Legal Theory Blog

All the theory that fits!


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

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

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

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

Tuesday, August 30, 2005
Prize Announcement: The Dennis Leslie Mahoney Prize in Legal Theory
    The Dennis Leslie Mahoney Prize in Legal TheoryThe Julius Stone Institute of Jurisprudence in the Faculty of Law at the University of Sydney invites entries for the 2005 Dennis Leslie Mahoney Prize in L egal Theory. The prize, which will be awarded for the first time in 2006, has been generously provided for by a gift from the Honourable Dennis Mahoney QC AO, former President of the New South Wales Court of Appeal. The prize will go to the author or authors of an outstanding published work in the field of jurisprudence which best reflects an approach combining legal theory with sociological inquiry, in the tradition of the jurisprudence of the late Professor Julius Stone. Stone’s approach, expounded in his seminal work of 1946, The Province and Function of Law and in many other works throughout his life, sought to demonstrate that the law inexorably responds and changes as society changes. A ‘published work’ need not necessarily be in the form of a traditional book or journal publication. Other types of publication, including reports or papers, are eligible. The recipient of the prize will receive a cash prize of AU$50,000, with the offer of an invitation to participate in the activities of the Faculty of Law at the University of Sydney for a period of up to one semester. He or she may also receive an invitation to deliver the prestigious Julius Stone Address in the year following the award of the prize. Entries may be directly submitted by the author(s), or on the nomination of a third party. Entrants are required to submit an application form and five copies of the work, plus five copies of their curriculum vitae. Four copies will be returned following judging, and one will be kept in the archive of the Julius Stone Institute. Applications close on 1 January 2006. The prize winner will be announced in May 2006. For further information about the Dennis Leslie Mahoney Prize, contact the Julius Stone Institute of Jurisprudence.

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

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

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

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

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

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

Monday, August 29, 2005
The Politics of Federal Judicial Selection David Law and I have posted a new paper on SSRN: Pivotal Politics, Appointments Gridlock, and the Nuclear Option. Comments would be very welcome! Here is the abstract:
    In this paper, we employ simple formal models drawn from political science to explain the occurrence of gridlock in the federal judicial selection process, and to explore the implications of the "nuclear option," by which a bare majority of senators employs parliamentary tactics to abolish the filibuster with respect to judicial nominations. Our application of a pivotal politics model leads us to reject the notion that appointments gridlock is a straightforward consequence of divided government. Instead, meaningful changes to the ideological balance of the federal bench require a more demanding ideological alignment of multiple veto players relative to the status quo. This conclusion is broadly consistent with the recent history of the federal judicial appointments process. We then adapt the pivotal politics model to the existence of the nuclear option by introducing a new player, the nuclear pivot, who supplies the last vote needed to trigger the nuclear option, and whose precise identity is uncertain - perhaps even to the nuclear pivot herself. Introduction of the nuclear pivot curtails the extent of gridlock and makes possible some change in the status quo, albeit less change than would be possible in the outright absence of the filibuster. We conclude not only that the threat of the nuclear option works to the detriment of the minority Democrats, but also that the Democrats have gained nothing of substance from the agreement reached by a group of moderate senators - the so-called "Gang of 14" - that has indefinitely forestalled actual exercise of the nuclear option. However, both uncertainty over the location of the nuclear pivot and the degree to which the Democrats have successfully prolonged the confrontation over judicial nominees may hinder the President from capitalizing upon the advantage otherwise conferred by the threat of the nuclear option.
And this passage comes from near the end of the paper:
    A president’s political mortality—particularly that of a lame-duck president entering the second half of his last term—can be expected to influence his choice of nomination strategy. If presidents are to leave their mark upon the world—or the judiciary—they must do so quickly. Judicial vacancies left for Democratic successors represent missed opportunities for the Republican President and Senate leadership. Moreover, if the President can improve today upon the status quo with appointments that are only moderately conservative, there is no reason for him to wait until tomorrow to do so: a moderately conservative judge does nothing to affect the status quo until he is already seated on the bench. To paraphrase an old adage, as the end of his second term approaches, a bird in the hand may well prove to be worth two to President Bush. With the support of a likeminded Senate majority willing to threaten the nuclear option, the President enjoys powerful advantages over his opposition in the Senate. He cannot make full and prompt use of these advantages, however, until he first knows just how extensive they actually are, and it is questionable whether he now has the time to discover their true extent by trial and error. The sheer passage of time thus casts a different light upon the plight of his enfeebled opposition. By now, it should be clear that the existence of the nuclear option is not good for the Democrats. Moreover, the truce that has been styled a Democratic victory is, in substance, nothing of the sort. At best, it formalizes in loose language what was political reality all along—namely, that the filibuster may only be used to the extent that the nuclear pivot is in fact willing to tolerate filibusters. The real victory for the Senate’s remaining Democrats lies in the fact that, for the better part of the current president’s political lifespan, they have managed to filibuster judicial nominees and postpone the moment of nuclear reckoning–only to postpone it again with an uncertain truce, and thereby keep the true extent of their own power shrouded in mystery, at the critical juncture of the President’s first Supreme Court vacancy.
I am very curious about reactions to this paper!

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

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

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

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

Sunday, August 28, 2005
Legal Theory Calendar
    Wednesday, August 31
      University of Alabama School of Law: Austin Sarat, Amherst College, What Happened to Mercy? On the Paradox of Sovereign Prerogative in Capital Cases
    Thursday, September 1
      Florida State University, College of Law: Anupam Chander, University of California, Davis School of Law, NetWork: The Law and Economics of Trade in Services.

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

Saturday, August 27, 2005
Legal Theory Bookworm The Legal Theory Bookworm recommends Divided by God: America's Church-State Problem--and What We Should Do About It by Noah Feldman. Here is a blurb:
    In Divided By God, Noah Feldman examines the unique, fascinating balance the United States has pursued for well over 200 years now -- the attempt at democratic government by the people in a country made up of many religions, and many highly religious people. The novel principle enshrined to help make this a success was strong separation of church from state. The strain on the system has never been greater as polarization grows over the many hot-button topics of our day. Feldman also observes how the stakes have been raised in the last 50 years as the forces of secularism have fought a largely successful battle to remove religious symbolism from the public sphere, while at the same time the growing tide of religious conservatism has managed to forge a surprisingly close church-state relationship through government funding of religious priorities (faith-based initiatives and school vouchers, for example.) Feldman, a law professor at New York University, delivers a timely book that attempts to move the discussion past rhetoric, by a careful examination of the history of church-state separation. The book's lively, conversational writing makes for a fascinating journey, starting with a precise analysis of exactly why our founding fathers debated and finally agreed to formally separate church and state, and then tracking the tests and challenges that separation has stood over the last two centuries. Perhaps the most refreshing current throughout is Feldman's lack of partisan bias, and his respect and understanding of the values, fears and goals that successive generations have brought to all sides of this never-ending debate. It is that lack of partisanship that makes his conclusion all the more powerful -- a call to move beyond a battlefield where the secular and religious forces aggressively pursue their own mutually exclusive goals, and instead to seek a deeper understanding of what values we all hold in common, and to recognize the importance of engaging in constructive debate in order to find and define that commonality

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

Friday, August 26, 2005
Citation Networks I strongly recommend that you take a quick look at The wisdom of Hercules, a short piece in the Economist on modeling and analysis of Supreme Court decisions and their citation networks. Here is a taste:
    Dr Fowler's model shows that, until the end of the 18th century, the Supreme Court's opinions rarely cited previous Supreme Court opinions. This is not all that surprising since there were so few. In the 19th century, however, the average number of citations to previous cases started climbing sharply and so did the average number of citations to those cases by later Supreme Courts. For a while, Supreme Court justices liked to cite opinions with many citations in them. By 1950, an average opinion cited about 15 other opinions, and each opinion was itself cited by roughly the same number. The trend reversed, however, between 1953 and 1969, when the controversial Earl Warren served as Chief Justice of the United States. As that Court embarked on its activist, and mostly liberal, course, there was a precipitous drop in the number of citations it made, which implies that the Warren Court was less respectful, or perhaps just less interested, in precedent. When subsequent Supreme Courts turned to the right, the number of citations continued to fall, implying they were ignoring the Warren Court precedents. Under William Rehnquist, the current chief justice, this trend has continued apace, reaching an average of a mere five citations by 2002. Will the Rehnquist Court's own opinions suffer the same fate?
For more on this fascinating topic, check out The Web of Law by Tom Smith--available for download from SSRN.

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

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

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

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

Thursday, August 25, 2005
Conference Announcement: Lawyers & Wars
    LAWYERS AND WARS: A Symposium In Honor Of Edward R. Cummings Friday, September 30, 2005 9:00 A.M. – 6:00 P.M. 2000 H Street, NW,Washington, DC Introductory Remarks Frederick M. Lawrence,Dean, George Washington University Law School John Bellinger, Legal Adviser, U.S. Department of State Opening Keynote Address by Judge Thomas Buergenthal Introduction Professor Dinah Shelton, George Washington University Law School Lawyers & Wars: Recent I.C.J. Decisions and the Decision-Making Process Honorable Thomas Buergenthal, Judge, International Court of Justice Break Panel I: Continuity and Change in the Law ofWar: 1975 to 2005 Chair: Professor Sean D. Murphy, George Washington University Law School Panelists: Means and Methods of Warfare W. Hays Parks, International Affairs Division, Office of General Counsel, U.S. Department of Defense Detainees and POWs Professor Michael J. Matheson, George Washington University Law School; Member, U.N. International Law Commission The Role of Non-State Actors Dinah PoKempner, General Counsel, Human Rights Watch Luncheon Address Introduction Susan L. Karamanian, Associate Dean for International and Comparative Legal Studies, George Washington University Law School What Do We Expect of Lawyers and Law in Armed Conflict? Sir Frank Berman QC, Essex Court Chambers; Former Legal Adviser, U.K. Foreign and Commonwealth Office Panel II: New Dilemmas and Confusions Chair: Edwin D.Williamson, Sullivan & Cromwell LLP; former Legal Adviser, U.S. Department of State Panelists: New Paradigms for the Jus ad Bellum? Professor Jane Stromseth, Georgetown University Law Center Internal Conflicts Steven Solomon, Legal Division, U.N.World Health Organization Applying Human Rights to Warfare Professor Robert Goldman, American University Washington College of Law; former president and member of the Inter-American Commission on Human Rights (1996-2003) Panel III: The Role of the Lawyer in Warfare Chair:William H. Taft IV, Fried, Frank, Harris, Shriver & Jacobson LLP; former Legal Adviser, U.S. Department of State Panelists: Self-Policing by Government Lawyers Professor David Kaye, Center for International and Comparative Law, Whittier Law School Oversight by Civilian Judges Professor Ruth Wedgwood, Johns Hopkins University School of Advanced International Studies; Member, U.N. Human Rights Committee Oversight by Congress David Abramowitz,Minority Counsel, International Relations Committee, U.S. House of Representatives The 2005 Susan N. and Augustus diZerega Jr. Lecture Introduction Todd Buchwald, Assistant Legal Adviser for United Nations Affairs, U.S. Department of State Leaders, Courtiers, and Command Responsibility in Shakespeare Honorable Theodor Meron, Judge and President, International Criminal Tribunal for the former Yugoslavia Presentation to Edward R. Cummings of the J.William Fulbright Award for Distinguished Public Service Dean Frederick M. Lawrence

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

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

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

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

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

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

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

Wednesday, August 24, 2005
Lipkin on the Harm of Same-Sex Marriage Robert Justin Lipkin has posted The Harm of Same-Sex Marriage: Real or Imagined? on SSRN. Here is the abstract:
    The controversy over same-sex marriage centers on whether same-sex marriage harms traditional marriage. Some conservatives insist that it will and therefore argue that it should be legally prohibited. By contrast, some liberals are mystified over the contention that same-sex marriage can possibly harm anyone's traditional marriage. This article shows that conservatives and liberals are both right and that they are both wrong. Indeed, it is possible to fashion a rapprochement between reasonable conservatives and reasonable liberals. Conservatives are right that, in an important sense of harm, the legal recognition of same-sex marriage will indeed harm traditional marriage. Liberals are right that despite such harm, marriage should be extended to same-sex couples nonetheless. Implicit in this controversy is which types of harm can be recognized in a democratic society as being reasons for and against laws. A corollary question is who owns and is entitled to participate in American democratic institutions. Some types of harm and some types of exclusion represent a compelling state interest which can and should be legally prohibited. However, harm or exclusion that results merely from clashing normative environments generally must be permitted in a democratic society. While perhaps satisfying extremists on neither side, this rapprochement can contribute to a cease fire in one of the heated battle in the so-called culture wars.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Saturday, August 20, 2005
Legal Theory Bookworm The Legal Theory Bookworm recommends Lloyd's Introduction to Jurisprudence by Michael Freeman. This is a standard and widely adopted text in UK and other commonwealth jurisprudence courses for undergraduates, but I use it as a very handy source of materials on a very wide range of jurisprudential approaches. This belongs on your bookshelf!

Download of the Week The Download of the Week is How an Understanding of the Second Personal Standpoint Can Change Our Understanding of the Law: Hart's Unpublished Response to Exclusive Legal Positivism by Robin Kar. Here is the abstract:
    This Article describes recent developments in moral philosophy on the second personal standpoint, and argues that they will have important ramifications for legal thought. Moral, legal and political thinkers have, for some time now, understood important distinctions between the first personal perspective (of deliberation) and the third personal perspective (of observation, cause and effect), and have plumbed these distinctions to great effect in their thought. This distinction is, in fact, implicit the law and economics movement's rational actor model of decision, which currently dominates much legal academic thought. Recent developments in value theory due to philosopher Stephen Darwall suggest, however, that there is another distinct and irreducible standpoint that we commonly employ in our social interactions: the second personal standpoint. This is the standpoint from which we address one another with claims and grievances, or respond to such claims with apology, excuse or justification. The standpoint employs a distinctive grammatical person, which is as old as our specifically-human capacities for language, and which allows us to ask and answer a distinctive class of practical problems. These are inherently relational problems, which concern how to navigate, manage, repair - and sometimes dissolve - important human relationships. This Article begins by identifying distinctive features of the second personal standpoint. It then illustrates the potential reach of these new developments for legal theory with three examples. Specifically, these developments might help us better diagnose problems that a number of other legal theorists have recently been raising, including, (1) the potential loss involved with silencing criminal defendants (Natapoff), (2) the potential loss inherent in moving from traditional common law uses of precedent to more formalistic approaches (Tiersma), and (3) the inability of economic theories to capture important aspects of tort law's duty of care (Coleman, Perry, Weinrib). The Article then turns to its central thesis, which is stated in deliberately provocative terms: these new developments will allow us to decipher Hart's undeveloped but inchoately understood response to exclusive legal positivism, thereby clarifying important aspects of the genuine relationship between law and morality. According to received views, Hart involved himself in inconsistency when he absorbed Raz's important observations about legal authority into his own jurisprudence. This Article argues, to the contrary, that Hart sensed there was no genuine inconsistency, and for roughly the right reasons. What Hart lacked - and what we have all lacked until now - is a clear account of the second personal standpoint in order to develop and articulate this sense. Using contemporary work, this Article develops a more robust account of legal authority and legal obligation, and defends it against concerns raised by Raz and Shapiro. It argues that Hart would (or at least should) have acknowledged this account as an appropriate elaboration of his views, and as representing the best available framework from within which to further refine legal positivist doctrine. The account should be of independent interest Dworkineans, and other non-positivists, as well, because it suggests that we cannot ultimately resolve these debates on the basis of facts about of legal authority.
Highly recommende!

Friday, August 19, 2005
Seto & Buhai on Tax and Disability Theodore P. Seto and Sande Buhai (Loyola Law School (Los Angeles) and Loyola Law School (Los Angeles)) have posted Tax and Disability: Ability to Pay and the Taxation of Difference (University of Pennsylvania Law Review, Vol. 154, June 2005) on SSRN. Here is the abstract:
    Although people with disabilities make up some 20% of the American population, scholars have largely ignored U.S. tax provisions of particular relevance to them. This article undertakes the first such systematic study. In the process, it reexamines disability theory, tax theory, and the mechanical structure of the individual income tax system. Disability theory has changed dramatically over the past century, to the point that many tax rules important to people with disabilities are no longer justified by modern disability theory. Standard tax theory turns out to be inadequate to deal with the problems of people with disabilities because, consistent with its utilitarian origins, it generally assumes that taxpayers are identical except with respect to income; as a result, it lacks capacity to deal with other individual differences in ability to pay. The failure of theory to deal adequately with ability to pay, in turn, has placed serious strains on the mechanical structure of the individual income tax system as a whole, which has become increasingly incoherent. This article analyzes existing tax provisions of particular relevance to people with disabilities using an ability-to-pay approach to individual income taxation and a human variation paradigm of disability rights, justifying or reframing some and recommending repeal of others. Among other issues, it explores the general welfare doctrine and a dramatic expansion of the medical expense deduction, neither of which has received sufficient scholarly attention elsewhere. Ultimately, the article suggests, if the individual income tax system as a whole were to be reframed in terms of ability to pay, the mechanical complexity of that system could be rationalized and significantly reduced.

Zick on Speech and Spatiality Timothy Zick (St. John's) has posted Space, Place, and Speech: The Expressive Topography on SSRN. Here is the abstract:
    Place is currently under-theorized in First Amendment jurisprudence. When it has been independently considered at all, place has been conceptualized as nothing more than an inert backdrop for expressive scenes. For more than sixty years, place has been treated as property, a public resource, like air or water, that the government controls. There are many and sustained critiques of the constitutional doctrine of place. But there has been no effort to fundamentally and systematically reconsider place itself. Building upon a forthcoming TEXAS LAW REVIEW article, entitled Speech and Spatial Tactics, this Article fashions a new perspective on place. Drawing upon the work of scholars of place in human geography, anthropology, sociology, and philosophy, the Article sets forth a conception of place that it calls Expressive Place. In contrast to current treatments of place as secondary, inert, given, and binary, Expressive Place is primary to expression, dynamic, constructed, and variable. The Article utilizes the concept of Expressive Place to re-plot the "expressive topography," the sum of public space potentially available for expressive activity. The revised topography consists of at least six spatial types that substantially affect First Amendment rights -- Embodied, Contested, Inscribed, Tactical, Cyber, and Non-places. The Article offers several prescriptive suggestions in light of this ambitious re-conceptualization of place. A new method by which courts can "read" place is proposed, as are several specific alterations of the manner in which courts review spatial regulations under the time, place, and manner doctrine.

Kilborn on Consumer Bankruptcy Reform in the Netherlands Jason Jeremy Kilborn (Louisiana State University, Baton Rouge - Paul M. Hebert Law Center) has posted The Hidden Life of Consumer Bankruptcy Reform: Insights for the New U.S. Law from Unexpected Parallels in the Netherlands on SSRN. Here is the abstract:
    This Article takes advantage of a rare double opportunity to break new ground in commercial, consumer, and comparative law. First, it offers one of the first detailed analyses of key elements of the new U.S. consumer bankruptcy reform law, which will go into effect on October 17, 2005. This Article offers a unique perspective on the new law in light of a curious and surprising discovery: It turns out that the U.S. consumer bankruptcy system as "reformed" will resemble in many critical respects the consumer bankruptcy system in place for the past six years in the Netherlands. As a result of this serendipitous U.S.-Dutch convergence, years of experience under the Dutch consumer debt relief system can serve as a sort of crystal ball, providing a rare glimpse into the future of the new U.S. system. This Article describes both the "law in books" as well as the "law in action" as it has developed in the Netherlands in recent years. The Dutch law "on the ground" has diverged in significant ways from legislative expectations, and such divergences might well be repeated -- for better or worse -- in the United States in coming years. In particular, several key similarities and distinctions between the Dutch and U.S. systems reveal latent weaknesses and portend an impending breakdown in the "credit counseling" and "means testing" parts of our new system. A comparative view of recent Dutch developments offers not only cause for concern for coming problems, however, but also hope for some effective solutions.

Smith on Establishment and Corporate Law Douglas G. Smith (Kirkland & Ellis LLP) has posted The Establishment Clause: Corollary of Eighteenth-Century Corporate Law? (Northwestern University Law Review, Vol. 98, No. 1, p. 239, 2003) on SSRN. Here is the abstract:
    This article offers an analysis of the original meaning of the Establishment Clause. The thesis of this article is that the framers understood the term establishment in a very technical sense. Establishing a religion was essentially equivalent to granting a special corporate charter to a particular religious denomination. In the eighteenth and nineteenth centuries, states often granted corporate charters that were accompanied by exclusive privileges or monopolies that prohibited others from engaging in certain businesses. This was no different in the case of organizations that had a religious purpose. Accordingly, in prohibiting Congress from issuing laws respecting an establishment of religion, the framers sought to prohibit the federal government from passing laws relating to such corporate charters. Because corporate law was at the time viewed as being solely the province of the states (it was the states, and not the federal government, that had the power to confer such corporate charters), this interpretation is consistent with the evidence indicating that the Establishment Clause was designed to function primarily as a jurisdictional provision -- i.e., the primary effect of the provision was to keep the federal government from interfering with the state governments' activities in the area of religion.

Bhattacharjee et al on Payola Sudip Bhattacharjee, Ram D. Gopal, Kaveepan Lertwachara and James R. Marsden (University of Connecticut - Department of Operations & Information Management) have posted Whatever Happened to Payola? An Empirical Analysis of Online Music Sharing (Decision Support Systems, 2004) on SSRN. Here is the abstract:
    The popularity of online music-sharing networks has attracted interest from the music industry, artists, consumer advocacy groups, the popular press, and government legislative and regulatory entities. P2P networks have become lightning rods for debates on intellectual property rights and music market fates. Yet, to date, little has been based on actual observed activity on online sharing networks. Here, we report on an initial P2P network data-gathering and analysis endeavor and relate it to market performance of music albums. The relative market performance of music albums is gauged using the list of top 100 albums on the weekly Billboard charts. The P2P sharing data gathered is longitudinal, spanning a period of eight weeks. We also identify and track data for 47 upcoming album releases providing pre- and post-release comparisons of sharing activity.

Kar on Hart on Exclusive Legal Positivism Robin Bradley Kar (Loyola Law School (Los Angeles)) has posted How an Understanding of the Second Personal Standpoint Can Change Our Understanding of the Law: Hart's Unpublished Response to Exclusive Legal Positivism on SSRN. Here is the abstract:
    This Article describes recent developments in moral philosophy on the second personal standpoint, and argues that they will have important ramifications for legal thought. Moral, legal and political thinkers have, for some time now, understood important distinctions between the first personal perspective (of deliberation) and the third personal perspective (of observation, cause and effect), and have plumbed these distinctions to great effect in their thought. This distinction is, in fact, implicit the law and economics movement's rational actor model of decision, which currently dominates much legal academic thought. Recent developments in value theory due to philosopher Stephen Darwall suggest, however, that there is another distinct and irreducible standpoint that we commonly employ in our social interactions: the second personal standpoint. This is the standpoint from which we address one another with claims and grievances, or respond to such claims with apology, excuse or justification. The standpoint employs a distinctive grammatical person, which is as old as our specifically-human capacities for language, and which allows us to ask and answer a distinctive class of practical problems. These are inherently relational problems, which concern how to navigate, manage, repair - and sometimes dissolve - important human relationships. This Article begins by identifying distinctive features of the second personal standpoint. It then illustrates the potential reach of these new developments for legal theory with three examples. Specifically, these developments might help us better diagnose problems that a number of other legal theorists have recently been raising, including, (1) the potential loss involved with silencing criminal defendants (Natapoff), (2) the potential loss inherent in moving from traditional common law uses of precedent to more formalistic approaches (Tiersma), and (3) the inability of economic theories to capture important aspects of tort law's duty of care (Coleman, Perry, Weinrib). The Article then turns to its central thesis, which is stated in deliberately provocative terms: these new developments will allow us to decipher Hart's undeveloped but inchoately understood response to exclusive legal positivism, thereby clarifying important aspects of the genuine relationship between law and morality. According to received views, Hart involved himself in inconsistency when he absorbed Raz's important observations about legal authority into his own jurisprudence. This Article argues, to the contrary, that Hart sensed there was no genuine inconsistency, and for roughly the right reasons. What Hart lacked - and what we have all lacked until now - is a clear account of the second personal standpoint in order to develop and articulate this sense. Using contemporary work, this Article develops a more robust account of legal authority and legal obligation, and defends it against concerns raised by Raz and Shapiro. It argues that Hart would (or at least should) have acknowledged this account as an appropriate elaboration of his views, and as representing the best available framework from within which to further refine legal positivist doctrine. The account should be of independent interest Dworkineans, and other non-positivists, as well, because it suggests that we cannot ultimately resolve these debates on the basis of facts about of legal authority.
Highly recommende!

Thursday, August 18, 2005
List of Hiring Committee Chairs Over at Prawfsblog, they are collecting a list. Surf to this post Hiring Chairs: Declare Yourselves Please to report.

Logue on Tax Insurance Kyle D. Logue (University of Michigan Law School) has posted The Problem of Tax Law Uncertainty and the Role of Tax Insurance (Virginia Tax Review, Vol. 25, No. 2, Fall 2005) on SSRN. Here is the abstract:
    In the broadest sense this is an article about legal or regulatory uncertainty and the role that private and public insurance can play in managing it. More narrowly, the article is about tax law enforcement and the familiar if ill-defined distinctions between tax evasion, tax avoidance, and abusive tax avoidance. Most specifically, the article is about a new type of tax risk insurance policy, sometimes called tax indemnity insurance (or transactional tax risk insurance) that provides coverage against the risk that the IRS will disallow a taxpayer-insured's tax treatment of a particular transaction. The question is whether this type of insurance coverage increases incentives for illegitimate tax avoidance or, alternatively, provides needed certainty to taxpayers, certainty that the IRS is not able or willing to provide. Should tax insurance be banned? Encouraged? Ignored? To what extent should the government, instead of commercial insurance companies, provide such legal-uncertainty insurance directly either by increasing the use of private rulings or by selling the equivalent of tax indemnity insurance policies? On the question of commercially provided tax indemnity insurance, the article concludes that the appropriate regulatory response is probably (a) to allow the policies to be purchased (and perhaps in some situations to subsidize their purchase) but (b) to compel taxpayers who purchase such policies to disclose this fact to the IRS. Such a response allows the use of tax risk insurance as a supplement to private letter rulings while at the same time minimizing the possibility that the insurance will be sold to cover pure detection risk.

Holland on the Failure of Law in Cyberspace H. Brian Holland (Barry University School of Law) has posted The Failure of the Rule of Law in Cyberspace? Reorienting the Normative Debate on Borders and Territorial Sovereignty (John Marshall Journal of Computer & Information Law, Forthcoming) on SSRN. Here is the abstract:
    The ultimate goal of this article is to suggest a different perspective on the issue of extraterritorial regulation in cyberspace. Between 1996 and 2002, over the course of several law review articles, professors David R. Johnson, David Post, and Jack L. Goldsmith engaged in a highly influential debate addressing the significance and legitimacy of physical, geographically-defined borders and territorial sovereignty in the regulation of cyberspace. At bottom, it was a contest between internal or "indigenous" regulation and the imposition of existing external regimes. At its heart lay two overarching areas of disagreement: First, descriptively, whether and to what extent the architecture of the Internet is borderless or boundary-destroying, so as to be resistant to regulatory regimes grounded in territorial authority; and second, normatively, whether and to what extent a nation may legitimately exercise its regulatory power extraterritorially, particularly in the context of online activity. Initially, this seemed a robust debate. But it narrowed predictably. The descriptive issue moved from platitudes of the Internet's inherent nature to a contest of choices and predicted technological advancement. The normative question became fundamentally a disagreement about the origins and limits of sovereign power, particularly as related to the regulation of extraterritorial activities having local effects, as well as the spillover effects of such regulation. Related to this fundamental question, and particularly relevant here, the participants ultimately disagreed as to the legitimizing effect of jurisdictional and choice-of-law principles; i.e., whether these jurisprudential mechanisms for resolving regulatory-overlap disputes adequately limit and resolve multiple, simultaneous, and competing claims of unilateral, extraterritorial regulatory power. This pushed the discussion back to the descriptive; to questions of functional identity, scale, effects, and (somewhat tangentially) consent. And here, it seemed to wither. This article acknowledges these debates and their importance, but suggests that by framing the argument as they did, their authors - particularly Johnson and Post - were pressed to untenable assertions that fatally undermined their position. Seeking to avoid a similar fate, here the underlying issues are approached from a slightly different perspective. Jurisdictional and choice-of-law principles are recognized, fundamentally, as expressions of the rule of law; devices by which conformity to the rule of law is to be actualized. But the term "the rule of law" has recently become so commonplace and pedestrian that its precise connection to these principles may be lost. Indeed, at times in their debate, professors Johnson, Post, and Goldsmith seem to talk around the rule-of-law concept, failing to step back to adequately examine the purposes, values, and virtues of law from which their arguments might ultimately flow. My intent is to reestablish this link through consideration of the more fundamental question; whether the governance of cyberspace by traditional laws, imposed by territorially-based sovereigns, conforms to the rule of law. I conclude that the imposition of territorially-based regulatory regimes in the governance of cyberspace fails to conform to the rule of law. But this is not the end of the inquiry. For if the rule of law fails in cyberspace, what then? Must we reform or recreate our regulatory system, or is conformity with the rule of law a less important virtue of legal systems than popular rhetoric might suggest? I begin in Section I by outlining the normative debate on the governance of cyberspace, borders and territorial sovereignty, focusing on the Johnson-Post-Goldsmith debate. I then seek to identify weaknesses in this approach. This provides a foundation upon which to reframe the debate in Section II, moving from a focus on the validity of sovereign power and its limits, to the relationship between individual autonomy and the purposes, values and virtues of law. Here, the central question is whether the governance of cyberspace by traditional sovereign legal systems conforms to the rule of law. Answering this question in the negative, Section III asks simply, what then? Is conformity to the rule of law a prerequisite of authority or simply one value among many, to be weighed against other values served by law and promoted, but without such exaggerated importance that it devalues other laudable social goals?

Guiora on Teaching Morality in Armed Conflict Amos N. Guiora (Case Western Reserve University School of Law) has posted Teaching Morality in Armed Conflict - The Israel Defence Forces Model on SSRN. Here is the abstract:
    The traditional concept of war between States has been replaced by armed conflict between States and non-State actors, some State supported. The non-State actors are terrorists who do not wear uniforms, have insignias nor carry their weapons openly as the Geneva Convention requires soldiers to do. In the contemporary battlefield, civilians are omnipresent; they are dressed like the terrorist who in clear violation of international law, uses them as human shields. The soldier, as required by international law, must distingiush between the combatant and the non-combatant. Furthermore, international law requires the soldier to make every effort to minimize collateral damage. In addition, soldiers must also conduct themselves morally in armed conflict. In response to these twin obligations - international law and requirements of morality in armed conflict - the Israel Defence Forces developed an eleven point code of conduct based on international law, Israeli law and an IDF code. The code of conduct is taught via an interactive video developed by the IDF School of Military Law. The video includes clips from relevant Hollywood movies, high-tech graphics and scenarios taken from real-live events. The article examines and analyes how an army trains and educates its soldiers and junior commanders on issues related to international law and morality.

Wednesday, August 17, 2005
Brophy on the Ancient Rights of the Graveyard Alfred L. Brophy (University of Alabama - School of Law) has posted Grave Matters: The Ancient Rights of the Graveyard on SSRN. Here is the abstract:
    Descendants of people buried in cemeteries on private property have a common law right to access that property to visit the cemetery. That right, which is akin to an implied easement in gross, is recognized by statute in about a quarter of states and by case law in many others. Grave Matters explores the origins, nature, and scope of the little-recognized right and its implications for property theory. It discusses the right as part of well-established property doctrine and its relationship to recent takings cases, as well as the corollary graveyard right against desecration and the correlative right of communities to relocate cemeteries. The right of access, which traces its roots to the early the nineteenth-century, is important because it is one of the few implied rights of access to private property. It limits, by implication, the right to exclude, which is at the core of property rights. Thus, it offers a way of getting access to property without facing a takings claim. Moreover, the right is important because it reminds us that there are limits of the right of exclusion, which were recognized at common law. The right of relocation further illustrates the careful balancing of property rights with the community's right. Thus, the graveyard rights together emerge as vestiges of the nineteenth-century's consideration of community and property. A final section suggests the importance of the right of access for recent discussion about reparations for the era of slavery, for the right of access provides a property right (an easement) in descendants of slaves buried on plantations to access those plantations. The property held by descendants provides important symbolic connections between the past and present and offers hope of a lawsuit for reparations that is not barred by the statute of limitations.
I just read this fascinating article, which does very interesting things with a topic that looked rather narrow. Recommended.

Bernstein on Expressive Association David E. Bernstein (George Mason University - School of Law) has posted Expressive Association after Dale (Social Philosophy and Policy, Forthcoming) on SSRN. Here is the abstract:
    The right to join with other people to promote a particular outlook, known as the right of expressive association, is a necessary adjunct to the right of freedom of speech, which is protected by the First Amendment of the United States Constitution. In Boy Scouts of America v. Dale, the United States Supreme Court found that the Boy Scouts of America had a First Amendment expressive association right to exclude a homosexual adult volunteer. Dale is likely to prove to be one of the most important First Amendment cases of recent years, because the Court enforced a broad right of expressive association against the competing claims of an antidiscrimination law. The right to expressive association had languished in obscurity for more than two decades after the Supreme Court articulated it in the late 1950s and early 1960s in the course of protecting civil rights activists from racist Southern governments. Controversy over constitutional protection of expressive association arose in the 1980s, when private associations claimed that it protected their right to discriminate when necessary to pursue the associations' goals. The Supreme Court seemed aghast that the expressive association right was being used as a tool of those who would seek to use its protection of their associative status in order to discriminate. In a series of opinions in the mid to late 1980s, the Court both narrowly defined the circumstances in which expressive association rights are impinged, and suggested that antidiscrimination laws are always "compelling government interests" sufficient to override these rights. The right of expressive association had been significantly weakened. Dale, however, dramatically revived the right of expressive association. The Court found that the Boy Scouts had an expressive association right to exclude gay scoutmasters even though the Scouts' anti-homosexual activity policy was neither well-publicized nor especially central to its mission. Moreover, the Court rejected New Jersey's claim that the law was justified by the state's compelling interest in eradicating discrimination against homosexuals. The essay examines the right of expressive association and the consequences of its reinvigoration by the Supreme Court in Dale. Part I recounts the ups and downs of the right from its inception in civil rights cases, to its low ebb in the 1980s, to its reinvigoration in Dale. Part II discusses some of the scholarly commentary on Dale and concludes that the right to expressive association after Dale will continue to be a broad one, with some limitations. Part III discusses some of the post-Dale decisions that support the interpretation of Dale as expounding a broad-based expressive association right fully applicable to a variety of situations. Finally, Part IV looks at some of the untapped potential uses of the right. In particular, Dale will often shield religious associations from intrusive antidiscrimination laws.
Bernstein's work is always interesting!

Adler on the Supreme Court's 05-06 Term Jonathan H. Adler (Case Western Reserve University School of Law) has posted Looking Ahead to the 2005-2006 Term (2004-05 CATO Supreme Court Review, 2005) on SSRN. Here is the abstract:
    This essay surveys the upcoming 2005-06 term of the Supreme Court, a term that may be as notable for what it says about the future direction of the Supreme Court as it is for specific decisions in any particular cases. This does not mean the term lacks important cases. To the contrary, this coming year the Court will consider the constitutionality of the Solomon Amendment, address the application of the Religious Freedom Restoration Act to religious use of drugs, and determine whether the federal government can effectively preempt Oregon's decision to legalize doctor-assisted suicide. It will revisit contemporary federalism and abortion doctrines, clarify the scope of the Racketeer Influenced and Corrupt Organizations Act (RICO), and address important questions in antitrust and criminal procedure. In addition, the Court may consider one or more cases challenging the scope of executive authority to combat terrorism. Nonetheless, the most striking thing about the upcoming term is that we will see a change in the Court's composition for the first time in over a decade.

Sisk on Pruneyard Gregory C. Sisk (University of St. Thomas, St. Paul, MN - School of Law) has posted Uprooting the Pruneyard: Liberty of Speech, Private Property, and Constitutional Interpretation on SSRN. Here is the abstract:
    If, as Akhil Amar has written, "[t]ext, history, structure, prudence, and doctrine . . . are the basic building blocks of conventional constitutional argument," then the California Supreme Court's landmark 1979 decision in Robins v. Pruneyard, 592 P.2d 341 (Cal. 1979), constructed a building without supporting foundation, sturdy walls, or covering roof. In that ruling, the court relied upon the liberty of speech clause in the California Constitution to impose duties upon private landowners, not merely upon government, to facilitate the political speech of others. The Pruneyard opinion subordinated the actual language of the constitutional provision to a dissertation on public policy and utterly ignored the drafting history of the California Constitution. Moreover, the decision cannot be reconciled with the historical and philosophical understanding of the very purpose of a Bill of Rights in American constitutionalism, which is to constrain the power of government rather than to limit the freedoms of private individuals. In sum, Pruneyard is a disembodied policy decision severed from constitutional text, history, context, and developed legal reasoning. This article revisits the Pruneyard decision; explores its purported foundation in a state constitutional clause, through a careful examination of text and context and through a study of original historical sources in state constitutional drafting during the mid-nineteenth century; and considers the continuing interplay in constitutional law between freedom of speech and guarantees for private property. When primacy is restored in constitutional analysis to the text of and historical background to the archetypal state liberty-of-speech clause, the Lockean purpose of such provisions as a control on state government power and the impossibility of a legitimate interpretation that extrapolates that right against private actors becomes plain. Moreover, the United States Supreme Court contributed to a weakening of individual expressive autonomy and of private property rights when, in PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980), it permitted the California judicial innovation to withstand challenges on federal free speech and property taking grounds raised by the affected shopping center owner. Upon closer examination, however, the United States Supreme Court's PruneYard decision is more narrow and bound to the circumstances of that case than often is recognized and, in any event, has been eroded by the Court's subsequent doctrinal invigoration of property rights. By the light of more recent decisions, the imposition of a duty upon a person to reserve his or her private property for public use as a political forum likely crosses the federal constitutional margin. Several years ago, Alan Brownstein and Stephen Hankins called for a "pruning" of "the Pruneyard," so that its seeds would not be scattered into other fields designed to cultivate a different harvest. But Pruneyard is not an overgrown tree that, if carefully trimmed, may productively be tended in its own orchard. Rather, Pruneyard is a weed in the garden of constitutional jurisprudence. Pruneyard should be shorn off at the roots, lest its noxious vegetation crowd out the growth of a healthier approach to constitutional interpretation. If not plucked out of the ground, Pruneyard may infest even the law of public obligations with the balancing of private interests, thereby withering away the vital substance of free speech rights. Moreover, as long as it stands, Pruneyard continues to deprive nutrition and block sunlight from privacy and property rights that deserve protection against the trespass of governmental power.

Price on Judge Arnold & Desegregation Polly J. Price (Emory University School of Law) has posted The Little Rock School Desegregation Cases in Richard Arnold's Court (Arkansas Law Review, Forthcoming) on SSRN. Here is the abstract:
    For twenty-two years Judge Richard S. Arnold was a central figure in the Little Rock school desegregation cases. For the reasons elaborated in this article, it is probably not an exaggeration to refer to the Eighth Circuit Court of Appeals in these cases as the "Arnold court." The most critical and controversial decisions concerning desegregation in Little Rock by the Eighth Circuit bear Arnold's signature, or at least reflect his significant influence. Arnold's last opinion in the Little Rock school cases, written a few months before his death in September 2004, signaled the close of nearly fifty years of federal court involvement. The particular resolution of the Little Rock school cases is largely attributable to the influence of this one judge, however one may assess the success or failure of the litigation to desegregate the Little Rock public schools. Arnold sat on twenty-eight appeals of school desegregation issues, and would write sixteen opinions in these cases, all but one (a concurrence and dissent in an en banc opinion) for the panel majority. These opinions were never simply a rubber stamp for district court actions. Although Arnold has been described as a "powerful liberal-leaning intellectual," it is not easy to characterize Arnold as either a "liberal" or a "conservative" in the Little Rock desegregation cases. Arnold refused to order consolidation in a case that, to some at least, seemed appropriate under U.S. Supreme Court precedent at the time. Instead, he preferred a political solution in a state that had demonstrated political resistance in the past. Arnold's opinions in the Little Rock school cases generated both praise and criticism, but they exhibit a unifying theme. Arnold adopted a particular view of public law litigation and the role of parties in working out remedies for constitutional violations in institutional reform cases. He was familiar with academic writing on the subject, in particular the work of Abram Chayes and Owen Fiss. Both wrote about what was then the relatively new phenomena of institutional reform class actions, pointing out that this "public law" litigation bore little resemblance to the traditional dispute-resolution model of judicial decision-making. Richard Arnold's synthesis was driven largely by pragmatism. What emerges is Arnold's strong preference for settlement by the parties rather than court-imposed constitutional criteria. This article suggests how Arnold's motivations related to both his particular view of the limitations of public law litigation and his own personal history.

Call for Papers: Liberalism, Femnism & Multiculturalism
    Call for Papers: Essays in Philosophy
      • Editor's Note for Vol. 7, No. 1: Liberalism, Feminism & Multiculturalism • Submission Deadline: 15 October 2005.
    Since the publication of Rawls's A Theory of Justice in 1971, a number of critiques of liberal theories of justice as advanced by Rawls and others have been formulated. Recently, some of the most important critiques have come from feminist and multicultural perspectives. Some feminists have argued that liberal theories, because of their abstract models of justice and individual rights, are unable to accommodate and protect the rights necessary for women to achieve real equality with men: reproductive rights for example, or rights for women of color. Similarly, multicultural critiques accuse liberalism of being unable to make room for collective rights, particularly rights for various minority groups. This issue of Essays in Philosophy welcomes papers on all topics from feminist and multicultural critiques of philosophy as well as defenses of liberalism against such critiques. Papers regarding the relationship between liberal theories of justice and rights, and the alleged need for specific women's and minorities' rights are especially welcome. All submissions should be sent to the General Editor via eMail:
    Michael Goodman, General Editor Essays in Philosophy Department of Philosophy Humboldt State University Arcata, CA 95521

Tuesday, August 16, 2005
Rubin & Shepherd on Tort Reform & Accidental Deaths Paul H. Rubin and Joanna Shepherd (Emory University School of Law and Emory University School of Law) have posted Tort Reform and Accidental Deaths on SSRN. Here is the abstract:
    Theory suggests that tort reform could have either of two impacts on accidents. First, reforms could increase accidents as tortfeasors internalize less of the costs of externalities, and thus, have less incentive to reduce the risk of accidents. Second, tort reforms could decrease accidents as lower expected liability costs result in lower prices, enabling consumers to buy more risk-reducing products such as medicines, safety equipment, and medical services. We test which effect dominates by examining the effect of tort reforms on non-motor vehicle accidental death rates, using panel data techniques. We find that caps on noneconomic damages, caps on punitive damages, a higher evidence standard for punitive damages, product liability reform, and prejudgment interest reform lead to fewer accidental deaths, while reforms to the collateral source rule lead to increased deaths. Overall, the tort reforms in the states between 1981-2000 have led to an estimated 14,222 fewer accidental deaths.

Solomon on Harmless Error Jason M . Solomon (University of Georgia Law School) has posted Causing Constitutional Harm: How Tort Law Can Help Determine Harmless Error in Criminal Trials (Northwestern University Law Review, Vol. 99, No. 3, p. 1053, 2005) on SSRN. Here is the abstract:
    The conventional wisdom on harmless-error doctrine is that there are two different and irreconcilable approaches, reflected in two coexisting lines of Supreme Court cases. Much of the scholarship on harmless error focuses on the difference in these two approaches - whether one looks at the strength of the overall evidence against the defendant, absent the error (the guilt-based approach), or on the likely impact of the error itself on the jury (the error-based approach). But this debate obscures the shared normative ideal at the heart of harmless-error doctrine. I argue that by using tort law, these two approaches can be reconciled in a way that increases the accuracy of harmless-error analysis overall. This Article proposes reconceptualizing harmless-error analysis as a determination of causation in a constitutional tort claim, and using this reconception to provide a way out of the doctrinal morass. By turning to tort-law doctrine, I grapple with the question: what does it mean for an error to cause a conviction? Indeed, different conceptions of factual causation appear to account for many of the differences in harmless-error outcomes in the federal courts. The Article presents an empirical analysis of harmless-error determinations from the past decade, revealing that 93% of cases using a guilt-based or "but for" approach found that the error was harmless, as opposed to 47% of cases that used an error-based approach, the equivalent of the "substantial factor" test for factual causation. With either approach, judicial assumptions about the effects of different kinds of evidence on jurors are often remarkably at odds with research on jury behavior. I argue that a hybrid approach to harmless-error analysis can better serve the normative ideal of determining factual causation at criminal trials, and avoid appellate fact-finding that violates the Sixth Amendment. In order to make accurate causal determinations, though, we must make better use of empirical research on how various kinds of errors impact jurors, as well as specific evidence of influence on the jury.

Kerr & Bornfreund on Buddy Bots Ian R. Kerr and Marcus Bornfreund (University of Ottawa - Common Law and University of Ottawa) have posted Buddy Bots: How Turing's Fast Friends are Under-Mining Consumer Privacy on SSRN. Here is the abstract:
    Intelligent agents are currently being deployed in virtual environments to enable interaction with consumers in furtherance of various corporate strategies involving marketing, sales and customer service. Some online businesses have recently begun to adopt automation technologies that are capable of altering both their own, and consumers', legal rights and obligations. In a rapidly evolving field known as "affective computing," the creators of some automation technologies are utilizing various principles of cognitive science and artificial intelligence to generate avatars capable of garnering consumer trust. Unfortunately, this trust has been exploited by some to undertake extensive, clandestine consumer profiling under the guise of friendly conversation. Buddy bots and other such applications have been used by businesses to collect valuable personal information and private communications without lawful consent. This article critically examines such practices and provides basic consumer protection principles, an adherence to which promises to generate a more socially-responsible vision of the application of artificial intelligence in automated electronic commerce.

Bainbridge on Limited Shareholder Voting Rights Stephen M. Bainbridge (University of California, Los Angeles - School of Law) has posted The Case for Limited Shareholder Voting Rights on SSRN. Here is the abstract:
    Recent years have seen a number of efforts to extend the shareholder franchise. These efforts implicate two fundamental issues for corporation law. First, why do shareholders - and only shareholders - have voting rights? Second, why are the voting rights of shareholders so limited? This essay proposes answers for those questions. As for efforts to expand the limited shareholder voting rights currently provided by corporation law, the essay argues that the director primacy-based system of U.S. corporate governance has served investors and society well. This record of success occurred not in spite of the separation of ownership and control, but because of that separation. Before changing making further changes to the system of corporate law that has worked well for generations, it would be appropriate to give those changes already made time to work their way through the system. To the extent additional change or reform is thought desirable at this point, surely it should be in the nature of minor modifications to the newly adopted rules designed to enhance their performance, or rather than radical and unprecedented shifts in the system of corporate governance that has existed for decades.

Monday, August 15, 2005
New Version of Lipshaw Paper Jeff Lipshaw has a new version of Freedom, Compulsion, Compliance and Mystery: Reflections on the Duty Not to Enforce a Promise up on SSRN. If you are interested in contract theory, check it out!

Filler on Rehabilitation Daniel M. Filler (University of Alabama - School of Law) has posted The New Rehabilitation (Iowa Law Review, Vol. 91) on SSRN. Here is the abstract:
    According to the standard account offered by most progressive observers of the juvenile courts, the goal of rehabilitation has virtually disappeared. While America's juvenile courts were explicitly designed to treat and rehabilitate children, these critics argue that these goals have been abandoned for a more punitive agenda. Most observers blame the demise of the rehabilitative ideal on the criminal procedural revolution of the Warren Court. In this narrative, the Court's well-intentioned decision to provide children constitutional safeguards unwittingly undermined the unique flexibility of the juvenile courts. Thus, the downfall of progressive juvenile justice policy provides yet another example of the conservative political backlash to 1960's liberalism. The problem with this accepted history is that it is seriously incomplete. Rehabilitation remains vibrant in many juvenile courts throughout the country. This article exposes an important development in how America addresses juvenile crime: specialty courts. Drug courts, gun courts, mental health courts, and other tribunals all target offenders whose lives can be reclaimed through intensive intervention. Hundreds of such programs exist nationwide, including at least one in every state, transforming the experience of justice for tens of thousands of children. These courts are the product of local judges and other juvenile court regulars, rather than legislative edict. Why are people ignoring this explosive rebirth of the rehabilitative ideal? It appears that scholars are looking in the wrong place to determine the nature of juvenile justice policy. The academic community has long assumed that these agendas are drawn up by legislatures, and implemented by local court officials. But as this paper explores, ordinary court functionaries - trial judges, lawyers, and other employees seeking to solve practical problems on the local level - have subverted the popular get-tough legislative agenda, and implemented their vision of sound juvenile punishment. We analyze these employees through the lens of political science literature about street level bureaucrat. We show that these individuals, motivated by a variety of things - ranging from personal policy preferences to self-interest - have actually transformed American juvenile justice policy from the ground up.

Vischer on Legal Advice as Moral Perspective Robert K. Vischer (University of St. Thomas School of Law) has posted Legal Advice as Moral Perspective (Georgetown Journal of Legal Ethics, Forthcoming) on SSRN. Here is the abstract:
    The legal profession's many critics have long insisted that lawyers corrode social values by manipulating the law for the benefit of their clients while paying no heed to the wider impact of their work. This familiar charge has garnered new credence in light of the central roles played by lawyers in an already infamous triumvirate of recent public scandals. First, by appearing to offer a legal justification of torture, government attorneys stand accused of facilitating the mistreatment of prisoners held in the war against terrorism. Second, Enron's attorneys are blamed for facilitating the company's demise by providing legal cover for management's destructive obsession with short-term profit. Third, the Catholic Church's attorneys are seen as having exacerbated bishops' gross mishandling of the priest sex abuse crisis by adopting an aggressively adversarial stance toward victims. Transcending the dominant caricature of lawyers as lacking social consciences, the article weaves the recent scandals into a story of the pervasive disconnect between legal advice and moral advice - a disconnect grounded in the profession's presumption that questions of legality can be sealed off from questions of the good. In a departure from leading academic critiques, however, the article casts moral lawyering as a dialogue to be cultivated, rather than the pursuit of a particular moral norm. Specifically, the article argues that an attorney's moral perspective is inexorably part of the interpretive dynamic that makes the attorney-client dialogue possible, whether acknowledged by the attorney or not. When the attorney's advice is pitched in exclusively legal terms, the moral component is not erased, but rather is forced into the background, where it is not susceptible to exploration by the client. This article traces the paths by which the attorney-client dialogue can be enhanced to delve beyond questions of law and engage the moral perspectives that invariably drive the representation.

Morriss on the Constitutionality of the Solomon Amendment Andrew P. Morriss (Case Western Reserve University School of Law) has posted The Market for Legal Education & Freedom of Association: Why the 'Solomon Amendment' Is Constitutional and Law Schools Aren't Expressive Associations on SSRN. Here is the abstract:
    This term the Supreme Court will confront the constitutionality of the Solomon Amendment, which mandates equal access for military recruiters at universities which accept federal funding. The Third Circuit previously held the statute unconstitutional. This Article argues that the Court should reverse and uphold the statute because the lower court failed to consider the cartelized nature of legal education and so incorrectly assumed that law schools are "expressive associations" entitled to assert First Amendment claims, failed to give proper deference to Congress's exercise of its Article I power to raise and support armies, and over-valued law faculties' interest in career services offices.

Stone on Labor Rights in Our Time Katherine V.W. Stone (University of California, Los Angeles - School of Law) has posted Flexibilization, Globalization, and Privatization: Three Challenges to Labor Rights in Our Time (Osgoode Hall Law Journal, Fall 2005) on SSRN. Here is the abstract:
    Three dynamics are coalescing to reshape labor relations in the 21st century in the United States: They are flexibilization, globalization and privatization. 'Flexibilization' refers to the changing work practices by which firms no longer use internal labor markets or implicitly promise employees lifetime job security, but rather seek flexible employment relations that permit them to increase or diminish their workforce, and reassign and redeploy employees with ease. 'Globalization' refers to the increase in cross-border transactions in the production and marketing of goods and services that facilitates firm relocation to low labor cost countries. And 'privatization' refers to the rise of neo-liberal ideology, the attack on big government and the dismantling of the social safety net that have dominated public policy in the U.S. in recent years. All three of these dynamics have been detrimental to U.S. employment standards and union strength. This article describes how each of these dynamics has undermined labor rights and then asks, what prospects are there, in light of this environment, for protecting employment rights, re-invigorating unions, and security a social safety net? The author answers by pointing to the many areas of social life in which the spread of the global leads to the re-emergence of the local. She argues that the response to the global threat to labor standards lies in a revival of collective action at the local level. She further contends that the combined forces of flexibilization, globalization, and privatizations make collective action at the local level not only necessary, but also possible.

Garvey & Barrett on Catholic Judges in Death Penalty Cases John Garvey and Amy Coney Barrett (Boston College - Law School and Notre Dame Law School) have posted Catholic Judges in Capital Cases (Marquette Law Review, Vol. 81, pp. 303-350, 1998) on SSRN. Here is the abstract:
    The Catholic Church's opposition to the death penalty places Catholic judges in a moral and legal bind. While these judges are obliged by oath, professional commitment, and the demands of citizenship to enforce the death penalty, they are also obliged to adhere to their church's teaching on moral matters. Although the legal system has a solution for this dilemma by allowing the recusal of judges whose convictions keep them from doing their job, Catholic judges will want to sit whenever possible without acting immorally. However, litigants and the general public are entitled to impartial justice, which may be something a judge who is heedful of ecclesiastical pronouncements cannot dispense. Therefore, the authors argue, we need to know whether judges are legally disqualified from hearing cases that their consciences would let them decide. While mere identification of a judge as Catholic is not sufficient reason for recusal under federal law, the authors suggest that the moral impossibility of enforcing capital punishment in such cases as sentencing, enforcing jury recommendations, and affirming are in fact reasons for not participating.

Journal Announcement: Global Ethics
    The Journal of Global Ethics is an international and interdisciplinary scholarly journal concerned with ethical issues arising in the global context. The Journal promotes the study of 'global ethics', encouraging examination of the wide variety of ethical issues that arise in the context of globalisation and global relations. The Journal provides a forum for the analysis of ethics and values and their relationship to globalisation, international relations, politics and development, engaging particularly in debates about global justice. The Journal of Global Ethics welcomes contributions on all aspects of the theory and practice of global ethics as well as ethics in the context of globalisation. Submissions are encouraged from any relevant discipline, including those of philosophy, law, theology, politics and international relations, and from practitioners and activists working in the field. Papers should be between 6000 and 8000 words, although other lengths and formats will occasionally be accepted and will be considered on a case by case basis. All papers will be anonymously reviewed. For more details, go to

Saturday, August 13, 2005
Legal Theory Bookworm The Legal Theory Bookworm recommends Revolution by Judiciary: The Structure of American Constitutional Law by Jed Rubenfeld. Here's a blurb:
    Although constitutional law is supposed to be fixed and enduring, its central narrative in the twentieth century has been one of radical reinterpretation--Brown v. Board of Education, Roe v. Wade, Bush v. Gore. What, if anything, justifies such radical reinterpretation? How does it work doctrinally? What, if anything, structures it or limits it? Rubenfeld finds a pattern in American constitutional interpretation that answers these questions convincingly.

Download of the Week The Download of the Week is Foreign Law and the U.S. Constitution by Ken Anderson. Here is the abstract:
    The use of foreign law and unratified international treaty law by US courts in US constitutional adjudication has emerged as a major debate among justices of the US Supreme Court, with Justice Anthony Kennedy writing for a majority approving the practice in the March 2005 decision of Roper v. Simmons, and Justices Antonin Scalia and Stephen Breyer undertaking an unusual public discussion of the practice in January 2005 at American University law school. This article examines the arguments made by Justices Kennedy, Scalia, and Breyer for and against the practice, setting them in the broader context of constitutional theory. It criticizes the practice, and Justice Breyer's pragmatic defense of it, on grounds that it claims the use of foreign law merely provides "information" to the court about practices in other places, whereas in fact it is a potent source of ideology and values-based justification. The article further criticizes the practice on the basis of the value of democratic sovereignty and the adherence to the political legitimacy of a particular people and its democratic will. The article closes by suggesting that, beyond political theory, the practice of citing foreign law needs to be understood as sociology and social theory, and as the promotion of a shared set of globalized elite bourgeois values by particular justices of the Supreme Court.
Download it while its hot!

Friday, August 12, 2005
Anderson on Foreign Law & the U.S. Constitution Kenneth Anderson (Washington College of Law, American University) has posted Foreign Law and the U.S. Constitution on SSRN. Here is the abstract:
    The use of foreign law and unratified international treaty law by US courts in US constitutional adjudication has emerged as a major debate among justices of the US Supreme Court, with Justice Anthony Kennedy writing for a majority approving the practice in the March 2005 decision of Roper v. Simmons, and Justices Antonin Scalia and Stephen Breyer undertaking an unusual public discussion of the practice in January 2005 at American University law school. This article examines the arguments made by Justices Kennedy, Scalia, and Breyer for and against the practice, setting them in the broader context of constitutional theory. It criticizes the practice, and Justice Breyer's pragmatic defense of it, on grounds that it claims the use of foreign law merely provides "information" to the court about practices in other places, whereas in fact it is a potent source of ideology and values-based justification. The article further criticizes the practice on the basis of the value of democratic sovereignty and the adherence to the political legitimacy of a particular people and its democratic will. The article closes by suggesting that, beyond political theory, the practice of citing foreign law needs to be understood as sociology and social theory, and as the promotion of a shared set of globalized elite bourgeois values by particular justices of the Supreme Court.

Heytens on Transitional Moments in Criminal Cases Toby J Heytens has posted Managing Transitional Moments in Criminal Cases on SSRN. Here is the abstract:
    As long as some courts review the work of others, there will be situations where governing precedent shifts during the interim. Although such "transitional moments" follow many appellate court decisions, several of the Supreme Court's recent criminal procedure rulings would have been especially disruptive if implemented in a maximally retrospective fashion. Focusing on direct review of federal convictions, this Article identifies and critiques one widely used method for limiting the effects of legal change: subjecting defendants who failed to anticipate new rulings to a narrow form of review that virtually guarantees they will lose. The problem with applying "plain-error" rules in this way is that it cannot be justified by the only purposes warranting use of forfeiture rules in the direct review context. Given the unsuitability of the forfeiture approach as a means of coping with transitional moments, the Article suggests reconsideration of the Warren Court's preferred method: non-retroactivity doctrines.

Tebbe on the Problem of Symmetry & Free Exercise Nelson Tebbe (New York University School of Law) has posted Free Exercise and the Problem of Symmetry (Hastings Law Journal, Vol. 56, 2005) on SSRN. Here is the abstract:
    This Article identifies a difficulty with the neutrality paradigm that currently shapes thinking about the Free Exercise Clause both on the Supreme Court and among its leading critics. It proposes a liberty component, shows how it would generate more attractive results than neutrality alone, and defends the liberty approach against likely objections. A controversial neutrality rule currently governs cases brought under the Free Exercise Clause. Under that rule, only laws and policies that have the purpose of discriminating against religion draw heightened scrutiny. All others are presumptively constitutional, regardless of how severely they burden religious practices. Critics have attacked the Court's rule with compelling normative arguments. Curiously, though, the leading academic critics have not directed those arguments against neutrality itself. Rather, they have argued that the Court has adopted the wrong sort of neutrality principle. Instead of purposive neutrality, they call for substantive neutrality. That approach would closely scrutinize not only laws or policies that discriminate purposefully, but also those that have the incidental effect of disadvantaging religion. This Article points out a difficulty with the critics' proposal that it calls the problem of symmetry. In order to qualify as neutral, substantive neutrality must apply in the same way to laws that benefit religion as to laws that burden it. Neutralists could not apply strict substantive neutrality to laws that burden religion, but only the more permissive purposive neutrality to laws that benefit religion. That regime would not be neutral. It would systematically advantage religion in violation of evenhandedness. Some of the leading academic critics recognize that substantive neutrality must resist laws that favor religion as well as those that disfavor it. But many of their practical proposals seem to violate the symmetry constraint. Accommodations of religion, in particular, often have the effect of advantaging religious practices over comparable secular activities. For instance, the critics must strongly support the Religious Land Use and Institutionalized Persons Act, which applies strict scrutiny (as a statutory matter) to prison regulations that incidentally but substantially burden religious observance among inmates. The Supreme Court recently upheld that law even though it has the effect of advantaging sacred practices over analogous secular ones. The critics surely must applaud that result. Yet advantaging religious over secular practices is difficult to square with substantive neutrality. Liberty, in contrast to neutrality, is asymmetrical. It protects religious freedom regardless of whether doing so incidentally advantages observance over comparable secular practices. This Article argues that a liberty component is necessary to vindicate the critics' own normative intuitions concerning the proper role of religious freedom in American democracy.

Thursday, August 11, 2005
Cheh on First Amendment Protection of Special Places Mary M. Cheh (The George Washington University Law School) has posted Demonstrations, Security Zones, and First Amendment Protection of Special Places (University of the District of Columbia Law Review, Vol. 53, 2004) on SSRN. Here is the abstract:
    There has been a marked increase in government suppression of public protests and demonstrations. Certain areas, such as public space near the White House, have been effectively placed off limits to demonstrators. Protestors are put out of sight, down the road, or otherwise away from the object of their protest. The Secret Service has created security zones insulating the President and his entourage from the sights and sounds of opposition marches and demonstrations. And police are using sophisticated tactics, such as surveillance, infiltration, disinformation, and pre-emptive arrests to undermine and frustrate the ability of protestors to conduct their marches and send their message to the larger public. While it may seem that 9/11 and the war on terrorism would make these actions more defensible than they might otherwise be, actually the opposite is true. Most of the demonstrations affected by government suppression tactics are just those troublesome popular risings - opposition to war, globalization economics, and loss of privacy and freedom - that serve to check government overreaching but which may find little outlet in mainstream forms of communication. Yet First Amendment doctrine, in particular the time, place, and manner test, has become too flabby and unstable to reliably counter the government's sophisticated dilution of public dissent. To protect rights of protest and to restore integrity to the right of the people peaceably to assemble and petition for redress of grievances, this symposium paper argues for rejecting the rigid dichotomy between content control and time, place and manner control, recasting of the time, place, and manner test as it relates to protests and demonstrations, and recognition of a First Amendment doctrine of special places.

Zywicki on Lopucki Todd J. Zywicki (George Mason University School of Law) has posted Is Forum-Shopping Corrupting America's Bankruptcy Courts? Review of Lynn M. Lopucki, Courting Failure: How Competition for Big Cases is Corrupting the Bankruptcy Courts (Georgetown Law Journal, Forthcoming) on SSRN. Here is the abstract:
    In his new book, Courting Failure: How Competition for Big Cases is Corrupting the Bankruptcy Courts, Professor Lynn LoPucki's book argues that that current bankruptcy venue rules have spawned an improper "competition for big cases" that has "corrupted" America's bankruptcy courts. LoPucki argues that this competition has harmed the bankruptcy system and the economy, transferring wealth from creditors and employees to incumbent management and bankruptcy professionals. He also argues that the competition that has corrupted the American bankruptcy system is being replicated internationally, resulting in a similar competition and similar harm on the global stage. This essay reviews LoPucki's book and its central theoretical and empirical arguments. LoPucki offers powerful empirical evidence that something is amiss with much of current American bankruptcy practice. This essay will try to flesh out in more detail the model and theoretical foundations that implicit underlie LoPucki's indictment of bankruptcy forum-shopping (and other forms of forum-shopping as well). Empirical evidence standing alone is insufficient to draw conclusions about whether forum-shopping is in general good or bad without a clearly-stated hypothesis to test. Instead, it is necessary to also have a theoretical model sufficient to generate testable hypotheses as a predicate both for determining whether forum-shopping is good or bad on net, as well as the likely effects of reform proposals. Although LoPucki identifies several problem areas in the current Chapter 11 reorganization process, it is not as clear that all of these problems can be clearly attributed to runaway forum-shopping. Instead, they may simply be good-faith errors or mistakes, for which continued competition may be beneficial, in that the competition may actually expedite the process of self-correction. This review essay develops a model of the institutions and incentives governing the forum-shopping competition described by LoPucki in an effort to determine whether the empirical observations proffered by LoPucki can be best explained as the outcome of improper forum-shopping competition. The essay then closes with an analysis of provisions of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, noting that many of the provisions in the legislation offer substantive responses to many of the problems identified by LoPucki.

Shepherd on the Differential Impact of Capital Punishment Among the States Joanna Shepherd (Emory University School of Law) has posted Deterrence versus Brutalization: Capital Punishment's Differing Impacts Among States (Michigan Law Review, Forthcoming) on SSRN. Here is the abstract:
    This paper is the first study to establish that capital punishment's impact is different among U.S. states, deterring murders in some states, but actually increasing murders in many others. Studies by economists, including myself, have typically used large data sets of all 50 states or all U.S. counties to show that executions, on average, deter murders. In contrast, studies by sociologists, criminologists, and law professors often examine only one or a few jurisdictions and usually find no evidence of deterrence. Using a well-known data set and well-tested empirical methods, I find that the impact of executions differs substantially among the states. Executions deter murders in six states and have no effect on murders in eight states. In thirteen states, executions increase murders - what I call the "brutalization effect." In general, the states that have executed more than nine people in the last twenty years experience deterrence. In states that have not reached this threshold, executions generally increase murders or have no significant impact. On average across the U.S., executions deter crime because the states with deterrence execute many more people than do the states without it. The results of this paper help to explain the contrasting conclusions of earlier papers: whether deterrence exists depends on which states are examined. My results have three important policy implications. First, if deterrence is the objective, then capital punishment generally succeeds in the few states with many executions. Second, the many states with numbers of executions below the threshold may be executing people needlessly. Indeed, instead of deterring crime, the executions may be inducing additional murders: a rough total estimate is that, in the many states where executions induce murders rather than deter them, executions cause an additional 250 murders per year. Third, to achieve deterrence, states must generally execute many people. If a state is unwilling to establish such a large execution program, it should consider abandoning capital punishment.

Morriss & Dudley on What to Regulate Andrew P. Morriss and Susan E. Dudley (Case Western Reserve University School of Law and Mercatus Center at George Mason University) have posted Defining What to Regulate: Silica & the Problem of Regulatory Categorization on SSRN. Here is the abstract:
    This article examines the history of human exposure to silica, the second most common element on earth, to explore the problem of categorizing substances for regulatory purposes and the role interest groups play in developing policy. The regulatory history of silica teaches three important lessons: First, the most compelling account of the cycle of action and inaction on the part of regulators is the one based on interest groups. Second, knowledge about hazards is endogenous - it arises in response to outside events, to regulations, and to interest groups. Accepting particular states of knowledge as definitive is thus a mistake, as is failing to consider the incentives for knowledge production created by regulatory measures. Third, the rise of the trial bar as an interest group means that the problems of silica exposure and similar occupational hazards cannot simply be left to the legal system to resolve through individual tort actions. We suggest that by understanding market forces, regulators can harness the energy of interest groups to create better solutions to addressing the problems of silica exposure, as well as other workplace health and safety issues.

Wednesday, August 10, 2005
George on Empirical Legal Scholarship Tracey George (Vanderbilt University - School of Law) has posted An Empirical Study of Empirical Legal Scholarship: The Top Law Schools (Indiana Law Journal, The Next Generation of Law School Rankings Symposium, 2005) on SSRN. Here is the abstract:
    Empirical legal scholarship is arguably the most significant emerging intellectual movement. Empirical legal scholarship (ELS), as the term is generally used in law schools, refers to a specific type of empirical research: a model-based approach coupled with a quantitative method. This paper ranks law schools based on their place in the ELS movement and offers an essential ranking framework that can be adopted for other intellectual movements.
You really need to read the article to see what these rankings mean, but here they are:
    1-tie University of California, Berkeley 1-tie George Mason University 1-tie Northwestern University 4-tie University of Pennsylvania 4-tie University of Southern California 6 Cornell University 7-tie University of Chicago 7-tie Stanford University 9-tie University of Michigan 9-tie Yale University 11 University of Wisconsin 12 University of Illinois 13 University of Iowa 14-tie Harvard University 14-tie Columbia University 16 University of California-Los Angeles 17 Emory University 18-tie New York University 18-tie Vanderbilt University 20 Indiana University 21-tie Duke University 21-tie University of Virginia 23 Boston University 24 University of Minnesota 25-tie Fordham University 25-tie University of North Carolina 25-tie University of Texas 25-tie Washington University in St. Louis 29-tie College of William & Mary 29-tie Georgetown University 31 University of California (Hastings) 32-tie University of Alabama 32-tie Boston College 32-tie University of Georgia 35-tie George Washington University 35-tie Wake Forest University 37-tie Brigham Young University 37-tie University of California-Davis 37-tie Notre Dame University 37-tie University of Washington 37-tie Washington & Lee University
I predict this one will get a few downloads!

Brickey Mostly on Martha Kathleen F. Brickey (Washington University School of Law) has posted Mostly Martha (Washburn Law Journal, Vol 44, p. 517, 2005) on SSRN. Here is the abstract:
    In December of 2001 - the month in which Enron filed the largest bankruptcy in United States history - Martha Stewart sold four thousand shares of ImClone stock. The sale occurred just before the FDA rejected ImClone's application to approve Erbitux, a promising new cancer drug. One might reasonably have assumed that as a media event, Enron's bankruptcy would eclipse Stewart's sale of her stock. But history tells us otherwise. Stewart's odyssey from icon to ex-con and back has not gone quietly into the night. This article examines the legal woes that sprang from Stewart's decision to sell. But instead of dwelling on the trial that led to her conviction for lying about the sale, the article focuses on a series of unexpected post-trial twists and turns that kept her case in the spotlight and provided new grounds for appeal. The article begins with issues that swirled around an outspoken juror named Chappel Hartridge. His post-trial interviews with the press and his answers during voir dire prompted defense allegations of juror misconduct. The controversy about whether he was biased or might have lied to get on the jury provides a case study that illustrates why the standard for granting a new trial based on claimed juror misconduct is, and should be, rigorous. The article then moves to allegations of government misconduct based on claims that the prosecution's expert witness lied on the stand. These allegations quickly led to the indictment and trial of the witness and to claims of prosecutorial misconduct. Stewart's lawyers charged that the prosecutors knew or should have known the witness committed perjury and that the perjured testimony tainted the jury's verdict. A close analysis of this claim, including three appendices correlating the jury's findings with specific counts in the indictment, make it abundantly clear that the allegedly false testimony did not affect the outcome of the trial. Stewart's claim of prosecutorial misconduct also provides a case study that illustrates the difficulty of overturning a jury verdict based on allegations of witness perjury and explores why evidence that a government witness lied under oath does not automatically entitle the defendant to a new trial. And last, the article examines the much-discussed issue of whether Stewart's sentence was appropriate. Was imprisonment warranted in her case? Or would some alternative form of punishment have better served the ends of justice? The article examines where her case fell on the spectrum of Federal Sentencing Guidelines and whether a downward departure would have been justified on the ground that, because Martha Stewart Living Omnimedia was so dependent on Stewart's leadership and creative role, her prolonged absence from the firm would result in undue hardship. As the article explains, the downward departure request was ill-conceived and doomed to fail from the start.

Uelmen on Faith & Justice in Catholic Legal Education Amelia J. Uelmen (Fordham University School of Law) has posted An Explicit Connection Between Faith and Justice in Catholic Legal Education: Why Rock the Boat? (University of Detroit Mercy Law Review, Vol. 81, pp. 921-938, 2004) on SSRN. Here is the abstract:
    Fearful that integrating religious values into the substantive legal curriculum may be divisive or perceived as religious indoctrination, many Catholic law schools have concluded that the smoothest course for Catholic legal education is to draw only an implicit connection between faith and justice. This essay argues that this failure to draw a more explicit connection between faith and justice in the law school curriculum is ultimately a disservice to students. Equating a commitment to justice exclusively with pro bono and public interest law leaves many young attorneys at a loss for how to integrate into their day-to-day work any notions of justice informed by values other than those of the market. Catholic legal education should "rock the boat" in order to help students develop a robust intellectual framework which would help them to challenge, or at least think about, how their work as lawyers impacts the common good and the poor. Based on our experience at Fordham University School of Law, the essay outlines several practical suggestions for drawing a more explicit connection between faith and justice in curricula, programs and faculty colloquia. It notes that dialogue with other religious traditions and disciplines can do much to set an inclusive and inviting tone in schools with religiously diverse faculties and student bodies.

Pearce on Race & Lawyer Identity Russell G. Pearce (Fordham University School of Law) has posted White Lawyering: Rethinking Race, Lawyer Identity, and Rule of Law (Fordham Law Review, Vol. 73, p. 2081, 2005) on SSRN. Here is the abstract:
    Critical race theory challenges the idea of neutrality with regard to race. In contrast, professionalism requires that lawyers bleach out their racial identity. For white lawyers like myself, our tendency to view our white identity as neutral reinforces the approach of professionalism and leads us to see racial issues as belonging to people of color. This essay explores what would happen if we acknowledge whiteness as a particular racial identity that shapes how we perceive ourselves and how others perceive us. Recent research in the field of organizational behavior indicates that businesses employing racially conscious integration-and-learning approaches are more successful in promoting their objectives than those applying racially neutral paradigms. Applying these findings in the context of the legal profession, the Essay concludes that replacing the neutrality of professionalism with a racially conscious approach will promote more effective representation of clients and more equal justice under law.

Tuesday, August 09, 2005
Hasen on Human Endowment Taxation David Hasen (University of Michigan at Ann Arbor - Law School) has posted The Illiberality of Human Endowment Taxation on SSRN. Here is the abstract:
    Recent tax scholarship has embraced the idea of human endowment taxation, or taxation of human capabilities, as an approach to ideal tax theory. Under endowment taxation, individuals are taxed according to their native ability to command resources, rather than according to any actual index of goods or expenditures, such as income, consumption or wealth, that might otherwise be thought relevant to imposing tax burdens. This article argues that endowment taxation is generally incompatible with political theories that might broadly be described as "liberal," whether or not these theories are thought to authorize redistribution. The article also suggests that under a wide array of assumptions, lump-sum taxes such as endowment taxes are not optimally efficient and that, even where they represent the most efficient available alternative, lump-sum taxes generate undesirable costs.

Abramowicz on Patent Auctions Michael Abramowicz (The George Washington University Law School) has posted Patent Auctions on SSRN. Here is the abstract:
    In his famous paper advancing a prospect theory of patents, Edmund Kitch found inspiration in, but dismissed, a footnote authored by Yoram Barzel suggesting that rights to inventions might be distributed through an auction mechanism. Kitch maintained that the patent system itself achieves the benefit of an auction by giving control over the inventive process at a relatively early stage. In a more recent article, John Duffy develops Kitch's claim by arguing that the patent system serves as an implicit auction, awarding rights to inventors who are willing to invent the earliest. This Article considers the possibility that a patent for a research field might be awarded through explicit auctions, to an inventor who offers the government the most money, who commits the most resources to research, who agrees to the shortest patent term, or who promises the lowest price for resulting inventions. An extreme version of the prospecting approach, such a scheme might provide several advantages over the existing patent system, including reducing the costs associated with duplicative patent races and with inventing around. The analysis, however, identifies a number of empirical uncertainties that together provide an uneasy case for the status quo. A principal problem is that there are tradeoffs in the selection of the auction design, and there is no guarantee that government would optimally resolve these tradeoffs. The Article concludes by offering a relatively modest proposal for auctioning the right to patent term extensions. The proposal responds to a problem that previous commentators have ignored but that the auction framework helps to crystallize, that patentees may fail to commercialize their inventions because by the time the inventions are worth commercializing, insufficient patent term may remain to justify development. By insisting that patentees offer winning bids that exceed runner-ups by a substantial margin, the auction proposal will tend to allow patent extensions only in cases in which the benefit of patent extension exceeds the cost of additional deadweight loss that will result.

Monday, August 08, 2005
Henderson & Morriss on US News & LSATS William Henderson (Indiana, Bloomington) & Andrew Morriss (Case Western Reserve) have posted Student Quality as Measured by LSAT Scores: Migration Patterns in the U.S. News Rankings Era on SSRN. Here is the abstract:
    This study examines the change in entering class median LSAT, a key input into the U.S. News & World Report rankings, between 1993 and 2004. Using multivariate regression analysis, the authors model several factors can influence the direction and magnitude of this change. The study presents six specific findings: (1) the market for high LSAT is divided into two segments that operate under different rules; (2) initial starting position is a strong predictor of the future gain or loss in LSAT scores; (3) the allure of the high-end corporate law firms appears to cause a significant portion of students to discount the importance of rankings in favor of locational advantages related to the regional job market; (4) students will pay a tuition premium to attend elite law schools but, when deciding among non-elite schools, are willing to forgo a higher ranked school for lower tuition; (5) there is little or no association between change in lawyer/judge and academic reputation and median LSAT scores, and (6) two well-known gaming strategies for driving up median LSAT scores appear to work. Drawing upon these results, the authors suggest that the current rankings competition among law schools has all the hallmarks of a “positional arms race” that undermines social welfare. The authors outline the emerging equilibrium in which non-elite schools engage in costly strategies to boost their reputations while elite law schools are able to further leverage their positional advantage. Because this dynamic spawns rapidly escalating costs in the form of higher tuition, continuation of the ranking tournament threatens the long-term viability of the current model of legal education. The authors conclude with four specific recommendations to law school deans and the editors of U.S. News & World Report.

Kaye on Daubert David H. Kaye (Arizona State University - College of Law) has posted On 'Falsification' and 'Falsifiability': The First Daubert Factor and the Philosophy of Science (Jurimetrics, Vol. 45) on SSRN. Here is the abstract:
    In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593 (1993), the Supreme Court suggested that in evaluating the admissibility of scientific evidence, federal courts should consider whether a theory or technique . . . can be (and has been) tested. Several commentators have thought that this suggestion represents an adoption of the philosophy of science of Karl Popper, and several courts have treated the abstract possibility of falsification as sufficient to satisfy this aspect of the screening of scientific evidence. This essay challenges these views. It first explains the distinct meanings of falsification and falsifiability. It then argues that while the Court did not embrace the views of any specific philosopher of science, inquiring into the existence of meaningful attempts at falsification is an appropriate and crucial consideration in admissibility determinations. Consequently, it concludes that recent opinions substituting mere falsifiability for actual empirical testing are misconstruing and misapplying Daubert.

Matsusaka & Gilligan on Public Choice & Redsitrcting John G. Matsusaka and Thomas W. Gilligan (USC Marshall School of Business and University of Southern California - Marshall School of Business) have posted Public Choice Principles of Redistricting on SSRN. Here is the abstract:
    This paper uses fundamental principles of public choice, mainly the median voter theorem, to develop a simple theory of redistricting. The focus is on how closely policy outcomes correspond to majority rule. The main results are: (1) Potential policy bias in favor of nonmajority groups is structurally linked to the number of legislative seats and the population, and the structure of most states puts them very close to the theoretically maximum bias. (2) Random districting, which might seem like the essence of neutrality, does not eliminate policy bias on average. (3) Traditional principles of compact, contiguous districts that respect existing political boundaries, stressed in the Supreme Court's Shaw v. Reno decision, minimize the chance of nonmajoritarian outcomes.

Guadamuz on the Digital Divide Andres Guadamuz (University of Edinburgh - Law) has posted The Digital Divide: It's the Content, Stupid! (Computer and Telecommunications Law Review, Vol. 304, pp. 73-77, 113-118, 2005) on SSRN. Here is the abstract:
    The digital divide has been at the centre of a large amount of academic analysis in recent years, particularly in the area of access to the internet in developing countries. This article deals with a lesser explored aspect of the divide, and it is the problem of access to online content once some of the hardware and network access issues are solved.

Saturday, August 06, 2005
Legal Theory Bookworm The Legal Theory Bookworm recommends two books that do empirical investigations of the role of precedent in the United Staets Supreme Court:
    Majority Rule or Minority Will : Adherence to Precedent on the U.S. Supreme Court by Harold J. Spaeth & Jeffrey A. Segal:
      "This book by two distinguished political scientists makes a bold claim: Supreme Court justices rarely adhere to precedent, and when they do, it is usually in cases of no great importance. The authors write crystal-clear prose and sustain it with copious and careful research....This landmark book should be read by all serious students of the judicial process." Choice "In Majority Rule or Minority Will, Harold Spaeth and Jeffrey Segal provide a much-needed rigourous empirical examination of the influence of precedent on U.S. Supreme Court justices' decisions. Spaeth and Segal provide a clear definition of the influence of precedent and offer detailed coding protocols for how they measured it....Majority Rule or Minority Will represents a major advance over existing scholarship and will have a lasting impact on the way scholars think about precedent....this book is a must read for anyone interested in precedent, the Supreme Court, or judicial decision making." The Law and Politics Book Review "This empirical study of the influence of precendent on U.S. Supreme Court justices finds that the doctrine of stare decisis has only a slight influence on the justices and even then only in the least salient of the Court's decisions. Spaeth and Segal conclude that throughout the Court's history, individual justices have developed a position and then stuck to it." Law & Social Inquiry "This text is a highly valuable addition to the field of judicial theory within the realm of political science...should be required acquisitions ofr all academic libraries that support programs in political science. In fact, this well written title would make a valuable addition to any law library in that its conclusions could be garnered to generate insight into many judicial decision-making processes." Journal of Government Information "...path-breaking book...It prompts legal scholars and political scientists once again to ponder the role of jurisprudential principles in judicial decision making and to figure out how we can identify and measure their influence." Canadian Journal of Political Science "Their new book, Majority Rule or Minority Will, is a follow-up to...This book raises important qusetions that the heart of work being done by judges and "jurisprudentially minded scholars"." American Bar Foundation
    Stare Indecisis : The Alteration of Precedent on the Supreme Court, 1946-1992 by Saul Brenner & Harold J. Spaeth:
      "...Saul Brenner and Harold Spaeth are prolific and productive scholars who over the years have enriched our discipline prodigiously. In their latest work they have made imaginative forays into some nooks and crannies of Supreme Court behavior that have not received much recent attention. The result is a book that will be a necessary reference and starting point for all those who would further enlarge our knowledge of a very craggy vineland." American Political Science Review " is a delight to read. The writing is lucid, lively, and few words are wasted conveying a lot of interesting information. ...this work will be an indispensable aid... ...will prove to be a valuable resource for innumerable projects. The method employed by Brenner and Spaeth convincingly overcomes the shortcomings of prior studies and results in the production of a list of cases for analysis that will be accepted as the standard for future analyses." The Law and Politics Book Review

Download of the Week The Download of the Week is Aspects of the Theory of Moral Cognition: Investigating Intuitive Knowledge of the Prohibition of Intentional Battery and the Principle of Double Effect by John Mikhail. Here is the abstract:
    Where do our moral intuitions come from? Are they innate? Does the brain contain a module specialized for moral judgment? Does the human genetic program contain instructions for the acquisition of a sense of justice or moral sense? Questions like these have been asked in one form or another for centuries. In this paper we take them up again, with the aim of clarifying them and developing a specific proposal for how they can be empirically investigated. The paper presents data from five trolley problem studies of several hundred individuals, including one group of Chinese adults and one group of American children, which suggest that both adults and children ages 8-12 rely on intuitive knowledge of moral principles, including the prohibition of intentional battery and the principle of double effect, to determine the permissibility of actions that require harming one individual in order to prevent harm to others. Significantly, the knowledge in question appears to be merely tacit: when asked to explain or justify their judgments, subjects were consistently incapable of articulating the operative principles on which their judgments appear to have been based. We explain these findings with reference to an analogy to human linguistic competence. Just as normal persons are typically unaware of the principles guiding their linguistic intuitions, so too are they often unaware of the principles guiding their moral intuitions. These studies pave the way for future research by raising the possibility that specific poverty of the stimulus arguments can be formulated in the moral domain. Differences between our approach to moral cognition and those of Piaget (1932), Kohlberg (1981), and Greene et al. (2001) are also discussed.
Highly recommended! Download it while its hot!

Friday, August 05, 2005
Mikhail on Islamic Rationalism & Human Rights John Mikhail (Georgetown University Law Center) has posted Islamic Rationalism and the Foundation of Human Rights 9PLURALISM AND LAW: Proceedings of the 20th IVR Congress, Arend Soeteman, ed., Global Problems, Vol. 3, pp. 61-70, March 20050 on SSRN. Here is the abstract:
    The question I address is whether the rationalist tradition in Islamic jurisprudence has the conceptual resources to explicate and justify contemporary human rights discourse. A common theme of many commentaries on Islam and human rights is that there is something intrinsically "Western" about human rights, where "Western" is thought to exclude "Islamic." As a result, scholars are sometimes reluctant to apply human rights norms to Muslim societies. Some even suggest that those who evaluate Muslim societies on this basis are guilty of "moral chauvinism and ethnocentric bias." This paper questions the validity of any strong epistemological contrast between Western and Islamic jurisprudence in this respect by arguing that several principles lying at the foundation of Western accounts of human rights have important counterparts in Islamic rationalism. Far from being exclusively Western, the philosophical foundations of human rights appear to be shared by both Western and Islamic theories of law.

Whitehead on International Norms & Signals Charles K. Whitehead (Columbia Law School) has posted What's Your Sign? - International Norms, Signals, and Compliance on SSRN. Here is the abstract:
    This article proposes a new theory of State compliance with international obligations, positing that increased interaction among the world's regulators has reinforced norms within cross-border regulatory networks, influencing the actions of senior regulators who are network members and, in turn, affecting levels of State compliance. Network norms help define what State actions constitute signals and the meanings of those signals. Certain actions, such as implementing a substantive network standard, may be considered a concrete expression of an abstract network norm. States that fail to implement that standard risk failing to send the "right" signal, potentially incurring significant network sanctions. Actual compliance, however, may reflect a balance between network norms and competing domestic interests, so that States may fail to comply fully with standards they have implemented. Lower levels of compliance, nevertheless, may be permissible so long as they are consistent with network expectations. If this theory is accurate, then domestic concepts of "compliance" may not apply internationally; rather, what constitutes compliance may vary across networks and over time, based on differences in networks and norms. The Basel Accord of 1988 and Japan's experience are presented as illustrations. For Japan, implementing the Accord was important in order to signal its cooperation to other regulators, even though actual compliance was lower, reflecting competing domestic interests. Network norms may have modified members' expectations of what levels of compliance were acceptable; and so, even in the face of weak compliance, Japan's implementation may have credibly signaled its support of network cooperation.

Martin on Offshore Detainees David A. Martin (University of Virginia School of Law) has posted Offshore Detainees and the Role of Courts after Rasul v. Bush: The Underappreciated Virtues of Deferential Review (Boston College Third World Law Journal, Vol. 25, pp. 125-160, 2005) on SSRN. Here is the abstract:
    In Rasul v. Bush, the Supreme Court held that federal courts have jurisdiction over habeas corpus petitions filed by detainees at the US military base at Guantanamo. But the Court was silent on what standards and procedures will apply to such petitions, and on whether habeas jurisdiction also covers detainees at other foreign locations. These two open questions are linked. In order to foster a future decision applying habeas at other military sites (for longer-term detainees), but still to assure military effectiveness in the war on terror, this article sketches a workable and restrained regime for individualized consideration of challenges to detention, building on a structure already taking initial shape in the wake of Rasul and the companion Hamdi case. Such claims would be heard in military tribunals, subject to habeas review in federal court, according to a narrow and deferential standard of review. Having the primary factfinding done by military tribunals (albeit properly insulated, neutral bodies) goes far toward honoring key military needs. Although some human rights advocates would be disappointed with a deferential standard of review, this approach carries several underappreciated advantages for protection of rights. As illustrated in immigration cases, the very fact that judicial review exists, with the risk of triggering de facto closer scrutiny in some cases, generates better internal discipline and managerial controls in the administrative system. In addition, even while deferring to military factfinding, courts would retain full authority to consider de novo the validity of the administrative procedures, and they would remain the ultimate arbiters of the substantive standards for deciding who may be detained as an enemy combatant. (This article appeared as part of a symposium issue on Legal Line Drawing Post-September 11, based on a conference held at Boston College.)

Thursday, August 04, 2005
Sunstein on Boundedly Rational Borrowing Cass R. Sunstein (University of Chicago Law School) has posted Boundedly Rational Borrowing: A Consumer's Guide on SSRN. Here is the abstract:
    Excessive borrowing, no less than insufficient savings, might be a product of bounded rationality. Identifiable psychological mechanisms are likely to contribute to excessive borrowing; these include myopia, procrastination, optimism bias, "miswanting," and what might be called cumulative cost neglect. Suppose that excessive borrowing is a significant problem for some or many; if so, how might the law respond? The first option involves weak paternalism , through debiasing and other strategies that leave people free to choose as they wish. Another option is strong paternalism, which forecloses choice. Because of private heterogeneity and the risk of government error, regulators should have a firm presumption against strong paternalism, and hence the initial line of defense against excessive borrowing consists of information campaigns, debiasing, and default rules. On imaginable empirical findings, however, there may be a plausible argument for strong paternalism in the form of restrictions on various practices, perhaps including "teaser rates" and late fees. The two larger themes, applicable in many contexts, involve the importance of an ex post perspective on the consequences of consumer choices and the virtues and limits of weak forms of paternalism, including debiasing and libertarian paternalism.

Ribstein on Imagining Wall Street Larry E. Ribstein (University of Illinois College of Law) has posted Imagining Wall Street (U Illinois Law & Economics Research Paper No. LE05-017) on SSRN. Here is the abstract:
    The 1987 film Wall Street is one of the most popular films dealing with business, and for many people provides an enduring image of capitalism. The film is therefore a good illustration of filmmakers’ portrayal of business, and how this portrayal can influence public perceptions and misconceptions. This is important as public misconceptions of business, in turn, can contribute to the regulatory environment. This article discusses the view of business presented in the film, contrasts this view with an alternative, and more realistic, narrative, and shows how the film may have influenced subsequent regulation.

New Version of Kahan & Braman on Cultural Cognition Dan M. Kahan and Donald Braman have posted a new version of Cultural Cognition and Public Policy on SSRN. If you missed this a few weeks ago, check it out!

King & O'Neill on Appeal Waivers the Future of Sentencing Policy Nancy J. King and Michael O'Neill (Vanderbilt University School of Law and George Mason University - School of Law) have posted Appeal Waivers and the Future of Sentencing Policy (Duke Journal, Vol. 55, 2005) on SSRN. Here is the abstract:
    This paper reports the first empirical analysis of appeal waivers: clauses in plea agreements by which defendants waive their rights to appellate and post-conviction review of sentencing errors. Based on interviews and an analysis of data coded from 971 randomly selected cases sentenced under the United States Sentencing Guidelines, the study's findings include: 1) in nearly two-thirds of the cases settled by plea agreement, the defendant waived his right to review; 2) the frequency of waiver varies substantially among the circuits, and among districts within circuits; 3) the government appears to provide some sentencing concessions more frequently to those defendants who sign waivers than to defendants who do not, including agreeing to "C" pleas (binding sentencing terms), downward departures, safety valve credits, and a variety of stipulations; 4) many defendants who waive their rights to review obtain clauses in their agreements that limit their exposure to unexpected negative results at sentencing; 5) some defendants appear to receive neither greater certainty nor leniency in return for signing wide-open and unlimited waivers of their rights to review; 6) three-quarters of the defendants who waived appeal also waived collateral review, and of these, fewer than one-third preserved the right to raise a claim of ineffective assistance; 7) waivers have been enforced to bar a variety of claims, including claims of ineffective assistance at sentencing, and assertions of constitutional violations under Blakely and Booker. The observed trend of increased use of stipulations combined with no review raises the risk that sentences not in compliance with the law can proliferate without scrutiny. The uneven practice of trading sentencing concessions for waivers among cases and courts also suggests that waivers are undercutting efforts to advance consistency in federal sentencing.

Okediji on IP Bilateralism Ruth Okediji (University of Minnesota) has posted Back to Bilateralism? Pendulum Swings in International Intellectual Property Protection (University of Ottowa Law & Technology Journal, Vol. 1, p. 125, 2003-2004). Here is the abstract:
    This article briefly presents an account of bilateralism in international economic relations - encompassing intellectual property regulation - that suggests that the TRIPS Agreement should never have been understood as a crowning point of international intellectual property regulation. The article explores the implications of this possible reformulation of the theory and place of the TRIPS Agreement in international intellectual property law and policy. The author argues that the new bilateralism, while similar in form, serves a different agenda from the old bilateralism which relied principally on commercial agreements as a means to stabilize, formalize and advance interests ostensibly mutual to the contracting parties. Notwithstanding this different function, and in spite of the deployment of coercive measures enforced through unilateral trade policy, the author seeks to consider what, if any, real prospects for gain may exist for developing countries under the new bilateralism.

Michaels on Privatizing War Jon D. Michaels has posted Beyond Accountability: The Constitutional, Democratic, and Strategic Problems with Privatizing War (Washington University Law Quarterly, Vol. 82, p. 1001, 2004) on SSRN. Here is the abstract:
    This article explores ways in which the current delegation of sensitive military responsibilities to private contractors threatens to (1) violate the constitutional imperatives of limited and democratic government, (2) undermine the institutional excellence of the U.S. Armed Forces, and (3) jeopardize the already shaky diplomatic and moral standing of the United States in the eyes of the rest of the world. Military privatization of combat duties could be used (and perhaps already has) to allow the Executive to operate in the shadows of public attention, domestic and international laws, and even to circumvent congressional oversight. For a variety of political and legal reasons, the Executive might at times be constrained in deploying U.S. soldiers. The public's aversion to a military draft (and squeamishness about soldier casualties), the international community's disdain for American unilateralism, and Congress's reluctance to endorse an administration's hawkish foreign goals might each serve to inhibit the president's ability to use U.S. troops in a given zone of conflict. In those instances, it would not necessarily be the cheaper price tag or specialized expertise that makes contractors desirable. Rather, it might very well be the status of the actors (as private, non-governmental agents) vis-a-vis public opinion, congressional scrutiny, and international law that entices policymakers to turn to contracting. Accordingly, this article has two sets of aims. On the immediate level, I argue that the privatization of military functions poses a slew of problems too complicated and varied to resolve simply by enhancing accountability controls, strengthening contract laws, and ratcheting up contractor liability. And, more generally, I suggest that military contracting of this sort challenges the conventional wisdom of American privatization policy, which understands decisions to outsource overwhelmingly in economic, cost-saving terms.

Wednesday, August 03, 2005
Heinzerling on Posner Lisa Heinzerling (Georgetown University Law Center) has posted The Accidental Environmentalist (Georgetown Law Journal, Vol. 94) on SSRN. Here is the abstract:
    In Catastrophe: Risk and Response, Judge Posner makes a plea for greater attention to catastrophic events - events that, as he defines them, pose a small but plausible risk of extinction for the entire human race. Asteroids, particle accelerators, abrupt global warming, and bioterrorism all make his list of potentially catastrophic hazards. With respect to global warming, Posner ultimately downplays the claims of industry-funded "climate skeptics" and urges action now - now - to speed the development and diffusion of climate-friendly technologies. He remains committed, in principle, to using cost-benefit analysis to help us figure out how to deal with these threats, but he recognizes that unknowable probabilities, incalculable benefits, and controversy over the importance of the future make conventional cost-benefit analysis a highly dicey proposition in this context. Each of these views places Posner comfortably within the mainstream of current environmentalist thought. These views also share common ground with the latest critiques of cost-benefit analysis. Moreover, Posner's observations about the limits of cost-benefit analysis apply to many environmental problems that do not make his rather narrow list of catastrophes. If one wanted to urge greater government attention to, and to purge cost-benefit thinking from, problems of radioactive waste, toxic chemicals, and even conventional air and water pollution, one could cite to substantial portions of Posner's book in doing so. Yet in a contest between Posner's appreciation of scientific and ethical uncertainty and his longstanding commitment to economic analysis, it is clear which would win. Indeed, Posner unfortunately mars what could have been a good, humble, important book with his continued insistence on the central role of cost-benefit analysis and with futile efforts to patch up the holes in the analysis he favors. One could split this book into two, and one would have a very fine book on catastrophic risks and the limits of currently fashionable analytical methods for dealing with them, and a very disappointing book clinging to the very analytical methods the "other" book so convincingly undermines.

Bloom on Judicial Integrity & Criminal Cases Robert M. Bloom (Boston College - Law School) has posted Judicial Integrity: A Call for its Re-Emergence in the Adjudication of Criminal Cases (Journal of Criminal Law and Criminology, Vol. 84, pp. 462-501, 1993) on SSRN. Here is the abstract:
    A court can invalidate or rectify certain kinds of offensive official action on the grounds of judicial integrity. In the past, it has served as a check on overzealous law enforcement agents whose actions so seriously impaired due process principles that they shocked the bench's conscience. The principle not only preserves the judiciary as a symbol of lawfulness and justice, but it also insulates the courts from becoming aligned with illegal actors and their bad acts. The 1992 case of U.S. v. Alvarez-Machain, however, may have signaled a departure from past practices. This article reviews current Supreme Court cases and finds that judicial integrity is no longer the bulwark it once was for justifying Fourth Amendment exclusionary remedies, sanctioning the Court's use of supervisory powers, and the application of due process. The author contrasts the current Court's view on judicial integrity with examples from Australia and New Zealand, where the doctrine has re-emerged and gained force. The author argues that in the United States, the pendulum has swung too far toward neglecting concerns inherent in the principles of judicial integrity and that judicial integrity needs to be restored.

Hillman on Mandatory Disclosure of Standard Terms on Websites Robert A. Hillman (Cornell Law School) has posted On-line Boilerplate: Would Mandatory Website Disclosure of E-standard Terms Backfire? (Michigan Law Review, March 2006) on SSRN. Here is the abstract:
    This article analyzes whether mandatory website disclosure of e-standard terms, advocated by some as a potential solution to market failures when consumers contract over the Internet, potentially may backfire. By mandatory website disclosure, I do not mean a clickwrap presentation of terms, in which a consumer must click I agree or the like on a screen presenting the terms prior to the completion of a transaction in progress. Mandatory website disclosure would require a business to maintain an Internet presence and to post its terms prior to any particular transaction. The problem is not that website disclosure would increase the cost of doing business, which would be passed on to consumers in the form of higher prices. Businesses have been unable to demonstrate that displaying their terms on their websites would be costly. Nor should drafting rules that implement the law be too difficult. Businesses could be required to display their terms on their homepage or on another page reachable directly through a clearly identified hyperlink. Further, businesses could be required to prove the availability of their terms by furnishing relatively inexpensive archival records of their websites. Website disclosure may backfire, however, because it may not increase reading or shopping for terms or motivate businesses to draft reasonable ones but, instead, may make heretofore suspect terms more likely enforceable.

Book Announcement: Beyond Camelot
    Beyond Camelot: Rethinking Politics and Law for the Modern State Edward L. Rubin To read the entire book description or the introduction, please visit: This book argues that many of the basic concepts that we use to describe and analyze our governmental system are out of date. Developed in large part during the Middle Ages, they fail to confront the administrative character of modern government. These concepts, which include power, discretion, democracy, legitimacy, law, rights, and property, bear the indelible imprint of this bygone era's attitudes, and Arthurian fantasies, about governance. As a result, they fail to provide us with the necessary tools for understanding, critiquing and improving the government we actually possess. Beyond Camelot explains the causes and character of this failure, and then proposes a new conceptual framework, drawn from management science and engineering, which describes our administrative government more accurately, and identifies its weaknesses instead of merely bemoaning its modernity. Cloth | $45.00 / £29.95 | ISBN: 0-691-11808-6

Tuesday, August 02, 2005
Ault & Glendonon Comparative Law & Legal Education Hugh J. Ault and Mary Ann Glendon (Boston College Law School & Harvard Law School) have posted The Importance of Comparative Law in Legal Education: United States Goals and Methods of Legal Comparisons (Journal of Legal Education, Vol. 27, pp. 599-608, 1975) on SSRN. Here is the abstract:
    This Essay discusses the gradual changes occurring within legal education, which are finding wide acceptance in law schools throughout the United States. These changes include greater attention to other disciplines, primarily economics and behavioral sciences, and the contributions they make to a fuller understanding of the legal system. In addition, law schools are increasingly exploring the ways in which the law in textbooks may differ from the law in action. Nearly every law school, therefore, is investigating the social and economic consequences of legal rules through clinical legal education, which attempts to provide a real or simulated laboratory experience for law students. The most pervasive change, however, may be the breaking down of traditional artificial and arbitrary classifications of subject matter, which attempt to provide the advanced student a tentative method for organizing his or her knowledge about the legal system. Therefore, comparative law courses in the law school curriculum have surfaced in an attempt to inspire students to think creatively about legal problems by providing new insights into the legal system. To illustrate their support of this approach, the authors discuss their experience with creating and teaching a comparative law course at Boston College Law School. The Essay provides support for existing literature surrounding comparative law in legal education while illustrating its importance to law school curriculums throughout the United States.

Dinwoodie on Private Ordering & International Copyright Norms Graeme B. Dinwoodie (Chicago-Kent College of Law) has posted Private Ordering and the Creation of International Copyright Norms: The role of Public Structuring (Journal of Institutional and Theoretical Economics, Vol. 1, p. 160, 2004) on SSRN. Here is the abstract:
    International copyright law must be based on an assessment of what types and levels of protection best further the purposes of copyright law. But constructing the international copyright regime is difficult as the international system must wrestle with copyright dilemmas at the national level as well as broader challenges facing international law. This paper delineates the connection between international copyright law and the generation and distribution of knowledge by discussing two recent examples of (possible) unconventional international copyright rulemaking, namely, norms generated by Internet Service Providers in responding to infringement claims, and norms arising out of digital rights management systems.

Steinbock on Data Mining Daniel J. Steinbock (University of Toledo - College of Law) has posted Data Matching, Data Mining, and Due Process (Georgia Law Review, Forthcoming). Here is the abstract:
    This Article concerns governmental actions based upon computerized data matching (comparison of records) and data mining (profiling). Over 50 federal agencies are using or planning to use data matching and data mining, in a total of 199 programs, some of which are aimed at locating potential terrorists. The most striking aspect of virtually all anti-terrorist data matching and data mining decisions is the absence of even the most rudimentary procedures for notice, hearing, or other opportunities for meaningful participation. Because the Fourth Amendment pre-empts most due process claims involving governmental actions that can be characterized as searches or seizures, this Article first applies Fourth Amendment doctrine to the use of data matching and data mining in those contexts. Other data matching and data mining consequences must be evaluated under the Due Process Clause. After reviewing their potential effects on private, governmental, and accuracy interests, the Article proposes four possible ways of accommodating data matching and data mining with due process. One would be summary hearings prior to denial of access to flights or the imposition of other liberty or property effects. A second involves correction opportunities after the initial data matching or mining consequence, in a fuller process with disclosure and a right to respond. A third means of redress would be after-the-fact compensatory damages for false positives in outcome. Finally, given the frequent need to keep data mining decision algorithms secret, and the difficulty of addressing challenges to them in individual hearings, this Article proposes systematic independent oversight of their validity.

Barros on Lingle Benjamin Barros (Widener Univ. School of Law) has posted At Last, Some Clarity: The Potential Long-Term Impact of Lingle v. Chevron and the Separation of Takings and Substantive Due Process on SSRN. Here is the abstract:
    This short essay discusses the Supreme Court's recent decision in Lingle v. Chevron and its potential long-term impact on the Court's regulatory takings doctrine. Lingle involved a narrow (though important) issue of takings law, and on the surface it appears to be a relatively modest case. A deeper look, however, reveals that in its separation of substantive due process and regulatory takings, Lingle has tremendous potential to clarify regulatory takings doctrine. If this potential is fulfilled, Lingle is likely to be far more significant in the long term than Kelo v. City of New London, which has dominated the commentary about the Court’s recent takings decisions. Lingle may also have the counter-intuitive effect of helping property-rights advocates (who were the putative losers in the case) by undercutting the precedential value of cases that help the government in takings battles.

Monday, August 01, 2005
Goodrich on Contracting Friends Peter Goodrich (Yeshiva University - Cardozo Law School) has posted Friends in High Places: Amity and Agreement in Alsatia (International Journal of Law in Context, Vol. 1, p. 73, 2005) on SSRN. Here is the abstract:
    When friends promise, what rights accrue? This article examines the history and doctrine that has made common law so unwilling to enforce amicable and specifically agreements between cohabitants. The roots of this curious disability lie shown to lie in theology and antique ecclesiastical case law. The unintended and undesirable consequences are then elaborated.

Klick & Mitchell on the Regulation of Irrationality Jonathan Klick and Gregory Mitchell (Florida State University College of Law and Florida State University College of Law) has posted Government Regulation of Irrationality: Moral and Cognitive Hazards (Minnesota Law Review, Forthcoming) on SSRN. Here is the abstract:
    Behavioral law and economics scholars who advance paternalistic policy proposals typically employ static models of decision-making behavior, despite the dynamic effects of paternalistic policies. In this article, we consider how paternalistic policies fare under a dynamic account of decision-making that incorporates learning and motivation effects. This approach brings out two important limitations on the efficiency effects of paternalistic regulations. First, if preferences and biases are endogenous to institutional forces, paternalistic government regulations may perpetuate and even magnify a given bias and cause other adverse psychological effects. Second, for some biases, it will be more efficient to invest resources in debiasing than to change legal rights and remedies or, in some cases, to do nothing in light of the natural variation in irrational propensities. We propose dynamic models for determining ex ante and ex post when accommodation of bias will be second-best efficient. These models direct decision-makers to consider (1) the efficiency cost of the bias; (2) the extent to which accommodation worsens the bias or, alternatively, the extent to which non-accommodation improves the bias or has other benefits; and (3) the potential for education or other mechanisms to debias an individual. We argue that the concept of "cognitive hazard" - the potential for the costs of a bias to increase as individuals are insulated from the adverse effects of the bias - should be added to the concept of moral hazard as important qualifications to paternalistic proposals.
Highly recommended!

New of Law & Politics Book Reviews
    AMERICAN LAW IN A GLOBAL CONTEXT, by George P. Fletcher and Steve Sheppard. New York: Oxford University Press, 2005. 696 pp. Hardback. $74.00/£33.50. ISBN: 0-19-516722-8. Paper. $35.00/£21.50. ISBN 0-19-516723-6. Reviewed by Kirk A. Randazzo.
    ALIENATED: IMMIGRANT RIGHTS, THE CONSTITUTION, AND EQUALITY IN AMERICA, by Victor C. Romero. New York: NYU Press, 2005. 320pp. Cloth $42.00. ISBN: 0-8147-7568-3. Reviewed by John C. Blakeman.
    COURTING CONFLICT: THE ISRAELI MILITARY COURT SYSTEM IN THE WEST BANK AND GAZA, by Lisa Hajjar. Berkeley, CA: University of California Press, 2005. 335pp. Hardback. $60.00/£38.95. ISBN: 0520241932. Paper. $24.95/£15.95. ISBN: 0520241940. Reviewed by Menachem Hofnung.
    CORE QUESTIONS OF COMPARATIVE LAW, by Bernhard Grossfeld (translated by Vivian Grosswald Curran). Durham, NC: Carolina Academic Press, 2004. 282pp. Paper. $35.00. ISBN 0-89089-737-9. Reviewed by Susan M. Sterett.
    JUSTICE, LEGITIMACY, AND SELF-DETERMINATION: MORAL FOUNDATIONS FOR INTERNATIONAL LAW, by Allen Buchanan. Oxford: Oxford University Press, 2004. 520pp. Hardback. $35.00 / £25.00. ISBN: 0198295359. Reviewed by David Mednicoff.

Mikhail on Intuitive Knowledge and Battery John Mikhail (Georgetown) has posted Aspects of the Theory of Moral Cognition: Investigating Intuitive Knowledge of the Prohibition of Intentional Battery and the Principle of Double Effect on SSRN. Here is the abstract:
    Where do our moral intuitions come from? Are they innate? Does the brain contain a module specialized for moral judgment? Does the human genetic program contain instructions for the acquisition of a sense of justice or moral sense? Questions like these have been asked in one form or another for centuries. In this paper we take them up again, with the aim of clarifying them and developing a specific proposal for how they can be empirically investigated. The paper presents data from five trolley problem studies of several hundred individuals, including one group of Chinese adults and one group of American children, which suggest that both adults and children ages 8-12 rely on intuitive knowledge of moral principles, including the prohibition of intentional battery and the principle of double effect, to determine the permissibility of actions that require harming one individual in order to prevent harm to others. Significantly, the knowledge in question appears to be merely tacit: when asked to explain or justify their judgments, subjects were consistently incapable of articulating the operative principles on which their judgments appear to have been based. We explain these findings with reference to an analogy to human linguistic competence. Just as normal persons are typically unaware of the principles guiding their linguistic intuitions, so too are they often unaware of the principles guiding their moral intuitions. These studies pave the way for future research by raising the possibility that specific poverty of the stimulus arguments can be formulated in the moral domain. Differences between our approach to moral cognition and those of Piaget (1932), Kohlberg (1981), and Greene et al. (2001) are also discussed.
I am a big fan of Mikhail's work. Highly recommended!