Legal Theory Blog

All the theory that fits!


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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Tuesday, September 30, 2003
Weatherall on Geographic Indicators & Trademark Kim Weatherall has a good post on geographic indicators and trademark law. Bologna, anyone? And while you're at it, scroll down for Weatherall's post on dilution theory.

McCarthy on Trademark Thomas McCarthy (University of San Francisco) presents Recent Developments in Trade Mark Law in the United States and Australia today at the University Sydney.

Zittrain on the Effect of RIAA Mistakes I just caught up with the first case in which the RIAA misidentified a defendant in their litigation offensive against P2P. Here is a link to the Boston Globe story, which quotes Jonathan Zittrain as follows:
    Jonathan Zittrain, an associate professor of Internet law at Harvard Law School, said the dismissal shows that the record companies may find it tough to prevail if their lawsuits go to court. Their legal strategy assumes that most defendants will settle rather than fight, and the lawsuits are so damaging to their public image that they cannot afford protracted legal battles with alleged file-swappers, he added. ''This is a very high-stakes strategy for the record companies,'' he said. ''It's either going to work in the short term, or they're going to have to pull the plug on it.''
And there is also a New York Times story, which speculates about the reason for the mistake:
    An official of Mrs. Ward's Internet service provider, Comcast, said that the company had investigated the case and that it gave the right name associated with the Internet identifier, known as an I.P. number, that the industry lawyers demanded. But like many service providers, Comcast issues its I.P. numbers "dynamically," with the numbers shifting each time a user goes online. Both Comcast and the recording industry group say they can accurately trace the I.P. number back to a single user; nonetheless, identifying a particular user can be tricky.
All of this courtesy of Mary Hodder at bIPlog.

Ayers on Do Not Call Lists Ian Ayers (Yale Law School) has a good op/ed in the New York Times, suggesting compensated listening as solution to the Do Not Call imbroglio.

ACLU v. RIAA Courtesy of Will Baude of Crescat Sententia, this news:
    In a move that could complicate the RIAA's pursuit of peer-to-peer pirates, the American Civil Liberties Union said Monday it had filed court documents accusing the trade association of illegally using thousands of subpoenas to unmask alleged copyright infringers. The recording industry's subpoenas, filed under the Digital Millennium Copyright Act (DMCA), violated due process and constitutional rights shielding Internet users' anonymity, the ACLU claims.
As Baude observes, "This is not, of course, going to help the fight for copynorms."

Smith Turns off the Lights Steven Smith (University of San Diego - School of Law) has posted Recovering (From) Enlightenment? on SSRN. Here is the abstract:
    The American Constitution at its founding is often associated with "the Enlightenment," and modern liberal constitutionalism continues to be associated with what Bruce Ackerman refers to as "the spirit of the Enlightenment." This article contrasts the essential features of the classical or historical Enlightenment with those of the modern Enlightenment, as reflected in the thinking of theorists like Rawls, Dworkin, and others and as embodied in a good deal of modern constitutional doctrine. The article argues that the modern Enlightenment is more accurately viewed as an inversion than a continuation of the classical Enlightenment. Moreover, this inversion threatens to undermine the historic constitutional commitments - to freedom of speech, freedom of conscience, individual rights, and equality. Hence, those who are concerned to maintain the historic constitutional commitments might naturally wish for a recovery of the classical Enlightenment. But the prospects for such a recovery are not promising. And the principal obstacle to any such recovery is . . . the modern Enlightenment.

Wendel on Law and Disagreement W. Bradley Wendel (Washington and Lee Law School) has posted Civil Obedience (forthcoming Columbia Law Review) on SSRN. This paper promises to be very interesting. Here is the abstract:
    This paper is an attempt to construct a theory of legal ethics that takes justified moral disagreement as a central, rather than a marginal case. It assumes that people disagree in good faith about rights, justice, and moral obligations, but must nevertheless find a way to leave together in a stable, ordered society. The framework for resolving disagreement in an orderly fashion is obviously the law, which provides the benefit of coordinated collective action in the face of moral disagreement. In a reasonably well functioning democracy, the law also treats people who disagree with one another respectfully, by providing fair procedures for resolving disputes. Although we may disagree about specific moral issues, as citizens we all share the following beliefs: (1) people disagree in good faith about what rights and duties we should have, (2) our views about the matter in question are just that - our views, and not conclusive of the debate, (3) we need to treat others in the public debate with respect, and not act peremptorily toward them, and (4) the disagreement must end somewhere, and we need to move on. Because of our shared interests in interacting peacefully with those with whom we disagree, we have a reason to respect the resolution of moral questions provided by the law. For this reason, the law is authoritative for citizens over a wide domain of contestable moral issues. This conception of authority owes a great deal to Joseph Raz, as well as Jeremy Waldron's recent book Law and Disagreement. In order for a complex, highly technical body of law to perform this coordination function for ordinary citizens, there must be a body of experts who interpret and apply the law - that is, lawyers. Lawyers have a difficult dual role. They are ordinary moral agents in the same way as citizens, but they are also administrators of the legal system. My claim is that the moral agency of lawyers must be subordinated to their obligation to treat the law as an authoritative resolution of moral disputes, even in cases where the lawyer believes the law is morally wrong. This claim stands in contrast with many academic legal ethicists, who treat lawyers as ordinary moral agents first, and administrators of the law second. For example, Deborah Rhode argues that "[l]awyers can, and should, act on the basis of their own principled convictions, even when they recognize that others could in good faith hold different views." This position is incompatible with the coordination function of the law, which replaces the principled convictions of individuals with a distinctive social position on the matter, which is nevertheless authoritative for individuals. Lawyers commit a moral wrong, vis-a-vis the second-order moral reasons to treat the law as authoritative, if they act directly on the basis of their own principled convictions, rather than deferring to a legal rule on point. This sounds like the familiar "dominant view" of legal ethics, in which lawyers are supposed to serve as zealous advocates of their clients' interests, regardless of contrary moral considerations. My position differs significantly from the dominant view, however, in treating the law, rather than the preferences of clients, as the principal consideration for lawyers to take into account in their ethical deliberation. Lawyers who treat the law only instrumentally, as a "cost of doing business" which may be disregarded by a client intent on manipulating the law, undermine the capacity of law to serve as a stable framework for coordinated social action in the face of disagreement. In an Enron-type case involving "aggressive" accounting and blatant manipulation of legal norms, lawyers can still be criticized in moral terms. The difference is that the appropriate moral framework is not derived from the first-order reasons about which there exists persistent disagreement, but from second-order reasons relating to the coordination function of the law.

Wright on Legal Responsibility Richard Wright (Illinois Institute of Technology - Chicago-Kent College of Law) posts The Grounds and Extent of Legal Responsibility (forthcoming in the San Diego Law Review, Vol. 41) on SSRN. Here is the abstract:
    This article identifies and discusses the three principal limitations on the extent of legal responsibility for tortiously caused harm and explains and justifies them by reference to the principle of interactive justice, which holds one legally responsible for causing (or being imminently about to cause) harm to another's person or property as a result of conduct that is inconsistent with others' right to equal freedom. The three principal limitations prevent liability for a tortiously caused harm when (1) the harm almost certainly would have occurred anyway in the absence of any tortious conduct or condition (the "no worse off" limitation), (2) there was a superseding cause of the harm (an actual cause of the harm that (i) intervened between the defendant’s tortious conduct and the plaintiff's injury, (ii) was a necessary ("but for") cause of the plaintiff's injury, and (iii) was highly unexpected), or (3) the harm did not occur as part of the realization and playing out of one of the foreseeable risks that made the person's conduct tortious, before the hazards created by the realization of that risk had dissipated (the "risk playout" limitation). None of the three limitations match the usual academic prescription for limiting the extent of legal responsibility for tortiously caused harm, which would rely solely on a harm-matches-the-risk ("harm-risked") limitation that is often confused with, but which differs significantly from, the risk-playout limitation. However, as this article demonstrates, the results reached by the courts are consistent with the three stated limitations rather than the harm-risked limitation, despite the longstanding efforts of the academic drafters of the Restatements to install the harm-risked limitation as the sole, comprehensive limitation on the extent of legal responsibility for tortiously caused harm. These three limitations are neither exclusive nor absolute. Some of them do not apply or apply less broadly to some intentional torts and some strict liability actions. Moreover, there are other limitations on the extent of legal responsibility, such as the de-minimis-contribution limitation, as well as limitations on legal responsibility for certain types of losses – such as pure emotional distress, pure economic loss, and wrongful birth – that are more appropriately handled as categorical limitations on the scope of a person's duty rather than as limitations on the extent of legal responsibility for tortiously caused harm.

New Papers on the Net Here is today's roundup:
    Juridical Rhetoric in the Antebellum Debate over Slavery Jeannine DeLombard University of Toronto Abstract:
      This article addresses a central but overlooked contradiction in antebellum American culture: at a time when blacks were prohibited from testifying against whites in many American courtrooms, former slaves consistently presented themselves in print as, in the words of Frederick Douglass, "eye-witness[es] to the cruelty of slavery" and offered their personal narratives as, according to Harriet Jacobs, "testimony" to "what Slavery really is." Fashioning themselves and their anti-slavery writing in these terms, the article contends, formerly enslaved African-Americans like Douglass and Jacobs participated in a widespread antebellum tendency to figure the debate over slavery in legal language. Imagining the national slavery controversy as an ongoing criminal trial occurring in a vast courtroom, those who contributed to that debate depicted slavery as a crime, slaveholders as perpetrators and defendants, slaves as victims and eye-witnesses, white abolitionists as advocates for the slave, and the American reading public as a court of public opinion. Viewing each of these roles in light of changes in early American jurisprudence, as well as from the vantage point of specific legal crises over slavery, the article explores how figurative appropriations of legal rhetoric structured race relations in the print debate over slavery between 1830-1860.
    Forces of Consent Susan Schmeiser University of Connecticut - School of Law Abstract:
      This essay considers the Anglo-American legal treatment of sadomasochistic sexual practices, under which the consent of the masochist furnishes no defense to a charge of assault against the sadist. The law's unwillingness to recognize the masochist's consent in this context, I argue, suggests unease with the ways in which S/M reflects and exposes the operations of law. The essay begins with Robert Cover's work on law's potential to domesticate violence, locating an aporia around sadomasochistic sexuality and the putative irrationality it represents at the heart of Cover's account. It then discusses the legal regulation of homosexuality as a backdrop against which to situate the legal treatment of S/M within discussions of privacy and consent. Under Bowers v. Hardwick, sodomy as a "victimless crime" nevertheless wrought its injury on the polity; the majority in that case effected an erosion of the boundaries separating private and public, individual bodies and the social body. Lawrence v. Texas has reinscribed these boundaries in the name of choice and personal autonomy. Cases addressing sadomasochistic sexual practices, however, reason in the reverse direction: identifying a public injury in violence unchecked and then locating it on the body of the masochist, regardless of the nature of his participation. With his apparent passivity or even active receptivity in the face of violence, the masochist putatively lacks the kind of rationality that would render him capable and deserving of autonomy and respect. Theorists of consent, however, demonstrate that consent frequently mystifies the relationship between active and passive. The essay considers Elaine Scarry's work on consent before contemplating the doctrine that deems consent to sadomasochism legally unintelligible. Courts and commentators alike seem nonplussed by a practice that apparently merges sex and violence, pain and pleasure. Their anxiety about sadistic aggression unchecked inspires them largely to neglect the masochist's complex role. Moreover, while courts and others have denounced these practices - and implicitly the ways in which they play out fundamental legal and political narratives of consent and subjection - as outside the bounds of cognizable human behavior, many theorists of S/M have celebrated its reflective function, seeing it as an expose of power relations. Proponents and detractors alike of sadomasochism generally disregard the gender of the participants, although gender has clearly shaped the legal doctrine. The male masochists involved in the major cases have rendered recognition of consent in that context even more fraught. The essay notes certain ideals of masculinity at work in the construction of the ideal legal subject, ideals to which male masochism poses a radical challenge. Finally, the essay draws an analogy between the suspicion of sadomasochistic consent and that of consent to psychoanalytic treatment. In both of these contexts, what begins as a quintessentially volitional act, indeed one that often takes the form of a contract, appears to get subsumed immediately into compulsion. The essay concludes by suggesting that consent in these contexts highlights the extent to which categories of compulsion and volition, emphatically distinguished in our culture, come to haunt one another.
    State Aid Control: Substance and Procedure in the Europe Agreements and the Stabilisation and Association Agreements European Law Journal, Vol. 9, pp. 265-287, July 2003 Marise Cremona University of London - Centre for Commercial Law Studies Abstract:
      Community agreements with third countries frequently contain provisions on State aids. These provisions are designed to achieve a range of different objectives, related both to developing trade between the contracting parties and to economic and legal/regulatory development within the partner State. This paper takes a particular model of State aid clause - those found in the Europe Agreements (EAs) and the Stabilisation and Association Agreements (SAAs) - in order to explore the implications of a harmonisation obligation applied within the context of accession to the EU. In these agreements the State aid rules - and in particular those relating to the application of Community-based criteria - are intended to contribute to the pre-accession adoption of the acquis communautaire by the associate States (including those who are not yet candidates). These clauses are striking in their emphasis on the full adoption of Community-based standards for the approval of aids, including large quantities of 'soft law', while saying very little as to the appropriate procedures for enforcement. The experience of implementing these clauses illustrates the practical difficulties of applying Community norms and standards outside the procedural structures, integration mechanisms and single market objectives of actual EU membership. The associate States are required to demonstrate their capacity for applying and enforcing the Community-derived rules while balancing the needs of their own economic development against an undefined 'common interest'.
    Down That Wrong Road: Discretion in Decisions to Detain Asylum Seekers Arriving at UK Ports Howard Journal of Criminal Justice, Vol. 42, pp. 248-262, July 2003 Leanne Weber University of Western Sydney Abstract:
      The discretionary power to detain asylum seekers on arrival in the UK has been described by one human rights organisation as 'extraordinary and largely unrestrained' (Amnesty International 1996). Although decisions made by immigration officers can lead to long periods in prison or in prison-like conditions, these actions are considered to be administrative and are therefore not subject to the legal constraints that apply to criminal justice agencies. This article traces the many sources of discretion in the use of Immigration Act detention, using an analytical framework developed by Schneider (1992). Discretion is found to originate from the vague and permissive nature of detention guidelines (rule-failure discretion), the priority given to operational considerations at ports (rule-binding discretion) and the failure to resolve conflicts between policy objectives (rule-compromise discretion).
    Listening to Young Adult Offenders: Views on the Effect of a Police-Probation Initiative on Reducing Crime Howard Journal of Criminal Justice, Vol. 42, pp. 263-281, July 2003 Wing Chui, Bill Tupman and Colin Farlow City University of Hong Kong - School of Law , University of Exeter - School of Historical - Political and Socialogical Studies and University of Exeter - School of Historical - Political and Socialogical Studies Abstract:
      This article reports the subjective views of young adult offenders, regarding their experience of a police-probation initiative in the southwest region of England. Project ARC (Addressing Repeat Criminality) was a pilot scheme that targeted persistent offenders, mainly drug offenders, by offering them an intensive form of probation supervision. The procedure of allowing these offenders to speak and listening to their voices has been seen as an excellent and powerful method to depict vividly their perception of probation experience and views on the usefulness of the crime reduction project. Several central themes emerged from the in-depth interview data, regarding the success or otherwise of the initiative in addressing their criminal behaviour. These include offenders' attitudes to offending, self-explanations for their criminality, views of peer associations and the usefulness of the Project ARC intervention. Finally, the offenders' first hand accounts also offer invaluable insight to the police and probation services on how the project can and should be further improved in order to reform their offending behaviours.

Monday, September 29, 2003
Kontorovich on Liability Rules for Constitutional Rights at Chicago Eugene Kontorovich (George Mason) is workshopping Liability Rules for Constitutional Rights: The Case of Mass Detentions on at the University of Chicago today. It should be up on SSRN soon, but in the meantime, here is an abstract:
    Constitutional law assumes that rights should always be protected by property rules – that is, the government can only take them with the individual’s consent. This Article extends to constitutional law the insights of Calabresi and Melamed’s famous article on property and liability rules. Whether rights should be protected by property rules or liability rules depends on the transaction costs of negotiating a transfer of rights. As transaction costs rise, liability rules become more attractive. This Article shows that liability rules can have an important role in constitutional law. Using mass detentions in national security emergencies as a case study, it shows that property rule protection of individual rights sometimes leads to perverse and inefficient results. While the government has repeatedly resorted to mass detentions in emergencies, the Court has never blocked such measures. This is a perverse result of constitutional law’s insistence on property rule protection even when transaction costs of transferring liberty rights become extraordinarily high. Holding that a policy violates rights would require, under a property rule, enjoining potentially vital security measures. The Court is unwilling to impose such costs on society. Thus it simply avoids finding that mass detentions violate rights. This creates large groups of uncompensated victims, who are often members of vulnerable ethnic minorities. It also stunts and distorts the development of constitutional law. Switching to liability rules in mass detention situations can, counterintuitively, result in greater redress for detainees, as well deterring detentions and preserving the integrity and predictability of substantive law. Furthermore, the transaction cost analysis developed in this Article has implications that extend beyond mass detentions to a variety of other constitutional contexts.

Moving Day & Interview with Hasen Crescat Sentential has a new URL: And in other sentential news, the crescat interview with election law superblogger Rick Hasen is now available at this link.

Belated Welcome to the Blogosphere . . . to IPKat (Jeremy Phillips and Ilanah Simon), a UK Intellectual Property blog. Check out the IPKant book of the Month.

Internet Governance: The IETF Michael Froomkin points to recent developments in Internet governance in this post on the Internet Engineering Task Force.

Weekend Wrap Up On Saturday, the Download of the Week was a new paper from Howard Gillman, and the Legal Theory Bookworm recommended a recent book by Farber and Sherry. On Sunday, the Legal Theory Lexicon's topic was Hypotheticals, and the Legal Theory Calendar previewed the talks, workshops, colloquia, and other events for the week.

Benhabib at Chicago At the University of Chicago Political Theory Workshop, Seyla Benhabib (Yale University) presents The Right to Have Rights, Discussant: Jacob Schiff. Here is a taste:
    Since Jeremy Bentham’s quip that belief in natural rights is “nonsense on stilts,” right claims have been mistaken to refer to certain moral properties or attributes of human beings. The language of “natural rights,” perpetrated the naturalistic fallacy in that it conflated a claim about moral grounds – the reasons why we ought to recognize each others’ claims to action or forbearance, resources or services of certain sorts- with a seeming description of the physical and psychological attributes of existing moral entities-that individuals could not but act in pursuit of self-preservation (Hobbes) or for the protection of their life, liberty and property (Locke). Natural rights talk, as found in the writings of Hobbes, Locke and Rousseau, vacillated between psychological truisms such as “each living being tends to its self-preservation” and moral injunctions of the kind -“Seek Peace and all the means thereunto.” (Hobbes [1651 ) Historically the wide-spread use of the terms ‘property,’ ‘propriety’ to designate rights claims in general, served to demarcate a sphere of individuals claims and entitlements and gave them an aspect of inviolability. (See Tuck 1979)
and a bit more:
    Being deeply shaped by an emergent capitalist commodity economy which was fast transforming all human goods and resources into saleable property, the political imaginary of natural rights theories readily conflated rights-talk with property-talk. Property rights themselves came to be viewed as paradigmatic, although, as G.W. F. Hegel noted sarcastically with respect to Locke and Hobbes, the irony in this conflation was that unlike property rights, the natural rights to life and liberty, were not alienable and ought not be commodified. (Hegel [1821]; Benhabib 1981 ) Far from being reducible to property rights, the individual could only be recognized as a rights-bearing person insofar as his rights to life and liberty were not saleable property.
Not my cup of tea, but Benhabib is one of the very best political theorists working in what might be called the "continental tradition." A paper from which I learned--recommended.

Schwarzschild on Direct Demoracy Maimon Schwarzschild (University of San Diego School of Law) has posted Voter Initiatives and American Federalism: Putting Direct Democracy in Its Place (forthcoming Journal of Contemporary Legal Issues) on SSRN. Don't miss this! Here is the abstract:
    The idea of direct democracy provokes sharply conflicting thoughts and feelings. There is the hopeful vision of direct democracy: free and equal citizens governing themselves, public decisions that are truly of, by, and for the people. But direct democracy, especially the voter initiative as practiced in California, conjures up negative, even lurid, images for many people - perhaps especially for academics. On the dystopian view, voter initiatives mean public decisions by vote of an often ill-informed public, polarized by "Yes-or-No" questions, manipulated by demagoguery and special interests; imperiling the rights and interests of minorities, and weakening representative and republican institutions. This article argues that federalism provides a proper – and properly tamed – place for direct democracy: that voter initiatives at the state but not the federal level are a good thing to have in the mix of American lawmaking. The argument is an application, in part, of the idea of value pluralism associated with the thought of Isaiah Berlin. Direct democracy is pluralist in at least three ways. (1) It is institutionally pluralist, an element of political life that does not exist at the federal level, or in many states. (2) It makes for pluralism of participants, opening a door to interests and groups outside the usual mainstream of representative politics. (3) It makes for pluralism of results, yielding political outcomes whose tendency differs, at least somewhat, from that of laws typically enacted by legislatures. The difference in tendency shouldn't be exaggerated, but voter initiatives on the whole do have a distinctive - and somewhat conservative and libertarian - tilt. Federalism minimizes some of the genuine drawbacks and dangers of direct democracy, which might otherwise do more to threaten pluralism than to advance it. There is no direct democracy at the federal level. There are no voter initiatives in more than half the states. Where there are initiatives, most of a state's laws continue to be made by the legislature. And initiatives are subject to judicial review and can be struck down for violating federal laws or the US Constitution. Federalism means that direct democracy can function as a political counterweight, but that representative democracy will not be overwhelmed by peasants with pitchforks.

Four from Zacharias Fred Zacharias (University of San Diego) has posted four new papers on SSRN:
    Understanding recent Trends in Federal Regulation of Lawyers
      This essay was written in connection with a panel discussion entitled "The Layering of Ethics Rules: The Federal Government's Increasing Regulation of a Lawyer's Activities." The premise of the panel was that federal lawmakers increasingly have taken actions that contradict, interfere with, or preempt state regulation of lawyers. Most of the commentary regarding the recent federal actions has focused on whether individual regulations are substantively justified. This essay takes a more global look at the phenomenon of increasing federal regulation and asks whether it is symptomatic of changing views of appropriate professional regulation. It considers how the new trend relates to general themes in professional regulation as a whole. Part I reviews past, present, and proposed federal regulation of lawyers. It concludes that recent federal regulations reflect a growing willingness on the part of federal actors to invade what previously was viewed as a state regulatory prerogative. Part I also suggests, however, that none of the federal initiatives reflects a broad attempt to supplant state regulation across the board. The remainder of the essay considers how these developments interact with, and what they signify for, broad themes in lawyer regulation, including (1) federalism, (2) federalization of professional regulation, (3) distinctions in lawyering in the civil and criminal contexts or within specialized areas of practice, and (4) the failures of state regulation of lawyers. The essay considers whether and how the increase in federal regulation as a whole might be explained in light of traditional ways of looking at professional regulation.
    Reform or Professional Responsibility as Usual: Whither the Institutions of Regulation and Discipline?
      This article predicts five institutional changes that are likely to occur in the professional responsibility area in the twenty-first century. First, the enforcement of professional ethics will likely become more nationalized. Lawyers should expect a more uniform system of professional regulation and a greater degree of negotiation among the states and federal government concerning the types of regulation that are appropriate. Second, the article suggests that disciplinary systems will become more transparent, particularly with respect to policy-making in the disciplinary process and enforcement. Opening the process will enhance respect for the rules and improve enforcement techniques. Third, local bar associations will reevaluate the functions they perform and acknowledge the multiplicity, and occasional inconsistency, of the goals they seek to achieve. As a result, local bars will rely more on other regulators to restrain lawyer misconduct. They will shift their priorities towards functions, including lawyer assistance, that bar associations are uniquely suited to fulfilling. Fourth, the article predicts changes in the licensing and admission of lawyers. A system of specialty examination and licensing will provide official methods of differentiating among lawyers. At the same time, redefinition of the practice of law will result in a decrease in some forms of licensing. Greater recognition of the interrelationship between legal and nonlegal work will open the door to negotiation among the professions regarding who may provide services tangential to law. Sanctioning lay-providers may also be a necessary reaction to the growing, unsatisfied need of the poor and middle classes for law-related services.
    The Humanization of Lawyers
      The martyrdom of Thomas More for refusing to take an oath affirming Henry VIII's marriage to Anne Boleyn and his supremacy over the church has fascinated historians, playwrights, and their readers. Why did More refuse, at such sacrifice to take an oath that nearly everyone in the realm (including More's family and friends) had taken - and that they regarded him as obstinate and absurd for not taking? Why did More refuse to explain the reasons for his refusal, even to close family and friends, beyond saying that they were reasons of "conscience"? And how can More's eloquent affirmation that he would "leave every man to own conscience" and that "every man should leave me to mine" be reconciled with his active persecution and execution of Protestants whose consciences impelled them to embrace what More regarded as heresy? This essay investigates these questions and reflects on their significance for modern commitments to (and difficulties with) the idea of "freedom of conscience."
    The Purposes of Discipline
      Courts typically have characterized the purpose of professional discipline as "protecting the public." This Article will make two simple points. First, the characterization is simplistic and, as a result, masks a variety of functions that discipline might actually serve. Second, identifying the purpose of discipline more precisely would help rulemakers and disciplinary agencies achieve more consistent, and better, results. Disciplinary agencies might adopt four possible orientations in imposing sanctions: they might focus on (1) clients and sanctions that serve client interests; (2) offending lawyers, in order to determine their qualifications to continue practicing; (3) the profession as a whole, to decide which sanctions will best encourage competence and ethical behavior throughout the bar; or (4) the disciplinary process, in an effort to shore up the impact of professional standards in guiding lawyer behavior. Results will vary depending on the orientation that professional regulators emphasize. It is therefore important for the regulators to clarify their overall perspective. Differences in approach affect both consistency and the practical impact of discipline. Rulemakers, disciplinary prosecutors, and reviewing courts all need to be able to consult principles of discipline in order to effectively carry out their functions. Part I of this Article distinguishes the theory of professional discipline of lawyers from the theories underlying criminal prosecutions. Part II identifies the various possible stratagems for approaching discipline. Part III analyzes their potential impact by discussing their application to generic types of misconduct. Part IV discusses the ramifications of this analysis for rulemakers and other regulators.

New from Alexander in ConComm Lawrence Alexander (University of San Diego School of Law) has psoted Constitutional Rules, Constitutional Standards, and Constitutional Settlement: Marbury v. Madison and the Case for Judicial Supremacy (forthcoming in Constitutional Commentary). Here is the abstract:
    Even after 200 years, Marbury v. Madison continues to generate scholarly attention. There is a huge and rich literature on the merits and implications of the Marshall opinion apart from its assertion of judicial review. Nevertheless, the main body of the vast Marbury oeuvre is devoted to judicial review. Is judicial review provided for in the Constitution? If not, has its legitimacy been established other than by constitutional provenance. What is the scope of judicial review? In other words, to what governmental acts is it applicable? Finally, what is the force of judicial review? Does it have stare decisis effect as well as res judicata effect? And if it has stare decisis effect, is that effect as strong or stronger as the Supreme Court's gloss on Marbury in Cooper v. Aaron implies? In this paper I focus on the force question, its relation to the so-called countermajoritarian difficulty," and to what extent attacks on Cooper v. Aaron are meritorious.
My colleague, Larry Alexander, is simply one of the very best. Highly recommended.

Ramsey on the Executive War Power Michael Ramsey (University of San Diego School of Law) has posted Presidential Declarations of War (forthcoming UC Davis Law Review) on SSRN. Here is the abstract:
    Most discussions of modern war powers under the U.S. Constitution assume that wars are no longer formally "declared." The United States, it is agreed, has declared war only five times in its history, the last being in World War II. But the commentary is deeply divided over how this observation affects the President's power to initiate the use of armed force and the President's powers during wartime. This article argues that these debates are fundamentally misconceived. Far from being a historical anachronism, declarations of war, in the constitutional sense, are commonplace in modern practice. The U.S. has made such a declaration in essentially all of its major modern conflicts. They have been made, however, not by the Congress, but by the President. Perhaps out of a sense of constitutional unease, we avoid actually calling them "declarations of war." But, as the article shows, the essence of a formal declaration of war has long been simply the public announcement of sustained military hostilities and a statement of the conflict's goals and reasons. This conclusion simplifies the modern debate over war power in three ways. First, the central question is whether the President can declare war (not whether the President can fight an "undeclared" war). Second, when Congress authorizes the President to use force, that can be understood constitutionally as delegating Congress' power to declare war to the President. Finally, debate over the President's wartime powers need not be further complicated by the objection that a "war" has not been "declared."

Fodor at Berkeley At U.C. Berekely, Jerry Fodor (Rutgers University) is the Townsend Visitor through October 2.

New Papers on the Net Here is today's roundup:
    American Corporate Reform Abroad: Sarbanes-Oxley and the Foreign Private Issuer Michael Perino St. John's University - School of Law Abstract:
      This article addresses the potential impact of the Sarbanes-Oxley Act on the willingness of foreign private issuers to cross-list in the U.S. The article suggests that although the Act appears to increase somewhat the costs of entering the U.S. markets, it may have very little impact on cross listing. In part, this is because cross-listing issuers are quite large and are thus better able to bear the costs that the Act imposes. At the same time, other costs of the Act (such as increased liability risk) may be overstated. Foreign issuers may be willing to bear any increased cost because of the substantial benefits they appear to obtain from cross listing. By cross listing, foreign issuers gain visibility, prestige, and are able to access more readily U.S. capital markets. By voluntarily submitting to U.S. disclosure requirements and the threat of SEC enforcement and private litigation, firms appear to send credible signals that they will protect minority shareholder interests and will not extract private benefits of control. Recent empirical studies suggest that this signal is most valuable for high growth companies with large controlling shareholders that seek to expand by raising equity capital or through acquisitions. Such firms appear to significantly lower their cost of capital by cross listing. Indeed, it is possible that certain provisions of Sarbanes-Oxley (such as executive certification) could even increase the benefits of a U.S. listing by strengthens the bond or signal that comes with cross listing. Even without such an increase, however, there are currently no close substitutes for obtaining these benefits, which means that the demand for a U.S. listing may be relatively inelastic and we may observe little impact on U.S. listings. A substantial decline among issuers that currently cross list is similarly unlikely. While a foreign private issuer may easily choose to enter the U.S. regulatory system, it is quite time-consuming and expensive for that same issuer to exit the system. Because the costs of opting out of the U.S. markets are likely much higher than the costs of complying with the Act, it seems unlikely that many firms will choose to exit from the U.S. markets.
    Unjust Order: Malaysia's Internal Security Act Nicole Fritz and Martin Flaherty, UNJUST ORDER: MALAYSIA'S INTERNAL SECURITY ACT, The Joseph R. Crowley Program in International Human Rights, 2003 Nicole Fritz and Martin Flaherty University of Witwatersrand - School of Law and Princeton University - Program in Law & Public Affairs Abstract:
      This Report represents the culmination of a year-long project undertaken by the Joseph R. Crowley Program in International Human Rights to examine the use and impact of the Malaysian Internal Security Act (ISA) in light of international law obligations. The ISA permits indefinite detention without trial: the first sixty days of this detention are typically at the initiation of police authorities (under Section 73), and subsequent two-year periods occur at the authorization and renewal of the Minister of Home Affairs (under Section 8). The law has existed almost as long as Malaysian independence and has been used to delegitimize generations of political opposition and silence those considered "deviant" or "subversive" by the government. The arrests and detentions of ten individuals all prominently associated with the political party, KeADILan, constitute particularly egregious misuse of the ISA. More recently, the government has used fears of terrorism as an added justification for the ISA, prompting suspicions that the arrests of large numbers of alleged Islamic militants are also spuriously motivated. The Report documents the substantial and pervasive State-driven or sponsored violations of the rights of ISA detainees, including: the arbitrary arrest and detention of suspects; the alleged failure to provide adequate access to legal counsel; the absence of any effective forms of review of arrest and detention, or of the conditions in which detainees are kept; and the infliction of intolerable conditions of detention and treatment, that if not torture (and sometimes it is), nonetheless systematically exceeds the point at which treatment becomes cruel, inhuman and degrading. As this Report documents, ISA related violations are not limited to detainees: their families suffer harassment, as do lawyers and any other organizations (such as NGOs) willing to act on their behalf; and the rare judge who upholds the habeas corpus application of an ISA detainee is likely to suffer punitive and retaliatory measures by the government. In the result, an unduly deferential and compliant judiciary has emerged; space in which civil society operates is severely narrowed; and individuals wanting to express opposition to the government do so at considerable personal risk.
    International Differences in Cost of Capital: Do Legal Institutions and Securities Regulation Matter? Luzi Hail and Christian Leuz University of Zurich - Institute for Accounting and Control and University of Pennsylvania - The Wharton School Abstract:
      This paper examines international differences in firms' cost of capital across 40 countries. We analyze whether the effectiveness of a country's legal institutions and securities regulation is systematically related to cross-country differences in the cost of capital, over and above traditional risk factors. We employ four different models using analyst forecasts to estimate firms' implied cost of capital. We find that countries with extensive securities and disclosure regulation and strong enforcement mechanisms exhibit lower levels of cost of capital than countries with weak legal institutions, even after controlling for various risk and country factors. The effects are strongest for institutions that enable investors to privately enforce their contracts, i.e., legal institutions that provide information and facilitate private litigation. We also show that, consistent with theory, these effects become substantially smaller or insignificant as markets become more integrated.
    When Time Isn't Money: Foundation Payouts and the Time Value of Money As published in Stanford Social Innovation Review, Vol. 1, Iss. 1, pp. 51-59, Spring 2003; and Exempt Organization Tax Review, Vol. 41, Iss. 3, pp. 421-428, September 2003 Michael Klausner Stanford Law School Abstract:
      Bill Gates has said that when an aids vaccine is produced, the Bill and Melinda Gates Foundation will fund the vaccine's distribution around the world even if the foundation has to spend down its $24 billion endowment. For now, and until the vaccine is found, however, the foundation is distributing funds at about the legally required rate of 5 percent per year. In recent years, strong arguments have been made to foundation managers and the U.S. Congress that foundations should distribute their assets at a faster rate, beginning now. McKinsey & Company consultants Paul J. Jansen and David M. Katz, writing in "For Nonprofits, Time is Money," have argued that we should view foundation grants as an investor would view an investment. Former New Jersey Senator Bill Bradley, now a consultant to McKinsey, joined Jansen in making the same argument in a New York Times op-ed entitled "Faster Charity." They argue that, just as investors would choose to receive a dollar today rather than a dollar a year from now, so too is a dollar of charity given today worth more to society than a dollar of charity given in the future. If the McKinsey authors are right, then the Gates Foundation may need to reassess its strategy. Under their approach, the Foundation should discount the social benefit of a future AIDS vaccine to a "present value," just as an investor would discount future investment returns to present value. This discounting exercise would reduce the vaccine's value to a fraction - very likely a small fraction - of the benefit that the vaccine will produce when it is actually distributed. Thus, more immediate grants to charity would appear more socially valuable in comparison, and to that extent, the McKinsey authors argue that foundations should accelerate their payout rates. But the McKinsey authors are wrong. The discounted cash flow approach they use is inapplicable to the foundation payout issue. There are good reasons for foundations to favor high payout rates under certain circumstances, and there may be reasons for the law to mandate minimum payout rates, but the time value of money is not one of them.
And here are some additional papers of interest:

Welcome to the Blogosphere . . . to Civil Procedure. My favorite course!

Sunday, September 28, 2003
Bainbridge on Conservatives in Academia Stephen Bainbridge (UCLA) has a very nice post entitled Conservatives in academia on his excellent blog And check out this by Tom Smith and this by Michael Rappaport on The Right Coast.

Legal Theory Lexicon: Hypotheticals
    Introduction The hypothetical (or "hypo") is so familiar to anyone who has received a legal education in the United States that you might ask, "Can there possibly be anything of theoretical interest in the hypothetical?" And in the same vein, "We all know what hypos are." The purpose of this post is to reflect on the "hypothetical," with the special purpose of equipping law students with an interest in legal theory for the task of thinking rigorously and analytically about hypotheticals, what they are, what they can and can't accomplish, how to construct them, and how to maneuver around them.
    What is a hypothetical? Merriam-Webster defines hypothetical as "being or involving a hypothesis : CONJECTURAL," and hypothesis as "an assumption or concession made for the sake of argument" or "a tentative assumption made in order to draw out and test its logical or empirical consequences," from the Greek from hypotithenai, "to put under."
    In American law schools, the pure hypothetical is a counterfactual variation on the fact pattern of an actual case. The hypothetical plays an important role in the Socratic style of law school teaching.
    Here is a very simple example. If the actual case involved a contract between Ben and Alice, in which Alice agreed in writing to fix Ben's roof, and Alice agreed to pay Ben $100, Alice did not perform, and Ben had to pay $200 to another roofer, we might get hypos like the following:
    • What if the agreement had been oral instead of in writing?
    • What if the contract price had been $300?
    • What if Alice had been a minor?
    • What if the contract had not specified a price?
    • What if Alice did the job, but the roof still leaked?
    And so on.
    The Purposes of Hypotheticals Why do law professors use hypotheticals?
    • As a tool for the explication of legal doctrine.
    • As a tool for exploring the moral underpinnings of legal rules.
    • As a tool for exploring the consequences of legal rules.
    Law students quickly become familiar with the first of the three kinds of hypotheticals. They read a case and learn a rule. The professor then poses hypothetical variations on the case to test the student's knowledge of the rule. Typically, the hypo is followed with a question like, "What result?" But legal education is also about the normative analysis of legal doctrine, and hypotheticals can also be used to explore our intuitions about the morality of the law. Such hypos are frequently end with, "What should the result be?" And the follow-up question, "That's the rule, but do you think that is the right result?" Finally, contemporary legal education incorporates a healthy dose of economic analysis. So, we can add information about prices to hypos and then ask what consequences a rule will produce if the various actors are "rational" in the economic sense.
    "Beware the hypothetical, my son. The laws that catch, the facts that bite." Hypos can be fun, but many law students don't have a good time, when they are led to contradict themselves by a series of hypos. Having learned not to contradict yourself, you may then find that by remaining consistent, you can be led, step by step, to an answer that is consistent but absurd. If you can adopt a Zen-like attitude to this process, there is nothing wrong with going along for the ride. Socratic dialog is not a game, and law professors actually need students to make certain common mistakes in order to get certain points across. However, there are a number of techniques that law students can learn to become more effective at the hypothetical game.
    Lesson Number One: Fight the hypothetical, lose the war! The first and most important lesson to learn about hypotheticals is that you can't get anywhere by fighting the set up. (I will modify this rule of thumb later on.) One of the first ways that law students begin to fight back against hypotheticals to resist the "hypothesis." One way to do this is to fight the facts. "That wouldn't happen." Or "In the real world, it would happen differently." Fighting the facts only delays the inevitable. At the worst, you simply get asked the same question again, "O.K., but for the sake of argument, assume these facts." At the best, you get another version of the same hypo that works around your factual objection." As a general rule, don't fight the facts.
    Lesson Number Two: Watch for Slippery Slopes Every law student learns to recognize the following pattern: the Professor starts with a fact pattern, where the conclusion is obvious. Then one fact is varied by degrees. There doesn't seem to be an logical stopping point, so if the student wants to be consistent, they are lead to an absurd conclusion. We have a contract between Alice and Ben. Is $100 valid consideration? $10? $1. 1 cent? A peppercorn? Half a peppercorn? 1/100th of a peppercorn? A speck of dust. The atoms that are expelled when Ben says, I agree? You are on a slippery slope, and you desperately want to get off! Usually, you will realize that you are on the slippery slope early on in the sequence of questions. Here are some ways to get off: (1) Say, "I see were are on a slippery slope here." Then just go along for the ride, and when you read the bottom, just say, "Well, I see we are at the bottom of the slippery slope now!" You are playing along with the game, but also showing that you are smart enough to see what is happening. Or (2) When you start to feel a twinge about the hypo, say, "My answer is still "Yes, but we are starting to enter the gray zone." (If you want to be fancy, say ". . . but we are starting to enter the penumbra of the rule." When you think that you've hit a truly hard case, say "Now, we are definitely in the gray zone. It's really a judgment call which could go either way." And then when you get to the bottom of the slippery slope, you can say, "Now, it's clear, the answer is no." This second strategy is simply the way to make the point that there are lot's of legal rules that require a "Yes" or "No" answer (they are bivalent), when the real world is a matter of degrees. Slippery slope hypos are simply the law professor's way of getting you to see this phenomenon.
    Lesson Number Three: Watch Out for Cold Rules and Hot Facts This is a favorite law professor trick. You take a case where the rule is settled, and then come up with facts that have accidental features that make the application of the rule morally unattractive. "Starving babies" are a common device. But should Alice have to pay Ben damages if Alice has a "starving baby!" Of course not, you say to yourself, but in fact whether or not Alice's baby is hungry is probably irrelevant to the legal question whether Alice is liable to Ben for breach of contract. Again, there are several ways to play this. Here is the simplest: (1) Simply point out the divergence between your legal and moral intuitions. "Well, morally speaking, it seems repugnant to make Alice pay, but I don't see how her financial needs provide her with a legal defense." Here is another alternative: (2) Try to find the legal category that fits your moral intuition. In criminal law, the moral problem may provide the basis for a defense of "necessity." Obviously, these two strategies can be combined: "Well, morally speaking, it seems repugnant to make Alice pay, but I don't see how her financial needs provide her with a legal defense. Maybe, should could argue that there is a defense of "necessity" to actions for breach of contract."
    Lesson Four: Easy Cases, Hard Cases, and Wild Cases One way to slice the hypothetical pie is into cases that are easy, hard, and wild:
      Easy cases involve a straightforward application of a legal rule. Most hypos are easy cases. You may make a mistake and learn something about the rule, but there is nothing funny going on here. Easy cases are the bread and butter of legal education.
      Hard cases involve a genuinely difficult legal problem. Sometimes there is a black letter rule that covers the facts of a hypo, but sometimes there isn't. Why not? Many reasons, including: (1) In a common-law system, there are simply many issues that have never been decided--"novel questions" where not precedent or rule is binding; (2) Rules sometimes have "gaps," places where the law simply is unclear because the rule was not formulated with that sort of case in mind; (3) Rules sometimes conflict with one another, and unless the conflict has already been resolved, the result is a "hard case." When you get a hypo that involves a genuinely hard case, your job is to figure out what the law should be. In a way, the whole point of the first year of law school is to give you the tools necessary so that you can argue both sides of a hard case on your own, without any help from professors, outlines, treatises, or law review articles. How do you do this? Well, legal theorists disagree about the best method, but you can always make three kinds of arguments:
        (1) Arguments of fit. You can argue for a rule or result on the grounds that it best fits the legal landscape. Arguments of fit are about consistency or coherence. Frequently, you make arguments of fit based on analogies between the rule in situation A (that is settled) and the rule that should obtain in situation B (where the law is unclear).
        (2) Arguments of principle. You can argue for a rule or result on the ground that it is fair or that it respects the rights of the parties. It is fair that Y should recover damages, because Y has a moral right to the integrity of her body.
        (3) Arguments of policy. You can argue for a rule or result on the ground that it will lead to good consequences. What consequences are good? Deep question! But most people will agree that (1) economic efficiency, (2) health, (3) savings lives, and (4) human happiness and the absence of human suffering, are all goods that should be promoted.
      Hard cases are the meat and potatoes of law school.
      Wild Cases involve fanciful fact patters or bizarre legal rules. Suppose that on Mars, the rule is that crime-of-passion murders aren't punished at all, because the chances of recidivism are so low. Suppose that everyone over the age of 34 is killed by a mysterious virus, can a 32 year serve as President, even though the Constitution sets a minimum age of 35. Wild cases are frequently constructed to serve as "intuition pumps." That is, the wild case is constructed so as to generate a particular reaction--an intuition about how the case should be treated. Always be careful about the intuitions generated by wild cases. On the one hand, the intuitions pumped by a wild case can be illuminating--they can help you to an insight that you would otherwise have difficulty grasping. On the other hand, intuition pumps can be misleading. The set up of the wild case may be cleverly (or accidentally) designed so that a legally or morally irrelevant feature of the case is doing the work--pumping the intuition. When you are questioned about a wild case, you should simply give your reaction--your gut instinct. But it is also fare to qualify your answer: "My answer is yes, but this case is so wild that I really don't feel very sure about my intuitions." Wild cases are the dessert of law school.
    There is a lot more to learn about hypotheticals (perhaps in a second installment in the Legal Theory Lexicon, but these four lessons should get you started. Take your vorpal sword in hand!
For past and future installments in the Legal Theory Lexicon, surf here.

Legal Theory Calendar
    Monday, September 29
      At the University of Chicago Political Theory Workshop, Seyla Benhabib (Yale University) presents The Right to Have Rights, Discussant: Jacob Schiff.
      At U.C. Berekely, Jerry Fodor (Rutgers University) is the Townsend Visitor through October 2.
    Thursday, October 2 Friday, October 3
      At SUNY Buffalo, Lauren Edelman (U.C. Berkeley) presents Law at Work: An Institutional Approach to Civil Rights, with comments by Lucinda Finley (Buffalo) and James Johnson (Rochester).
      At the Society for Applied Philosophy in London, Jonathan Ree & Andrew Edgar (University of Wales, Cardiff) present Paths to Utopia: Philosophical Republics in the 21st Society, Chair: Richard Ashcroft (Imperial College, London). (From the London Fixtures List)
      At the University of Texas Faculty Colloquium, Fionnuala Ni Aolain (University of Ulster) presents The Paradox of Transition in Conflicted Democracies.
      Jennifer Mnookin is presenting at UCLA, but I don't have a title.

Saturday, September 27, 2003
Legal Theory Bookworm This week the legal theory bookworm recommends Desperately Seeking Certainty: The Misguided Quest for Constitutional Foundations by Daniel Farber (Minnesota and U.C. Berkeley) and Suzanna Sherry (Vanderbilt). (Another link here.) Farber and Sherry's book provides a wonderfully compact and elegant statement of the case for a pragmatic approach to constitutional interpretation. They begin with a list of eight propositions, which we could summarize as follows:
    1. The constitution is a written document. 2. The Supreme Court should follow the constitutional text and its original meaning. 3. The Constitution can only be changed by amendment. 4. The Supreme Court's rulings are law, binding on officials and citizens. 5. The federal government has broad (if not plenary) legislative power. 6. It is unconstitutional for either the federal or state governments to discriminate on the basis of race. 7. The Constitutions envisions states as sovereigns. 8. It would be unconstitutional for government to assign spouses or dictate family size.
Farber and Sherry then write:
    These eight propositions are, we think, little more than common sense, and most people would find no hesitation in affirming all of them. The problem, as legal sophisticates have long realized, is they they are in tension with one another. That is, if given their full scope they would contract each other. For instance, adherence to original intent is hard to square with rejection of racial segregation, since the same Congress that proposed the Fourteenth Amendment (barring discrimination) also maintained segregated schools in the District of Columbia.
Farber and Sherry make thier case against what they call foundationalist constitutonal theories by examining six writers: Robert Bork, Antonin Scalia, Richard Epstein, Akhil Amar, Bruce Ackerman, and Ronald Dworkin.
Desperately Seeking Certainty provides a wonderful tour of contemporary constitutional theory. Highly recommended!

Download of the Week The Download of the Week is Howard Gillman's Constitutional Law As Partisan Entrenchment. Gillman describes the aim of his paper as follows:
    I want to explore whether the concept of political entrenchment provides a useful perspective for understanding the political origins of liberalism in the Warren- and post-Warren-era federal judiciary. Rather than view these developments as a byproduc of unrestrained judicial activists intent of following personal political agendas, or even as a reflection of judges who act as if they are political blank-slates and simply adapt to changing political circumstances, I want to see whether modern judicial liberalism can be traced to the self-conscious efforts of Democratic Party office-holders in the 1960s. I hope to show that there are important similarities between the actions of Democrats in the 1960s and Republicans in the latter part of the nineteenth century,especially the use of legislation to reorganize and reconfigure access to federal courts, and the use of the appointment power to fundamentally alter the decision- making bias of the federal judiciary. After reviewing this record I will end by suggesting how this story might shed light on the extra-judicial origins of constitutional change within the courts, as well as change our understanding of concepts such as judicial activism.
If I may, let me share another nugget or two from this really fascinating and wonderful paper:
    One thing that prevents judges from being viewed as entrenched partisans is that they tend to represent the political agenda that was most salient at the time of their appointment. Unlike other elected partisans, they are under no pressure (as a condition of holding onto power) to update their views based on new contexts, changing coalitions, and evolving electoral strategies. New Deal justices did their work by upholding the New Deal, and if later they diverged on issues relating to civil rights and liberties that merely demonstrates that consensus on these issues was not a salient consideration for Roosevelt when he made his appointments. The fact that John Paul Stevens is now viewed as the Court’s leading liberal is not inconsistent with the view that he was properly viewed as a life-long moderate Republican at the time of his appointment.
And form the conclusion:
    Democrats in Congress did not support every initiative of the Warren Court. After the reapportionment decisions the House (over the objections of the chairman of the Judiciary Committee) passed a jurisdiction-stripping bill, but liberal senators successfully filibustered similar efforts.85 The Court’s criminal procedure decisions, which were anticipated by Johnson when making the Marshall appointment, were also unpopular, especially in the wake of urban rioting, which helped undermine whatever sympathies for minority criminal defendants (and whatever support for careful criminal justice) that might have been promoted by movies such as 12 Angry Men (1957) and To Kill a Mockingbird (1962). These decisions not only triggered a Congressional reaction but also a “law-and-order” presidential bid that helped Richard Nixon retake the White House for Republicans in 1968. Still, as a general rule, during this period the Court was, by design, “a functioning part of the Kennedy-Johnson liberalism of the mid and late 1960s.” Kennedy actively supported the Court’s controversial school prayer decisions; the justices declared the poll tax unconstitutional only after Congress encouraged the Justice Department to challenge those laws in federal court.87 Most of the targets of the Court’s judicial review were state laws that seemed inconsistent with the national consensus that gave Democrats control of the federal government throughout most of the 1960s. The fact that some of the Court’s decision-making might have been inconsistent with the median position of the 1960s Democratic Party demonstrates that judicial entrenchment typically empowers the ideological wings of the parties at the expense of party moderates and pragmatists.
Download it while its hot!

Lists Department Courtesy of the Leiter Reports, The Philosopher’s Annual has announced its list of the top ten philosophy articles of 2002. Here are three that are likely to be of some interest to legal theorists:
    Nomy Arpaly, “Moral Worth,” from the Journal of Philosophy, 99, May 2002, 223-245. Karen Jones, “The Politics of Credibility,” from Louise M. Antony and Charlotte E. Witt, A Mind of One’s Own: Feminist Essays on Reason and Objectivity, Westview Press. Christopher F. Zurn, “Deliberative Democracy and Constitutional Review,” from Law and Philosophy, Vol. 21 (2002): 467-542.

Friday, September 26, 2003
Preview of Coming Attractions Tomorrow, the Legal Theory Bookworm recommends a contemporary book of interest to legal theorists, and, as usual, the Download of the Week is unveiled. On Sunday, the Legal Theory Calendar previews colloquia, workshops, and conferences for next week, and the Legal Theory Lexicon does the unthinkable and provides a guide for law students on hypotheticals (everything you always wanted to know, but your professors were afraid to tell you).

Screpanti on Choice, Freedom, and Redistribution Ernesto Screpanti (Università degli Studi di Siena - Dipartimento di Economia Politica) has posted Choice Freedom and Redistribution Policies on SSRN. Here is the abstract:
    Opportunity sets are defined by taking account of budgetary, institutional and legal constraints. Then a cardinal measure of freedom is proposed which is apt to interpersonal comparisons of opportunity sets. Individual choice freedom may expand when a new good is publicly provided free or at a low price. On the other hand it is decreased by taxes. It is argued that progressive taxation redistributes freedom in favour of the poor, all the more so when public revenues are used to finance the public provision of goods, in which case overall freedom may result enlarged.

Murphy at Texas Today at Brian Leiter's Law and Philosophy Program at the University of Texas, Mark Murphy (Philosophy, Georgetown University) participates in a 3-hour lunchtime workshop with LPP faculty and students on chapters of his book manuscript on Natural Law in Jurisprudence and Politics. He will also give a paper in the Philosophy Department in the afternoon on "Intention, Foresight, and Success."

Spaulding at the University of San Diego Norman Spaulding (U.C. Berkeley) presents Constitution as Counter-Monument: Federalism, Reconstruction and the Problem of Collective Memory.

Froomkin and Bradley on Virtual Worlds Michael Froomkin and Caroline Bradley have a paper entitled Virtual Worlds, Real Rules. Here a taste:
    In Virtual Worlds such as Ultima Online and Everquest, the Internet may accidentally provide an environment that lends itself well to the testing of legal rules. A growing literature suggests that there is a relationship between certain legal rules and economic well-being. Data about the economic consequences of rules would enormously enrich debates over economic regulation. Unfortunately, in the real world experimenting with legal rules can be costly and risky. Some scholars of comparative law attempt to draw lessons by comparing the diverse experiences of different countries, but these efforts too often fall prey to errors of cultural, not to mention legal, translation. Virtual worlds could permit experiments without the real-world costs of bad rules or regulatory competition. Existing role playing games tend to include internal market regulations that resemble those seen in Western capitalist economies. These rules could be changed, or different versions of the game might use different variants. Online role playing games would provide better data than economic models because it should be possible to design the games to reduce the number of assumptions involved. Moreover, game participants are likely to care about outcomes more than participants in laboratory-based experiments, if only because resource constraints force these to be conducted for low stakes.
Also check this post on

Hoffman and Wenger on Nullificatory Juries David Hoffman and Kaimipono Wenger (Cravath, Swaine & Moore LLP and Cravath, Swaine & Moore LLP) have posted Nullificatory Juries on SSRN. Here is the abstract:
    In this Article, we argue that current debates on the legitimacy of punitive damages would benefit from a comparison with jury nullification in criminal trials. We discuss critiques of punitive damages and of jury nullification, noting the surprising similarities in the arguments scholars use to attack these (superficially) distinct outcomes of the jury guarantee. Not only are the criticisms alike, the institutions of punitive damages and jury nullification also turn out to have many similarities: both are, we suggest, examples of what we call “nullificatory juries.” We discuss the features of such juries, and consider recent behavioral data relating to the common sense moral intuitions that appear to motivate nullificatory juries to reject utilitarianism. After considering these root causes, we provide a theoretical framework for analyzing the benefits these juries provide to society. We conclude with some modest suggestions for future avenues of research.

Foucault and the Gypsies Dave Cowan and Delia Lomax (University of Bristol - Department of Law and Heriot-Watt University - School of the Built Environment) have posted Policing Unauthorized Camping (forthcoming Journal of Law and Society on SSRN. Here is the abstract:
    We argue that the links between welfare, policing, and exclusion, though rarely made explicit, nevertheless form the undercurrent of the modern neo-liberal state. In making this argument, we draw particularly upon the voluminous literature which amplifies the seminal work of Foucault, especially as it relates to government. Thereafter, we apply this set of understandings to the way in which the unauthorized encampments of Gypsies and Travellers are policed. We concentrate first on the construction of legislation and its legal aftermath. Subsequently, we draw upon case study evidence to illustrate our thesis, particularly focusing on the sorting processes of decision-makers.

Miles on Threats to Law Library Autonomy At the SUNY Buffalo, Jim Milles presents Leaky Boundaries and the Decline of the Autonomous Law School Library. Horrors!

New Papers on the Net Here is today's roundup:
    Civil Litigation with Mandatory Discovery and Voluntary Transmission of Private Information Amy Farmer and Paul Pecorino University of Arkansas - Department of Economics and University of Alabama - Department of Economics, Finance and Legal Studies Abstract:
      We consider models of pretrial negotiations where both costly voluntary disclosure and costly mandatory discovery are possible. When the uninformed party makes the final offer (the screening game), mandatory discovery will be utilized, if it is not very costly, but voluntary disclosure will not occur in the absence of a discovery procedure. When the informed party makes the final offer (the signaling game), mandatory discovery is never utilized, but voluntary disclosure will be utilized if it is not too costly to do so. Thus, mandatory discovery is effective in the information structure under which voluntary disclosure is not and vice versa. The results suggest that, taken together, the two institutions will lead to a great deal of information revelation and will significantly increase the probability of settlement.
    The Appeal and Limits of Internal Controls to Fight Fraud, Terrorism, Other Ills Journal of Corporation Law, Vol. 29, 2004 Lawrence Cunningham Boston College - Law School Abstract:
      Congress responded in similar ways to 2001's major national crises: bolstering internal controls in corporate America under the Sarbanes-Oxley Act in response to Enron's debacle and imposing internal controls on its financial services industry under the USA PATRIOT Act in response to 9/11's terrorism. These reflexive legislative responses to national crisis fit a pattern of proliferating controls as a first-order policy option dating to the mid-1970s. Documenting this proliferation and untangling the definition of internal controls, this Article attributes the appeal of internal controls as a policy option to systemic forces including the movements for deregulation and cooperative compliance, resistance to overt federal preemption of state corporate law, the monitoring model of the board of directors in corporate governance and audit committee ascendance, the social responsibility movement and the diversification of auditing services. Manifest appeals include the limited substantive content control directives carry and the increasing harmonization of control types around audit committees, compliance officers, employee training manuals and external audits of controls fitting neatly into the team production theory of corporate practice and law and making even mandatory controls appealing to corporations being implicitly regulated. Illuminating the limits of this policy option is an examination of comparative attitudes towards control risk shown by the auditing and legal professions. Audit approaches control risk with a formal context, definition and measurement apparatus consciously aware of risk's inevitability and that controls may increase or decrease risk. Yet auditors advertise their product as capable of doing more. Legal culture takes the advertisements seriously. The resulting expectations gap can be reinforced when audit's emphasis on systems and controls creates false impressions that these reflect likely achievement of underlying objectives. Proliferation of internal controls in the face of crisis shows social anxieties. Assuaging social anxieties with these tools can create illusions of control and denial of risk. Legal culture is telling managers to take steps to buy absolute control; audit culture is happy to sell it; the truth is, there is no absolute control. No system provides absolute assurance. The gap is significant between (1) what systems can deliver versus (2) what legal culture expects and what auditors advertise they can deliver. When internal controls fail, the policy response is to require audits of controls. This is the story of Sarbanes-Oxley. In the 1970s, the SEC persuaded Congress in response to crisis to pass the Foreign Corrupt Practices Act requiring companies to have internal financial controls. In the early 2000s, in response to crisis perceived to originate in internal control failure, the SEC persuaded Congress to pass Sarbanes-Oxley requiring auditors to audit those internal controls. In this cycle of control mandates followed by audit mandates, pressure builds on audit to create controls that can be audited. But since controls do not automatically reduce audit risk and may increase it, audits of them cannot speak to the effectiveness of underlying substance over which controls offer no reliable assurance. Legislative enthusiasm for controls as crisis-response mechanisms pretends controls can do more than they can and when controls consequently proliferate they can do even less—it becomes hard to assess which controls are effective. Control proliferation and generality complicate foreseeability analysis in tort. If controls applied only in particular settings with defined functions, they could indicate that related risk realization was foreseeable. They might be useful in assessing difficult pragmatic questions of causation when losses arise after controls fail. But when every aspect of corporate affairs is layered with elaborate controls there is no credible basis for drawing such inferences. Control signifies nothing special, so offers no insight concerning foreseeability or causation. This has not, however, prevented using control failures in exactly this mistaken way. When controls fail, the existence of control norms, directives, or practices are relevant to evaluating the standard of care exercised and matters of causation and foreseeability with little or no regard to the particular control at issue or its underlying substantive purpose. But Sarbanes-Oxley and PATRIOT show two polar extremes of control types: internal controls over financial reporting and controls dedicated to fighting terrorism. Two competing models of regulatory theory map onto this range. The deterrence model hypothesizes that target decision-making is conducted by comparing the cost of compliance with the product of enforcement threats and penalty levels. The cooperation model enlarges the framework by recognizing norms of compliance that may be skewed by the simple adjustment of threat and penalty levels. For internal controls the relative purchase of these models varies with the tenor of the control: financial controls link to the deterrence model where penalties for failure should be high and liability likely; externally-oriented controls are congruent with the cooperation model: penalties and liability risk should be zero. This theoretical account of the distinction between control types is consistent with the longer history of corporate law but the current legal environment's ambitions for internal controls threatens to upset this traditional stance. This appears most acute in the case of terrorism and provides an internal-controls-based defense of general compensation schemes such as the 9/11 Victims' Compensation Fund.
    Asian Discourses of Rule of Law Randall Peerenboom, ASIAN DISCOURSES OF RULE OF LAW, RoutledgeCurzon, January 2004 Randall Peerenboom University of California, Los Angeles - School of Law Abstract:
      This preface to Asian Discourses of Rule of Law provides an overview of the larger project of which this volume is the first installment. The overall project consists of nine conference volumes that seek to advance our theoretical understanding of law and legal systems by examining legal system development and rule of law in Asia, using the U.S. and France or Germany as comparison points. Given the great diversity among legal systems, the purpose is to understand how rule of law is theorized and implemented, and the role of law and the legal system with respect to economic growth, political reform and democratization, the protection of human rights and geopolitical stability. More specifically, this project will (i) explore the extent to which Asian conceptions of rule of law differ from conceptions of rule of law in the U.S. and France; (ii) provide a much needed empirical foundation to what has hitherto been an excessively abstract and overly politicized debate about "Asian values;" (iii) revolutionize comparative law by bringing Asian legal systems into the mainstream of comparative legal studies; (iv) shed light on the development of legal systems and the factors that account for success or failure in the transplant of law from one legal system to another; (v) test the relationship between law and economic development; (vi) examine the relationship between legal system reforms and political reforms, especially the relationship between rule of law, democracy and human rights; and (vii) enhance our understanding of theories and implementation of international law in Asia, and the role the legal systems play in geopolitical stability and the engagement of Asian countries with other countries in the international arena. The first conference volume set the stage for subsequent conferences/volumes by providing a general overview of the dominant conceptions of law, organized around the theme of rule of law, and by providing a brief description of the constitutional structure and institutional framework. Subsequent conferences examine specific areas of law or topics in law to determine: (i) whether there are differences/similarities between the countries with respect to the rules (the black letter law), (ii) differences or similarities with respect to the outcomes in particular cases (or the way events are handled if they are not subject to formal legal resolution) and (iii) the justifications/explanations for such outcomes (legal reasons, cultural/philosophical explanations, or economic, political or institutional explanations).
    Varieties of Rule of Law: An Introduction and Provisional Conclusion Randall Peerenboom, ASIAN DISCOURSES OF RULE OF LAW, RoutledgeCurzon, January 2004 Randall Peerenboom University of California, Los Angeles - School of Law Abstract:
      Rule of law is one of the pillars of modernity, and widely considered necessary for sustained economic development, the implementation of democracy and the protection of human rights. Spurred on by the World Bank and the IMF, Asian countries have begun to focus on rule of law and good governance and the institutional reforms required to bring them about. At the same time, critics in Asia and the West note that rule of law is closely associated with Western liberal democracy and wonder whether rule of law will take root given the different cultural, economic and political context. China and Vietnam reject democracy, while Singapore and Malaysia arguably remain soft authoritarian states despite democratic trappings. South Korea, Taiwan, the Philippines, Thailand and Indonesia have become democratic or are in the process of democratizing, but democracy remains weak and has yet to be consolidated in several of them. Despite widespread support for aspects of the Washington consensus that economic development requires the legal foundations of capitalism and a regulatory framework sufficient to attract FDI, some critics argue some Asian countries have been able to obtain sustain economic growth without rule of law. Other commentators portray the attempts of Western governments and international organizations to promote rule of law in Asian countries as a form of cultural, political, economic and legal hegemony. Some claim that liberal democratic rule of law is excessively individualist in its orientation and privileges individual autonomy and rights over duties and obligations to others, the interests of society, and social solidarity and harmony. This line of criticism taps into recent, often heavily politicized, debates about "Asian values," and whether democratic or authoritarian regimes are more likely to ensure social stability and economic growth. It also taps into post-colonial discourses and conflicts between developed and developing states, and within developing states between the haves and have-nots over issues of distributive justice. In several Asian countries, arguably in all countries, it has resulted in an attempt to inject local values into a legal system established by foreign powers during colonial occupation or largely based on foreign transplants. In striking contrast to the many volumes on rule of law in the Western literature, relatively little work has been done on clarifying alternative conceptions of rule of law in other parts of the world, including Asia. This chapter is the introduction to Asian Discourses of Rule of Law: Theories and Implementation of Rule of Law in Twelve Asian Countries, France and the U.S. (RoutledgeCurzon, 2003). What emerges is a rich portrait of diverse conceptions of rule of law both across the Asian region and within individual countries, from liberal views to authoritarian views, from top-down statist views to the bottom-up perspectives of oppressed individuals seeking to harness the power of rule of law to redress individual instances of injustice and the broad-ranging systemic problems that empower a few at the expense of the many. The chapter explores how rule of law has been constructed, deconstructed and reconstructed in twelve Asian countries, the U.S. and France. It also takes up the relationship between rule of law and democracy, and what the experiences of these Asian countries tell us about the factors that facilitate or hinder the establishment and implementation of rule of law.
    Taking Politics Seriously: A Theory of California's Separation of Powers Jonathan Zasloff University of California, Los Angeles - School of Law Abstract:
      The California Court of Appeal recently held that the structure of the California Coastal Commission - arguably the most powerful land use authority in the nation - violated the state Constitution's Separation of Powers Clause, casting doubt on the Commission's viability. Constitutional cases beg for judicial overwriting, but the court resisted the temptation: no references to Montesquieu, no overwrought warnings about the "perils to liberty," no attempts at Holmesian rhetoric. The Court's opinion was sober and workmanlike - judges carefully attempting to sort through doctrine and come to a reasoned result. But if the court thought that it might avoid notice through muted prose, it missed the mark. The decision attracted nationwide attention, and then spawned a rare special session of the California Legislature. The Legislature duly enacted legislation attempting to fix the Commission's alleged structural infirmities. Nevertheless, in stepped the California Supreme Court, a body not known for taking aggressive positions. In granting review, the Court stated that it would scrutinize both the Commission's new enabling statute and also whether all of the Commission's actions since its inception in 1972 should be invalidated - an order so sweeping that it amazed even the property rights lawyers who brought the case. In so doing, the justices set the stage for the most important California separation of powers decision in at least six decades and potentially in the state's history. This Article considers federal scholarship in the state context, but takes what might seem to be a somewhat radical position: generally speaking, California courts should stay out of legislative-executive disputes over the structuring of the executive branch unless specific constitutional provisions are violated or emergency situations arise. Laws are the product of political compromise between Legislature and Governor: the California Constitution, far more than its federal counterpart, envisions a constant give-and-take between the political branches that judges would do well to stay out of, except in extreme circumstances. And because the California Constitution creates this particularly messy politics, the judiciary simply cannot neatly segment roles between "legislative" and "executive" functions because doing so would ignore the essence of the process. In short, judicial intervention in disputes over control of the administrative state undo carefully crafted political compromises and yield nothing in return except doctrinal chaos. This Article lays the groundwork for establishing a general theory of state separation-of-powers law. The majority of state constitutions contain the most important factors implying strong judicial deference. In recent years, scholars have persuasively contended that state constitutional law should exist as a discipline in its own right: enough commonality exists between states that the field need not fragment itself into 50 pieces, but state government diverges sufficiently from the federal that it makes no sense to simply fold the study of state charters into traditional American constitutional law. This Article agrees; federal separation of powers law simply does not apply in the state context. State courts should look more carefully at their own constitutions to create a more realistic separation of powers jurisprudence than their federal counterparts. If "realistic" here means far less jurisprudence than before, then that merely reflects the doctrine's problematic underpinnings.
    The Decline of Judicial Decision Making: School Desegregation and District Court Judges North Carolina Law Review, Vol. 81 Wendy Parker Wake Forest University - School of Law Abstract:
      This article examines all published or electronically available federal district court opinions concerning school desegregation from June 1, 1992 to June 1, 2002 and their disposition on appeal. Based on the resulting analysis, the article argues that the commonly held perception of the all-powerful district court judge is outdated. Instead of controlling the process and outcome of the school desegregation cases, district court judges have ceded to the parties, particularly the defendants, a great deal of control over both the process and outcome of the litigation. In doing so, the judges have allayed, to no small degree, many of the criticisms of their role in school desegregation. Yet the price of the deference to defendants has been denial to school desegregation plaintiffs the fulfillment of their rights, even under the admittedly pro-defendant standards of the Supreme Court. This Article identifies two Alabama district court judges who are exceptions to the pattern of deference to defendants. Unlike their colleagues, these judges have taken an active role in overseeing their school desegregation cases. Through their efforts, school desegregation suits are being dismissed, but only after thorough and relatively successful desegregation efforts.
    What School Desegregation Teaches Affirmative Action Wendy Parker Wake Forest University - School of Law Abstract:
      This article considers the claims of the dissenting Justices in Grutter v. Bollinger that the majority's approach to strict scrutiny was both novel and wrong. The article argues that the majority's decision to defer to education officials when applying strict scrutiny is far from new and not nearly as dangerous as claimed. In making this argument, the article examines affirmative action through two lenses rarely connected to affirmative action: school desegregation and federalism. The Grutter Court's strict scrutiny analysis is comparable in many respects to school desegregation jurisprudence, crafted in large part by the very Justices dissenting in Grutter. Similarly, federalism principles strongly supported elsewhere by the Grutter dissent provide some justification for Grutter's approach to strict scrutiny. Yet, school desegregation jurisprudence also demonstrates good reason to be cautious in applying federalism principles to Equal Protection Clause jurisprudence. This Article ultimately comes to support Grutter’s notion of deference. The judiciary certainly has limited expertise in educational policy and limited success in affecting social change. As a practical matter, defendants must have some authority in constitutional decision making.
    Attacking Brandenburg with History: Does the Long-Term Harm of Biased Speech Justify a Criminal Statute Suppressing it? Federal Communications Law Journal, Vol. 55, No. 2, March 2003 Anuj Desai University of Wisconsin - Madison - Law School Abstract:
      Racist speech has long been the subject of significant controversy in First Amendment jurisprudence and scholarly commentary. In a recent book, Alexander Tsesis argues that, when systematically developed over long periods of time, "hate speech" lays the foundation for harmful social movements that ultimately result in the oppression and persecution of "outgroups." From this premise, Tsesis argues that the United States Supreme Court should overrule Brandenburg v. Ohio, the case in which the Court held that advocacy or incitement must be likely to result in imminent harm before it can be constitutionally proscribed. Tsesis's book then proposes a model statute to criminalize "hate speech" based on the long-term harm such speech can cause. In this Essay, I question the book's premise and its conclusion. My principal argument is that Tsesis misunderstands one of the underlying bases of the "imminent harm" requirement in Brandenburg. Rather than being premised on a view that speech cannot cause long-term harm, Brandenburg's "imminent harm" requirement is designed primarily as a prophylactic rule to prevent government from using a long-term harm rationale to suppress speech based on the government's view of truth. To support a law criminalizing speech, therefore, it is not enough to rely on the long-term harm that the speech can cause.
    Lessons from the Rise and (Possible) Fall of Chinese Township-Village Enterprises William and Mary Law Review, Vol. 45 Brett McDonnell University of Minnesota Law School Abstract:
      The success of Chinese township-village enterprises (TVEs) poses a puzzle for a property rights approach to the theory of the firm, since no one really holds well-defined, transferable property rights to control and claim the residual profits of TVEs. TVEs also pose a second puzzle: in the last five or seven years, they have started to experience serious problems, despite reforms which have improved TVEs from a property rights perspective. This paper takes ideas from property rights and institutional approaches to economics and examines whether those ideas can help explain both of these puzzles. As to the first puzzle, reforms in the seventies and eighties created product market competition and gave local governmental officials and TVE managers enough of a stake in the success of the enterprises to encourage investment in them. TVEs were less imperfect than their leading alternatives, state-owned enterprises and private enterprises, the latter of which faced much discrimination. As to the second puzzle, although property rights reforms have improved TVE performance, reforms reducing the discrimination against private enterprises have made them more attractive. The paper also draws four general lessons from the TVE experience about the relationship between property rights and economic development. First, defining property rights properly is important to development, but other institutions (e.g. norms, financial institutions, capital markets, labor markets, political structure) are also quite important. Second, would-be reformers need to carefully consider the political constraints facing proposed changes in property rights. Third, property rights reforms are at least as much the effect of economic development as they are its cause. Fourth, the development path followed may affect the end states which can be feasibly reached.
    The Tenuous Relationship Between the Fight Against Money Laundering and the Disruption of Criminal Finance Journal of Criminal Law & Criminology, Vol. 93, p. 311 Mariano-Florentino Cuellar Stanford Law School Abstract:
      The reality of criminal enforcement depends only in part on the content and interpretation of criminal statutes. Criminal justice is also powerfully shaped by regulatory rules, civil penalties, and the detection strategies that investigators and prosecutors use to learn about offenses. Together these components can interact to produce a distribution of punishments radically disconnected from the justifications given for the criminal statutes. This article examines the fight against money laundering as a case study illustrating this dynamic. To launder money is to hide its illegal origin. The fight against money laundering is supposed to disrupt laundering in its various forms - especially what is done by third party launderers and leaders of criminal organizations. In the process, the fight is supposed to interfere with the activities of people who finance and profit from crime. Yet this fight delivers less than what it promises. Like many other enforcement systems, the fight against money laundering involves three major components: statutes with criminal penalties charged by prosecutors, rules administered by regulators, and detection systems primarily run by investigators. A close analysis of its three components reveals the fight to have quite a limited scope, involving (1) the disproportionate imposition of severe penalties on predicate offenders who are easily detected; (2) lax and narrowly–focused regulatory authority; (3) limited capacity to detect a range of chargeable domestic and international offenses; and (4) global diffusion of a fight against money laundering that leaves implementing authorities plenty of room for discretion and lax enforcement. These limitations probably arise not because of blindness or bad intentions but because the major players involved in running the system - including legislators, prosecutors, investigators, and regulators - face a tangle of incentives that leads them to dilute the intensity and scope of enforcement against some targets and to enhance the sanctions faced by other targets. While there is some evidence that suspicious activity reporting probably helps identify drug money placement in banks, the system seems ill-suited to detecting and disrupting the larger universe of criminal financial activity that is so often vilified by the rhetoric justifying the fight against money laundering. All of this makes it hard to target terrorist financing using the anti-laundering system, even though it is easy to freeze assets allegedly linked to terrorism. Some changes in the system, such as enhancing audit trails and strengthening suspicious activity analysis, could be defended in the name of making the system work, though politics would make their ultimate consequences hard to predict. In the meantime, any inequities in the detection of predicate crimes end up being reproduced in money laundering prosecutions, and the system's most compelling objectives - detecting crimes in a new way, and targeting third–party launderers and leaders of criminal networks - seem mostly beside the point.
    Pulling Skeletons From the Closet: A Look into the Work-Product Doctrine as Applied to Expert Witnesses Charles Ehrhardt and Matthew Schultz Florida State University - College of Law and US District Court for the Northern District of Florida Abstract:
      This article explores the potential for discovering pretrial, or revealing during the cross-examination of an expert during trial, otherwise protected work-product materials that have been supplied to the expert witness by counsel. The first part of this article discusses the disclosure of fact work-product relied on by the expert in forming an opinion during cross-examination as well as whether it is subject to pretrial discovery. The article then analyzes whether additional protection is given to opinion work product supplied to or relied on by the expert witness. Finally, the article discusses whether the work product protection has been waived if the expert uses work product material to refresh recollection both prior to and during the trial.
    Exercising Free Choice in Corporate Law Jens Dammann Max Planck Institute for Intellectual Property, Competition and Tax Law Abstract:
      U.S. corporations are free to choose the state law governing their internal affairs, a concept one can refer to as free choice in corporate law. At least in principle, that concept also applies in the European Community. In both cases, the legal mechanism ensuring free choice is the state of incorporation doctrine, under which a corporation's internal affairs are governed by the law of the state of incorporation. However, presuming that free choice is efficient, an obvious question to ask is whether the state of incorporation doctrine is really the most beneficial way of granting free choice. Strikingly, though, existing legal scholarship all but ignores that question. The present article argues that while there are sound reasons for retaining the state of incorporation doctrine as one mechanism for granting free choice, it should not be the only such mechanism. The state of incorporation doctrine has significant drawbacks. For example, it does not allow corporations to choose the applicable corporate law without facing exposure to litigation in the state of incorporation. These drawbacks are significant both in the U.S. and in the European context. More importantly, though, there is reason to believe that the various disadvantages of the state of incorporation doctrine are largely responsible for the general unwillingness of U.S. and European firms to incorporate in a jurisdiction on the other side of the Atlantic. Therefore, federal law in both Europe and the United States should complement the state of incorporation doctrine by requiring states to offer at least one business corporation statute that allows corporations to choose the applicable state law in their articles of incorporation.
    The Force of Law on Collective Bargaining: Empirical Research and Labor Law Reform Ellen Dannin and Gangaram Singh Wayne State University - School of Law and San Diego State University - Department of Management Abstract:
      Labor law reform is passionately debated among union activists and officials, labor economists, and industrial relations scholars. Despite the passion of the debate, it is based on almost no empirical evidence as to the operation of variations on law. Rather, for the most part it has been based on anecdotal evidence or deracinated theory. Since opportunities for law reform are infrequent and the consequences of bad reform will fall on many in our society with unhappy effects on the economy, it is important that we have the best possible information about what form law reform should take. We have tried to shed light on this important issue by using bargaining simulations to explore how three systems for resolving bargaining impasses function. Each of the impasse resolution systems involved presented unique issues. The challenge for a system that resolves impasses by relying on implementation of employer final offers and striker replacement, as does the private sector, is that it creates doctrinal problems that do not fit comfortably within the framework of the NLRA and likely create a highly unbalanced system of bargaining. The simulations here support the conclusion that it does indeed unbalance bargaining power and create a sense of grievance. Even though a simulation may bear no relationship to reality, it is worth considering whether a system that is perceived as unfair, even by those who benefit from it can achieve the NLRA's goal of labor peace. The alternatives to private sector impasse resolution - interest arbitration and the more-market model - have theoretical appeal for various reasons. Those who advocate reaching an agreement and reaching it in a rational and fair way would find interest arbitration attractive. On the other hand, those who prefer less government intervention in the ordering of the workplace ought to prefer resolving impasses using pure bargaining power. The simulations, however, suggest caution before choosing either method. The chief advantage to interest arbitration is the participants had very positive reactions to it and it thus appeared most likely to lead to labor peace and support for the system. The bargaining power impasse method, on the other hand, was strongly disliked by employer caucuses and thus appeared likely to lead to deeply felt grievances on the part of employers. Finally, these simulations confirm that law plays a role in shaping what we do. Each of these regimes was the same with the sole exception of the law of impasse resolution, and yet that fact alone had a powerful effect beyond that single event.