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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Friday, October 31, 2003
Leiter on the Reproduction of Hierarchy Check out this post by Brian Leiter on the history of hierarchy in the academic philosophy in the U.S.

Baude on the Brown Nomination Will Baude's post on what Brown has actually said about Lochner is essential reading if you are interested in the current controversies over the judicial selection process.

Amar on the Scalia Recusal in the Pledge Case Vik Amar has some characteristically thoughtful remarks over on Findlaw. Here is a taste:
    The standard for recusal is what we call in the law a "soft" one, and that is a big part of the problem. A federal statute provides that "[a]ny justice, judge or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." This standard, like many in the law, focuses not on the actual presence of wrongdoing -- in this case "bias" -- but rather the appearance of wrongdoing or impropriety. The statute asks not whether the judge in question will in fact be fair, but rather whether "reasonable" people will think he can be fair. (The American Bar Association's Model Code of Judicial Conduct also employs an objective "reasonable person" approach.) Exactly how do we apply this "reasonable person" standard? The Supreme Court has made at least one thing clear - we should assume that reasonable people are somewhat skeptical. Even though judges are rarely biased in fact, "people who have not served on the bench are often all too willing to indulge suspicions and doubts concerning the integrity of judges." For that reason, as one Court of Appeals has noted, "it is essential to hold in mind that these outside observers are less inclined to credit judges' impartiality and mental discipline than the judiciary itself would be."

Heuer on Reasons and Oughts at Penn At the University of Pennsylvania philosophy colloquium, Ulrike Heuer (Penn) presents Reasons and Oughts.

Otsuka on Skepticism About Saving the Greater Number at Bristol At the University of Bristol, Mike Otsuka (UCL) presents Scepticism About Saving the Greater Number. Surf on over to Crooked Timber, for some more on Otsuka from Chris Bertram.

Waldron on the Primacy of Justice at North Carolina At the University of North Carolina philosophy speakers series, Jeremy Waldron (Sheps Distinguished Visitor) presents The Primacy of Justice.

Meidinger on Property & Development at Buffalo At SUNY Buffalo, Errol Meidinger presents Property Law in the Maw of Development Policy and Institutional Theory: Problems of Structure, Choice and Change, with comments by Sharmistha Bagchi-Sen.

Welcome to the Blogosphere . . . belatedly to The Serious Law Student. So that's where the serious law student is!

Thursday, October 30, 2003
A Bloggers Dream? Dennis Patterson (Rutgers, Law and Philosophy) will surely be pleased by this.

Privilege Sticks, or why the defeat of cloture on Pickering is important The democrats have defeated the cloture vote on Charles Pickerings nomination to the U.S. Court of Appeals. Here is taste from the L.A. Times report:
    Senate Democrats today upheld their fourth filibuster against a federal judicial nominee this year, citing civil rights concerns as they easily blocked a final vote on the nomination of federal Judge Charles W. Pickering Sr. of Mississippi to a seat on an appellate court. Pickering's allies fell six votes short of the 60 they needed to break the filibuster and force final action on his nomination. The 54-43 vote followed a short and bitter debate in which the judge's supporters claimed that he was being personally smeared. His critics said they were only protesting his record.
I don't know very much about the merits of the Pickering nomination. I do think that we are coming close to the point where filibusters of judicial nominees will become cemented in the common law or traditions of the Senate. This may not seem important, but I actually think it is crucial to the long-run future of the judicial selection process. Once Senators come to see filibustering of judicial nominees as a stick in the bundle of Senatorial privilege, then any radical effort to pluck the stick out is likely to engage individual non-majority leadership Senators' strong self-interest in the preservation of the status quo. Protect the whole bundle, Senators reason, lest the privilege sticks be plucked out, one by one. In other words, there is a natural (and I think rational) tendency for Senators to defend the status quo bundle of privilege sticks, even against ideological interest, because of the possibility of a slippery slope, at the bottom of which lies an increase in power for the majority leadership and a decrease in power for individual Senators.

Class Conflicts: Ex Post?, Ex Ante? or Behind the Veil?
    Introduction One of the most interesting questions in the theory of procedural fairness is reflected in the question: "When can a party be bound by a proceeding in which she had no right to participate?" It isn't hard to see how one might regard one's self as legitimately bound by a procedure that strikes a fair balance between accuracy and the costs of litigation, if one participated in the proceeding--with an opportunity to tell one's side of the story and the power to choose litigation strategies and tactics. But how can I regard myself as legitimately bound by a proceeding in which I had no voice? Of course, the law does bind us to such proceedings; for example, absent class members are bound by judgments in class actions. The usual understanding is that a class action should only bind those who are adequately represented, where the adequacy of representation if a function of both competence and alignment of interests between the representative parties and the absent class members. And the conventional wisdom is that a conflict of interest between groups within the class ("intraclass conflict") destroys adequacy of representation. The Supreme Court seems to have affirmed the conventional wisdom in several decisions, famously including Hansberry v. Lee.
    Here is the 64 thousand dollar question: How do we determine what counts as an impermissible conflict of interest?
    Miller on Conflicts of Interest in Class Action Litigation As you can tell, this whole topic fascinates me. So you will not be surprised to learn that I was excited to see that Geoffrey Miller (New York University School of Law) has posted Conflicts of Interest in Class Action Litigation: An Inquiry into the Appropriate Standard on SSRN. Miller's very interesting paper addresses these important and difficult questions. Here is the abstract:
      This paper is a inquiry into the proper standard for dealing with conflicts of interest in class actions. It proposes a simple approach to guide analysis: a conflict of interest should be deemed impermissible if a reasonable plaintiff, operating under a veil of ignorance as to his or her role in the class, would refuse consent to the arrangement. The standard proposed here can be termed a "hypothetical consent" principle. It substitutes a thought experiment in which consent is given or withheld under stylized conditions for the actual consent that is required in ordinary litigation. By placing the reasonable plaintiff behind a veil of ignorance as to his or her position in the class, the hypothetical consent idea allows representation to go forward even when some class members will be relatively better off and some worse off as the case develops. This approach can provide useful guidance both for the interpretation of counsel's duties under applicable rules of professional responsibility and also for courts deciding whether to certify class actions or approve class action settlements.
    Miller is not the first scholar to suggest the relevance of the Rawlsian "veil of ignorance" to questions of procedural justice. Bob Bone has a marvelous paper on this topic, Robert Bone, Agreeing to Fair Process: The Problem with Contractarian Theories of Procedural Fairness," 83 B.U. L. Rev. 485 (2003), and Bruce L. Hay and David Rosenberg have a working paper on SSRN entitled The Individual Justice of Averaging--the sets up an ex ante choice situation that is structurally a “veil of ignorance.” There is even a student note with a sophisticated analysis. See Ryan Kathleen Roth, Note, Mass Tort Malignancy: In the Search for a Cure, Courts Should Continue to Certify Mandatory, Settlement Only Class Actions, 79 B.U. L. Rev. 577 (1999). Moreover, there have been other attempts to use the notion of "hypothetical consent" to cut legal ice in the context of conflicts of interests. See, e.g. Charles Silver & Lynn A. Baker, I Cut, You Choose: The Role of Plaintiffs' Counsel in Allocating Settlement Proceeds, 84 Va. L. Rev. 1465 (1998)
    A Few Observations About Class Conflicts & the Veil of Ignorance Miller’s paper deals with the intersection between two topics that are near and dear to my heart, procedural justice and the veil of ignorance as a theoretical tool for normative analysis of law. In order to get at the really interesting stuff, I need to fill you in on some background about class actions & class conflicts, so let’s roll!
      What are conflicts of interests in the context of class action litigation? In a class action, a representative party is authorized by law to bind all of the members of a class to the outcome of a legal proceeding. When a class is certified, the power of the class representative to make decisions on behalf of the class is presumptively established. One of the criteria for class certification is "adequacy of representation," and representation is not adequate if there is a "conflict of interest" between the class representative and members of the class.
      Theory and Practice: The Role of Class Counsel That’s the theory, but the practice is a bit different. In the real world, the major decisions in a class action are likely to be made by the lawyers for the class, with the class representative acting more or less as a “rubber stamp,”; because the lawyers know more and it would be very costly for the representative to learn enough meaningfully to control the lawyer. One of the requirements for class certification is “adequacy of representation.”; Given the important role of class counsel, it is not surprising that both the representative party (the nominal plaintiff) and the counsel for the class must be capable of adequately representing the interests of the absent members of the class.
      Inadequate Representation A judge might find that the class representative or class counsel is an inadequate representative for a variety of reasons. For example, the class representative might be incompetent, unable to understand the implications of her decisions on behalf of the class. Or the class counsel might be insufficiently experience, as when a first-year lawyer attempts to represent a class in a very high stakes case. But one of the most important reasons for finding inadequacy of representation is “conflict of interest.” One kind of conflict is a conflict between the representative party and the class. A second kind of conflict is between class counsel and the class. A third kind of conflict occurs when some members of the class have interests that oppose those of other class members. One of the really terrific things about Miller’s paper is that provided a wonderful typology of conflicts of interests in class actions.
      Intraclass Conflicts The third kind of conflict is a conflict between subgroups (or members) of the class. Give me an example! A famous example is provided by the Supreme Court’s decision in Hansberry v. Lee, a case involving a racially restrictive covenant and a subdivision. Some members of the class had an interest in having the covenant upheld; other members of the class had an interest in having the covenant struck down. But the class included both groups and was controlled by the group the wanted the covenant upheld. This is a classic example of an intraclass conflict.
      What I Am Not Going to Discuss Miller’s paper discusses all kinds of class conflicts, but from this point forward I will limit my discussion to intraclass conflicts. These are probably not the most important conflicts from a practical standpoint; conflicts between counsel and class best fit that description. But intraclass conflicts are still important, they are very interesting to me, and Miller has some very provocative points to make about them.
    Ex Ante & Ex Post
      A Gap in Miller's Discussion In a sense, Miller’s paper is about the question, From what perspective or standpoint should we assess conflicts of interest in class actions? Even though Miller’s article is, in a sense, all about perspective on class conflict, there is a somewhat surprising lacunae in his very interesting treatment of that issue: Miller never mentions the distinction that is at the heart of his argument--the distinction between the ex ante and ex post perspective on class conflicts. That’s a mouthful. What does it mean?
      Ex Ante: Forward Looking In general, ex ante means forward looking. Thus, the ex ante perspective on class conflicts asks the question from the point in time at which the certification decision is made, i.e. at the outset of the litigation. Given the facts as they are known at the outset of the litigation, will there be a conflict between subgroups within the proposed class?
      Ex Post: Backward Looking In general, ex post means backward looking. The ex post perspective on class conflicts asks the question from the point in time when the litigation has been resolved, the class has either prevailed or lost, and if the class has prevailed, relief has been awarded. Given the facts as they are known at the end of the litigation, was there a conflict between subgroups within the certified class?
      Why the Difference in Perspective Is Important In the very same case, the answer to the question, “Is there an intraclass conflict?,” may vary, depending on whether we answer the question from the ex ante or the ex post perspective. Why? Some intraclass conflicts that do not appear or exist ex ante, come into being or become noticeable ex post. For example, when a class action settles, it may happen that at some point in the settlement negotiation it will become clear that the defendant’s offer is for a limited amount (e.g. a dollar sum or set of payouts with a present value equivalent to some sum). And it is possible that the total amount on the table is exceeded by the best estimate of the best estimate of the legally correct value of all the claims. Each class member would prefer that she get the full legal value of her claim, and that the shortfall in the total settlement be borne by other members of the class.
      Generalizing the Importance of Perspective More generally, once the class action is over and done with, there may well be cases where individual class members will say, “I now see that I could have done better through individual litigation." Or, “Now I see that a subclass could have been carved out, and I would have done better if I had been a member of that subclass.” The class action, ex post hurt me (or me and others like me) but helped other members of the class.
      Why Ex Post Intraclass Conflicts Are Not Grounds for Decertification Ex post conflict usually is not a basis for decertification of a class. Why not? In the case of a limited settlement amount, the available funds for payout can be distributed so the shortfall is borne equally (or proportionately) among all class members—class counsel has no incentive to deviate from a fair allocation of the settlement and the court should only approve a settlement that fairly allocates the proceeds among class members. Moreover, from the ex ante perspective, it may well be in the interests of all class members to proceed on a class basis, despite the fact that some members of the class may receive less from the class settlement than they might receive from individual litigation. Individual litigation may result in a greater individual award, but also greater attorney’s fees, and individual litigation may be riskier for plaintiffs, with some recovering more from their individual lawsuits but others recovering less or nothing at all. So depending on the facts, the ex post conflict of interest may well disappear if viewed from the ex ante perspective.
        Caveat: A conflict that is discovered while litigation is in progress may still be considered an ex ante conflict, if the litigation is at a stage where subclasses can still be created and the costs of subclassing to all subclasses are exceeded by the accuracy benefits.
      Class Certification Is An Ex Ante Decision The class certification decision examines conflicts of interest from an ex ante perspective. This is, in a sense, inevitable. Classes are certified at the beginning of the litigation. This does not, I think, mean that conflicts that develop or are revealed during the course of litigation could not lead to the decertification of a class. But at least as a general rule, the law is looking for ex ante and not ex post intraclass conflicts.
    What Is the Veil of Ignorance We need one more concept before we can examine Miller’s interesting idea. What is the veil of ignorance? For a short but full explanation, take a look at this installment of the Legal Theory Lexicon, but here is the gist:
      "Going behind the veil of ignorance" means performing a thought experiment. You ask yourself: "What legal rule would I choose if I didn't know such and such information."
    The phrase “veil of ignorance” was introduced by the political philosopher, John Rawls, as part of the original position--an initial choice situation in which representative parties choose principles of justice to govern the basic structure of society. But we can use the veil of ignorance more generally as the basis for determining what is fair by asking, “What outcome would those affected by a legal determination choose if they were behind the veil of ignorance and did not know their position in the legal proceeding?” So we might attempt to determine whether rules of procedure are fair by asking whether they would be chosen by parties behind a veil of ignorance which prevented them from knowing whether they were plaintiffs or defendants.
    Class Conflicts Behind the Veil
      The Basic Idea So here is Miller’s basic proposal:
        I propose a simple approach to guide analysis: a conflict of interest should be deemed impermissible if a reasonable plaintiff, operating under a veil of ignorance as to his or her role in the class, would refuse consent to the arrangement.
      No Idiosyncratic Interests Miller fleshes this out with some additional description:
        The decision-maker, under this standard, is a “reasonable” plaintiff. This idea is intended to accomplish two objectives. First, it operates to remove idiosyncratic features that might pertain to an individual class member in real life. For example, the reasonable plaintiff is not opposed to or supportive of class action litigation on ideological grounds, has no attitude towards the defendant based on personal history not shared by other class members, and is not unusually risk-averse or risk-preferring relative to the class. Nor is the reasonable plaintiff motivated by a desire to have her “day in court.”
      A Friendly Amendment I want to suggest a technical (and perhaps only terminological) correction to Miller’s description. Let’s use the phrase “reasonable class member” or “reasonable plaintiff” to describe a plaintiff who would give or withhold consent to a potential conflict in the same situations as would a representative class member behind the veil of ignorance--with all of the conditions that Miller attaches. With this minor correction in place Miller’s idea is that a reasonable class member in the actual world would consent if the representative class members behind the veil would consent. Why this very technical correction? Because we want to reserve the phrase “reasonable class member” for the hypothetical class member who would decide as would the representative parties behind the veil. If we call the parties behind the veil “reasonable,” before they deliberate, we haven’t fully incorporated the affect of the veil into our description of the reasonable party. I think that this is actually what Miller intended, and that he would accept this terminological correction as a “friendly amendment.”
      The Interests of the Representative Class Members Miller then goes on to describe the interests of the representative class members. As before, substitute “representative” for “reasonable” in the description that follows:
        The idea of a reasonable plaintiff implies that the decision-maker is motivated by rational self-interest, defined as a wish to maximize the value of her personal stake. She will not, for example, prefer a lower settlement to a higher one, or a later payout to an earlier one of the same amount. The reasonable plaintiff need not, however, be motivated solely by monetary gain: if the members of the class could be expected to have a nonpecuniary interest in the case – such as, for example, a reason to desire injunctive relief against the defendant – the reasonable plaintiff will share that interest. Similarly, especially in non-opt-out class actions, the reasonable plaintiff may have an autonomy based interest, grounded in the policies of the first amendment, in not having an attorney purport to speak in her name in making arguments or seeking results with which she disagrees.
      Classes and Subclasses So far, we have elided an important question. What does it mean to consent to a potential conflict of interest in a class action? It is very important to realize that “consenting to a conflict” is not the same as “choosing between a class action and an individual action.” Why not? Because there is a relevant third alternative, the creation of a subclass. When you decide whether to consent to the conflict, you are necessarily deciding among three possible options:
        Option One: Proceed as a unified class.
        Option Two: Proceed with subclasses having different representation.
        Option Three: Do not proceed with a class action, but instead allow each class member to bring an individual lawsuit.
      Relief and Litigation Costs And one more piece of the puzzle. When the representatives are reasoning behind the veil of ignorance, they will need to consider two different kinds of consequences that can affect their decision:
        Outcome Costs and Benefits--such as value to the plaintiff of the relief discounted by the probability of obtaining that relief giving the choice among the three options.
        Process Costs and Benefits--such as the cost to the plaintiff of participating in individualized litigation and the amount of the damages that will be consumed by attorney’s fees.
      A Quick Restatement So Miller’s basic idea is wonderfully simple and illuminating. When we are faced with the question whether there is a conflict of interest among class members that should preclude a determination that there is adequate representation, we perform the following thought experiment. We imagine representative class members behind a veil of ignorance, which deprives them of any information as to which particular members of the class they represent. These representatives are assumed to be rationally self-interested in maximizing their recovery, to be risk neutral, to have nonpecuniary interests shared by class members, but not to have idiosyncratic interests, such as an interest in having an individualized day in court. If the representative class member behind the veil with the interests specified would choose a unified class over a subclass or individualized litigation, then we say that reasonable class members would consent to the potential conflict of interest and hence that the possible conflict should not preclude class certification.
    The Case Against Going Behind the Veil I apologize for the very long windup. This is where it starts to get really interesting. I am going to try to convince you that Miller is wrong: we should not go behind the veil to decide whether there is an intraclass conflict that should preclude us from certifying a class. Here is my argument:
      Three Choices We can look at class conflicts from three candidate perspectives:
      • Ex Post--from the perspective of a litigant at the end of the action, with information about how she actually fared that can be compared with her ex post estimate of how she would have fared if she had litigated individually and how she would have fared if a subclass had been certified.
      • Ex Ante--from the perspective of a litigant at the start of the action, with information about how she is likely to fare if the action proceeds on a class basis which she can compare to her estimate as to how she would likely fare if she litigated her claim individually and how she would likely have fared if subclasses had been certified.
      • Behind the Veil--from the perspective of a rationally self-interested, risk-neutral class representative, unaware of her position in the class and information about how should would likely fare if the class is certified and how should would likely fare if the class is not certified.
      The Argument Against Miller: There Are No Intraclass Conflicts Behind the Veil Miller wants to ask whether a reasonable member of the class would consent to a potential conflict of interest from behind the veil of ignorance. Recall that we are limiting out attention to intraclass conflicts, e.g. situations where one group of class members has interests that oppose other class members. So here is the problem. Behind a veil of ignorance which deprives the representative class members of knowledge as to their position in the class, there cannot be an intraclass conflict. Why not? Because class conflicts arise between class members qua the positions that they occupy within a class. Once we deprive class members of that information (by putting it behind the veil), then class representatives cannot have any interests that conflict. That is all very airy and abstract, can you be more concrete? Yes, let's look at two examples.
      Example One: Hansberry v. Lee The first example is based on a very famous Supreme Court case. I'm altering the case to make it simpler, but the changes I make will not affect anything important for our purposes. Here is the setup:
        There is a subdivision with a racially restrictive covenant. The covenant, which limits the ability of class members to sell to nonwhite buyers, goes into affect if it is agreed to by 95% of the homeowners. A group of homeowners brings a class action on behalf of the class of all homeowners against a nonsignatory who is about to sell her home to a nonwhite buyer. The lawsuit alleges that the covenant is valid and asks for an injunction against the sale and a declaration that the covenant is valid.
      Hansberry v. Lee was decided before the Supreme Court had held that such covenants were invalid on the basis of the equal protection clause. So, the only real legal or factual issue on the merits is whether 95% of homeowners have signed. But who gets to litigate that question: a unified class, subclasses, or individuals? A unified class should only be certified if representation is adequate. If there is a conflict of interest among class members, certification should be denied. If there is no conflict of interest, certification should be granted.
      How would we analyze Hansberry v. Lee from our three perspectives (ex post, ex ante, and behind the veil?
        Ex Post: From the ex post perspective, there was clearly a conflict in Hansberry. Why? Because ex post, some parties prefer that the covenant be enforced and others prefer that it not be enforced. In cases of injunctive or declaratory relief, if some class members want the injunction or declaration and others do not, the conflict is apparent.
        Ex Ante: Here it gets just a tiny bit tricky, because it is actually not absolutely clear that the conflict in Hansberry did exist ex ante. The Supreme Court, however, seems to assume (reasonably) that at the time of certification, some class members would want to be free to sell to noncaucasian buyers and hence that some class members did and some did not want the declaration that the covenant was valid. Assuming this is the case, then from the ex ante perspective, there was a conflict in Hansberry and certification should have been denied.
        Behind the veil of ignorance: But how would we look at Hansberry from behind the veil of ignorance? Suppose you are behind the veil. You don't know which member of the class you represent. How would you decide whether to consent to the conflict? Behind the veil, you don't know whether you favor or oppose the requested declaration. You could look at the costs and benefits of either decision. But if you do look at costs and benefits, you very well may consent to the conflict. Why? Because from behind the veil (as it is specified by Miller), all you can do is aggregate. If the monetary benefits of enforcing the covenant exceed the costs, you will consent. If there is a tie on direct costs and benefits (outcome costs), you will still consent, because consenting minimizes litigation costs. Suppose, however, that you don't look at costs and benefits. Then, all you could do would be to count noses. If more members of the class would support the declaration than oppose it, then you might reason, after the veil is lifted, it is more likely than not that the party I represent will favor the declaration, so from a risk natural self-interested perspective, I should consent to the conflict, because that maximizes the expected value of the parties that I represent.
      Example Two: Amchem The second example is based on Amchem, another well-know decision of the Supreme Court. I'm going to use a very stylized version of its facts:
        Suppose we have two groups of mass tort plaintiffs, group A has high value claims and group B has low value claims. (Imagine for example, the group A has a clear case for causation, but group B does not.) If the case is litigated as a unitary class action, all class members will recover the same about of damages. If the case is litigated with subclass for group A and group B, then the total amount of damages will be reduced by 10% because of increased litigation costs, but group A will bet significantly more than with a unitary class and group B will get significantly less. If the case is litigated through individual litigation, the outcome is less predictable. Some members of group A will get very large awards, some will get awards similar to those under the class litigation options, and some will get nothing. Similarly, with group B, except few will get large awards and more will get nothing. The total amount actually paid out to plaintiffs under individual litigation will be 50% of the amount paid out under the unitary class option.
      Given these facts, would the parties consent:
        Ex Post: From the ex post perspective, winners will consent and losers will not. That is, if my ex post estimate of my expected payout from either subclasses or individual litigation is higher than what I actually receive from a unitary class action, then I would refuse consent.
        Ex Ante: Reasoning from the ex ante perspective will be similar, but I will have less information. First, I will not know the actual amount awarded pursuant to a class action. Second, I will not have any additional information about the value of my own claim (e.g. any injuries that would become apparent between certification and the time at which the ex post evaluation would occur. Given the setup of the hypo, members of the high-value claim subgroup would not consent to a unitary class, but they would consent to two subclasses.
        Behind the veil: But behind the veil of ignorance, consent is automatic. The parties behind the veil simply maximize the payouts for the group as a whole. Given that payouts will be larger with a class action than with subclasses or individual litigation (because the litigation costs will be lower), the representative parties behind the veil would give their consent to the conflict of interest. Interestingly, Miller, in his discussion of Amchem does not employ the veil of ignorance, and seems to argue instead, that ex ante conflicts would not be consented to by the reasonable plaintiff. (See page 37 of his working paper.)
      What’s Gone Wrong? It is now obvious that something has gone dreadfully wrong with our application of the veil of ignorance to the problem of hypothetical consent to intraclass conflicts. What happened? Here is one way of putting it: Putting the class members behind a veil of ignorance that excludes knowledge of position in the class is an inappropriate way of representing deliberation by a reasonable party deciding whether to consent to a conflict, because “position in the class” is what is at stake. That’s a lot of jargon! What do you mean? Our problem was conflicts of interest. You can’t reason about conflicts of interest by imagining that they don’t exist and then asking, “If there were no conflict, would you consent to it.” In other words, Miller’s idea is incoherent at a deep level.
    Some final words So in the end, I don’t think Miller’s argument works, but that does not mean that it was not edifying. In particular, Miller’s thought experiment provides an edifying context in which we can examine the more general debate exemplified by the arguments made by Robert Bone in Agreeing to Fair Process: The Problem with Contractarian Theories of Procedural Fairness," 83 B.U. L. Rev. 485 (2003), on the one hand, and Bruce L. Hay and David Rosenberg, in The Individual Justice of Averaging, on the other. Applying the ex ante perspective to questions of procedural justice is a sound move, but it is crucially important to ask the question, “When?” That is, from which temporal perspective do we ask the question whether a procedure is fair. As the example of intraclass conflicts illustrates, the answer to this question cannot be, “Before the dispute even arises.” Why not? Because if you simply ask, “What procedures would maximize your wealth (or utility or welfare) ex ante as applied to disputes you may (or may not) be involved in at some unspecified future time?,” there can only be one answer. That answer is, “The procedures that maximize wealth (or utility or welfare).” The question at hand should be, “What procedures are fair?” But putting parties behind a veil of ignorance the deprives them of all information about the effect of procedures on their own interests simply dissolves the question. And that is the crucial point, you cannot answer a question with a thought experiment that makes the question itself go away.

Law School and Medical School For some interesting comments on comparative pedagogy, surf here.

Wall Street Journal on Janice Brown The Wall Street Journal weighs in today on Janice Brown's nomination:
    The truth is that Judge Brown is all too qualified, and what scares the left is her chances for promotion. More U.S. Supreme Court Justices--including Antonin Scalia, Ruth Bader Ginsburg and Clarence Thomas--have come from the D.C. Circuit than from any other federal court. Democrats don't want President Bush to get credit for putting a black woman on the High Court any more than they wanted him to appoint the first Hispanic Justice, which explains their earlier filibuster of Miguel Estrada. The lesson liberals learned from Clarence Thomas's success is to start attacking early when fewer people are paying attention. Senators who had approved Judge Thomas's appointment to the D.C. Circuit found it politically difficult later to oppose his promotion to the Supreme Court. So they're out to defeat Judge Brown at the appellate level when they know she won't make the cover of Time. So she's getting the by-now-ritual Borking.
I don't think this will help end the downward spiral of politicization. Any chance of getting both sides to focus on the merits of Brown's nomination?

Interview with Karl Marx Here, link via Crooked Timber.

This and That My apologies for accidentally posting several of today's events yesterday. The posts have been moved & yesterday's events were posted late. I've added En Banc to the blogroll & regular readers will have already noticed that the sidebar has been reorganized.

Kumm on a Constitional Theory of the Relationship between National and International Law at NYU At NYU's Colloquium in Legal, Political and Social Philosophy, Mattias Kumm (NYU School of Law) presents Towards a Constitutional Theory of the Relationship between National and International Law. Here is a taste:
    The argument from the international rule of law is insufficient to justify as strong a role for national courts as an uncompromisngly internationalist position suggests. Yet the idea of an international rule of law is strong enough to throw into serious doubt uncompromisingly dualist positions. This discussion of the international rule of law has yielded two propositions. First, there are morally attractive features about the ideal of the international rule of law that provide prima facie support for the claim that courts have a role to play in the enforcement of international law, even absent specif ic endorsement from the political branches. Second, beyond furthering the international rule of law, there are countervailing considerations that may limit the role of national courts as enforcers of international law. Reciprocity and flexibility concerns suggest that, whatever the moral case for national courts enforcing international law, national courts have independent reasons to design enforcement doctrines that foster coordination and cooperation with the executive branches to address those specific and limited concerns. Furthermore, there are important moral considerations beyond the international rule of law, narrowly understood, that need to be clarified and their implications assessed, before it is possible to determine to what extent competing considerations provide national courts with good reasons to enforce international law. It follows that any general account of the relationship between international law and national law, and any arguments about the role of national courts in a specific context, must be sensitive to all of these concerns in order to be convincing. To the extent dualist accounts along the lines Professor Bradley suggests18 fail to take into account values underlying the international rule of law, they are as one-sided and flawed as an uncompromisingly internationalist approach.

Sunder on the New Enlightenment at Yale At Yale's Legal Theory Workshop Madhavi Sunder (University of California at Davis (Law)) presents The New Enlightenment & Piercing the Veil. Here is a taste:
    Current scholarship posits an inherent conf lict between women’s rights and culture.9 But this Article argues that religion qua religion is less the problem than is our traditional legal construction of this category. Premised on a centuries-old, Enlightenment compromise that justified reason in the public sphere by allowing deference to religious despotism in the private, human rights law continues to define religion in the twenty-first century as a sovereign, extralegal jurisdiction in which inequality is not only accepted, but expected. Law views religion as natural, irrational, incontestable, and imposed—in contrast to the public sphere, the only viable space for freedom and reason. Simply put, religion is the “other” of international law.

Mack on Realism and Civil Rights at Alabama Kenneth Mack, of Harvard Law School, will be presenting the University of Alabama Law School's annual Hugo Black Leture today. His title is The Relationship Between the Legal Realist and Civil Rights Movements.

Miller on Immigation at University College, London At University College, London's School of Public Policy, David Miller (Oxford) presents Immigration: the Case for Limits.

Gordon on Copyright at Boston University At Boston University, Wendy Gordon presents Rendering Copyright Unto Caesar: Free Speech, Locke, and the Sphere of Gift.

Galston gives the Terrelll Lecture at Texas on Structures of Diversity At the University of Texas, William Galston (University of Maryland) presents the Alexander Terrell Centennial Endowed Lecture: Structures of Diversity: Political Pluralism and the Limits of Public Power.

Klausner on Foundations at Michigan At the University of Michigan's law and economics series, Michael Klausner (Stanford) presents Discounting Future Charity: An Analysis of Foundation Payout Rates and their Regulation & When Time is Not Money: Foundation Payouts and the Time Value of Money.

Priester on Sentencting & Separation of Powers at Florida State At Florida State University, B.J. Priester (FSU College of Law) presents The Separation of Powers and the Constitutional Law of Sentencing.

Hill on Rating Agencies at George Mason. At George Mason, Claire Hill (Chicago-Kent School of Law) presents Rating the Rating Agencies.

Montini on International Environmental Necessity at Oxford At Oxford's Public International Law Discussion Group, Massimiliano Montini presents Environmental Necessity in International Law.

Bond on Many Madisons James E. Bond (Seattle University School of Law) has a review of James Madison and the Future of Limited Government on The Independent Review. Here is a taste:
    It is perhaps not surprising that a collection of essays should present many different views of Madison, perhaps the most gifted political thinker of his age. Yet the reader is left wondering: Is there a “real” Madison? Was he pragmatic or principled? Was he a high Federalist or a Jeffersonian Republican? The answer to all three questions is yes—which is to say that Madison, perhaps more than any other Founding Brother, embodied, articulated, and negotiated the tension between the conflicting values and aspirations of his generation. Americans have always been both pragmatic and principled; and it is as true today as it was in 1800 that, as Jefferson declared in his first Inaugural Address, “We are all Republicans; we are all Federalists.” That “reality” is why the most concise and prescient assessment of Madison’s relevance to contemporary America appears not in any of the essays, but on the book’s dust jacket, where Larry Sabato comments: “To know America, you must know Madison.” There is no better place to make his acquaintance than in this book.

Marx and Wittgenstein? Courtesy of Online Papers in Philosophy, David G. Stern has a Review of Gavin Kitching and Nigel Pleasants' (eds.)Marx and Wittgenstein: Knowledge, Morality and Politics up on Notre Dame Philosophical Reviews:
    What, the reader of this review may well wonder, is the point of a collection of essays connecting Marx and Wittgenstein? After all, “it is possible to take almost any two thinkers of genuine insight and sophistication and to find some parallels and commonalities in their thought. Indeed, doing so is one of the favourite intellectual pastimes of all academics.” Indeed, one could legitimately ask whether “any two thinkers have less in common than Karl Marx and Ludwig Wittgenstein.” Consider, for a moment, the case for the prosecution. On the one hand we have Marx, political activist and economic theorist, the founder of the ’science’ of ’historical materialism,’ whose Theses on Feuerbach proclaim that “philosophers have only interpreted the world in various ways, the thing however is to change it.” On the other, Wittgenstein, a philosopher who “showed virtually no interest in conventional political activity,” famous for writing that “philosophy . . . leaves everything as it is” and who asked himself “who knows the laws by which society evolves?” only to answer “I am sure they are a closed book to the cleverest of men.”

Conference Announcement: The New Federalism
    Our New Federalism? National Authority and Local Autonomy in the War on Terror The David G.Trager Public Policy Symposium Brooklyn Law School Friday November 21, 2003 In a series of cases decided before 2001, the Supreme Court set out rules prohibiting the federal government from "commandeering" local law enforcement officials but allowing the federal government to preempt certain laws that thwart national interests. How do these constitutional limitations apply to federal agents engaged in the war against terrorism and to local officials who are resisting what they believe to be federal government overreaching? This symposium assembles a group of distinguished scholars and practitioners with diverse perspectives to discuss and debate issues arising out of the clash between principles of federalism and the war on terror. For example, may the federal government preempt local laws 1) requiring disclosure of the identity of federal detainees in a local jail, 2) prohibiting local agencies from ascertaining or disclosing the immigration status of people who seek their services, or 3) prohibiting law enforcement infiltration of religious or political organizations? May the federal government compel a local Chief of Police to conduct interrogations of local Arab and Muslim men on behalf of the FBI, or to enforce federal immigration law? And when state or local officials voluntarily cooperate with federal authorities, do federalism concerns still exist? The forum is named for Brooklyn Law School's former Dean, now U.S. District Judge David G. Trager. For a schedule of speakers and topics, please click on the "for information" link below to download a PDF of the symposium brochure. Participants will include Ann Althouse (Wisconsin), Vikram Amar (Hastings), Erwin Chemerinsky (USC), and Paul Finkelman (Tulsa), who will present back ground papers in the morning, and Vicki Jackson (Georgetown), Jason Mazzone (Brooklyn), Burt Neuborne (NYU), Ernie Young (Texas), commenting on the presentations. The afternoon roundtable, moderated by Susan Herman (Brooklyn), will include the participants previously listed, joined by Lucas Guttentag (ACLU Immigrants Rights Project), Arnold Howitt (Kennedy School of Government, Taubman Center), Elizabeth Rindskopf Parker (Dean, McGeorge, former counsel to the CIA), Judith Resnik (Yale), and Judge David G. Trager. Papers presented at the symposium will be published in a forthcoming issue of the Brooklyn Law Review . CLE credit available. Register online for the symposium at For the symposium brochure, visit For more information contact the Special Events Office: (718) 780-7966

Class Action Reform at the AEI today
    Class Action Reform: The Why and the Who Thursday, October 30, 2003, 9:00-noon Wohlstetter Conference Center, Twelfth Floor, AEI 1150 Seventeenth Street, N.W., Washington, D.C. 20036 The debate over class action reform has long suffered from a lack of theoretical and institutional context. Much attention is lavished on the technical details of competing reform proposals, with little recognition that those proposals often reflect widely divergent-though rarely articulated-assumptions about the general purposes of liability law (for example, deterrence of bad conduct and compensation of harmed individuals). At the same time, little sustained thought has been given to the institutional context of class action reform-that is, the specific risks and opportunities of pursuing reform through the federal courts, the Judicial Conference, the Congress, or federal agencies. Please join the AEI Liability Project for an exchange of views on the purposes and pathways of federal class action reform. 8:45 a.m. Registration 9:00 Welcome: MICHAEL S. GREVE, AEI Liability Project Panel I: Principles and Purposes of Class Action Reform Panelists: RICHARD EPSTEIN, University of Chicago and the Hoover Institution DAVID ROSENBERG, Harvard Law School Moderator: FRANCIS A. BUCKLEY, George Mason Law School 10:30 Coffee Break 10:45 Panel II: Class Action Reform-By Whom? Panelists: JOHN BEISNER, O'Melveny & Myers MARK A. PERRY, Gibson, Dunn & Crutcher The Hon. LEE ROSENTHAL, U.S. District Court TODD ZYWICKI, Federal Trade Commission Moderator: MICHAEL S. GREVE, AEI Liability Project Noon Adjournment Please see the attached invitation for registration information. Online registration is available at For more information, please contact Kate Rick at 202-862-5848. For media inquiries, please contact Veronique Rodman at 202-862-4871 or

Wednesday, October 29, 2003
Two Talks Today My apologies to the readers of Legal Theory Blog. I neglected to post the following entries from the Legal Theory Calendar earlier today:
    At University College, London's School of Public Policy, David Miller (Oxford) presents Immigration: the Case for Limits.
    At Australian National University, Hilary Charlesworth presents Is International Law Relevant to the War in Iraq and its Aftermath?.
And some talks for tomorrow were posted instead. Everything is now more or less in order & the calendar entries for tomorrow will now appear where and when they belong.

Felten on DMCA Exemptions Rulemaking Ed Felten reports on the very narrow exemptions granted for the next three years. The official scoop is here. And Ernest Miller has a great collection of links. And some more from Derek Slater here.

Rorty Reviews Posner, or what is the sound of two pragmatists clapping? Richard Rorty (pragmatist philosopher) reviews Law, Pragmatism, and Democracy by Richard Posner (pragmatist) judge. Here is a taste:
    Posner concludes that "deliberative democracy, at least as conceived by Dewey, is as purely aspirational and unrealistic as rule by Platonic guardians." What we have, and what we should be satisfied with, is an understanding of democracy that "accepts people as they are, does not think it feasible or desirable to try to change them . . . and regards representative democracy as a pragmatic method of controlling, and providing for an orderly succession of, the officials who (not the people) are the real rulers of the nation." To see the American political system in this way is to substitute what Posner calls "Concept 2" democracy for Deweyan "Concept 1" democracy. For Concept 2 democrats, democracy is "not self-rule" but is "rule by officials who are, however, chosen by the people and who if they don't perform to expectations are fired by the people." Concept 2 democrats "don't think that jawing in the agora is the most productive way for people to spend their time. They don't believe that politics has intrinsic value or that political activity is ennobling." Concept 2 democracy is a matter of balancing competing interests, not of debating the worth of ideas, and so is no more ennobling than commerce.
Update: And here is more from John Rosenberg at Discriminations.

More on John Hart Ely Check out Michael Rappaport's thoughts on The Right Coast.

Welcome to the Blogosphere . . . to Lee Blog, a venture of Professor Edward Lee of Ohio State's law school and the author of the very fine Rules and Standards for Cyberspace, 77 Notre Dame L. Rev 1275 (2002). Here is a taste of what promises to be a very interesting effort:
    In hindsight, the recording industy may have goofed in its strategy in trying to shut down Napster in 1999. What Napster had going for it back then was that (i) it was the first mover in the online space in its respective field, (ii) a fast growing user base in the upwards of 75 million people at one time, and (iii) the corresponding name recognition that comes from being one of the best sites to do something that others are doing less well. Popular sites like ebay, Amazon, and Yahoo, all show that having (i), (ii), and (iii) is a recipe for business success. With music one would expect even greater potential business.
Surf on over!

More on Iterative Prisoner's Dilemmas: The Grim Trigger Solution Dennis O'Dea (Department of Economics, University of Illinois) writes to suggest that tit for tat is not solution for the iterative prisoner's dilemma game (as described in this past Sunday's Legal Theory Lexicon). Here are his remarks:
    While the tit-for-tat strategy is the easiest to understand example of a repeated game strategy that seems to get around the problem, it is actually not a good solution. This requires us to expand our definition of solution a bit though; at the start of the game, if you know that your opponent is playing tit-for-tat, then a best response is indeed to play tit-for-tat. In that sense it is an equilibrium. In another sense, however, it is not. Suppose we start from middle of play, where previously we made opposite moves. Tit for tat dictates that we flop around forever. This is a worse outcome for you than if you unilaterally deviated away from tit for tat towards cooperation. That is to say, playing tit after a history of play such as that is NOT optimal. So tit for tat is in some sense not stable. A strategy in the infinitely repeated prisoner's dilemma that IS stable, and has a much better name, is the Grim Trigger. This is a strategy in which you cooperate after any history of play in which your opponent has not yet defected. So if my opponent ever defects, I will defect forever no matter how much he may cooperate in the future. This strategy is optimal after any history of play; we say it is subgame perfect. What is going on here is that the grim trigger makes the cost of defecting much higher than tit-for-tat. It is high enough that no matter what has previously happened, it doesn't pay to deviate from the grim trigger. That's really the best way to think of how repeated game strategies work; following the strategy gives you a certain payoff, and deviated gives you another. WE require that the payoff from deviating always be lower than following, so long as every ELSE follows the play dictated by the strategy; that is, we only require that unilateral deviations never pay. If we allow correlated deviations, the problem becomes much tougher. So if we want to support some outcome in a generic repeated game, we have to figure out what the worst possible outcome we can enforce upon someone is, and design a strategy that will force any deviant down to this level. So the level of cooperation we can support depends upon how bad an outcome we can inflict on other players.
Thanks! Well, that got me curious. Here is an excerpt from a paper by Elinor Ostrom, entitled A Behavioral Approach to the Rational-Choice Theory of Collective Action:
    Once a verbal agreement in an N-person setting is reached, that becomes the focal point for further action within the context of a particular ongoing group. If everyone keeps to the agreement, no further reaction is needed by someone who is a reciprocator. If, however, the agreement is not kept, an individual following a reciprocity norm--without any prior agreement regarding selective sanctions for nonconformance--needs to punish those who did not keep their commitment. A frequently posited punishment is the grim trigger, whereby a participant plays the Nash equilibrium strategy forever upon detecting any cheating. Subjects in repeated experiments frequently discuss the use of a grim trigger to punish mild defections, but reject the idea because it would punish everyone--not just the cheater(s) (E. Ostrom, Gardner, and Walker 1994). A much less drastic punishment strategy is the measured reaction. "In a measured reaction, a player reacts mildly (if at all) to a small deviation from an agreement. Defections trigger mild reactions instead of harsh punishments. If defections continue over time, the measured response slowly moves from the point of agreement toward the Nash equilibrium" (ibid., 199-200).
For more on the "grim trigger," check out:
  • Grim Trigger Strategy at GameTheory.Net.
  • Cooperating Democrats, Defecting Autocrats, by Fiona E.S. McGillivray and Alastair Smith. (This paper discuss the "leader specific grim trigger strategy," Abstract:
      Using the infinitely repeated prisoners' dilemma as a modeling platform, we examine how the domestic political institutions of nations affect their ability to cooperate internationally. We propose a strategy, the Leader Specific Grim Trigger, in which leaders direct punishments for past defections at the leader responsible rather than at the nation she represents. Leaders refuse to cooperate with those leaders that have cheated them in the past. However, by being prepare to cooperate with new leaders, cooperation can be restored. The focus of punishment on specific leaders rather than the nation means that domestic electorates want to remove leaders that defect. Hence, leaders that are held domestically accountable pay audience costs for failing to cooperate. In addition to showing that democratic dyads can cooperate to a greater extent than other pairs of nations, the model produces hypotheses about both the domestic consequences of international cooperation and the relationship between leadership change and the restoration of cooperative agreements.

Subramanian on Bargaining in the Shadow of . . . Guhan Subramanian (Harvard Law School) has posted Bargaining in the Shadow of Takeover Defenses (forthcoming Yale Law Journal, Vol. 113, No. 3, December 2003) on SSRN. Here is the abstract:
    Among the arguments that have been put forward to support the view that takeover defenses increase shareholder returns when a company becomes a takeover target, the "bargaining power hypothesis" is the most commonly cited argument today. Under this theory, takeover defenses allow the target to extract more in a negotiated acquisition because the bidder's no-deal alternative, to make a hostile bid, is worsened. Despite its centrality to the current debate on takeover defenses, the bargaining power hypothesis has never been subjected to a careful theoretical analysis or to a comprehensive empirical test. In this Article I present a model of bargaining in the "shadow" of takeover defenses that introduces alternatives away from the table, hostile bid costs, asymmetric information, and agency costs into the standard bargaining model. I confirm the features of this model using interviews with the heads of mergers and acquisitions at ten major New York City investment banks, which collectively account for 96% of U.S. M&A deal volume. I also present econometric evidence that is consistent with this model. The theoretical model, practitioner interviews, and econometric evidence presented here indicate that the bargaining power hypothesis is unlikely to be valid in many if not most negotiated acquisitions. This conclusion has implications for whether defenses increase or decrease shareholder wealth, and whether the recent pro-takeover movements in the Delaware courts will lead to negative consequences for target shareholders in negotiated acquisitions.

Tuesday, October 28, 2003
Must Reading for Cybertheorists I was just over at Ernest Miller's The Importance Of. I just cannot say enough in praise of this wonderful blog. Miller has recent posts on the future of TIVO, the broadcast flag, next generation DVD, and a slew of other topics. Miller's blog is a reminder of the transformative possibilities of the Internet. Oh, I'd better stop now.

New Papers on the Net Here is today's roundup:
    Spam - Oy, It's Such a Nuisance! Adam Mossoff Michigan State University-DCL College of Law Abstract:
      This article proposes a new legal solution to the mounting costs and problems associated with unsolicited commercial email (commonly known as "spam"). The need for a solution is pressing: spam is swamping the Internet, and ISPs and other businesses are suffering millions of dollars in losses attributable to spam. Yet the attempts at staunching the spam deluge with legislation and trespass lawsuits have been unsuccessful. In June 2003, the California Supreme Court dealt a blow to industry efforts at eliminating spam by reversing a trespass verdict against an alleged spammer. An intense lobbying campaign to push Congress to enact anti-spam legislation also failed this year, despite nine anti-spam bills proposed in the first half of 2003. The fundamental cause of these litigation and legislative failures has been the inability to conceptualize properly the legal harm caused by spam, which has frustrated attempts at creating the appropriate legal response. This article contends that ISPs and others businesses should sue spammers for private nuisance. The advantages to using nuisance have gone largely unexplored in the academic literature, and no plaintiff has litigated a nuisance claim against a spammer to a final judgment in a published court opinion. This article fills this lacuna, explaining how the harms caused to ISPs and business networks are classic examples of nuisance-type injuries. It also explains the numerous policy advantages to suing spammers for nuisance, which range from efficiencies achieved through the use of the proper litigation tools to a reduction in wasted resources spent lobbying for ineffectual legislation or temporary technological fixes. Although there is no single magic bullet for eliminating spam, nuisance doctrine can (and should) play an important role in the overall strategy to eliminate this omnipresent menace to the Internet - before, in the words of the FTC, spam "kills the killer app."
    Accommodation Subverted: The Future of Work/Family Initiatives in a 'Me, Inc.' World Texas Journal of Women and the Law, Vol. 12, 2003 Rachel Arnow-Richman Temple University - James E Beasley School of Law Abstract:
      This Article considers the viability of mandated employer accommodation of family caregiving in a work culture that prizes employee mobility and independence. Extant accommodation mandates, such as the ADA and the FMLA, have been only moderately successful in deconstructing discriminatory work structures that operate to exclude underrepresented workers. Court decisions interpreting those laws frequently invoke equality principles to limit their reach and preserve employer discretion, while decisions favorable to disadvantaged plaintiffs have often occasioned popular backlash. These circumstances call into question the efficacy of accommodation as a vehicle for achieving results-based equality for caregivers. Such difficulties, the Article suggests, must be analyzed against the development of a "Me, Inc." work culture, an environment typified by worker assumption of responsibility for training and education, increased employer demand for "extra-role" behavior, significant worker mobility and a corresponding decline in long-term employment relationships. The emerging view of workers as autonomous companies is in direct tension with society's historical designation of the employer as the party primarily responsible for accommodating the "life-cycle" needs of its workforce. On a practical level, changes in the nature and duration of work relationships mean that employers will have limited ability to absorb costs associated with accommodation, and, more significantly, that any judicial interpretation or popular conception of the employer's duty to accommodate will be constrained by the expectation of employee self-reliance. The Article therefore cautions that expansive efforts to mandate employer accommodation of caregiving risk internalizing the norms they reject and are unlikely to succeed on their own in establishing a work ethic more inclusive of family caregiving. It proposes instead three preliminary steps to redressing caregiver disadvantage that draw on established channels of federal employment regulation: the vigorous pursuit of class-based discrimination claims, reinvigoration of collective bargaining, and the creation of a government-administered system of wage replacement that incentivizes employer-initiated programs to assist caregivers.
    A WTO Agreement on Investment: A Solution in Search of a Problem? University of Pennsylvania Journal of International Economic Law, Vol. 24, p. 77, 2003 Kevin C. Kennedy Michigan State University-DCL College of Law Abstract:
      As global competition for foreign direct investment (FDI) intensifies, the question pending before the World Trade Organization (WTO) is whether to negotiate an agreement on investment that would address, inter alia, national laws that restrict market access of foreign capital. Whether the WTO can succeed in concluding a multilateral agreement on investment is subject to doubt. Several WTO members (e.g., the EU) have supported such a framework agreement, while others (e.g., the United States) have expressed misgivings and shown reluctance to move forward on meaningful negotiations. Considering the diverse and broad WTO membership that includes developed, developing, and emerging economies, a strong argument can be made that the WTO is the proper forum for concluding a multilateral investment agreement, not only because of its broad-based membership, but because of the close link between trade and liberalized investment rules. On the other hand, a WTO agreement on investment may be a solution in search of problem for the following reasons. First, FDI flows are steadily increasing, even in the absence of a multilateral investment agreement. Second, the threat to national sovereignty that a WTO agreement on investment represents to developing countries is a genuine concern. Third, the development concerns of developing countries and their capacity (or incapacity) to absorb yet another WTO agreement cannot be ignored. Fourth, it is safe to predict that many exceptions and reservations will be made to any WTO agreement on investment, effectively hollowing it out. Fifth, an incremental, sectoral approach is a tested and proven approach at the WTO for successfully negotiating market liberalization for foreign investment. Sixth, the most pressing issue facing the WTO membership in the context of FDI isn't a lack of market access for foreign capital. The immediate problem are TRIMs, both positive and negative, that potentially distort investment patterns. Seventh and finally, it is far from clear that the current network of bilateral and regional investment agreements provides an unstable and unpredictable legal environment for FDI. Bilateral investment agreements offer the flexibility that is not possible under a multilateral framework.
    Institutional Shareholders, Private Equity, and Antitakeover Protection at the IPO Stage University of Pennsylvania Law Review, Vol. 152 Michael Klausner Stanford Law School Abstract:
      Institutional investors have been slow to respond to the widespread presence of takeover defenses in the charters of firms whose shares they hold through private equity funds, and their response to date has been tepid compared to their efforts in the proxy context. Institutions' hesitancy may reflect a rational unwillingness among private equity funds, as well as the institutions' own investment staff, to require portfolio companies to go public with takeover-friendly charters. This article has developed a hypothesis to explain the common presence of defenses in the charters of firms that go public with private equity investment and the half-hearted response of institutional investors to this situation. Under this hypothesis - based on private equity funds' need to maintain a reputation for dealing well with successful managers of portfolio companies - it is privately rational but socially inefficient for private equity funds to have their portfolio companies adopt takeover defenses. The implication of the hypothesis is that institutional investors may face at least as difficult a challenge in ridding IPO charters of takeover defenses as they face in urging managers of already-public firms to eliminate defenses from their charters.
    Civil Obedience Columbia Law Review, Forthcoming W. Bradley Wendel Washington and Lee Law School Note: I blogged this paper in working paper form. Highly recommended. 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 live 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.
    Uncovering the Rationale for Requiring Infertility in Surrogacy Arrangements American Journal of Law & Medicine, Vol. 29, No. 2 & 3, 2003 Robin Wilson University of Maryland School of Law (Visiting Professor) Abstract:
      With little explanation, state legislatures have limited surrogate parenting arrangements to couples in which the intended mother is infertile or unable to bear a child without unreasonable risk. This requirement stands in stark contrast to the diminishing importance of infertility to adoption agencies, which have relaxed or abandoned it as a prerequisite to adoption. Commentators assert that an infertility requirement bars women who want to avoid the nuisance of being pregnant and giving birth from using a surrogate. Despite this patently moralistic explanation, studies now emerging indicate that an emphasis on infertility may further the best interests of the resulting child. Some of these studies suggest that children born of surrogate parenting arrangements may face significant risks of major birth defects, risks of conception that arguably should be avoided if the intended parents can otherwise conceive. Other studies suggest that the child born to intended parents who later conceive may, like Cinderella, face reduced parental investment after a genetic child enters the household. In this Article, Professor Wilson examines whether a maternal infertility requirement can be rationally grounded in valid, significant concerns about risks to the resulting child. The Article identifies areas where additional information is required before studies like these can be relied on to support such a requirement. Ultimately, this Article concludes that an infertility requirement – while not intended by state legislatures as a protective measure - may be inadvertently rational and justifies continued attention to the relationship between infertility and the interests of the resulting children.
    The Case for Antitrust Enforcement Jonathan Baker American University, Washington College of Law Abstract:
      This paper provides evidence of the necessity and success of antitrust enforcement. It begins with examples of socially beneficial antitrust challenges by the federal antitrust agencies to price-fixing and other forms of collusion; to mergers that appear likely to harm competition; and to monopolists and others that use anticompetitive exclusionary practices to obtain or maintain their market power. It then reviews systematic empirical evidence on the value of antitrust derived from informal experiments involving the behavior of U.S. firms during periods without effective antitrust enforcement, and the behavior of firms across different national antitrust regimes. Overall, it concludes, the benefits of antitrust enforcement to consumers and social welfare - particularly in deterring the harms from anticompetitive conduct across the economy - appear to be far larger than what the government spends on antitrust enforcement and firms spend directly or indirectly on antitrust compliance.
    Voter Preferences and State Regulation of Smoking Economic Inquiry, Forthcoming Joni Hersch, Alison DelRossi and W. Viscusi Harvard University - Harvard Law School , St. Lawrence University - Department of Economics and Harvard Law School Abstract:
      Voters' preferences for smoking restrictions in restaurants, bars, malls, indoor sporting events, and hospitals are consistent with state-level restrictions on smoking in each of these public areas. This analysis is based on constructed measures of political pressure that take into account both individual preferences and voting behavior. Although smokers are less likely to vote than nonsmokers, their lower voting rate does not substantially influence the probability that a state has a restriction. Other factors, such as tobacco's role in the state economy and state income, are rarely influential.

Downward Spiral of Politicization Department In the New York Times, Neil Lewis has a story titled Where the Gloves Are Nearly Always Off. Here is a taste:
    Such is the level of partisan rancor at Senate Judiciary Committee meetings that some staff aides recently suggested that the Department of Homeland Security screen senators for weapons and sharp objects before they enter the hearing room.
But seriously,
    If trading insults is the rule on Capitol Hill these days, and it appears to be, the Judiciary Committee offers an especially vivid example, rivaling the House Ways and Means Committee, another increasingly nasty forum. The ritual courtesies, niceties like "I want to say to my good friend from the State of X," uttered as the prelude to a verbal assault, can no longer conceal the genuine anger and sometimes even loathing with which some Democrats and Republicans regard each other. Nor is there any sign that either side wishes to yield even a small bit, the first step to compromise and the breaking of a deadlock. In the Judiciary Committee, the bitterness springs partly from an understanding that the federal appeals courts are a principal battlefront in the culture wars. As judges increasingly decide some of the most heated social issues in the nation, the issue of who gets to be a federal judge has increased in importance.
As frequent readers of this blog know, I have been arguing for some time that the judicial selection process is in the midst of a downward spiral of politicization. And on Janice Brown,
    The latest candidate to provoke this debate was Janice Rogers Brown, a justice of the California Supreme Court who has been nominated to a seat on the influential appeals court in Washington. Justice Brown, an African-American, has given some fiery conservative speeches and written sharply worded judicial opinions. She insisted at her hearing last week that she was not, as her critics have asserted, "out of the mainstream" of legal philosophy. Ever since the 1987 confirmation hearing of Robert H. Bork to the Supreme Court, the issue of whether a nominee is in the legal mainstream has been a prime debating point. But Justice Brown has questioned the validity of the so-called incorporation doctrine, under which the essential elements of the Bill of Rights apply to the states. The incorporation doctrine is nowadays as well settled as any judicial principle and is a cornerstone of modern judicial decision making.
Of course, incorporation is settled, and undoubtedly, Brown understands that. Is the "soundness" of incorporation settled? Surely not--although I am inclined to think that history is on the side of incorporation. Interesting reading!

Harlow on Distributed Justice at Oxford At Oxford's Faculty of Law Professor Carol Harlow QC, FBA, delivers The Clarendon Law Lectures: Towards Distributed Justice. O.K., the title got me. What is "distributed" justice?

Leiter on Law & Evolutionary Biology at George Mason This should be good! At George Mason, Brian Leiter (University of Texas, Law and Philosophy) presents Why Evolutionary Biology is (so far) Irrelevant to Law.

Rabban on Historical Jurisprudence at Texas At the University of Texas, David Rabban presents The American School of Historical Jurisprudence. Here is a taste:
    I want to discuss the origins of my interest in what I call the American School of Historical Jurisprudence and to describe its central features. I will suggest that the existence of this school challenges prevailing views about the intellectual formalism and political conservatism of late nineteenth-century American legal thought, places Holmes and Pound, the most widely studied and admired legal scholars of the late nineteenth and early twentieth centuries, into a broader and extremely revealing context, and demonstrates that legal scholarship in the United States formed part of an intellectual world that spanned disciplines and countries.
Update: I just finished Rabban's short, but extremely interesting paper. Highly recommended!

Viens on Relativism and Applied Ethics at the Ockham Society At Oxford's Ockham Soceity, Adrian Viens (Oxford) presents Relativism and Applied Ethics.

Ghosh on Copyright as Privatization at Oxford's IP Seminar At Oxord's IP Seminar, Shubha Ghosh (SUNY Buffalo) presents Copyright as Privatisation.

Eleftheriadis on the Identity of Legal and Political Philosophy at Oxford At Oxford's Jurisprudence Discussion Group, Pavlos Eleftheriadis presents The Identity of Legal and Political Philosophy.

Broome on Rationality at Brown At Brown University's philosophy department, John Broome (Oxford) does the first in a series of three lectures:
    Tuesday, October 28 Rationality Wednesday, October 29 Theoretical Reasoning Thursday, October 30 Practical Reasoning

Yu on the Copyright Divide Peter Yu (Michigan State University-DCL College of Law) has posted The Copyright Divide (forthcoming Cardozo Law Review, Vol. 25, 2003) on SSRN. Here is the abstract:
    Most recently, the recording industry filed 261 lawsuits against individuals who illegally downloaded and distributed a large amount of music via peer-to-peer file-sharing networks, such as KaZaA, Grokster, iMesh, and Gnutella. Although the industry's recent approach was controversial and resulted in major criticisms from legislators, academics, civil libertarians, consumer advocates, and university officials, the copyright holders' aggressive tactics are not new. In fact, copyright holders have been known for using, or encouraging their government to use, coercive power to protect their creative works. Only a decade ago, the U.S. copyright industries have lobbied their government to use strong-armed tactics to coerce China into protecting intellectual property rights. Succumbing to U.S. trade pressure, the Chinese authorities eventually raided pirate factories and handed out harsh penalties, including the death penalty and life imprisonment in severe cases, on their citizens. The similarities between the RIAA and China stories were more than a coincidence and could be further linked to a third story. That story took place two centuries ago when the United States was still a less developed country. At that time, book piracy was rampant, and the United States was considered one of the most notorious pirating nations in the world. This Article brings together, for the first time, eighteenth- and nineteenth-century America, twentieth-century China, and twenty-first-century cyberspace and analyzes them using a cross-cultural, cross-systemic, cross-temporal, and cross-sectoral approach. This Article not only highlights the striking similarities among the three stories, but also argues that these similarities provide insight into the war on piracy, intellectual property law reforms, and international harmonization efforts.
Very interesting! What is most intriguing about the current enforcement effort is that it is directed at noncommercial and arguably private conduct, implicating a conflict between copynorms and copyrights that seems quite different than Yu's other two examples.

Tiefenbrun on the Life of a Geisha Susan Tiefenbrun (Thomas Jefferson School of Law) has posted Copyright Infringement, Sex Trafficking, and the Fictional Life of a Geisha (forthcoming Michigan Journal of Gender & Law, Vol. 10) on SSRN. Here is the abstract:
    This article explores the legal issues hidden within Arthur Golden's Memoirs of a Geisha. The geisha tradition has been alternately glorified by Japanese society, and outlawed by Japanese law as a form of prostitution. The leitmotif of Golden's famous novel is this evolving duality of the geisha as both artisan and courtesan. At its worst, the geisha tradition involves force, fraud, and deception, and the horrifying practice of selling one's own children into slavery for purposes of sexual exploitation. In striving for historical accuracy, Golden obtained an intimate interview with a real geisha named Mineko Iwasaki, who consented to reveal to him valuable secrets about the closed geisha society. Using her narrative as source material, Golden wrote a fictional biography of a little girl named Chiyo-chan who is sold by her own father at the age of nine into debt bondage. Like many Japanese girls sold by their parents into forced prostitution and slavery, Chiyo-chan endures a harsh indoctrination and eventually becomes a famous geisha known as Nitta Sayuri. The essence of the novel is the transformation of Chiyo-chan into Nitta Sayuri. The poetic, fairy-tale quality of Golden's prose, and his unusual narrative style, made the novel a literary and financial success upon its publication in 1997. In 2001, however, Mineko Iwasaki shocked the literary world by filing a lawsuit against Golden and his publishers, in New York court under Japanese and New York law, claiming breach of contract, quantum meruit, copyright infringement, unjust enrichment, defamation of character, and violation of her rights to privacy and publicity. It seems that Iwasaki became outraged by the discrepancies between her own life and that of Golden's purportedly fictional geisha. This article asks, and seeks to answer, two questions: First, is the geisha tradition as described by Golden a variant of sex trafficking and sexual slavery which, despite possible cultural justifications, should be abolished by law? Second, does Iwasaki's lawsuit have any merit?

Taipale on Data Mining K. A. Taipale (Center for Advanced Studies in Science and Technology Policy) has posted Data Mining and Domestic Security: Connecting the Dots to Make Sense of Data" (forthcoming 5 Columbia Science & Tech. Law Review (December 2003)). Here is the abstract:
    This article argues that security with privacy can be achieved by employing value sensitive technology development strategies that take privacy concerns into account during development, in particular, by building in rule-based processing, selective revelation, and strong credential and audit features. It does not argue that these technical features alone can eliminate privacy concerns but, rather, that these features can enable familiar, existing privacy protecting oversight and control mechanisms, procedures and doctrines (or their analogues) to be applied in order to control the use of these new technologies. Importantly, I believe that any future legislative or judicial oversight or control of the use of these technologies will require that these technical features be included in the initial development of the technologies. Thus, in my view, the defunding of DARPA's OIA will be turn out to be a pyrrhic 'victory' for civil liberties as the TIA and its related projects were the perfect programs around which to debate the rules and procedures for future use and to oversee the development of the appropriate technical features to support privacy policies.

Conference Announcement: Annual Meeting of the American Society for Legal History November 13 through November 16, the Annual Meeting of the American Society for Legal History, takes place in Washington, DC. Here is a the website & here is the program.

Monday, October 27, 2003
New Papers on the Net Here is today's roundup:
    You Can't Ask (or Say) That: The First Amendment Implications of Civil Rights Restrictions on Decisionmaker Speech William & Mary Bill of Rights Journal, Vol. 11, p. 727, 2003 Helen Norton University of Maryland - School of Law Abstract:
      Many antidiscrimination statutes limit speech by employers, landlords, lenders, and other decisionmakers in one or both of two ways: (1) by prohibiting queries soliciting information about an applicant's disability, sexual orientation, marital status, or other protected characteristic; and (2) by proscribing discriminatory advertisements or other expressions of discriminatory preference for applicants based on race, sex, age, sexual orientation, or other protected characteristics. This Article explores how we might think about these laws for First Amendment purposes. Part I outlines the range of civil rights restrictions on decisionmaker speech, while Part II identifies the antidiscrimination and privacy concerns that drive their enactment. Part III explores in some detail whether - and, if so, how - these civil rights laws fit within the Supreme Court's current commercial speech jurisprudence. I conclude that the restricted speech is most appropriately characterized as unprotected commercial expression because it skews, rather than educates, listeners' choices by facilitating illegal discrimination and deterring applicants from pursuing important opportunities. By sorting these communications according to their ability to contribute to listeners' paramount interest in informed decisionmaking, the Court's modern commercial speech doctrine most directly explains why these laws (like consumer protection statutes prohibiting deceptive and misleading representations) do not run afoul of free speech values. Because commercial speech doctrine is currently the subject of controversy and thus may be subject to change, Part IV goes on to assess other potential First Amendment approaches to this problem. I pose a series of queries at various points along the continuum of First Amendment protections: Is decisionmaker speech unprotected because it is more like discriminatory conduct than expression? If it is speech, is its value nevertheless sufficiently low to warrant something less than full protection? If it is fully protected expression, does the government's regulation of it nonetheless survive strict scrutiny? These approaches offer different ways to describe the same phenomenon: a specific context where speech is so closely tied to discriminatory action as to justify its regulation.
    Ubi Jus, Ibi Remedium: The Fundamental Right to a Remedy Tracy Thomas University of Akron - School of Law Abstract:
      This essay is part of the 2003 Remedies Forum symposium comprised of international remedies scholars addressing the topic of equitable relief in the fifty years since Brown v. Board of Education. It may be true that since the time of Brown, institutional defendants have won at the expense of plaintiffs. Defendants have learned that delay and defiance work. The U.S. Supreme Court has adopted a standard for ordering equitable relief that significantly defers to defendant wrongdoers at the plaintiffs' expense. Epithets of "activist courts" and "judicial legislation" have colored the existing scholarship and portrayed remedial action as illegitimate and excessive judicial power. And the recent barrage of school funding cases demonstrate the same resistance to court-ordered conduct as seen in Brown. This essay attempts to swing the pendulum in the other direction by suggesting that remedial action like that of Brown and its progeny is not only acceptable, but indeed, required judicial action. It argues that a remedy is more than a legal maxim. Rather, this essay argues that the right to a meaningful remedy is a fundamental right protected by the Due Process Clause of the Fourteenth Amendment. Stated simply: Ubi jus, ibi remedium. Where there's a right, there must be a remedy. The article traces the history of the remedy as a fundamental concept of our ordered liberty from Blackstone to the Federalists to Marbury v. Madison. It argues not only that the right to a remedy has been recognized historically as a fundamental right, but that it should appropriately be considered a fundamental interest under the law. Remedies perform two critical functions in the law: they define abstract rights and enforce otherwise intangible rights. Rights standing alone are simply expressions of social values. It is the remedy that defines the right by making the value real and tangible by providing specificity and concreteness to otherwise abstract guarantees. Relying upon U.S. Supreme Court precedent in cases involving punitive damages and tax remedies, the essay argues that the Court has implicitly recognized the minimum right to a meaningful remedy.
    Spontaneous Tax Coordination: On Adopting a Comparative Approach to Reforming the U.S. International Tax Regime Vanderbilt Journal of Transnational Law, Forthcoming Anthony Infanti University of Pittsburgh - School of Law Abstract:
      Despite being widely-acknowledged as an important tax policy goal, simplification of the U.S. international tax regime has received little substantive attention from commentators. When simplicity concerns have been addressed, commentators have generally considered only the internal complexity produced by individual U.S. rules or by the interaction of one U.S. rule with another U.S. rule. In practice, however, the U.S. international tax regime does not operate in isolation, but rather continuously interacts with other countries' international tax regimes. These interactions often engender conflicts that produce additional, external complexity. As a result, true simplification of the U.S. international tax regime can be achieved only when the problem of complexity is viewed from a holistic perspective that takes into account both the regime's internal and external complexity. With the need for a holistic approach in mind, this article explores the viability of adopting tax coordination - pursued through the use of comparative law as an aid to legislation - as a framework within which the U.S. international tax regime might be reformed. Initially, the concepts of tax coordination and tax harmonization are refined to provide a working vocabulary for use in the remainder of the article. Next, the manner in which the proposed framework is expected to operate in theory is detailed and the costs and benefits of adopting the proposed framework are considered. Finally, the manner in which the proposed framework is expected to operate in practice is examined using reform of the provisions governing the treatment of cross-border charitable contributions as an example.
    Eyes Wide Shut: Surveying Erosion in the Professionalism of the Tax Bar Virginia Tax Review, 2003 Anthony Infanti University of Pittsburgh - School of Law Abstract:
      There is a generalized feeling among lawyers today that the legal "profession" is eroding into the legal "business." However, the lack of hard evidence of change has made it easy to dismiss this feeling as no more than nostalgia for a non-existent "golden age" of professionalism. Nevertheless, erosion of any sort is a slow-moving, gradual process, and its visible effects only become noticeable as they accumulate with the passage of time. The effects of what appears to be a true erosion in the professionalism of the tax bar have recently begun to accumulate, providing evidence that the generalized impression of a decline may actually be grounded in reality. The evidence of this decline in professionalism takes the form of a growing number of articles in lay publications (e.g., The New York Times and Forbes magazine) that provide the general public with technical discussions of legal, but ethically questionable, tax avoidance techniques. The essay focuses on two groups of such articles that have appeared in The New York Times during 2002. The essay first provides a description of the tax avoidance techniques discussed in the articles and of how public attention effectively shut those techniques down. Next, as a prelude to discussing the impact of these events on the law as a profession, the meaning of the term "profession" is explored. It is contended that, when used to refer to the practice of law, the term "profession" is used in its sociological sense and describes an occupation whose members (i) have mastered an esoteric body of knowledge, (ii) are altruistic, and (iii) are self-regulating. Then, with this definition in mind, the events surrounding the apparent demise of each of these tax avoidance techniques are analyzed. Based on this analysis, it is concluded that these events undermine the rationale for granting the legal profession the right of self-regulation. By contributing to the erosion of the legal profession's claim to one of the defining characteristics of a "profession" these events necessarily contribute to the erosion of the legal profession's more fundamental claim to the benefits and privileges of professional status. The purpose of the essay is to document and draw attention to this evidence, as its implications for the profession seem to have been overlooked by commentators. It is hoped that, by drawing attention to this evidence, the essay will spur members of the tax bar to reflect seriously on (i) their own actions and how they may have contributed to the erosion in professionalism and (ii) more broadly, whether the standard of conduct to which they actively hold themselves and their peers is sufficiently rigorous.
    Lawyers in a Perfect Storm Washburn Law Journal, Forthcoming Mark Sargent Villanova Law School Abstract:
      The multiple corporate collapses and scandals of recent years, for which "Enron" is a convenient shorthand, resulted from a perfect storm in which regulatory oversight, the law of fiduciary duty, gatekeepers, market discipline, and contractual incentives all failed to prevent gross self-dealing, conflicts of interest, and deception, or themselves produced perverse consequences. The story of this simultaneous failure of the structures in place since the New Deal and before, has received considerable attention in both the popular and scholarly literature, but is summarized here to provide a context for consideration of the contributions that lawyers made to the perfect storm. The contribution of lawyers has received less attention than that of gatekeepers such as auditors and research analysts, perhaps because their complex role as both advocates and gatekeepers does not lend itself to a relatively simple morality tale, as did the failures of the auditors and analysts. This article attempts to identify the various types of failures by lawyers in these cases, and argues that there is no single way to describe or explain them; lawyers contributed to the perfect storm in at least several different ways. This complexity suggests that the SEC's new professional standards for lawyers, while perhaps helpful, do not provide a comprehensive solution to the problems that produced a significant contribution by lawyers to the perfect storm.
    Reform or Retrenchment? Single Sex Education and the Construction of Race and Gender Wisconsin Law Review, 2004 Verna Williams University of Cincinnati - College of Law Abstract:
      As parents, policymakers, and educators search for solutions to the crisis in the nation's public schools, single sex education emerges time and again as a promising strategy, particularly for African American students. As the abstract indicates, the Bush Administration has indicated its support for sex segregation and announced its intention to loosen the applicable legal standards to enable school districts to experiment with single sex schools and classes. This paper argues that, in order to comprehend fully the implications of single sex schooling in inner city schools, examining the history of sex-based and race-based segregation in education is essential. History demonstrates that sex and racial segregation in education has supported gender and hierarchies and the attendant subordination of African Americans and white women. For example, when public education became available for Blacks, its primary purpose was to prepare males and females alike to work. To the extent that gender-based educational opportunities were available, they were to train Black women for the social roles relegated to them - as domestics, for example - and to compensate for their perceived moral shortcomings. For white students, sex segregated education was key to perpetuating the cult of true womanhood, which, in turn defined and privileged white masculinity and white femininity. Thus, state-established schools for "white girls" prepared their charges to take their rightful places as keeper of home and hearth. The lasting nature of the sex- and race-based stereotypes underlying these forms of education were particularly apparent during the effort to racially desegregate schools in the wake of the Supreme Court's decision in Brown v. Board of Education. In this context, recalcitrant southern school districts resorted to sex segregation as a way to "dull the edge" of integration. With this history, the paper examines current efforts to segregate students based on sex, which reveals the intransigence of the racial and gender stereotypes, and the limitations they impose on students' educational opportunities. The paper thus argues that critical examination of single sex schooling, considering the intersection of race and gender, at a minimum, is necessary to ensure that current efforts do not perpetuate subordination of already under-served students.
    A Spectrum Revolution: Deploying Ultrawideband Technology on Native American Lands CommLaw Conspectus, October 2003 Christopher Guzelian Stanford University - School of Law Abstract:
      While most Americans depend on cell phones and the Internet, many Native American tribes still lack access to adequate telecommunications services. The recent development of ultrawideband ("UWB") technology, which operates by using radio spectrum occupied by existing radio services, could provide tribes with access to high-speed, low cost wireless telecommunications services, and, more generally, could serve as a model for reducing proprietorship of Internet service provision. However, a fierce political struggle and technological debate has culminated in a recent decision by the Federal Communications Commission ("FCC" or "Commission") to limit use of UWB for outdoor communications systems. Because UWB might be a solution to the difficulties that tribes have had in modernizing their telecommunications infrastructures, tribal lawyers should explore legal tools to enable deployment of UWB-based communication systems on tribal lands. This article provides a thorough analysis of the legal options available to tribes in attempting to obtain the legal right to use UWB-based communication systems. We demonstrate that litigation, though perhaps appealing at first glance, would be time-consuming, costly and unlikely to succeed. Thus, we conclude tribes should invest their resources in lobbying the FCC to waive their UWB regulations.
    Pro Bono In Principle and in Practice Deborah Rhode Stanford Law School Abstract:
      This article provides the first systematic survey of the factors that influence American lawyers' pro bono work. The study includes both a comprehensive review of the literature on altruism in general and bar contributions in particular, as well as responses from a sample of some 3000 attorneys. Three groups of practitioners participated in the survey: lawyers who graduated from six schools that had different approaches to pro bono work; recent individual and law firm winners of the American Bar Association's annual Pro Bono Publico Award; and large law firms for which annual pro bono data are publicly available. The study's findings include information on the backgrounds and pro bono contributions of the responding lawyers, their workplace and law school experiences, and their perceptions concerning influences on public service involvement. These responses, together with other research on charitable participation, suggest changes in workplace and law school culture that can more effectively translate public service principles into professional practices.
    The September 11 Victim Compensation Fund: A Circumscribed Response or an Auspicious Model? DePaul Law Review, Vol. 53, 2003 Robert Rabin Stanford Law School Abstract:
      What are the implications, if any, of the September 11 Victim Compensation Fund of 2001 for the future? Although the tort option was not foreclosed for the victims of Sept. 11, Congress made a serious effort to provide incentives that would channel claims into the no-fault compensation scheme established by the Air Transportation Safety and System Stabilization Act. At this distance from the event, it seems appropriate to reflect on whether the Fund, established in the turmoil following the most riveting single-event, mass disaster in the nation's history, should be regarded as a singular response, or as a window for thinking about redress of future victims of terrorist activity - or even, perhaps, victims of criminal violence more generally. I begin by offering a set of building blocks: three scenarios of terrorist activity considered from the vantage point of recovery in tort. Next, I shift ground to no-fault as an option for addressing these various types of claims, grounding my discussion in a brief recapitulation of the Sept. 11 scheme, as well as the model that emerges from the regulatory gloss provided by the Special Master designated to implement the scheme. In addition, I offer some context by discussing briefly a limited number of alternative no-fault strategies that have been employed in offering redress to the victims of terrorist acts, and more broadly, to victims of criminal violence. Finally, I address a more fundamental question: Can a satisfying principle be articulated for treating those suffering injuries from terrorist acts as a distinct category of beneficiaries? In the end, I conclude that fairness considerations suggest not so much the normative superiority of tort for addressing every manner of personal injury, as the problematic nature of affording special status to victims of terrorism as no-fault