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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Wednesday, August 31, 2005
Fleischer on Deal Structure Branding Victor Fleischer (University of California, Los Angeles - School of Law) has posted Brand New Deal: The Google IPO and the Branding Effect of Corporate Deal Structures on SSRN. Here is the abstract:
    Branding is an unappreciated feature of contract design. Corporate finance scholars generally assume that consumers focus on product attributes like price, quality, durability, and resale value. But consumers choose brands, not just product attributes. This Article claims that the legal infrastructure of deals sometimes has a branding effect - that is, an effect on the brand image of the company. Deal structure affects the atmospherics of the brand. I explore this link between deal structure and brand image by examining the Google IPO from last summer. From a traditional corporate finance perspective, the goal of a properly structured IPO is to overcome the information asymmetry between issuer and investors and to lower the cost of capital. From this perspective, the success of the Google deal is questionable. Few would call the deal elegant or efficient. But this is not really what the Google IPO structure was about, or at least it is not the full story. When Google structured its IPO as an auction, it reinforced its image as an innovative, egalitarian, playful, trustworthy company. Talking about Google's IPO makes you want to use Google's products. By that measure, the deal was a success. I also examine the branding effects of three other deals: the Ben & Jerry's public offering in 1984, which sold stock only to Vermonters; Steve Jobs's contract with Apple, which entitles him to cash salary of exactly one dollar; and Stanley Works' failed attempt to reincorporate in Bermuda to minimize its tax liability. Finally, I conceptualize the role of branding as it relates to deal structure. Certain legal events in the lifecycle of the company - what I call branding moments - provide opportunities for firms to signal company values. I also three types of companies - cult companies, integrity companies, and social responsibility companies - that are in the strongest position to take advantage of the branding effects of corporate deal structuring.
I'm a big fan of Fleischer's work! Highly recommended!

Fondacaro, Slobogin and Cross on Due Process in Juvenile Justice Mark R. Fondacaro , Christopher Slobogin and Tricia Cross (University of Florida, Levin College of Law , University of Florida, Levin College of Law and Arnold & Porter) have posted Reconceptualizing Due Process in Juvenile Justice: Contributions from Law and Social Science on SSRN. Here is the abstract:
    This article challenges the accepted wisdom, at least since the Supreme Court's decision in Gault, that procedures in juvenile delinquency court should mimic the adult criminal process. The legal basis for this challenge is Gault itself, as well as the other Supreme Court cases that triggered the juvenile justice revolution of the past decades, for all of these cases relied on the due process clause, not the provisions of the Constitution that form the foundation for adult criminal procedure. That means that the central goal in juvenile justice is fundamental fairness, which does not have to be congruent with the adversarial tradition of adult criminal court. Instead, as the Court's administrative procedure cases illustrate, fundamental fairness theory aims at constructing the procedural framework that best promotes fairness, accuracy and efficiency in the setting in question. Social science, and in particular procedural justice research, can play an important role in fashioning this framework, because it can empirically examine various procedural mechanisms, in various settings, with these objectives in mind. To date, procedural justice research suggests that the procedures associated with the adult criminal process are not optimal even in that setting, much less in a regime focused on rehabilitating or punishing children. We propose a performance-based management system for implementing these legal and scientific insights in the juvenile justice context.
This is an immensely interesting topic. For my take on the basic normative questions, take a look at Lawrence B. Solum, Procedural Justice. Recommended!

Wednesday Calendar
    University of Alabama School of Law: Austin Sarat, Amherst College, What Happened to Mercy? On the Paradox of Sovereign Prerogative in Capital Cases

Monday, August 29, 2005
Prize Announcement: The Dennis Leslie Mahoney Prize in Legal Theory
    The Dennis Leslie Mahoney Prize in Legal TheoryThe Julius Stone Institute of Jurisprudence in the Faculty of Law at the University of Sydney invites entries for the 2005 Dennis Leslie Mahoney Prize in L egal Theory. The prize, which will be awarded for the first time in 2006, has been generously provided for by a gift from the Honourable Dennis Mahoney QC AO, former President of the New South Wales Court of Appeal. The prize will go to the author or authors of an outstanding published work in the field of jurisprudence which best reflects an approach combining legal theory with sociological inquiry, in the tradition of the jurisprudence of the late Professor Julius Stone. Stone’s approach, expounded in his seminal work of 1946, The Province and Function of Law and in many other works throughout his life, sought to demonstrate that the law inexorably responds and changes as society changes. A ‘published work’ need not necessarily be in the form of a traditional book or journal publication. Other types of publication, including reports or papers, are eligible. The recipient of the prize will receive a cash prize of AU$50,000, with the offer of an invitation to participate in the activities of the Faculty of Law at the University of Sydney for a period of up to one semester. He or she may also receive an invitation to deliver the prestigious Julius Stone Address in the year following the award of the prize. Entries may be directly submitted by the author(s), or on the nomination of a third party. Entrants are required to submit an application form and five copies of the work, plus five copies of their curriculum vitae. Four copies will be returned following judging, and one will be kept in the archive of the Julius Stone Institute. Applications close on 1 January 2006. The prize winner will be announced in May 2006. For further information about the Dennis Leslie Mahoney Prize, contact the Julius Stone Institute of Jurisprudence.

Chen on Phagism Jim Chen (University of Minnesota Law School) has posted The Phages of American Law (UC Davis Law Review, Vol. 36, p. 455, 2003) on SSRN. Here is the abstract:
    September 11, 2001, changed the world. Exactly five weeks later, the individual right theory of the Second Amendment received its greatest boost ever. In United States v. Emerson, 270 F.3d 203 (5th Cir. 2001), the Fifth Circuit opined that the Second Amendment protects the rights of individuals ... to privately possess and bear their own firearms. This decision may have been the first prominent pronouncement on civil liberties by the federal judiciary after September 11. This article explores emerson in a larger legal and real-world context. It explores the constitutional implications of treating gun ownership as a protected individual right. First, recharacterizing the chief law enforcement officers of the states as members of the militia enables Congress to command them to execute the Laws of the Union. U.S. Const. art. I, Section 8, cl. 15. Printz v. United States, 521 U.S. 898 (1997), which struck down the Brady Bill, should be reconsidered and perhaps overruled. Second, Emerson's underlying logic suggests that the Second Amendment should not be incorporated against the states via the Fourteenth Amendment. Finally, insofar as the individual right theory rests upon an expansive definition of militia, Emerson portends the recognition of a stunningly fecund font of federal police power. Shifting from legal doctrine to empiricism, this article then explores a singular contradiction of the individual rights theory's underlying assumption that widespread gun ownership deters violence. Federal law has historically imposed a comprehensive gun-free zone on one of the principlal channels of interstate commerce: air travel. Nothing in the United States' hastily revamped security matrix permits, let alone encourages, civilian travelers to arm themselves. Commercial aviation therefore challenges the idea of public security through widespread deployment of personal firearms. If total civic disarmament not only promises but actually delivers freedom from violence, broad gun ownership - to say nothing of its protection through constitutional law - loses much of its appeal. As a legal matter, Emerson establishes a modest new civil liberty in exchange for an expansive congressional power. Civil aviation in practice subverts the individual rights theory's approach to public safety. The leading threat to American security today comes from terrorism and asymmetrical warfare. September 11 changed our perspective on private violence and its place in the American constitutional scheme. Neither that scheme nor September 11 justifies the treatment of private gun ownership as a pillar of national security. This is the way the law ends This is the way the law ends This is the way the law ends Not with a whimper but a bang. This article was written under the pseudonym "Gil Grantmore."

Ginsburg on Technological Measures Jane C. Ginsburg (Columbia Law School) has posted Legal Protection of Technological Measures Protecting Works of Authorship: International Obligations and the US Experience (Columbia Public Law Research paper No. 05-93) on SSRN. Here is the abstract:
    The ongoing transposition of the EU Information Society Directive's requirement that member States adopt of legal prohibitions of the circumvention of technological protections of works of authorship occasions this review of international obligations and their implementation in the US. This article addresses the scope of international obligations the WIPO Copyright Treaties impose on member States to protect against circumvention, as well as the US experience with the Digital Millennium Copyright Act's prohibitions on circumvention of access and copy controls. It examines the text of the statute, codified at sec. 1201 of the 1976 Copyright Act, the five years of judicial decisions interpreting the statute, and the two administrative proceedings implementing one aspect of the statutory scheme. The analysis of the DMCA and its judicial and administrative interpretation will take up three issues: 1) What technological measures does sec. 1201 protect? 2) What conduct does sec. 1201 prohibit? 3) To what extent does sec. 1201 accommodate copyright exceptions? The US experience to date indicates that legal protection for technological measures has helped foster new business models that make works available to the public at a variety of price points and enjoyment options, without engendering the "digital lockup" and other copyright owner abuses that many had feared. This is not to say that the US legislation and its judicial interpretation represent the most preferable means to making the internet a hospitable place for authors while continuing to enable lawful user conduct. But brooding forecasts and legitimate continuing concerns notwithstanding, the overall equilibrium so far appears to be a reasonable one.

Magarian on Substantive Due Process and Nonpolitical Speech Gregory P. Magarian (Villanova University School of Law) has posted Substantive Due Process as a Source of Constitutional Protection for Nonpolitical Speech (Minnesota Law Review, Vol. 90) on SSRN. Here is the abstract:
    Present First Amendment doctrine presumptively protects anything within the descriptive category expression from government regulation, subject to balancing against countervailing government interests. As government actions during the present war on terrorism have made all too clear, that doctrine allows intolerable suppression of political debate and dissent - the expressive activity most integral to our constitutional design. At the same time, present doctrine fails to give a clear account of why the Constitution protects expressive autonomy and when that protection properly should yield to government interests, leading to an inconsistent and unsatisfying free speech regime. In this article, Professor Magarian advocates a bifurcation of free speech doctrine: protect only political speech under the First Amendment, subject to no countervailing interest but the interest in sustaining political discourse itself; meanwhile, protect nonpolitical speech as a matter of substantive due process. This substantive due process proposal draws on the Supreme Court's recent decision in Lawrence v. Texas, whose two principal contributions to the doctrine - firmly grounding due process protection in the value of personal autonomy and discrediting purely moral government regulations - provide a reliable basis for protecting nonpolitical speech alongside other behavior whose primary value lies in fostering personal autonomy. Shielding nonpolitical speech under the Due Process Clause rather than the First Amendment would allow courts to deepen the First Amendment's protection of political speech while providing a more coherent and consistent rationale for protecting nonpolitical speech.

Mortensen on Xenotransplantation Melanie J. Mortensen has posted In the Shadow of Doctor Moreau: A Contextual Reading of the Proposed Canadian Standard for Xenotransplantation (University of Ottawa Law & Technology Journal, Vol. 2, No. 1, p. 37, 2005) on SSRN. Here is the abstract:
    Prescient selections from the century-old H.G. Wells novel The Island of Dr. Moreau provide rhetorical echoes for this critique of the Proposed Canadian Standard for Xenotransplantation. Xenotransplantation, which is animal-to-human cell, tissue, or organ transplantation, represents one facet of the new areas of development that fall under the general rubric of biotechnology. This developing area has been slowed by the risk posed by infections that may emerge and threaten public health if clinical trials of xenotransplantation proceed. Xenotransplantation also has the potential of great profitability for the biotechnology companies that offer the source animals, particularly if the science should prove successful. This paper first introduces the scientific elements of xenotransplantation. Then, it surveys policy developments in Canada with respect to xenotransplantation. Finally, it turns to the ethical dimension of xenotransplantation, concluding that the nature of the risks and the precautionary principle should necessitate that Canada call for a moratorium on xenotransplantation.

Madison on Social Software Michael J. Madison (University of Pittsburgh School of Law) has posted Social Software, Groups, and Law on SSRN. Here is the abstract:
    Formal groups play an important role in the law. Informal groups largely lie outside it. Should the law be more attentive to informal groups? The paper argues that this and related questions are appearing more frequently as a number of computer technologies, which I collect under the heading "social software," increase the salience of groups. In turn, that salience raises important questions about both the significance and the benefits of informal groups. The paper suggests that there may be important social benefits associated with informal groups, and that the law should move towards a framework for encouraging and recognizing them. Such a framework may be organized along three dimensions by which groups arise and sustain themselves: regulating places, of things, and of stories.

New from Law & Politics Book Review
    CRITICAL ISSUES IN RESTORATIVE JUSTICE, Howard Zehr and Barb Toews (eds). Devon, UK: Criminal Justice Press/Willan Publishing, 2004. 436pp. Paper. £21.24/$38.50 ISBN: 1-881798-51-8. Reviewed by William T. Lyons, Jr.
    REGULATING PROCUREMENT: UNDERSTANDING THE ENDS AND MEANS OF PUBLIC PROCURMENT REGULATION, by Peter Trepte. Oxford: Oxford University Press, 2004. 428pp. Hardback. £65.00 / $135.00. ISBN: 0-19-826775-4. Reviewed by Robert M. Howard.
    LAWS OF FEAR: BEYOND THE PRECAUTIONARY PRINCIPLE, by Cass R. Sunstein. New York: Cambridge University Press, 2005. 246pp. Hardback. £40.00/$65.00. ISBN: 0521848237. Paperback. £15.99/$23.00. ISBN: 0521615127. Reviewed by Sanford Levinson. Be sure to read this one!
    RIGHTS BEFORE COURTS: A STUDY OF CONSTITUTIONAL COURTS IN POSTCOMMUNIST STATES OF CENTRAL AND EASTERN EUROPE, by Wojciech Sadurski. Dordrecht, The Netherlands: Kluwer Academic Publishers, 2005. 377pp. Hardcover. $199.00 / €150,00 / £104.00. ISBN: 1-4020-3006-1. Reviewed by Lynn M. Maurer.
    RELIGION ON TRIAL: HOW THE SUPREME COURT TRENDS THREATEN FREEDOM OF CONSCIENCE IN AMERICA, by Phillip E. Hammond, David W. Machacek, and Eric Michael Mazur. Walnut Creek, California: AltraMira Press, 2004. 160pp. Paper. $19.95. ISBN: 0-7591-0601-0. Cloth. $65.00. ISBN: 0-7591-0600-2. Reviewed by Mark C. Modak-Truran.

Sunday, August 28, 2005
The Politics of Federal Judicial Selection David Law and I have posted a new paper on SSRN: Pivotal Politics, Appointments Gridlock, and the Nuclear Option. Comments would be very welcome! Here is the abstract:
    In this paper, we employ simple formal models drawn from political science to explain the occurrence of gridlock in the federal judicial selection process, and to explore the implications of the "nuclear option," by which a bare majority of senators employs parliamentary tactics to abolish the filibuster with respect to judicial nominations. Our application of a pivotal politics model leads us to reject the notion that appointments gridlock is a straightforward consequence of divided government. Instead, meaningful changes to the ideological balance of the federal bench require a more demanding ideological alignment of multiple veto players relative to the status quo. This conclusion is broadly consistent with the recent history of the federal judicial appointments process. We then adapt the pivotal politics model to the existence of the nuclear option by introducing a new player, the nuclear pivot, who supplies the last vote needed to trigger the nuclear option, and whose precise identity is uncertain - perhaps even to the nuclear pivot herself. Introduction of the nuclear pivot curtails the extent of gridlock and makes possible some change in the status quo, albeit less change than would be possible in the outright absence of the filibuster. We conclude not only that the threat of the nuclear option works to the detriment of the minority Democrats, but also that the Democrats have gained nothing of substance from the agreement reached by a group of moderate senators - the so-called "Gang of 14" - that has indefinitely forestalled actual exercise of the nuclear option. However, both uncertainty over the location of the nuclear pivot and the degree to which the Democrats have successfully prolonged the confrontation over judicial nominees may hinder the President from capitalizing upon the advantage otherwise conferred by the threat of the nuclear option.
And this passage comes from near the end of the paper:
    A president’s political mortality—particularly that of a lame-duck president entering the second half of his last term—can be expected to influence his choice of nomination strategy. If presidents are to leave their mark upon the world—or the judiciary—they must do so quickly. Judicial vacancies left for Democratic successors represent missed opportunities for the Republican President and Senate leadership. Moreover, if the President can improve today upon the status quo with appointments that are only moderately conservative, there is no reason for him to wait until tomorrow to do so: a moderately conservative judge does nothing to affect the status quo until he is already seated on the bench. To paraphrase an old adage, as the end of his second term approaches, a bird in the hand may well prove to be worth two to President Bush. With the support of a likeminded Senate majority willing to threaten the nuclear option, the President enjoys powerful advantages over his opposition in the Senate. He cannot make full and prompt use of these advantages, however, until he first knows just how extensive they actually are, and it is questionable whether he now has the time to discover their true extent by trial and error. The sheer passage of time thus casts a different light upon the plight of his enfeebled opposition. By now, it should be clear that the existence of the nuclear option is not good for the Democrats. Moreover, the truce that has been styled a Democratic victory is, in substance, nothing of the sort. At best, it formalizes in loose language what was political reality all along—namely, that the filibuster may only be used to the extent that the nuclear pivot is in fact willing to tolerate filibusters. The real victory for the Senate’s remaining Democrats lies in the fact that, for the better part of the current president’s political lifespan, they have managed to filibuster judicial nominees and postpone the moment of nuclear reckoning–only to postpone it again with an uncertain truce, and thereby keep the true extent of their own power shrouded in mystery, at the critical juncture of the President’s first Supreme Court vacancy.
I am very curious about reactions to this paper!

Black & Caron on Raking Law Schools Bernard S. Black and Paul L. Caron (University of Texas at Austin - School of Law and University of Cincinnati College of Law) have posted Ranking Law Schools: Using SSRN to Measure Scholarly Performance (Indiana Law Journal, Vol. 81, 2005, Symposium on The Next Generation of Law School Rankings) on SSRN. Here is the abstract:
    There are several methods for ranking the scholarly performance of law faculties, including reputation surveys (U.S. News, Leiter); publication counts (Lindgren & Seltzer, Leiter); and citation counts (Eisenberg & Wells, Leiter). Each offers a useful but partial picture of faculty performance. We explore here whether the new “beta” SSRN-based measures (number of downloads and number of posted papers) can offer a different, also useful, albeit also partial, picture. Our modest claim is that SSRN-based measures can address some of the deficiencies in these other measures and thus play a valuable role in the rankings tapestry. For example, SSRN offers real-time data covering most American law schools and many foreign law schools, while citation and publication counts appear sporadically and cover a limited number of U.S. schools. The SSRN measures favor work with audiences across disciplines and across countries, while other measures are more law-centric and U.S.-centric. SSRN is relatively new and thus favors younger scholars and improving schools, while other measures favor more established scholars and schools. At the same time, the SSRN measures have important field and other biases, as well as gaming risks. We assess the correlations among the different measures, both on an aggregate and on a per faculty member basis. We find that all measures are strongly correlated; that total and per faculty measures are highly correlated; and that SSRN measures based on number of papers are highly correlated with measures based on number of downloads. Among major schools, all measures also correlate with school size.

Krent on the Continuity Principle Harold J. Krent (Chicago-Kent College of Law) has posted The Continuity Principle, Administrative Constraint, and the Fourth Amendment on SSRN. Here is the abstract:
    This article uses three Supreme Court decisions from the past term, Illinois v. Caballes,125 S. Ct. 834 (2005), Muehler v. Mena, 125 S. Ct. 465 (2005), and Devenpeck v. Alford, 125 S. Ct. 588 (2004), to explore the role of administrative restraint in Fourth Amendment analysis. The Warrant Clause embraces a principle of continuity, mandating that law enforcement authorities in conducting searches and seizures adhere to the goals previously articulated in the warrant. I argue that the principle should apply as well when warrants are not practicable as the Court seemed to suggest in Terry v. Ohio, 392 U.S. 1 (1968). Once the objectives of the underlying warrantless search or seizure are satisfied, no further interference with liberty should be permitted. For instance, a pat down search to find weapons under Terry must stop once no weapons are found, and a legitimate effort to arrest a suspect in his or her home should not provide justification for a full scale search of the premises. The continuity principle reflects the long-held fear that governmental officials may be tempted to expand searches and seizures once they are given a green light to start. In Caballes and Muehler, therefore, questioning of the suspects should have stopped after the underlying purpose of the detention ended. The article then suggests more generally that Fourth Amendment balancing should include systematic consideration of whether sufficient constraints are imposed on law enforcement officials. From that vantage point, courts have both over and under protected privacy under the Fourth Amendment, overemphasizing the threat to privacy in cases such as Indianapolis v. Edmond, 531 U.S. 32 (2000), in which there was little risk of administrative abuse but slighting the threat in Caballes and others.

Chen on Biopiracy Jim Chen (University of Minnesota Law School) has posted There's No Such Thing as Biopiracy ... And It's a Good Thing Too (McGeorge Law Review, Vol. 36, 2005) on SSRN. Here is the abstract:
    Tales of northern exploitation of biological wealth and ethnobiological knowledge from the global south have become so frequent, so familiar, and so uniform that allegations of biopiracy now follow a predictable script. I come not to praise the biopiracy narrative, but to bury it. Most allegations of biopiracy are so thoroughly riddled with inconsistencies and outright lies that the entire genre, pending further clarification, must be consigned to the realm of rural legend. Despite its implausibility, however, accusations of biopiracy set the rhetorical baseline in many debates within the international law of environmental protection and intellectual property. The time has come to dismantle the myth of biopiracy root and branch. This article assesses claims of biopiracy according to the layered model of information platforms. Every information platform consists of three distinct layers - physical, logical, and content - and biological information is no exception. The conventional biological distinction between phenotypes and genotypes separates the physical from the logical layer of information in individual biological specimens and in species at large. Ethnobiological knowledge is best characterized as the inventive transformation of genetic information into commercially valuable applications. An appropriately utilitarian view of property and its relationship to each layer of biological information dissolves any allegation of biopiracy. Moreover, this article considers what the proponents of the biopiracy narrative have been seeking and how the global community might give the global south what it needs (if not necessarily what it wants). Although the overarching goal of compensating traditional communities for their contribution to the global storehouse of biological knowledge remains out of reach for the moment, more modest -- and in many ways more beneficial -- intermediate objectives are quite feasible. Simple reforms of existing patent law can prevent outsiders from securing intellectual property in knowledge already developed by traditional communities. In addition, countries rich and poor should develop a framework for regulating the practice of bioprospecting and encourage the professionalization of parataxonomy.

Smith on Barnett Douglas G. Smith has posted Does the Constitution Embody a Presumption of Liberty? (University of Illinois Law Review, No. 1, 2005) on SSRN. Here is the abstract:
    This article reviews Randy Barnett's book, Restoring the Lost Constitution: The Presumption of Liberty (2004). The article maintains that the presumption of liberty that Professor Barnett outlines in his book may represent an oversimplification of the original meaning of the Constitution and its subsequent amendments. The article further concludes that, from a theoretical perspective, such a presumption may not be necessary to support the Constitution's legitimacy. To the extent traditional theories of constitutional legitimacy, such as popular consent, withstand Professor Barnett's critique, there is no need for a constitutional presumption of liberty.

Legal Theory Calendar
    Wednesday, August 31
      University of Alabama School of Law: Austin Sarat, Amherst College, What Happened to Mercy? On the Paradox of Sovereign Prerogative in Capital Cases
    Thursday, September 1
      Florida State University, College of Law: Anupam Chander, University of California, Davis School of Law, NetWork: The Law and Economics of Trade in Services.

Legal Theory Lexicon: Ex Ante/Ex Post If I had to select only one theoretical tool for a first-year law student to master, it would be the ex post/ex ante distinction. (Of course, this is cheating, because there is a lot packed into the distinction.) The terminology comes from law and economics, and here is the basic idea:
  • The ex post perspective is backward looking. From the ex post point of view, we ask questions like: Who acted badly and who acted well? Whose rights were violated? Roughly speaking, we associated the ex post perspective with fairness and rights. The ex post perspective in legal theory is also loosely connected with deontological approaches to moral theory. In general jurisprudence, we might associate the ex post perspective with legal formalism.
  • The ex ante perspective is forward looking. From the ex ante point of view, we ask questions like: What affect will this rule have on the future? Will decision of a case in this way produce good or bad consequences? Again, roughly speaking we associate the ex ante perspective with policy and welfare. The ex ante perspective in legal theory is loosely connected with consequentialist (or utilitarian or welfarist) approaches to moral theory. In general jurisprudence, we might associate the ex ante perspective with legal instrumentalism (or legal realism).
Of course, this very basic introduction to the distinction is oversimplified. For example, a fairness-based theory of torts might consider future consequences in assessing legal rules, and even utilitarian legal theories must use ex ante information when evaluating particular cases.
Why is the distinction between ex ante and ex post so important? Because it marks an important theoretical divide between consequentialist and deontological approaches to legal theory. Consequentialists, we might say, simply don't care about the question whether A has violated the rights of B, for their own sake. Rather, a consequentialist cares about the consequences of attaching liability to those who act like A did. Ex ante, is a strict liability rule or a negligence rule more efficient? Deontologists, on the other hand, care very much about who has acted rightly and wrongly. In tort law, for example, corrective justice theories of tort are associated with the ex post perspective. A should be liable to B, only if A has acted wrongly.
If you are a first-year law student, you might make a habit of asking yourself questions like the following:
    Is the rule in the case I've just read, just or fair from an ex post perspective?
    Will the rule produce good consequences (as compared to the alternatives) from an ex ante perspective?

Friday, August 26, 2005
Legal Theory Bookworm The Legal Theory Bookworm recommends Divided by God: America's Church-State Problem--and What We Should Do About It by Noah Feldman. Here is a blurb:
    In Divided By God, Noah Feldman examines the unique, fascinating balance the United States has pursued for well over 200 years now -- the attempt at democratic government by the people in a country made up of many religions, and many highly religious people. The novel principle enshrined to help make this a success was strong separation of church from state. The strain on the system has never been greater as polarization grows over the many hot-button topics of our day. Feldman also observes how the stakes have been raised in the last 50 years as the forces of secularism have fought a largely successful battle to remove religious symbolism from the public sphere, while at the same time the growing tide of religious conservatism has managed to forge a surprisingly close church-state relationship through government funding of religious priorities (faith-based initiatives and school vouchers, for example.) Feldman, a law professor at New York University, delivers a timely book that attempts to move the discussion past rhetoric, by a careful examination of the history of church-state separation. The book's lively, conversational writing makes for a fascinating journey, starting with a precise analysis of exactly why our founding fathers debated and finally agreed to formally separate church and state, and then tracking the tests and challenges that separation has stood over the last two centuries. Perhaps the most refreshing current throughout is Feldman's lack of partisan bias, and his respect and understanding of the values, fears and goals that successive generations have brought to all sides of this never-ending debate. It is that lack of partisanship that makes his conclusion all the more powerful -- a call to move beyond a battlefield where the secular and religious forces aggressively pursue their own mutually exclusive goals, and instead to seek a deeper understanding of what values we all hold in common, and to recognize the importance of engaging in constructive debate in order to find and define that commonality

Download of the Week The Download of the Week is Detection Avoidance by Chris Sanchirico. Here is the abstract:
    In practice, the problem of law enforcement is half a matter of what the government does to catch violators and half a matter of what violators do to avoid getting caught. In the theory of law enforcement, however, although the state's efforts at "detection" play a decisive role, offenders' efforts at "detection avoidance" are largely ignored. Always problematic, this imbalance has become all the more urgent in recent years as episodes of corporate misconduct spur new interest in punishing process crimes like obstruction of justice and perjury. This article adds detection avoidance to the existing theoretical frame with an eye toward informing the current policy debate. The exercise leads to several conclusions. First, despite recent efforts to strengthen laws governing obstruction and perjury, sanctioning is relatively inefficacious at discouraging detection avoidance. Sanctions send a mixed message to the offender: do less to avoid detection, but to the extent you still do something, do more to avoid detection of your detection avoidance. The article argues that detection avoidance is more effectively deterred through the structural design of evidentiary procedure (inclusive of investigation). Specifically advocated are devices that exploit the cognitive shortcomings of potential avoiders and the strategic instability of their cooperative arrangements, thereby lowering the cost effectiveness of devoting resources to avoiding detection.
Download it while its hot!

Thursday, August 25, 2005
Citation Networks I strongly recommend that you take a quick look at The wisdom of Hercules, a short piece in the Economist on modeling and analysis of Supreme Court decisions and their citation networks. Here is a taste:
    Dr Fowler's model shows that, until the end of the 18th century, the Supreme Court's opinions rarely cited previous Supreme Court opinions. This is not all that surprising since there were so few. In the 19th century, however, the average number of citations to previous cases started climbing sharply and so did the average number of citations to those cases by later Supreme Courts. For a while, Supreme Court justices liked to cite opinions with many citations in them. By 1950, an average opinion cited about 15 other opinions, and each opinion was itself cited by roughly the same number. The trend reversed, however, between 1953 and 1969, when the controversial Earl Warren served as Chief Justice of the United States. As that Court embarked on its activist, and mostly liberal, course, there was a precipitous drop in the number of citations it made, which implies that the Warren Court was less respectful, or perhaps just less interested, in precedent. When subsequent Supreme Courts turned to the right, the number of citations continued to fall, implying they were ignoring the Warren Court precedents. Under William Rehnquist, the current chief justice, this trend has continued apace, reaching an average of a mere five citations by 2002. Will the Rehnquist Court's own opinions suffer the same fate?
For more on this fascinating topic, check out The Web of Law by Tom Smith--available for download from SSRN.

Steinman on Celotext Adam Steinman (University of Cincinnati - College of Law) has posted The Irrepressible Myth of Celotex: Reconsidering Summary Judgment Burdens Twenty Years after the Trilogy on SSRN. Here is the abstract:
    Twenty years ago, the Supreme Court decided a trilogy of cases on summary judgment. These cases have had a profound impact on federal litigation. Empirical data presented in this article demonstrate that federal courts have cited these three cases more than any Supreme Court decisions in history. Celotex Corp. v. Catrett is widely recognized as the most significant decision of the trilogy, both because it expanded the availability of summary judgment and because it remains the Court's most current instructions on how burdens are allocated between the party seeking and the party opposing summary judgment. However, Celotex failed to clarify many important aspects of summary judgment procedure, leading to competing myths within both the academy and the judiciary. The prevailing myths of Celotex are based principally on scholars' and judges' own views about how summary judgment procedure ought to operate in the federal system. This article takes a more traditional approach that is long overdue in this area: treating Celotex as an object of interpretation rather than an empty vessel for achieving policy preferences. Using basic interpretive values - consistency with prior decisions, consistency with governing textual sources, and internal coherence - this article challenges the current myths and offers a fresh interpretation of Celotex that cogently resolves that case's many ambiguities. The resulting approach to summary judgment would provide a sensible middle ground between the two dominant views of Celotex.

Chen on Coffee Jim Chen (University of Minnesota Law School) has posted Around the World in Eighty Centiliters (Minnesota Journal of International Law, Vol. 15, p. 11, 2006) on SSRN. Here is the abstract:
    The production, marketing, and delivery of beverages are enterprises so vast that fully to comprehend [them] would require an almost universal knowledge ranging from geology, biology, chemistry and medicine to the niceties of the legislative, judicial and administrative processes of government. Queensboro Farm Prods., Inc. v. Wickard, 137 F.2d 969, 975 (2d Cir. 1943). So extensive are the legal complexities at issue that the typical North American coffee service traverses nearly the entire range of allocative and redistributive considerations within the law of trade. A simple carafe of coffee, with cream and sugar on the side, vividly illustrates the tradeoff between comparative advantage and redistributive goals in the formation of trade policies.

RIles & Jean-Klein on Anthropology & Human Rights Annelise Riles and Iris E.F. Jean-Klein (Cornell University - School of Law and Edinburgh University) have posted Introducing Discipline: Anthropology and Human Rights Administrations (Political and Legal Anthropology Review, Fall 2005) on SSRN. Here is the abstract:
    Anthropologists engage human rights administrations with an implicit promise that our discipline has something unique to offer. The articles in this special issue turn questions about relevance and care so often heard in the context of debates about human rights outside in. They focus not on how anthropology can contribute to human rights activities, but on what anthropological encounters with human rights contribute to the development of our discipline. They ask, how exactly do we render the subject relevant to anthropology? Reflecting on some ways anthropologists in this field have dispensed care for their subjects, the authors highlight two modalities of human rights anthropology, co-construction and denunciation. Two key problems with these modalities are identified - their duplicative and iterative qualities. With reference to the contributions to this special issue, the editors make a case for a more ethnographically engaged anthropology of human rights. They emphasize disciplined description and disciplined engagement with the politics of the field as an ethical position for anthropology and as a means of reclaiming disciplinary relevance.

Klemperer on Bidding Markets Paul Klemperer (University of Oxford - Department of Economics) has posted Bidding Markets on SSRN. Here is the abstract:
    The existence of a 'bidding market' is commonly cited as a reason to tolerate the creation or maintenance of highly concentrated markets. We discuss three erroneous arguments to that effect: the 'consultants' fallacy' that 'market power is impossible,' the 'academics' fallacy' that (often) 'market power does not matter,' and the 'regulators' fallacy' that 'intervention against pernicious market power is unnecessary,' in markets characterized by auctions or bidding processes. Furthermore we argue that the term 'bidding market' as it is widely used in antitrust is unhelpful or misleading. Auctions and bidding processes do have some special features - including their price formation processes, common - values behaviour, and bid - taker power - but the significance of these features has been overemphasized, and they often imply a need for stricter rather than more lenient competition policy.
I am a huge admirer of Klemperers work--he's taught me almost everything I know about auction theory.

Conference Announcement: Lawyers & Wars
    LAWYERS AND WARS: A Symposium In Honor Of Edward R. Cummings Friday, September 30, 2005 9:00 A.M. – 6:00 P.M. 2000 H Street, NW,Washington, DC Introductory Remarks Frederick M. Lawrence,Dean, George Washington University Law School John Bellinger, Legal Adviser, U.S. Department of State Opening Keynote Address by Judge Thomas Buergenthal Introduction Professor Dinah Shelton, George Washington University Law School Lawyers & Wars: Recent I.C.J. Decisions and the Decision-Making Process Honorable Thomas Buergenthal, Judge, International Court of Justice Break Panel I: Continuity and Change in the Law ofWar: 1975 to 2005 Chair: Professor Sean D. Murphy, George Washington University Law School Panelists: Means and Methods of Warfare W. Hays Parks, International Affairs Division, Office of General Counsel, U.S. Department of Defense Detainees and POWs Professor Michael J. Matheson, George Washington University Law School; Member, U.N. International Law Commission The Role of Non-State Actors Dinah PoKempner, General Counsel, Human Rights Watch Luncheon Address Introduction Susan L. Karamanian, Associate Dean for International and Comparative Legal Studies, George Washington University Law School What Do We Expect of Lawyers and Law in Armed Conflict? Sir Frank Berman QC, Essex Court Chambers; Former Legal Adviser, U.K. Foreign and Commonwealth Office Panel II: New Dilemmas and Confusions Chair: Edwin D.Williamson, Sullivan & Cromwell LLP; former Legal Adviser, U.S. Department of State Panelists: New Paradigms for the Jus ad Bellum? Professor Jane Stromseth, Georgetown University Law Center Internal Conflicts Steven Solomon, Legal Division, U.N.World Health Organization Applying Human Rights to Warfare Professor Robert Goldman, American University Washington College of Law; former president and member of the Inter-American Commission on Human Rights (1996-2003) Panel III: The Role of the Lawyer in Warfare Chair:William H. Taft IV, Fried, Frank, Harris, Shriver & Jacobson LLP; former Legal Adviser, U.S. Department of State Panelists: Self-Policing by Government Lawyers Professor David Kaye, Center for International and Comparative Law, Whittier Law School Oversight by Civilian Judges Professor Ruth Wedgwood, Johns Hopkins University School of Advanced International Studies; Member, U.N. Human Rights Committee Oversight by Congress David Abramowitz,Minority Counsel, International Relations Committee, U.S. House of Representatives The 2005 Susan N. and Augustus diZerega Jr. Lecture Introduction Todd Buchwald, Assistant Legal Adviser for United Nations Affairs, U.S. Department of State Leaders, Courtiers, and Command Responsibility in Shakespeare Honorable Theodor Meron, Judge and President, International Criminal Tribunal for the former Yugoslavia Presentation to Edward R. Cummings of the J.William Fulbright Award for Distinguished Public Service Dean Frederick M. Lawrence

Rappaport on Stevens Over at The Right Coast, Mike Rappaport has a post entitled Justice Stevens, Judicial Restraint, and Spin. Here's a taste:
    An interesting piece in the New York Times covering a recent speech by Justice Stevens. Stevens claims that in two cases, his own majority opinion upheld unwise results, but "in each I was convinced that the law compelled a result that I would have opposed if I were a legislator." The two cases are Kelo, which allowed eminent domain to be used to transfer property to a private entity and Raich, which upheld the federal government's power to regulate medical marijuana. I wonder whether Stevens' criticism of the result in Kelo in part reflects his desire to respond to and mitigate the public outcry against Kelo. Stevens is saying, sorry, its not my decision, the law compelled the result. Justice Stevens? Give me a break. The Justice who wrote separately in the partial birth abortion case to say that a reason to oppose this prohibition was that it was intended to undermine support for abortion?
There's more!!!

Commentary on Lipkin Over at Law & Society Blog, check out What Harm in Same-Sex Marriage? which comments on Robert J. Lipkin's The Harm of Same-Sex Marriage: Real or Imagined?.

Purdy on Waste Jedediah Purdy (Duke) has posted The American Transformation of Waste Doctrine: A Pluralist Interpretation on SSRN. Here is the abstract:
    Professor Purdy takes an early American change in the common-law doctrine of waste – governing relations between tenants and reversioners (sometimes landlords, sometimes heirs of deceased owners) – as an occasion to compare two modes of explaining doctrinal change: one exclusively economic, the other embracing political and ideological as well as economic explanations of individual and institutional behavior. Professor Purdy concludes that the fullest and most convincing interpretation of waste doctrine’s transformation from English to American common law emerges from a pluralist account. He insists, however, that economic explanation not only has a central place in doctrinal interpretation, but is enriched even on its own terms by the addition of plural elements. Early American courts moved the law governing tenants’ use of land from a bright-line rule to a fuzzy standard. Courts styled the change an effort to rationalize the law in light of the very different proportions of land, labor, and capital present in North America as against those prevailing in England. Curiously, however, basic economic analysis of the American doctrine suggests it was not a clear improvement as an efficiency-enhancing device. The doctrine emerged, moreover, in the context of quasi-feudal landlord-tenant relations in the manorial estates of the Hudson Valley, which were in many respects the bete noir of the broadly republican ethos then prevalent in American law and politics. By examining the context of the seminal case and the thought of one its deciding judges – New York’s Chancellor James Kent – on the relationship of property law to republican society, Professor Purdy shows how the change would have seemed attractive from the point of view of creating a formally egalitarian free-market society. This interpretation is not so much at odds with a conventional economic explanation as it is illuminating of what market economics meant in early eighteenth-century America. The free market described a set of social relationships, regarded as the antithesis of feudal hierarchy, which legislators and jurists did not assume as given, but set about deliberately to create, always in the shadow of the feudal counterpoint.

Wednesday, August 24, 2005
Chen on Biodiverstiy Jim Chen (University of Minnesota Law School) has posted Biodiversity and Biotechnology: A Misunderstood Relation (Michigan State Law Review, Vol. 51, 2005) on SSRN. Here is the abstract:
    Biodiversity and biotechnology, according to received wisdom, can scarcely coexist. The global south is home to most of earth's threatened and endangered species, while the global north holds the capital and technology needed to develop this natural wealth. The south argues that intellectual property laws enable pharmaceutical companies and seed breeders in the industrialized north to commit biopiracy. Advocates for less developed countries urge legal parity for each side's source of value, either through a reduction in the protection accorded conventional forms of intellectual property or through formal recognition of traditional knowledge. By contrast, the United States has characterized the Convention on Biological Diversity as a threat to the global life sciences industry in general and to American life sciences companies in particular. Both sides magnify the significance of the dispute, having reached an apparent consensus that commercial exploitation of genetic resources holds the key to biodiversity conservation. I contest these conventional views of the relationship between biodiversity and biotechnology. Both sides of the debate have overstated the significance of bioprospecting. Commercial development aids biodiversity primarily by overcoming perverse economic incentives to consume scarce natural resources that may turn out to have greater value from a global, long-term perspective. It is erroneous to frame the issue as whether intellectual property in the abstract can coexist with the international legal framework for preserving biodiversity. I expose this fallacy through the application of three conceptual filters: genotypes versus phenotypes, genes versus memes, and pharmaceutical versus agricultural applications of biotechnology. To be sure, the notion of intellectual property is elastic enough to embrace all of the intangible assets at stake, including raw genetic resources, advanced agricultural and pharmaceutical research, and the ethnobiological knowledge that often transforms a locally useful organism into a globally valued application of biotechnology. It will not do, however, merely to acknowledge that intellectual property can be reshaped to embrace ethnobiological know-how and other forms of traditional knowledge. Whether traditional knowledge should be treated as an independent form of intellectual property presents an altogether distinct question. Ethnobiological knowledge should not be given proprietary status. As a general rule, intellectual property should be recognized only when it would spur innovation. With respect to biological knowledge already diffused within a traditional community, intellectual property confers no additional incentive to invent or discover. These ideas therefore belong in the global public domain.

Bandes on the Lessons of Capturing the Friedmans Susan Bandes (DePaul University College of Law) has posted The Lessons of Capturing the Friedmans: Moral Panic, Institutional Denial, and Due Process (Law, Culture and the Humanities, Forthcoming) on SSRN. Here is the abstract:
    In the 1980's hundreds of childcare workers were accused of sexually abusing children in horrific ways. Arnold and Jesse Friedman, whose prosecutions are chronicled in the film Capturing the Friedmans, were among those convicted and sent to prison during this period. Sociologists have called this series of prosecutions a classic moral panic: a widespread, hostile, volatile overreaction to a perceived societal threat. This paper examines the concept of moral panic in the context of the day care sexual abuse prosecutions in general, and the Friedman prosecutions in particular. It begins by exploring the role of the legal system in the construction of a moral panic, asking how a system which styles itself as rational and process oriented becomes the handmaiden of institutionalized hysteria. It then considers whether moral panic is a useful heuristic for understanding how justice was derailed in the Friedman cases and many others, and for determining what ought to be done to address the problem. It argues that the concept is limited in its ability to distinguish normatively between cases of overreaction and cases of institutional denial. Further, it suggests that, to the extent the concept of moral panic misconceives these periods of institutionalized hysteria as a series of isolated phenomena, it does not adequately address the deeply entrenched causes of injustice in cases like the Friedman prosecutions. The paper ultimately concludes that the concept of moral panic is useful because it reminds us of the cultural and historical contingency of notions of criminal justice and criminal deviance. Nevertheless, the concept has limitations that render it inadequate to address the hurdles to justice encountered in the Friedman cases. Most prominently, the concept is hindered by its retrospective nature. Like the question of guilt or innocence, the notion of moral panic is backward-looking, and therefore not well suited to addressing the prospective question of how the justice system can be reformed to dismantle ongoing, systemic hurdles to criminal justice.

Spencer on Personal Jurisdiction A. Benjamin Spencer (University of Richmond School of Law ) has posted Jurisdiction to Adjudicate: A Revised Analysis (University of Chicago Law Review, Vol. 73, Spring 2006) on SSRN. Here is the abstract:
    Personal jurisdiction doctrine as articulated by the Supreme Court is in disarray. As a constitutional doctrine whose contours remain imprecise, the law of personal jurisdiction has generated confusion, unpredictability, and extensive satellite litigation over what should be an uncomplicated preliminary issue. Many commentators have long lamented these defects, making suggestions for how the doctrine could be improved. Although many of these proposals have had much to offer, they generally have failed to articulate (or adequately justify or explain) a simple and sound approach to jurisdiction that the Supreme Court can embrace. This Article revises the law of personal jurisdiction by reconceiving the proper role of due process within the doctrine - which is to ensure that defendants receive adequate notice of an action and are protected against arbitrary assertions of governmental power - and reasserting the role of state sovereignty and interstate federalism as concepts that permit jurisdiction over all disputes in which a state has a legitimate interest. The doctrines of venue and forum non conveniens are left to redress any meaningful burdens on defendants arising out of having to litigate in inconvenient fora. The result is a coherent analysis that will provide litigants and courts clear guidance regarding the scope of a court's jurisdiction to adjudicate.

Brown, Touchton & Whitford on Polarization & Corruption David Brown , Michael Touchton and Andrew B. Whitford (University of Colorado at Boulder - Department of Political Science , University of Colorado at Boulder - Department of Political Science and University of Georgia - Department of Public Administration and Policy) have posted Political Polarization as a Constraint on Government: Evidence from Corruption on SSRN. Here is the abstract:
    There has been substantial recent emphasis in political science and economics on explaining the causes of corruption, in part because of the detrimental impact it has on economic growth and in part because of the recent availability of data that measure it. Much of this examines how political institutions influence perceptions of corruption. We move this debate in a new and fertile direction by addressing a previously ignored dimension: ideological polarization. Specifically, we contend that perceptions of corruption are determined not only by specific institutional features of the political system - elements of voting systems, ballot structures, or the existence of checks and balances - but by who sits at the controls of government. We employ pooled cross-sectional data for 52 countries in 1996, 1998, and 2000 to test our theoretical argument. Contrary to recent findings by both economists and political scientists, we show that ideological polarization is correlated more strongly with corruption than institutional features identified by others.

Lipkin on the Harm of Same-Sex Marriage Robert Justin Lipkin has posted The Harm of Same-Sex Marriage: Real or Imagined? on SSRN. Here is the abstract:
    The controversy over same-sex marriage centers on whether same-sex marriage harms traditional marriage. Some conservatives insist that it will and therefore argue that it should be legally prohibited. By contrast, some liberals are mystified over the contention that same-sex marriage can possibly harm anyone's traditional marriage. This article shows that conservatives and liberals are both right and that they are both wrong. Indeed, it is possible to fashion a rapprochement between reasonable conservatives and reasonable liberals. Conservatives are right that, in an important sense of harm, the legal recognition of same-sex marriage will indeed harm traditional marriage. Liberals are right that despite such harm, marriage should be extended to same-sex couples nonetheless. Implicit in this controversy is which types of harm can be recognized in a democratic society as being reasons for and against laws. A corollary question is who owns and is entitled to participate in American democratic institutions. Some types of harm and some types of exclusion represent a compelling state interest which can and should be legally prohibited. However, harm or exclusion that results merely from clashing normative environments generally must be permitted in a democratic society. While perhaps satisfying extremists on neither side, this rapprochement can contribute to a cease fire in one of the heated battle in the so-called culture wars.

Purdy on a Freedom-Promoting Approach to Property Jedediah Purdy (Duke) has posted A Freedom-Promoting Approach to Property: A Renewed Tradition for New Debates on SSRN. Here is the abstract:
    In this article, Professor Purdy identifies, articulates, and defends a normative approach to property as an institution that promotes human freedom. The conception of freedom that the article defends is derived from the work of the Nobel laureate economist Amartya Sen, and defines freedom as the achievement and enjoyment of capabilities, the power to do things along various dimensions of human potential – social, economic, political, physical, intellectual, artistic, and so forth. Professor Purdy’s argument has several complementary dimensions. One is close attention to several areas of concrete, ongoing debate over reform in basic features of property rights: land title in the urban slums of developing countries; control over cultural production in intellectual property law; and the development of sophisticated, market-based risk-management strategies that amount to a new frontier in the commodification of individual luck and talent. The second dimension is conceptual. Debates over the reform and extension of property systems are haunted by anxieties about distributive fairness, the effect of commodification on qualitative values, and the relationship between private property and forms of social domination all haunt. Professor Purdy argues that the freedom-promoting approach that he defends can help both to answer these concerns and to pick out cases where they properly set limits on property rights. It can thus considerably enhance the promise of the reforms with which his discussion begins. The third dimension is historical. The article shows how the conception of freedom that Sen advances, and the idea that the basic rules of property are essential promoting freedom, were first richly articulated in the Scottish Enlightenment jurisprudence and political economy of Adam Smith and his successors. The purpose of the article is thus to revive a tradition of thinking about property regimes while showing the continued relevance of that tradition to current debates.

Drahozal on Arbitration Costs & Contingent Fee Contracts Christopher R. Drahozal (University of Kansas School of Law) has posted Arbitration Costs and Contingent Fee Contracts on SSRN . Here is the abstract:
    A common criticism of arbitration is that its upfront costs (arbitrators' fees and administrative costs) may preclude consumers and employees from asserting their claims. Some commentators have argued further that arbitration costs undercut the benefits to such claimants of contingent fee contracts, which permit the claimants to defer payment of attorneys' fees and litigation expenses until they prevail in the case (and if they do not prevail, avoid such costs altogether). This paper argues that this criticism has it exactly backwards. Rather than arbitration costs interfering with the workings of contingent fee contracts, the contingent fee mechanism provides a means for overcoming liquidity and risk aversion barriers to arbitration. Arbitration costs are just another form of litigation expense, which attorneys should be willing to advance on behalf of clients with viable claims. As a result, even accepting the premises of the cost-based criticism, it does not follow that arbitration costs necessarily preclude individuals from bringing their claims in arbitration. Even if individual claimants cannot afford the forum costs of arbitration, at least some of those individuals - those with viable claims given the total costs of the dispute resolution process - should nonetheless be able to bring their claims. For this reason, much of the legal analysis of arbitration cost challenges is misdirected, focusing too much on the personal finances of the individual claimant and too little on the incentives for attorneys to take the case (such as the value of the claim and possible recovery under fee-shifting statutes). In the vast majority of federal court cases adjudicating cost-based challenges to arbitration agreements, the claimant is represented by counsel, and in most has asserted a claim that, if successful, would permit the recovery of attorney’s fees. This evidence suggests that in most reported cases, even those in which courts invalidated the arbitration agreement on cost grounds, arbitration costs were not a barrier to asserting the claim in arbitration.

Czarnezki & Ford on Legal Interpretation Jason J. Czarnezki and William K. Ford (Marquette University - Law School and University of Chicago - Law School) have posted The Phantom Philosophy? An Empirical Investigation of Legal Interpretation on SSRN. Here is the abstract:
    While articles and books offering theories of judicial philosophy or legal interpretation flourish, evidence of the costs and benefits of various interpretive approaches is sorely lacking. Indeed, although there is evidence that ideology explains a limited amount of judicial decisions, there is virtually no systematic evidence that judges' interpretive philosophies, at least as typically defined by academics, even matter in their decisions. While a variety of studies test the ideological or attitudinal model of judicial decision-making, this research often omits any measure of the legal model, that is, traditional interpretive approaches, such as formalism, textualism, and originalism. This omission is not an oversight; the role of interpretive philosophies is rarely tested because of the difficulty in operationalizing the relevant variables. This Article tests a model of judicial decision-making that incorporates elements of both the attitudinal model and the legal model, along with a measure of collegiality and other variables. We develop a measure of interpretive philosophy using two sources of data: judicial opinions, which we code for certain indicators of traditional interpretive approaches (i.e., the use of interpretive tools); and a survey of former judicial clerks. The critical question is whether judges with similar interpretive philosophies are more likely to agree with one another in deciding cases. Our general finding is that ideology and interpretive philosophy are not significant predictors of agreement. Instead, experience on the bench together is a significant predictor of agreement, supporting the conclusion that judging is more about solving problems pragmatically with an eye to maintaining a collegial work environment. While further testing of the importance of the legal model is certainly warranted, at the present time, interpretive theorists pursue their labors in the absence of any evidence that interpretive theory matters in the day-to-day activities of actual judging.

Beny on Diversity in Elite American Law Firms Laura N. Beny (University of Michigan at Ann Arbor Law School) has posted Reflections on The Diversity-Performance Nexus among Elite American Law Firms: Toward a Theory of a Diversity Norm on SSRN. Here is the abstract:
    This exploratory article considers the diversity-performance nexus among elite American law firms. I present a taxonomy of existing theories - the neoclassical economic theory of discrimination, the "new markets" hypothesis, and the organizational efficiency/managerial theory of diversity - that explain this nexus with greater or lesser success. I argue that these theories do not seem fully to explain certain institutional and behavioral realities among elite American law firms with respect to workplace diversity. The article thus supplements the existing theories with a (deliberately) parsimonious social norms (signaling) model of diversity that (at least at first blush) seems more consistent with some of the observed institutional and behavioral regularities among these firms. However, the social norms model that I describe is deficient in that it treats diversity as an exogenous norm. I therefore propose to embark upon future research involving a deeper exploration of the question whether (and why) elite American law firms have internalized a diversity norm and the potential obstacles to such internalization, as well as an empirical analysis.

Chen on the Iowa Utilties Board Litigation Jim Chen (University of Minnesota Law School) has posted TELRIC in Turmoil, Telecommunications in Transition: A Note on the Iowa Utilities Board Litigation (Wake Forest Law Review, Vol. 33, p. 51, 1998) on SSRN. Here is the abstract:
    This article addresses the essential jurisdictional dispute in Iowa Utilities Board v. FCC. Professor Chen argues that the Eighth Circuit erred in finding that the FCC lacked jurisdiction to issue a rule on the appropriate price of establishing local exchange facilities and services. In light of the Chevron doctrine and the larger tradition of judicial deference in public utility regulation, Professor Chen argues the appeals court should have upheld the FCC's rulemaking authority. Professor Chen contends that the Eighth Circuit's flawed analysis masks an unfounded belief that federalism justifies a strict limit on the FCC's jurisdiction. He concludes that the Supreme Court should reverse this aspect of the Eighth Circuit's decision in its forthcoming review of Iowa Utilities Board.

Tuesday, August 23, 2005
Colburn on Restoring Wildlife Habitat Jamison Colburn (Western New England College School of Law) has posted Localism's Ecology: Protecting and Restoring Wildlife Habitat in the Suburban Nation on SSRN. Here is the abstract:
    There is wide agreement among conservation activists and scientists alike that loss and degradation of habitat is the leading threat to wildlife in America. Suburbia, though, is only beginning to consider how it is the problem in the struggle to stem the tide of "sprawl" and other economic processes producing ecosystem-wide habitat degradation today. A recent resurgence in academic and activist attention to local governments in America is recasting them as viable solutions to this problem. But much of this dialogue is being based upon a mistaken conception of local governance. Much of the new scholarship on local environmental law has ignored several core realities of suburbia and the history of our localism in the creation of an ever-expanding built landscape in America. This paper argues that the lack of such perspective in the current debate about local environmental law renders it blind to the vices of local governments and sham conservation measures, but also to their counterintuitive virtues and possibilities for real conservation progress. The history of local government is one of functional intertwining with private property entrepreneurialism. Indeed, the accumulation and defense of equity in land is perhaps the single best explanation of most community conservation initiatives today in much the same way it explains why "wilderness" settlements have been established and cultivated throughout American history. It has been this functional intertwining with real property that has made local governments so practically powerful in resisting so many state and federal environmental priorities. But it may well be this dimension of our localism that renders it peculiarly fit to the tasks of real habitat protection and restoration in the twenty-first century.

Skovsgaard and Giovannoni on Critical Decisions & Constitutional Rules Toke Skovsgaard Aidt and Francesco Giovannoni (University of Cambridge - Faculty of Economics and Politics and University of Bristol - Department of Economics) have posted Critical Decisions and Constitutional Rules on SSRN. Here is the abstract:
    Many constitutions specify procedures that allow critical decisions to be made with a different rule than day-to-day decisions. We propose a theory of constitutional rules that explains why. The theory is based on the assumption that the type of a decision can be observed, but not verified. We characterize two classes of second-best constitutions, both with clear analogues in real world constitutions: i) incentive scheme (IS) constitutions that elicit information about the type of a decision through a costly decision rule switching procedure and ii) linking scheme (LS) constitutions that grant limited veto powers to interested parties. We explore how the relative performance of the IS and the LS constitution depends on the economic environment.

Brooks on the Corporate Tax Kimberley Brooks (University of British Columbia - Faculty of Law) has posted Learning to Live with an Imperfect Tax: A Defence of the Corporate Tax (University of British Columbia Law Review, Vol. 36, p. 621, 2003) on SSRN. Here is the abstract:
    Following an introduction, the paper is divided into two parts followed by a conclusion. Part II reviews a number of objectives of the corporate tax, arguing that they should carry more weight as arguments in favour of the corporate tax than they are often attributed. Furthermore, while it is conceded that the corporate tax is a second or even an nth best tax for achieving these objectives, there are simply no administratively feasible or politically acceptable alternatives to it. The arguments reviewed in the paper are as follows. First, by taxing income from capital, the corporate tax increases the comprehensiveness, progressivity, and fairness of the income tax. Second, since it falls, at least in part, on pure economic profits, the corporate tax, at least to this extent, raises revenue efficiently. Third, the corporate tax is a necessary support for the individual income tax since without it corporate - source income could accumulate tax - free. Of course, this familiar withholding function of the corporate tax would suggest that the corporate tax should then be refunded when corporate retained earnings are distributed and taxed in the hands of individual shareholders; however, the additional economic inefficiencies and administrative complexities created by all apparently politically acceptable systems of refunding the corporate tax make the effort not worth the costs. Fourth, the corporate tax is a justifiable, widely accepted and efficient method for source countries to levy tax on the business income earned by non - residents. Fifth, the tax serves as a benefit tax, requiring corporations to bear part of the cost of the government services from which their business operations clearly benefit. Sixth, the tax serves the pragmatic purpose of collecting a good deal of revenue in an administratively efficient and politically acceptable way. Seventh, since the corporate tax is in place, and the economy has adjusted to it, any changes in the tax will cause inequities and windfall gains. Economists and other critics have a long litany of complaints about the corporate tax. These arguments can be grouped under the traditional tax policy criteria of equity, efficiency, and administrative practicality. Part III of the paper argues that these arguments against the corporate tax are not as compelling as they might appear. The arguments addressed in this part of the paper are as follows. First, critics argue that the corporate tax amounts to double tax and therefore is inequitable. Second, they argue that the tax creates three types of distortions: distortions in corporate payout policies in favour of the retention of corporate earnings is compared with its distributions; distortions in the debt/equity ratios in favour of debt and against new share issues; and distortions in the legal forms of business organization in favour of non - corporate as compared with corporate forms. Third, they argue that the corporate tax is difficult to administer because it requires inherently arbitrary line drawing between legal concepts such as corporate and non - corporate business enterprises, and debt and equity. The conclusion reviews and dismisses the arguments made in favour of adopting the American proposal to exempt dividends from taxation, or some variation of that proposal. Also, it presents an optimistic prediction about the future role of the corporate tax. Some critics of the separate corporate tax have maintained that even if policy makers do not abandon the tax because they are not persuaded by the tax policy arguments in favour of its abolition, increasing globalization will force its demise. Instead of this pessimistic diagnosis of the future role of the corporate tax, the paper concludes by suggesting that the same factors that are relied upon to predict its ultimate rejection may in fact be the factors that dictate the survival of the corporate tax.

Stuntz on Criminal Justice William J. Stuntz (Harvard Law School) has posted The Political Constitution of Criminal Justice on SSRN. Here is the abstract:
    The politics of crime is widely seen as punitive, racist, and inattentive to the interests of criminal suspects and defendants. Constitutional law is widely seen as a (partial) remedy for those ills. But the cure may be causing the disease. At the margin, constitutional law pushes legislative attention - and budget dollars - away from policing and criminal adjudication and toward punishment. The law also widens the gap between the cost of investigating and prosecuting poor defendants and the cost of pursuing rich ones. Overcriminalization, overpunishment, discriminatory policing and prosecution, overfunding of prison construction and underfunding of everything else - these familiar political problems are more the consequences of constitutional regulation than justifications for it. Solving these problems requires radical constitutional reform. The article explains why, and then offers brief sketches of what that reform might look like in five areas: policing, crime definition, adjudication, punishment, and federalism. It closes by explaining how reform could happen, and why it probably won't.

Anabtawi is Skeptical About Increasing Shareholder Power Iman Anabtawi (University of California, Los Angeles - School of Law) has posted Some Skepticism about Increasing Shareholder Power on SSRN. Here is the abstract:
    This Article examines shareholder primacists' claims that making boards more accountable to shareholders would go a long way toward solving the agency problem between shareholders and managers and enhancing shareholder welfare. I argue that in the shareholder power debate over whether to vest corporate decisionmaking authority primarily in a firm's shareholders or in its board of directors, shareholder primacists underplay deep rifts among the interests of large-block shareholders - those shareholders most likely to make use of increased shareholder power. The argument for reapportioning decisionmaking authority within the firm away from boards toward shareholders assumes that shareholders are a monolith with the single, overriding objective of maximizing share value. Some of the most significant modern shareholders, however, have private interests that conflict with (1) the goal of maximizing shareholder value generally or (2) the interests of other shareholders who would choose to maximize shareholder value differently, given their peculiar characteristics. Such private interests may induce influential shareholders to engage in rent-seeking behavior at the expense of overall shareholder welfare. In light of this possibility, which I argue is substantial, we would do well to pause before implementing corporate governance measures designed to further empower shareholders.

Monday, August 22, 2005
Junior Scholars Workshop at the Conglomorate Check this out:
    For four weeks beginning on August 22, we will be showcasing papers, generally on Mondays, Wednesdays and Thursdays. A pre-arranged reviewer will begin discussion on the paper with a post commenting on it. From there, comments are open and we hope that our interested and engaged readers will take the ball from there. We will treat this experiment just like an academic conference. You can stand up and ask a question, but you have to state your name first (i.e., no anonymous comments). And, like a conference, if you have a question or an insight that you would rather offer after the talk at "the podium," feel free to email the author directly.
Here's the link!

Rappaport on an Amendment to Overrule Kelo Michael Rappaport posts Overruling Kelo on The Right Coast. Here is a taste:
    Not only would that amendment improve the Constitution, it would also be an effective way of criticizing the Supreme Court. The nation would be telling the Supreme Court, you are wrong and we don't like it. In fact, there is much to be said for suggesting, as much as possible, that the amenders believe the Kelo decision was mistaken. One way to do that would be to say: "Notwithstanding the erroneous decision of the Supreme Court . . . .

Bernstein on Berger-Twerski on Daubert David Bernstein (George Mason) has posted Learning the Wrong Lessons from 'An American Tragedy': A Critique of the Berger-Twerski Informed Choice Proposal on SSRN. Here is the abstract:
    This paper is a critique of Margaret Berger and Aaron Twerski, "Uncertainty and Informed Choice: Unmasking Daubert," forthcoming in the Michigan Law Review. Berger and Twerski propose that courts recognize a cause of action that would allow plaintiffs who claim injury from pharmaceutical products, but who do not have sufficient evidence to prove causation, to recover damages for deprivation of informed choice. Berger and Twerski claim inspiration from the litigation over allegations that the morning sickness drug Bendectin caused birth defects. Considering the criteria Berger and Twerski suggest for their proposed cause of action in the context of Bendectin, it appears that a pharmaceutical manufacturer could be held liable for failure to provide informed choice: (a) even when there was never any sound scientific evidence suggesting that the product caused the harm at issue, and there was an unbroken consensus among leading experts in the field that the product did not cause such harm; (b) when the product prevented serious harm to a significant number of patients, and prevented substantial discomfort to a much greater number, even when there were no available alternative products; (c) when a plaintiff claims that she would not have taken the product had she been informed of an incredibly remote and completely unproven risk; and (d) when the defendant is unable to prove a negative - that the product in question definitely did not cause the claimed injury. No rational legal system would allow such a tort. Putting the Bendectin example aside, the informed choice proposal has the following additional weaknesses: (1) it invites reliance on unreliable junk science testimony; (2) it ignores the fact that juries are not competent to resolve subtle risk assessment issues; (3) it reflects an unwarranted belief in the ability of juries to both follow limiting instructions and ignore their emotions; (4) it ignores the problems inherent to multiple trials - even if defendants were to win most informed choice cases, safe products could still be driven off the market by a minority of contrary verdicts; (5) it ignores the inevitable costs to medical innovation as pharmaceutical companies scale back on researching product categories that would be particularly prone to litigation; (6) to preempt litigation, pharmaceutical companies would overwarn, rendering more significant warnings less useful; and (7) FDA labeling requirements would arguably preempt the proposed cause of action.

Leitzel on Vice Regulation James A. Leitzel (University of Chicago) has posted From Harm to Robustness: A Principled Approach to Vice Regulation on SSRN. Here is the abstract:
    ?John Stuart Mill's harm principle maintains that adult behavior cannot justifiably be subject to social coercion unless the behavior involves harm or a significant risk of harm to non-consenting others. The absence of harms to others, however, is one of the distinguishing features of many manifestations of vices such as the consumption of alcohol, nicotine, recreational drugs, prostitution, pornography, and gambling. It is therefore with respect to vice policy that the harm principle tends to be most constraining, and some current vice controls, including prohibitions on prostitution and drug possession, violate Mill's precept. In the vice arena, we seem to be willing to accept social interference with what Mill termed self-regarding behavior. Does consistency then imply that any popular social intervention into private affairs is justifiable, that the government has just as much right to outlaw skateboarding, or shag carpets, or spicy foods, as it does to outlaw drugs? In this paper I argue that advances in neuroscience and behavioral economics offer strong evidence that vices and other potentially addictive goods or activities frequently involve less-than-rational choices, and hence are exempt from the full force of the harm principle. As an alternative guide to vice policy, and following some direction from Mill, I propose the robustness principle: public policy towards addictive or vicious activities engaged in by adults should be robust with respect to departures from full rationality. That is, policies should work pretty well if everyone is completely rational, and policies should work pretty well even if many people are occasionally (or frequently) irrational in their vice-related choices. The harm and robustness principles cohere in many ways, but the robustness principle offers more scope for policies that try to direct people for their own good, without opening the door to tyrannical inroads upon self-regarding behavior.

Korobkin on Rankings Russell B. Korobkin (University of California, Los Angeles - School of Law) has posted Harnessing the Positive Power of Rankings: A Response to Posner and Sunstein on SSRN. Here is the abstract:
    Given the amount of popular and academic interest in the topic of educational rankings generally and law school rankings specifically, the discussions and debates tend to be quite narrowly drawn. The common implicit assumption in such debates is that educational rankings ought to reflect educational quality, and disagreement usually centers around whether educational quality is possible to measure and, if so, how best to do so. Articles prepared for the forthcoming Indiana Law Journal symposium on "The Next Generation of Law School Rankings" by Judge Richard Posner and Professor Cass Sunstein offer useful insights within the parameters of the conventional rankings debate, but they fail to break free from its implicit boundaries. In this symposium contribution response to those articles, I first address these authors' contributions within the framework in which they are situated, but I then go on to argue for an expanded vision of the future of educational rankings - one that views rankings as instrumentally useful to the purpose of encouraging socially beneficial competition among educational institutions. When designing rankings, the primary goal should be to harness this positive power.

Anderson on Negotiating Sex Michelle J. Anderson (Villanova University School of Law) has posted Negotiating Sex (Southern California Law Review, Vol. 41, p. 101, 2005) on SSRN. Here is the abstract:
    "Negotiating Sex" is a response to the two major proposals for rape law reform in legal scholarship today, as well as a proposal for a third way. Susan Estrich and Donald Dripps argue that sexual penetration should be legal unless the victim expresses her non-consent, a proposal I call the "No Model." Stephen Schulhofer argues that sexual penetration should be illegal unless the defendant obtains affirmative consent for penetration through the victim’s words or conduct, a proposal I call the "Yes Model." Under this model, according to Schulhofer, if a woman does not say "no," and "her silence is combined with passionate kissing, hugging, and sexual touching," one may "infer actual willingness" based on her nonverbal conduct. Both the No and the Yes Models of rape law reform fail to account for important empirical realities. First, the lived experience of sexual trauma often includes physical paralysis and mental dissociation, which cut a victim off from her ability to object to penetration. Second, men often misinterpret women's body language, seeing erotic innuendo and sexual intent where there is none, which impedes their ability to surmise consent accurately. Third, people often substitute sexual petting for penetration as a way to limit the health risks of sexually transmitted diseases and pregnancy posed by penetration. It makes no sense, therefore, to "infer" consent to penetration from "passionate kissing, hugging, and sexual touching." I propose that rape law abandon the notion of consent. In its place, the law should require negotiation - conversation and mutual agreement - between partners before sexual penetration occurs. Negotiation would require a communicative exchange about whether partners want to engage in sexual intercourse. The Negotiation Model requires communication that is verbal unless partners have established a context between them in which they may accurately assess one another's nonverbal behavior. The verbal communication must be such as would indicate to a reasonable person that sexual penetration has been freely and explicitly agreed to.

Sanchirico on Detection avoidance Chris William Sanchirico (University of Pennsylvania Law School) has posted Detection Avoidance on SSRN. Here is the abstract:
    In practice, the problem of law enforcement is half a matter of what the government does to catch violators and half a matter of what violators do to avoid getting caught. In the theory of law enforcement, however, although the state's efforts at "detection" play a decisive role, offenders' efforts at "detection avoidance" are largely ignored. Always problematic, this imbalance has become all the more urgent in recent years as episodes of corporate misconduct spur new interest in punishing process crimes like obstruction of justice and perjury. This article adds detection avoidance to the existing theoretical frame with an eye toward informing the current policy debate. The exercise leads to several conclusions. First, despite recent efforts to strengthen laws governing obstruction and perjury, sanctioning is relatively inefficacious at discouraging detection avoidance. Sanctions send a mixed message to the offender: do less to avoid detection, but to the extent you still do something, do more to avoid detection of your detection avoidance. The article argues that detection avoidance is more effectively deterred through the structural design of evidentiary procedure (inclusive of investigation). Specifically advocated are devices that exploit the cognitive shortcomings of potential avoiders and the strategic instability of their cooperative arrangements, thereby lowering the cost effectiveness of devoting resources to avoiding detection.

Sunday, August 21, 2005
Conference Announcement: Comparative Intellectual Property at Ottawa
    The University of Ottawa, Faculty of Law is pleased to announce the details of its annual fall IP/IT law conference. Following on last year's "global conversation" conference, this year's event features a comparative Canada - Australia agenda. Set for September 30th and October 1st, this year's conference includes panels on several "copyright and" panels examining use, access, international issues, education, and intermediaries. Other presentations will focus on privacy, content regulation, and consumer concerns. Speakers for the conference include:
      Peter Drahos, ANU Graham Greenleaf, UNSW Matthew Rimmer, ANU Kim Weatherall, Melbourne David Lindsay, Monash Brian Fitzgerald, QUT Carolyn Penfold, UNSW Dan Hunter, Penn Ian Kerr, Ottawa David Lametti, McGill Carys Craig, Osgoode Jane Bailey, Ottawa Sam Trosow, Western Elizabeth Judge, Ottawa Myra Tawfik, Windsor Michael Deturbide, Dalhousie
    Registration (early bird pricing until September 1st) and a full conference agenda is available online at or brochure at

Saturday, August 20, 2005
Conference Announcement: The Jurisprudence of Justice Stevens
    Schedule for Conference on “The Jurisprudence of Justice Stevens” Fordham University School of Law September 30-October 1, 2005 Friday, September 30
      10:30 to Noon: Criminal Justice
        Diane Marie Amann, University of California at Davis School of Law (moderator) Deborah W. Denno, Fordham University School of Law James Steven Liebman, Columbia University School of Law and Lawrence C. Marshall, Stanford Law School Nancy S. Marder, Chicago-Kent College of Law, Illinois Institute of Technology Joseph T. Thai, University of Oklahoma Law Center
      1:15 to 2:15: Remarks by Justice John Paul Stevens
        Dean William Michael Treanor, Fordham University School of Law, will first offer remarks and introduce Jeffrey Sean Lehman, Cornell Law School, who will introduce Justice Stevens
      2:15 to 3:45: Antitrust/Intellectual Property
        Daniel M. Klerman, University of Southern California Law School (moderator) Alan J. Meese, College of William and Mary, Marshall-Wythe School of Law Mark R. Patterson, Fordham University School of Law Pamela Samuelson, University of California, Berkeley School of Law
      4:00 to 5:30: Administrative Law/Statutory Interpretation
        Abner S. Greene, Fordham University School of Law Melissa Hart, University of Colorado School of Law Kenneth A. Manaster, Santa Clara University School of Law John F. Manning, Harvard Law School Amy J. Wildermuth, University of Utah, S.J. Quinney College of Law (moderator)
    Saturday, October 1
      9:00 to 10:30: Federalism
        David Jeremiah Barron, Harvard Law School Allison Marston Danner, Vanderbilt University Law School (moderator) and Adam Marcus Samaha, University of Chicago Law School Thomas H. Lee, Fordham University School of Law Robert A. Schapiro, Emory University School of Law
      10:45 to 12:15: First Amendment/Voting Rights
        Christopher L. Eisgruber, Princeton University (moderator) Pamela S. Karlan, Stanford Law School Greg Paul Magarian, Villanova University School of Law Eduardo Moises Penalver, Fordham University School of Law Terry Smith, Fordham University School of Law
      1:30 to 3:00: Equal Protection
        Daniel A. Farber, University of California, Berkeley School of Law (moderator) James E. Fleming, Fordham University School of Law George A. Rutherglen, University of Virginia School of Law Andrew M. Siegel, University of South Carolina School of Law