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

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

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

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

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

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

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

Monday, May 29, 2006
Monday Calendar>

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

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

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

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

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

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

Saturday, May 27, 2006
Download of the Week The Download of the Week is Behavioral Economics and Fundamental Tax Reform by Ed McCaffery. Here is the abstract:
    The most common use of the insights of behavioral economics in the cause of fundamental tax reform has been to argue for the employment of ad hoc tax-favored savings vehicles - such as individual retirement accounts (IRAs), medical, and educational savings accounts, and so on - within an income-tax framework. There is no reason under a "rational" life-cycle model of individual savings behavior why these ad hoc vehicles should work, to increase savings on the micro (individual) or macro (collective social) levels, whether they follow the "postpaid" approach of traditional IRAs or the "prepaid" approach of Roth IRAs. Prepaid accounts generate a windfall gain to existing savers, and offer no cash-flow relief for current non-savers to help them save. Postpaid accounts can be easily "arbitraged" by borrowing, or dissaving. Proponents of these plans thus point to lessons from behavioral economics, arguing that myopic individuals who use "mental accounts" might be led to save by the special vehicles. This essay takes exception to this standard view. It argues that this view of matters misconceives basic principles of behavioral economics, using ad hoc findings in an ad hoc fashion to justify ad hoc, incremental reform. Best understood, behavioral economics suggests that ad hoc tax favored plans will not work. This counter-theory is supported by the data, which show, broadly, decades of ad hoc tax-favored vehicles within the Internal Revenue Code, with more apparently on the way, matched by convincing evidence of little or no savings by most Americans, and little savings in the aggregate. The essay concludes by suggesting that a happier, more stable marriage of behavioral economics and fundamental tax reform suggests fundamental, not incremental, reform of the tax system.
McCaffery's tax work is always interesting! Highly recommended!

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Friday Calendar

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

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

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

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

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

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

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