even a cursory introduction is the subject of a whole course or monograph, but some very basic ideas and terminology can be introduced in a blog post. As always, the Legal Theory Lexicon is aimed at law students (especially first year law students) with an interest in legal theory.
    Metaethical Questions Metaethics includes a variety of topics, and one good way to get a basic grasp on the field is to simply list some of the questions that are encompassed by (legal)metaethics:
    • What is the meaning of moral language? Do statements about what the law ought to be state facts or do they do something else?
    • Are there moral facts or moral properties? More particularly, are there normative legal facts? If so, then can they be reduced to nonmoral properties or are they somehow different from nonmoral properties?
    • Can we have knowledge (justified true beliefs) about what the law ought to be? If we can, how is such knowledge possible?
    • What is the motivational role of moral propositions? Assuming there are moral facts, does the fact that X ought to be the law in any way provide a motive for making X the law?
    • Are statements about what the law should be objective? If not, are they relative to the norms of some social group? Or subjective? Or meaningless?
    Let's explore one or two of these concepts.
    Cognitivism and Noncognitivism One of the most important debates in metaethics (from the point of view of normative legal theory) is the debate between cognitivism and noncognitivism. Very roughly, cognitivism is the position that moral statements (such as "There ought to be a constitutional right to privacy.") express beliefs that can be true or false. (Beliefs are "cognitive" states, hence the name "cognitivism.") Noncognitivism denies this and asserts that moral statements express noncognitive states, such as emotions or desires. Noncognitive states (emotions, desires) cannot be true or false.
    I think the best way to get a handle on this debate is to take a brief look at a very simple version of noncognitivism. A noncognitivist might assert that when some says that X is morally wrong, they are simply expressing an attitude of disapproval towards X. That is, "X is wrong" means "Boo X." When someone says "X is morally good," they are expressing an attitude of moral approval towards X. The Boo-Hooray theory is a crude version of emotivism--the theory that moral statements express emotions, associated with A.J. Ayer. As I'm sure you've already guessed, contemporary noncognitivists have theories that are more sophisticated than Ayer's; examples of such contemporary noncognitivist theories include Allan Gibbard's norm expressivism and Simon Blackburn's quasi realism.
    Cognitivsts assert that moral propositions express beliefs that have cognitive content and hence can be true or false (or at least correct or incorrect). The cognitivist landscape is complex. Some cognitivist theories hold that our moral beliefs track natural properties in the world; others cognitivist theories hold that our moral beliefs are about nonnatural properties: G.E. Moore had a theory like this. Still other cognitivists believe that moral statements can be true or false, but deny that they are about any states of affairs (natural or nonnatural).
    A simple example of a naturalist cognitivist theory might be the following: a utilitarian might believe that statements about the rightness or wrongness of actions are about natural states of the world, e.g. the natural properties of pleasure and pain: when I say, action X is right, I mean, X will produce the greatest balance of pleasure over pain as compared the alternative courses of action. In Legal Theory Lexicon 014: Fact and Value, we explored G.E. Moore's "open question" argument against naturalist forms of cognitivism.
    It goes without saying that debates over cognitivism and noncognitivism are much richer and complex than the simplified ideas that we've just explored, but the core idea--the distinction between cognitivism and noncognitivism--is accessible and hugely important.
    Moral Psychology Another important set of questions in metaethics concerns the relationship between moral judgments and motivation. Suppose one makes a moral judgment that X is morally obligatory. Does it follow that one is motivated to do X? Or can one believe that X is morally required with no motivation to do X? Lot's of folks find it very plausible to think that if one affirms "X is morally obligatory," then one has got to have a motive to do X. "Internalism" is the view that there is some internal or conceptual connection between moral judgments and motivation. "Externalism" is the view that the connection between moral judgment and motivation is external or contingent.
    For some forms of noncognitivism, the question whether there is an internal connection between moral judgment and motivation isn't much of a question. If moral statements simply express motivations (to take the easiest case), then it follows that the sentence X is morally obligatory would turn out just to mean, "I am motivated to do X." It will get more complicated for other forms of noncognitivism, but in general and vastly oversimplified terms, if morality is about desire or emotion and if desires or emotions motivate, then moral judgments are closely connected with motivations.
    But for cognitivists, things are not so easy. Let's take our utilitarian naturalist cognitivist as an example. I know that if I stop working on my blog and start working for Oxfam, I can produce better consequences. If internalism were true, this would give me a motive to stop working on the blog. Assuming that Hume was right and motives are desires plus beliefs, at the very least, I ought to feel some sort of tug (or other motivating state) pulling in the direction of working for Oxfam. But I don't, in fact, feel such a tug. One way to square these facts (assuming they were true) with cognitivism is to deny that there is an internal connection between moral judgments and motivations. Thus, I might think that some external sanction or internalized norm must be added to the moral judgment in order to produce motivating force.
    Conclusion Normative legal theory necessarily implicates metaethics. Most normative legal theorists explicitly or implicitly assert that their positions are true (or at least correct) and that inconsistent positions are false (or incorrect). That means that most normative legal theories rest on metaethical assumptions. That doesn't mean that you need to be an expert in metaethics to be a good normative legal theorist, but it sure helps to know the very general outlines of the terrain!
    Bibliography
    • Alexander Miller, An Introduction to Contemporary Metaethics (2003). This is a sophisticated introductory text that outlines classic and contemporary positions in metaethical debates.
    • A.J. Ayer, On the Analysis of Moral Judgments in Freedom and Morality and Other Essays (1984).
    • Simon Blackburn, Essays in Quasi-Realism (1993).
    • Allan Gibbard, Wise Choices, Apt Feelings (1990).
    • G.E. Moore, Principia Ethica (1903).


Saturday, May 27, 2006
 
Legal Theory Bookworm I've been thinking recently about "introductions" to normative theory--the kind of books you would recommend as a jumping off point for someone who is interested in acquiring a basic skill set in normative legal theory, but has never studied moral or political philosophy. I'm still not sure about my final list, but here are some preliminary thoughts:
  • Morality: An Introduction to Ethics by Bernard Williams.
      Williams was one of the best and most important moral philosophers of the twentieth century. This is not the book to read for a survey of utilitarianism, deontology, and virtue ethics, but it does offer an introduction to the deep issues of moral philosophy.
  • Philosophical Ethics by Stephen Darwall
      This book has two parts, the first introduces basic issues in metaethics and the second uses key historical figures (e.g. Kant, Mill, Hobbes, Aristotle) to introduce major positions in normative ethics (deontology, consequentialism, contractualism, virtue ethics). Darwall is a great moral philosopher, and this book reflects his very high standards.
  • A Companion to Ethics edited by Peter Singer
      This covers a lot of ground. There are essays about the history of ethics, about world ethical traditions, and about contemporary philosophical ethics. The standard is generally very high: for example, the essay on Kant's ethics is by the amazing Onora O'Neil.
  • Normative Ethics by Shelly Kagan
      Gerald Dworkin recommends Kagan's book, which focuses on foundational issues. Chapter titles include "The Good," "Doing Harm," "Teleological Foundations," and "Deontological Foundations."
Next week, I'll do a similar entry for political philosophy. Also, if anyone has a suggestion for this list (or for the list on political philosophy), I'm all ears (or "all eyes on the screen").


 
Download of the Week The Download of the Week is Behavioral Economics and Fundamental Tax Reform by Ed McCaffery. Here is the abstract:
    The most common use of the insights of behavioral economics in the cause of fundamental tax reform has been to argue for the employment of ad hoc tax-favored savings vehicles - such as individual retirement accounts (IRAs), medical, and educational savings accounts, and so on - within an income-tax framework. There is no reason under a "rational" life-cycle model of individual savings behavior why these ad hoc vehicles should work, to increase savings on the micro (individual) or macro (collective social) levels, whether they follow the "postpaid" approach of traditional IRAs or the "prepaid" approach of Roth IRAs. Prepaid accounts generate a windfall gain to existing savers, and offer no cash-flow relief for current non-savers to help them save. Postpaid accounts can be easily "arbitraged" by borrowing, or dissaving. Proponents of these plans thus point to lessons from behavioral economics, arguing that myopic individuals who use "mental accounts" might be led to save by the special vehicles. This essay takes exception to this standard view. It argues that this view of matters misconceives basic principles of behavioral economics, using ad hoc findings in an ad hoc fashion to justify ad hoc, incremental reform. Best understood, behavioral economics suggests that ad hoc tax favored plans will not work. This counter-theory is supported by the data, which show, broadly, decades of ad hoc tax-favored vehicles within the Internal Revenue Code, with more apparently on the way, matched by convincing evidence of little or no savings by most Americans, and little savings in the aggregate. The essay concludes by suggesting that a happier, more stable marriage of behavioral economics and fundamental tax reform suggests fundamental, not incremental, reform of the tax system.
McCaffery's tax work is always interesting! Highly recommended!


Friday, May 26, 2006
 
Perry on Charitable Contributions & an Ideal Estate Tax Miranda Perry (University of Colorado) has posted Charitable Contributions in an Ideal Estate Tax on SSRN. Here is the abstract:
    Charitable bequests have been fully deductible for federal estate tax purposes since 1918. The unlimited nature of the estate tax charitable deduction contrasts starkly with the income tax charitable deduction, which contains a complex maze of limits based on the donor’s income, the nature of the donee organization, and the asset donated. Although many scholars have explored the income tax charitable deduction, few have considered the normative question of whether the estate tax should have a charitable deduction, and if so, whether any limits should apply. This Article fills that void by exploring whether various conceptions of an “ideal” estate tax base should include a charitable deduction, and if so, what that deduction should look like. Most scholars agree that the primary goal of the estate tax is not solely to raise revenue but also to further one or more of the following social policies: (1) minimizing the accumulation of dynastic wealth, (2) enhancing equality of opportunity, (3) adding progressivity to the overall tax system, or (4) backstopping the income tax system. The ideal estate tax base differs depending on which of these goals the tax is intended to further. This Article examines each rationale in turn to determine whether charitable bequests should be included or excluded from a tax base designed to further that rationale. It concludes that although all four rationales justify some type of charitable deduction as a normative matter, only one (furthering progressivity) potentially justifies an unlimited deduction similar to the existing deduction. All other rationales for the tax suggest a more limited deduction.


 
Esty on Globalizing Administrative Law Daniel C. Esty (Yale Law School) has posted Good Governance at the Supranational Scale: Globalizing Administrative Law (Yale Law Journal, Vol. 115, pp. 1490-1562, 2006) on SSRN. Here is the abstract:
    This Article examines the tension between the demonstrable need for structured international cooperation in a world of interdependence and the political strain that arises whenever policymaking authority is lodged in global institutions. It argues that the tools of administrative law, which have been used to legitimate regulatory decisionmaking in the domestic context, should be deployed more systematically when policymaking is undertaken at the international level. While acknowledging the inevitable lack of democratic underpinnings for supranational governance, this Article highlights a series of other bases for legitimacy: expertise and the ability to promote social welfare; the order and stability provided by the rule of law; checks and balances; structured deliberation; and, most notably, the institutional design of the policymaking process as structured by principles and practices of administrative law. In developing the logic for procedural legitimacy as a foundation for good governance at the supranational scale, this Article advances a taxonomy of possible global administrative law tools. It then evaluates against this template of good governance procedures some existing decisionmaking procedures in the international trade, public health, and environmental policy regimes. The core conclusion is this: Even if supranational governance is limited and hampered by divergent traditions, cultures, and political preferences, developing a baseline set of administrative law tools and practices will strengthen whatever supranational policymaking is undertaken.


 
Smythe on Shareholder Democracy Donald J. Smythe (Washington and Lee University) has posted Shareholder Democracy and the Economic Purpose of the Corporation (Washington and Lee Law Review, Forthcoming) on SSRN. Here is the abstract:
    The common law rule of one-vote-per-shareholder was a prevalent feature of corporate governance at the start of the nineteenth century. Colleen Dunlavy attributes the persistence of the common law rule in early nineteenth century America to the social conception of the corporation as a body politic and egalitarian social norms. The social conception of the corporation was no doubt quite different at the start of the nineteenth century than it is today, but so were its economic purpose and function. At the start of the nineteenth century the corporation was commonly used to provide local public goods, such as turnpikes and bridges. In fact, the prevalence of the one-vote-per-shareholder rule in the early nineteenth century may have had more to do with the use of the corporation for what were essentially public purposes than with any social conception of the corporation as a body politic. As the nineteenth century proceeded and local and state governments increasingly began to provide these public goods themselves, the one-vote-per-share rule became predominant. Further research is warranted, but in the end, the transition from one-vote-per-shareholder to one-vote-per-share may prove to be interesting as much for what it reveals about the forces that drive important changes in corporate law and governance as for what it reveals about the social meaning of the corporation. The lesson may be that the social meaning of the corporation derives from its economic purpose and function.


 
Rossi on Restructuring Electric Utilities Jim Rossi (Florida State University College of Law) has posted Redeeming Judicial Review: The Hard Look Doctrine and Federal Regulatory Efforts to Restructure the Electric Utility Industry (Wisconsin Law Review, pp. 763-837, 2004) on SSRN. Here is the abstract:
    Recent policy-effect studies denounce judicial review for its adverse effects on agency decisionmaking. In its strong version, the policy-effect thesis suggests that judicial review has paralized innovative agency decisionmaking. Professor Rossi reacts to policy-effect studies, particularly as they have been used to attack the hard look doctrine in administrative law. He revisits Professor Richard Pierce's policy-effect description of the effects of judicial review of the Federal Energy Regulatory Commission (FERC). Professor Rossi's survey of recent FERC decisionmaking provides some support for an attenuated version of the policy-effect thesis, but leads him to reject the strong version of the thesis. Much of the policy-effect literature hastily condemns judicial review because it is costly, unpredictable, and counter-majoritarian. However, Professor Rossi defends judicial review against the policy-effect attack as a protector of deliberative democratic values. He suggests that reforms to agency adjudicative mechanisms could alleviate the problems identified by policy-effect critics, while also allowing judicial review an opportunity to acheive its benefits.


 
Glicksman on Environmental Federalism Robert L. Glicksman (University of Kansas - School of Law) has posted From Cooperative to Inoperative Federalism: The Perverse Mutation of Environmental Law and Policy (Wake Forest Law Review, 2006) on SSRN. Here's the abstract:
    Beginning in 1970, Congress adopted a series of statutes to protect public health and the environment that represented an experiment in cooperative federalism. The operative principle of cooperative federalism is that the federal government establishes a policy - such as protection of public health and the environment and sustainable natural resource use - and then enlists the aid of the states, through a combination of carrots and sticks, in pursuing that policy. The result is a system in which both levels of government work together to achieve a common goal. If the process works well, the synergism of related federal and state programs will yield more effective results than either level of government would have been capable of achieving by itself Although this model of environmental statutory cooperative federalism is nominally still in place today, it operates today in a manner that is distinctly different from the way Congress initially envisioned. Federal power to prevent environmental harm is in some respects more limited today than it has been for most of the modern environmental era. This contraction of federal power has resulted from a combination of judicial, legislative, and administrative activity. Many state and local governments have reacted by pursuing innovative initiatives to fill the resulting gaps in federal environmental law. Instead of welcoming this development, however, the federal government, acting again through all three branches, has restricted state and local authority to continue with these endeavors. Recent congressional efforts to delegate to the states the authority to grant exemptions from federal environmental requirements provide yet another component of the inversion of the manner in which federalism operates in the context of environmental law. This article discusses the transformation of environmental law from a set of rules and doctrines that used to enable federal and state governments to cooperate in the quest for environmental protection to a revised system that, at least in some respects, restrains both levels of government from the vigorous pursuit of that goal. The upshot of these developments is a federal system that hinders the capacity of all levels of government to pursue environmental protection initiatives, thereby constraining the force of environmental law by pushing it toward the lowest common denominator.


 
Hunt & Laszlo on Bribery Jennifer Hunt and Sonia Laszlo (McGill University - Department of Economics and McGill University - Department of Economics) have posted Bribery: Who Pays, Who Refuses, What Are The Payoffs? on SSRN. Here is the abstract:
    We provide a theoretical framework for understanding when an official angles for a bribe, when a client pays, and the payoffs to the client’s decision. We test this frame work using a new data set on bribery of Peruvian public officials by households. The theory predicts that bribery is more attractive to both parties when the client is richer, and we find empirically that both bribery incidence and value are increasing in household income. However, 65% of the relation between bribery incidence and income is explained by greater use of officials by high–income households, and by their use of more corrupt types of official. Compared to a client dealing with an honest official, a client who pays a bribe has a similar probability of concluding her business, while a client who refuses to bribe has a probability 16 percentage points lower. This indicates that service improvements in response to a bribe merely offset service reductions associated with angling for a bribe, and that clients refusing to bribe are punished. We use these and other results to argue that bribery is not a regressive tax.


 
Kaplan in Lisbon
    Petrus Hispanus Lectures 2006 Professor David Kaplan University of California at Los Angeles Lecture 1: RUSSELL’S EPISTEMOLOGY OF LANGUAGE & mine (I) 29 May 2006, 15:00, Faculdade de Letras de Lisboa, Room D. Pedro V Lecture 2: RUSSELL’S EPISTEMOLOGY OF LANGUAGE & mine (II) 30 May 2006, 15:00, Faculdade de Letras de Lisboa, Room D. Pedro V The Petrus Hispanus Lectures are delivered every other academic year at the University of Lisbon by a leading figure in current research about the nature of mind, cognition and language. Previous Petrus Hispanus Lecturers: Hilary Putnam (Harvard), 1998; Richard Jeffrey (Princeton), 2000; Ned Block (New York University), 2002; and Daniel Dennett (Tufts University), 2004. The Petrus Hipanus Lectures 2006 are part of the Project on Content (POCI/FIL/55562/2004), a research project carried out at the Philosophy Centre of the Universisty of Lisbon, funded by the Fundação para a Ciência e a Tecnologia, and coordinated by Adriana Silva Graça. Contact person: Professor Adriana Silva Graça, Departamento de Filosofia, Faculdade de Letras de Lisboa, Alameda da Universidade, 1600-214 Lisboa. Fax + 3517960063. E-mail: adrianasg@netcabo.pt
I was very fortunate to study Philosophy at UCLA in the late 70s and early 80s--then and now, David Kaplan was a giant.


Thursday, May 25, 2006
 
Garrett & Tetlow on Katrina & the Constitution Brandon L. Garrett (University of Virginia - School of Law) & Tania Tetlow (Tulane University - School of Law) have posted Criminal Justice Collapse: The Constitution after Hurricane Katrina on SSRN. Here is the abstract:
    The New Orleans criminal justice system collapsed after Hurricane Katrina, resulting in a constitutional crisis. Eight thousand people, mostly indigent and charged with misdemeanors such as public drunkenness or failure to pay traffic tickets, languished indefinitely in state prisons. For months the court system shut its doors, the police department fell into disarray, few prosecutors remained, and a handful of public defenders could not meet with, much less represent, the thousands detained. We present a narrative of the collapse of the New Orleans area criminal system after Hurricane Katrina, based in part on a series of interviews conducted with officials at all levels of the New Orleans criminal system. Not only did this perfect storm illuminate how unprepared our local criminal systems remain for a severe natural disaster or terrorist attack, but it raised unique and unexplored constitutional questions. We argue that the roles of constitutional criminal procedure and doctrines of federalism invert during such an emergency. Criminal procedure rules served less to constrain local criminal justice actors than to preserve normalcy, while deferential rules rooted in federalism had the unanticipated effect of hindering provision of critical federal emergency assistance. We conclude by imagining systems designed to safeguard the provision of local criminal justice during emergencies.
Very interesting paper!


 
Conference Announcement: Law & Technology at MIT
    The Fourth IASTED International Conference on Law and Technology ~LAWTECH 2006~ October 9-11, 2006 MIT Faculty Club, Cambridge, Massachusetts, USA Law and Technology 2006 (LawTech 2006), to be held at the Massachusetts Institute of Technology (MIT), will be an international forum for everyone from legal scholars and engineers to practicing lawyers and technical researchers. By bringing together a wealth of experience and knowledge from these two diverse worlds, LawTech 2006 will promote the dialogue between the fields of legal theory and technological innovation. All papers and extended abstracts submitted to this conference will be peer reviewed by at least two members of the International Program Committee. Acceptance will be based primarily on originality and contribution. Submission deadline: July 5, 2006


 
Lay and Skilling Check out blogging from Bainbrige, Hurt, and Ribstein on the convictions!


 
Conference Announcement: The Future of Democracy at William & Mary
    The Philosophy Department of The College of William and Mary in Virginia wishes to announce a conference on the Future of Democracy, to be held October 6-7, 2006. Conference on the Future of Democracy: The Future of Democracy: Human Development, Religion and Cultural Values SESSION ONE
      Friday, October 6, 10:00 am - 11:30 am "Church-State Separation, Scientific Education, and Methodological Naturalism" Speaker: Robert Audi Professor of Philosophy and David E. Gallo Professor of Business Ethics at The University of Notre Dame, whose publications include Religious Commitment and Secular Reason, Cambridge University Press, 2000. Commentator: Nicholas Walterstorff Noah Porter Professor of Philosophical Theology and Professor at Yale University and Member of the American Academy of Arts and Sciences, whose publications include John Locke and the Ethics of Belief, Cambridge University Press, 1996.
    SESSION TWO
      Friday, October 6, 1:45 pm - 3:15 pm "Religious Faith, Liberal Democracy, and Human Rights" Speaker: Michael Perry Robert W. Wooddruff Professor of Law at Emory University School of Law, whose publications include Under God?: Religious Faith and Liberal Democracy, Cambridge University Press, 2003.
    SESSION THREE
      Friday, October 6, 3:30 pm - 5:00 pm "How Security Drives Religious Values: Issues and Evidence" Speaker: Pippa Norris Director of the Democratic Governance Group at the United Nations Development Program and the McGuire Lecturer in Comparative Politics at the John F. Kennedy School of Government, Harvard University, whose many books include The Rising Tide and Sacred and Secular, both with Cambridge University Press. Commentator: Paul Davies Associate Professor of Philosophy at the College of William and Mary, author of The Norms of Nature, MIT Press, 2001.
    SESSION FOUR
      Saturday, October 7, 9:00 am - 10:30 am "Perfectionism and Democracy" Speaker: George Sher Herbert S. Autrey Professor of Philosophy at Rice University, whose publications include Beyond Neutrality: Perfectionism and Politics, Cambridge University Press, 1997. Commentator: Alan Goldman Kenan Professor of Philosophy at the College of William and Mary, whose publications include Practical Rules, Cambridge University Press, 2003.
    SESSION FIVE
      Saturday, October 7, 10:45 am - 12:15 pm "Reason in Politics" Speaker: John Kekes Research Professor at State University of New York at Albany, whose publications include, The Case for Conservatism, Cornell University Press, 2001. Commentator: Dennis Thompson Alfred North Whitehead Professor of Political Philosophy, Professor of Public Policy, and founding Director of the Edmond J. Safra Foundation Center for Ethics. His publications include (with Amy Guttman) Why Deliberative Democracy?, Princeton University Press, 2004.
    SESSION SIX
      Saturday, October 7, 3:00 pm - 4:30 pm "The Democratic Body Corporate" Speaker: Philip Pettit William Nelson Cromwell Professor of Politics at Princeton University, whose publications include Republicanism: A Theory of Freedom and Government, Clarendon Press, 1997. Commentator: William Galston Senior Brookings Fellow and Saul Stern Professor of Public Policy and Director, Institute for Philosophy and Public Policy, University of Maryland, whose many books include, Liberal Pluralism, Cambridge University Press, 2002.
    KEYNOTE
      Sandra Day O’Connor Former Justice of the U.S. Supreme Court and Chancellor of the College of William and Mary.


 
Thursday Calendar
    Oxford Jurisprudence Discussion Group: Martin Stone, Positivism as opposed to What: Law and the Moral Concept of Right University College, London, Current Legal Problems Lecture: Prof Jonathan B. Wiener (Perkins Professor of Law, Environmental Policy and Public Policy, Duke University), 'Better Regulation' Oxford Law Faculty, Invited Seminars in Constitutional Theory 2006: Professor John Finnis, 'Nationality and Alienage as constitutionally fundamental categories' University of Arizona Law: Jamie Ratner, What Should the Antitrust Rule Be for Horizontal Restraints? Florida State Law: Jim Rossi (FSU), Reasons and Vertical Judicial Deference in Antitrust Law


Wednesday, May 24, 2006
 
Leib & Ponet on Citizen Representation on the Jury Ethan J. Leib (University of California, Hastings College of the Law) & David L Ponet (Columbia University) have posted Citizen Representation and the American Jury on SSRN. Here is the abstract:
    Participatory and deliberative democrats are increasingly relying on groups of “lay” citizens to have a direct hand in policy formation and consultation. However, these theorists have not adequately addressed how these “citizen representatives” should be selected and how their activities can be truly deemed “representative”. We find these lacunae unsurprising in light of continued confusion in the representation literature about the relationship between democracy and representation - and the continued lack of effort to bridge normative theories of political representation with sensitivity to real institutional practices of representation. Accordingly, we look at a particular institutional manifestation of democratic representation - the American jury system -and tease out a theory of “citizen representation” that highlights six central desiderata: deliberation, impartiality, cross-sectionality, civic responsibility, legitimacy, and indirect accountability. An analogy that proves rich upon examination, we find that the jury’s implicit theory of citizen representation has much to recommend to proposals and practices of citizen representation in other institutional settings.


 
Most Cited Cases Check out What Is the Most Heavily-Cited Tax Case? over at TaxProf Blog, which actually discusses all of the most cited United States Supreme Court cases.


 
Conference Announcement: Colloquium on Labor and Employment Law at Marquette
    First Annual Colloquium on Current Scholarship in Labor & Employment Law The Colloquium offers an opportunity for labor and employment law scholars from around the country to present their works in progress or recent scholarship, to get feedback from their colleagues, and to have a chance to meet and interact with those who are also teaching and researching in the labor and employment law area. Although all participants are encouraged to present their scholarship, one need not present in order to attend. The colloquium will begin at 8 a.m. on Friday, October 27 and will conclude before dinner on the same day (a reception and dinner will follow). All meals and refreshments will be provided during the day. There will also be an informal get-together Thursday evening. Tentative Schedule: Time Detail 8:00-9:00: Registration & Continental Breakfast 9:00-10:30: Session 1 10:30-10:45: Break 10:45-12:15: Session 2 12:15-1:30: Lunch 1:30-3:00: Session 3 3:00-3:15: Break 3:15-4:45: Session 4 5:00-6:00: Reception 6:00-8:30: Dinner For more information, you can contact any of the conference organizers - Paul Secunda, Scott Moss, or Joe Slater - using the contact information listed below. Registration and paper deadlines: Register on-line by July 31, 2006. To register as a presenter, please also email or mail a title and abstract to Prof. Secunda. Full papers will be due by October 1, 2006. In arranging the presentation schedule, preference may be given to presenters who deliver full papers by this date. Additionally, if there are a large number of proposals for presentations, priority for presentations may be given to those who submit early.


 
New from Law & Politics Book Review
    AMERICAN JUVENILE JUSTICE, by Franklin E. Zimring. New York: Oxford University Press, 2005. 264pp. Paperback. $19.95. ISBN: 0195181174. Reviewed by Lucy S. McGough.
    COMMUNITY RESOURCES: INTELLECTUAL PROPERTY, INTERNATIONAL TRADE AND PROTECTION OF TRADITIONAL KNOWLEDGE, by Johanna Gibson. Burlington, VT: Ashgate Publishing Company, 2005. 396pp. Cloth. $114.95/£60.00. ISBN: 0-7546-4436-7. Reviewed by Robert G. Brookshire.
    REFORMING THE COURT: TERM LIMITS FOR SUPREME COURT JUSTICES, by Roger C. Cramton and Paul D. Carrington (eds). Durham, NC: Carolina Academic Press, 2006. 516pp. Paper. $45.00. ISBN: 1-59460-213-1. Reviewed by Chris W. Bonneau.
    MARRIAGE PROPOSALS: QUESTIONING A LEGAL STATUS, by Anita Bernstein (ed). New York: New York University Press, 2006. 255pp. Cloth. $40 ISBN: 0814799299. Reviewed by Elizabeth Ellen Gordon.


Tuesday, May 23, 2006
 
Bell and Parchomovsky on Public Use Abraham Bell and Gideon Parchomovsky (Bar Ilan University - Faculty of Law and University of Pennsylvania - School of Law) have posted The Uselessness of Public Use on SSRN. Here is the abstract:
    The Supreme Court decision of Kelo v. City of New London has been denounced by legal scholars from the entire political spectrum and given rise to numerous legislative proposals to reverse Kelo’s deferential interpretation of the Public Use Clause of the Fifth Amendment, and instead, limit the use of eminent domain when taken property is transferred to private hands. In this Essay we argue that the criticisms of Kelo are ill-conceived and misguided. They are based on a narrow analysis of eminent domain that fails to take into account the full panoply of government powers with respect to property. Given that the government can achieve any land use goals through the powers of regulation and taxation without paying compensation to the aggrieved property owner, eminent domain is the government power least pernicious to property owners as it is the only one that guarantees them compensation. An important and counter-intuitive implication of this insight is that the calls to restrict the government ability to use eminent domain by narrowly construing public use are going to harm, rather than help private property owners. The Essay then poses the intriguing question: why does the government ever choose to pay compensation? To answer this question we develop a model of political decisionmaking with respect to land use. Our model enables us to elucidate the political calculus that governs the compensation decision and to specify the conditions under which political decisionmakers will elect to pay compensation regardless of the policy instrument chosen.


 
Saban on Minority Rights in Deeply Divided Societies Ilan Saban (University of Haifa - Faculty of Law) has posted Minority Rights in Deeply Divided Societies: A Framework for Analysis and the Case of the Arab-Palestinian Minority in Israel on SSRN. Here is the abstract:
    The Article makes observations about contemporary ethnic relations in Israel. The main effort is to analyze a central element in the legal status of the Arab-Palestinian minority in Israel: its minority (or group-differentiated) rights. The article does so using a theoretical framework that may advance the comparative legal study of minorities elsewhere. It elaborates a theoretical framework for analysis which synthesizes categorization of different types of deeply-divided democratic states, different types of rights, and expectations as to the role of law in supporting, or eroding, the relevant inter-communal mode of ethnic relations. A main part of the article is an attempt to answer questions relating to the way in which the “Jewish and Democratic State” grapples with the existence of another national collective in its citizen body. 1. To what extent does Israeli law allow the Palestinian-Arab minority to strive for a change in the national identity of Israel and/or its present borders? i.e., does Israeli law permit the minority to strive toward the transformation of Israel/Palestine into a bi-national state, or that of Israel proper into a bi-national state? 2. What are the dimensions of the autonomy – power of self-rule – that are granted at present to the minority, in spheres of life that are essentially internal community matters, that is, educational, cultural, religious? 3. To what extent may individuals from among the minority group participate, as representatives of the minority, in decision-making institutions of the society as a whole? 4. Is this minority a partner to the symbolic order of the state? 5. Do members of the minority enjoy any other kind of protection of the unique aspects of their culture, from pressures on the part of the state or the Israeli economy and dominant culture? The attempt to answer these questions provides a picture of (a) the main minority rights /group-differentiated rights reserved to the Palestinian-Arab minority in Israeli law; (b) the rather wide scope that is still – in principle – open to improvement in the sphere of minority rights; (c) the range of the taboos in Israeli law with regard to a major change in group-differentiating rights allotted to the minority. These taboos are then critically reviewed.


 
Vermont on Independent Invention Samson Vermont (George Mason University School of Law) has posted Independent Invention as a Defense to Patent Infringement (Michigan Law Review, Forthcoming) on SSRN. Here is the abstract:
    Independent invention is no defense to patent infringement under current law. This paper argues independent invention should be a defense provided the independent inventor creates the invention before receiving actual or constructive notice that someone else already created it. The defense reduces wasteful duplication of effort and enhances dissemination of inventions without lowering the incentive to invent below the necessary minimum. To be sure, the defense lowers the incentive for inventions that face significant odds of being invented by more than one inventor. By enabling a second inventor to compete with a first inventor (the patentee), the defense essentially breaks up the first inventor’s monopoly into a duopoly. Monopoly profits exceed the collective profits of duopoly. Thus, from the perspective of inventors ex ante the defense reduces the expected profit for inventions that face significant odds of being invented by more than one inventor. Yet, as long as the reduction is moderate, the expected profit will usually remain sufficient. Per Bayes theorem, the fact that an invention faces significant odds of being invented by more than one inventor is itself evidence that a moderately reduced expected profit will still motivate at least one inventor to create the invention.


 
Forell on Provocation & Gender Equality Caroline Anne Forell (University of Oregon - School of Law) has posted Gender Equality, Social Values and Provocation Law in the United States, Canada and Australia (Journal of Gender, Social Policy and the Law, Vol. 14, 2006) on SSRN. Here is the abstract:
    This article examines and compares the partial defense of provocation as it applies to domestic homicide in the United States, Canada and Australia. It looks at both the male-gendered basis for provocation of jealous rage and the female-gendered basis of fear. The article explains why substantive equality, prevalent under Canadian constitutional law, has not resulted in woman-friendly provocation rules in Canada. It also explains why Australia, instead of the United States or Canada, is the leader in incorporating substantive equality into its provocation doctrine. It concludes that the main reason that some Australian jurisdictions have abolished provocation and others have woman-friendly versions of the doctrine is because, unlike Canada and the United States, some Australian states do not have mandatory minimum sentencing for either murder or manslaughter. It further concludes that current social norms have incorporated substantive equality into the application of provocation law in all three countries, and that therefore, there may not be as great a need to reform the law of provocation as there has been in the past.


Monday, May 22, 2006
 
International Political Theory: The IPT Beacon Check out the website the "International Political Theory Beacon." Here's a description:
    The IPT Beacon coordinates the expert judgement of thirty world-leading academics in the field of international political theory. Collectively assessing more than forty top journals each quarter, we bring you the pick of the current articles in the IPT Beacon.
The first issue can be found here. In the first issue, there is a "featured debate" (follow link to get the articles) that includes:
    The Problem of Global Justice, Philosophy and Public Affairs, 33.2 (2005), by Thomas Nagel
    Nagel’s Atlas, Philosophy and Public Affairs, 34.2 (2006) by A. J. Julius
    and Extra Rempublicam, Nulla Justicia, Philosophy & Public Affairs, 34.2 (2006) by Joshua Cohen and Charles Sabel
What a super cool idea!


 
McCaffery on Behavioral Economics & Tax Reform Ed McCaffery (University of Southern California) has posted Behavioral Economics and Fundamental Tax Reform on SSRN. Here is the abstract:
    The most common use of the insights of behavioral economics in the cause of fundamental tax reform has been to argue for the employment of ad hoc tax-favored savings vehicles - such as individual retirement accounts (IRAs), medical, and educational savings accounts, and so on - within an income-tax framework. There is no reason under a "rational" life-cycle model of individual savings behavior why these ad hoc vehicles should work, to increase savings on the micro (individual) or macro (collective social) levels, whether they follow the "postpaid" approach of traditional IRAs or the "prepaid" approach of Roth IRAs. Prepaid accounts generate a windfall gain to existing savers, and offer no cash-flow relief for current non-savers to help them save. Postpaid accounts can be easily "arbitraged" by borrowing, or dissaving. Proponents of these plans thus point to lessons from behavioral economics, arguing that myopic individuals who use "mental accounts" might be led to save by the special vehicles. This essay takes exception to this standard view. It argues that this view of matters misconceives basic principles of behavioral economics, using ad hoc findings in an ad hoc fashion to justify ad hoc, incremental reform. Best understood, behavioral economics suggests that ad hoc tax favored plans will not work. This counter-theory is supported by the data, which show, broadly, decades of ad hoc tax-favored vehicles within the Internal Revenue Code, with more apparently on the way, matched by convincing evidence of little or no savings by most Americans, and little savings in the aggregate. The essay concludes by suggesting that a happier, more stable marriage of behavioral economics and fundamental tax reform suggests fundamental, not incremental, reform of the tax system.
McCaffery's tax work is always interesting! Highly recommended!


Sunday, May 21, 2006
 
Legal Theory Calendar
    Thursday, May 25
      Oxford Jurisprudence Discussion Group: Martin Stone, Positivism as opposed to What: Law and the Moral Concept of Right University College, London, Current Legal Problems Lecture: Prof Jonathan B. Wiener (Perkins Professor of Law, Environmental Policy and Public Policy, Duke University), 'Better Regulation' Oxford Law Faculty, Invited Seminars in Constitutional Theory 2006: Professor John Finnis, 'Nationality and Alienage as constitutionally fundamental categories' University of Arizona Law: Jamie Ratner, What Should the Antitrust Rule Be for Horizontal Restraints? Florida State Law: Jim Rossi (FSU), Reasons and Vertical Judicial Deference in Antitrust Law


 
Legal Theory Lexicon: Functional Explanation in Legal Theory
    Introduction In a prior installment of the Legal Theory Lexicon, we explored the difference between Positive and Normative Legal Theories. Positive legal theory attempts to explain and predict legal behavior, especially the content of legal rules. Normative legal theory makes claims about what those rules should be. This week's post is about an important and familiar concept in positive legal theory--the idea of a functional explanation.
    Why do legal rules have the form and content that they do, in fact, have? One answer to this question is based on the idea that the function of a rule can be part of a causal explanation of the content of the rule. Why does corporations law limit the liability of stockholders? One kind of answer to that question might begin: "That rule is the way it is, because it serves the interest of the capitalist class." Or, "The rule is that way, because that is the efficient rule, and common law adjudication selects for efficient rules." In other words, the content of the rule is explained (causally) by the function the rule serves.
    The Idea of a Functionalist Explanation Functionalist explanations are familiar to almost everyone, because of the important role they play in evolutionary biology. When we try to explain why an organism has a particular trait--why male peacock's have their feathers or why the elephants have trunks--we appeal to the function that the trait serves. Male peacock's have colorful feathers because that trait serves to attract female peacock's and hence the genes produce this trait are favored by evolution. Elephants have trunks, because they enable elephants to eat and drink more efficiently.
    In biology, functionalist explanations are scientifically valid, because we understand the causal mechanism whereby function plays a causal role. That causal mechanism is evolution, of course, and we have a very good explanation for how evolution works in the form of genetics. DNA (plus a lot of other stuff) provides the precise causal mechanism by which evolution operates.
    Functionalist Explanation in the Social Sciences Functionalist explanations are not limited to biology. Sociologists frequently explain social behavior on the basis of the social function that the behavior serves. Why does this group do a "rain dance"? Because the rain dance ritual serves to create social cohesion in times of stress. There is, however, a significance difference between functionalist explanation in biology and functionalist explanation in the social sciences. In biology, functionalist explanations are underwritten by a well-confirmed theory of the causal mechanism by which evolution functions. In social science, the causal mechanisms are murkier. What causal law explains how the social cohesion function of rain dances leads to their perpetuation across generations? Without an answer to questions like this, we have at least prima facie reason to be suspicious of functionalist explanations in the social sciences. This suspicion is enhanced because functionalist explanations can easily become nonfalsifiabile. In the case of biology, because evolutionary theory is well confirmed, we more or less know in advance that some functionalist explanation has got to be right--the question is which functionalist explanation is correct. In the case of social science, there is no well-confirmed general theory of social evolution, so it isn't necessarily the case that there is always a true functionalist explanation for any given social behavior.
    Functionalist Explanations in Legal Theory And that brings us to law. Functionalist explanations are frequently invoked in positive legal theory. That is, when we ask the question, "Why does the law have such and such content?", the answer frequently is, "Because such and such a rule functions in thus and so way." Here are some examples:
      Marxist Explanations of Law--Marxist social theory relies heavily on functionalist explanation in general, and so it is not surprising that many Marxist explanations of law are functionalist in nature. "The law is such and such, because that rule serves the interest of the capitalist class." "Feudal law governing rights in land gave way to modern property law with free alienability, because that change was required by the transition from the feudal mode of production to the capitalist mode of production."
      Legal Evolution Functionalist explanations are also implicit in any claim that the law evolves (where "evolves" is meant in a technical sense and is not a mere synonym for "changes"). The idea that legal systems evolve is very common, but there is not general theory of legal evolution that has the well-confirmed status of the corresponding theory of biological evolution. Be on the watch for claims about legal evolution; such claims frequently are not well thought out and almost always lack empirical support.
      Efficiency Another example of functionalist explanation in legal theory is the claim that the common law rules are efficient. "Why did the common law adopt the Learned Hand formula as the standard for negligence?" "Because that is the efficient standard." Sometimes these claims are accompanied by an account of the mechanism by which a common law system moves towards efficient legal rules. For example, it might be argued that inefficient legal rules will be subject to continuous litigation pressure; whereas efficient legal rules, once adopted, tend to facilitate settlement of disputes.
    Microfoundations When you are thinking about particular functionalist explanations in positive legal theory, it is particularly helpful to ask the question whether the explanation has "microfoundations." That is, does the functionalist explanation for a particular legal rule (or change in legal rules) incorporate a specific account of the causal mechanism by which the function caused the rule or change. It is always possible that a particular functionalist explanation is true, even if microfoundations cannot be provided, but the absence of causal mechanisms is a reason to be suspicious.
    For a very lucid explanation of the role of microfoundations in social science, I highly recommend Jon Elster's brilliant book Making Sense of Marx. And for an equally brilliant defense of functionalist explanations, consult G.A. Cohen's Karl Marx's Theory of History. (The debate between Cohen and Elster is one of the most interesting and important debates in contemporary philosophy of the social science.)
    Conclusion Let me conclude with a very short diatribe. Legal theorists need a basic understanding of positive legal theory. (I hope this is obvious to everyone!) That means that legal academics should, at a minimum, have a working familiarity with the general concepts of the methodology and theory of the social sciences, including basic ideas about the role of functionalist explanations. But almost no law schools (even the elite ones that train most academics) offer courses in the methodology of positive legal theory! That's bad. Real bad.


Saturday, May 20, 2006
 
Legal Theory Bookworm The Legal Theory Bookworm recommends Why People Obey the Law by Tom Tyler. Here's a blurb:
    People obey the law if they believe it's legitimate, not because they fear punishment--this is the startling conclusion of Tom Tyler's classic study. Tyler suggests that lawmakers and law enforcers would do much better to make legal systems worthy of respect than to try to instill fear of punishment. He finds that people obey law primarily because they believe in respecting legitimate authority. In his fascinating new afterword, Tyler brings his book up to date by reporting on new research into the relative importance of legal legitimacy and deterrence, and reflects on changes in his own thinking since his book was first published.
This is a contemporary classic!


 
Download of the Week The Download of the Week uis Defending Imminence: From Battered Women to Iraq by Kim Ferzan. Here is the abstract:
    The war against Iraq and nonconfrontational killings by battered women are two recent examples of a more general theoretical problem. The underlying question is when may a defender act in self-defense. While some nineteenth century common law cases vested the rights in the defender, arguing that it was unfair to force her to live in fear, contemporary domestic and international law cast the balance decidedly on the side of the aggressor, by forcing the defender to wait until the aggressor’s attack is imminent. The Bush Administration and the battered woman simply ask whether the pendulum swung too far in the aggressor’s favor. Why wait for imminence, if the defender needs to act earlier? In response to the plight of battered women, many criminal law scholars advocate jettisoning the imminence requirement. They contend that imminence’s role is simply to establish necessity. It thus follows that in those situations where imminence proves to be a poor proxy for necessity, the need to act trumps the imminence requirement. Exporting such reasoning to international law yields the conclusion that America’s war against Iraq could also be justified by a showing of sufficient need. This Article claims that the significance of the imminence requirement is independent of the needs of the defender. Self-defense is not merely self preferential acting. Rather, self-defense is best understood as a limited right to respond to aggression. Imminence serves as the actus reus for aggression, separating those threats that we may properly defend against from mere inchoate and potential threats. Thus, when one seeks to pull at the thread of imminence, the fabric of self-defense itself unravels.
Download it while its hot!


Friday, May 19, 2006
 
Scalia on Foreign Law & Constitutional Interpretation Check out Scalia to Congress: Butt Out of Court's Use of Foreign Law by David Savage. Here's a snippet:
    In recent years, four of Scalia's colleagues — Justices Ruth Bader Ginsburg, John Paul Stevens, Stephen G. Breyer and Anthony M. Kennedy — have given speeches saying the opinions of foreign courts should influence U.S. legal thinking though outside views are not decisive. Three years ago, when the Supreme Court struck down as unconstitutional a Texas law that made private sex between gay adults a crime, the majority noted in passing that the European Court of Human Rights had come to a similar conclusion two decades earlier. Two years ago, the court struck down state laws that permitted the death penalty for murderers younger than 18. Kennedy noted that the United States stood nearly alone in condemning juvenile killers to death. Scalia dissented sharply in both cases, faulting the majority for following the view of "like-minded foreigners" and repeating his view that the Constitution "means just what it meant when it was adopted."


 
Perry on the Value of American Law Reviews Ronen Perry (University of Haifa) has posted The Relative Value of American Law Reviews: Refinement and Implementation on SSRN. Here is the abstract:
    This Essay complements a recently published article in which I discussed the theoretical and methodological aspects of law review rankings. See Ronen Perry, The Relative Value of American Law Reviews: A Critical Appraisal of Ranking Methods, Virginia Journal of Law and Technology, Vol. 11, 2006, available at http://ssrn.com/abstract=806144. The purpose of this Essay is twofold: Refinement of the theoretical framework, and implementation. It proposes, defends, and implements a complex ranking method for general-interest student-edited law reviews, based on a judicious weighting of normalized citation frequency and normalized impact factor. It then analyzes the distribution of journals' scores, and the diminishing marginal difference between them. Finally, it examines the correlation between law schools' positions in the U.S. News & World Report latest ranking and their flagship law reviews' positions under the proposed method, and between these schools' overall scores and their law reviews' final scores.
And here is a bit more from the text of the article:
    Wherever legal periodicals have been ranked, by whatever method, a relatively small number of journals have fared exceptionally well, while the vast majority of all journals have fared much worse. The borderline between first-tier and second-tier journals is far from clear, as is the borderline between second-tier and third-tier journals, and so on. But no one will challenge the existence of a small group of distinctly outstanding periodicals, and a very large group of run-of-the-mill journals. This perception is validated by all ranking methods.
Since I am wrapping up the Entry-Level Hiring Report, I was struck by the fact that the "elite JD" programs dominate law school placement in a fashion similar to the way in which the elite law reviews dominate citation measures. This article confirms a lot of suspicions and it is well worth a look!


 
Friday Calendar


Thursday, May 18, 2006
 
Thursday Calendar
    Oxford Jurisprudence Discussion Group: Geoffrey Gomery, Whose Autonomy Matters? Reconciling the Competing Claims of Privacy and Freedom of Expression
    Oxford Public International Law Discussion Group: Dr Edward Kwakwa, The Role of the International Lawyer in an International Organization
    Oxford Law Faculty Invited Seminars in Constitutional Theory 2006: Martin Loughlin, speaking on The Idea of Public Law, with comments from Paul Craig, Richard Ekins, Nick Barber
    Florida State Law: Jonathan Klick, Florida State University College of Law, "Incomplete Contracts and Opportunism in Franchising Arrangements" (joint w/ Larry Ribstein and Bruce Kobayashi)
    University of Arizona Law: Jack Chin, The Tyranny of the Minority


 
Entry Level Hiring Report--Last Call Until the End of Summer Tomorrow, I will do the final version of the entry-level report until the end of the summer. If you have a new report, a correction, or a report about a school that has not made any entry level hires, please forward it to me by Thursday, May 18. I will do a final version of the report, probably sometime in August, to include late hires and some additional analysis of the data.
This post will move to the top of the blog until the 18th.
And thanks to everyone who has contributed reports!
The most recent revisions can be found here or scroll down. The most recent version is immediately below this post.


 
Barros on Kelo Benjamin Barros (Widener University School of Law) has posted Nothing "Errant" About It: The Berman and Midkiff Conference Notes and How the Supreme Court Got to Kelo With Its Eyes Wide Open on SSRN. Here is the abstract:
    This Essay draws on the Supreme Court’s conference notes in Berman v. Parker and Hawaii Housing Authority v. Midkiff to contest Justice O’Connor’s assertion in her Kelo v. City of New London dissent that “there is a sense in which this troubling result [in Kelo] follows from errant language in Berman and Midkiff.” The conference notes in those cases in fact reveal that the Court used broad language intentionally (in Berman) and was aware of the risk of broad language (in Midkiff). Further, the broad language that O’Connor found objectionable was essential to the Court’s holdings in Berman and Midkiff, and the cases could not have been decided on narrower grounds. Justice O’Connor’s suggestion that the broad language in Berman and Midkiff was the result of a judicial slip of the pen therefore is incorrect. The Court’s decisions in Berman and Midkiff consciously avoided the hard questions presented by the issue of public use and deferred those questions to the legislature. The intentional abdication of the judicial role in reviewing issues of public use reflected in the Berman and Midkiff conference notes reinforce the position that Kelo is entirely consistent with the Supreme Court’s public use precedents. A more compelling dissent by Justice O’Connor therefore would have argued not that Berman and Midkiff contained loose language, but that with the benefit of hindsight Berman and Midkiff’s deference to the legislature was a mistake that should be corrected by overruling the prior cases.


 
Book Announcement: Why People Obey the Law by Tyler
    Why People Obey the Law Tom R. Tyler To read the entire book description or the afterword, please visit: http://pup.princeton.edu/titles/8230.html People obey the law if they believe it's legitimate, not because they fear punishment--this is the startling conclusion of Tom Tyler's classic study. Tyler suggests that lawmakers and law enforcers would do much better to make legal systems worthy of respect than to try to instill fear of punishment. He finds that people obey law primarily because they believe in respecting legitimate authority. Praise for the original edition: "[T]he argument and findings of Why People Obey the Law have important implications for the debate about the way in which people subject to legal procedures should be treated. . . . [T]he study is provocative and raises an issue of real importance."--Roger Hood, Times Literary Supplement Paper | $24.95 / £15.95 | ISBN: 0-691-12673-9


 
Zwolinksi on Exploitation Matt Zwolinski (University of San Diego, Philosophy) has posted Sweatshops, Choice, and Exploitation on SSRN. Here is the abstract:
    Most people who work in sweatshops choose, in some sense, to do so. This paper examines the moral significance of that choice. I begin by arguing that, in spite of the less-than-ideal circumstances under which they are made, sweatshop workers’ choices to accept certain conditions of labor can be morally transformative both as an expressions of their preferences and as an exercise of their autonomy. I then defend this argument against two criticisms: that sweatshop workers’ choices are made involuntarily, and that the exploitative nature of sweatshop conditions undermines the moral significance of workers’ choices. The presence of involuntariness, I concede, changes our moral evaluation of sweatshop labor for the worse in a number of ways. But even consent given under the ‘coercion of poverty’ is still sufficient to establish a moral claim by workers and sweatshops to non-interference in the conditions of sweatshop labor. And while it might seem that the presence of exploitation should lead us to view sweatshop labor as morally suspect, or even impermissible, I argue that such intuitions are at odds with our more general intuitions about our duties to aid the less well-off. I conclude by noting that there is a significant gulf between our beliefs about the moral praiseworthiness of sweatshops and our moral beliefs about what ought to be done about sweatshops. Sweatshops are a complicated phenomenon, and it is crucial that our moral evaluation of them reflect this complexity.


 
New from Law & Politics Book Review
    THE JUDICIAL PROCESS: REALISM, PRAGMATISM, PRACTICAL REASONING AND PRINCIPLES, by E.W. Thomas. New York: Cambridge University Press, 2005, 442pp. Hardback. $95.00/£55.00. ISBN: 0-521-85566-7. Reviewed by Gilbert A. Bond.
    DEBT'S DOMINION: A HISTORY OF BANKRUPTCY LAW IN AMERICA, by David A. Skeel, Jr. Princeton: Princeton University Press, 2001 (2nd Printing and Paperback edition, 2004). 296pp. Cloth. $67.50/£43.95. ISBN: 0-691-08810-1. Paper. $19.95/£12.95. ISBN: 0-691-11637-7. Reviewed by Thomas G.W. Telfer.
    BORROWING CONSTITUTIONAL DESIGNS: CONSTITUTIONAL LAW IN WEIMAR GERMANY AND THE FRENCH FIFTH REPUBLIC, by Cindy Skach. Princeton: Princeton University Press, 2005. 192pp. Cloth. $29.95/£18.95. ISBN: 0-691-12345-4. Reviewed by Amalia D. Kessler.
    BREACH OF TRUST: HOW THE WARREN COMMISSION FAILED THE NATION AND WHY, by Gerald D. McKnight. Lawrence, Kansas: University Press of Kansas, 2005. 512pp. Cloth. $29.95. ISBN: 0-7006-1390-0. Reviewed by David A. Yalof.
    CONFRONTING SEXUAL HARASSMENT: THE LAW AND POLITICS OF EVERYDAY LIFE, by Anna-Maria Marshall. Burlington, VT: Ashgate Publishing Co, 2005. 200pp. Hardback. $89.95/£55.00. ISBN: 0754625206. Reviewed by Susan M. Behuniak.
    POLITICAL DEMOCRACY, TRUST, AND SOCIAL JUSTICE: A COMPARATIVE OVERVIEW, by Charles F. Andrain and James T. Smith. Boston: Northeastern University Press, 2005. 231pp. Cloth. $65.00. ISBN: 1-55553-645-X. Paper. $26.00. ISBN: 1-55553-646-8. Reviewed by Helen J. Knowles.
    LAW, CULTURE, AND RITUAL: DISPUTING SYSTEMS IN CROSS-CULTURAL CONTEXT, by Oscar G. Chase. New York: New York University Press, 2005. 224pp. Cloth. $45.00. ISBN: 0814716512. Reviewed by: Gad Barzilai.


Wednesday, May 17, 2006
 
Law School Entry Level Hiring Report (2005-06 Hiring Season): Version 4.18 (last modified on 18 May 2006)
    Introduction This is the eighteenth iteration of the fourth version of the entry level hiring report. I have reset the blue indicators—which now designate entries that are new as of version 4.1 or later. Red indicators are version 4.3 or later.
    The report covers hirings to entry-level tenure-track positions at American law schools. It does not cover lateral hiring, hiring by law schools located outside of the United States, or hiring by non-law school legal studies programs.
    As in part years, I will continue to move the report to the top of the blog, adding new data as it comes in. After the data set begins to become "complete," I will begin to add various reports and graphic material.
    161 reports have been received as of version 4.18. Of these, 40 candidates had a JD without either an advanced degree of a post-doc/pre-tenure position such as a VAP or fellowship. 43 candidates had an advanced doctorate such as a PhD, SJD, or DPhil, and 43 candidates had some other advanced degree, usually a masters. 88 candidates have done some kind of post-doc/pre-tenure program. 23 candidates had the “hat trick” of a JD plus an advanced doctorate plus a post-doc/pre-tenure position; 53 candidates had the JD plus some advanced degree and a post-doc/pre-tenure position.
    The mean JD graduation date as of version 4.18 was 1999. The median graduation date was 2000. The mode was 19, shared by 2000 and 2001. As of version 4.18, 1 new hire had a first law degree awarded in 2006, 5 new hires graduated in 2005; 9 in 2004; 11 in 2003; and 15 in 2002. 1 new hire graduated in 1975; 1 in 1984; and 1 in 1985. Only 7 pre-1990 graduates recieved entry-level offers.
    Adding to the Report To report a new hire not yet listed or to correct a current listing, email me at lsolum@gmail.com.
    Incomplete reports are welcome!
    This time around, I am trying to collect the following data elements:
      Name of hiring institution, e.g., University of Illinois Name of new hire, e.g., Jane Roe First law degree, e.g., JD Awarding institution for first law degree, e.g., NYU Date of first law degree, e.g., 2001 Other highest post-graduate degree, e.g., PhD Field of other highest post-granduate degree, e.g., Political Science Award institution of other highest post-graduate degree, e.g., Harvard Date of other highest post-graduate degree, e.g., 2002 Pre-tenure track full-time legal academic posititon, e.g., Visiting Associate Professor, Fellowship, Research Scholar, etc. Institution of pre-tenure track full-time legal academic position, e.g., Georgetown
    So, a complete entry will look like this:
      University of Illinois
        Jane Roe, JD NYU 2001, PhD Political Science Harvard 2002, Visiting Associate Professor Georgetown
    I hope you will forgive me for begging, but it would be great if the information actually were sent in the completed entry format (so I can cut and paste). It is also a great help if you include the words "Entry Level" in the subject matter line of the email.
    The Tournaments
      The JD Tournament The JD Tournament measures the number of entry-level hires produced by each institution that grants a first degree in law, e.g. the JD or LLB. This year I will report on a variety of other tournaments, including the PhD/other-doctorate discipline tournament, and tournaments that measure the impact of various pre-tenure track programs, including fellowship programs, VAPS, and fellowships. I will also report on a combined measure for the total number of academics produced by the combination of JD, advanced law degree, and pre-tenure programs. Watch future versions of this report for the data.
        Harvard-26 Yale-26 Columbia-13 NYU-12 University of Chicago-8 Stanford-6 University of Michigan-6 University of Virginia-6 Duke-4 University of Pennsylvania-4 Georgetown-3 University of Illinois-3 American-2 Fordham-2 Ohio State-2 University of California at Berkeley-2 University of Houston-2 University of Texas-2 Vanderbilt-2 Washington University (St. Louis)-2 Brooklyn-1 Colorado-1 Cornell-1 Georgia-1 Hamline-1 Loyola, Los Angeles-1 Northwestern-1 Notre Dame-1 Temple-1 Tulane-1 University of California at Los Angeles-1 University of Florida-1 University of Minnesota-1 University of Nebraska-1 University of North Dakota-1 University of Pittsburgh-1 University of Southern California-1 Washington & Lee-1 Non-US JDs, LLBs, Etc. Beijing College of Economics-1 Cambridge-1 Ghent-1 Hebrew University-1 London School of Economics-1 Oxford-1 University of Nairobi University of Turin-1
      The Doctoral Discipline Tournament 37 of the 148 new entry-level hires reported so far have advanced doctorates (e.g., PhDs or SJDs). Here are the disciplines:
        Law-15 History-6 Economics-3 Philosophy-3 Political Science-3 Psychology-3 Anthropology-1 Chemistry-1 English-1 Fine Arts-1 German-1 Physics-1 Public Health-1 Sociology-1
      The Pre-Tenure/Post-Doc Tournament This tournament measures the number of entry-level candidates produced by various fellowships, VAPs (Visiting Associate Professorships), lawyering skills, and legal writing programs. At this stage, I am listing by institution. Later versions will include a more fine-grained breakdown:
        NYU-12 Columbia-7 Harvard-6 Florida State-4 University of Chicago-4 Temple-4 Fordham-3 Cornell-2 Georgetown-2 University of California at Los Angeles-2 University of Michigan-2 Villanova-2 Yale-2 American University-1 Boston University-1 Chicago-Kent-1 Colorado-1 DePaul-1 George Mason-1Hamline-1 Hofstra-1 Iowa-1 Loyola New Orleans-1 National Institute of Health-1 Ohio State-1 Oklahoma City-1 Pittsburg-1 Rutgers-Camden-1 Southern Illinois-1 Touro-1 University of Alabama-1 University of Amsterdam-1 University of Arkansas Fayettesville-1 University of Denver-1 University of Florida-1 University of Houston-1 University of Marlyand-1 University of Nebraska-1 University of North Carolina-1 University of Oslo-1 University of Southern California-1 University of Texas Economics-1 University of Texas Law-1 University of Virginia-1 University of Washington-1 Vanderbilt-1 Washington & Lee-1 Whittier-1 William & Mary-1
    The Report by Hiring Institution Changes since the last version of the report are indicated in blue.
      American University
        Mary Clark, JD Harvard 1991, Visiting Associate Professor American
        Fernanda Nicola, Laurea in Legge Turin 2000, SJD Harvard 2006, PhD Law, Trento 2006
        Ezra Rosser, JD Harvard 2003, MPhil Land Economy Cambridge 2004, Westerfield Fellow Loyola University New Orleans
        Dennis Ventry, JD NYU 2004, PHD History (Economic & Legal) University of California at Santa Barbera 2001, Visiting Scholar in Taxation UCLA
      Boston University
        Kristin A. Collins, JD Yale 2000, Masters English Literature Columbia University 1996, Masters English Literature Oxford University 1995, Research Fellow Colorado
        Robert D. Sloane, JD Yale 2000, Associate-in-Law Columbia 2005-2006, Visiting Lecturer-in-Law & Research Fellow Yale 2004-2005
        Charles Whitehead, JD Columbia 1986, Research Fellow and Director, Transactional Studies, Columbia
      Cardozo
        Margaret Lemos, JD NYU 2001, Furman Fellow NYU
        Max Minzner, JD Yale 1999
      Chapman
        New: Marisa Cianciarulo, JD American 1998, Masters International Relations Catholic 1998, Fellowship Villanova
        New: Bobby Dexter, JD Harvard 1992, Fellowship Loyola New Orleans
      Charleston
        New: Sheila Scheuerman, JD Washington University St. Louis 1997, Abraham L. Freedman Fellow Temple
      Chicago-Kent
        William Birdthistle, JD Harvard 1999
      Cleveland-Marshall
        Brian Ray, JD Ohio State 2001, M.A. Japanese (East Asian) Studies University of Pennsylvania 1998
      Columbia
        New: C. Scott Hemphill, JD Stanford 2001, Ph.D candidate (Economics), Stanford, Olin Fellow in Law and Economics, Columbia
        New: Olatunde Johnson, JD Stanford 1995, Kellis Parker Research Fellow, Columbia
      Drexel
        Chapin Cimino Cody, JD University of Chicago, 1997, Assistant Professor of Legal Writing, Villanova Law
        David Cohen, JD Columbia, 1997
        Dana Irwin, JD Yale, 2002>
      Florida Coastal
        Michael Lewyn, JD University of Pennsylvania 1986, Visiting Associate Professor, George Washington
      Florida State
        Brian Galle, J.D. Columbia 2001, LL.M. Tax Georgetown 2006
        Lorelei Ritchie de Larena, J.D. Columbia 1996
        Lesley Wexler, J.D. University of Chicago 2002, Bigelow Fellow at Chicago
      Fordham
        New: Richard C. Squire, J.D. Harvard 2001, MBA Harvard 2001, Visiting Scholar Yale Law
      Franklin Pierce
        Jordan Budd, JD Harvard 1986
      George Mason
        New: Neomi Rao, JD University of Chicago 1999
        Samson Vermont, JD Georgia __, LLM U. Va. 2005, Humphrey Law and Economics Fellow, University of Michigan
      George Washington
        Donald Braman, JD Yale 2005, Ph.D. Anthropology Yale 2002, Ribicoff Fellow at Yale
        David Fontana, JD Yale 2005, D.Phil Socio-Legal Studies Oxford (expected 2006)
      Golden Gate
        Michele Benedetto, JD NYU 2001
        William Gallagher, JD UCLA 1994, PhD Law/Jurisprudence & Social Policy, University of California at Berkeley 1993
      Gonzaga
        Nadine Farid, JD Tulane 1998, Climenko Fellowship Harvard
      Hamline
        H. Allen Blair, JD Hamline University School of Law 2001, M.A. English Literary Theory University of North Dakota 1998, Visiting Assistant Professor Hamline University School of Law
        Angelique A. EagleWoman, JD University of North Dakota 1998, LL.M. American Indian and Indigenous Law University of Tulsa College of Law 2004
        Stacey A. Tovino, JD University of Houston Law Center 1997, Ph.D. Health Care Ethics University of Texas 2006,Visiting Assistant Professor University of Houston Law Center
      Harvard
        New: Rachel Brewster, JD Virginia 2003, PhD Political Science University of North Carolina at Chapel Hilll 2005, Bigelow Fellow at University of Chicago
      Hofstra
        Ron Colombo, JD NYU 1998
        Elizabeth M. Glazer, JD Chicago 2004, MA Philosophy University of Pennsylvania 2001
      Indiana University Indianapolis
        Mike Pitts, JD Georgetown 1999, VAP Univeristy of Nebraska
      Lewis & Clark
        Tigran Eldred, JD Fordham 1990, Lawyering Skills NYU
        H. Tomas Gomez-Arostegui, JD University of Southern California 1997, LLM (European IP) University of Oslo 2004, Visiting Researcher and Lecturer University of Oslo
      Loyola Law School, Los Angeles
        David Glazier, JD Virginia 2004, MA Government National Security Studies Georgetown 1987, Research Fellow and Lecturer, Center for National Security Law, Virginia
        New: Cesare Romano, PhD International Law Geneva (date?), Visiting Professor, Amsterdam
      Michigan State
        Barbara O'Brien, J.D., 1996, Colorado, Ph.D. in Social Psychology, Michigan (anticipated)
      New York Law School
        New: Tai-Heng Cheng, BA Oxford 1999, JSD Yale 2004
      New York University
        New: Florencia Marotta-Wurgler, JD NYU 2001, Leonard Wagner Fellow in Law and Business NYU, Corporate Fellow Fordham
        Margaret Satterthwaite, JD NYU 1999, MA English U.C. Santa Cruz 1995, Clinical Instructor NYU
      Northern Illinois University
        New: Marc Falkoff, JD Columbia 2001, PhD English Brandeis 1997
        New: Laurel Haskell, JD Minnesota 1997
      Northwestern University
        Abraham Wickelgren, Harvard J.D. 1994, Harvard Phd (economics, 1999), Vistiing Assistant Professor, Department of Economics, University of Texas
      Notre Dame
        Jennifer M. Mason, JD NYU (date?)
      Ohio State
        Amy Cohen, JD Harvard 2002, Assistant Clinical Professor Ohio State
        Annecoos Wiersema, LLB London School of Economics 1998, SJD Harvard 2004, Visiting Assistant Professor University of Denver
      Oklahoma City University
        Michael R. Grynberg, JD University of Virginia 1999
        Michael O'Shea, JD Harvard 2001, MA Philosophy Pittsburgh 1998
      Pace
        Alexander ("Sasha") Greenawalt, JD Columbia 2000, MA History Yale 1998
        Emily Gold Waldman, JD Harvard 2002
      Pepperdine
        New: No entry level hires.
      Quinnipiac
        Jeffrey A. Cooper, JD Yale 1993, LLM (Taxation) NYU 2000
      Roger Williams
        John Chung, JD Harvard 1985
      Santa Clara
        David Yosifon, JD Harvard 2002, MA Carnegie Mellon 1997 (History), Visiting Assistant Professor Rutgers-Camden and New York Law School
      Seton Hall
        Kristen Boon, JD NYU (2000), JSD Columbia (expected)
      Southern Methodist
        New: Jeffrey Kahn, JD Michigan 2002
        Rose Cuison Villazor, JD American University Washington College of Law 2000, LLM Columbia Law School 2006, Human Rights Fellow, Columbia Law School
      Southwestern
        Gowri Ramachandran, JD Yale 2003, MA Statistics Harvard 1999, Future Law Professor Fellow Georgetown, Visiting Professor Florida State University
      St. John's
        Anita Krishnakumar, JD Yale 1999, Visiting Associate Professor Touro
        Y.S. (Steve) Lee, BA (Law) Cambridge 1993, PhD (Law) Cambridge 2004, Visiting Research Fellow, University of North Carolina at Chapel Hill School of Law
      St. Louis University
        Anders Walker, JD Duke (1998); MA History Duke (1998); PhD History/African Americans Studies Yale (2003), Golieb Fellow NYU
        New: Molly Walker Wilson, JD University of Virginia 2004, PhD Psychology University of Virginia 2004
      St. Mary's
        Dorie Klein, JD Vanderbilt 2002, MA Psychology University of Pennsylvania (date?), Visiting Assistant Professor Florida State
        Colin Marks, JD University of Houston 2001
      St. Thomas (Miami)
        Ira Nathenson, JD Pittsburgh 1998, Visiting Assistant Professor Pittsburgh
      St. Thomas (Minnesota)
        Mariana Hernandez-Crespo, JD Harvard 2003, JD Universidad Catolica (Caracas Venezula), LLM Harvard 1999, Research Scholar Iowa
      Temple
        Jaya Elizabeth Ramji-Nogales, JD Yale 1999, Master of Laws (Advocacy) Georgetown 2006, Advocacy Fellow/Adjunct Professor, Center for Applied Legal Studies Georgetown
        C.A. Harwell Wells, JD Vanderbilt 2001, PhD Modern American History University of Virginia 1998
      Texas Tech University
        Christopher Bruner, JD Harvard 2001, M.Phil. English Literature Oxford 1997, Visiting Assistant Professor Boston University
        Bill Jeffery, JD Stanford 1975
        Glenn Roque-Jackson, JD Harvard 1992
      Thomas Jefferson
        New: Deven Desai, JD Yale 1997, Visiting Assistant Professor, Thomas Jefferson School of Law
      Thurgood Marshall
        New: Jason Dominguez, JD University of California at Berkeley 1995
      Touro
        Meredith R. Miller, JD Brooklyn 2000, LLM Legal Education Temple (expected May 2006), Abraham L. Freedman Fellow Temple Law
      University of Alabama
        No entry-level hires made in 2005-06
      University of Arizona
        David Marcus, JD Yale 2002
        Kirsten Rabe Smolensky, JD University of Chicago 2002, Bigelow University of Chicago
        Brent White, JD NYU 1998, VAP NYU
      University of Arkansas Fayettesville
        New: Scott W. Dodson, JD Duke 2000
        New: Sharon E. Foster, JD Loyola Law School Los Angeles 1987, PhD Law University of Edinburgh anticipated 2006, Clinical Associate Professor (Legal Research and Writing) University of Arkansas, Fayetteville
        New: Ned Snow, JD Harvard 2003
      University of Arkansas Little Rock
        Zachary Kramer, JD Illinois 2004, Williams Teaching Fellow UCLA
      University of Baltimore
        New: Amy Dillard, Washington & Lee 1999
      University of California at Berkeley
        Eric Biber, JD Yale 2001, MS Environmental Science Yale 2001
        Melissa Murray, JD Yale 2002, Associate in Law, Columbia
      University of California at Davis
        Peter Lee, JD Yale 2005
      University of California Hastings
        Heather Field, JD Harvard 2000
      University of Chicago
        Alison LaCroix, JD Yale 1999, PhD Candidate History Harvard, Golieb Fellow NYU
      University of Cincinnati
        Timothy Armstrong, JD & MPAff 1993 Texas; LLM 2005 Harvard; Clinical Teaching Fellow Berkman Center for Internet & Society, Harvard
        Jacob Katz Cogan, JD Yale 1999, PhD History Princeton 2002, VAP University of Chicago
      University of Connecticut
        Ruth Mason, JD Harvard 2001, VAP NYU
      University of Dayton
        Jeanette Cox, JD Notre Dame 2005
      University of Georgia
        Fazal Khan, JD Illinois 2000, MD Illinois 2003
        Sonja West, J.D. Chicago 1998, BA Journalism University of Iowa 1993, Hugo Black Faculty Fellow University of Alabama
      University of Houston
        Aaron-Andrew P. Bruhl, JD Yale 2003, MPhil Political Theory Cambridge 2001
      University of Kentucky
        Andrea Dennis, JD NYU 1997
        New: Melynda Price, JD Texas 2002, PhD Political Science Michigan 2006
      University of Maryland
        New: Danielle Citron, JD Fordham 1994, VAP University of Maryland
      University of Miami
        Stephen K Urice, JD Harvard 1984, PhD Fine Arts Harvard 1981
        Ben Depoorter, Bachelor and Master in Law Ghent 1998, M.A. Hamburg 1999, LL.M. Yale 2003, PhD Economics Ghent 2003, SJD Yale expected, VAP George Mason
      University of Michigan
        Eve Brensike, JD University of Michigan 2001, Visiting Assistant Professor of Law University of Michigan
        Scott Hershovitz, JD Yale 2004, D.Phil. Law University of Oxford 2001
      University of Minnesota
        New: No entry-level hires
      University of Mississippi
        New: Christopher R. Green, JD Yale 1998, PhD Philosophy Notre Dame 2006
      University of Missouri Columbia
        Paul Litton, JD Penn 1999, PhD Philosophy Penn 2003
        David Mitchell, JD University of Pennsylvania 2002, PhD Sociology University of Pennsylvania (date?)
      University of Montana
        New: Elizabeth Ann Kronk, JD University of Michigan 2003
      University of Nebraska
        Eric Berger, JD Columbia 2003
        Anthony Schutz, JD Nebraska 2003, Lecturer Cornell
        Michelle Harner, JD Ohio State University 1995
      University of North Carolina
        Saule Omarova, JD, Northwestern, 2001, Ph.D., Political Science, 1999
      University of North Dakota:
        Gregory S. Gordon, JD Berkeley 1990
        Katharine Traylor Schaffzin, JD Temple University 2000, LLM Legal Education Temple University 2006, Abraham L. Freedman Fellow & Lecturer in Law Temple University
      University of Pennsylvania
        Aditi Bagchi, JD Yale 2003, MSc History Oxford 2000
        Serena Mayeri, JD Yale 2001, PhD History Yale 2006, Golieb Fellow NYU
      University of Richmond
        Kristen Osenga, JD Univ. of Illinois 2000, MS Southern Illinois 2001 Electrical Engineering, Visiting Assistant Professor Chicago-Kent
        Noah Sachs, JD Stanford (date?), MPP Princeton (date?), Climenko Fellowship Harvard
      University of Southern California
        New: Jonathan Barnett, JD Yale 1999, MA Cambridge European Literature 1995, Visiting Assistant Professor Fordham
        New: Schmuel Leshem, LLB Hebrew 1997, SJD NYU 2005
      University of Texas
        New: John Golden, JD Harvard 2000, Ph.D. Harvard Physics 1997
      University of the Pacific (McGeorge)
        New: Emily Uhrig, JD Stanford 1992
      University of Tulsa
        Gregory Duhl, JD Harvard 1995, LLM Legal Education Temple 2004, Visiting Assistant Professor Southern Illinois University
      University of Virginia
        New: Rachel Harmon, JD Yale 1996, M.Sc. in Political Theory, 1993 & M.Sc. in Political Sociology, 1992 London School of Economics
        Toby Heytens, JD University of Virginia 2000, Visiting Assistant Professor Cornell
      University of Washington
        Yong-Sung Jonathan Kang, JD Harvard 1998, Visiting Assistant Professor Fordham
        New: Sylvia Kang'ara, LLB University of Nairobi 1996, SJD Harvard 2003, VAP Oklahoma City
        Dongsheng Zang, LLB Beijing Colege of Economics, SJD Harvard, VAP University of Washington
      University of Wisconsin
        New: Lisa Therese Alexander, JD Columbia 2006
        Stephanie Tai, JD Georgetown 2000, PhD Chemistry Tufts 1997, Visiting Associate Professor Washington & Lee
      Vanderbilt University
        Christopher (Chris) Brummer, JD Columbia 2004, PhD Germanic Studies Chicago 2001
        Nita Farahany, JD Duke 2004, PhD* Philosophy Duke 2006 (*expected), Fellow and Instructor in Law Vanderbilt
        New: Terry Maroney, JD NYU 1998, NYU Furman Fellow, USC Law Fellow
      Villanova
        New: Michael Moreland, J.D. Michigan 2002, M.A. Boston College in Theological Ethics 1997
        New: Joy Mullane, J.D. Florida 1999, LL.M. Florida in Tax 2003, Visiting Assistant Professor at the University of Florida Levin College of Law
        New: Teressa Ravenell, J.D. Columbia 2002, Visiting Assistant Professor at the College of William and Mary Marshall Wythe School of Law
        Chaim Saiman, JD Columbia 2001, Olin Fellow, Harvard, Golieb Fellow, NYU
      Wake Forest
        Kami Chavis Simmons, JD Harvard 1999
        Omari Simmons, JD University of Pennsylvania 1999
      Washington & Lee:
        No entry-level hires
      Washington University (St. Louis)
        New: Samuel Buell, JD NYU 1992, Emerging Scholars Program, Texas
        Emily Hughes, JD Michigan 1997, MA International Relations Yale 1992, Associate Director Death Penalty Clinic DePaul
        Rebecca Hollander-Blumoff, JD Harvard 1996, PhD Candidate Psychology NYU, Research Fellow NYU
      Wayne State
        Derek Bambauer, J.D. Harvard 2004, currently Research Fellow Berkman Center Harvard
        Susan Evans Cancelosi, JD Cornell 1992, LLM University of Houston, Research Professor Houston
        Steven Davidoff, JD Columbia 1995, M.Finance London Business School 2005
        Lance Gable, J.D. Georgetown 2001, M.P.H. from Johns Hopkins University (2001), Professorial Lecturer Georgetown
        New: Dana Roach, JD Michigan 1999
      Western New England
        New: Sudha Setty, JD Columbia 1999
      Widener
        Wes Oliver, JD Virginia 1996, JSD Yale (pending), Climenko Fellowship Harvard, Visiting Associate Professor University of Maine
      Willamette
        Laura Appleman, JD Yale 1998, M.A. English University of Pennsylvania 1994, Visiting Assistant Professor Hofstra
        Keith Cunningham-Parmeter, JD Stanford 2002
        Jeffrey Dobbins, JD Duke 1994
        Judith Wise, JD University of Chicago 1997, M.A. Sociology University of Chicago 1994, Visiting Assistant Professor Florida State
      William & Mary
        Nathan Oman, JD Harvard 2003
      Yale
        New: Yair Listokin, JD Yale 2005, PhD Economics Princeton 2002
    Prior Reports


 
Sunstein on Dworkin Check out RONALD DWORKIN AND HIS CRITICS. Virtues and Verdicts by Cass Sunstein at the New Republic. (Unfortunately, subscription required.)


 
Winkler on Fundamental Rights Adam Winkler (University of California, Los Angeles - School of Law) has posted Fundamentally Wrong About Fundamental Rights (Constitutional Commentary, 2006) on SSRN. Here is the abstract:
    This short essay argues that the traditional and often repeated notion that laws burdening fundamental rights receive strict scrutiny is wrong. Many fundamental rights are not protected by strict scrutiny but by lesser standards or by categorical rules. Even rights, such as speech, free exercise of religion, and privacy, which do trigger strict scrutiny only do so occasionally; in many speech, religion, and privacy cases, the courts require the government to meet far less burdensome standards. In short, fundamental rights are governed by strict scrutiny only some of the time.


 
Avraham on State Tort Reform Ronen Avraham (Northwestern University - School of Law) has posted Database of State Tort Law Reforms on SSRN. Here is the abstract:
    This manuscript contains the most detailed, complete and comprehensive legal dataset of tort reforms in the U.S. The dataset records state laws in all fifty states and the District of Columbia over the last several decades. For each reform we record the effective date, a short description of the reform, whether or not the jury is allowed to know about the reform, whether the reform was upheld or struck down by the states' supreme courts, as well as whether it was amended by the state legislator. Previous and current scholarship which studies the empirical effects of tort reforms uses various different legal datasets, (tort reforms datasets and other legal compilations), some which existed online, some created ad-hoc by the researchers. Besides being different from each other, these datasets frequently do not cover reforms adopted before 1986, miss reforms superseded after 1986, miss court-based reforms, ignore effective dates of legislation, and do not accurately record judicial invalidation of laws. It is possible that at least some of the persisting variation across empirical studies about the effect of tort reforms might be due to variations across legal datasets used. This dataset builds upon and improves existing data sources. It does so by reviewing original sources of legislation and case law to determine the exact text and effective dates. It is hoped that by creating one "canonized" dataset our understanding of the impact of tort reform on our life will increase.


 
Hutchison on Leef on Right to Work Harry G. Hutchison (George Mason University School of Law) has posted Contemporary Unionism as a Fraternal Conceit? A Review of George C. Leef's Free Choice for Workers: A History of the Right-to-Work Movement on SSRN. Here is the abstract:
    With the publication of Free Choice for Workers: a History of the Right-to-Work Movement, George Leef offers a prudential basis tied to experience coupled with informal logic implicating ultimate values in order to reexamine compulsory labor unions and to contest the justification offered in support of America’s labor laws. Leef’s perspective delegitimizes compulsory unionism on ethical and empirical grounds. Demonstrating that statutory compulsion fails to direct society down the pathway to progress, the book reveals that the road to serfdom can often be paved by bureaucratic regulation. Carefully examining history and contemporary events, this book contributes to the richly textured debate about the normative role of unions in a putatively free society. Aptly appreciated, George Leef’s reassessment offers an essentially contractarian and liberal model of labor relations that rests on a vision of individual rights that have a clearly defined, independent existence predating society. From this perspective, George Leef specifies liberty as a desirable good in and of itself which is placed in harm’s way by progressive ideals and constructs. Far from operating as an anti-union document, Free Choice for Workers functions as a pro-union manuscript grounded in the conclusion that unions operate as defensible institutions and laudable associations, when and only if, they represent workers who join voluntarily.


 
Engel on Competiton as a Dilemma Christoph Engel (Max Planck Institute for Research on Collective Goods) has posted Competition as a Socially Desirable Dilemma on SSRN. Here is the abstract:
    A cartel is socially not desirable. But is it a normative problem? And has merger control reason to be concerned about tacit collusion? Neither is evident once one has seen that the members of a cartel face a problem of strategic interaction. It is routinely analysed in terms of game theory. Much less frequently, however, an obvious parallel is drawn. For cartel members, the formation of the cartel and cartel discipline are a public good. Making the parallel explicit is elucidating both at the theoretical and at the experimental levels. The paper contrasts oligopoly theory with public goods theory, and oligopoly experiments with public goods experiments.


 
Call for Papers: Tort Law & the Modern State
    Junior scholars writing in the area of Torts are invited to submit papers for "Tort Law and the Modern State," a conference to be held at Columbia Law School, New York City on September 15-16, 2006. The Conference is sponsored by Columbia Law School and the Randolph Speakers Fund and is being organized in connection with the launch of a newly formed peer-reviewed journal, the JOURNAL OF TORT LAW, http://www.bepress.com/jtl Editor-in-Chief Jules Coleman, Yale Law School Editorial Board Mark Geistfeld, NYU Law School John C.P. Goldberg, Vanderbilt Law School Catherine Sharkey, Columbia Law School Ronen Perry, Faculty of Law, Haifa University Benjamin Zipursky, Fordham Law School The Conference will bring together many of the world's most prominent tort scholars, representing a range of perspectives and methodologies including comparative, economic, empirical, historical, institutional, and philosophical analysis. The Conference organizers are soliciting papers from junior (pre-tenure) scholars. Papers must be on some aspect of tort law, but all topics and methodological approaches will be considered. Submissions will be judged by the editorial board. Authors of submissions that are selected will appear on a conference panel, and will be given the option of publishing in the JOURNAL OF TORT LAW. Junior scholars interested in being considered for inclusion must submit their papers no later than July 28, 2006. Papers should be no longer than 25,000 words. Submit your torts manuscript today via our website: http://www.bepress.com/jtl If you have questions about submissions or about the conference, please contact: Thelma Twyman, ttwyman@law.columbia.edu


Tuesday, May 16, 2006
 
Tuesday Calendar
    Oxford Human Rights Discussion Group: Yossi Nehushtan, Religious Exemptions and the Limits of Liberal-Tolerance
    Oxford EC Law Discussion Group:: Erika Szyszczak, Balancing Values in the European Union


 
Ferzan on Imminence Kimberly Kessler Ferzan (Rutgers, The State University of New Jersey - School of Law-Camden) has posted Defending Imminence: From Battered Women to Iraq (Arizona Law Review, Vol. 46, 2004) on SSRN. Here is the abstract:
    The war against Iraq and nonconfrontational killings by battered women are two recent examples of a more general theoretical problem. The underlying question is when may a defender act in self-defense. While some nineteenth century common law cases vested the rights in the defender, arguing that it was unfair to force her to live in fear, contemporary domestic and international law cast the balance decidedly on the side of the aggressor, by forcing the defender to wait until the aggressor’s attack is imminent. The Bush Administration and the battered woman simply ask whether the pendulum swung too far in the aggressor’s favor. Why wait for imminence, if the defender needs to act earlier? In response to the plight of battered women, many criminal law scholars advocate jettisoning the imminence requirement. They contend that imminence’s role is simply to establish necessity. It thus follows that in those situations where imminence proves to be a poor proxy for necessity, the need to act trumps the imminence requirement. Exporting such reasoning to international law yields the conclusion that America’s war against Iraq could also be justified by a showing of sufficient need. This Article claims that the significance of the imminence requirement is independent of the needs of the defender. Self-defense is not merely self preferential acting. Rather, self-defense is best understood as a limited right to respond to aggression. Imminence serves as the actus reus for aggression, separating those threats that we may properly defend against from mere inchoate and potential threats. Thus, when one seeks to pull at the thread of imminence, the fabric of self-defense itself unravels.
Highly recommended!


 
Gazal-Ayal on the Economics of Law & Economics Oren Gazal-Ayal (University of Haifa - Faculty of Law) has posted Economic Analysis of Law and Economics on SSRN. Here is the abstract:
    The academic world is wonderful. Like few other professionals, we can choose what we want to do and what questions we think are important, which in our line of work means choosing what topics we want to research. But what influences our choices? This paper examines what drives scholars to select Law and Economics (L&E) as a topic for research. It does so by implementing the methodology of many L&E papers - by assuming that regulation and incentives matter. Legal scholars face very different academic incentives in different parts of the world. In some countries, the academic standards for appointment, promotion and tenure encourage legal scholars to concentrate on L&E. In others, they strongly discourage such research. Thus, we should expect wide variation in the rate of participation of legal scholars in the L&E discourse across countries. On the other hand, economists are evaluated with similar yardsticks everywhere. Thus, participation of economists in the L&E discourse is likely to vary much less from one place to another. The hypothesis of this paper is that the academic incentives are a major factor in the level of participation in the L&E scholarship. This incentives hypothesis is presented and then examined empirically on data gathered from the list of authors in L&E journals and the list of participants in L&E conferences. The data generally supports the hypothesis. In the legal academia, the incentives to focus research on L&E topics are the strongest in Israel, they are weaker in North America and weakest in Europe. In fact, the data reveal that lawyers' authorship of L&E papers weighted by population is almost ten times higher in Israel then in North America; while in Europe it is almost ten times lower then in North America. By comparison, the weighted participation level of economists - who face relatively similar academic environments across countries - in L&E research is not significantly different across countries.
There is an obvious question: are both the participation rates and the incentives caused by some other variable? In particular, by academic and legal culture?Here's a bit more from the paper:
    L&E discourse is highly correlated with academic incentives favoring that discipline. European lawyers usually do not need to write articles in English and for them papers in L&E do not carry substantial academic benefit in appointments and promotion decisions. To the contrary: in many cases such a paper would be much less valuable to their career then a doctrinal paper in their own language. And publishing an article about the local law in a local journal may be easier as well. These are strong disincentives to overcome language and disciplinary barriers. For Americans and Canadians, interdisciplinary papers are as valuable as legal papers for academic career advancement. There are no language barriers, since the L&E journals are in English. The most prestigious journals are also looking for articles with a national or international interest and L&E papers, like other theoretical or critical legal papers, are often general enough for that purpose. Thus, L&E is another potential course a scholar can take; not necessary more or less valuable then concentrating on any other legal subject or type of legal discourse. Thus, North Americans are much more likely than European lawyers to author and publish L&E papers.2
Very interesting stuff!


 
Confernce Announcement: Political Violence at Oxford--Updated
    OxCEPL Conference Announcement THE PHILOSOPHICAL JUSTIFICATIONS OF POLITICAL VIOLENCE DATES: 9-10 June 2006 (Friday and Saturday) TIME: 9.00-17.00pm VENUE: Oxford Centre for Ethics and Philosophy of Law, 12 Merton Street, Oxford Political violence is a pervasive and complex phenomenon. State and non-state actors alike resort to it in the name of a wide variety of purposes. Some use it as part of their struggles for better living conditions, fairer trade, international peace, or prevention of environmental destruction. Others take it as a means of disrupting or overthrowing unwanted governmental regimes and ruling ideologies. States sometimes invoke it to repress dissidents, suppress unruly minorities or, simply, to defend themselves or what they stand for. Strategies are countless, ranging on one side from civil disobedience to terrorism and armed struggle, and on the other, from intelligence and police interventions to all-out war. In a day and age in which the discussion of political violence is rapidly becoming a subject of public opprobrium, the Oxford Centre for Ethics and the Philosophy of Law invites you to attend a two-day international conference exploring some possible philosophical justifications of the practice in various contexts. Admission is free, but please register in advance by emailing Mr. François Tanguay-Renaud at francois.tanguay-renaud@balliol.ox.ac.uk. Lunch will be served on both days for those who would like to eat onsite (payable on each day). * * * CONFERENCE PROGRAMME (Abstracts are provided below)
      DAY 1 MORNING: The Case of Terrorism 9.00-10.30 CAJ Coady (Melbourne) – “Justifying Terrorism” 10.45-12.15 Michael Neumann (Trent) – “Terror and Expected Collateral Damage: The Case for Moral Equivalence” LUNCH: 12.15-13.30 AFTERNOON: Political Violence and the State 13.30-15.00 David Enoch (Hebrew) – “What's the Difference between Terrorist Acts and Targeted-killings? Intending Harm, Foreseeing Harm, and the State” 15.15-16.45 Shlomit Wallerstein (Oxford) – “The State’s Duty of Self-Defence: Justifying the Expansion of Criminal Law” DAY 2 MORNING: Civil Disobedience as Political Violence 9.00-10.30 Kimberley Brownlee (Manchester) – “Extremism in Political Protest” 10.45-12.15 Alon Harel (Hebrew) – “Resisting Violence: The Moral Status of the Refusal to Serve in the Army” LUNCH: 12.15-13.30 AFTERNOON: Overarching Issues 13.30-15.00 William A Edmundson (Georgia State) – “Group Deserts” 15.15-16.45 Thomas E Hill (UNC-Chapel Hill) – "Torture, Terrorism, and Kantian Values".


 
Kahn on Race Specific Medicines Jonathan D. Kahn (Hamline University - School of Law) has posted From Disparity to Difference: How Race-Specific Mecicines May Undermine Policies to Address Inequalities in Health Care (Southern California Interdisciplinary Law Journal, Vol. 15, p. 105, 2005) on SSRN. Here is the abstract:
    On June 23, 2005, the U.S. Food and Drug Administration (“FDA”) formally approved the heart failure drug BiDil to treat heart failure in “self-identified black patients.” The drug itself is not actually new; it is merely a combination of two generic drugs that have been used to treat heart failure for over a decade. BiDil's newness derives primarily from its public presentation as the world's first ethnic drug. This analysis begins with a consideration of the race-specific clinical trials that preceded the FDA approval and then moves on to elaborate upon some of the broader implications of BiDil in the context of genomic medicine and the politics of heath care. It briefly relates the story of how law and commerce played a central role in the emergence of BiDil as an “ethnic” drug. Then it explores the “strategic reification” of race as genetic in the context of BiDil and connects the drug to larger issues concerning genetics and the politics of difference in health care and perhaps beyond. In particular, the Article explores three areas in this process of reification: 1) the statistical manipulation of racial difference in drug development; 2) the conflation of racial difference with genetics; and 3) the relationship between genetic explanations of difference, market ideologies, and backlash against state action to redress racial injustice.


 
Eysenbach on Citation Rates for Open Access Scholarship Gunther Eysenbach1 (Centre for Global eHealth Innovation, University Health Network; and Department of Health Policy, Management and Evaluation, University of Toronto) has posted Citation Advantage of Open Access Articles on PLoS Biology. Here's the abstract:
    Open access (OA) to the research literature has the potential to accelerate recognition and dissemination of research findings, but its actual effects are controversial. This was a longitudinal bibliometric analysis of a cohort of OA and non-OA articles published between June 8, 2004, and December 20, 2004, in the same journal (PNAS: Proceedings of the National Academy of Sciences). Article characteristics were extracted, and citation data were compared between the two groups at three different points in time: at “quasi-baseline” (December 2004, 0–6 mo after publication), in April 2005 (4–10 mo after publication), and in October 2005 (10–16 mo after publication). Potentially confounding variables, including number of authors, authors' lifetime publication count and impact, submission track, country of corresponding author, funding organization, and discipline, were adjusted for in logistic and linear multiple regression models. A total of 1,492 original research articles were analyzed: 212 (14.2% of all articles) were OA articles paid by the author, and 1,280 (85.8%) were non-OA articles. In April 2005 (mean 206 d after publication), 627 (49.0%) of the non-OA articles versus 78 (36.8%) of the OA articles were not cited (relative risk = 1.3 [95% Confidence Interval: 1.1–1.6]; p = 0.001). 6 mo later (mean 288 d after publication), non-OA articles were still more likely to be uncited (non-OA: 172 [13.6%], OA: 11 [5.2%]; relative risk = 2.6 [1.4–4.7]; p < 0.001). The average number of citations of OA articles was higher compared to non-OA articles (April 2005: 1.5 [SD = 2.5] versus 1.2 [SD = 2.0]; Z = 3.123; p = 0.002; October 2005: 6.4 [SD = 10.4] versus 4.5 [SD = 4.9]; Z = 4.058; p < 0.001). In a logistic regression model, controlling for potential confounders, OA articles compared to non-OA articles remained twice as likely to be cited (odds ratio = 2.1 [1.5–2.9]) in the first 4–10 mo after publication (April 2005), with the odds ratio increasing to 2.9 (1.5–5.5) 10–16 mo after publication (October 2005). Articles published as an immediate OA article on the journal site have higher impact than self-archived or otherwise openly accessible OA articles. We found strong evidence that, even in a journal that is widely available in research libraries, OA articles are more immediately recognized and cited by peers than non-OA articles published in the same journal. OA is likely to benefit science by accelerating dissemination and uptake of research findings.
Not a suprise!
Thanks to Paul Caron for the cite!


Monday, May 15, 2006
 
Conference Announcement: Race, Crime & Citizenship at UCSB
    UCSB’S NEW RACIAL STUDIES PROJECT RACE, CRIME, & CITIZENSHIP SYMPOSIUM During this symposium, we will consider the contemporary criminal "justice" crisis as a racial phenomenon. Our goal is to reassert the importance of democracy, equality, and human rights in the organization and operation of the system. To that end, this symposium brings together scholars, students, activists, and grass-roots organizers, including formerly incarcerated persons, whose work helps us to better understand the macro-and micro-dimensions of the crisis and how best to challenge and change the contradictory nature of the American criminal "justice" system. THURSDAY, MAY 18 9:30-10:00 Continental Breakfast and Welcome Reception (MCC Lounge) 10:00-11:30 Panel I-Understanding “the Crisis”: Race, Justice Processes, and Democracy in the 21st Century (MCC Theater) Panelists: Elliott Currie, Department of Criminology, Law, and Society at the UC Irvine. Alexes Harris, Assistant Professor of Sociology, University of Washington Barry Krisberg, President, National Council on Crime and Delinquency Geoffrey Ward, Assistant Professor of Criminal Justice, Northeastern University 11:30-12:30 Lunch 12:30 -2:00 Panel II-Pathways to Freedom: Reclaiming Self, Community, and Citizenship Post-Incarceration (MCC Theater) Panelists: Glenn Martin, Co-Director, National H.I.R.E. Network, Legal Action Center Vivian Nixon, Founder, Re-Enter Grace Ministries and the College and Community Fellowship Tony Coleman, All of Us Or None Discussant: Nikki Jones, Assistant Professor of Sociology, UC Santa Barbara 2:30-4:00 Panel III–Sustainable Activism and Alliances for Change (MCC Theater) Panelists: Patrisse Cullors and Mark-Anthony Johnson, Labor/Community Strategy Center and the Bus Riders Union Sarah Haley, Dump Farallon Campaign, Yale University Gaye Johnson, Department of Black Studies, UC Santa Barbara Ralph Ambruster-Sandoval, Department of Chican@ Studies, UC Santa Barbara Moderator: Kaia Stern, Department of Black Studies, UC Santa Barbara and the Graduate Division of Religion, Emory University 5:00 Keynote Address: Kimberle' Williams Crenshaw, Professor of Law, UCLA Law School and Columbia Law School, "On Gendered Violence and Racialized Prisons: An Intersectional Tale of Two Movements" Introduction: Melvin Oliver, Professor of Sociology, UC Santa Barbara; Dean, Social Sciences Division, College of Letters and Sciences, UC Santa Barbara FRIDAY, MAY 19 10:00-11:30 Research Roundtable (MCC Lounge) 11:45-1:30 New Racial Studies “Brown Bag” Session: Beyond “the Crisis”? Race, Justice, and Citizenship in the 21st Century (MCC Lounge) Co-Moderators: Nikki Jones and Howard Winant Note: Lunch will be provided for symposium panelists. We encourage others who are interested in attending to bring their lunch to this session FOR MORE INFORMATION, SEE THE NRSP WEBSITE: www.newracialstudies.ucsb.edu


Sunday, May 14, 2006
 
Legal Theory Calendar
    Monday, May 15
    Tuesday, May 16
      Oxford Human Rights Discussion Group: Yossi Nehushtan, Religious Exemptions and the Limits of Liberal-Tolerance
      Oxford EC Law Discussion Group:: Erika Szyszczak, Balancing Values in the European Union
    Wednesday, May 17
    Thursday, May 18
      Oxford Jurisprudence Discussion Group: Geoffrey Gomery, Whose Autonomy Matters? Reconciling the Competing Claims of Privacy and Freedom of Expression
      Oxford Public International Law Discussion Group: Dr Edward Kwakwa, The Role of the International Lawyer in an International Organization
      Oxford Law Faculty Invited Seminars in Constitutional Theory 2006: Martin Loughlin, speaking on The Idea of Public Law, with comments from Paul Craig, Richard Ekins, Nick Barber
      Florida State Law: Jonathan Klick, Florida State University College of Law, "Incomplete Contracts and Opportunism in Franchising Arrangements" (joint w/ Larry Ribstein and Bruce Kobayashi)
      University of Arizona Law: Jack Chin, The Tyranny of the Minority
    Friday, May 19
      University of Texas Law: Derek Jinks (UT)


 
Legal Theory Lexicon: Primary and Secondary Rules
    Introduction Most law students begin to notice that there is a fundamental difference between the kinds of legal rules that come up in torts & criminal law, on the one hand, and the sorts of legal rules that arise in contracts, on the other. The rules of criminal law seem to define standards of conduct; they are about what you can and cannot do, or more precisely, rules that forbid certain conduct and then attach punishments for disobedience. The rules of contract law are different. It's true that contract remedies do provide sanctions (or prices) for breaking contracts, but most of contract law is about making contracts. In criminal law (and torts), the state makes up the rules of conduct. In contract law, the contracting parties are empowered to create their own rules of conduct.
    Once you've seen this distinction, you might then become interested in what legal theorists have to say about it. One of the most important views of this distinction was advanced by the great legal philosopher H.L.A. Hart, who classified the rules of tort and criminal law as "primary rules," and the rules of contract law as "secondary rules." This post is an introduction to the Hart's distinction between primary and secondary rules. As always, the Legal Theory Lexicon is aimed at law students, especially first-year law students, with an interest in legal theory.
    The Distinction Between Primary and Secondary Rules Hart's basic idea is quite simple. Primary rules are rules of conduct; they tell you what your are legally obligated to do (or refrain from) and what consequences attach to obedience or disobedience. Thus, the criminal law rules that prohibit theft, forbid certain conduct and provide for penalties for violating the prohibition. Technically, the class of secondary rules includes everything except primary rules. For example, secondary rules are legal rules that allow for the creation, extinction, and alteration of secondary rules; secondary rules are power-conferring rules. Thus, contract law empowers individuals and firms to make contracts; contracts themselves are usually collections of primary rules.
    More precisely, primary rules are rules that govern conduct, and secondary rules are rules that do not. Thus, the distinction between primary and secondary rules is just a bit different than the difference between duty-imposing and power-conferring rules: duty-imposing rules impose duties, whereas power-conferring rules confer power. This leaves open the possibility that some rules can regulate other rules, but do so by imposing duties. For example, a secondary rule might impose a duty to legislate in a certain way or a prohibition on certain kinds of rule creation.
    Some more examples may help:
      Examples of Primary Rules
      • Criminal prohibitions.
      • Tort rules.
      • The individual right to freedom of speech.
      • The provisions of contracts that define the primary obligations of the parties.
      • The environmental law rule that forbids discharge of toxic substances in rivers and streams.
      Examples of Secondary Rules
      • Contract law rules that enable parties to form contracts.
      • The rules that allow testators to create a will.
      • The constitutional rules that confer legislative powers on Congress.
      • The statute that authorizes the Supreme Court to promulgate rules of practice and procedure for the federal courts.
    The Practical Importance of Secondary Rules One of the really nifty things about Hart's introduction of the distinction between primary and secondary rules was his account as to why secondary rules are important. We can certainly imagine a system in which there were primary rules, but no secondary rules. This would be a system of customary law. Certain actions would be required; others would be taboo. But there would be no mechanism by which the set of obligations could be changed. Of course, customary law need not be completely static. It is is possible that customs might gradually change over time, but this process would require a change in social norms. It could not be legislated. Secondary rules enable relatively more rapid legal change at a lower cost. Moreover, secondary rules enable individuals to create customized primary rules that govern their private relationships or privately owned resources.
    Conclusion The distinction between primary rules of conduct and other, secondary rules is a crucial member of the legal theorist's toolbox. My own experience has been that I use this distinction to understand legal problems and arguments, but that it rarely plays a direct role in my own work. Primary and secondary rules are everywhere, and you need to understand the differenced between them, but you don't necessarily need to use the distinction when you construct normative legal arguments.
    One more thing. The place to go for a really thorough understanding of the distinction between primary and secondary rules is H.L.A. Hart's magnificent book, The Concept of Law--in my opinion, the most important work of legal theory in the twentieth century.


Saturday, May 13, 2006
 
Symposium Announcement: First Annual Opinio Juris Symposium: Challenges to Public International Law
    Opinio Juris Online Symposium 2006: Challenges to Public International Law Theme Statement As long as people have been writing about public international law, commentators have suggested that it is a system in crisis or somehow under stress. After a moment of optimism at the end of the Cold War, scholarship has returned to the challenges of international law. Opinio Juris is convening an on-line symposium to carefully consider just what these challenges may be: terrorism, hegemony, illegitimacy, or other topics that have not yet been fully explained. Is the problem that international law is too weak to make a difference or that its institutions are invasive to the point of being undemocratic? We invite the submission of manuscripts that have not yet been accepted for publication that consider one or more challenges facing international law. Call for Papers We invite junior faculty (i.e., pre-tenure), international practitioners, those entering the teaching market in 2006, and advanced law students (3Ls, LLM and JSD candidates) to submit papers that fit within our theme. The papers selected will be made available for public discussion on Opinio Juris. The writers of Opinio Juris and selected guest commentators will serve as on-line moderators and commentators for selected panels of papers. Panels will be devised according to the themes and topics, and authors will be given a platform to respond to comments and questions. Our goal is to provide an open forum for dissemination and discussion of new scholarship. We hope to give new scholars an opportunity to receive feedback on their scholarship prior to publication. The symposium will take place during the month of October 2006 over several selected dates. Submissions Deadline for submissions is September 15, 2006 (midnight GMT). Papers may be submitted from any country, but must be in English and should not exceed 35,000 words (including footnotes). Please submit your paper in electronic format to Professor Peggy McGuinness at McGuinnessM@missouri.edu prior to the deadline. Questions about the selection process should be addressed to Professor McGuinness.


 
Legal Theory Bookworm The Legal Theory Bookworm recommends Frontiers of Justice : Disability, Nationality, Species Membership (The Tanner Lectures) by Martha Nussbaum. Here is a blurb:
    Theories of social justice are necessarily abstract, reaching beyond the particular and the immediate to the general and the timeless. Yet such theories, addressing the world and its problems, must respond to the real and changing dilemmas of the day. A brilliant work of practical philosophy, Frontiers of Justice is dedicated to this proposition. Taking up three urgent problems of social justice neglected by current theories and thus harder to tackle in practical terms and everyday life, Martha Nussbaum seeks a theory of social justice that can guide us to a richer, more responsive approach to social cooperation. The idea of the social contract--especially as developed in the work of John Rawls--is one of the most powerful approaches to social justice in the Western tradition. But as Nussbaum demonstrates, even Rawls's theory, suggesting a contract for mutual advantage among approximate equals, cannot address questions of social justice posed by unequal parties. How, for instance, can we extend the equal rights of citizenship--education, health care, political rights and liberties--to those with physical and mental disabilities? How can we extend justice and dignified life conditions to all citizens of the world? And how, finally, can we bring our treatment of nonhuman animals into our notions of social justice? Exploring the limitations of the social contract in these three areas, Nussbaum devises an alternative theory based on the idea of "capabilities." She helps us to think more clearly about the purposes of political cooperation and the nature of political principles--and to look to a future of greater justice for all.


 
Download of the Week The Download of the Week is Internal Separation of Powers: Checking Today’s Most Dangerous Branch from Within by Neal Kumar Katyal. Here is the abstract:
    The standard conception of separation of powers presumes three branches with equivalent ambitions of maximizing their powers. Today, however, legislative abdication is the reigning modus operandi. Instead of bemoaning this state of affairs, this piece asks how “separation of powers” can be reflected within the Executive Branch when that branch, not the legislature, is making much law today. The first-best concept of legislature v. executive checks-and-balances has to be updated to contemplate second-best executive v. executive divisions. A critical mechanism to promote internal separation of powers is bureaucracy. Much maligned by both the political left and right, bureaucracy serves crucial functions: it creates a civil service not beholden to any particular Administration and a cadre of experts with a long-term institutional worldview. Executives and academics routinely malign bureaucracy as inefficient, but the inefficiency presumed in the Founders’ design of three overlapping branches needs some internal replication given the seismic shift in power to the Executive Branch. This Article therefore proposes a set of mechanisms that can create checks and balances within the Executive Branch. The apparatus of these restraints is familiar – separate and overlapping cabinet offices, mandatory review of government action by different agencies, civil-service protections for their workers, reporting requirements to Congress, and an impartial decisionmaker to resolve inter-agency conflicts. The idea is to create a more textured conception of the Presidency than either the unitary executivists or their critics espouse.
Download it while its hot!


Friday, May 12, 2006
 
Friday Calendar


Thursday, May 11, 2006
 
Rossi on State Executive Lawmaking in Crisis Jim Rossi (Florida State) has posted State Executive Lawmaking in Crisis on SSRN. Here is the abstract:
    Courts and scholars have largely overlooked the constitutional source and scope of state executive agency power to avert and respond to crisis. This Article addresses how perceived legal barriers to executive authority under state constitutions can and do have major consequences beyond a state's borders during times of crisis. It proposes to empower state executives to address federal and regional goals without any previous authorization from the state legislature - a presumption of state executive lawmaking, subject to state legislative override, which would give a state or local executive expansive lawmaking authority within its system of government to address national and regional goals during times of crisis. Part I examines the structure of decision making by state executives during times of interstate crisis, with a particular emphasis on the constitutional structure under which state executives manage crises and the tensions presented in sharing crisis authority with federal regulators. Successful interstate crisis management under the current system requires a Governor to declare an emergency under state law and, in the course of doing so, to assert more constitutional authority than a state otherwise affords. State executive decisions during times of emergency are not always on solid constitutional ground, however, as it may be perceived that a state legislature retains the ability to constrain the executive or that federal law preempts state action. Part II argues that the constitutional basis for a strong state executive during times of crisis is stronger than the case for a strong national executive during emergencies. I argue that state executives possess inherent authority to address crisis, including lawmaking and budgetary authority, notwithstanding potential separation of powers or implied preemption limits on the state executive. Regardless of constitutional text, broad executive powers must extend to proactive acts of crisis aversion as well as to responses to events. Taking away judicial review at the state level during such times comes at a very small cost so state courts should have little or no role in managing such emergency powers, which can be self-policed by the state legislature. While the approach of this Article is to suggest a solution based on state constitutional interpretation, which ideally would be endorsed by state courts, its analysis also recommends an approach for state legislatures as they consider state emergency management statutes as well as for Congress as it considers national emergency management legislation statutes.


 
Thursday Calendar
    Florida State University Law: Jeffrey Staton, Florida State University Political Science Department, Substitutable Protections: Socioeconomic Vulnerabilities and Credible Commitment Devices
    University of London, Institute of Philosophy: Paul Mcnamara (New Hampshire), Supererogation and Utilitarianism Revisited: An inroad to the structure of commonsense morality
    Forum for European Philosophy, London: Joanna Zylinska, of swans and ugly ducklings: bioethics between humans, animals and machines
    Oxford Law Faculty, Invited Seminars in Constitutional Theory: Professor Joseph Jaconelli, ‘The Nature and Obligatory Force of Constitutional Conventions’
    University College, London, Current Legal Problems Lecture: Prof Cheryl Saunders (Univeristy of Melbourne), 'Comparative Constitutional Law in the Courts: is there a Problem?'


 
Welcome to the Blogosphere . . . . . . to Info/Law by Willaim McGeveran & Derek Bambauer:
    What is Information Law? We see it as an obvious convergence of intellectual property doctrine, communications regulation, First Amendment norms, and new technology. As information becomes the most precious commodity of the 21st century, the law surrounding it will have to evolve. That’s what we want to talk and think about here — along with various related and not-so-related threads (hey, “information” covers a lot of ground!).


 
Solove on the Jurisprudence of the Multistate Bar Exam Daniel Solove (George Washington) has posted The Multistate Bar Exam as a Theory of Law (104 Michigan L. Rev. 1403 (2006)) on SSRN. Here is the abstract:
    What if the Bar Exam were read as a work of jurisprudence? What is its theory of law? How does the Bar Exam compare to works of jurisprudence by H.L.A. Hart, Ronald Dworkin, Karl Llewellyn, and others? This short tongue-in-cheek book review of the Bar Exam seeks to answer these questions. Professor Solove writes: “Each year, thousands of lawyers-to-be ponder over it, learning its profound teachings on the meaning of the law. They study it for months, devoting more time to it than practically any other jurisprudential text. It therefore comes as a great surprise that such a widely read and studied work has barely received scholarly attention. . . . It is time to rectify this situation and put the Bar Exam in its place as the great work of jurisprudence that it is.”


 
Conference Announcement: Origins of Consciousness at San Marino
    THE SAN MARINO DEBATES IN CONTEMPORARY THOUGHT The Origin of Consciousness: Perspectives from Neuroscience. Friday, October, 27th - Sunday, October, 29th, 2006. Christopher Frith and Christof Koch A three days workshop at the Center for Semiotics and Cognitive Studies of the University of San Marino will give Christopher Frith and Christof Koch, two leading thinkers in neuroscience and cognitive sciences, the opportunity for presenting and confronting their views and arguments. The debate will follow Leibnizian rules: an interdisciplinary panel will challenge the debaters to explore all aspects of the problem. The debate is sponsored by The University of San Marino's Center for Semiotics and Cognitive Studies, founded by Umberto Eco, and currently directed by Patrizia Violi. More information: http://www.philosophy.ucf.edu/sanMarino.html


Wednesday, May 10, 2006
 
Wednesday Calendar
    University College, London: Matthew Festenstein (Sheffield), Scepticism and the Politics of Identification
    Institute of Education, London: Doret de Ruyter (Amsterdam), Can we Assist Children to Become Happily Flourishing Adults?
    Oxford Discussion Group on Organised Crime and Corruption Seminar Series: Dr Silvia Palano, Unemployment and Organised Crime in Southern Italy
    Oxford Criminology Seminar Series: Laura Piacentini, The Spatial System of Russian Penality
    Oxford Centre for Criminology:The Right Honourable Lord Phillips of Worth Matravers, Lord Chief Justice of England and Wales, Alternatives to Custody
    University College, London/Bindmans Annual Debate: 'Free Speech and the Political Process', Panellists:
      Clare Short MP Beatrice Mtetwa, Winner, Index Law Award 2006 David Leigh, Investigations Editor, Guardian John Lloyd, Financial Times


 
Conference Announcement: Metaethics at Cambridge
    One-day conference on METAETHICS Topics in Metaethics are among the most discussed and contested topics in contemporary moral philosophy. In particular, there are three issues which are especially salient and will be the focus of this conference: moral realism/anti-realism, practical reason and normativity in ethics. The conference brings together leading contributors to the debates in Metaethics in order to consolidate and advance the positions held on these issues. The proceedings of the conference will be published as a special theme issue of the Journal of Moral Philosophy. Date: 18th November 2006 Time: 10.30h-18.30h. Venue: King's College, Cambridge Panel 1: Moral Realism Prof. R. Shafer-Landau (Wisconsin); Dr. M. Ridge (Edinburgh) Panel 2: Practical Reason Prof. J. Broome (Oxford); Dr. A. Hills (Bristol) Panel 3: Normativity in Ethics Prof. O. O'Neill (Cambridge) Dr. T. Pink (King's College London) REGISTRATION FEE: £ 10.00 (WAGED)/£ 5.00 (UNWAGED). (Please note that neither fee includes lunch or dinner or any accommodation) The registration form and a provisional timetable can be found at http://www.phil.cam.ac.uk/metaethics_nov06/metaethics_nov06.htm. The Conference is generously supported by the Research Centre of King's College; the Faculty of Philosophy, Cambridge; the Journal of Moral Philosophy. Any queries or questions should be directed to Dr Fabian Freyenhagen (fcf21@cam.ac.uk).


 
Berenson on Liebman on Levi, Kalven, Llewellyn, Kurland, and Davis Bradford A. Berenson has a review of George Liebmann’s The Common Law Tradition: A Collective Portrait of Five Legal Scholars. Here's a taste:
    At the center of the book are biographical and bibliographical surveys of five law professors from the University of Chicago in the 1960s: its Dean, Edward H. Levi; Harry Kalven, Jr., who collaborated with sociologists on empirical studies of the American jury in the Chicago Jury Project; legendary contracts scholar and father of the Uniform Commercial Code Karl Llewellyn; constitutional law professor Philip Kurland; and the original serious student of the theory and practice of administrative law, Kenneth Culp Davis. Liebmann was a student at Chicago during the time these five men taught, and he appears to have been personally acquainted with all of them. His portraits are therefore admiringly rendered, salted with enough anecdote and personal reflection to keep the reader’s attention.


Tuesday, May 09, 2006
 
Tuesday Calendar
    London School of Economics, Miranda Fricker (Birkbeck), the virtue of testimonial justice in the state of nature
    Oxford, HLA Hart Memorial Lecture: Jules L. Coleman (Yale Law School), 'The Internal Point of View'


 
DeGirolami on Religious Prisons Marc O. DeGirolami (Columbia University) has posted The New Religious Prisons and Their Retributivist Commitments (Arkansas Law Review, 2006) on SSRN. Here is the abstract:
    The rise of the religious, or faith-based, prison at the turn of the twenty-first century bears witness to the remarkable resilience of religion in shaping the philosophy of punishment. In the last decade, prisons that incorporate religion in various ways have sprouted around the country and there are strong, albeit preliminary and inconclusive, indications that inmates who participate in religious instruction and "programming" recidivate at significantly lower rates than those who do not. The early success of these programs (and, some say, the preferential treatment accorded to participants in them) has resulted in high demand and long waiting lists. Spurred by its initial success, Florida has recently opened its second faith-based prison, this one for women, and more such programs are presently being planned and implemented. Religious prisons raise serious questions of constitutionality and effectiveness, and most of the critical commentary to date has focused either on the considerable Establishment Clause concerns or the programs' inconclusive recidivism results. This article explores the criminological commitments of religious prisons. Though religious prisons serve rehabilitative aims, this article emphasizes the importance of their retributive goals - what Professor R.A. Duff has termed the censure-communicating purpose of punishment and the Three 'R'S of Punishment, repentance, reform, and reconciliation - in justifying the use of religious programming in prisons. The paper offers an argument to skeptics who claim that religious programming serves no purpose absent an unequivocal showing of rehabilitative effectiveness. It claims that even if the evidence of reduced recidivism has been inflated or manipulated, as many critics claim, religious programming may be justified theoretically by reference to its potential for a special manifestation of penitential retribution that might advance secular ends.


 
Anderson on Corporate LIability and the Laws of War Kenneth Anderson (Washington College of Law, American University) has posted Kenneth Anderson Declaration on Issues of the Laws of War, Corporate Liability and Other Issues of International Law in Agent Orange ATS Litigation, November 2004 (VIETNAM ASSOCIATION FOR VICTIMS OF AGENT ORGANE/DIOXIN, ET AL., V. THE DOW CHEMICAL COMPANY, ET AL., United States Court Eastern District of New York, Judge Jack B. Weinstein, November 2, 2004) on SSRN. Here is the abstract:
    This 2004 expert declaration was offered on behalf of defendant corporations in Agent Orange litigation heard before Judge Jack Weinstein in 2005 as part of an Alien Tort Statute action by Vietnamese individuals and associations. I have posted it to SSRN because of the numerous requests I have had for it, and as it has been cited in scholarship. The Declaration starts by offering a basic discussion of the sources of international and in particular customary international law and the meaning and role of opinio juris, and their relation to ATS cases following the Sosa case. It then addresses laws of war issues relevant to the use of Agent Orange in the Viet Nam War - the discussion focuses on the law in the 1960s, but frequently draws comparisons to contemporary law of war. It has a special discussion of proportionality in the law of jus in bello, both then and now. The declaration further offers a detailed discussion of the meaning of poison and poisoned weapon in the context of the Hague Regulations of 1907, the 1925 Geneva Protocol, and the Chemical Weapons Convention, among others. The Declaration then turns and takes up the question of corporate liability in international law, taking the view that it does not exist, and that ATS cases in US courts have created from whole cloth both civil liability in international law as well as liability for corporate, rather than individual, actors. It does so by analyzing relevant portions of the Nuremberg cases, and concludes by pointing out that although several important international law treaties, including the Statute of the International Criminal Court, have affirmatively considered corporate liability, in fact it has not been created in international law, despite numerous opportunities to do so. This portion of the Declaration has been particularly of interest to scholars examining corporate liability and ATS cases.


 
Katyal on Internal Checks and Balances Neal Kumar Katyal (Georgetown University Law Center) has posted Internal Separation of Powers: Checking Today’s Most Dangerous Branch from Within (Yale Law Journal, Vol. 115, 2006) on SSRN. Here is the abstract:
    The standard conception of separation of powers presumes three branches with equivalent ambitions of maximizing their powers. Today, however, legislative abdication is the reigning modus operandi. Instead of bemoaning this state of affairs, this piece asks how “separation of powers” can be reflected within the Executive Branch when that branch, not the legislature, is making much law today. The first-best concept of legislature v. executive checks-and-balances has to be updated to contemplate second-best executive v. executive divisions. A critical mechanism to promote internal separation of powers is bureaucracy. Much maligned by both the political left and right, bureaucracy serves crucial functions: it creates a civil service not beholden to any particular Administration and a cadre of experts with a long-term institutional worldview. Executives and academics routinely malign bureaucracy as inefficient, but the inefficiency presumed in the Founders’ design of three overlapping branches needs some internal replication given the seismic shift in power to the Executive Branch. This Article therefore proposes a set of mechanisms that can create checks and balances within the Executive Branch. The apparatus of these restraints is familiar – separate and overlapping cabinet offices, mandatory review of government action by different agencies, civil-service protections for their workers, reporting requirements to Congress, and an impartial decisionmaker to resolve inter-agency conflicts. The idea is to create a more textured conception of the Presidency than either the unitary executivists or their critics espouse.
Highly recommended!


 
Chen on Wickard v. Filburn Jim Chen (University of Minnesota Law School) has posted Filburn's Legacy (Emory Law Journal, Vol. 52, p. 1719, 2003) on SSRN. Here is the abstract:
    Wickard v. Filburn, 317 U.S. 111 (1942), represented a pivotal moment in the Supreme Court's effort to determine the scope of Congress's power [t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes. Together with NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937), and United States v. Darby, 312 U.S. 100 (1941), Filburn is widely thought to have market a turning point in commerce clause jurisprudence. Under Chief Justice William Rehnquist, the Supreme Court severely undermined what had been regarded as the post-New Deal consensus on the scope of Congress's commerce power. This reconsideration of commerce clause doctrine warrants careful reexamination of Wickard v. Filburn. This article tells the story of Wickard v. Filburn. After providing a brief survey of American agriculture and its regulation between the World Wars, this article describes the specific controversy over Roscoe Filburn's 1941 wheat crop. In its own time, Wickard v. Filburn represented merely one component of the New Deal Court's commerce clause jurisprudence. Greater turmoil over the commerce clause at the turn of the twenty-first century has breathed life into Filburn. This article therefore examines not only what Filburn meant at the time of its decision, but also what it represents in our time.
Highly recommended!


 
Goldberg on Scalia, Kripke, and Wittgenstein Daniel Goldberg (University of Texas Medical Branch - Galvenston) has posted I do not Think it Means what you Think it Means: How Kripke and Wittgenstein's Analysis on Rule Following Undermines Justice Scalia's Textualism and Originalism on SSRN. Here is the abstract:
    In this article, I attempt a phenonmenological analysis of Justice Antonin Scalia’s hermeneutics of textualism and originalism. The prism for the analysis is the later philosophy of Wittgenstein, as interpreted by Saul Kripke. I argue first that the objective of textualism and originalism is to constrain the parameters of interpretation. However, I argue that this is simply impossible, for several reasons. First, I argue that Kripke’s ‘skeptical paradox’ establishes rule indeterminacy, and second, even if I am wrong, Wittgenstein’s later philosophy simply rejects the notion of rule-following that is central to Justice Scalia’s hermeneutics. I conclude by sketching a pragmatic conception of what judges actually do in deciding cases, drawing on Dewey, James, and Posner.


Monday, May 08, 2006
 
Monday Calendar
    London School of Economics, Steven E Roads (Virginia), taking sex differences seriously
    Oxford Centre for Socio-Legal Studies Seminar Series: Denis Galligan, "Regulation revisited"
    University College, London, Constitutional Law Group: 'A Modest (but Robust) Defence of Statutory Bills of Rights'
      Professor Jeremy Webber, Canada Research Chair in Law and Society, Faculty of Law, University of Victoria; Director, Consortium on Democratic Constitutionalism; Visiting Professor of Law, University of New South Wales. Respondents: Professor Keith Ewing, Law Dept, KCL & Professor Richard Bellamy, Politics Dept, UCL
Tuesday, May 9
    London School of Economics, Miranda Fricker (Birkbeck), the virtue of testimonial justice in the state of nature
    Oxford, HLA Hart Memorial Lecture: Jules L. Coleman (Yale Law School), 'The Internal Point of View'


 
Call for Papers: Yale Law Journal
    CALL FOR DEBATE The Yale Law Journal announces a unique call for submissions. Hoping to enliven legal discourse through forthright engagement between academics, the Journal seeks to publish two Articles engaged in a dialogue on a single compelling legal topic. Selected Articles will bepublished in the same issue in the spring of 2007. Because we would like the Articles to speak to each other, we strongly encourage scholars tosubmit pieces in development rather than completed pieces ready for submission and publication.We are particularly interested in thoroughly researched but partially written pieces that willevolve in response to one another. That said, we are willing to consider fully developed piecesal ready suitable for submission as Articles or Essays if the authors are willing to edit their piecesto respond to each other. The pieces will be selected on their scholarly merits and theirlikelihood of provoking debate. Each Article, once completed, should be between 20,000 and25,000 words in length, including footnotes. Interested authors should seek out a colleague in their field with a differing viewpoint who will join them in this project. For excellent examples of such debates, see John Manning, Textualism and the Equity of the Statute, 101 COLUM. L. REV. 1 (2001); William N. Eskridge, Jr., All AboutWords: Early Understandings of the “Judicial Power” in Statutory Interpretation, 1776-1806, 101 COLUM. L. REV. 990 (2001); and John Manning, Deriving Rules of Statutory Interpretation from the Constitution, 101 COLUM. L. REV. 1648 (2001) or see Cass R. Sunstein & Adrian Vermeule, Is Capital Punishment Morally Required? Acts, Omissions, and Life-Life Tradeoffs, 58 STAN. L. REV. 703 (2005); Carol S. Steiker, No, Capital Punishment Is Not Morally Required: Deterrence, Deontology, and the Death Penalty, 58 STAN. L. REV. 751 (2005); John J.Donohue & Justin Wolfers, Uses and Abuses of Empirical Evidence in the Death Penalty Debate, 58 STAN. L. REV. 791 (2005); and Cass R. Sunstein & Adrian Vermeule, Deterring Murder: A Reply, 58 STAN. L. REV. 847 (2005). There is no subject matter limitation for submissions, but the topic should be both contentious and suitable to thorough and engaging discussion. Each submission should include a partially developed paper of at least 5000 words and theauthor’s curriculum vitae. The interlocutor should include a prospectus of at least 1200 words,as well as a curriculum vitae. Please send proposals via e-mail in MS Word format to the Features & Symposium Committee at features@yalelawjournal.org. The subject line should read: Debate Proposal: [Title]. All submissions must be received by August 1, 2006, and the Journal will respond by August 15.


 
Bouchers on Same Sex Marriage & Full Faith Credit Patrick Joseph Borchers (Creighton University School of Law) has posted The Essential Irrelevance of the Full Faith and Credit Clause to the Same-Sex Marriage Debate (Creighton Law Review, Vol. 38, p. 353, 2005) on SSRN. Here is the abstract:
    Although the Full Faith and Credit Clause is often assumed by the popular press and some legal commentators to impose a mandatory duty on states to recognize same-sex marriages validly celebrated in another state, this common assumption is clearly false. States have always retained the power to refuse to recognize some out-of-state marriages that violate their expressions of public policy. This has happened with, for example, marriages involving underage spouses or marriages that violate a state's consanguinity rules. Marriages do not stand on the same constitutional footing as litigated judgments. As a result, whether a state chooses to recognize a same-sex marriage celebrated in another state is a function of the recognizing state's law and its conflict-of-laws principles and not a matter of constitutional compulsion.


 
Levinson & Peng on Behavioral Economics & Cultural Difference Justin D. Levinson and Kaiping Peng (University of Hawaii at Manoa - William S. Richardson School of Law and University of California at Berkeley) has posted Valuing Cultural Differences in Behavioral Economics on SSRN. Here is the abstract:
    Behavioral economic research has tended to ignore the role of cultural differences in economic decision-making. The authors suggest that a systematic bias affects existing behavioral economic theory - cognitive biases are often assumed to be universal. To examine how cultural background informs economic decision-making, and to test framing effects, morality effects, and out-group effects in a cross-cultural study, the authors conducted an experiment in the United States and China. The experiment was designed to test cultural and cognitive effects on a fundamental economic phenomenon - how people estimate the financial values of objects over time. Results of the experiment demonstrated dramatic cultural differences in financial value estimations, as well as on the influence of variables such as framing effects. Chinese participants made higher object value estimates than Americans did, even when adjusting for differing national inflation rates. In addition, the results showed that contextual information, such as framing, morality information, and group membership affected judgments of financial values in complex ways, particularly for Chinese participants. The results underscore the importance of understanding the influence of cultural background on economic decision-making. The authors discuss the results in the context of behavioral law and economics, and propose that importing cultural competence into behavioral models can lead to cognitive debiasing, both temporary and permanent.


 
Kahn on Parallelism and Horizontal Equity Jeffrey H. Kahn (Santa Clara University - School of Law) has posted The Mirage of Equivalence and the Ethereal Principles of Parallelism and Horizontal Equity (Hastings Law Journal, Vol. 57, p. 645, 2006) on SSRN. Here is the abstract:
    It is universally accepted that “fairness” is an essential requirement of a good tax system. What constitutes fairness, however, is a more complex question than is generally perceived. One expression of perceived fairness is the concept of “horizontal equity,” which provides that persons with equivalent amounts of income should pay the same amount of tax. A related, but narrower concept is what I refer to as “parallelism” - that is, the same or equivalent receipts, expenditures or losses should be treated the same by the tax law. One aspect of parallelism, which is the focus of this Article, is the notion that if the reimbursement of an expenditure or loss is excluded from the recipient’s income, the same type of expenditure or loss that is not reimbursed should be fully deductible. Clearly, parallelism should be taken into account in evaluating the merits of some tax provisions. To take it into account, however, does not mean that it must prevail over other legitimate goals of the tax law with which the parallelism concept conflicts. This insight and the analysis of specific provisions have led me to conclude that not only is parallelism not always compelled, it is not always desirable. Each instance of nonparallel treatment of the tax law should be examined separately to determine whether there are competing principles that outweigh the goal for parallel treatment. This Article will examine a number of provisions where the tax law fails to provide parallel treatment for certain reimbursed and unreimbursed expenditures or losses. In each case, I will examine the relevant considerations and reflect on the questions of the proper role of the parallelism concept in the tax system and of the appropriate weight to be accorded that concept.


 
Meese on the Ghose of Perfect Competition Alan J. Meese (College of William and Mary) has posted Market Failure and Non-Standard Contracting: How The Ghost of Perfect Competition Still Haunts Antitrust (Journal of Competition Law and Economics, Vol. 1, No. 1, pp. 21-95, 2005) on SSRN. Here is the abstract:
    During antitrust’s “inhospitality era,” courts and expert agencies condemned any number of non-standard agreements as “unlawful per se” or nearly so. More recently, courts and agencies have repudiated or softened many such per se rules. In so doing courts and agencies have invoked the lessons of Transaction Cost Economics (TCE), which holds that most non-standard agreements are efforts to economize on the cost of relying upon the market to conduct economic activity. At the same time, courts and agencies continue to enforce other per se rules against conduct that TCE deems presumptively beneficial. Moreover, courts and agencies conduct rule of reason analysis in a manner that is unduly hostile to claims that a restraint is in fact an effort to reduce transaction costs and overcome market failure. Finally, current standards governing alleged monopolization are unduly biased against non-standard contracts that disadvantage a monopolist’s rivals. Where antitrust doctrine is concerned, the transaction cost revolution is hardly complete. This article seeks an explanation for antitrust’s original and continued hostility toward non-standard agreements. The article finds that explanation in price theory’s model of perfect competition. Some have attributed the inhospitality tradition to price theory’s “technological” conception of the firm and a resulting belief that efficiencies necessarily arose within individual firms. While descriptively accurate, this account does not explain why economists failed to recognize that agreements between firms could overcome market failure and thus generate non-technological efficiencies. The article finds the explanation in the inhospitality era’s methodological habit of assuming that “perfect competition” and “market failure” could coexist, and that market failure could thwart the optimal allocation of resources that perfect competition would otherwise produce. This habit equated market failure with a failure of a perfectly competitive market to produce efficient outcomes. By eliminating market failure, then, the state could restore the optimal allocation of resources that perfect competition would otherwise produce. Thus, this methodological habit framed the problem to be solved in a way that blocked the recognition that non-standard contracts could overcome market failure, since such contracts themselves caused a departure from one or more of perfect competition’s assumptions and also facilitated activities, like advertising, that were not necessary under the perfect competition model. To be sure, Professor Coase’s “Problem of Social Cost” undermined the assumption that market failure and perfect competition can co-exist. Coase and other practitioners of TCE also explained how non-standard contracts could make an imperfectly competitive economy more competitive by overcoming market failure. Nonetheless, the perfect competition model still haunts much antitrust thinking. Discussion of “the economics of antitrust” almost always begin with the perfect competition model, and departures from perfect competition are viewed as sources of market power that can only be justified by some offsetting efficiency. While non-standard contracts are often viewed as potentially beneficial, they are rarely characterized as methods of overcoming market failure but are instead characterized as methods of reducing costs, analogous to the realization of technological efficiencies. This oversight helps explain the lingering bias against such restraints.


Sunday, May 07, 2006
 
Legal Theory Calendar
    Monday, May 8
      London School of Economics, Steven E Roads (Virginia), taking sex differences seriously
      Oxford Centre for Socio-Legal Studies Seminar Series: Denis Galligan, "Regulation revisited"
      University College, London, Constitutional Law Group: 'A Modest (but Robust) Defence of Statutory Bills of Rights'
        Professor Jeremy Webber, Canada Research Chair in Law and Society, Faculty of Law, University of Victoria; Director, Consortium on Democratic Constitutionalism; Visiting Professor of Law, University of New South Wales. Respondents: Professor Keith Ewing, Law Dept, KCL & Professor Richard Bellamy, Politics Dept, UCL
    Tuesday, May 9
      London School of Economics, Miranda Fricker (Birkbeck), the virtue of testimonial justice in the state of nature
      Oxford, HLA Hart Memorial Lecture: Jules L. Coleman (Yale Law School), 'The Internal Point of View'
    Wednesday, May 10
      University College, London: Matthew Festenstein (Sheffield), Scepticism and the Politics of Identification
      Institute of Education, London: Doret de Ruyter (Amsterdam), Can we Assist Children to Become Happily Flourishing Adults?
      Oxford Discussion Group on Organised Crime and Corruption Seminar Series: Dr Silvia Palano, Unemployment and Organised Crime in Southern Italy
      Oxford Criminology Seminar Series: Laura Piacentini, The Spatial System of Russian Penality
      Oxford Centre for Criminology:The Right Honourable Lord Phillips of Worth Matravers, Lord Chief Justice of England and Wales, Alternatives to Custody
      University College, London/Bindmans Annual Debate: 'Free Speech and the Political Process', Panellists:
        Clare Short MP Beatrice Mtetwa, Winner, Index Law Award 2006 David Leigh, Investigations Editor, Guardian John Lloyd, Financial Times
    Thursday, May 11
      University of London, Institute of Philosophy: Paul Mcnamara (New Hampshire), Supererogation and Utilitarianism Revisited: An inroad to the structure of commonsense morality
      Forum for European Philosophy, London: Joanna Zylinska, of swans and ugly ducklings: bioethics between humans, animals and machines
      Oxford Law Faculty, Invited Seminars in Constitutional Theory: Professor Joseph Jaconelli, ‘The Nature and Obligatory Force of Constitutional Conventions’
      University College, London, Current Legal Problems Lecture: Prof Cheryl Saunders (Univeristy of Melbourne), 'Comparative Constitutional Law in the Courts: is there a Problem?'
    Friday, May 12
      University of London, Instiute for Philosophy: One-Day Conference: In pursuit of reason: Joseph Raz on reason and value, with John Gardner, Mark Kalderon, Niko Kolodny, David Owens, Joseph Raz
    Saturday, May 13
      Oxford Law Faculty, The 29th Blackstone Lecture: The Rt. Hon. Lord Justice Sedley (Privy Councillor), Sex, Libels and Video-surveillance


 
Legal Theory Lexicon: The Internal Point of View
    Introduction How can we look at a legal system? H.L.A. Hart famously deployed the distinction between external and internal perspectives on a legal system in his famous book, The Concept of Law. This post provides a very brief introduction to this distinction for law students (especially first-year law students) with an interest in legal theory.
    Internal and External What is the difference between internal and external perspectives on the law? Obviously, we are dealing with a metaphor here. The idea is that one can look at the law from the inside or from the outside. Even if you have never encountered this distinction before, the intuitive idea is fairly clear. The internal point of view is the perspective of participants in the system. Thus, the internal point of view is paradigmatically the point of view of legal officials (such a judges). The external point of view is the perspective of outsiders. Thus, the external point of view is paradigmatically the point of view of a sociologist or anthropologist from a different culture, who observes the legal system.
    Here are some examples:
      --Doctrinal theories (e.g. a theory of the Commerce Clause of the United States Constitution) are usually stated from the internal point of view. This is the kind of theory that law students usually encounter early in their legal education.
      --Causal theories (e.g. a public-choice theory that explains why a particular area of law has come to be the way it is) are usually stated from the external point of view. In first-year law school courses, causal theories are usually stated in a very compact, even off-hand form. There may be a brief classroom discussion of the causal forces that shaped a particular legal doctrine, but it is fairly rare actually to read social science literature on topics like this.
    The General Significance of the Internal Point of View The idea of the internal point of view plays a particular role in H.L.A. Hart's theory of law, but this post is about a related but distinct topic--the more general role that the internal/external distinction plays in legal theory. Newbie legal theorists need to know this distinction in order to avoid a very serious mistake in theory development. That mistake is to slide between the internal and external point of view. This mistake is actually quite easy to make. The theorist is working within the internal point of view--describing a particular legal doctrine from the point of view of lawyers and judges who work within the constraints of the doctrine. Then, the theorist slides into an explanation as to how the law came to be the way it is--describing the operation of political or economic pressures--and then slides back to the doctrinal level--drawing the conclusion that the law should be interpreted differently in light of the causal explanation. Arguments like this can be made to work, but unless the relationship between the causal explanation and the doctrinal consequence is explained carefully, this kind of move can easily involve a category mistake. Causal explanations (of how the law has come to be the way it is) are usually irrelevant from the internal point of view.
    Rules and the Internal Point of View The internal point of view may have additional significance to legal theorists. One can argue that legal rules cannot be described from a purely external point of view. Huh? Imagine that you are an anthropologist from Mars, observing an earthly legal system. You would be able to note various regularities in behavior, but so long as you stuck to the purely external point of view, you would not be able to say anything about the content of the laws. In order to do that, you would need to ask the question "What is the meaning of the these legal texts and actions?" And to say anything about meaning, you would need to assume (at least hypothetically) something like the internal point of view. You would need to ask the question, "What does these behaviors are markings mean to those who are inside the practice of law?"
    If this argument is correct, then important consequences follow. Legal theorists are interested in legal theory. If the internal point of view is a necessary prerequisite for understanding the legal significance of the behavior of legal actors, then it would seem to follow that all legal theory requires that the theorist be able to assume the internal point of view at the stage where the theorist describes the legal phenomenon that are the object of study.
    Let me give an example of this rather abstract point. Suppose you want to develop a causal theory of tort law. You want to argue that there is an economic explanation of the emergence of negligence (as opposed to strict liability) as the primary standard of care in tort. The details of the theory don't matter, but let's assume you believe that inefficient legal standards create incentives for litigation and that a quasi-evolutionary process leads to the selection of efficient standards. And of course, you would need to argue that negligence is efficient. This theory is primarily stated from the external point of view, but it also relies on the legal meaning of the distinction between "negligence" and "strict liability"--concepts that can only be understood from the legal point of view.
    The central idea here is that the external point of view can describe the behavior of legal actors, but the internal point of view is required to understand the meaning of legal actions.
    Conclusion The distinction between the internal and external point of views is one of the basic ideas in legal theory. When you first begin to construct theories about the law, you should ask yourself, "Am I looking at this area of the law from the internal point of view or am I taking a perspective that is external to the law?" For more on theory construction, you might also want to look at an earlier post in the Legal Theory Lexicon series: Legal Theory Lexicon 016: Positive and Normative Legal Theories


Saturday, May 06, 2006
 
Legal Theory Bookworm The Legal Theory Bookworm recommends An Introduction to Rights by William A. Edmundson. Here's a blurb:
    This accessible introduction to the history, logic, moral implications, and political tendencies of the concept of rights is organized chronologically. Covering such important events as the French Revolution, it is well-suited as an introductory-level, undergraduate text in such courses as political philosophy, moral philosophy, and ethics. The volume can also be used in courses on political theory in departments of political science and government, and in courses on legal theory in law schools.
And on the subject of rights, you might also consider Theories of Rights edited by Jeremy Waldron. This is a very nifty anthology, with several classic papers.


 
Download of the Week The Download of the Week is Constitutional Fidelity, the Rule of Recognition, and the Communitarian Turn in Contemporary Positivism by Matthew Adler (Penn). Here is the abstract:
    Contemporary positivism has taken a communitarian turn. Hart, in the Postscript to the Concept of Law, clarifies that the rule of recognition is a special sort of social practice: a convention. It is not clear whether Hart, here, means "convention" in the strict sense elaborated by David Lewis, or in some weaker sense. A number of contemporary positivists, including Jules Coleman (at one point), Andrei Marmor, and Gerald Postema, have argued that the rule of recognition is something like a Lewis-convention. Others have suggested that the rule of recognition is conventional in a weaker sense - specifically, by figuring in a "shared cooperative activity" (SCA) among officials. Chris Kutz, Scott Shapiro, and Jules Coleman (more recently) have adopted this model. This Article criticizes the Lewis-convention and SCA models of the rule of recognition, drawing on U.S. constitutional theory. Imagine a society of U.S. officials who are committed to the text of the 1787 Constitution in a strong form: each official would continue to accept the text as supreme law even if every other official defected to an alternative text, and no official is prepared to bargain or negotiate with the others about the supremacy of the text. The social practice among these officials is neither a Lewis-convention (since there is no alternative text to which every official would shift if every other official did), nor an SCA (since the officials have no general intention to “mesh” their conceptions of legal validity with each other, and in particular have no intention to compromise with officials who deny the supremacy of the 1787 text). Therefore, under the Lewis-convention and SCA models, a hypothetical society of U.S. officials who are committed, first and foremost, to the 1787 text rather than to the community of officials, is not a full-fledged legal system. But this is deeply counterintuitive. The hypothetical society simply embodies, in a particularly pure form, an attitude of fidelity to the 1787 text that many officials and citizens currently profess. The tension between the Lewis-convention and SCA models of the rule of recognition, and constitutional fidelity, points the way to a different model of the rule of recognition: namely, that the rule of recognition is a social norm.
Download it while its hot!


Friday, May 05, 2006
 
Friday Calendar
    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"


 
Lupu & Tuttle on Federalism & Faith Ira C. Lupu and Robert W. Tuttle (George Washington University Law School and George Washington University Law School) have posted Federalism and Faith (Emory Law Journal, Randolph W. Thrower Symposium, Interactive Federalism: Filling the Gaps, Vol. 56, No. 1, 2006) on SSRN. Here is the abstract:
    Should the U.S. constitution afford greater discretion to states than to the federal government in matters affecting religion? In recent years, a number of commentators have been asserting that the Establishment Clause should not apply to the states. Justice Thomas has embraced this view, while offering his own refinements to it. Moreover, the Supreme Court’s decision in Locke v. Davey (2004) ruled that a state did not run afoul of the Free Exercise Clause when it refused to subsidize religious studies, in a context in which the Establishment Clause would have permitted the subsidy. This paper offers a focused (re)consideration of federalism and faith. Part I offers a succinct look at federal-state relations on the subject of religion prior to Reconstruction. Part II confronts the constitutional developments that emerged from the Civil War and Reconstruction, and traces the Reconstruction story into the 20th century, when the Supreme Court first applied the Religion Clauses to the states. Part III then briskly chronicles the rise of Separationist interpretations of both Religion Clauses, and the incomplete recession to narrow interpretations of the Religion Clauses that mark the past several decades. Part IV represents our contextualized effort to add value to the conversation about faith and federalism. State discretion over religion policy is a function of two considerations - the substantive content of the First Amendment, and the extent to which the First Amendment binds the states. In order to test a series of intuitions about faith and federalism, we analyze in Part IV a series of three problems– one in which the state pursues Separationist goals, and the other two in which the state appears to be promoting or aiding religion. Part IV considers these problems within three, distinct regimes of federalism: 1) the current regime of full incorporation of the First Amendment’s Religion Clauses; 2) a regime in which the states remain bound by the Free Exercise Clause but are liberated from the Establishment Clause; and 3) an imagined regime of partial incorporation, designed to maintain core non-Establishment norms while explicitly expanding state discretion in the periphery of non-Establishment. We believe that exploration of these problems, and of contrasting regimes of state discretion, will cast considerable light on what is at stake in the battle over federalism and faith.


 
Rodriguez on the Properly Political Project of Administrative Law Daniel B. Rodriguez (University of San Diego School of Law) has posted Delegation, Risk Diversification, and the Properly Political Project of Administrative Law (Harvard Law Review Forum, Vol. 116, 2006) on SSRN. Here is the abstract:
    This essay replies to a recent article by Professor Matthew Stephenson, “Legislative Allocation of Delegated Power: Uncertainty, Risk, and the Choice between Agencies and Courts, 119 Harvard Law Review 1035 (2006). In his article, Professor Stephenson develops a model to explain why and in what circumstances Congress delegates regulatory power to agencies rather than courts. This reply essentially picks up where Stephenson leaves off, considering more fully the relationship between Congressional instrument choice and the (oft neglected) political project of administrative law.
Highly recommended!


 
Guthrie on Anchoring and Negotiation Chris Guthrie (Vanderbilt University - School of Law) has posted Anchoring, Information, Expertise, and Negotiation: New Insights from Meta-Analysis (Ohio State Journal on Dispute Resolution, 2006) on SSRN. Here is the abstract:
    In this article, we conduct a meta-analysis of studies of simulated negotiations to explore the impact of an initial "anchor," typically an opening demand or offer, on negotiation outcomes. We find that anchoring has a significant impact on the deals that negotiators reach. We also explore whether negotiator experience and the information environment mitigate the influence of anchoring. We conclude by offering prescriptive advice, both "offensive" and "defensive," to negotiators.


 
Levinson versus Tillman on Congressional Continuity Sandy Levinson has psoted Assuring Continuity of Government on SSRN. Here is the abstract:
    This is a short comment on Seth Barrett Tillman's MODEL CONTINUITY OF CONGRESS STATUTE. I am a great admirer of Tillman's work. There are few people who are so interested in, and knowledgeable about, the consequences of what most people unfortunately dismiss as the minutiae of constitutional procedure. The problem he has now turned his attention to -- how to assure a functioning Congress in case of catastrophic disasters -- is extremely important, and his model statute provides the basis for what should be a continuing conversation. In any event, whether or not Seth Barrett Tillman has delivered the last word on what a framework statute should look like, which is almost certainly not the case, he has given us a very valuable first cut at a precise delineation of what might work to preserve our Republican Form of Government even under extreme conditions. This is a signal act of good citizenship, as well as of careful lawyering. I hope that his proposal gets the attention that it deserves.
And Seth Tillman has posted Overruling INS V. Chadha: Advice on Choreography -- A Reply to Professor Sanford V. Levinson. Here is the abstract:
    This article is published in conjunction with my MODEL CONTINUITY OF CONGRESS STATUTE. Professor Sanford V. Levinson in a comment, appearning with the MODEL, has voiced legal and prudential objections to my proposed statutory solution. This Reply responds to those objections.


Thursday, May 04, 2006
 
SSRN versus BE Press Check on Dan Markel's bepress and SSRN: Part II and BEPress vs. SSRN? with quotes from the leadership of both services. Very interesting.
If I might be permitted an observation, I understand SSRN's rationale for taking search engine results to abstracts rather than papers, but it does seem to me that full-text searching of papers (and not just abstracts) is crucial.


 
Blogging from Cambodia? Hopefully, Legal Theory Blog will continue the next few days from Siem Reap--the jumping off point for Angkor Wat and a variety of less famous archeological sites in Cambodia. If not, the blog will resume as soon as possible. Thanks for your understanding.


 
Thursday Calendar
    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"


 
Adler on Constitutional Fidelity & the Rule of Recognition Matthew Adler (Penn) has posted Constitutional Fidelity, the Rule of Recognition, and the Communitarian Turn in Contemporary Positivism on SSRN. Here is the abstract:
    Contemporary positivism has taken a communitarian turn. Hart, in the Postscript to the Concept of Law, clarifies that the rule of recognition is a special sort of social practice: a convention. It is not clear whether Hart, here, means "convention" in the strict sense elaborated by David Lewis, or in some weaker sense. A number of contemporary positivists, including Jules Coleman (at one point), Andrei Marmor, and Gerald Postema, have argued that the rule of recognition is something like a Lewis-convention. Others have suggested that the rule of recognition is conventional in a weaker sense - specifically, by figuring in a "shared cooperative activity" (SCA) among officials. Chris Kutz, Scott Shapiro, and Jules Coleman (more recently) have adopted this model. This Article criticizes the Lewis-convention and SCA models of the rule of recognition, drawing on U.S. constitutional theory. Imagine a society of U.S. officials who are committed to the text of the 1787 Constitution in a strong form: each official would continue to accept the text as supreme law even if every other official defected to an alternative text, and no official is prepared to bargain or negotiate with the others about the supremacy of the text. The social practice among these officials is neither a Lewis-convention (since there is no alternative text to which every official would shift if every other official did), nor an SCA (since the officials have no general intention to “mesh” their conceptions of legal validity with each other, and in particular have no intention to compromise with officials who deny the supremacy of the 1787 text). Therefore, under the Lewis-convention and SCA models, a hypothetical society of U.S. officials who are committed, first and foremost, to the 1787 text rather than to the community of officials, is not a full-fledged legal system. But this is deeply counterintuitive. The hypothetical society simply embodies, in a particularly pure form, an attitude of fidelity to the 1787 text that many officials and citizens currently profess. The tension between the Lewis-convention and SCA models of the rule of recognition, and constitutional fidelity, points the way to a different model of the rule of recognition: namely, that the rule of recognition is a social norm.
This is an interesting and important paper. My sense is that the objections that Adler (and others) have raised to SCA & Lewis convention models are difficult to answer. I find the "social norm" account attractive--and indeed have argued for something along these lines, with an Aristotelian twist. As always, Adler's work is careful and sophisticated. Highly recommended!


 
Serkin on Local Governments and the Takings Clause Christopher Serkin (Brooklyn) has posted Big Differences for Small Governments: Local Governments and the Takings Clause on SSRN. Here is the abstract:
    This Article argues that the Fifth Amendment's Takings Clause should apply differently to local governments than to higher levels of government. The Takings Clause is at the heart an increasingly contentious property rights debate. On one side are property-rights advocates who argue for expanding government liability for takings of private property. On the other are proponents of deference to government regulation. More often than not, the terms of the debate have focused on a traditional economic account of the Takings Clause. Property-rights advocates argue that expanding the compensation requirement is necessary to force the government to internalize the costs of its actions, ensuring that regulations will occur only where benefits exceed costs. Others, however, argue that governments respond to political and not monetary costs so that a compensation requirement will not influence government decision-making in any predictable way. Public choice theorists, in particular, argue that regulations are more likely to result from special interest group rent-seeking, while costs are passed on to taxpayers generally. Where the public choice theory critique applies, compensation will not serve as a meaningful check on regulatory incentives. This Article argues that the strength of the public choice critique rises and falls with the level of government. Local governments are largely majoritarian and specifically responsive to local homeowners. Because local governments also receive most of their revenue from local property taxes, forcing local governments to compensate under the Takings Clause will, in fact, force them to internalize the costs of their actions. However, local governments' regulatory incentives are subject to their own specific distortions. Local governments are risk averse so that the prospect of a large takings judgment may over-deter them from acting. Local government regulations also tend to impose significant positive and negative externalities on neighboring communities. This Article therefore proposes (1) ratcheting down compensation for takings by local governments to account for their risk aversion, and (2) creating a form of inter-governmental liability to allow local governments to capture the positive externalities of their actions and force them to pay for the negative externalities.


 
Sandefur on Kelo Timothy Sandefur (Pacific Legal Foundation) has posted Mine & Thine Distinct: What Kelo Says About Our Path on SSRN. Here is the abstract:
    In Kelo v. New London, the United States Supreme Court allowed state officials to seize homes and businesses and transfer the property to private owners for development, even though the Constitution declares that government may only take property “for public use.” Kelo was greeted with popular outrage and calls for political reform. But few commentators have discussed the fact that it represents a fundamental change in American political philosophy. In 1829, the Supreme Court said that “a legislative act to transfer the property of A. to B. without his consent” had been “resisted as inconsistent with just principles, by every judicial tribunal in which it has been attempted to be enforced.” But by 1978, the Court held that the Constitution does not require compensation when a person’s property is taken for “some public program adjusting the benefits and burdens of economic life to promote the common good,” and in Kelo, the Court held: “Promoting economic development is a traditional and long accepted function of government.” In this article, I explore the political philosophy underlying this change. I begin with the influence of John Locke, Thomas Hobbes, and William Blackstone on early American courts, and how these courts were divided regarding the boundaries on state power. I then describe the abandonment of Lockean philosophy during the Progressive era, and conclude with a discussion of how this debate is reflected in Kelo and its dissents, and how addressing eminent domain in the wake of Kelo requires philosophical as well as political change.


 
Hasen on Voting Rights Act Renewal Check out The Coming Battle (in Congress or the Supreme Court) Over Renewal of the Expiring Provisions of the Voting Rights Act by Rick Hasen. Here's a taste:
    What is the constitutional issue? In a nutshell, the question (at least as applied to section 5; there may be other questions with the language requirements of section 203) is whether Congress has the power to continue to require preclearance of the Voting Rights Act absent a great deal of evidence of a continued intentional discrimination by the covered jurisdictions. As I've explained in detail in this law review article, the Supreme Court has narrowed Congressional power in recent years to pass laws enforcing the Fourteenth and Fifteenth Amendments. It requires Congress when regulating the states under these powers to produce evidence of intentional state discrimination to justify the law, and to show that the remedy is "congruent and proportional" to the violations by the states.


Wednesday, May 03, 2006
 
Hershovitz on Two Models of Torts (and Takings)--Updated with Link Fixed Scott Hershovitz (University of Michigan law) has posted Two Models of Torts (and Takings) on SSRN. Here is the abstract:
    Since the publication of The Cost of Accidents, the model of costs has been the dominant approach to tort theory. On the model of costs, tort law promotes efficiency by requiring agents to internalize the costs they impose on others when it is efficient to do so. Despite its success, the model of costs is deeply puzzling. Positive externalities are as inefficient as negative externalities. Therefore, if the model of costs provides a good explanation of tort law, one would expect that we would also have a legal regime oriented towards the recapture of the benefits we confer on others. In some instances, restitution allows the recapture of positive externalities, but compared to tort it is a trifling part of the law. Part One of this Essay explores attempts to explain law’s harm-benefit asymmetry from the perspective of the model of costs. I argue that the economic explanations offered to date are, in a variety of respects, unsatisfying. In Part Two, I explain an alternative model of torts, the model of harms. On this model, tort responds to the harms that we inflict on one another, rather than the costs that we impose on one another. I show how harms are different from costs, and I explain how conceiving of tort law as an institution concerned with harms rather than costs make better sense of both tort doctrine and law’s harm-benefit asymmetry. Part Three explores takings jurisprudence, which exhibits its own harm-benefit asymmetry. The Constitution requires the government to pay just compensation when it takes property. Abraham Bell and Gideon Parchomovsky have argued that we ought to have a givings jurisprudence, which would require the government to impose a fair charge when it gives away property. I argue that Bell and Parchomovsky’s suggestion makes sense only from the perspective of the model of costs, and that the model of harms better explains the takings jurisprudence we actually have. I show that, like tort law, constitutional takings jurisprudence responds to the harm that government inflicts when it takes property, rather than the costs it imposes.
By the way, Hershovitz appears in the entry-level hiring report--scroll down! This is an elegant and deeply interesting article. What struck me, on a first read, was the way in which the paper focused on tort theory and not on property theory, as the basic framework for analysis. The problem of external benefits is, of course, at the very heart of theorizing about the decision to create property rights. Take intellectual property as an example. Without intellectual property rights, those who create new literary works or new inventions would confer external benefits on those who copy the work or invention. Without patent or copyright laws, these external benefits cannot be captured; so authors and inventors lack incentives. Intellectual property law allows the external benefits to be captured in the price chaged for permission to copy the work of authorship or to practice the invention. As the case of intellectual property law shows, the asymmetry that Hershovitz identifies, does not operate uniformly throughout the law: the law sometimes creates property rights in order to incentivize the creations of external benefits. This suggests a slighly different angle on Hershovitz's problem: the question might be framed, not as a questoin about tort remedies for the capture of external benefits ex post, but as a question about the creation of property rights that would create a legal regime for the capture of external benefits ex ante. Of course, in intellectual property law, the question about whether we should create property (and also about how long and strong the right should be) is complicated because consumption of intellectual property is usually nonrivalrous and hence pricing purchases incentives to create at the cost of pricing out consumers of the intellectual property--a dead weight loss. Some of the examples that Hershovitz discusses are of this sort:
    The National League’s long-defunct Detroit Wolverines lost a similar suit in 1886.30 The Wolverines’ home was Recreation Field. An adjacent property owner named Deppert erected bleachers on top of his barn, which overlooked the stadium, and he sold tickets that allowed patrons to watch Wolverine games. The Wolverines argued that Deppert was profiting at the expense of the club. They sought injunctive relief, which the court denied.
This is, of course, a case in which the sports team has created a good--the performance--and the consumption that the neighbor seeks to enable through the construction of the bleachers is nonrivalrous. So the real question is whether the Wolverines should have an intellectual property right in their performance--in the "game" as analaglous to a work of authorship.
This brings me round to a more general question. Tort law prices the imposition of certain harms, whereas property law creates entitlements enforceable by injunction. The model of costs--or more generally, normative law and economics--is generally willing to create property rights to enable those who create positive externalities to capture benefits, if it can be shown that the incentives are optimal (or more loosely, necessary to provide incentives to create the external benefit). So one way of approaching Hershovitz's problem is to ask, "Why not property?" That is, if there is a case for incentivizing the creation of the external benefit, why not create a property right? The answer to this question may shed some light on the further question: if a property right is not optimal, why not a tort remedy? I really liked this article, is is highly recommended!


 
YLJ's Pocket Part The Yale Law Journal's Pocket Part has an essay John Cornyn, Immigration Reform: Back to the Future with responses by Alvaro Bedoya and Annie Decker. The YLJ is doing us all a service by attempting to integrate the traditional law review with online publication. Take a look!


 
Wednesday Calendar
    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


 
Call for Papers: What's Ahead on Highway 101 at George Washington
    WHAT'S AHEAD ON HIGHWAY 101? November 3, 2006 The George Washington University Law School Washington DC Sponsored by: Oracle Corporation and The George Washington University Law School The George Washington University Law School (GW) and Oracle Corporation are pleased to sponsor a one-day symposium on the revival of statutory subject matter rejections in computer-related art, with special attention to the new PTO Guidelines and recent Supreme Court developments, at GW on November 3rd, 2006. This will be the sixth symposium that GW has co-sponsored with Oracle on patent issues of particular concern to industry, academics, and policy makers. Attendees and speakers have included government officials (including federal judges, legislative staff, and PTO officials), leading academics, and practicing attorneys. The presentations have been directed to an audience already well informed on the subject, and thus able to consider the issues at an advanced level of analysis. The goal of each of the past symposia has been to inspire new thoughts and stimulate discussion on the selected topic in patent law. To help achieve this goal, writing grants have been awarded to selected academics. The only restrictions on content are the scope of the topic (it must be directed to the symposium’s designated topic) and quality of the work (it must be of publishable quality). The academic writing grants, depth of analysis, and freedom afforded the authors have been distinguished these symposia from other conferences. The sixth symposium in this series will focus on the revival of statutory subject matter rejections in computer-related art, with special attention to the new PTO Guidelines and recent Supreme Court developments. After a trilogy of decisions of first impression, the Court abandoned the field to the Federal Circuit, which developed a somewhat distinctive jurisprudence of its own, only to abandon efforts to chart out a boundary between statutory subject matter and non-statutory subject matter in computer-related art in the late 1990s. The PTO vacillated and then remained quiescent until it revived the “technological arts” rejection in Ex Parte Bowman in 2001, only to reject the “technological arts” doctrine in 2005 in In re Lundgren and the PTO’s new Guidelines for statutory subject matter. As yet, the Federal Circuit has not spoken on the PTO’s current views. Request for Papers; Grants: To stimulate critical academic thinking in this area, Oracle will provide a writing grant plus a travel expense stipend to one or more selected law school faculty members for writing a publishable paper and attending and presenting the paper at the symposium. Papers can address substantive legal principles and/or economic principles regarding punitive measures for patent infringement; proposals for resolution of issues and for solving problems; and/or related policy considerations. GW and Oracle intend to seek post-symposium publication of the papers as a group. Conditions for Grant Proposals 1. Grants: Oracle will provide a $7,000 grant plus a $500 travel expense stipend (as necessary) to selected proposal writers, in advance, conditioned on (i) completion and submission of a timely law review quality publication that addresses substantive legal principles and/or economic principles, focusing on the revival of statutory subject matter rejections in computer-related art with special attention to the new PTO Guidelines and recent Supreme Court developments,; and (ii) attendance and presentation of the paper at a Symposium co-sponsored by The George Washington University Law School and Oracle (“Sponsors”). The Symposium will be held on November 3rd, 2006, at The George Washington University Law School in Washington, D.C. Oracle reserves the sole discretion to determine the number of grants awarded. All proposals must be received by Oracle by July 15th, 2006. Grantees will be notified by August 1st, 2006. Essays must be received by Oracle before October 1s! t, 2006 substantially in final form. 2. Eligibility: Any faculty member of an accredited university may submit a proposal. 3. Proposal Format Requirements: All proposals must be no more than three (3) typed, one-sided 8.5 x 11 inch pages. All soft copy must be in MS Word for Windows, Adobe PDF, HTML formatted, or ASCII text. 4. Proposal DEADLINE: Proposals must be received by Oracle before July 15th, 2006. 5. Copyright and Publication: Submission of a proposal constitutes grant of a nonexclusive, irrevocable, and fully paid-up license under all applicable law worldwide to use and publish the all or any part of the submitted essay for any purpose and in any medium anywhere in the world, now existing or later developed, and to use the grantee’s name and photograph without royalty or additional consideration. The license further provides Oracle with the right of first publication of the submitted essay alone or with one or more of the other selected essays in a law review or similar academic journal. The license does not prohibit grantees from seeking subsequent publication of their submitted essays elsewhere, but each such publication must acknowledge the Oracle Grant and may not otherwise refer to Oracle or use the Oracle name for any other purpose. 6. Proposals must be sent by e-mail attachment to: madelman@law.gwu.edu FOR ADDITIONAL INFORMATION CONTACT: Professor Martin J. Adelman PHONE: (202) 994-7703 FAX: (248) 356-7554 e-mail: madelman@law.gwu.edu


Tuesday, May 02, 2006
 
Tuesday Calendar
    Oxford Human Rights Discussion Group: Caoilfhionn Gallagher, Proportionality in Practice
The Calendar is winding down as exam periods begin and most American law schools' workshop schedules go on hiatus. Some events continue in the UK and elsewhere, and I'll keep the calendar going for a few more weeks.


 
Rappaport & McGinnis on the Judicial Filibuster John McGinnis & Michael Rappaport have posted The Judicial Filibuster, the Median Senator, and the Countermajoritarian Difficulty on SSRN. Here is the abstract:
    In this essay, we explore the effects of the application of the filibuster to judicial confirmations. We conclude that the judicial filibuster has fundamental implications for both the composition of the courts and nature of constitutional law. If employed, the filibuster will change the kind of judges who are confirmed and so over time reshape the Supreme Court itself. We argue that the filibuster will lead to more moderate judges. With the help of spatial models from the political science literature, we contend that supermajority confirmation rules, of which the filibuster rule is an example, will tend to make justices more moderate, where moderate means having a jurisprudential view closer to the view held by the median Senator. We thus identify an apparent paradox that a supermajority rule for judicial confirmation actually furthers the views of the legislative majority. We also analyze the Filibuster Deal, an agreement of 14 moderate Senators designed to preserve the filibuster. We contend that the deal furthered the political self-interest of this group, because the filibuster generates the appointment of the moderate judges that these Senators support. We also make predictions about how the key terms in the deal will be interpreted. Our argument that the filibuster rule generates more moderate judicial appointments also suggests that the rule will temper the countermajoritarian difficulty - the problem created by an unelected judiciary invalidating the decisions of the popularly elected branches. We maintain that a supermajority confirmation rule that generates appointments that accord with the median senator's view is also more likely to produce judges who act based on a majority of the public's view of judicial review. In this way, judicial review would be more likely to impose the limitations on popular government that a majority of the people desire. In developing this argument, we unpack the countermajoritarian difficulty into three components - jurisprudential, temporal, and confirmational. Finally, we use our framework to explicate other important features of the confirmation process. We show that the presence of a filibuster rule will lead the President to select more stealth nominees, but that such nominees will still tend to be more moderate than those nominated under majority confirmation rules. We also show that whether a filibuster occurs will depend on a variety of factors; that nominees for the court of appeals are more likely to be filibustered than the Supreme Court nominees; that filibusters are more likely toward the end of the President's term; and that the decision whether to filibuster a nominee will depend on expectations about future nominees and the type of reputation the Senate minority wants to develop.
This is an important paper on an important topic. Highly recommended!


 
Belle Lettre on the Impossible Dream If you are interested in, but do not yet have, a career in the legal academy you may enjoy The Impossible Dream by the literate and always interesting Belle.


 
Call for Papers: American Politics Research, Special Issue on Courts and Judicial Process
    CALL FOR PAPERS American Politics Research announces a call-for-papers for a special issue on Courts and Judicial Process to be published early-to-mid 2007. The journal welcomes papers that investigate Supreme Court or lower court decision-making; the politics of Supreme Court or lower court appointments; organized interests and their role in court decision-making; the attitudinal model; agenda setting and certiorari decisions; adherence to precedent; as well as empirical studies of court decision-making in specific venues of the law, including apportionment and redistricting, abortion, equal protection, searches and seizures, free speech and obscenity; property rights and regulatory takings; and other weighty constitutional matters. Papers on courts and interbranch relations as well as papers on state court decision-making are also welcome. Submissions for consideration for the special issue are due on July 1, 2006. Papers received prior to the deadline will be placed under review upon receipt and first-round decisions will be made on a rolling basis. Send submissions electronically to James G. Gimpel, Editor, American Politics Research, at apr@gvpt.umd.edu. Articles should be approximately 25 typewritten, double-spaced pages, with footnotes, references, tables, and charts on separate pages. Except in unusual circumstances, manuscripts over 45 pages will not be reviewed. Authors should closely follow the Publication Manual of the American Psychological Association (5th Edition). Because manuscripts are reviewed anonymously, two copies should be submitted. The first should include the author's name, institutional affiliation, and contact information. The second should be a completely anonymous version of the paper, in which authors should avoid all identifying text references. Please visit the APR website (www.bsos.umd.edu/gvpt/apr) for additional information and instructions.


Monday, May 01, 2006
 
Muller on Blogging Eric Muller has a very good post entitled The Puzzling Case of "Mixed" Lawprof Blogs. I think I agree with almost everything Eric says. Here's a bit from his post:
    In any case, Larry's thesis – that lawprof bloggers who blog about law as well as lots of other stuff will confuse their readership and drive them away, and that their blogs will therefore fade away – appears to be incorrect, or at least incomplete. Something surely explains why certain "mixed" lawprof blogs are among the most successful blogs in the blogosphere, even among lawprofs and other consumers of legal scholarship, and something surely explains why right-of-center ones do a whole lot better than left-of-center ones.
I need to clarify my point--which was ambiguous. I certainly agree with Eric that blogs like The Volokh Conspiracy or Althouse are not likely to fade away. The point I was trying to make was a bit different--that serious scholarship is not likely to take the form of blogging unless it is rewarded. But blogging is not likely to be recognized as serious scholarship by university administrations in the "mixed form" that characterizes many of the successful lawprof blogs. I'm not suggesting that law professors won't blog about the law unless their blogging counts as scholarship--there are lot's of good reasons to reach a wide audience with commentary that aims at the op/ed audience. My point is that blogging is unlikely contain truly serious academic content on a sustained basis unless it can somehow "count as scholarshp". Read Eric's post.


 
Welcome to the Blogosphere . . . . . . to Pushpin Pundit by Mark Stein. Interesting stuff, including this:
    According to amazon.com, a revised edition of ASU will be published in December, 2006. It will be interesting to see what changes are made in the revised edition, especially as Nozick’s views followed a zig-zag course after publication of the original edition.


 
Monday Calendar


 
Book Announcement: Justification by Boltanski and Thévenot
    On Justification: Economies of Worth by Luc Boltanski and Laurent Thévenot, Translated by Catherine Porter To read the entire book description or a sample chapter, please visit: http://pup.princeton.edu/titles/8182.html A vital and underappreciated dimension of social interaction is the way individuals justify their actions to others, instinctively drawing on their experience to appeal to principles they hope will command respect. Individuals, however, often misread situations, and many disagreements can be explained by people appealing, knowingly and unknowingly, to different principles. On Justification is the first English translation of Luc Boltanski and Laurent Thévenot's ambitious theoretical examination of these phenomena, a book that has already had a huge impact on French sociology and is likely to have a similar influence in the English-speaking world. Paper | $39.50 / £26.95 | ISBN: 0-691-12516-3 Cloth | $85.00 / £55.00 | ISBN: 0-691-11837-X


 
Conference Announcement: John Stuart Mill at Samobor
    John Stuart Mill and His Philosophical Legacy. Symposium on the Occasion of 200th Birth Anniversary of John Stuart Mill
    The Society for the Advancement of Philosophy and the Department of Philosophy of Studia Croatica at the University of Zagreb is organizing an international symposium John Stuart Mill and his Philosophical Legacy on the occasion of 200th Birth Anniversary of J. S. Mill. The symposium is intended to gather philosophers and other related scholars, mainly from Central Europe, whose papers deal with various aspects of Mill’s philosophical work, primarily his ethics and political philosophy. However, we welcome any paper on Mill’s influence on the later development of philosophy as well as contemorary philosophical debates, not only within the field of ethics and political philosophy, but also in other philosophical disciplines such as epistemology, logics and others. The symposium is to be held from 8th-10th, May 2006, in Samobor, a pictoresque town of great historical tradition, situated 20 kilometers from Zagreb, the capital city of Croatia. The official language is English.